# COMAR Title 26 — Department of the Environment

## Subtitle 01 — General Provisions

### Chapter 01 — Procedures for Hearings of Regulations

**Authority:** State Government Article, §10-204, Annotated Code of Maryland

**Administrative History:** Effective date: December 1, 1970

**Administrative History:** Chapter recodified from COMAR 10.01.02 to COMAR 26.01.01

#### Regulation .01 Definition.

*COMAR 26.01.01.01*

“Hearing officer” means the Secretary of the Environment, or his designee, and may include that employee of the Department of the Environment appointed by the Secretary to conduct hearings.

#### Regulation .02 Notice of Hearing.

*COMAR 26.01.01.02*

Published or circulated notice of the hearing shall contain:

A. The time of the hearing, if required;

B. The place of the hearing, giving the street address, floor, and designated room;

C. The purpose of the hearing, in clear, intelligible language;

D. If necessary, reference to the particular statute which gives authority for the hearing and the proposed regulation.

#### Regulation .03 Hearings Open to the Public.

*COMAR 26.01.01.03*

A. Hearings generally are open to the public although executive sessions are permissible. Regulations affecting the public at large may not be adopted in executive session.

B. If a series of hearings is to be held on the same day, the schedule should be arranged at staggered periods, with brief intervals in between. Requests for adjournments or postponements will be granted only for due cause.

C. Certain evidence may be presented in executive session. When the interests of the parties require that confidentiality be preserved, such as information relating to secret processes or methods of manufacture or production, this information may be withheld from any public hearing.

#### Regulation .04 Representation of Parties.

*COMAR 26.01.01.04*

A. Parties have a right to appear without or with counsel. This may include representation by non-lawyers in quasi-legislative hearings.

B. Parties should bring all pertinent records, documents, and other pertinent matter.

C. Parties may be accorded the right of cross-examination if it is relevant and material to the issues at hand. The right of cross-examination is not generally applicable to agencies conducting quasi-legislative type hearings.

#### Regulation .05 Inspection of Files.

*COMAR 26.01.01.05*

A. As a general principle, the files of a State agency are public records and may be inspected by interested parties to the hearing.

B. There may be exceptions:

  (1) If information is confidential;

  (2) If testimony is presented in executive session;

  (3) Under those imposed conditions set forth in State Government Article, Title 10, Subtitle 5, Part III, Annotated Code of Maryland, which generally provides for the inspection of public records.

C. The legal staff may be consulted with regard to proper control of the inspection of files.

#### Regulation .06 Oaths and Affirmations.

*COMAR 26.01.01.06*

The formality of an oath may be dispensed with unless:

A. An oath is required by law (see Environment Article, §2-605(e), Annotated Code of Maryland); or

B. The oath gives some assurances of veracity, formality, or decorum to the hearing.

#### Regulation .07 Order of Proof.

*COMAR 26.01.01.07*

A. The requesting agency has the affirmative and is examined first, or explains the regulation. Affirmative witnesses are followed by the aggrieved parties, if any, and their witnesses. The requesting agency shall be permitted to rebut their testimony. All parties may be subject to appropriate cross-examination, depending on the type of hearing.

B. Motions to dismiss or strike out testimony are superfluous in administrative hearings and should not be entertained.

#### Regulation .08 Conduct and Control of Hearing.

*COMAR 26.01.01.08*

A. Each party should be afforded an adequate opportunity to present his case.

B. The strict rules of evidence are generally inapplicable to administrative hearings.

C. The hearing officer may exclude disorderly persons from the hearing.

D. The hearing officer shall receive and mark all exhibits and documents received in testimony, if they are relevant to the case.

#### Regulation .09 The Record.

*COMAR 26.01.01.09*

A. All hearings should be recorded.

B. An accurate and complete transcript of the hearing shall be made.

C. The record should always indicate clearly who is talking.

D. Exhibits should be clearly marked. Other papers should be described for the record.

E. When questions arise as to admission of testimony and evidence, they should be admitted and the opposite party should be allowed to express his views concerning the admission.

F. Only the hearing officer controls the record.

G. If exhibits must be returned, the hearing officer should photostat or otherwise enter into the record a detailed description of the exhibits and indicate that they are being returned.

#### Regulation .10 Copies of the Record.

*COMAR 26.01.01.10*

A. The record should be generated in a minimum of three copies (one original and two carbons), and should be filed as follows:

  (1) Original—Office of the Secretary of the Environment for filing by the regulations coordinator;

  (2) First carbon—Office of the principal program director concerned;

  (3) Second carbon—Office of the Counsel of the Department of the Environment.

B. Additional copies of the record may be generated and furnished to respondents at their request and expense.

#### Regulation .11 Subpoenas.

*COMAR 26.01.01.11*

A. Subpoenas should only be issued when necessary and the law governing the issuance of subpoenas will be followed in each individual case, including but not limited to, any procedure that may be established by the Administrative Procedure Act.

B. They may be omitted when an ordinary notice of hearing will suffice.

C. It is sufficient to state in the notice of hearing that upon failure to attend, the matter may be decided upon testimony of parties present.

#### Regulation .12 The Decision.

*COMAR 26.01.01.12*

A. The final decision may be delayed, depending upon the subject matter, unless policy indicates otherwise. The decision, however, should be rendered as rapidly as possible.

B. The decisions generally should consist of the following, unless policy indicates otherwise:

  (1) A statement of the issues involved, parties, and findings of fact based upon the record;

  (2) The conclusion, based upon the facts and the action to be taken; for the most part, the conclusion reached will be that of the Secretary of the Environment.

#### Regulation .13 Postponement or Continuance.

*COMAR 26.01.01.13*

A. The granting of postponement or continuance of a hearing may be within the discretion of the hearing officer depending upon the availability of witnesses, illness, attorneys, agreements or stipulations, and, for the most part, good and sufficient reason.

B. If a hearing falls within the category of adversary or quasi-judicial, it is reasonable to require the appellant or claimant, or his legal representative, to submit reasons for the postponement or continuance at least 5 days in advance of the hearing date. The request should be in writing, signed by the appellant or claimant, or his legal representative, and become a part of the file.

C. In the instance of quasi-legislative hearings, as, for example, when regulations are advertised for promulgation and adoption, the hearing officer should consider the best interest of the public.

D. There is no statutory requirement that these hearings be postponed or continued. Interested parties, by proper public notice, are given an opportunity to submit their data and views in writing before the hearing or to appear in person on the date of the hearing.

### Chapter 02 — Procedures for Contested Case Hearings Before the Secretary of the Environment

**Authority:** Environment Article, §1-404; State Government Article, §10-204; Annotated Code of Maryland

**Administrative History:** Effective date: July 31, 1973

**Administrative History:** Chapter recodified from COMAR 10.01.03 to COMAR 26.01.02

**Administrative History:** Regulations .01—.10 repealed effective October 16, 1989 (16:20 Md. R. 2183)

**Administrative History:** Regulations .01—.39 adopted effective October 16, 1989 (16:20 Md. R. 2183)

**Administrative History:** Regulation .05C adopted effective April 29, 1991 (18:8 Md. R. 864)

#### Regulation .01 Scope.

*COMAR 26.01.02.01*

A. This chapter applies to contested hearings which the Secretary is required to conduct by statute or regulation except for those hearings for which specific procedural regulations have been promulgated. They do not apply to conferences, investigations, or to proceedings at which the general public has been assembled to provide comments and opinions on a permit or license proposed to be issued by the Department, or to hearings before the Department's Boards and Commissions which are authorized by law to conduct their own hearings.

B. These procedures are intended to supplement the procedures required by law. In the event of conflict, statutory provisions take precedence over these regulations.

#### Regulation .02 Definitions.

*COMAR 26.01.02.02*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Civil penalty” means a statutorily authorized monetary penalty imposed for a violation of a statute, regulation, permit, or license. Civil penalty does not include statutorily authorized reimbursement of State or federal expenditures.

  (2) “Department” means the Maryland Department of the Environment, or any of its constituent units.

  (3) “Final decision maker” means the Secretary of the Environment, that official empowered by statute to render the final agency decision in a contested case, or a designee for the purpose of rendering a final decision in a contested case.

  (4) “Hearing” means a contested case hearing as defined by the Administrative Procedure Act, State Government Article, §10-201 et seq., Annotated Code of Maryland.

  (5) “Hearing examiner” means the person designated to preside over an evidentiary hearing in a contested case.

  (6) “Office of Hearings” means the administrative unit of the Department authorized to conduct hearings in contested cases.

  (7) “Party” means a person or agency named or admitted as a party, including the Department.

  (8) “Person” means any individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any firm, partnership, association, corporation, or other entity including any public or municipal corporation and any agency, bureau, Department or instrumentality of federal, State, or local government.

  (9) “Secretary” means the Secretary of the Environment, a designee of the Secretary for the purpose of rendering a final decision in a contested case, or that official empowered by statute to render the final agency decision in a contested case.

#### Regulation .03 Sanctions.

*COMAR 26.01.02.03*

These regulations shall be construed to secure the just and speedy determination of every action. If a party fails to follow these regulations, either the hearing examiner or the final decision maker, whichever person is appropriate, may enter the orders in regard to the failure as are just, including limiting the issues to be heard and dismissing the request for hearing or entering an order on the merits against a party.

#### Regulation .04 The Record.

*COMAR 26.01.02.04*

A. The Office of Hearings shall prepare an official record of each hearing. All hearings, including hearings on motions, shall be on the record. The record consists of:

  (1) The charging document or other document giving rise to the appeal;

  (2) The request for a hearing;

  (3) The notices of all proceedings;

  (4) Any prehearing order;

  (5) Any motions, pleadings, briefs, petitions, requests, and intermediate rulings;

  (6) Evidence received or considered;

  (7) A statement of each fact officially noticed;

  (8) Proffers of proof and objections and rulings on them;

  (9) Proposed findings of fact or conclusions of law, requested orders, and exceptions;

  (10) Any records of ex parte communications, as required under Regulation .32 of this chapter;

  (11) Any tape recorded by the Office of Hearings at the hearing, any original transcript of the tape recording, and any original transcript prepared by a court reporting service;

  (12) Any final order, initial order, or order on reconsideration;

  (13) Matters placed on the record after an ex parte communication.

B. Hearings shall be either tape recorded by the Office of Hearings or stenographically reported verbatim. Tapes or originals of the transcript, if one is prepared, shall be filed with the record. Tapes shall be retained for the duration of the appeal period.

C. Upon compilation, the record shall be available for public inspection at the Office of Hearings during normal business hours, unless the contents are otherwise protected by law.

#### Regulation .05 Notice of the Right to a Hearing.

*COMAR 26.01.02.05*

A. The Department shall provide notification of its action whenever a right to a hearing is provided by law.

B. The notification shall include:

  (1) A statement of the factual basis for the action;

  (2) A reference to the statutory or regulatory provision under which the action is being taken;

  (3) A statement of the right to a hearing upon request;

  (4) The authority of the Department to hold the hearing;

  (5) The specific section of each statute and regulation, including a procedural regulation, that is pertinent;

  (6) A statement of the time period within which a hearing shall be requested, and what action the person is required to take in order to timely request a hearing;

  (7) A statement that unless a hearing is requested, the intended Department action shall become final and binding on all parties.

C. The time period within which a hearing shall be requested is 30 days after notice is served, unless otherwise provided by law.

#### Regulation .06 Request for Hearing.

*COMAR 26.01.02.06*

A. A person, either directly or through a representative, may request a hearing by mailing or delivering a clear written request in accordance with the notification of the right to a hearing.

B. The request shall state that the person desires a hearing in order to review a matter as provided under Department regulations or other applicable law, and should include a copy of the document or charge being appealed.

C. The request shall include a brief statement of the factual and legal basis for the request, and other information required by law.

D. The Department may require the statement to be made on a form if the person is notified of this requirement and is provided a copy of the form in the notice of the right to a hearing.

E. A request for a hearing shall be considered filed on the earlier of:

  (1) The date the request is actually received in any office of the Department; or

  (2) Three days after the request has been postmarked by the United States Postal Service.

#### Regulation .07 Hearing Examiner.

*COMAR 26.01.02.07*

All contested cases which are authorized by statute to be conducted by the Department shall be conducted by a hearing examiner.

#### Regulation .08 Separation of Functions.

*COMAR 26.01.02.08*

A. An individual who has served as prosecutor in an adjudicative proceeding may not serve as hearing examiner or assist or advise a hearing examiner in the same adjudicative proceeding.

B. A person who has participated in a determination of probable cause or other equivalent preliminary determination in an adjudicative proceeding may serve as hearing examiner or as a final decision maker, or may assist or advise a hearing examiner or final decision maker in the same adjudicative proceeding, unless a party demonstrates grounds for disqualification in accordance with Regulation .10.

C. A person is not disqualified from serving as a hearing examiner or final decision maker at an adjudicative proceeding because of participation at a prior nonadjudicative proceeding involving the same matter.

#### Regulation .09 Powers and Duties of Hearing Examiners.

*COMAR 26.01.02.09*

A. The hearing examiner shall have the authority and duty to:

  (1) Conduct a full, fair, and impartial hearing;

  (2) Take action to avoid unnecessary delay in the disposition of the proceedings; and

  (3) Maintain order.

B. The hearing examiner shall have complete charge of the hearing, and may permit examination of witnesses, admit evidence, rule on the admissibility of evidence, and adjourn or recess the hearing from time to time.

C. The hearing examiner shall have the power to regulate the course of the hearing and the conduct of the parties and their counsel and shall have all powers necessary to implement §§A and B, of this regulation, including, but not limited to, the power to:

  (1) Administer oaths and affirmations;

  (2) Issue summonses for witnesses and subpoenas requiring the production of documents;

  (3) Rule upon offers of proof and receive relevant and material evidence;

  (4) Consider and rule upon all procedural and other motions appropriate to the proceedings;

  (5) Examine and call witnesses;

  (6) Maintain order, limit unduly repetitious testimony, and limit the time for presentations;

  (7) Grant a continuance for good cause shown;

  (8) Require that parties submit proposed findings of fact and conclusions of law;

  (9) Make decisions and take any other appropriate actions authorized by law;

  (10) Issue the orders as are necessary to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay.

#### Regulation .10 Disqualification; Substitution of Hearing Examiners.

*COMAR 26.01.02.10*

A. Hearing examiners may disqualify themselves for any reason which affects or may appear to affect their impartiality, and shall disqualify themselves for the reasons stated in Rule 1231 of the Maryland Rules of Procedure, Rule of Judicial Ethics 2, which provides: “A judge shall not exercise his duties with respect to any matter in which a near relative by blood or marriage is a party, has an interest, or appears as a lawyer. He shall not participate in any matter in which he has a significant financial interest or in which he previously acted as lawyer. For the purpose of this rule, 'near relative' shall mean connection by consanguinity or affinity within the third degree, counting down from a common ancestor to the more remote.”

B. A party may petition for the disqualification of a hearing examiner promptly after receipt of notice indicating that the individual will preside, or promptly upon discovering facts establishing grounds for disqualification.

C. The individual whose disqualification is requested shall determine whether to grant the petition, stating facts and reasons for the determination.

D. If a hearing examiner becomes unavailable, for any reason, before rendering his or her proposed decision, a substitute shall be appointed by the chief hearing examiner. The substitute shall use any existing record and may conduct such further proceedings as are necessary to fairly conclude the hearing and to render a proposed decision.

#### Regulation .11 Notice of Hearing.

*COMAR 26.01.02.11*

A. The Office of Hearings shall serve, or cause to be served, reasonable written notice of the hearing on the parties and to all persons who have filed written petitions to intervene in the matter.

B. The hearing notice shall contain:

  (1) The date, time, place, and nature of the hearing;

  (2) A statement of the right to present witnesses and documents at the hearing;

  (3) A statement of the right to request subpoenas for witnesses and documents as provided by law; and

  (4) A statement that a copy of the hearing procedures may be obtained at the Office of Hearings.

#### Regulation .12 Venue.

*COMAR 26.01.02.12*

Hearings shall be conducted at the offices of the Department unless:

A. Applicable law requires the hearing to be conducted elsewhere; or

B. The hearing examiner determines that for convenience or the interests of justice the hearing shall be conducted at some other reasonable location.

#### Regulation .13 Failure to Attend Proceeding; Default.

*COMAR 26.01.02.13*

A. If after receiving proper notice a party fails to timely request a hearing, or to attend or participate in a prehearing conference, hearing, or other stage of an adjudicative proceeding, either the hearing examiner or final decision maker, whichever person is appropriate, may proceed in that party's absence, may rely on affidavits, or may conduct hearings as appropriate. Upon a prima facie showing by the moving party, the final decision maker may issue a final default order against the defaulting party. Following issuance of the final default order, copies shall be mailed by the Office of Hearings to the defaulting party at the party's address where the complaint or other document giving rise to the case was served, or at the party's last known address which shall be stated in the request for a default order, or at both addresses if they differ. The mailing shall include notice of the party's rights under §B, of this regulation, but proof of actual service of the final default order may not be required.

B. Within 15 days after mailing of a final default order, the party may file a written motion requesting that the final default order be vacated or modified, and stating the grounds relied upon.

C. If the hearing examiner or final decision maker finds that there is a substantial and sufficient basis for an actual controversy as to the merits of the action and that it is equitable to excuse the default, the hearing examiner or final decision maker may vacate the final default order or issue such other order as justice requires. If the motion is not granted within 15 calendar days it shall be deemed denied.

D. Notwithstanding the other provisions in this regulation, the final decision maker may issue a final default order against a party if that party waived the opportunity to request the hearing.

E. A final default order is a final decision and is reviewable as such.

#### Regulation .14 Service.

*COMAR 26.01.02.14*

A. When the Department is required to make service of a complaint, other charging document, or other document giving rise to the right to a hearing, service may be made by personal delivery or by mailing to the person to be served a copy of the complaint or other document by certified mail requesting: “restricted delivery—show to whom, date, address of delivery”. Service by certified mail under this regulation is complete upon delivery. Service outside the State may also be made in the manner prescribed by the foreign jurisdiction if reasonably calculated to give actual notice.

B. When the Department is required to make service of any other type of document, service may be made in any manner provided by the Maryland Rules of Civil Procedure for the service of pleadings and papers other than original pleadings.

C. Service upon a party to whom a permit or license or certificate has been issued by the Department may be made by delivering, in the manner provided above, a copy to the party's last known address in the Department's records.

D. In addition, service may be made by any other method allowed by law.

#### Regulation .15 Certificates of Service.

*COMAR 26.01.02.15*

Whenever a party is required by this chapter to serve a copy of a pleading or memorandum upon another party, a certificate shall be appended to the pleading or memorandum stating:

A. To whom the copy was sent;

B. The address to which the copy was sent;

C. The name of the person who sent the copy;

D. The date the copy was sent; and

E. Manner of service.

#### Regulation .16 Continuances.

*COMAR 26.01.02.16*

On request of any party or on the hearing examiner's own initiative, the proceeding may be continued by the hearing examiner as justice may require. Requests for postponement shall be confirmed in writing, and the written request shall set forth the reason for the request and shall list at least three dates within the 45-day period following the day originally scheduled on which the party and counsel would be available for a hearing, unless the parties agree to schedule beyond the 45-day period. Whenever feasible, a postponed hearing will be rescheduled within the 45-day period.

#### Regulation .17 Time Periods.

*COMAR 26.01.02.17*

For good cause the hearing examiner may shorten or extend or waive any time periods provided in this chapter for matters before the hearing examiner. For time periods concerning the exceptions or reconsideration processes, the final decision maker shall make this determination.

#### Regulation .18 Subpoenas.

*COMAR 26.01.02.18*

A. Requests. Requests for issuance shall specify the name, address, zip code and county, for purpose of service, of the person to be subpoenaed, and the address and telephone number of the requester. Any requests for issuance of subpoenas shall be received in the Office of Hearings not later than 5 working days before the scheduled hearing date, unless good cause is shown why the request could not have been made earlier. If a subpoena requests the production of tangibles, books, papers, or other documents, they shall be described with particularity. For subpoenas filed 10 calendar days or less before the scheduled hearing date, service shall be provided by the requester.

B. Issuance of Subpoenas. The Office of Hearings may, on request of any party or upon the hearing examiner's own motion, issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence, including relevant books, records, correspondence, or documents in the possession or under the control of the witness, at the hearing. Requests for subpoenas may be made ex parte. A subpoena shall show on its face the name and telephone number of the party at whose request it was issued.

C. Service of Subpoenas. Subpoenas for persons may be served by either hand-delivering a copy to the individual named, or by registered or certified mail addressed to the individual at the individual's last known dwelling place or principal place of business. Proof of service may be shown by a verified return by the individual serving the subpoena setting forth the manner of service, or, in the case of service by registered or certified mail, by the returned United States Postal Service receipt.

D. Costs. The costs of serving subpoenas may be charged to the requester.

E. Objections to Subpoenas. A person may object to a subpoena by filing a motion to quash or for other relief before the hearing examiner. The motion shall be filed promptly after service of the subpoena before the time specified in the subpoena for compliance.

F. Enforcement of Subpoenas. Upon failure of any person to comply with a subpoena, the person or agency requesting the subpoena may apply to the appropriate circuit court for its enforcement.

#### Regulation .19 Appointment of Interpreter.

*COMAR 26.01.02.19*

A. If a party or witness cannot readily hear, speak, or understand the spoken English language, the hearing examiner may appoint a qualified interpreter to provide assistance during a hearing.

B. Cost of an interpreter may be charged to the party on whose behalf the interpreter is obtained.

#### Regulation .20 Appearance of Parties at Hearings; Representation.

*COMAR 26.01.02.20*

A. Any party to a proceeding may be represented by an attorney authorized to practice law in Maryland, or, unless prohibited by law, appear in person or through another legally authorized representative.

B. An attorney shall enter his or her appearance with the Office of Hearings. In an enforcement action initiated by the Department, the signing attorney has entered his appearance.

C. Unless the appearance is subsequently withdrawn in writing, any notice, decision, or other matter required to be sent to a party may be sent to the attorney by first class mail, postage prepaid at the attorney's address, and the presumptions regarding notices to parties will apply.

D. When any party is represented by an attorney, all submissions of evidence, examination and cross-examination of witnesses, and all objections and motions on the parties behalf shall be made solely by that attorney.

#### Regulation .21 Discovery.

*COMAR 26.01.02.21*

A. Discovery may be taken only in accordance with the stipulation of the parties. If such a stipulation is entered, then the hearing examiner may issue such orders as are necessary to implement discovery.

B. Parties may request governmental documents under the Maryland Public Information Act, State Government Article, §§10-611 et seq., Annotated Code of Maryland

#### Regulation .22 Prehearing Conference.

*COMAR 26.01.02.22*

A. The hearing examiner may hold a prehearing conference to enable the parties to discuss settlement, enter into stipulations, narrow the issues to be litigated, and to resolve other matters preliminary to the hearing.

B. A scheduled hearing will not ordinarily be postponed to allow the parties to have a prehearing conference.

C. Upon request of a party, the hearing examiner may order that each party make available to the other parties the names and written reports of experts and other witnesses the party expects to call.

D. Unless permitted by the hearing examiner, persons other than parties may not attend the prehearing conferences.

E. At the prehearing conference the following matters may be addressed:

  (1) Stipulations and admissions of facts, the genuineness of documents, and other matters upon which there is no dispute;

  (2) Matters of which official notice may be taken;

  (3) When possible, determinations regarding the admissibility of any written documents, papers, exhibits, testimony, or materials proposed to be introduced at the hearing by each party;

  (4) A proposed schedule of order for the following:

    (a) Submission of written briefs,

    (b) Order of presentation, and

    (c) Presentation of oral arguments;

  (5) Settlement possibilities;

  (6) Determinations regarding the identity and limitations of the number of witnesses; and

  (7) Rulings regarding issuance of subpoenas, discovery orders, and protective orders.

F. The hearing examiner may also consider such other matters as will promote the orderly and prompt conduct of the hearing.

G. At the discretion of the hearing examiner all or part of the prehearing conference may be conducted by telephone, television, or other electronic means, provided that each participant in the prehearing conference has an opportunity to participate, to hear, and to object.

H. The hearing examiner may prepare a written order reciting the actions taken or to be taken with regard to each of the matters in §E, of this regulation, and this order shall become a part of the record of the case.

I. If a prehearing conference is not held, the hearing examiner may issue a prehearing order to regulate the conduct of the proceedings.

#### Regulation .23 Stipulations and Affidavits.

*COMAR 26.01.02.23*

A. Stipulations. The parties may, by stipulation, agree upon any of the facts. A stipulation, when placed in the record, may be regarded and used as evidence at the hearing. The hearing examiner may require additional evidence.

B. Affidavits. An affidavit may be admitted in the discretion of the hearing examiner, for good cause shown, as evidence in place of testimony, if the matters contained in it are otherwise admissible.

#### Regulation .24 Intervention.

*COMAR 26.01.02.24*

A. Upon timely motion under §C, a person shall be permitted to intervene in an action when the person:

  (1) Has an unconditional right to intervene as a matter of law; or

  (2) Claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest unless it is adequately represented by existing parties.

B. Upon timely motion under §C, a person may be permitted to intervene in an action when the person's claim or defense has a question of law or fact in common with the action. In exercising this discretion the hearing examiner shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Conditions upon the intervenor's participation in the proceedings may be imposed, either at the time that intervention is granted or at any subsequent time. These conditions may include limitations to designated issues or requiring two or more intervenors to combine their presentation of evidence, cross-examination of witnesses, and argument.

C. A person desiring to intervene shall file and serve a motion to intervene at least 15 days before the hearing. The motion shall state the grounds for the motion and shall be accompanied by a statement setting forth the claim or defense for which intervention is sought.

D. If the hearing examiner is not the final decision maker:

  (1) The denial of a motion to intervene under §A is immediately appealable to the final decision maker.

  (2) A denial under §B is immediately appealable to the final decision maker only if the person seeking intervention alleges that the hearing examiner has abused his or her discretion. All other decisions on motions to intervene may be appealed to the final decision maker only as exceptions to the hearing examiner's proposed decision.

#### Regulation .25 Conduct of Hearings.

*COMAR 26.01.02.25*

A. On a genuine issue in a contested case, except as restricted by a statutorily limited grant of intervention or by the prehearing order, each party is entitled to:

  (1) Call witnesses;

  (2) Offer evidence and rebuttal evidence;

  (3) Cross-examine any witness called by another party; and

  (4) Present summation and argument.

B. The hearing examiner may, with consent of the parties, conduct all or part of the hearing by telephone, television, or other electronic means, if each participant in the hearing has an opportunity to participate in, to hear, to object, and, except when a telephone is used, to see the entire proceeding while it is taking place.

C. Witnesses and parties acting as witnesses shall be sworn or put upon affirmation to tell the truth.

#### Regulation .26 Open Hearings.

*COMAR 26.01.02.26*

A. Unless otherwise provided by law, documents, notices, and records in the possession of the Office of Hearings as a result of these contested case proceedings may be inspected by any person as provided in State Government Article, §10-611 et seq., Annotated Code of Maryland.

B. Cameras and other photographic equipment may be permitted in the hearing room at the discretion of the hearing examiner.

C. The hearing examiner may cause the removal of any person whose conduct impedes the orderly progress of the hearing, or may recess the hearing until such time as it may proceed in an orderly fashion.

D. The hearing examiner may exclude from the hearing persons who have not given the hearing examiner advance notice of an intention to attend, if the size of the hearing room is too small to accommodate the presence of that person.

E. A hearing is open to public observation, except for the parts that the hearing examiner states are to be closed under a provision of law expressly authorizing that closure. To the extent that a hearing is conducted by telephone, television, or other electronic means, the availability of public observation is satisfied by giving members of the public an opportunity, at reasonable times, to hear or view the recordings, except for such portions of the hearing as are closed under this section.

#### Regulation .27 Order of Proceedings.

*COMAR 26.01.02.27*

A. The case shall be called to order by the hearing examiner.

B. The hearing examiner may explain briefly the purpose and nature of the hearing and may allow counsel or any interested party to be heard for any prehearing objections, exceptions, or motions.

C. Any prehearing motion shall be heard and decided by the hearing examiner.

D. The party bearing the burden of going forward shall be the first to offer its case in chief.

E. The hearing examiner may alter the order of presentation of evidence and witnesses.

F. The parties may make opening and closing statements.

#### Regulation .28 Burdens of Going Forward and Persuasion.

*COMAR 26.01.02.28*

A. When by specific statute or regulation the burden of going forward or the burden of persuasion rests upon a certain party, this regulation does not shift those burdens.

B. Except as provided in §A, of this regulation:

  (1) A party contesting the Department's intent to deny or refuse to renew a permit or license bears the burden of going forward to establish a prima facie case of entitlement to the permit or license and the burden of persuasion that the permit or license is to be issued;

  (2) A party contesting the Department's intent to issue or renew a permit or license bears the burden of going forward to establish a prima facie case that grounds exist for denying the license or permit and the burden of persuasion that the license or permit is to be denied;

  (3) In a proceeding by the Department to revoke or suspend a permit or license, the Department bears the burden of going forward to establish a prima facie case as to the existence of grounds for revocation or suspension and the burden of persuasion that the license or permit is to be revoked or suspended; and

  (4) In a proceeding to impose a civil penalty or to issue an order, the Department bears the burden of going forward to establish a prima facie case as to the existence of the grounds for imposition of a civil penalty or issuance of an order and the burden of persuasion that the civil penalty is to be imposed or order issued.

C. Except as provided by §§A and B, of this regulation, the party asserting the affirmative of an issue before the hearing examiner has the burden of going forward and the burden of persuasion.

D. A hearing examiner shall find against a party with the burden of:

  (1) Going forward if that party has not presented sufficient evidence to establish a prima facie case for that party's claim or defense; or

  (2) Persuasion if that party has not presented evidence sufficient to establish the correctness of its claim or defense by a preponderance of the evidence.

#### Regulation .29 Evidence.

*COMAR 26.01.02.29*

A. The rules of evidence shall be those which are provided for State Government Article, §10-208, Annotated Code of Maryland. The hearing examiner may admit probative evidence that reasonable and prudent individuals commonly accept in the conduct of their affairs and give probative effect to that evidence. The hearing examiner may exclude evidence that is incompetent, irrelevant, immaterial, or unduly repetitious. The hearing examiner shall apply a privilege that law recognizes. Evidence, oral or documentary, is not to be excluded solely on the ground that it constitutes hearsay.

B. Expert testimony may be accepted by the hearing examiner if, in the hearing examiner's opinion, the testimony as proffered would aid in an understanding of the case.

C. On motion of any party made before testimony begins, the hearing examiner shall order that witnesses other than parties be excluded from the hearing room except when testifying, and the hearing examiner may do so on his or her own initiative or on motion of any party made after testimony begins. A party that is not a natural person may designate a representative to remain in the hearing room, even though the representative may be a witness. An expert witness who is to render an opinion based on testimony given at the hearing shall be permitted to remain during that testimony.

D. The hearing examiner may order the witness, parties, attorneys, and all other persons present in the hearing room not to disclose to any witness excluded under this regulation the nature, substance, or purpose of testimony, exhibits, or other evidence introduced during the witness' absence.

E. Direct testimony may be received in written form when this will expedite the hearing without substantial prejudice to the interests of any party.

F. Official Notice.

  (1) The hearing examiner or final decision maker may take official notice of a fact that is:

    (a) Judicially noticeable; or

    (b) General, technical, or scientific and within the specialized knowledge of the hearing examiner or final decision maker.

  (2) Before taking official notice of a fact, the hearing examiner or final decision maker shall:

    (a) Notify each party; and

    (b) Give each party an opportunity to contest the fact.

#### Regulation .30 Pleadings, Motions, and Briefs.

*COMAR 26.01.02.30*

A. A party shall serve on all other parties a copy of all pleadings and papers filed in the case.

B. Motions Generally.

  (1) Any party may make a motion seeking appropriate relief before or during the hearing. If made:

    (a) Before a hearing, the motion shall:

      (i) Be in writing;

      (ii) State concisely the question to be determined;

      (iii) Be filed not later than 5 days before the date of the hearing; and

      (iv) Be accompanied by a memorandum of points and authorities;

    (b) In the course of a hearing, a motion may be made orally.

  (2) A reply to a written motion may be filed by any party not later than 15 days after the filing of the motion or on the date of the hearing, whichever is sooner.

  (3) A hearing may be held to consider a motion. If a hearing is held, all parties shall be given written notice. Failure of a party to attend a hearing on a motion may be grounds for a decision adverse to that nonattending party.

  (4) Decision.

    (a) The hearing examiner may grant or deny any motion or may postpone ruling on a motion until after the hearing.

    (b) If a written motion is granted or denied, the hearing examiner may issue a written decision or state the decision in the record.

    (c) If a ruling on a written motion is postponed, the ruling may be included in the hearing examiner's proposed decision.

    (d) A ruling on an oral motion made during the course of a hearing may be included in the hearing examiner's proposed decision or stated in the record.

C. Motion to Dismiss. Upon motion, the hearing examiner may issue a proposed decision dismissing a request for hearing, complaint, civil penalty, or an order of the Department, which fails to state a claim upon which administrative relief may be granted.

D. Briefs, Proposed Findings of Fact and Conclusions of Law.

  (1) A party may, and at the request of the hearing examiner shall, submit to the hearing examiner a brief on any issue of fact or law involved in the hearing.

  (2) Proposed findings of fact and conclusions of law may be submitted by any party, unless the hearing examiner concludes that findings of fact and conclusions of law are unnecessary or inappropriate.

  (3) Written submissions shall be filed in the form, and at the time, that the hearing examiner may designate.

#### Regulation .31 Decision of the Hearing Examiner.

*COMAR 26.01.02.31*

A. The hearing examiner need not prepare or submit a decision or a proposed decision if the contested case has been withdrawn, or disposed of by stipulation, settlement, consent order, or default.

B. The hearing examiner shall decide a case on the basis of the evidence and according to the applicable burden of persuasion. The hearing examiner may use his or her experience, technical competence, and specialized knowledge in the evaluation of evidence.

C. A decision or proposed decision shall be prepared in writing by the hearing examiner and shall contain findings of fact and conclusions of law, separately stated, and an order if appropriate. If the findings of fact are set forth in language that is no more than mere repetition or paraphrase of the relevant provision of law, the decision or proposed decision shall be accompanied by a concise and explicit statement of the underlying facts of record to support the findings. If the hearing examiner required the submission of proposed findings of fact, the decision or proposed decision shall include a ruling on each proposed finding.

D. If the hearing examiner is not the final decision maker, the hearing examiner shall submit the proposed decision to the final decision maker with a copy to each party. Exceptions to the proposed decision may be filed under Regulation .35, and the hearing examiner shall provide written notice to the parties, or to their representatives of record, that any party, including the Department, if adversely affected, may file exceptions to that proposed decision, and may, by specific mention, request an opportunity to give oral argument before the Secretary.

E. If the hearing examiner is the final decision maker, the decision of the hearing examiner is the final decision of the Department subject only to reconsideration under Regulation .38. A copy of the final decision shall be sent to each party.

#### Regulation .32 Ex Parte Communications.

*COMAR 26.01.02.32*

A. Generally Prohibited.

  (1) Except as provided in §A(2), of this regulation, an individual who is not authorized to participate in the decision-making process of a contested case may not communicate ex parte with an individual who is involved in the process with regard to any issue of law or fact in the contested case.

  (2) An individual who is involved in the decision-making process may communicate with members of an advisory staff of the Department, with other employees of the Office of Hearings, or with any counsel for the Department who otherwise does not participate in the contested case.

B. Disclosure. An individual who is involved in the decision-making process and who is personally aware of an ex parte communication that is made in violation of §A of this regulation shall:

  (1) Include in the record of the contested case:

    (a) Each written communication received;

    (b) A memorandum that states the substance of each oral communication received;

    (c) Each written response to a communication; and

    (d) A memorandum that states the substance of each oral response to the communication; and

  (2) Send to each party a copy of each communication, memorandum, and response.

C. Rebuttal. A party may rebut an ex parte communication if the party requests the opportunity to rebut within 10 days after notice of the communication.

D. Remedial Action.

  (1) To eliminate the effect of an ex parte communication that is made in violation of §A of this regulation, the decision maker may:

    (a) Withdraw from the proceeding; or

    (b) Terminate the proceeding without prejudice.

  (2) An order to terminate the proceeding without prejudice shall state the last date by which a party may reinstitute the proceeding.

#### Regulation .33 Transcripts; Costs.

*COMAR 26.01.02.33*

A. A record of the proceeding by tape recording or stenographic notes or symbols shall be made at the expense of the Office of Hearings. This record need not be transcribed unless requested by a party, by the hearing examiner, or by the Secretary.

B. Any party which desires a copy of the transcript may request one. A party may request the Department to share in the cost of transcription or to waive transcription. For good cause shown, the Office of Hearings may pay or advance all or part of the cost.

#### Regulation .34 Final Decision.

*COMAR 26.01.02.34*

A. The final decision maker is not bound by the hearing examiner's proposed decision even in those cases when exceptions are not filed.

B. If exceptions have not been filed and, after reviewing a proposed decision by a hearing examiner, the final decision maker concludes that he or she is unable to approve that decision as written, the final decision maker shall notify all parties and invite argument from the affected parties on the issues the final decision maker is reconsidering.

#### Regulation .35 Exceptions; Requests for Oral Argument.

*COMAR 26.01.02.35*

A. In any case in which the hearing examiner is not the final decision maker, the decision may not be made final until a proposed decision has been served on the parties and an opportunity has been afforded to any party adversely affected, including the Department, to file exceptions and present written argument to the final decision maker.

B. Failure to file exceptions constitutes a failure to exhaust administrative remedies and bars future appeal rights, unless the final decision differs significantly from the proposed decision.

C. Exceptions shall be filed with the Office of Hearings within 21 days after the hearing examiner's proposed decision is received. Receipt is presumed to occur 3 days after mailing.

D. Exceptions shall be in writing and contain a concise statement as to each portion of the hearing examiner's determination to which exception is taken and the asserted basis for taking the exception.

E. A copy of the exceptions shall be served on all parties to the proceedings. All parties shall be afforded the opportunity to present written argument to the final decision maker.

F. The final decision maker may hear oral argument and, if it is requested, shall hear oral argument. The time for argument may be limited at the discretion of the final decision maker.

G. The final decision maker shall consider the exceptions filed before rendering the final Department decision.

H. A party which intends to refer to any evidence produced at the hearing before the hearing examiner shall notify the final decision maker of the specific evidence in its request for exceptions. That party is responsible for filing with the final decision maker a copy of the transcript of the hearing, or relevant portions of it, at least 5 days before the scheduled exception hearing, if such a hearing is to be held.

I. If all parties are in agreement, a stipulation of facts may be submitted instead of a transcript.

J. Additional evidence may not be introduced, nor may testimony of witnesses be heard by the final decision maker. All exceptions hearings or reviews shall be conducted on the basis of the record compiled before the hearing examiner.

K. The final decision maker shall issue the final decision including an order if appropriate as soon as practical after the conclusion of the exceptions hearing. Copies of the final decision shall be delivered or mailed promptly to all parties or to their attorneys.

#### Regulation .36 Consolidation.

*COMAR 26.01.02.36*

When proceedings involving a common question of law or fact are pending before the hearing examiner or before the final decision maker, the proceedings may be consolidated. If the proceedings consolidated involve different parties or burdens of going forward or persuasion, procedures may be imposed which will assure an expeditious and just proceeding.

#### Regulation .37 Stays.

*COMAR 26.01.02.37*

A. Except as prohibited by law, a party which is adversely affected by a final order may request a stay of the order from the final decision maker pending rehearing or judicial review.

B. A request for a stay shall be filed with the final decision maker within 10 days of the date of the final order from which the stay is sought.

C. A request shall include a statement of the reasons a stay is sought.

D. A request shall include a statement of the grounds for the application for rehearing or judicial appeal.

E. The final decision maker may grant a stay upon such conditions, including security or bond, as the final decision maker determines to be proper.

F. A request for stay may not operate as a stay, or extend the time for appeal.

G. The final decision maker may hold a hearing on a request for a stay, or rule upon the request without a hearing.

H. Unless granted within 10 calendar days, requests for stays will be deemed denied.

#### Regulation .38 Reconsideration.

*COMAR 26.01.02.38*

A. Requests for Reconsideration.

  (1) Within 14 days from the date the final decision maker serves a decision on a party, a party, including the Department, may request reconsideration of the decision.

  (2) The application shall state the grounds for reconsideration.

  (3) The final decision maker shall grant or deny the request within 10 calendar days of its submission or the request shall be deemed denied.

  (4) In the discretion of the final decision maker, enforcement of an order may be stayed until disposition of a request for reconsideration.

B. The scope of any proceeding involving a request for reconsideration is within the discretion of the final decision maker, who may consider facts not presented in the original proceeding and facts arising after the time of the original proceeding, if the final decision maker is satisfied by a showing in advance of the proceeding that:

  (1) The evidence is material; and

  (2) There were good reasons for the failure to offer the evidence at the evidentiary hearing.

C. By a new order the final decision maker may change the original order.

D. A request for reconsideration is not a prerequisite to judicial review.

#### Regulation .39 Appeal.

*COMAR 26.01.02.39*

A. Each party is required to exhaust its administrative remedies as a precondition to appealing any issue in a final decision. This exhaustion requirement includes the exceptions process under Regulation .35, which is available when the hearing examiner is not the final decision maker.

B. Within 10 days of filing an appeal, the appealing party shall file with the Office of Hearings a request to transmit the record to the appropriate court.

### Chapter 03 — Petitions for Adoption, Amendment, or Repeal of Regulations

**Authority:** State Government Article, §10-123, Annotated Code of Maryland

**Administrative History:** Effective date: November 9, 1981 (8:22 Md. R. 1784)

**Administrative History:** Chapter recodified from COMAR 10.01.07 to COMAR 26.01.03

#### Regulation .01 Definitions.

*COMAR 26.01.03.01*

A. In this chapter, the following words have the meanings indicated.

B. Terms Defined.

  (1) “Department” means the Department of the Environment.

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

  (3) “Regulation” is defined in State Government Article, §10-101(e), Annotated Code of Maryland.

  (4) “Secretary” means the Secretary of the Environment.

#### Regulation .02 Scope of this Chapter.

*COMAR 26.01.03.02*

This chapter applies to all petitions submitted to the Department to promulgate, amend, or repeal a regulation over which the Secretary has rulemaking authority.

#### Regulation .03 Who May File.

*COMAR 26.01.03.03*

Any interested person may file a petition requesting the promulgation, amendment, or repeal of any regulation over which the Secretary has rulemaking authority.

#### Regulation .04 Form.

*COMAR 26.01.03.04*

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

#### Regulation .05 Submission.

*COMAR 26.01.03.05*

The petition should be addressed to the Regulations Coordinator, Department of the Environment, Herbert R. O'Conor Building, 201 West Preston Street, Baltimore, Maryland 21201. Petitions will be considered submitted upon receipt in the office of the Regulations Coordinator.

#### Regulation .06 Disposition.

*COMAR 26.01.03.06*

Within 60 days after receipt of the petition, the Secretary will either deny the petition (stating the reasons for denial) or initiate rulemaking proceedings.

#### Regulation .07 Reasons for Denial of a Petition.

*COMAR 26.01.03.07*

The Secretary may deny a petition to promulgate, amend, or repeal a regulation, for any reason permitted by law, including, but not limited to:

A. That the Secretary does not have the authority to grant the petition;

B. That the Department does not have adequate information or resources to evaluate the petition;

C. That the Department does not have adequate resources to implement the requested regulation if it is adopted;

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

E. That, in the discretion of the Secretary, the requested regulation change is contrary to or inconsistent with Departmental policy.

#### Regulation .08 Rulemaking Proceedings.

*COMAR 26.01.03.08*

A. Rulemaking proceedings may include any type of action which the Secretary is authorized or required by law to take when promulgating, amending, or repealing regulations, including:

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

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

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

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

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

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

B. Despite the initiation of rulemaking proceedings, the Secretary may decide not to finally promulgate, amend, or repeal the requested regulation.

#### Regulation .09 Notice to the Petitioner and Other Persons.

*COMAR 26.01.03.09*

The Secretary will send written notices to the petitioner and any other person requesting notification in accordance with this section, as follows:

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

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

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

#### Regulation .10 Files of Petitions for Regulations.

*COMAR 26.01.03.10*

A file will be maintained by the Department of all petitions submitted and their disposition. This file will be available for public inspection as provided in State Government Article, Title 10, Subtitle 6, Part III, Annotated Code of Maryland.

### Chapter 04 — Filing Requests for Inspection and Copying of Records

**Authority:** State Government Article, §10-611 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: October 12, 1981 (8:20 Md. R. 1635)

**Administrative History:** Regulations .01, .02B, and .14 amended, .07 and .09 repealed, and new .07 adopted effective July 16, 1984 (11:14 Md. R. 1250)

**Administrative History:** Regulations .02B and .03 amended effective July 29, 1985 (12:15 Md. R. 1516)

**Administrative History:** Regulation .07-1 adopted effective July 29, 1985 (12:15 Md. R. 1516)

**Administrative History:** Regulations .07-1 and .08 recodified to Regulations .08 and .09

**Administrative History:** Chapter recodified from COMAR 10.01.08 to COMAR 26.01.04

**Administrative History:** Chapter revised effective March 18, 1991 (18:5 Md. R. 595)

**Administrative History:** Regulation .02 amended effective October 4, 1999 (26:20 Md. R. 1548)

**Administrative History:** Regulation .07E adopted effective October 4, 1999 (26:20 Md. R. 1548)

**Administrative History:** Regulation .13 amended effective October 4, 1999 (26:20 Md. R. 1548)

#### Regulation .01 General.

*COMAR 26.01.04.01*

These regulations set out the procedures for filing requests with the Department of the Environment for the inspection and copying of records under State Government Article, §§10-611—10-628, Annotated Code of Maryland. It is the policy of the Department to facilitate public access to records, when this access is allowed by law, by minimizing costs and time delays to persons requesting information.

#### Regulation .02 Definitions.

*COMAR 26.01.04.02*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Act” means State Government Article, §§10-611—10-628, Annotated Code of Maryland.

  (2) “Applicant” means any person requesting disclosure of public records.

  (3) “Compelling need” means that failure to obtain the requested information on an expedited basis could reasonably be expected to:

    (a) Present an imminent threat to human life or safety;

    (b) Present an imminent threat of loss of due process rights;

    (c) Cause significant financial loss; or

    (d) Be of immediate public interest.

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

  (5) “Department” means the Department of the Environment.

  (6) “Facility” means a hospital or related institution as defined in Health-General Article, §19-301.

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

  (8) “Public records” means any paper, correspondence, form, book, photograph, photostat, film, microfilm, sound recording, map, drawing or other written document, regardless of physical form or characteristics. “Public records” includes all copies that have been made or received by the Department in connection with the transaction of public business and includes the salaries of all employees of the Department, both in the classified and nonclassified service.

  (9) “Secretary” means the Secretary of the Environment.

  (10) “Working day” means every day except Saturdays, Sundays, and State holidays.

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

#### Regulation .03 Who May Request.

*COMAR 26.01.04.03*

Any person may request to inspect or copy any public record that is in the custody and control of the Department.

#### Regulation .04 Necessity for Written Request.

*COMAR 26.01.04.04*

Normally, the custodian shall make public records available for inspection by an applicant without demanding a written request. However, the custodian may require a written request if the custodian reasonably believes that the Act or any other law may prevent the disclosure of the record to the applicant or when the custodian believes that a written request will materially assist the Department in responding to the request. If the applicant is requesting a copy of any public record, the custodian may require a written request.

#### Regulation .05 Contents of Written Request.

*COMAR 26.01.04.05*

A written request shall contain the applicant's name, address, telephone number, and signature, and shall briefly describe the record sought.

#### Regulation .06 Filing the Request.

*COMAR 26.01.04.06*

A written request for a record in the custody and control of the Department shall be addressed to the custodian of the record. If the custodian of the record is unknown to the applicant, the request may be addressed to the Secretary.

#### Regulation .07 Response to Written Request.

*COMAR 26.01.04.07*

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

B. If the custodian decides to deny the written request, he shall do so within 30 days of the written request and immediately upon deciding to deny the request, notify the applicant of the denial. The notification shall be in writing and shall state the reason for denying the request and include a citation to the statute or regulation that provides the basis for the denial.

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

D. With the consent of the applicant, any time limit imposed by §§A—C of this regulation, may be extended for an additional period not to exceed 30 days.

E. Expedited Processing.

  (1) If the applicant demonstrates a compelling need for the information, a request for expedited processing may be granted.

  (2) A demonstration of a compelling need shall be:

    (a) Made in the request for expedited processing; and

    (b) Certified under oath to be true and correct by the applicant.

  (3) Determinations to grant or deny expedited processing are within the discretion of the Department and shall be made on a case-by-case basis.

#### Regulation .08 Notification of Persons Who May Be Affected by Disclosure.

*COMAR 26.01.04.08*

Unless prohibited by law, the custodian may notify any person who could be adversely affected by disclosure of a record to the applicant that a request for inspection or copying of the record has been made. The custodian may consider the views of that person before deciding whether to disclose the record to the applicant.

#### Regulation .09 Records Temporarily Unavailable.

*COMAR 26.01.04.09*

If the public record requested is in the custody and control of the person to whom written application is made, but is not immediately available for inspection or copying, the custodian shall notify the applicant of this fact within 10 working days of the receipt of the request and shall set a date and time, within a reasonable period of time, when the custodian will make the record available to the applicant for inspection or copying.

#### Regulation .10 Records Destroyed or Lost.

*COMAR 26.01.04.10*

If the requested record has been destroyed or lost, the custodian shall notify the applicant of this fact within 10 working days of the request and shall explain in the response the circumstances of the destruction or loss.

#### Regulation .11 Review of the Denial.

*COMAR 26.01.04.11*

A. If the written request is denied by the custodian for a reason other than that the record is temporarily unavailable, the applicant may request an administrative hearing on the denial within 30 days after receipt of the written notification of denial.

B. If a hearing is requested by the applicant, the hearing shall be a contested case hearing. The hearing shall be governed by State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 26.01.02.

C. If the administrative hearing results in a total or partial denial of the written request, the applicant may then file an appropriate action in the circuit court under State Government Article, §10-623, Annotated Code of Maryland.

D. If the applicant chooses not to request a hearing under §A of this regulation, the applicant may file an action for judicial enforcement under State Government Article, §10-623, Annotated Code of Maryland, without exhausting the administrative remedy.

#### Regulation .12 Disclosure Against Public Interest.

*COMAR 26.01.04.12*

If, in the opinion of the official custodian, disclosure of any public record which is otherwise required to be disclosed under the Act would do substantial injury to the public interest, the official custodian may temporarily deny the request in writing. In these cases, the official custodian shall apply within 10 working days of the denial to the appropriate circuit court for an order permitting him to continue to deny or restrict the disclosure. Notice of the application filed with the circuit court shall be served upon the applicant by the custodian in the same manner provided for service of process by the Maryland Rules of Procedure.

#### Regulation .13 Fees.

*COMAR 26.01.04.13*

A. Department Fee Schedule.

  (1) Copies.

    (a) Except as provided below, the charge for each copy is 30 cents per page when reproduction can be made by photocopying machine within the Department. This charge shall increase to 32 cents July 1, 2001, 34 cents July 1, 2003, and 36 cents July 1, 2005.

    (b) When records are not susceptible to photocopying (for example, punch cards, magnetic tapes, and microfilm), the charge for reproducing the record will be determined on a case-by-case basis at actual cost.

    (c) For preprinted material, the charge will be the cost to the Department plus 10 percent.

    (d) For preprinted material which is disseminated by the Department for the education or general welfare of the people of the State, there will be no charge or a charge equal to the normal charge for this material.

    (e) For other preprinted material, the charge will be 2 cents per page or the established price.

    (f) For oversized copies (for example, blueprints), the charge shall be $2 per page.

    (g) For copies of computer files, the charge will be the actual cost of hardware or software necessary to make the copies, the employee's time, and the cost of the materials to convey the copies such as tapes, diskettes, or paper.

  (2) Certification of Copies. When a person requests that copies of records be certified copies of the originals, a cost of 47 cents per page shall be charged.

  (3) In the discretion of the custodian, a charge need not be made if the total amount of the fee is less than $2.

B. If the fees for copies, printouts, photographs, or certified copies of any record are specifically prescribed by a law other than the Act, the specific fee contained in that law shall determine the amount charged for that record.

C. If the custodian is unable to copy a record within the Department, he shall make arrangements for its prompt reproduction elsewhere. The custodian shall collect from the applicant a fee that will be determined on a case-by-case basis at actual cost. Instead of collecting a fee from the applicant, the custodian may allow the applicant to pay it directly to the public or private facility making the reproduction.

D. Before reproducing a record, the custodian shall estimate the cost of reproduction and obtain agreement of the applicant that the cost shall be paid. The custodian shall demand prepayment of an estimated fee before reproducing the record if the applicant has failed to pay previously assessed fees within 30 days from the date of billing or if the estimated cost of the fee is in excess of $250.

E. Fees for Time Expended.

  (1) Except as provided in §F of this regulation, the official custodian may charge reasonable fees for the official's or employee's time expended searching for requested records or for any time expended preparing records for inspection and copying.

  (2) The fees are assessed in accordance with the following fee schedule:

  (3) Fees for computer search time consist of the employee's time in addition to the direct costs of operating the computer to conduct the search.

F. Except as provided in §I of this regulation, the official custodian may not charge any search or preparation fee for the first 2 hours of official or employee time that is needed to respond to a request for information.

G. If the applicant requests the custodian to waive or reduce any fee charged pursuant to this chapter, the custodian may waive or reduce the fee after the Department determines that the waiver or reduction is in the public interest.

H. If the applicant requests that copies be mailed or delivered to the applicant, the custodian may charge the applicant for the cost of postage or delivery to the applicant.

I. Multiple Requests.

  (1) For purposes of determining the appropriate fees, multiple requests may be aggregated if:

    (a) The applicants are the same individuals or are employed, retained, or are otherwise related to a common applicant;

    (b) The requests are for the same or related subject matter, involve the same property or entity, or seek the same information from different entities;

    (c) The individual requests when aggregated would exceed 2 hours search and preparation time, and individually would require less than 2 hours search and preparation time; and

    (d) The requests have been received within a reasonable period of time as determined by the custodian to be considered a single request.

  (2) Multiple requests may be aggregated if the Department determines that processing multiple requests promotes administrative efficiency and represents the most efficient use of State resources.

#### Regulation .14 Time of Inspection.

*COMAR 26.01.04.14*

An applicant may inspect any public record during the normal working hours of the Department.

#### Regulation .15 Place of Inspection.

*COMAR 26.01.04.15*

Inspection will take place where the document is located unless the custodian determines that another location is more suitable.

### Chapter 05 — Correction or Amendment of Personal Records

**Authority:** State Government Article, §10-613(b); Environment Article, §1-404; Annotated Code of Maryland

**Administrative History:** Effective date: April 8, 1985 (12:7 Md. R. 702)

**Administrative History:** Chapter recodified from COMAR 10.01.11 to COMAR 26.01.05

#### Regulation .01 General.

*COMAR 26.01.05.01*

These regulations set out procedures for persons in interest to request the correction or amendment of personal records in the Department of the Environment under State Government Article, §10-625, Annotated Code of Maryland.

#### Regulation .02 Who May Request.

*COMAR 26.01.05.02*

A person in interest as defined in State Government Article, §10-611(e) may request the Department to correct or amend any personal records pursuant to State Government Article, §10-625.

#### Regulation .03 Contents of Request.

*COMAR 26.01.05.03*

The person in interest shall request the correction or amendment in writing. Each request shall:

A. Identify the personal records the person is seeking to correct or amend;

B. State the precise correction or amendment requested;

C. State the reason the correction or amendment is sought;

D. Include the statement that the personal records are, to the person's belief, currently inaccurate or incomplete.

#### Regulation .04 Filing the Request.

*COMAR 26.01.05.04*

A request for correction or amendment of the records shall be filed with the Department by addressing it to the custodian of the record. If the custodian is unknown to the person in interest, the request may be addressed to the Secretary.

#### Regulation .05 Return of Request.

*COMAR 26.01.05.05*

A request for correction or amendment will be considered filed with the Department when received, only to the extent that it reasonably complies with Regulation .03 of this chapter. If a request does not reasonably comply with Regulation .03, it shall be returned to the person with an explanation of the reason for the return and a statement that, upon completion, it may be refiled with the Department.

#### Regulation .06 Response to Request.

*COMAR 26.01.05.06*

Within 30 days after the completed request for correction or amendment that complies with Regulations .03 and .04 of this chapter is received, the custodian of the record shall:

A. Make the requested correction or amendment and inform the person of the action;

B. Inform the person in writing of the:

  (1) Department's refusal to make the requested correction or amendment, and

  (2) Reason for the refusal; or

C. Inform the person in writing that the request will not be acted on because:

  (1) The person is not a person in interest;

  (2) The records sought to be corrected or amended are not personal records;

  (3) The person requesting the correction or amendment is not entitled to inspect the records under State Government Article, §10-615—10-619; or

  (4) Of any other reason that is authorized by law.

#### Regulation .07 Refusal of Request.

*COMAR 26.01.05.07*

If the Department's final determination under Regulation .06 of this chapter is to refuse the requested correction or amendment, as authorized by Regulation .06B of this chapter, the person in interest may file with the Department a concise statement of the reasons for:

A. The requested correction or amendment; and

B. Disagreement with the Department's refusal to make the correction or amendment.

#### Regulation .08 Requirements For Statement of Disagreement.

*COMAR 26.01.05.08*

The statement specified in Regulation .07 shall be filed on pages not exceeding 8-1/2 × 11 inches in size. Only one side of the page shall contain the statement. Not more than 5 pages will be accepted by the Department in connection with a single request for correction and amendment.

#### Regulation .09 Information Provided to Third Parties.

*COMAR 26.01.05.09*

When the Department discloses to a third party information from personal records about which a statement in compliance with Regulations .07 and .08 of this chapter has been filed, the Department shall furnish a copy of the statement to the third party.

#### Regulation .10 Administrative Review.

*COMAR 26.01.05.10*

A. A person may request an administrative review within the Department, by filing a request for review with the Secretary, if the person has been denied:

  (1) An amendment or correction of a record;

  (2) The right to file a statement; or

  (3) The right to have a statement to a third party forwarded pursuant to Regulation .09 of this chapter.

B. A request for review shall be filed within 30 days of the date the person is advised of the Department's action.

C. The review proceedings shall be conducted in accordance with State Government Article, §10-201 et seq., Annotated Code of Maryland, and the administrative hearing regulations of the Department.

### Chapter 06 — Standards for Audits of Grants and Contracts with Providers and Local Agencies

**Authority:** State Finance and Procurement Article, §7-404, Annotated Code of Maryland

**Administrative History:** Effective date: August 12, 1985 (12:16 Md. R. 1605)

**Administrative History:** Chapter recodified from COMAR 10.04.03 to COMAR 26.01.06

#### Regulation .01 Purpose.

*COMAR 26.01.06.01*

The purpose of this chapter is to prescribe standards, policies, and procedures for the auditing of grants and contracts of the Department of the Environment with vendors, providers of service, and local health departments.

#### Regulation .02 Scope.

*COMAR 26.01.06.02*

A. This chapter shall apply to all contracts and grants made by the Department of the Environment with private vendors, grantees, and local health departments for which an audit is provided as described in State Finance and Procurement Article, §7-404, Annotated Code of Maryland.

B. The audit shall determine whether funds were spent in accordance with the contract or grant agreement.

C. The auditor shall review expenditures and revenues to determine if they are consistent with the approved budget and supported by documentation in accordance with the contract or grant agreement and generally accepted accounting principles.

D. The audit shall establish amounts due to or from the State by comparison of budgeted, reported, and audited expenditures net of revenues and funded amounts.

E. The audit findings shall be the basis for making a final settlement of the grant or contract.

#### Regulation .03 Definitions.

*COMAR 26.01.06.03*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Contract” means a formal agreement between the Department of the Environment and a provider of services to conduct a program or perform specified services for a consideration.

  (2) “Expenditures” means disbursement of funds to pay vendors and employees for goods or services provided.

  (3) “Grant” means an award of financial assistance to an eligible recipient under programs that provide for this assistance based on review and approval of an application setting forth a proposed activity or program.

  (4) “Grantee” means that institution, public or private agency, corporation, organization, or other legally accountable entity that receives a grant and assumes legal and financial responsibility and accountability both for the awarded funds and for the performance of the grant supported activity.

  (5) “Revenues” mean monies generated by the program, such as client fees, payments by third parties, contributions and interest earned on deposited grant funds.

  (6) “Sub-grantee” means one of two or more entities whose activities, individually and collectively, are intended to fulfill the purpose of the grant program pursuant to an agreement between the sub-grantee and the grantee.

#### Regulation .04 Agency Responsibility.

*COMAR 26.01.06.04*

A. The Secretary of the Environment shall provide for a periodic examination of the accounts and records of grantees and local health departments receiving funds under contracts and grants with the Department. In addition, periodic audits shall be conducted of the accounts and records of vendors providing purchase of care services for children, juveniles, and adults in non-governmental facilities. The purpose of the audit is to determine if the expenses incurred for which reimbursement was received were in accordance with allowable cost guidelines of the grant award and contractual agreement.

B. Finance and Administration of the Department of the Environment shall be responsible for auditing the accounts and records of all grantees, local health departments, and vendors providing purchase of care services under grants and contracts with the Department, except for those grants and contracts with local governments for which audits have been conducted in accordance with the Single Audit Act of 1984. If these audits are not conducted, or are conducted but do not satisfy the information requirements of the Department, Finance and Administration shall be responsible for such further auditing as it deems necessary under the circumstances.

C. The audits shall be conducted in accordance with the terms of the grant or contract, or both, and in accordance with allowable cost guidelines of the Department of the Environment and its various administrations.

D. Finance and Administration of the Department of the Environment may audit a sub-grantee, notwithstanding the responsibility of the primary grantee when it is in the interest of the State to do so. The Department, when it elects to audit a sub-grantee, shall inform the primary grantee, in writing, that the primary grantee is absolved of the responsibility stated in Regulation .05C, of this chapter.

E. Finance and Administration shall conduct an exit conference upon the conclusion of the audit. Before the exit conference the grantee, vendor, or local health department shall be given a draft audit report containing all findings, exceptions, and recommendations of the auditors. In addition, the draft report shall provide detailed information pertaining to amounts due to or from the State resulting from the audit.

F. Finance and Administration, after consideration and evaluation of additional information and evidence presented subsequent to the promulgation of the draft audit report, shall issue a final audit report.

G. The final audit report shall be distributed to the:

  (1) Grantee, provider, vendor, or local health department;

  (2) Finance and Administration of the Department of the Environment, as applicable;

  (3) Director of the appropriate program administration of the Department of the Environment.

H. Finance and Administration in the final audit report shall:

  (1) Address and explain each exception identified by the auditor;

  (2) Make recommendations for correction of each exception cited in the report;

  (3) Specify amounts due and to whom;

  (4) Comment on any other issue warranting attention.

I. The audits shall be performed at the intervals and in the manner approved and determined by the Secretary of the Environment or Director of the appropriate program administration, after consultation with the Chief of Finance and Administration.

#### Regulation .05 Grantee Responsibility.

*COMAR 26.01.06.05*

A. The grantee, provider, and local health departments shall provide full disclosure of all accounting, financial, and other records as needed, to Finance and Administration during regular business hours of the audited organization.

B. The grantee, provider, and local health department shall retain all accounts and records of the grant or contract for a period of 5 years following the close of each fiscal year for audit by the Department.

C. Each primary grantee shall be responsible for auditing sub-grantees in accordance with the chapter.

D. Each grantee shall maintain detailed accounting records as to receipts and expenditures of grant funds pertaining to the direct administration of the program. Each sub-grantee is accountable to the primary grantee, who is responsible directly to Finance and Administration of the Department of the Environment.

E. Revenues collected as a result of sale of goods and services rendered by persons or facilities receiving grant funds shall be credited to the grant program, and be applied as a reduction of the gross expenditures of the program. These revenues shall include fee collections, third-party payments, and proceeds from sales of goods obtained or manufactured with labor and materials paid for with grant funds. Revenues shall also include interest earned on deposited grant funds and contributions, with the exception of those contributions which are undesignated.

F. The grantee, provider, or local health department shall have the right to present additional information and evidence to support its position relative to the audit findings. This information and evidence may be presented at the exit conference or at any time before the issuance of the final audit report.

### Chapter 07 — Hearing Procedures for Waterway Obstruction, Waterway Construction, and Water Appropriation and Use Permits

**Authority:** Environment Article, §§1-404, 5-203, and 5-506; State Government Article, §10-206; Annotated Code of Maryland

**Administrative History:** Effective date: August 17, 1977 (4:17 Md. R. 1296)

**Administrative History:** Regulations .01—.17, Procedure for Adjudicatory Hearings, repealed effective September 17, 1990 (17:18 Md. R. 2200)

**Administrative History:** Regulations .01—.12, Hearing Procedures for Waterway Obstruction, Waterway Construction, and Water Appropriation and Use Permits, adopted effective September 17, 1990 (17:18 Md. R. 2200)

**Administrative History:** Chapter recodified from COMAR 08.05.06 to COMAR 26.01.07, June 1996

#### Regulation .01 Scope.

*COMAR 26.01.07.01*

This chapter applies to all public informational and contested case hearings required under Environment Article, §§5-203 and 5-506, Annotated Code of Maryland, pertaining to the conservation, protection, and use of water resources in the State. These procedures are intended to supplement the procedures required by law, and do not apply to investigations or informal meetings. In the event of a conflict between this chapter and COMAR 08.01.04, this chapter applies.

#### Regulation .02 Definitions.

*COMAR 26.01.07.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Administration” means the Water Management Administration of the Department of the Environment.

  (2) “Administrative Procedure Act” means State Government Article, §10-201 et seq., Annotated Code of Maryland.

  (3) “Appropriate local official” means the:

    (a) County executive or president of the county legislative body; or

    (b) Mayor or chief administrative official for any city or town in which the proposed permitted activity takes place.

  (4) “Completed application” means an application for a Subtitle 5 permit which the Administration has determined is complete under the applicable statutes and regulation.

  (5) “Contested case hearing” means an adjudicatory hearing as defined by the Administrative Procedure Act.

  (6) “Contiguous property” means, for:

    (a) Water appropriation or use permit applications, those properties having a common boundary with the applicant's property; or

    (b) Waterway construction permit applications, those properties which lie within the 100-year floodplain and have a common boundary with the applicant's property.

  (7) “Department” means the Department of the Environment.

  (8) “Director” means the Director of the Water Management Administration.

  (9) “Filed” means received at the office of the Director of the Water Management Administration, 2500 Broening Highway, Baltimore, MD 21224, including received by mail, facsimile machine, or personal delivery.

  (10) “Hearing examiner” means hearing examiner, hearing officer, administrative law judge of the Office of Administrative Hearings, or other person designated to conduct a contested case hearing.

  (11) “Interested persons list” means the mailing list of persons interested in a Subtitle 5 permit application that is compiled by the Department and includes:

    (a) Contiguous property owners;

    (b) Appropriate local officials; and

    (c) Individuals who comment on, request hearings, or make inquiries about an application during any phase of the Department's application review process.

  (12) “Office of Administrative Hearings” means the unit of State government authorized to conduct contested case hearings.

  (13) “Presiding official” means a representative of the Administration designated by the Director to conduct public informational hearings under this chapter.

  (14) “Public informational hearing” means the informational hearing conducted under Environment Article, §5-506, Annotated Code of Maryland, at which the permit applicant, the Administration, and interested persons may offer facts, exhibits, questions, and comments concerning an application for a permit.

  (15) “Requester” means the person requesting a contested case hearing who has a specific legal right, duty, interest, or privilege different from the general public which is, or may be, adversely affected by the determination to grant or deny a Subtitle 5 permit.

  (16) “Subtitle 5 permit” means a permit issued under Environment Article, §§5-502 and 5-503, Annotated Code of Maryland, including those pertaining to water appropriation and use, waterway construction, and waterway obstruction.

#### Regulation .03 Notice of Completed Application and Opportunity for Public Informational Hearing.

*COMAR 26.01.07.03*

A. An applicant for a new or modified Subtitle 5 permit shall submit to the Administration a list of the names and addresses of contiguous property owners and appropriate local officials who have been served with a notice of application by the applicant. The Administration may consider evidence of an easement or right-of-way secured from a contiguous property owner as satisfaction of the notice requirement to a contiguous property owner under this section.

B. Within 30 days of the Administration's determination that a Subtitle 5 permit application is complete, the Administration shall issue a notice of completed application and opportunity for a public informational hearing on the application in accordance with all of the following. The notice shall be:

  (1) Mailed to each person on the interested persons list, and the Administration may add additional individuals and public officials to the interested persons list as appropriate;

  (2) Published for at least 1 business day in a newspaper of general circulation in the county, with the applicant bearing the cost of the newspaper notice;

  (3) Published in the Maryland Register in accordance with State Government Article, §7-214, Annotated Code of Maryland.

C. Contents. The notice required under §B of this regulation shall include:

  (1) The name and address of the applicant;

  (2) A description of the location and the nature of the activity for which the permit has been sought;

  (3) A reference to the applicable statutes or regulations governing the application process;

  (4) A statement that any further notices concerning the application will be provided only by mail to those persons on the interested persons list;

  (5) A description of how persons may:

    (a) Submit written comments or information about the application,

    (b) Request a public informational hearing, or

    (c) Request inclusion on the interested persons mailing list;

  (6) A statement of the deadline by which written comments, information, or hearing requests shall be received by the Administration; and

  (7) The name, address, and telephone number of the office within the Administration from which information about the application may be obtained.

D. Time. A request for a public informational hearing shall be filed within 14 calendar days after publication of the notice required under §B of this regulation.

E. Waiver of Public Informational Hearing. The Department may waive the holding of a public informational hearing if the permit application is of the type listed in Environment Article, §5-506(b), (d), or (e), Annotated Code of Maryland. In the case of a waiver, the only notice required shall be that provided by the applicant as described in §A of this regulation and in Environment Article, §5-506, Annotated Code of Maryland.

#### Regulation .04 Requests for Public Informational Hearing.

*COMAR 26.01.07.04*

A. Any interested person may file a written request for a public informational hearing. The request shall be filed within 14 calendar days of publication of the notice required under Regulation .03B of this chapter.

B. A request for hearing shall be considered filed when it is received at the office of the Director, Water Management Administration, 2500 Broening Highway, Baltimore, MD 21224.

#### Regulation .05 Notice of Public Informational Hearing.

*COMAR 26.01.07.05*

A. Within 10 calendar days after receipt of a request for a public informational hearing, the Administration shall set the date, time, and place for the hearing and shall mail a hearing notice to those on the interested persons list. Notice need not be published.

B. Contents. The notice of public informational hearing shall include:

  (1) A description of the project or activity for which the permit is sought;

  (2) The date, time, and place of the hearing;

  (3) The statutory authority of the Administration to conduct the hearing;

  (4) A citation for the procedures under which the hearing shall be conducted; and

  (5) A statement that the applicant and interested persons shall be given an opportunity at the hearing to offer information for or against the application for a permit.

#### Regulation .06 Conduct of the Public Informational Hearing.

*COMAR 26.01.07.06*

A. The Director may delegate all or part of the authority to hold a public informational hearing to a presiding official or to a hearing examiner.

B. Hearing Procedures.

  (1) The public informational hearing shall be conducted under the applicable statutes.

  (2) The Administrative Procedure Act and COMAR 08.01.04 do not apply to public informational hearings.

  (3) The applicant, Administration representatives, and interested persons may offer information or comments for or against granting the application.

  (4) Questions may be asked of, and directed to, the presiding official, but cross-examination may not be conducted.

C. Order of Presentation. The presiding official may conduct the public informational hearing in the following order:

  (1) Introduction by the Administration;

  (2) Presentation of proposed project by the applicant;

  (3) Comments and questions by public officials;

  (4) Comments and questions by other persons; and

  (5) Closing of the public informational hearing record.

D. Powers and Duties of the Presiding Official. The presiding official has the authority to:

  (1) Conduct a full and fair public informational hearing;

  (2) Avoid unnecessary delay and maintain order; and

  (3) Regulate the course of the public hearing and the conduct of the participants, including the power to:

    (a) Accept written comments, documents, and other exhibits;

    (b) Extend the closing of the record;

    (c) Continue the hearing;

    (d) Record the hearing;

    (e) Request that participants and observers sign an attendance register and provide a mailing address; and

    (f) Change the location or date of a hearing to accommodate special circumstances or needs of the participants.

#### Regulation .07 Record of Public Informational Hearing.

*COMAR 26.01.07.07*

The presiding official shall maintain an official record of the public informational hearing, consisting of:

A. The permit application and related documents;

B. Pertinent studies, reports, evaluations, or other documents of the Administration;

C. Copies of notices required under Regulations .03B and .05A of this chapter, including certifications of publication;

D. Requests for the public informational hearing;

E. The attendance register;

F. Documents, written statements, and other exhibits submitted at the public informational hearing; and

G. The recording of the public informational hearing.

#### Regulation .08 Final Permit Decision — Notice.

*COMAR 26.01.07.08*

A. Following the application review and comment period for a Subtitle 5 permit, and after any public informational hearing on the permit application, the Administration shall issue, modify, or deny the permit application.

B. Notice. Written notice of the final permit decision shall be mailed to the applicant and to all individuals on the interested persons list. Notice need not be published.

C. Contents. The notice of permit decision shall include:

  (1) The final decision of the Administration on the Subtitle 5 permit application, with a brief description of the factual basis for the final decision;

  (2) A reference to the statutes or regulation under which the action is being taken;

  (3) The right of a person who has a specific legal right, duty, privilege, or interest different from the general public, which is or may be adversely affected by the final decision, to request a contested case hearing;

  (4) The time period within which a contested case hearing shall be requested, the action a person is required to take in order to timely request a hearing, and the address where a person may send the request; and

  (5) The procedure for filing a motion for temporary stay of the issuance of the permit pending a final decision in the contested case.

#### Regulation .09 Request for Contested Case Hearing.

*COMAR 26.01.07.09*

A. A request for a contested case hearing shall be:

  (1) Received within 10 business days of the mailing date of the notice of final permit decision;

  (2) Filed with the Administration or the program which made the determination.

B. Contents. The request for a contested case hearing shall contain the following:

  (1) The full name and address of the person requesting the hearing and a telephone number at which the requester may be reached during normal business hours;

  (2) The name, address, and telephone number of any attorney representing the requester, or a statement that the requester intends to proceed without counsel;

  (3) A detailed description of the grounds for the request, including the specific legal right, duty, privilege, or interest of the requester which may be adversely affected by the permit decision, and which is different from those interests held by the general public;

  (4) A statement of the specific relief desired as a result of the adjudicatory hearing; and

  (5) A general outline of the evidence to be presented in support of the desired relief, including the names and addresses of all witnesses to be called by the requester.

C. If a temporary stay is also requested under Regulation .11 of this chapter, a motion for temporary stay shall accompany the request for contested case hearing.

#### Regulation .10 Determinations on Standing and Adjudicability.

*COMAR 26.01.07.10*

A. The appropriate program director of the Administration shall review a request for a contested case hearing to determine whether the:

  (1) Requester has a specific legal right, duty, privilege, or interest which is or may be adversely affected by the permit determination, and which is different from that held by the general public;

  (2) Requester has raised an adjudicable issue or issues which are:

    (a) Reasonably related to the subject of the permit, and

    (b) Within the scope of Subtitle 5;

  (3) Request was timely made.

B. The program director shall determine whether to grant or deny the request for a contested case hearing. If the criteria listed in §A of this regulation are:

  (1) Met, the program director or a designee may grant the request for a contested case hearing;

  (2) Not met, and the determination is to deny the request for a contested case hearing, the determination shall be in writing and mailed to the requester by certified mail.

C. Contents of Notification. The notification of the program director's determination to deny a request for a contested case hearing shall contain the following:

  (1) The specific reasons for the denial;

  (2) A statement of the right to request a review of the denial under §D of this regulation; and

  (3) A statement that if review under this regulation is not sought, the denial is the Department's final decision as to the contested case hearing request.

D. Review. A requester who is adversely affected by the determination to deny a request for a contested case hearing may, within 10 calendar days of receipt of the denial, file with the Director written exceptions and a request to present oral argument. After considering the written exceptions, the Director may hear argument and shall issue a written final decision.

E. Appeal. If the Director's written final decision is adverse to a party other than the Administration, the party may obtain judicial review of the decision in accordance with the Administrative Procedure Act and the Maryland Rules of Procedure.

#### Regulation .11 Motion for Temporary Stay.

*COMAR 26.01.07.11*

A. A request for contested case hearing may be accompanied by a motion for temporary stay of the issuance of the Subtitle 5 permit pending a final decision in the contested case.

B. Contents. A motion filed pursuant to §A of this regulation shall contain a:

  (1) Detailed description of how the criteria for granting a temporary stay, as set forth in Environment Article, §5-506, Annotated Code of Maryland, and COMAR 08.01.04.25 have been met; and

  (2) Statement of points and authorities in support of the motion.

C. The requester has the burden of producing all evidence in support of the motion.

D. Procedure.

  (1) Within 10 calendar days of the Administration's decision to grant a request for a contested case hearing, the Director or designee shall afford all parties an opportunity to present oral argument in support of, or in opposition to, a motion filed in accordance with §A of this regulation. This may be conducted by telephoned conference call.

  (2) Within 5 calendar days of oral argument, the Director or designee shall issue a final written decision granting or denying the motion for temporary stay.

#### Regulation .12 Contested Case Hearings.

*COMAR 26.01.07.12*

A. Conduct. Contested case hearings under this chapter shall be conducted according to the procedures in COMAR 08.01.04.

B. Procedures. In the event of a conflict between this chapter and COMAR 26.01.02, this chapter applies.

## Subtitle 02 — Occupational, Industrial, and Residential Hazards

### Chapter 01 — Blood Lead Reporting

**Authority:** Environment Article, §6-303, Annotated Code of Maryland

**Administrative History:** Effective date: October 6, 1986 (13:20 Md. R. 2211)

**Administrative History:** Chapter recodified from COMAR 10.10.07 to COMAR 26.02.01

**Administrative History:** Regulation .01B amended effective May 27, 1991 (18:10 Md. R. 1118)

**Administrative History:** Regulation .02 amended effective May 27, 1991 (18:10 Md. R. 1118)

**Administrative History:** Regulations .01 and .02 repealed and new Regulations .01—.06 adopted as an emergency provision effective December 20, 2001 (29:1 Md. R. 19); adopted permanently effective April 15, 2002 (29:7 Md. R. 623)

**Administrative History:** Regulation .05 amended effective August 25, 2008 (35:17 Md. R. 1490)

**Administrative History:** Regulations .01—.05 repealed and new Regulations .01—.05 adopted effective July 1, 2020 (47:13 Md. R. 643)

#### Regulation .01 Definitions.

*COMAR 26.02.01.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Blood lead analysis” has the meaning stated in COMAR 10.11.04.02B.

  (2) “Blood lead level test” means to:

    (a) Draw a blood specimen, by either venous or capillary methodology, and:

      (i) Send the blood specimen to a medical laboratory for blood lead analysis; or

      (ii) Conduct a blood lead analysis at a health care provider's office subject to licensing, certification, and approval by the Laboratories Administration of the Maryland Department of Health; or

    (b) Order a blood specimen to be drawn by a third-party health care provider, by either venous or capillary methodology, and send it to a medical laboratory for blood lead analysis.

  (3) “Department” means the Maryland Department of the Environment.

  (4) “Health care provider” has the meaning stated in COMAR 10.11.04.02B.

  (5) “Laboratory” means a medical laboratory as defined in COMAR 10.10.01.03B.

  (6) “Local health department” means the health department of the Maryland subdivision where the patient resides.

  (7) “Parent or guardian” means an individual acting in a primary custodial capacity.

  (8) “Reference level” means:

    (a) 5 micrograms per deciliter; or

    (b) Beginning 1 year after the date that the Centers for Disease Control and Prevention revises the blood lead reference level until 1 year after a subsequent revision, the revised blood lead reference level as determined by the Centers for Disease Control and Prevention.

#### Regulation .02 Information to be Reported.

*COMAR 26.02.01.02*

A. Who Shall Report. The laboratory, health care provider’s office, or other facility that draws a blood specimen from a child 18 years old or younger for a blood lead level test shall obtain the information required by §D(1)—(5) and (8) of this regulation at the time of drawing the blood specimen.

B. Time and Method for Reporting by a Facility that Initially Draws a Blood Specimen.

  (1) A laboratory that performs blood lead analysis shall provide a referral form of paper or electronic requisition that specifies the required information for use by a laboratory, a health care provider’s office, or another facility that draws a blood specimen.

  (2) The facility that draws a blood specimen shall:

    (a) Record the information required under §D(1)—(5) and (8) of this regulation on the laboratory's referral form or similar form; and

    (b) Forward the required information concurrently with the blood specimen to the laboratory that performs blood lead analysis.

C. Time and Method for Reporting by a Laboratory. A laboratory required to report a blood lead level test under this regulation shall report the blood lead level test in the format approved by the Department and include all of the information required under §D of this regulation.

D. The blood lead level test to be reported shall include the following information:

  (1) The child's demographic information, including:

    (a) First name, last name, and middle initial;

    (b) Date of birth, country of birth, sex, race, and ethnicity;

    (c) Medical assistance number if the child is enrolled in Medicaid or the Maryland Children’s Health Program;

    (d) Complete home address at the time the blood specimen was drawn, including house or apartment number, street, city or town, county or Baltimore City, zip code, and state;

    (e) Telephone number; and

    (f) Parent or guardian's name;

  (2) If the child being tested is female, whether the child was pregnant at the time of the blood lead level test;

  (3) Type of blood specimen, venous or capillary, and the blood draw date;

  (4) The health care provider’s office name, address, telephone number, and national provider identifier (NPI);

  (5) If the draw site is different from the health care provider’s office, the laboratory’s or other facility’s name, address, telephone number, and NPI;

  (6) All of the following information about the laboratory performing the blood lead analysis:

    (a) Laboratory name, address, telephone number, and clinical laboratory improvement amendment number (CLIA);

    (b) Laboratory method used to analyze the blood specimen;

    (c) The limit of detection for the method used to analyze the blood specimen; and

    (d) If reporting a “no result” test result, the limit of detection for the laboratory;

  (7) Blood lead level in micrograms per deciliter expressed with a numeric results comparator of:

    (a) Equal, if the blood lead level is an exact measurement; or

    (b) Less than or greater than, if a blood lead level reading is below or above a certain level that a device used to analyze a blood specimen can accurately record; and

  (8) Additional information as may be required by the Department.

#### Regulation .03 Missing Information.

*COMAR 26.02.01.03*

A. A laboratory that receives a blood specimen from a laboratory, a health care provider’s office, or another facility without all of the required information listed in Regulation .02D(1)—(5) and (8) of this chapter included on the referral form required under Regulation .02B of this chapter shall:

  (1) Within 3 business days of receipt of the blood specimen, send to the facility that provided the blood specimen a written or electronic message citing the regulations and requirements of this chapter, requesting that all the required missing information be forwarded to the laboratory; and

  (2) Upon receipt of the required information, collate and transmit the information to the Department within the time frames set forth in Regulation .04C of this chapter.

B. When the laboratory reports a blood lead level test result to the Department with one or more of the requirements listed in Regulation .02D(1)—(5) and (8) of this chapter omitted, the laboratory shall concurrently provide the name and address of the facility that:

  (1) Drew the blood specimen; and

  (2) Failed upon request to forward the required information to the laboratory.

C. The facility that drew the blood specimen shall respond to a written or electronic message from a laboratory that did not receive all of the required information listed in Regulation .02D(1)—(5) and (8) of this chapter by providing the information to the laboratory within:

  (1) 1 business day of receiving the message regarding a blood lead level test result of greater than or equal to the reference level; and

  (2) 5 business days of receiving the message for a blood lead level test result of less than the reference level.

D. A laboratory not permitted in accordance with COMAR Title 10 to perform a blood lead analysis that accepts a blood specimen from a health care provider for referral to another laboratory for blood lead analysis shall ensure that:

  (1) The requisition record includes all of the information that is required under Regulation .02D(1)—(5) and (8) of this chapter; and

  (2) The required information is transmitted to the laboratory performing the blood lead analysis along with the blood specimen.

E. Reporting a Blood Lead Level Test Result with Missing Information.

  (1) A laboratory shall collate information required under Regulation .02D of this chapter that is collected to complete a previously incomplete requisition record for a blood lead level test before submitting the information to the Department in accordance with §A of this regulation.

  (2) A laboratory shall report to the Department the missing information collated pursuant to §E(1) of this regulation:

    (a) Concurrently with the blood lead level test result, if the reporting time frame for a blood lead level test result established in Regulation .04C of this chapter has not concluded; or

    (b) In a manner indicating that there has been a change in the blood lead level test record, if reporting the missing information after the initial blood lead level test result was reported to the Department.

#### Regulation .04 A Laboratory that Performs the Tests.

*COMAR 26.02.01.04*

A. Reporting to the Department. The director of a laboratory shall report to the Department the result of a blood lead level test performed on a child 18 years old or younger, who resides in Maryland.

B. Additional Reporting Requirements.

  (1) In addition to the requirements of §A of this regulation, the director of a laboratory shall report to the Commissioner of the Baltimore City Health Department the result of a blood lead level test performed on a child 18 years old or younger, who resides in Baltimore City.

  (2) In addition to the requirements under §§A and B(1) of this regulation, a laboratory shall report the result of a blood lead level test to:

    (a) The health care provider that ordered the blood lead level test; and

    (b) Another entity as required by State, federal, or local statutes or regulations, or in accordance with accepted standards of practice.

C. A laboratory shall report the result of a blood lead level test to the Department by facsimile or other manner required by the Department within the following time frames:

  (1) By the close of business of the next business day following a final blood lead level test result of greater than or equal to the reference level; and

  (2) Within 2 weeks of a final blood lead level test result of less than the reference level.

D. A laboratory that uses an electronic system for tracking blood lead level test results shall report a result to the Department electronically in a manner consistent with the technical specifications established by the Department.

#### Regulation .05 Reporting by the Department.

*COMAR 26.02.01.05*

A. Upon receipt of a blood lead level test result, the Department shall report the information required under Regulation .02D of this chapter and the result of a blood lead level test indicating a blood lead level greater than or equal to the reference level to the:

  (1) Local health department in the jurisdiction in which the child resides; and

  (2) Maryland Department of Health.

B. Time and Manner of Reporting by the Department.

  (1) The Department shall report a blood lead level test result of:

    (a) Greater than or equal to 10 micrograms per deciliter by the close of business of the next business day following the receipt of the final test result; and

    (b) 5 micrograms per deciliter through 9 micrograms per deciliter within 2 weeks of the receipt of the final test result.

  (2) The Department may report the information required under Regulation .02D of this chapter and the result of a blood lead level test indicating a blood lead level of less than 5 micrograms per deciliter to the local health department or the Maryland Department of Health, or both.

#### Regulation .06 Measures for Noncompliance.

*COMAR 26.02.01.06*

A person who violates Environment Article, §6-303, Annotated Code of Maryland, or this chapter is subject to an administrative penalty of up to $250 per violation, not exceeding $10,000.

### Chapter 02 — Prevention of Occupational Diseases

*Repealed*

**Administrative History:** Effective date: March 1, 1959

**Administrative History:** Chapter recodified from COMAR 10.14.01 to COMAR 26.02.02

**Administrative History:** Regulations .01 and .02 repealed effective March 19, 1990 (17:5 Md. R. 639)

### Chapter 03 — Control of Noise Pollution

**Authority:** Environment Article, §3-401, Annotated Code of Maryland

**Administrative History:** Effective date: August 6, 1975 (2:17 Md. R. 1189)

**Administrative History:** Regulation .01A-1, W-1 adopted effective February 15, 1982 (9:3 Md. R. 222); repealed effective March 28, 1983 (10:6 Md. R. 558)

**Administrative History:** Regulations .01 and .03A, B, D amended effective September 14, 1977 (4:19 Md. R. 1468)

**Administrative History:** Regulation .01C amended effective March 28, 1983 (10:6 Md. R. 558)

**Administrative History:** Regulations .01C, Q; .02B; .03B, D amended effective February 15, 1982 (9:3 Md. R. 222)

**Administrative History:** Regulation .03A amended as an emergency provision effective November 13, 1979 (6:24 Md. R. 1917); emergency status expired March 29, 1980

**Administrative History:** Regulation .03A and B amended effective March 28, 1983 (10:6 Md. R. 558)

**Administrative History:** Regulation .04 repealed effective September 14, 1977 (4:19 Md. R. 1468)

**Administrative History:** Chapter recodified from COMAR 10.20.01 to COMAR 26.02.03

**Administrative History:** Regulation .01 amended effective June 21, 2004 (31:12 Md. R. 913)

**Administrative History:** Regulation .03 amended effective June 21, 2004 (31:12 Md. R. 913)

**Administrative History:** Chapter revised effective February 4, 2013 (40:2 Md. R 73)

#### Regulation .01 Definitions.

*COMAR 26.02.03.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “ANSI” means American National Standards Institute or its successor bodies.

  (2) “Construction” means any site preparation, assembly, erection, repair, alteration, or similar activity.

  (3) “Curtilage” means the enclosed land surrounding a house or dwelling and includes all areas maintained in lawn or horticultural plantings and may be bounded by a fence or wall, but would not typically include areas more distant than 300 feet from the dwelling unless those areas were horticulturally maintained and routinely used as areas of personal refuge, or supported accessory structures that were routinely utilized.

  (4) “Daytime hours” means 7 a.m. to 10 p.m., local time.

  (5) “dBA” means abbreviation for the sound level in decibels determined by the A-weighting network of a sound level meter or by calculation from octave band or one-third octave band data.

  (6) “Decibel (dB)” means a unit of measure equal to ten times the logarithm to the base ten of the ratio of the square of the sound pressure to the square of a standard reference pressure. For the purpose of this subtitle, 20 micropascals shall be the standard reference pressure.

  (7) “Demolition” means any dismantling, destruction, or removal activities.

  (8) “Department” means the Department of the Environment.

  (9) “Emergency” means any occurrence or set of circumstances involving actual or imminent physical trauma or property damage which demands immediate action.

  (10) “Environmental noise” means the noise that exists at any location from all sources.

  (11) “Environmental noise standards” means the goals for environmental noise, the attainment and maintenance of which, in defined areas and under specific conditions, are necessary to protect the public health and general welfare.

  (12) “Equivalent sound level” (also “average sound level”) means the level of a constant sound which, in a given situation and time period, would convey the same sound energy as does the actual time-varying sound during the same period. Equivalent sound level is the level of the time weighted, mean-square, A-weighted sound pressure. A numerical subscript may be used to indicate the time period under consideration; i.e., Leq24 or Leq8 for 24-hour and 8-hour periods, respectively. No subscript indicates a 24-hour period. The mathematical expression for the Leq is as follows:

  (13) “IEC” means International Electrotechnical Commission.

  (14) “Nighttime hours” means 10 p.m. to 7 a.m., local time.

  (15) “Noise” means the intensity, frequency, duration, and character of sound, including sound and vibration of sub-audible frequencies.

  (16) “Noise pollution” means the presence of noise of sufficient loudness, character, and duration, which whether from a single source or multiple sources, is, or may be predicted with reasonable certainty to be, injurious to health or which unreasonably interferes with the proper enjoyment of property or with any lawful business or activity.

  (17) “Periodic noise” means noise possessing a repetitive on-and-off characteristic with a rapid rise to maximum and a short decay not exceeding 2 seconds.

  (18) “Person” means any individual, group of individuals, firm, partnership, voluntary association, or private, public, or municipal corporation, or political subdivision of the State, or department, bureau, agency, or instrument of federal, State, or local government, responsible for the use of property.

  (19) “Prominent discrete tone” means any sound which can be distinctly heard as a single pitch or a set of single pitches. For the purposes of this regulation, a prominent discrete tone shall exist if the one-third octave band sound pressure level in the band with the tone exceeds the arithmetic average of the sound pressure levels of the 2 contiguous one-third octave bands by 5 dB for center frequencies of 500 Hz and above and by 8 dB for center frequencies between 160 and 400 Hz and by 15 dB for center frequencies less than or equal to 125 Hz.

  (20) “Sound level” means, in decibels, the weighted sound pressure level measured by the use of a sound level meter. Sound level and noise level are synonymous. The weighting employed shall always be specified.

  (21) “Sound level meter” means an instrument, meeting International Electrotechnical Commission and American National Standards Institute standards comprising a microphone, an amplifier, an output meter, and frequency weighting network(s) that is used for the measurement of sound pressure levels in a specified manner.

  (22) Sound Pressure.

    (a) “Sound pressure” means the minute fluctuations in atmospheric pressure which accompany the passage of a sound wave.

    (b) Sound pressure is usually measured in dynes per square centimeter (dyne/cm2), or in newtons per square meter (N/m2), or in micropascals.

  (23) “Sound pressure level” means, in decibels, 20 times the logarithm to the base ten of the ratio of a sound pressure to the reference sound pressure of 20 micropascals (20 micronewtons per square meter). In the absence of any modifier, the pressure is understood to be that of a root mean-square pressure.

  (24) “Source” means any person or property, real or personal, contributing to noise pollution.

  (25) “Vibration” means any oscillatory motion of solid bodies.

  (26) “Zoning district” means a general land use category, defined according to local subdivision, the activities and uses for which are generally uniform throughout the subdivision. For the purposes of this regulation, property which is not zoned “industrial”, “commercial”, or “residential” shall be classified according to use as follows:

    (a) “Industrial” means property used for manufacturing and storing goods;

    (b) “Commercial” means property used for buying and selling goods and services;

    (c) “Residential” means property used for dwellings.

#### Regulation .02 Environmental Noise Standards.

*COMAR 26.02.03.02*

A. Precepts.

  (1) It is known that noise above certain levels is harmful to the health of humans. Although precise levels at which all adverse health effects occur have not definitely been ascertained, it is known that one's well-being can be affected by noise through loss of sleep, speech interference, hearing impairment, and a variety of other psychological and physiological factors. The establishment of ambient noise standards, or goals, must provide margins of safety in reaching conclusions based on available data which relate noise exposure to health and welfare effects, with due consideration to technical and economic factors.

  (2) The environmental noise standards set forth here represent goals expressed in terms of equivalent A-weighted sound levels which are protective of the public health and welfare. The ambient noise levels shall be achieved through application, under provisions of laws or regulations or otherwise, of means for reducing noise levels including, but not limited to, isolation of noise producing equipment, dampening of sound waves by insulation, equipment modification and redesign, and land use management.

B. Standards for Environmental Noise — General.

  (1) A person may not cause or permit noise levels which exceed those specified in this table except as provided in §B(2) or (3), or §C, of this regulation.

  (2) A person may not cause or permit noise levels emanating from construction or demolition site activities which exceed:

    (a) 90 dBA during daytime hours;

    (b) The levels specified in Table 1 during nighttime hours.

  (3) A person may not cause or permit the emission of prominent discrete tones and periodic noises which exceed a level which is 5 dBA lower than the applicable level listed in Table 1.

  (4) A person may not cause or permit, beyond the property line of a source, vibration of sufficient intensity to cause another person to be aware of the vibration by such direct means as sensation of touch or visual observation of moving objects. The observer shall be located at or within the property line of the receiving property when vibration determinations are made.

  (5) A person may not operate or permit to be operated an off-road internal combustion engine powered recreational vehicle, including, but not limited to, a dirt bike, an all terrain vehicle, a go cart, a snowmobile, or a similar vehicle, on private property closer than 300 feet to a neighboring residence or the associated curtilage, without the written permission of the affected resident, unless it can be demonstrated to the Department that the vehicle can be operated within the noise limits specified in Table 1 under §B(1) of this regulation.

C. Exemptions.

  (1) The provisions of this regulation may not apply to devices used solely for the purpose of warning, protecting, or alerting the public, or some segment thereof, of the existence of an emergency or hazardous situation.

  (2) The provisions of this regulation do not apply to the following:

    (a) Household tools and portable appliances in normal usage during daytime hours;

    (b) Lawn care and snow removal equipment (daytime only) when used and maintained in accordance with the manufacturer's specifications;

    (c) Agricultural field machinery when used and maintained in accordance with manufacturer's specifications;

    (d) Blasting operations for demolition, construction, and mining or quarrying (daytime only);

    (e) Motor vehicles on public roads;

    (f) Aircraft and related airport operations at airports licensed by the Maryland Aviation Administration;

    (g) Boats on State waters or motor vehicles on State lands under the jurisdiction of the Department of Natural Resources;

    (h) Emergency operations;

    (i) Pile driving equipment during the daytime hours of 8 a.m. to 5 p.m.;

    (j) Sound except those sounds that are electronically amplified, between 7 a.m. and midnight, created by:

      (i) Sporting events (except trap shooting, skeet shooting, or other target shooting);

      (ii) Entertainment events; and

      (iii) Other public gatherings operating under permit or permission of the appropriate local jurisdiction;

    (k) Rapid rail transit vehicles and railroads;

    (l) Construction and repair work on public property;

    (m) Air conditioning or heat pump equipment used to cool or heat housing on residential property; for this equipment, a person may not cause or permit noise levels which exceed 70 dBA for air conditioning equipment at receiving residential property and 75 dBA for heat pump equipment at receiving residential property;

    (n) Household pets on residential property that are maintained in accordance with local zoning requirements;

    (o) Except in Allegany, Anne Arundel, Baltimore City, Calvert, Charles, Garrett, Howard, Montgomery, St. Mary's, and Washington Counties, trap shooting, skeet shooting, or other target shooting between the hours of 9 a.m. and 10 p.m. on any range or other property of a shooting sports club that is chartered and in operation as of January 1, 2001;

    (p) Trash collection operations between the hours of 7 a.m. and 10 p.m.

    (q) Marina equipment used to move boats during the period from 7 am to 7 pm provided that the noise level does not exceed 80 dBA at 20 meters from the equipment.

  (3) The events and gatherings under §B(2)(j) of this regulation include, but are not limited to, athletic contests, amusement parks, carnivals, fairs at fairgrounds, sanctioned auto racing facilities, parades, and public celebrations.

  (4) In Frederick County or Frederick City, a fair listed in the Maryland agricultural fairs and shows schedule that is maintained by the Maryland Agricultural Fair Board, or any other event held on the same grounds and listed by the Agricultural Fair Board, is exempt from this chapter.

D. Measurement.

  (1) The equipment and techniques employed in the measurement of noise levels may be those recommended by the Department, which may, but need not, refer to currently accepted standards or recognized organizations, including, but not limited to, the American National Standards Institute (ANSI), American Society for Testing and Materials (ASTM), Society of Automotive Engineers (SAE), International Electrotechnical Commission (IEC) and the United States Environmental Protection Agency (EPA).

  (2) The measurement of noise levels shall be conducted at points on or within the property line of the receiving property or the boundary of a zoning district, and may be conducted at any point for the determination of identity in multiple source situations.

  (3) Sound level meters used to determine compliance with Regulation .02 shall meet or exceed the specifications for Type II sound level meters.

#### Regulation .03 Repealed

*COMAR 26.02.03.03*

#### Regulation .04 Repealed.

*COMAR 26.02.03.04*

#### Regulation .05 Penalties.

*COMAR 26.02.03.05*

A. Civil Penalty. Any person who willfully violates these regulations shall be liable to a civil penalty of not more than $10,000. Each day during which a violation continues there shall be liability for a separate penalty.

B. Plan for Compliance. A violator who has submitted a plan for compliance with these regulations and has that plan or amendments to it approved by the Secretary, upon recommendation of the Department, may not be considered to be in violation of these regulations as long as he acts in accordance with the original or amended plan.

### Chapter 04 — Hazardous Substances

**Authority:** Environmental Article, §§6-905, 6-905.1, and 6-905.3, Annotated Code of Maryland

**Administrative History:** Effective date: January 1, 2007 (33:26 Md. R. 1999)

#### Regulation .01 Purpose and Scope — Products That Contain Mercury.

*COMAR 26.02.04.01*

This chapter establishes limitations on the sale of specified products that contain mercury.

#### Regulation .02 Definitions — Products That Contain Mercury.

*COMAR 26.02.04.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Manufacturer” means a person that:

    (a) Produces a product;

    (b) For a multicomponent product, produces or assembles the final product; or

    (c) Serves as an importer or domestic distributor of a product produced outside of the United States.

  (2) “Marketer” means a person who manufactures, assembles, sells, distributes, affixes a brand name or private label to, or licenses the use of a brand name on a fever thermometer containing mercury.

  (3) “Mercury-added product” means any of the following products if containing elemental mercury or a mercury compound that has been added to the product for any reason:

    (a) Dyes or pigments;

    (b) Electric switches;

    (c) Fluorescent lamps; and

    (d) Thermostats.

  (4) “Motor vehicle” has the meaning stated in Transportation Article, §11-135, Annotated Code of Maryland.

#### Regulation .03 Prohibition on the Sale of Certain Products.

*COMAR 26.02.04.03*

A. Fever Thermometers Containing Mercury.

  (1) Except as provided in §A(2) of this regulation, a marketer may not sell or provide a fever thermometer containing mercury to a consumer except by prescription.

  (2) The prohibition of §A(1) of this regulation does not apply to:

    (a) A fever thermometer sold or provided to be used in hospitals or other places where medical services are provided by medical service professionals; or

    (b) A digital thermometer using mercury-added button cell batteries.

B. Mercury-Added Products.

  (1) This regulation does not apply to:

    (a) Prescription drugs;

    (b) Any substance regulated by the federal Food, Drug, and Cosmetic Act;

    (c) Biological products regulated by the federal Food and Drug Administration under the federal Public Health Service Act;

    (d) Medical equipment not intended for use by nonmedical personnel; or

    (e) Products that contain mercury-added products that are labeled in accordance with this regulation, except as provided in Regulation .04B(4)(b) of this chapter.

  (2) Unlabeled Mercury-Added Products. Beginning April 1, 2006:

    (a) A manufacturer or wholesaler may not sell a mercury-added product at retail in Maryland or to a retailer in Maryland unless the product is labeled in accordance with Regulation .04 of this chapter; and

    (b) A retailer may not knowingly sell a new mercury-added product in Maryland unless the product is labeled in accordance with Regulation .04 of this chapter.

  (3) The manufacturer of a mercury-added product manufactured on or after January 1, 2006 is responsible for affixing the label required by §B(2) of this regulation.

  (4) Motor Vehicles.

    (a) The manufacturer of a motor vehicle may meet the labeling requirements of §B(2) of this regulation by placing the label on the doorpost of a new vehicle.

    (b) A person who, in servicing a motor vehicle, adds a mercury-added product to the vehicle, shall:

      (i) Make any necessary revisions to the label on the doorpost of the vehicle provided by the manufacturer under §B(4)(a) of this regulation; or

      (ii) Add a label meeting the requirements of §B(2) of this regulation to the doorpost of the vehicle if the vehicle did not previously have such a label.

#### Regulation .04 Labeling Standards for Mercury-Added Products.

*COMAR 26.02.04.04*

A. A mercury-added product required to be labeled under Regulation .03B of this chapter shall either:

  (1) Have a label that:

    (a) Clearly informs the purchaser or consumer that:

      (i) Mercury is present in the product; and

      (ii) The product shall be managed in accordance with federal and State environmental laws to minimize the release of mercury to the environment; or

    (b) Meets another state's label requirements for mercury-added products; or

  (2) Satisfy the conditions for an exemption under §B(2)(a) of this regulation.

B. Label Standards.

  (1) The text of a label required under §A(1)(a) of this regulation:

    (a) Shall be legible and clearly presented;

    (b) May be any single, clear, easy-to-read type style;

    (c) Shall have not more than 39 characters per inch;

    (d) Shall have at least 0.5 point leading, that is, space between 2 lines of text;

    (e) May not have letters that touch; and

    (f) Shall use a type size not smaller than 8-point type for the notice that mercury is present in the product, and not smaller than 6-point type for the remainder of the message.

  (2) Location of the Label.

    (a) A label required under §A(1)(a) of this regulation shall be affixed on the surface of the mercury-added product, unless:

      (i) The physical form of the product prevents it from being directly labeled;

      (ii) The size of the product's surface is too small to accommodate the label, taking into account other requirements concerning the use of the product's surface, such as other required labels;

      (iii) Attachment of the label to the surface of the product would interfere with the function of the product; or

      (iv) The person required to affix the label demonstrates, to the Secretary's satisfaction, that it is not otherwise feasible to affix the label to the surface of the product.

    (b) If, as provided in §B(2)(a) of this regulation, the label is not attached to the surface of the mercury-added product, the label shall be:

      (i) Attached to packaging of the product that will be seen by the product's purchaser or user; or

      (ii) Provided as a package insert if the label would cover more than 60 percent of the total surface area of the product's packaging available to carry labeling.

  (3) Size of the Label. A label under §A(1)(a) of this regulation shall be of sufficient size to present the information required by §A(1)(a) of this regulation while meeting the standards of §B of this regulation.

  (4) Requirements for Additional Labels.

    (a) If a label attached to the surface of a mercury-added product is not visible to a prospective purchaser, and the mercury-added product is not contained within another product, a second label meeting the requirements of §§A and B(1) of this regulation shall be:

      (i) Attached to packaging of the product that will be seen by the product's purchaser; or

      (ii) Provided as a package insert if the label would cover more than 60 percent of the total surface area of the product's packaging available to carry labeling.

    (b) If, as provided in §B(2)(a) of this regulation, the label is not attached to the surface of the mercury-added product, and the mercury-added product is used as a component in the manufacture of another product, the product that contains the mercury-added product as a component shall be labeled in accordance with §A of this regulation.

### Chapter 05 — (FORMALLY FLAMMABLE ARTICLES)

*Vacant*

### Chapter 06 — Reporting of Heavy Metal Poisoning

**Authority:** Environment Article, §§1-104(b), 1-405, and 6-701, Annotated Code of Maryland

**Administrative History:** Effective date: February 8, 1988 (15:3 Md. R. 303) (Chapter recodified from 10.10.08.00)

#### Regulation .01 Definitions.

*COMAR 26.02.06.01*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Department” means the Department of the Environment.

  (2) “Elevated levels of arsenic” means:

    (a) Blood arsenic levels equal to or greater than .07 micrograms per milliliter.

    (b) Urine arsenic levels equal to or greater than 100 micrograms per liter.

  (3) “Elevated levels of cadmium” means:

    (a) Blood cadmium levels equal to or greater than 10 micrograms per liter.

    (b) Urine cadmium levels equal to or greater than 20 micrograms per liter.

  (4) “Elevated levels of lead” means:

    (a) Blood lead levels equal to or greater than 25 micrograms per deciliter.

    (b) Urine lead levels equal to or greater than 80 micrograms per liter.

  (5) “Elevated levels of mercury” means:

    (a) Blood mercury levels equal to or greater than 3 micrograms per deciliter.

    (b) Urine mercury levels equal to or greater than 20 micrograms per liter.

  (6) “Laboratory” means a medical laboratory licensed by the State of Maryland that conducts tests for lead, mercury, arsenic, or cadmium levels in blood or urine.

  (7) “Local health department” means the health department of the Maryland subdivision where the patient resides.

  (8) “MOSH” means Maryland Occupational Safety and Health, Division of Labor and Industry, Maryland Department of Labor.

#### Regulation .02 Reporting Procedure.

*COMAR 26.02.06.02*

A. Who Shall Report.

  (1) Reporting by Laboratories. The supervisor or director of a laboratory shall report to the Department the results of test showing elevated levels of lead, mercury, arsenic, or cadmium in blood or urine in Maryland residents 18 years and older.

  (2) Reporting by the Department.

    (a) The Department shall report test results of occupational cases to MOSH.

    (b) The Department shall report test results to the local health department of residence.

B. Time and Method of Reporting.

  (1) The laboratories shall record all elevated levels of lead, mercury, arsenic, or cadmium in blood or urine on the forms provided by the Department and shall also record information as prescribed on the form.

  (2) The laboratories shall provide the Department with three copies of the reporting forms within 5 working days of completion of the test.

### Chapter 07 — Procedures for Abating Lead Containing Substances from Buildings

**Authority:** Environment Article, §§1-404 and 7-206—7-208, Annotated Code of Maryland

**Administrative History:** Effective date: August 8, 1988 (15:16 Md. R. 1918)

**Administrative History:** Regulation .02B amended effective July 1, 2020 (476:13 Md. R. 643)

**Administrative History:** Regulation .03A, B amended effective December 20, 2004 (31:25 Md. R. 1792)

**Administrative History:** Regulation .11 repealed effective May 20, 1996 (23:10 Md. R. 734)

**Administrative History:** Regulation .12I amended effective June 29, 2020 (476:13 Md. R. 643)

**Administrative History:** Regulation .12K amended effective February 17, 2003 (30:3 Md. R. 182); July 1, 2020 (476:13 Md. R. 643)

#### Regulation .01 Scope.

*COMAR 26.02.07.01*

These regulations establish appropriate techniques for abatement of lead-containing substances from interior and certain exterior areas in group day care centers, in all residential property including owner-occupied residential property, and in buildings appurtenant to group day care centers and residential properties.

#### Regulation .02 Definitions.

*COMAR 26.02.07.02*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Abate” or “abatement” means the elimination of exposure to lead-based substances that may result in lead toxicity or poisoning, by the removal or encapsulation of lead-containing substances, by thorough cleanup procedures, and by post-cleanup treatment of surfaces.

  (2) “Business entity” means a partnership, firm, association, corporation, sole proprietorship, or other business unit and any employee of it.

  (3) “Child” means a person under the age of 6.

  (4) “Contractor” means any business entity, public unit, or person performing the actual abatement for a lead abatement project.

  (5) “Department” means the Maryland Department of the Environment.

  (6) “Encapsulate” or “encapsulation” means to resurface or cover surfaces and to seal or caulk seams with durable material, so as to prevent or control chalking, flaking lead-containing substances from becoming part of house dust or accessible to children.

  (7) “HEPA” or “high efficiency particle air” means a filter capable of filtering out particles of 0.3 microns or greater from a body of air at 99.97 percent efficiency or greater.

  (8) “Lead abatement project” means any work performed in order to abate the presence of a lead-containing substance.

  (9) “Lead-containing substance” means any paint, plaster or other surface coating material containing more than 0.50 percent lead by weight calculated as lead metal in the dried solid, or more than 0.7 milligrams per square centimeter by the X-ray fluorescence analyzer.

  (10) “Owner” means a person, firm, corporation, guardian, conservator, receiver, trustee, executor, or other judicial officer, who, alone or jointly or severally with others, owns, holds, or controls the whole or any part of the freehold or leasehold title to any property, with or without accompanying actual possession of it, and shall include in addition to the holder of legal title, any vendee in possession of it, but may not include a mortgagee or an owner of a reversionary interest under a ground rent lease.

  (11) “Public unit” means:

    (a) Any agency, bureau, department, or instrumentality of State government;

    (b) Any agency, bureau, department, or instrumentality of federal or local government;

    (c) Any public, quasi-public, or municipal corporation.

  (12) “Quantitation limit” means the minimum quantity or level of lead that can reliably be measured or quantified to a specified degree of accuracy and precision.

  (13) “Woodwork” means all wooden or metal interior or exterior fittings or ornamentation, such as moldings, doors, staircases, and window sashes and trim.

  (14) Work Area.

    (a) “Interior work area” means a hallway, room or group of rooms in which abatement takes place on the inside of a residential property, or group day care center.

    (b) “Exterior work area” means an outdoor porch, stairway, or other element of woodwork on the exterior of a residential property, a group day care center, or a building appurtenant to a residential property or group day care center, on which abatement takes place.

#### Regulation .03 Methods of Abatement.

*COMAR 26.02.07.03*

A. A person performing abatement of lead-containing substances may not use the following methods:

  (1) Open flame burning;

  (2) Dry sanding, except as allowed in §B(2);

  (3) Open abrasive blasting, except as allowed in §B(2);

  (4) Uncontained hydro-blasting;

  (5) Methylene chloride for interior use except that methylene chloride may be used in interior work areas for localized touch-up; or

  (6) Dry scraping; or

  (7) Heat gun operating at or above 1,100°F.

B. A person performing abatement of lead-containing substances shall only use the following methods:

  (1) Replacement. Any component part of a building may be abated by replacement with a part free of lead-containing substances.

  (2) Removal.

    (a) Unless replaced encapsulated, or reversed, woodwork and floors may only be abated by using the following techniques:

      (i) Offsite chemical stripping;

      (ii) Heat gun operating below 1,100°F;

      (iii) Non-flammable chemical strippers which do not contain methylene chloride, except that chemical strippers containing methylene chloride may be used for localized touch-up;

      (iv) Sander equipped with HEPA vacuum;

      (v) Vacuum-blasting in exterior work areas only; or

      (vi) Contained hydro-blasting in exterior work areas only.

    (b) Unless replaced or encapsulated, walls or ceilings may only be abated by using the following techniques:

      (i) Wet-scraping of loose material if scraping is followed by encapsulation;

      (ii) Vacuum-blasting in exterior work areas only; or

      (iii) Contained hydro-blasting in exterior work areas only.

  (3) Encapsulation.

    (a) A wall or ceiling surface may be abated by encapsulation using only the following materials:

      (i) Gypsum board;

      (ii) Fiberglass mats;

      (iii) Canvas backed vinyl wall coverings;

      (iv) Formica;

      (v) Tile;

      (vi) Paneling; or

      (vii) Other durable material that does not readily tear, chip, or peel.

    (b) A floor surface may be abated by encapsulation using only the following materials:

      (i) Tile;

      (ii) Vinyl flooring;

      (iii) Wood; or

      (iv) Stone.

    (c) A woodwork surface may be abated by encapsulation using only the following materials:

      (i) Plastic;

      (ii) Metal; or

      (iii) Wood.

  (4) Reversal. A woodwork surface may be abated by reversal of its component parts so long as no lead-containing surface remains exposed at the completion of the process, and all seams are caulked and sealed.

  (5) Windows Generally. Windows, when abated, shall be completely treated, including inside, outside and sides of sashes. Window frames shall be abated to the outside edge of the frame, including slides, sash guides and window wells.

C. Alternative Procedures.

  (1) The Department may, on a case-by-case basis, allow an alternative procedure for abatement of a lead paint hazard, provided that the owner or contractor who uses this procedure shall submit a written description of the alternative procedure to the Department which demonstrates to the satisfaction of the Department that the proposed alternative procedure provides the equivalent control and removal.

  (2) In all cases in which the Department allows the use of an alternative procedure under §C(1), the owner and resident shall, for a 1-year period after completion of the lead abatement project, permit the Department to enter the area where the abatement occurred in order to inspect the property for the purpose of determining the effectiveness and durability of the allowed alternative procedure. Before conducting such an inspection the Department shall give written notice to the owner and resident of the property.

#### Regulation .04 Personal Protection.

*COMAR 26.02.07.04*

A. A business entity or public unit shall ensure that its employees are protected in accordance with all applicable federal, state, and local standards, in particular those set forth in the Maryland Occupational Safety and Health (MOSH) regulations governing Occupational Exposure to Lead in Construction (COMAR 09.12.32).

B. All persons not covered by COMAR 09.12.32 and working on a lead abatement project shall, when present in the work site, wear disposable clothing, shoe covers and, if a heat gun or sander equipped with HEPA vacuum is being used for abatement, a half-mask air purifying respirator equipped with high efficiency filters.

#### Regulation .05 Control of Access.

*COMAR 26.02.07.05*

A. Except as provided in §D of this regulation, a person or pet may not enter or remain in the work area of a group day care center, residential property, or building appurtenant to a group day care center or residential property, until the Department determines that the lead abatement project has been completed in a satisfactory manner under Regulation .12J, unless that person is:

  (1) The owner of the building or the owner's designee;

  (2) The contractor engaged for the lead abatement project and his employees;

  (3) A State, county, or local enforcement official or his designee;

  (4) An inspector who represents a lender with a security interest in the building which is being abated; or

  (5) A federal, State, or local official, or his designee, engaged in research on lead buildings.

B. Exemption. If a renovation process is not reasonably expected to break or disturb any lead based substance, then the requirements of §A do not apply.

C. Except as provided in §D, all persons entering a work area during a lead abatement project which involves the removal of lead paint shall wear:

  (1) Disposable shoe covers which shall be removed when leaving the work area; and

  (2) A half-mask air purifying respirator equipped with high efficiency filters during or after the use of a heat-gun or sander equipped with HEPA vacuum.

D. Multiple Family Dwellings. At all times when a lead abatement project is being conducted in a common area of a dwelling occupied by three or more households:

  (1) Residents and pets shall use alternative entrances and exits which do not require passage through the work area, if such an entrance and exit exists;

  (2) The contractor shall use all reasonable efforts to create an uncontaminated passage for entrance and egress of all building occupants; and

  (3) If the entrance and egress to a building can only be through the work area, abatement in common areas shall be conducted between the hours of 9 a.m. to 3 p.m. only, and the work area shall be cleaned with a HEPA vacuum at the end of each working day until all surfaces are free of visible dust and debris.

#### Regulation .06 Removable Objects.

*COMAR 26.02.07.06*

A. Except in an emergency, at least 7 days, but not more than 30 days before a contractor may commence a lead abatement project, the owner of the building where the lead abatement project is to take place shall notify all residents of:

  (1) The area which is to be abated;

  (2) The date abatement is to commence; and

  (3) The residents' obligation under §B to place all personal items in a box or other closed, easily handled container.

B. Every resident of an area, which is to be abated, who has received a notice under §A, shall be responsible for placing all personal items in boxes or other closed, easily handled containers, and shall pay the reasonable costs of packing and storage of any loose personal items remaining in the work area at the time designated for commencement of abatement in the notice issued under §A.

C. Before a contractor may commence a lead abatement project, the owner of the building where the lead abatement project is to take place shall remove all furniture and packed personal items from the work area and store them in a secure place.

#### Regulation .07 Control of Emissions and Dust.

*COMAR 26.02.07.07*

A. Caution Signs.

  (1) At each separate work area, the contractor performing an abatement shall display a caution sign in the following manner wherever the treatment process is reasonably expected to break or disturb any lead-containing substances:

    (a) At least 3 days before removing or encapsulating lead paint, the contractor shall post signs immediately outside all entrances and exits to the area except that, in emergency situations, posting shall be done as soon as possible;

    (b) The contractor shall keep the signs posted until the Department issues the written notice of completion and compliance under Regulation .12J; and

    (c) The contractor shall ensure that the sign required by §A(1) meets the following description:

      (i) The sign is at least 20" by 14", and states the date and place of the lead abatement project,

      (ii) Except as provided in §A(1)(c)(iii), the sign includes the phrase “Caution Lead Hazard, Keep Out” in bold lettering at least 2 inches high, and

      (iii) In dwellings occupied by 3 or more households where common areas are to be abated the sign includes the phrase “Caution Lead Hazard, Do Not Remain in Work Area Unless Authorized” in bold lettering at least 2 inches high.

  (2) Multiple Family Dwellings.

    (a) In dwellings occupied by three or more households, where common areas are to be abated, the contractor shall post a notice meeting the description in §A(2)(b) on the door of each apartment in the building at least 3 days before a lead abatement project commences.

    (b) The notice required in §A(2)(a) shall contain:

      (i) The date of commencement of abatement and the area to be abated; and

      (ii) The statement “Please observe caution signs, instruct children not to remain in work area.”

B. Containment.

  (1) Interior Containment. Before beginning to abate a lead-containing substance in an interior work area, the contractor performing an abatement shall:

    (a) Check to make sure that all movable objects have been removed from the work area as required by Regulation .06;

    (b) If the work area is a room or group of rooms within a building, seal the work area from all other portions of the building with plastic sheeting at least 6 mils thick, waterproof tape, and industrial staples;

    (c) Seal opening seams of all kitchen cabinets and refrigerators individually with tape;

    (d) Cover all non-movable objects, such as radiators, refrigerators, stoves, kitchen cabinets, built in furniture, and bookcases, with plastic sheeting at least 6 mils thick taped securely in place;

    (e) Cover floors in the work area with plastic sheeting at least 6 mils thick sealed with tape and staples;

    (f) Shut down all forced air ventilation in the work area and seal exhaust and intake points in the work area; and

    (g) Remove for professional cleaning, or replace, all carpeting present before abatement.

  (2) Exterior Containment. Before beginning to abate a lead-containing substance in an exterior work area, the contractor performing the abatement shall use the following procedures:

    (a) Liquid Waste Produced by Abatement Technique.

      (i) For all situations, when liquid waste is produced by any abatement technique is used, the contractor shall place plastic sheeting at least 6 mil thick on the ground as close as possible to the building foundation, or on the floor when applicable.

      (ii) When sheeting is placed on the ground, it shall be raised at its edge and extend a sufficient distance to contain the liquid waste. Plastic sheeting may not be required to extend beyond the edge of the nearest sidewalk.

      (iii) When sheeting is placed on an exterior floor, it shall cover the entire exterior floor.

    (b) Non-liquid Waste Produced by Abatement Technique.

      (i) For all situations, when non-liquid waste is produced by any abatement technique used, the contractor shall place plastic sheeting at least 6 mils thick on the ground as close as possible to the foundation, or on the floor when applicable.

      (ii) When sheeting is placed on the ground, it shall extend out from the foundation 3 feet per story being abated, with a minimum of 5 feet and a maximum of 20 feet. Plastic may not be required to extend beyond the edge of the nearest sidewalk.

      (iii) When sheeting is placed on an exterior floor, it shall cover the entire exterior floor.

      (iv) The contractor shall weight the sheeting at the foundations, and along all edges and seams.

      (v) If the constant wind speed is over 15 mph, exterior abatement producing dry waste may not be performed unless vertical shrouds are erected.

  (3) For all sealing and covering the contractor shall use:

    (a) Plastic sheeting, at least 6 mils thick or equivalent;

    (b) Duct tape or equivalent waterproof tape;

    (c) Staples of industrial size; and

    (d) Other additional appropriate work practices to contain particulate lead or lead containing liquids.

  (4) Exception. A surface or object may not be covered or sealed while that surface itself is actively being abated.

  (5) Alternative Procedures. The Department may, on a case-by-case basis, allow an alternative procedure for containment of lead within a work area, provided that the owner or contractor who uses this procedure shall submit a written description of the alternative procedure to the Department which demonstrates to the satisfaction of the Department that the proposed alternative procedure provides the equivalent containment.

#### Regulation .08 Cleanup of Work Area.

*COMAR 26.02.07.08*

A. Interior Cleanup. After completion of the removal, replacement, encapsulation, or reversal involved in an abatement project, the contractor shall:

  (1) Deposit all lead waste, including sealing tape, plastic sheeting, mop heads, sponges, filters, and disposable clothing in double plastic bags of at least 4 mils thick, or single bags 6 mils thick, and seal the bags;

  (2) Before washing as required in §A(3), vacuum-clean all surfaces in the work area including woodwork, walls, windows, window wells, and floors with a HEPA vacuum;

  (3) After vacuum-cleaning as required in §A(2), wet wash all surfaces in the work area including woodwork, walls, windows, window wells, ceilings and floors with a solution containing at least 1 ounce of 5 percent trisodium phosphate to each gallon of water; and

  (4) After washing as required by §A(3), vacuum-clean all surfaces, after they have dried, as described in §A(2), with a HEPA vacuum until no visible residue remains.

B. Exterior Cleanup. After completion of the replacement, removal, encapsulation, or reversal involved in an exterior abatement project, the contractor shall:

  (1) Recover all visible debris from all exterior areas;

  (2) Vacuum all porches treated;

  (3) Wet wash all surfaces in the work area, including woodwork, windows, window wells, and floors with a solution containing at least 1 ounce of 5 percent trisodium phosphate to each gallon of water.

C. Except as provided in §F, after the cleaning outlined in §§A and B, after a satisfactory inspection under Regulation .12B, every contractor shall repaint with a paint containing not more than 0.06 percent lead in the dried solid, or recoat all surfaces treated, except those encapsulated surfaces which have smooth easily cleanable factory-finished surfaces.

D. Before repainting or recoating under §C, each contractor shall notify the Department that the cleanup required under §§A and B is completed, and shall undergo any inspection required by Regulation .12B.

E. After painting or coating as required under §C, the contractor shall repeat the cleaning process set forth in §A in all interior work areas.

F. After completion of the cleaning required under §E, the contractor shall seal all floors in interior work areas with:

  (1) Polyurethane;

  (2) Gloss deck enamel;

  (3) A tight fitting vinyl floor covering; or

  (4) An equivalent impermeable material, if a smooth, cleanable surface is not already present.

G. In owner-occupied dwellings in which a lead abatement project is being done by the owner and not by a hired contractor, after completion of the replacement, removal, encapsulation, or reversal involved in a lead abatement project, the owner may, instead of following the cleanup procedures set forth in §A:

  (1) Deposit all waste, including sealing tape, plastic sheeting, mop heads, sponges, filters, and disposable clothing, in double plastic bags at least 4 mils thick, or single plastic bags at least 6 mils thick, and seal the bags;

  (2) Wet wash all surfaces in the work area, including woodwork, walls, windows, window wells, and floors with a solution containing at least 1 ounce of 5 percent trisodium phosphate to each gallon of water, twice, and

  (3) Wet vacuum-clean all surfaces in the work area, including woodwork, walls, windows, window wells, and floors while surfaces are still wet.

H. Alternative Procedures. The Department may on a case-by-case basis allow an alternative procedure for cleanup of a lead abatement project, provided that the owner or contractor who uses this procedure shall submit to the Department a written description of the alternative procedure which demonstrates to the satisfaction of the Department that the proposed alternative procedure provides the equivalent degree of dust removal.

#### Regulation .09 Waste Disposal.

*COMAR 26.02.07.09*

A. Each owner or contractor engaged in a lead abatement project shall:

  (1) Remove lead waste from the site of a lead abatement project not later than 48 hours after completing the cleanup; and

  (2) Comply with applicable hazardous waste regulations.

B. Transport and Disposal. Each owner and contractor engaged in a lead abatement project shall transport and dispose of lead waste in a manner to prevent lead from becoming airborne.

#### Regulation .10 Records.

*COMAR 26.02.07.10*

A. Each business entity and public unit shall make a record of the following information for every lead abatement project which it performs:

  (1) Name and address of the contractor responsible for the project;

  (2) The location and description of the project, and location of lead-based substances within the work area which was abated;

  (3) Starting and completion dates of the lead abatement project; and

  (4) Summary of abatement techniques used to comply with Regulations .04—.08 of this chapter.

B. Each business entity and public unit shall:

  (1) Retain the record required to be made under §A of this regulation for 6 years from the date of the completion of the lead abatement project; and

  (2) Make this record available to the Department upon request.

C. This regulation does not apply to owner-occupied dwellings in which abatement is being done by the owner.

#### Regulation .11 Repealed.

*COMAR 26.02.07.11*

#### Regulation .12 Procedures for Determining Compliance.

*COMAR 26.02.07.12*

A. The Department may inspect a work area at any time during a lead abatement project to determine compliance with this regulation.

B. After receipt of notice of completed cleanup required by Regulation .08D the Department shall, within 24 hours, notify the contractor or owner of the time and date on which an initial inspection will take place, if one is to be made. If the contractor or owner is not reachable by telephone, notice shall be sent by first class mail. Any inspection performed under this subsection shall be completed within 2 working days of giving telephone notice to the contractor or owner. Notice by mail will require an additional 5 working days for completion of the inspection.

C. The inspection performed under §B shall be a visual inspection to determine whether surfaces requiring abatement have been abated.

D. The inspector shall immediately notify the contractor or owner, if either is present, of the results of the inspection under §B, and shall point out and describe any areas with inadequate treatment. If the contractor or owner is not present during the inspection under §B, the inspector shall notify the contractor and owner of the results of the inspection, and shall include the locations and characteristics of surfaces with inadequate treatment, by letter mailed within 24 hours of the inspection, by first class mail.

E. Before repainting or recoating under Regulation .08C, the contractor shall receive notice of:

  (1) A satisfactory inspection under §B; or

  (2) The decision not to conduct an inspection under §B.

F. Upon completion of all requirements of Regulations .08 and .09, a contractor shall notify the Department of readiness for final inspection.

G. Within 24 hours of receipt of notice under §F, the Department shall notify the contractor or owner of the time and date on which an inspection will take place, if one is to be made. If the contractor or owner is not reachable by telephone, notice shall be sent by first class mail. Any inspection performed under this section shall be completed within 2 working days of giving this notice to the contractor and owner. Notice by mail will require an additional 5 working days for completion of the inspection.

H. Every inspection performed under §G shall include at least:

  (1) Dust sampling to be followed by analysis in accordance with §I; and

  (2) Visual inspection.

I. The Department shall submit a dust sample collected under §H of this regulation for extractable lead analysis to a laboratory:

  (1) Recognized by the U.S. Environmental Protection Agency under 15 U.S.C. §2685(b) as accredited under the National Lead Laboratory Accreditation Program; and

  (2) That demonstrates it can achieve a quantitation limit equal to or less than 50 percent of the lowest lead dust level specified in §K(1) of this regulation.

J. The Department shall notify the owner and the contractor in writing, sent by first class mail, of the results of the final inspection within 24 hours of receiving the results of lead dust analysis conducted under §I. If the results of the lead dust analysis conducted under §I do not meet the standards set out in §K, the contractor shall perform a further cleanup as described in Regulation .08H. If results of the lead dust analysis meet the standards set out in §K, the Departmental notice shall state that the lead abatement project has been completed and complies with the standards set out in §K. A statement of completion and compliance may not preclude the Department from taking any future enforcement action against the same group day care center, residential property, or building appurtenant to a group day care center or residential property.

K. The Department shall consider a lead abatement project to be in compliance with this chapter if:

  (1) Floor lead dust levels are less than 10 micrograms per square foot;

  (2) Window sill lead dust levels are less than 100 micrograms per square foot;

  (3) Window well lead dust levels are less than 100 micrograms per square foot; and

  (4) All abated surfaces and all floors have been treated to provide smooth and easily cleanable surfaces.

L. This regulation does not apply to abatement projects conducted in owner-occupied dwellings by the owner, unless the abatement is ordered by the Department, a local government unit, or a court of competent jurisdiction.

#### Regulation .13 Liability of Department.

*COMAR 26.02.07.13*

The issuance of a statement of completion and compliance under Regulation .12J by the Department to an owner or contractor does not subject the Department to any claims for liability if the issuance of the statement was made in good faith.

#### Regulation .14 Enforcement.

*COMAR 26.02.07.14*

A person who violates any provision of this chapter shall be subject to all equitable, legal and administrative remedies set forth in Environment Article, §§7-258—7-268 inclusive, Annotated Code of Maryland.

## Subtitle 03 — Water Supply, Sewerage, Solid Waste, and Pollution Control Planning and Funding

### Chapter 01 — Planning Water Supply and Sewerage Systems

**Authority:** Environment Article, §§9-218, 9-505, 9-506, and 9-510, Annotated Code of Maryland

**Administrative History:** Effective date: July 1, 1975 (2:3 Md. R. 154)

**Administrative History:** Regulations .02A, .03A, .04E, F, .05, .06 amended effective Dec. 24, 1975 (2:29 Md. R. 1735)

**Administrative History:** Regulation .07 adopted effective January 26, 1987 (14:2 Md. R. 129)

**Administrative History:** Chapter recodified from COMAR 10.17.01 to COMAR 26.03.01

**Administrative History:** Regulation .01 amended effective July 25, 1988 (15:15 Md. R. 1813)

**Administrative History:** Regulation .08 adopted effective July 25, 1988 (15:15 Md. R. 1813)

#### Regulation .01 Definitions.

*COMAR 26.03.01.01*

A. “Approving authority” means one or more officials, agents, or agencies of local government designated by the local governing body or specified by other provisions of Environment Article, Title 9, Subtitle 5, to take certain actions as a part of implementing these regulations.

B. “Community sewerage system” means any system, whether publicly or privately owned, serving two or more individual lots, for the collection and disposal of sewerage or industrial wastes of a liquid nature, including various devices for the treatment of the sewage and industrial wastes.

C. “Community water supply system” means a source of water and a distribution system, including treatment and storage facilities, whether publicly or privately owned, serving two or more individual lots.

D. “County plan” means a comprehensive plan for the provision of adequate water supply systems and sewerage systems, whether publicly or privately owned, throughout the county and all amendments and revisions to it.

E. “Department” means the Department of the Environment.

F. “Existing service area” means that area that is currently served.

G. “Final planning stages” means a work or works of community water supply and community sewerage system for which contract plans and specifications have been completed.

H. “Financial management plan” means, for:

  (1) Publicly-owned community sewerage systems, a portion of the county water and sewerage plan, as described in Regulation .08B, of this chapter, which demonstrates to the Department's satisfaction that adequate fiscal resources will be available to support the satisfactory operation and maintenance of each system in the county to meet existing and future needs;

  (2) Other sewerage systems or extensions, a package of information for each system, as specified in COMAR 26.03.02.02J, which demonstrates to the Department's satisfaction that adequate fiscal resources will be available to support the satisfactory operation and maintenance of the system to meet existing and future needs.

I. “Five- or six-year period” means that period, depending upon the county's capital improvement program, 5 or 6 years following the date of adoption of the plan, its amendment, or revision by the county.

J. “Immediate priority” means a work or works of community water supply and community sewerage system for which the beginning of construction is scheduled to start within 2 years following the date of adoption of the plan, its amendments, and its revision.

K. “Individual sewerage system” means a single system of sewers and piping, treatment tanks or other facilities serving only a single lot and disposing of sewage or individual wastes of a liquid nature, in whole or in part, on or in the soil of the property, into any waters of this State or by other methods.

L. “Individual water supply system” means a single system of piping, pumps, tanks, or other facilities utilizing a source of ground or surface water to supply only a single lot.

M. “Maintenance expense” means those expenses for labor, materials, utilities, and other items necessary to preserve the facility for its designed service life. Equipment or tools under $200 should be included in this amount.

N. “Marina” means a dock, wharf, or basin providing mooring for boats which contain on-board toilet facilities, operated under public or private ownership, either free or on a fee basis, for the convenience of the public or club membership.

O. “Multi-used sewerage system” means a single system serving a single lot, whether owned or operated by an individual or group of individuals under private or collective ownership and serving a group of individuals for the collection and disposal of sewage or industrial wastes of a liquid nature, including various devices for the treatment of sewage and industrial wastes having a treatment capacity in excess of 5,000 GPD.

P. “Multi-use water supply system” means a single system of piping, pumps, tanks, or other facilities utilizing a source of ground or surface water to supply a group of individuals on a single lot and having a capacity in excess of 1,500 GPD.

Q. “Non-point source” means pollution originating from land run-off where no specific outfall can be identified.

R. “Operation expense” means those expenses such as labor, utilities, supplies, contractual services, training, and insurance, necessary to operate the treatment plant during its designed service life so as to achieve the capacity and performance standards for which it was designed, constructed, and permitted.

S. “Sewerage service area” is that area served, or potentially served, by a system of sanitary sewers connected to a treatment plant, or in a very large system, sub-areas as delineated by the county.

T. “Ten-year period” means that period of the 6 or 7 through 10 years following the date of adoption of the plan, its amendment, or its revision by the county.

U. “Under construction” means a work or works of community water supply and community sewerage systems where actual work is progressing or where a notice to proceed with a contract for this work has been let as of the adoption date of the plan, its amendment or revision.

V. “Water service area” means that area served, or potentially served, by a single distribution system under control of a single utility, or, in a very large system, sub-areas as delineated by the county.

#### Regulation .02 General Provisions.

*COMAR 26.03.01.02*

A. Objective of County Plan. The objective of the county plan is to develop the water supply and sewerage systems in a way consistent with county comprehensive planning. The plan shall be used as a tool to implement the county development policy so that:

  (1) An ample supply of water may be collected, treated, and delivered to points of use;

  (2) Waste water may be collected and delivered to points best suited for waste treatment and disposal or for re-use;

  (3) Waste water can be either treated before any discharge to State waters, in compliance with applicable water quality standards and discharge permit conditions, or disposed of to minimize most effectively adverse effects on legitimate water uses. Consideration shall be given to related aspects of land use, zoning, population estimates, engineering and economic factors, and all governmental, industrial, and other plans for privately owned facilities regarding water and sewerage at any level.

B. County Government Required to Develop Plans. The county governing body is the coordinating agency required to develop county water and sewerage plans. These plans shall incorporate all or part of subsidiary plans of the towns, municipal corporations, sanitary districts, privately owned facilities, and local, State, and federal agencies having existing, planned, or programmed development within the county. The governing body shall give notice to these officials and entities and they shall be provided an opportunity to be heard.

C. Annual Review of Plan. The county plan shall be reviewed by the governing body at least annually. A report of the review, together with amendments to or revisions of the plan as adopted by the governing body, shall be submitted to the Department.

D. Comprehensive Planning Agencies Shall Be Consulted. Every official planning agency having any immediate jurisdiction in a county, including those comprehensive planning agencies with multi-county or regional jurisdiction, shall be consulted by the governing body in connection with the preparation, amendment, or revision of county plans. A statement that the above agencies have been consulted shall be attached.

E. Public Hearings on Amendments Required. A public hearing shall be held on all amendments and revisions to the county water and sewerage plan. The Department shall receive prior written notice of all public hearings on plans, amendments, or revisions.

F. Sanitary Facilities Fund. The planning part of the Sanitary Facilities Fund established under Environment Article, §9-218, Annotated Code of Maryland, shall be available to the Department to finance planning for water and sewerage facilities including the preparation, amendments, and revisions of county plans. The Department is authorized to use funds appropriated in the program of the annual State operating budget, which provides for general local health services for this purpose. When so used, the proportion of State, federal, and local funds, respectively, shall be that specified for each subdivision's financing of minimum health services at basic matching rates. The planning for water and sewerage facilities to be financed in this manner may be financed jointly by, or under the joint authority of, the Department and any county or Baltimore City or the Washington Suburban Sanitary Commission. The funds to be so used shall appear in the local health department's budget for the fiscal year in which their use is anticipated. The percentage contribution may not be affected by any other State or federal funds received by the subdivision for the same planning unless the total grants exceed the actual cost of the plan, in which case the contribution shall be reduced accordingly.

#### Regulation .03 Submission of County Plans.

*COMAR 26.03.01.03*

A. The governing body of each county and Baltimore City shall develop and submit annual amendments or revisions to the county water and sewerage plan as required by Environment Article, §9-511—9-513, Annotated Code of Maryland. The steps listed below shall be followed in sequence:

  (1) Submit the plan in preliminary form, with all attachments, to the appropriate multi-county or regional comprehensive planning agency, the Department of State Planning, the Department of Natural Resources, and the Department of the Environment. The preliminary form shall be a rough draft of the entire plan and shall include maps in a complete presentation.

  (2) Receive and consider comments from the Department, which will act as the coordinator for comments from the agencies sent a preliminary plan for review according to §A(1), of this regulation.

  (3) A public hearing will be held.

  (4) The plan shall then be formally adopted.

  (5) After adoption, the plan will be prepared in final format as set forth in Regulation .04 of this chapter.

  (6) Four copies of the plan will be submitted in final form to the Department for review. One copy shall be forwarded to the Department of Natural Resources and one to the Department of State Planning.

  (7) The Department shall, within 6 months after submission, approve, disapprove, or approve in part the finally submitted county plan, its amendments or revisions. When disapproved in whole or part, the governing body of the county, within 6 months from the notification of disapproval, shall have the right to appeal the action of the Department to the Secretary of the Environment.

  (8) Following receipt of notification of approval of the county plan, amendments, or revisions, the county shall then have the plan, amendments or revisions reproduced and distributed in accordance with §B, of this regulation.

B. The counties and Baltimore City shall be the distributing agencies for all copies of the county plans or revisions. At least 50 copies of each should be printed to meet the required distribution. Copies are to be automatically distributed to the following agencies:

  (1) Four copies to the Department of the Environment;

  (2) Four copies to the Department of Natural Resources.

#### Regulation .04 Requirements Applicable to Adopted County Plans.

*COMAR 26.03.01.04*

A. All county plans, amendments, or revisions shall be prepared in conformance with this regulation. Each adopted plan shall be arranged with an introduction and a minimum of four chapters as outlined below.

B. Introduction:

  (1) A statement certifying that the plan has been officially adopted by the county governing body;

  (2) A statement certifying that the plan has been submitted to the Department and it meets the requirements of Regulation .02B of this chapter;

  (3) A statement certifying that sections of the plan covering engineering aspects of water and sewerage projects have been prepared and reviewed for adequacy by a registered professional engineer licensed in the State;

  (4) The letter of approval from the Department.

C. Chapter One. This chapter shall contain:

  (1) A statement of the goals of the county consistent with county comprehensive planning;

  (2) A brief discussion, with charts, of the organization of the county government as it relates to the management of water supply and sewerage facilities.

D. Chapter Two. Chapter two shall contain the general background information relevant to the water and sewerage planning. Information shall include the maps, charts, and tables listed below. When a county has previously developed alternative methods for presenting this data, the specific format required in the chapter may be waived by the Department.

  (1) Physical.

    (a) General maps showing aquifers, soil drainage characteristics, topography, ground water and surface water patterns.

    (b) A map or table showing water quality criteria in the county.

  (2) Population.

    (a) General maps showing present and projected population distribution and density.

    (b) Table No. 1, county population projections.

  (3) Land Use.

    (a) Maps showing existing land use, zoning, and the adopted comprehensive development plan for the county.

    (b) Table No. 2, reflecting existing and zoned land use in acres.

    (c) A map showing existing and proposed major public institutions, such as schools, hospitals, correctional facilities, government complexes; and a table showing the approximate populations of these institutions.

E. Chapter Three. Chapter three shall contain a description of existing, planned, and future requirements for water service areas including tables, maps, charts, graphs, descriptive information, and all other matter regarding these systems. It shall contain a discussion of ground and surface water resources within the county including the quality and potential quantity of these sources. Summaries of existing and projected water demands and existing sources of pollution or contamination relating to water supplies shall be stated or shown. The chapter shall contain a discussion of alternatives and the rationale used in determining the means of providing future water supplies. For every water service area, the following shall be discussed or shown: operating agency, rated and actual productions, type of treatment, location, operation and maintenance costs, and proposed means of financial improvements. For any proposed new water supply source, a summary of the environmental impact of its development shall be given. Efforts to reduce demands (i.e., metering, rate changes, plumbing codes) shall be outlined. Minimum requirements for tables and maps in this chapter are as follows:

  (1) Table No. 3, showing population projections and projected water supply demands and planned capacity by water service areas through the year 2000.

  (2) Inventories of water sources as follows:

    (a) An inventory, Table No. 4, of community system wells;

    (b) An inventory, Table No. 5, of impounded supplies;

    (c) An inventory of other surface water supplies showing initial and planned withdrawals (MGD).

  (3) An inventory, Table No. 6, of existing treatment facilities.

  (4) An inventory, Table No. 7, below, of problem areas such as inadequate portions of community systems (including fire flow inadequacies) and areas where individual systems are experiencing difficulties:

  (5) Immediate, 5 and 10 year priorities for water development, Table No. 8.

  (6) Maps as specified in §G of this regulation.

F. Chapter Four. Chapter four shall contain a description of the existing and planned community and multi-use sewerage systems, including tables, maps, charts, graphs, descriptive information and all other matters regarding these systems. Indicate locations of proposed points of waste discharges. It shall be shown how conformance of existing and programmed sewerage facilities meet or will meet the effluent limitations specified in COMAR 26.08.03.01 of the Department of the Environment. It shall contain a summary of each available point of discharge evaluation, specifically those parts pertaining to protected water uses. It shall discuss the rationale for selecting a planned alternative for any proposed treatment facility, pumping station, or interceptor. For every service area and community system, the following should be discussed: operating agency, design average and peak flows; whether combined or separate collection systems; level and type of treatment given; sludge disposal plans, condition of treatment and transmission facilities; operation and maintenance costs; and proposed means of financing improvements. Minimum requirements for tables and maps in this chapter shall be as follows:

  (1) Population projections and present and expected demands and capacities by sewerage service area, Table No. 9.

  (2) Inventory of existing sewage treatment plants, Table No. 10.

  (3) Inventory of problem areas, including inadequate portions of community systems and areas where individual systems are experiencing difficulty, Table No. 11.

  (4) When possible, identify by service area water quality problems due to storm drain outfall and to non-point sources, Table No. 12.

  (5) Immediate, 5 and 10 year priorities for sewerage systems development, Table No. 13.

  (6) Maps as outlined in §G of this regulation.

  (7) The county plan shall include an inventory of problem marinas and will include basic planning concepts for sanitary facilities at all marinas.

G. Technical Requirements.

  (1) The following physical format shall be required for the submission of county plans.

    (a) Textual materials, tables, charts, graphs, and other illustrations shall be prepared on 8-1/2 × 11-inch stock or any other size which can be folded for inclusion in the binder. Margins on the left-hand edge shall be punched for a multi-ringed 10 × 11-1/2-inch interchangeable stiff-backed binder with identification on the binder.

    (b) The Maryland Coordinate Grid System shall be used to determine place locations. The Maryland State Highway System maps use this system with lines spaced at intervals of 50,000 feet bearing due east and due north from the points of origin. Other maps can be used by superimposing a similar grid on any map of Maryland. Referenced to the same point of origin, it then becomes possible to find any place on the map if its coordinates are known. Two numbers define any place location on the map. The first number designates the distance in thousands of feet that the place lies east of the point of origin, and the second number, the distance in thousands of feet that the place lies north of the point of origin.

    (c) All projections shall be made for decade years except that for the first decade. The mid-period shall also be shown (e.g. 1970, 1975, 1980, 1990, 2000).

    (d) Two maps of the entire county to a scale of approximately 1 inch equal to 1 mile shall be included showing, in general, areas served or to be served with community facilities. One map shall be for sewerage facilities and the other water supply facilities. These maps shall be folded, inserted into separate pockets marked “water” and “sewerage” and placed into the multiple-ringed stiff-backed binder.

    (e) Two sets of detailed maps (one for water facilities and the other for sewerage facilities) of each portion of the county shall be prepared on a minimum scale of 1 inch equal to 2,000 feet and in sufficient number so to show actual areas served or to be served as set forth in these regulations. A minimum scale of "1 inch equals 3500 feet" is acceptable in those counties where existing detail mapping is complete or is under preparation. For those counties where detail maps have not been initiated, a scale of "1 inch equals 2000 feet" shall be the minimum requirement. Color coding on the maps is optional.

    (f) Amendments or revisions to the county plan shall be prepared so that the new or additional material may be inserted in the binder in the appropriate places to provide a continuously updated and current county comprehensive water and sewerage plan. Each sheet of the amendment or revision shall be dated to show when the change became effective.

    (g) Measurements as specified in this regulation shall be converted to their metric equivalence when applicable.

  (2) As minimum requirements, the water and sewerage maps in the county plan shall be delineated to show for each existing and proposed community and multi-use water supply and sewerage system the following data located by codes and symbols as specified in this regulation.

    (a) Delineate on the maps, existing or proposed and planned community and multi-use water and sewerage facilities, including wells, reservoirs, intakes, transmission and feeder mains, storage facilities, interceptor and truck sewers, pumping stations, force mains, treatment works, outfall sewers, and service areas. Show on the detailed maps sizes or capacities, or both, where appropriate.

    (b) Delineate on the maps areas served by community and multi-use water and sewerage systems which are either existing or are under construction. The actual bounds of areas served by these systems shall be clearly indicated. The areas so delineated in this category shall be as shown in Table 14 and shall be referred to as W-1 for water systems and S-1 for sewerage systems.

    (c) Delineate on the maps, areas to be served by extensions of existing community and multi-use water supply and sewerage systems which are in the final planning stages. The areas so shown in this category shall be as shown in Table 14 and shall be referred to as W-2 for water systems and S-2 for sewerage systems.

    (d) Delineate on the maps, areas where improvements to, or construction of, new community and multi-use water supply and sewerage systems will be given immediate priority. The areas so shown in this category shall be as shown in Table 14 and shall be referred to as W-3 for water systems and S-3 for sewerage systems.

    (e) Delineate on the maps areas where improvements to, or construction of, new community and multi-use water supply and sewerage systems will be programmed for the 3 to 5/6 year period. The areas so shown in this category shall be as shown in Table 14 and shall be referred to as W-4 for water systems and S-4 for sewerage systems.

    (f) Delineate on the maps those areas where improvements to, or construction of, new community and multi-use water supply and sewerage systems are programmed for inclusion within the 6/7 through 10-year period. The areas so shown in this category shall be as shown in Table 14 and shall be referred to as W-5 for water systems and S-5 for sewerage systems.

    (g) All other areas of the county should be shown as no planned service. The areas so shown in this category shall be as shown in Table 14 and shall be referred to as W-6 for water systems and S-6 for sewerage systems.

    (h) Other map symbols shall be as shown in Table 14.

#### Regulation .05 Individual Water Supply and Individual Sewerage Systems.

*COMAR 26.03.01.05*

The installation of individual water supply or individual sewerage systems shall be subject to the following requirements:

A. An individual water supply or individual sewerage system may not be permitted to be installed where an adequate community water or sewerage facility is available. If an existing community water or sewerage facility is inadequate or is not available, an interim individual water and sewerage system may be used as set forth in §B(1), (2), and (3), of this regulation.

B. Interim individual water supply and sewerage systems may be permitted to be installed in any portion of the county, except where otherwise prohibited, where community systems will be programmed for construction within the S-1-2, 3 and 4 and W-1-2, 3 and 4 service categories provided that:

  (1) The interim systems are adjudged by the local health department to be adequate, safe, and in compliance with pertinent State and local regulations, including minimum lot ownership as set forth in COMAR 26.04.03.02 and .03;

  (2) Permits for the interim systems shall bear a notice regarding the interim nature of the permit and stating that connection to a future community system shall be made within 1 year or less after the system becomes available;

  (3) If interim systems are used, provisions shall be made, whenever possible, to locate the systems so as to permit connection to the public facilities in a most economical and convenient manner.

C. Individual water supply or sewerage systems, not of an interim nature, shall be permitted to be installed in any portion of the county designated as S-5 and 6, and W-5 and 6 where community systems are not planned. The installations shall be governed by the regulations under COMAR 26.04.02 and 26.04.03 as minimum requirements.

#### Regulation .06 Flow Data.

*COMAR 26.03.01.06*

For each service area, flow data for all community and multi-use sewerage facilities will be presented according to either Table No. 15 for wastewater treatment plants or Table No. 15A for all principal collector sewers, interceptors, pumping stations, and associated force mains. Information presented previously in either Table No. 9 or Table No. 10 can be omitted from Table No. 15. In Table No. 15A, present data according to the flow pattern of existing sewerage system by starting with principal collector sewers and proceed to the treatment plant.

Table No. 3Projected Water Supply Demands and Planned Capacity
          
          
            Service Area
            Present 1975
            1980
            1990
            2000
          
          
            Population
            GPCD
            Capacity
            Population
            GPCD
            Capacity
            Population
            GPCD
            Capacity
            Population
            GPCD
            Capacity
          
        
        
          
            total
            served
            unserved
            (gals)
            demand
            planned
            total
            served
            unserved
            (gals)
            demand
            planned
            total
            served
            unserved
            (gals)
            demand
            planned
            total
            served
            unserved
            (gals)
            demand
            planned

——————

Table No. 4Inventory of Existing Community System Wells
          
          
            
            Well Nameor Number
            Aquifer
            CoordinateLocation
            DepthFeet
            DiameterInches
            Max. SafeYield
            PumpingCapacity
            WaterQuality
          
        
        
          
            Municipal (Public)
            
            
            
            
            
            
            
            
          
          
            Industrial
            
            
            
            
            
            
            
            
          
          
            Private Community/Institutional

——————

Table No. 5Inventory of Existing Impounded Supplies
          
          
            Owner
            CrestElevation(above sea level)
            SpillwayLength
            Total Length of Dam
            Height of Crest Above Stream Bed
            Flooded Area of Crest Elevation
            Length of Shore Line at Crest Elevation
            Water Overflowed Crest for First Time
            Capacity of Reservoir
            Safe Yield (MGD)
            Average Daily Withdrawal (MGD)
          
        
        
          
            Municipal (Public)
            
            
            
            
            
            
            
            
            
            
          
          
            Industrial
            
            
            
            
            
            
            
            
            
            
          
          
            Private Community/Institutional

——————

Table No. 6Inventory of Existing Water Treatment Facilities
          
          
            Owner
            Water Source
            Type Treatment
            Plant Coordinate Location
            Rated Plant Capacity (MGD)
            Average Production (MGD)
            Max Peak Flow(MGD)
            StorageCapacity(MGD)
            Planned Expansion MGD/Dates
            Method of Sludge Disposal
            Operating Agency
          
        
        
          
            Municipal (Public)
            
            
            
            
            
            
            
            
            
            
          
          
            Industrial
            
            
            
            
            
            
            
            
            
            
          
          
            Private Community*/Institutional

* If transfer to public ownership is recommended, indicate expected date.

——————

Table No. 8Immediate, 5 and 10 Year Priorities for Water Development
          
          
            
            Estimated Costs*
            Project StatusConstr. Start
          
          
            Fiscal YearandProject Number
            CountyPriorityAssigned
            CoordinateLocation
            Description
            Total
            Federaland/orState
            Local
            ImmediatePriorityProjects
            5 and 10 YearPeriod Projects
          
        
        
          
            ______Year

* Based on dollar values as of effective date of plan where applicable.

——————

Table No. 9Projected Sewerage Demands and Planned Capacity
          
          
            ServiceArea
            Present 1975
            1980
            1990
            2000
          
          
            Population
            GPCD
            Capacity
            Population
            GPCD
            Capacity
            Population
            GPCD
            Capacity
            Population
            GPCD
            Capacity
          
        
        
          
            total
            served
            unserved
            (gals)
            demand
            planned
            total
            served
            unserved
            (gals)
            demand
            planned
            total
            served
            unserved
            (gals)
            demand
            planned
            total
            served
            unserved
            (gals)
            demand
            planned

——————

Table No. 10Inventory of Existing Water Treatment Facilities
          
          
            Owner
            Type Treatment
            Plant Coordinate Location
            Occupied Acres
            Vacant Acres
            Point of Discharge*
            Max Site CapacitySecondary
            Max. Site Capacity (MGD) Advanced
            Existing (MGD) Capacity
            Flows (MGD)Average Peak
            Planned or Expected Abandonment Date of Interim MGD Date
            Operating Agency
          
        
        
          
            Municipal (Public)
            
            
            
            
            
            
            
            
            
            
            
          
          
            Industrial
            
            
            
            
            
            
            
            
            
            
            
          
          
            Private Community**/Institutional

** If transfer to public ownership is recommended, indicate expected date.

——————

Table No. 11Problem Areas Inventory —  Individual and Community
          
        
        
          
            
              Service Area
            
            
              ProblemDescription
            
            
              Location
            
            
              Population
            
            
              Acres
            
            
              Treatment Capacity
            
            
              Treatment Demand
            
            
              PlannedCorrectionDate if Known

——————

Table No. 12Water Quality Problem Due to Storm Drainage Outfalls and to Non-point Sources
          
        
        
          
            
              Service Area
            
            
              Problem Description
            
            
              Location
            
            
              Reach Affected

——————

Table No. 13Immediate 5 and 10 Year Priorities for Sewerage Development
          
        
        
          
            
            
            
            
            
            Costs**
            
            
            Projected Schedule***
          
          
            Fiscal Year and Project Number
            County PriorityAssigned
            Coordinate* Location
            Description Total
            PL 660 Eligibility
            Other Federal Local
            Preliminary Plans
            Financial Plans
            Start Construction
            Complete Construction
          
          
            _____Year
            
            
            
            
            
            
            
            
            
          
          
            _____Year

* Where applicable for both treatment facility and point of discharge location.

** Based on real dollar values.

*** Month and year—for the last 5 years the “Construction Schedule Column” and need not be filled in.

Table No. 14Water and Sewerage Map Symbols

Table No. 15Flow DataWastewater Treatment Plants
          
        
        
          
            Design Parameters
            
            Flow
            Development Occupancy Units (1)
          
          
            Name or Service Area
            Hydraulic (mgd)
            Organic(ppm)
            Avg. Day*(mgd)
            Max. Day& (Date**)
            Existing*
            Anticipated***BPI
            PWA
          
          
            
            BOD
            SS
            
            UC
            NUC
            
          
          
            Example:
            
            
            
            
            
            
            117 R
            7 R
            830 R
          
          
            Clear Water
            3.5
            200
            200
            3.0
            5.5(3-17-76)
            6,500
            7 C
            none
            none

* Per Effective Date of Plan (7-1-76)

** During Previous Fiscal Year

*** List Residential (R) Separately from Commercial (C) and Industrial(i)

BPI—Building Permits Issued Per Effective Date of Plan

UC—Building Permits Issued Per Effective Date of Plan for Units under Construction

NUC—Building Permits Issued Per Effective Date of Plan for Units not under Construction

PWA—Building Permits for Unexpired Public Works Agreements Per Effective Date of Plan

(1) — Includes Industrial, Commercial and Residential Units

——————

Table No. 15AFlow DataCollector Sewers, Inceptors, Pumping Stations and Force Mains
          
          
            Name or SewerType Designation
            Sewer
            CapabilityPumping Station
            Force Main
          
        
        
          
            
            Diam.(Inches)
            Flow,Avg.Day*
            mgdDesign
            Number of Pumps
            Capacity of Each Pump(mgd)
            Normal PumpingCapacity (mgd)
            Avg. Day Pumpage* (mgd)
            Max. DayPumpageand Mgd(date)**
            Diam. (inches)
            Design FLow (mgd)
          
          
            Example:Collector
            12
            0.5
            1.0
            
            
            
            
            
            
            
          
          
            Clear Branch Interceptor
            18
            3.5
            5.0
            
            
            
            
            
            
            
          
          
            Severn RunP.S. and
            
            
            
            2
            3.6
            3.6
            2.5
            3.0(3-1-76)
            
            
          
          
            F.M.
            
            
            
            
            
            
            
            
            24
            8.0
          
          
            Clear WaterSTP
            
            (See Table No. 15)

* Per Effective Date of Plan (7-1-76)

** During Previous Fiscal Year

#### Regulation .07 Compliance with Maryland Water Conservation Plumbing Fixtures Act (MWCPFA).

*COMAR 26.03.01.07*

A. Each county water and sewerage plan shall contain documentation that compliance with the MWCPFA, as codified in Article 56, §445, Annotated Code of Maryland, is being achieved.

B. The documentation in §A of this regulation shall include:

  (1) Designation of the county agency responsible for the enforcement of MWCPFA;

  (2) A summary of county programs to assure implementation of and compliance with MWCPFA, including a description of:

    (a) A procedure which assures compliance with MWCPFA before the issuance of a certificate of occupancy,

    (b) Local actions taken to assure compliance with the prohibition of the sale of non-water-conserving plumbing fixtures,

    (c) The local procedures used to ensure that agreements between a developer and a builder to assure compliance with MWCPFA are made part of the record plat process or a part of a county building, plumbing, or occupancy permit, or bill of sale.

C. If the county is not currently complying with the MWCPFA, then the county water and sewerage plan shall include a description of proposed changes to the local program which the county intends to implement to achieve compliance with MWCPFA.

#### Regulation .08 Financial Management of Public Sewerage Systems Required.

*COMAR 26.03.01.08*

A. Each county water and sewerage plan (“county plan”) may be approved only upon inclusion of a financial management plan which includes all publicly-owned community sewerage systems in the county.

B. Each financial management plan shall contain a:

  (1) Countywide organizational narrative which includes a brief countywide description of the financial roles and relationships of all public entities involved with providing sewerage service within the county.

  (2) Completed Schedule FS for each self-contained, publicly-owned community sewerage system. The content and format of Schedule FS will be specified by the Department. Each Schedule FS shall demonstrate that adequate fiscal resources are or will be available to support the satisfactory operation, maintenance, and repair of each system to meet existing and future needs.

C. Before issuance of a State permit for the construction of a new, proposed, self-contained, publicly-owned community sewerage system, the following requirements shall be satisfied:

  (1) The financial management plan described in §§A and B of this regulation has been adopted as part of the county plan and approved by the Department; and

  (2) The proposed system has been described through new narrative text and revised tables and maps in a county plan amendment or update adopted by the county governing body and approved by the Department.

D. Each county plan submitted after the effective date of these regulations, for fiscal purposes, shall treat each publicly-owned community sewerage system as a separate entity within the local operating agency budget.

E. Starting on the effective date of these regulations, each county plan update shall include the complete financial management plan specified in §§A and B, of this regulation. However, a county may not submit its initial financial management plan later than July 1, 1989, regardless of the due date of its next county plan update.

F. The instructions and definitions necessary for completing Schedule FS shall be sent to all county water and sewer plan contacts.

G. In addition to the completed Schedule FS, the Department, after review of subsequent county water and sewer plans, may require and the county shall provide the information listed below. This information shall be submitted only at the Department's request, and it should not be included as part of the county plan or Schedule FS:

  (1) An inventory of the plant and equipment;

  (2) Documentation that sewer service rates are sufficient to meet operation and maintenance costs;

  (3) A description of the customer billing procedures;

  (4) A description of the system's “bad debt” situation;

  (5) A description of any construction project or plan for expansion anticipated during the next 2 years, as well as the anticipated method of financing the project;

  (6) A description of the long-term plans for plant replacement or major renovation, as well as the anticipated method of financing the plans or projects;

  (7) A discussion of escrow accounts, existing or contemplated, for construction, maintenance, repair, operation, and emergencies;

  (8) The system's balance sheet as of the last day of the most recent fiscal year.

### Chapter 02 — Submissions of Plans for Approval and Record of Systems of Water Supply, Sewerage, and Storm Water

**Authority:** Environment Article, §§9-506 and 9-510, Annotated Code of Maryland

**Administrative History:** Effective date: January 1, 1964

**Administrative History:** Amended effective December 1, 1970

**Administrative History:** Regulations .01B—E, .07, and .08 repealed effective August 8, 1980 (7:16 Md. R. 1595)

**Administrative History:** Regulation .02C amended effective August 8, 1980 (7:16 Md. R. 1595)

**Administrative History:** Chapter recodified from COMAR 10.17.05 to COMAR 26.03.02

**Administrative History:** Regulations .01 amended effective July 25, 1988 (15:15 Md. R. 1813)

**Administrative History:** Regulation .02J adopted effective July 25, 1988 (15:15 Md. R. 1813)

**Administrative History:** Regulation .02J amended effective June 18, 2018 (45:12 Md. R. 618)

#### Regulation .01 Definitions.

*COMAR 26.03.02.01*

A. “Approving authority” means the Secretary of the Environment or his designee.

B. “Department” means the Department of the Environment or its designees.

C. “Financial management plan” means, for:

  (1) Publicly owned community sewerage systems, a portion of the county water and sewerage plan, as described in COMAR 26.03.01.08B, which demonstrates to the Department's satisfaction that adequate fiscal resources will be available to support the satisfactory operation and maintenance of each system in the county to meet existing and future needs.

  (2) Other sewerage systems or extensions, a package of information for each system, as specified in Regulation .02J of this chapter, which demonstrates to the Department's satisfaction that adequate fiscal resources will be available to support the satisfactory operation and maintenance of the system to meet existing and future needs.

D. “Maintenance expense” means those expenses for labor, materials, utilities, and other items necessary to preserve the facility for its designed service life. Equipment or tools under $200 should be included in this amount.

E. “Operation expense” means those expenses such as labor, utilities, supplies, contractual services, training, and insurance, necessary to operate the treatment plant during its designed service life so as to achieve the capacity and performance standards for which it was designed, constructed, and permitted.

F. “Schedule FS” means a financial document which demonstrates that adequate fiscal resources are or will be available to support the satisfactory operation, maintenance, and repair of each system to meet existing and future needs. The content and format of Schedule FS shall be specified by the Department.

G. “Sewage” means human and animal excretions, street wash, and all domestic and manufacturing waste. It may include, if collected and conveyed through one system of pipe lines and treated at one or the same treatment plant, liquid wastes such as rain water discharged from roofs, lawns, paved areas, etc., ground garbage, and manufacturing or industrial wastes.

H. “Sewerage system” means the channels by which sewage is collected and disposed of, together with the body of water into which it is directly discharged, and all structures and appurtenances made use of in its collection and preparation for discharge in satisfactory condition into the waters of the State, excepting only the plumbing system inside the individual buildings served For the purposes of this subtitle, any sewer, no matter what its length and size may be, shall be sufficient to constitute a sewerage system. It may include the system of pipe lines and appurtenances by which sewage is collected and disposed.

I. “Storm water or a storm drainage system” means a system of pipe lines, channels, and appurtenances for the collection, transporting, and disposal of water resulting from rainfall plus material foreign to rain water such as roof, lawn, and street wash, intercepted, loosened, and carried by the excess rain water in its course of runoff.

J. “Waters of the State” means that portion of the Atlantic Ocean and its estuaries within the State, the Chesapeake Bay and its estuaries, and all springs, ponds, streams, wells, and bodies of surface or ground water, whether natural or artificial, within the boundaries of this State or subject to its jurisdiction. It shall also include lakes, rivers, creeks, and other watercourses.

K. “Waterworks, water supply, and water supply system” means the sources and their surroundings from which water is supplied for drinking or domestic purposes, together with all structures, channels, and appurtenances by means of which it is prepared for use and delivered to consumers, excepting only the piping and fixtures inside the buildings served. It shall also include all pipe lines.

#### Regulation .02 General Requirements.

*COMAR 26.03.02.02*

A. Applications for Approval. The application for approval of plans shall be made by the proper municipal or county authorities, corporation, or person for whom the work is to be done, or their properly authorized engineers or agents. It shall consist of a letter briefly describing the project for which approval is requested. When applicable, evidence of approval by the Public Service Commission or by the Maryland Geological Survey shall be a requisite part of the application.

B. Engineer's Report.

  (1) A complete engineering report, if prepared or required, shall accompany or precede the receipt of plans and specifications for each new major sanitary project.

  (2) The report shall contain full information discussing any existing facility, the proposed or new facility, and include all pertinent data necessary to permit a clear and comprehensive review of the subject.

C. Submission of Plans and Specifications.

  (1) Plans and complete specifications for proposed work should be submitted for approval at least 30 days before action on them shall be expected, although action, by the State, may be taken before the expiration of that time. Design manuals, standard details, and standard specifications on file with and previously approved by the Department of the Environment will be construed to be applicable to future projects, when so designated, unless modified by supplementary and specific contract plans and specifications.

  (2) All reports, plans, and specifications for sanitary engineering projects shall be prepared by, signed by, and bear the seal of a registered professional engineer. Landscaping and any architectural feature of any building, pumping station, water filtration plant, sewage disposal plant, elevated water storage unit, bathhouse or recreation facility for a swimming pool may also be submitted, signed by and bear the seal of a registered architect. Plans relating to the subdivision of land and prepared for the purpose of filing record plats with clerks of the court in the various political subdivisions of the State shall bear the signature and seal of a registered land surveyor. Plans not conforming with the requirements of this subsection will not be accepted.

D. Kinds of Plans.

  (1) All plans shall be neatly and legibly drawn upon tracing cloth or acceptable paper so that copies may be obtained. Except where the originals are presented for preliminary judgment, they shall be kept by the party presenting the plans, and true copies, which may be white, blue, or black-line prints, offset prints, or photostats on a white background, shall be submitted to the Secretary of the Environment.

  (2) Plans will not be returned after submission unless revisions are necessary, or unless they have been presented for preliminary review only.

  (3) When revisions are necessary, the revisions shall be made on the original tracings and new prints submitted. Pencil, crayon, ink, typewritten, or other revisions, changes, or additions on prints, photostats, or other reproductions may not be acceptable. Revisions or additions may not be made to prints previously or currently submitted to the Secretary of the Environment.

  (4) Plans specifically prepared for each installation will be required.

E. Sizes of Plans. A specific size of plans is not mandatory. Drawings not exceeding 30 inches wide by 42 inches long are preferred. Drawings with overall dimensions of less than 8-1/2 × 11 inches will not be accepted.

F. General Plans--Scales.

  (1) General plans or key maps of water supply, sanitary, or storm drainage systems; showing the location of sources of water supply, transmission, and distribution mains; lateral, interception, and trunk sewers; water and sewage treatment works; and storm drains should preferably be to a scale not greater than 1 inch equals 40 feet, or less than 1 inch equals 200 feet. Established coordinate systems and U.S. Bench Marks data, if available, shall be given. Locality plans may have a scale as small as 1 inch equals 1 mile. An arrow designating the direction of north shall be shown.

  (2) Detailed and sectional plans may be drawn to any scale suitable for the purpose.

  (3) Architectural scales for general engineering drawings will not be accepted for review and approval.

G. Number of Plans. Unless otherwise requested, only one report, one drawing, or one set of drawings and one set of specifications shall be submitted for review and approval. If acceptable and approved, they will be retained in the files of the Secretary of the Environment, and an appropriate reference made to them in the written permit.

H. Title of Plans.

  (1) In the lower right-hand corner, or along the bottom border, of each separate drawing shall be placed a proper title containing the name of the county, municipality, company, institution, person or persons for whom it is made, the name of the locality to which it refers, a proper description for a full understanding of the nature of the drawing, and the scale, date, and name of the engineer, architect, or surveyor preparing it.

  (2) On every plan showing a locality or street layout, an arrow shall be placed, designating the direction of north. Plans should be so arranged, wherever practicable, that north is towards the top or to the left of the sheet.

I. As Constructed Plans. Upon completion of the work shown by plans originally approved by the Secretary of the Environment, and if material changes in the work developed during the construction operations, a revised set or a totally new set of plans showing all work, as constructed, shall be submitted to the Secretary of the Environment to replace the plans previously approved and to serve as a guide for all future work. If revised drawings are not necessary, a statement shall be supplied indicating all work was done in accordance with the original plans.

J. Adequate Financial Management Plans.

  (1) Before the Department may issue a permit for the construction of a publicly-owned community sewerage system, a financial management plan sufficient to ensure the dependable and safe operation of the system shall be adopted in the county water and sewerage plan (“the county plan”) and approved by the Department. The following requirements shall be satisfied:

    (a) For a new, proposed, self-contained, publicly-owned community sewerage system:

      (i) The proposed system shall be described through new narrative text and revised tables and maps in a county plan amendment or update, and this amendment or update shall be adopted by the county governing body and approved by the Department, and

      (ii) A Schedule FS and a countywide financial organizational narrative meeting the requirements of COMAR 26.03.01.08B for the new sewerage system shall be adopted within the county plan and approved by the Department;

    (b) For an extension to an existing publicly-owned community or multi-use sewerage system:

      (i) A completed Schedule FS for the system shall appear in the county plan and be approved by the Department,

      (ii) For the first year following the adoption of this regulation, instead of §J(1)(b)(i), of this regulation, the Department may accept a certification from the county or its attorney that the appropriate local governing body has the authority to collect revenues to cover sewerage system costs.

  (2) Before the Department may issue a permit for the construction of a new, self-contained, privately-owned community or multi-use sewerage system, or of an extension to an existing or self-contained, privately-owned community or multi-use sewerage system, the following requirements shall be satisfied:

    (a) The project shall be described in the county plan in the correct service area category designation and designated by the appropriate map symbol.

    (b) A Schedule FS shall be submitted to the Department for review and approval.

#### Regulation .03 Water Supply Systems.

*COMAR 26.03.02.03*

A. General Plan — Sources of Supply.

  (1) The general plan shall show the location of the source or sources of supply, the location of all reservoirs, wells, springs, purification plants, pumping stations, standpipes, elevated tanks, main delivery pipes to the distribution system, and any special structures or appurtenances. These various parts shall be designated either by proper descriptions opposite them or by suitable symbols in the key. The size, depth, and capacity of all reservoirs shall be shown, together with contours, where consisting of natural basins or formed by impounding streams. The elevations of high and low water in the reservoirs shall be indicated, and also the location and elevation of all intakes and valves.

  (2) In case a source of supply is a long distance from the main distribution system, a plan drawn to as small a scale as 2000 feet to the inch may be used to show the general location of the sources of supply and the main delivery pipe, together with a profile taken along the pipe line from the source to the point at which it joins the distribution system. In this case, however, the location of reservoirs, wells, purification plants, pumping stations, standpipes, and other structures shall still be shown on plans drawn to the larger scales, and all plans shall be of the same size, or multiples of that size so they can be conveniently folded.

B. Wells — Source of Supply. When deep wells are used as a source of water supply, at least two will be required to serve 100 or more family dwelling units or other water users totalling an equivalent use to that for 100 families. Each well shall have a daily yield equal to, or in excess of, 1 average day's water use by the properties served.

C. General Plan — Distribution System.

  (1) A general plan shall be submitted showing all existing or proposed streets within the limits of the municipality or area served by the system (a complete layout of all buildings shall be shown in the case of an institution); the boundary of the municipality or area, the surface elevation at intermediate high and low points within the municipality or area, and at all street intersections, unless the area is relatively level and not more than one pressure zone will be utilized. The location of all water mains, fire hydrants, valves and other fittings, together with sizes of pipe are also to be shown. The surface elevations should be placed in the upper right-hand angle of the street intersections, and where shown at other points should be opposite, either above or to the right of, their respective positions in the street. For relatively level communities or areas, contours, with intervals not exceeding 5 feet, may be substituted for numerical elevations. Proposed water mains shall be shown by heavy solid lines and shall have the sizes placed immediately above or to the left of the line designating the main, the size to be shown in each block, or between all connecting mains. Street names shall be placed outside of the street lines. For major improvements and additions, the concurrence or approval of the National Board of Fire Underwriters may be required.

  (2) Contemplated future extensions should be designated by dotted, dark or light lines. Any and all existing utilities shall be shown to the correct location and elevation as determined from the most authentic data available.

  (3) A key or legend shall be placed near the title describing the symbols used to designate the various features of the drawing.

D. Watersheds. The watersheds of storage reservoirs and stream intakes may be shown on plans with scales smaller than 1 inch equals 200 feet. The watershed area, in square miles, shall be designated.

E. Dams. If dams are to be constructed, complete detailed plans showing all features of the structures shall be submitted. This shall include the volume of water to be stored at spillway level, the area of the reservoir at spillway level, the tributary drainage area in square miles, and the arrangements for releasing or withdrawing water. Evidence of approval by the Maryland Geological Survey shall be submitted.

F. Wells, Springs, Pumping Stations, Purification Plants.

  (1) Plans shall be presented showing:

    (a) The location and dry-weather yield of all springs;

    (b) The location, depth, and size and yield of all wells;

    (c) All connecting piping, valves, metering devices, etc.; and

    (d) The layout of pumping stations, together with the arrangement and size of all suction pipes, force mains and valves.

  (2) Complete detailed plans of all purification plants shall be submitted, showing all special appurtenances, intakes, tanks, aerators, base exchange units, filters, character and depth of filter media therein, valves, blow-offs, metering devices, chemical application devices, clear-water basins, high and low water elevations of nearby streams, and all features connected with the plants. Plans, elevations, and sections of these parts shall be shown, as may be necessary to supply a complete understanding of the entire installation. When necessary to clarify the review of a project, hydraulic profiles shall be submitted.

G. Information to be Submitted. Information as to the existing or predicted water consumption, the present and future population to be served, the number of proposed services, and the calculations used in determining the sizes, rates of flow, detention periods, capacities, etc., of all treatment and storage units or pumping units shall be submitted in advance of or with the plans. For major works a tabulation may be used. For simple problems a statement may suffice.

H. Extensions.

  (1) Plans submitted for extensions to existing systems shall be drawn to sizes and scales as indicated for the general plans, shall show all details as planned for installation, and shall be accompanied by a general or partial plan of the system showing all details as planned for installation, unless the plans have been previously submitted to the Secretary of the Environment. In all cases, they shall show the connections of the proposed extensions to the existing system and enough of the latter from the best data available, to designate their relation to it. Plans for water main extensions will not be approved unless this requirement is met.

  (2) Plans for water main extensions shall be for a distance of at least 400 feet or one block in length unless a terminal main is involved.

  (3) Plans for the installation of a valve or fire hydrant, for lowering an existing water main, or for other similar minor alterations or additions need not be supplied for review or approval because they do not constitute a material change, and a permit for this work will not be issued.

#### Regulation .04 Sewerage Systems.

*COMAR 26.03.02.04*

A. Plans. Plans shall be drawn up substantially as indicated for general plans under Regulation .02 of this chapter. Those portions of the work intended for immediate construction shall be shown by heavy, solid lines, while contemplated future extensions should be designated by dotted, dark or light, lines. The plans shall show the complete drainage area for which it is intended ultimately to provide sewers. All existing utilities shall be shown to the correct location and elevation, as determined from the most authentic data available.

B. Profiles.

  (1) Accompanying each set of plans for proposed systems shall be:

    (a) Complete profiles of all sewer lines, showing the location of manholes;

    (b) The elevation of the sewer invert at each manhole;

    (c) The size and grade of the sewer between each manhole; and

    (d) The existing or proposed ground surface along the line of the sewer.

  (2) The location of each manhole shall be designated by a station number, the stationing to begin at the lower end of the sewer. The elevation of sewer inverts should be shown by a figure placed immediately below in a horizontal position, and the size and grade of the sewer, together with the character of the material of which the sewer is constructed, should be placed just above or below the invert line and parallel to it, unless the sewer is large, in which case the information may be written above the invert line.

  (3) Profiles should be drawn to scales not greater than 1 inch equals 40 feet horizontally, and 1 inch equals 4 feet vertically; and not less than 1 inch equals 200 feet horizontally, and 1 inch equals 10 feet vertically. A horizontal scale of 100 feet to the inch, and a vertical scale of 10 feet to the inch is preferable in most cases.

  (4) The location of existing properties and cellar depths or elevations shall be shown, particularly if plumbing in cellars is or may be involved.

  (5) The profiles of existing pipe lines and the locations, classifications, elevations, and sizes of all existing pipe lines, passing under or over the proposed lines, shall be shown according to the best information available.

C. Pumping Stations and Treatment Plants. In case a pumping station or treatment plant forms a portion of the system, drawings showing the general layout, all piping arrangements, control devices, provisions for ventilation, and all constructional details relating to the station or plant shall be submitted.

D. Detailed Plans. A plan showing details of sewer sections, except where prefabricated or molded pipe is used, of standard and special manholes, inlets, manhole covers, frames and steps, gratings, and any other special appurtenances or structures, shall be submitted with the general plan.

E. Information to be Submitted.

  (1) Information as to the existing or predicted amount of sewage, the physical and chemical characteristics of the sewage, the present and future population to be served by the sewers, the number of proposed house connections, and the calculations used in determining the sizes, rates of flow, detention periods, capacities, etc., of all treatment and pumping units shall be submitted with the plans or previous to the plans.

  (2) Calculations may be required to determine the amount of treatment plant effluent the receiving stream or body of water can readily assimilate without degrading them below an acceptable dissolved oxygen level and without jeopardizing shellfish or bathing areas.

F. Extensions.

  (1) Plans submitted for extensions to existing systems shall be drawn to sizes and scales as indicated for the general plans, and shall be accompanied by a general or partial plan of the system, showing all details as planned for construction, unless the plans shall have been previously submitted to the Secretary of the Environment. In all cases they shall show the connections of the proposed extensions to the existing system and enough of the latter to designate their relation to it. The area under immediate consideration and tributary to, and that which at some future time may become tributary to, and sewer extensions for which plans are presented shall be shown. Proper and adequate data giving the basis upon which the extensions have been designed shall be submitted with the plans. Extensions of sewer lines are to be made only in conformity with a general or long-range plan in order to properly provide for future needs.

  (2) Plans for sanitary sewer extensions or for storm drain extensions shall be for a distance of at least 400 feet or one block in length unless a terminal section is involved.

#### Regulation .05 Storm Drains.

*COMAR 26.03.02.05*

A. Plans, profiles, and details for storm drains may be prepared on separate drawings or on the same drawings used for sanitary sewers.

B. All calculations leading to the locations of inlets and the sizes and slopes of storm drains shall be submitted with the plans or previous to the plans. This is to include:

  (1) The intensity of rainfall to be considered;

  (2) Its frequency of occurrence;

  (3) The coefficients of runoff;

  (4) The inlet time;

  (5) The summation of calculated flows at various progressive distances along the drains;

  (6) The spacing and types of inlets;

  (7) The hydraulic calculations leading to the selection of pipe sizes and slopes; and

  (8) Details of manholes, inlets, headwalls, and appurtenances.

#### Regulation .06 Purification of Water and the Treatment of Sewerage.

*COMAR 26.03.02.06*

The Secretary of the Environment has no hard and fast rules relating to the purification of water supplies, nor has he deemed it wise to establish written standards of purity for streams or other bodies of water into which sewage shall discharge. Conditions are very different in various sections of the State, and also even in neighboring districts. Each water supply and each sewerage system presents a separate problem which shall be solved in a satisfactory manner to conform with the surrounding conditions.

### Chapter 03 — Development of County Comprehensive Solid Waste Management Plans

**Authority:** Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland

**Administrative History:** Effective date: January 1, 1971

**Administrative History:** Regulations .01—.05 repealed and new Regulations .01—.05 adopted effective November 4, 1985 (12:22 Md. R. 2104)

**Administrative History:** Chapter recodified from COMAR 10.17.08 to COMAR 26.03.03

**Administrative History:** Regulation .05C, E, F amended effective June 18, 2018 (45:12 Md. R. 618)

#### Regulation .01 Definitions.

*COMAR 26.03.03.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “County” means any of the 23 Maryland counties or Baltimore City.

  (2) County Plan.

    (a) “County plan” means a comprehensive plan for adequately providing throughout the county (including all towns, municipal corporations, and sanitary districts) the following facilities and services by public or private ownership:

      (i) Solid waste disposal systems;

      (ii) Solid waste acceptance facilities; and

      (iii) Systematic collection and disposal of solid waste, including litter.

    (b) “County plan” includes all revisions to the plan.

  (3) “Department” means the Department of the Environment.

  (4) “Governing body” means the Board of County Commissioners, or the County Executive and Council, or the Mayor and City Council of Baltimore.

  (5) “Litter” means any waste materials, refuse, garbage, trash, debris, dead animals, or other discarded material.

  (6) “Refuse” means any solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, or agricultural operations, or from community activities, which:

    (a) Is discarded, or is being accumulated, stored, or physically, chemically, or biologically treated before being discarded; or

    (b) Has served its original intended use and sometimes is discarded; or

    (c) Is a manufacturing or mining by-product and sometimes is discarded.

  (7) “Revision” means either an adopted amendment to, or a periodic update of, a county plan.

  (8) “Solid waste” means any garbage, refuse, sludge, or liquid from industrial, commercial, mining, or agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage or in irrigation return flows.

  (9) “Solid waste acceptance facility” means any sanitary landfill, incinerator, transfer station or plant, whose primary purpose is to dispose of, treat, or process solid waste.

  (10) Solid Waste Disposal System.

    (a) “Solid waste disposal system” means any publicly or privately owned system that:

      (i) Provides a scheduled or systematic collection of solid waste;

      (ii) Transports the solid waste to a solid waste acceptance facility; and

      (iii) Treats or otherwise disposes of the solid waste at the solid waste acceptance facility.

    (b) A solid waste disposal system includes each solid waste acceptance facility that is used in connection with it.

  (11) “Solid waste management” means the systematic administration of activities which provide for the collection, source separation, storage, transportation, transfer, processing, treatment, re-use, or disposal of solid waste.

#### Regulation .02 General Provisions.

*COMAR 26.03.03.02*

A. Each county shall maintain a current, comprehensive, solid waste plan which covers at least the succeeding 10-year period. Each plan shall be prepared in accordance with these regulations, and shall be arranged with an introduction and five chapters as set forth in Regulation .03 of this chapter.

B. Each county plan shall include all or part of the subsidiary plans of the towns, municipal corporations, sanitary districts, privately owned facilities, and local, State and federal agencies having existing, planned, or programmed development within the county to the extent that these inclusions shall promote the public health, safety, and welfare. These subsidiary plans may be incorporated by reference into the county plan.

C. The Department may require the installation of a solid waste disposal system, if deemed necessary, after considering the factors listed in Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland. The Department may permit the establishment of a solid waste acceptance facility without a collection and transportation system if a solid waste disposal system is either not available or not required to be installed in the area.

#### Regulation .03 Plan Content.

*COMAR 26.03.03.03*

A. The introduction shall contain:

  (1) A statement certifying that the plan has been prepared in accordance with these regulations and that it has been officially adopted by the governing body of the county; and

  (2) The letter of approval from the Department.

B. Chapter One shall contain a:

  (1) Statement of the county's goals regarding solid waste management, the objectives and policies necessary to achieve these goals, and a discussion of the conformance of these objectives and policies with those of State, regional, and local comprehensive land use plans and programs;

  (2) Brief discussion, with charts, of the structure of the county government as it relates to solid waste management; and

  (3) Brief discussion of State, federal and local agencies, laws, and regulations which affect the planning, establishment, and operation by the county of solid waste disposal systems.

C. Chapter Two shall contain a:

  (1) Table which shows the county's present and projected population (if more than one set of projections is shown, the set upon which the plan is based shall be noted);

  (2) Map which shows the location of municipalities and federal facilities within the county;

  (3) Discussion of current county zoning requirements as they relate to solid waste management activities; and

  (4) Discussion of the current status of the county comprehensive land-use plan, including the date that the plan was adopted and last updated.

D. Chapter Three shall contain:

  (1) A table that shows the existing and projected, for at least the succeeding 10-year period, annual generation (in tons, cubic yards, or gallons, as appropriate) of:

    (a) Residential (household, domestic) wastes;

    (b) Commercial wastes;

    (c) Industrial (nonhazardous) solids, liquids, and sludges;

    (d) Institutional (schools, hospitals, government buildings) waste;

    (e) Land clearing and demolition debris (rubble);

    (f) Controlled hazardous substances (CHS);

    (g) Dead animals;

    (h) Bulky or special wastes (automobiles, large appliances, etc.);

    (i) Vehicle tires;

    (j) Wastewater treatment plant sludges;

    (k) Septage; and

    (l) Other wastes (water treatment plant sludges, residues collected by a pollution control device, agricultural wastes, mining wastes, litter, street sweepings, recreational wastes, etc.) unless they are generated in insignificant quantities. However, the Department may require the county to substantiate any omission.

  (2) A discussion of the bases for the data presented in the table required by §D(1) of this regulation.

  (3) A discussion of the types and quantities of solid waste, if significant, which are entering or leaving the county for processing, recovery, or disposal.

  (4) A description of existing solid waste collection systems, including service areas.

  (5) Information concerning each existing public or private solid waste acceptance facility (incinerators, transfer stations, major composting sites, sanitary and rubble landfills, dumps, major resource recovery facilities, CHS facilities, injection wells, and industrial waste liquid holding impoundments) including:

    (a) Its location on a map;

    (b) Its Maryland grid coordinates;

    (c) Its size in acres;

    (d) The types and quantities of solid wastes accepted;

    (e) Ownership;

    (f) Permit status; and

    (g) Anticipated years of service life remaining.

E. Chapter Four.

  (1) Chapter four shall contain an assessment (using a narrative description, maps, charts, and graphs as appropriate) of the county's needs to alter, extend, modify, or add to existing solid waste disposal systems during the next 10 years.

  (2) The assessment above shall use, when appropriate, the background information contained in chapters one, two, and three.

  (3) The assessment shall consider the constraints imposed upon the establishment of solid waste acceptance facilities by:

    (a) Topography;

    (b) Soil types and their characteristics;

    (c) Geologic conditions;

    (d) Location;

    (e) Use and depth of aquifers;

    (f) Location of wetlands;

    (g) Location of surface water sources and their flood plains and watersheds;

    (h) Existing water quality conditions;

    (i) Incompatible land use;

    (j) Planned long-term growth patterns;

    (k) Federal, State and local laws and areas of critical State concern (as designated by the Department of State Planning).

  (4) The assessment shall evaluate:

    (a) The use of source separation and source reduction programs to reduce the quantities of solid wastes which shall be collected for disposal;

    (b) Resource recovery options to reduce land disposal capacity needs;

    (c) Consumer education programs, and cooperation with appropriate suppliers for the purchase of recycled products to encourage, and help create a market for, resource recovery and source separation programs;

    (d) The need for disposal capacity for asbestos;

    (e) Programs and procedures needed to respond to the unplanned (emergency) spillage or leaking of hazardous wastes within the county; and

    (f) Whether existing local master plans and zoning regulations provide for the appropriate siting, operation, or both, of solid waste management systems or facilities.

F. Chapter Five.

  (1) Chapter five shall contain the county's plan of action with respect to all types of solid waste and all phases of solid waste management.

  (2) The plan of action in §F(1), of this regulation, shall cover at least the succeeding 10-year period and, at a minimum, shall:

    (a) Discuss the solid waste disposal systems and solid waste acceptance facilities, both public and private, which will be in use during the planning period, including proposed systems and facilities;

    (b) Provide a mechanism for managing each of the waste streams identified in §D(1) of this regulation;

    (c) Demonstrate, through tables, charts and graphs, that the sizing, staging, and capacity of all systems and facilities in §F(2)(a) and (b), of this regulation, will be adequate for the county's needs during the planning period;

    (d) Establish schedules for placing new public or private solid waste disposal systems or solid waste acceptance facilities into operation, including a description of necessary actions and their timing, to bring the county's solid waste disposal systems into compliance with the mandates of pertinent federal and State laws, and any permits or orders issued under these laws;

    (e) Describe provisions and methods for financing existing and proposed solid waste disposal systems, including planning and implementation;

    (f) Include a projected closure date for each public solid waste acceptance facility which is scheduled to cease operations during the planning period, the projected use of each closed site, and the relationship of that use to the county's comprehensive land use plan; and

    (g) Discuss changes in programs, plans, regulations, and procedures as a result of the assessment conducted under §E, of this regulation.

#### Regulation .04 Technical Requirements Applicable to County Plans.

*COMAR 26.03.03.04*

A. Maps in the county plans shall be of sufficient scale and clarity to clearly show the required information.

B. Projections in the county plans shall be given for at least the succeeding 10-year period at intervals of not more than 5 years.

#### Regulation .05 Plan Revisions.

*COMAR 26.03.03.05*

A. Except as provided in §B, of this regulation, each county plan shall be:

  (1) Revised if deemed necessary by the Department;

  (2) Reviewed in its entirety at the interval specified by Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland; and

  (3) Revised to include the installation or extension of either a solid waste acceptance facility, or solid waste disposal system, before the issuance of a permit by the Department under Environment Article, Title 9, Subtitle 2, Annotated Code of Maryland.

B. Exceptions. A revision for the sole purpose of including a private facility is not necessary if the:

  (1) Facility accepts only wastes generated by the owner's operations;

  (2) Facility is in general conformance with the management mechanism described in Regulation .03F(2)(b) of this chapter; and

  (3) Information listed in Regulation .03D(5), of this chapter, is provided for the facility when the county plan is reviewed and revised in accordance with §A(2), of this regulation.

C. Revisions pertaining to county plans shall be adopted and submitted in accordance with the following process:

  (1) The county shall solicit input concerning the proposed revision from each of the entities listed in Regulation .02B, of this chapter, and from any other entity likely to be affected by the proposed revision.

  (2) The county shall provide a reasonable opportunity for a public hearing concerning the proposed revision to the county plan. Prince George's County and Montgomery County are required by Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland, to conduct a public hearing. The Department, the public, and the entities listed in Regulation .02B, of this chapter, shall receive prior notice of a hearing.

  (3) Following the public hearing or public meeting, or a decision not to conduct a public hearing or public meeting, the governing body of the county shall adopt the revision and submit it to the Department. This submittal shall be accompanied by a discussion of substantive issues raised at the public hearing or public meeting, and how they were resolved.

D. The Department shall distribute copies of the adopted revision to the Departments of Natural Resources, State Planning, and Agriculture, for review and comment.

E. The Department shall, within 60 days after receiving the submission, approve, disapprove, or approve in part, the adopted revision unless the review period has been extended under Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland. If the submittal is disapproved in whole, or in part, the Department shall, in a written notice to the county, clearly define the inadequacies of the submittal, and provide a suggested outline of the tasks needed to improve the submittal so that it can be approved by the Department.

F. The governing body shall, for 6 months following the disapproval, have the right to appeal the Department's action by sending a written notice of appeal to the Department.

### Chapter 04 — Distribution of Funds for Sanitary Sewerage Facilities to Abate Health Hazards

**Authority:** Environment Article, §9-218, Annotated Code of Maryland

**Administrative History:** Effective date: July 10, 1974 (1:10 Md. R. 73)

**Administrative History:** Chapter recodified from COMAR 10.17.09 to COMAR 26.03.04

#### Regulation .01 Scope.

*COMAR 26.03.04.01*

The following regulations provide procedures for the application, review, and approval of State grants awarded under section 5.2(a) of Chapter 55 for the purpose of assisting the construction, extension, and improvement of existing public sanitary sewer systems and, where necessary, for the construction of temporary sewerage treatment plants and related facilities to abate or prevent health hazards arising out of the failure or inadequacy of individual sewerage systems.

#### Regulation .02 Definitions.

*COMAR 26.03.04.02*

A. “Applicant” means any bona fide governmental agency or incorporated nonprofit organization or association responsible for construction of sewerage facilities.

B. “Construction” means pertinent design and engineering services and the physical installation of any new, or extension of, an existing public sewer system or of any temporary sewage treatment facility.

C. “Extension” means adding sewage collecting facilities and equipment to an existing system.

D. “Improvement” means the installation of adequate means for collecting and treating sewage to abate or prevent public health hazards.

E. “Individual sewerage system” means a single system of sewers and piping, treatment tanks or other facilities serving only a single lot and disposing of sewage or individual wastes of a liquid nature, in whole or in part, on or in the soil of the property into any waters of this State, or by other methods.

F. “Public sanitary sewer system” means any system serving two or more individual lots for the collection and disposal of sewage, including various devices for the treatment of the sewage.

G. “Temporary sewage treatment plant” means any facility constructed to treat sewage before discharge into a stream or onto the ground surface or into the soil, which is to be abandoned when a permanent system is declared available by the Department of the Environment.

#### Regulation .03 General Provisions.

*COMAR 26.03.04.03*

A. These regulations apply to projects which are eligible for State grants under section 5.2(a) of the “Water Quality Loan of 1973”.

B. Applications for State grants shall contain a statement by the applicant that potential sources of federal funding have been reviewed and are not available or are insufficient for the construction project.

C. Grant funds may be made available for the construction of temporary sewage treatment plants and related facilities to abate or prevent health hazards arising out of the failure or inadequacy of individual sewerage systems existing as of April 26, 1973.

D. The health officer of the county or Baltimore City in which the project is situated shall certify to the Secretary of the Environment, or his designee, concerning the inadequacy of the individual sewerage system, its effect on the public health, and that the system existed before April 26, 1973.

E. The need for the construction, extension, or improvement shall be included as an approved sewerage service area in the county water and sewerage plan adopted by the county governing body pursuant to Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland. As a prerequisite to eligibility for a grant, each county shall submit an annual inventory, as part of the county water and sewerage plan, of specific locations where failing or inadequate systems occur, and proposed solutions.

F. Any project on which a State grant is requested shall comply with all applicable federal and State requirements.

G. A State grant may not exceed 87-1/2 percent of the cost of the project except that in the case of a project to be operated by the State owned institution or facility, the State grant offer may equal the total cost of the project.

H. More than $2,500,000 may not be granted for projects in any one political subdivision.

#### Regulation .04 Application Requirements.

*COMAR 26.03.04.04*

Applications shall be made in letter and report form to the Water Management Administration of the Department of the Environment. The application shall include:

A. A statement that federal funds are not available or are insufficient for the construction work, and what sources of funds were investigated;

B. A detailed narrative of the need for the project, including a discussion of alternative solutions investigated, if any, and why the proposed solution was selected;

C. Evidence from the deputy state health officer for the county in which the proposed construction will be situated of the public health need;

D. Fiscal information submitted in a manner prescribed by the Secretary of the Environment, including the following:

  (1) A schedule of construction costs;

  (2) Estimated user charges including amortization of capital and financing costs;

  (3) A brief explanation of the need for State grant funds to assist in financing the project;

E. Preliminary plan of sewers needed with houses and buildings shown and maps delineating the service area of the project, identifying:

  (1) The health hazard areas;

  (2) Undeveloped areas;

  (3) Developed areas not having existing or potential health hazards, and a tabulation identifying the proportion (percent of flow) of the project to be used for relieving health hazards;

F. Population to be served and anticipated sewage flow;

G. Total bonded indebtedness of the area to be served or other information which will indicate the financial burden for county and municipal services of the properties to be served by the proposed sewers;

H. Total assessed value of properties to be served;

I. Any other data deemed of value for evaluation of the need for State grant funds;

J. Priority list of projects where two or more projects are involved.

#### Regulation .05 Review and Evaluation.

*COMAR 26.03.04.05*

A. Applications for grants under section 5.2(a) of Chapter 55 shall be reviewed by the Water Management Administration. The review shall include the following:

  (1) An evaluation to determine that:

    (a) The project is ineligible for a federal grant; or

    (b) A timely and sufficient federal grant is not available.

  (2) The Secretary shall submit a copy of the grant application and supporting material to the A-95 clearinghouse for review and comment.

  (3) A determination of the amount of grant funds necessary to permit the project to proceed. These funds may not exceed 87-1/2 percent of the eligible construction cost.

  (4) A recommendation to the Secretary of the Environment which shall indicate a course of action to be taken.

B. The Secretary shall:

  (1) Approve the application and send a letter of recommendation to the Board of Public Works for approval of State grant funds for the project;

  (2) Reject the application either because it is not suitable under the “Water Quality Loan of 1973” or does not have high enough priority to qualify under section 5.2(a); or

  (3) Cause the return of the application with a request for additional information required by him.

C. When the State grant is approved by the Board of Public Works, the Secretary shall give notification to the applicant that preparation of contract plans and specifications may proceed for review by his staff and the federal agency, if any, before issuing a construction permit required by Environment Article, §9-204, Annotated Code of Maryland.

#### Regulation .06 Severability.

*COMAR 26.03.04.06*

If any section or provision of these regulations is declared unconstitutional or void by any court of competent jurisdiction, or the applicability thereof to any person or circumstances is held invalid, the constitutionality or validity of the remainder of the regulations and the applicability thereof to other persons and circumstances is not affected thereby, and to this end, the sections and provisions of these regulations are declared to be severable.

### Chapter 05 — Innovative and Alternative On-Site Sewage Disposal System Grant Program

**Authority:** Environment Article, §§9-1401—9-1406, Annotated Code of Maryland

**Administrative History:** Effective date: December 2, 1985 (12:24 Md. R. 2348)

**Administrative History:** Chapter recodified from COMAR 10.17.16 to COMAR 26.03.05

#### Regulation .01 Purposes and Scope.

*COMAR 26.03.05.01*

A. The purpose of this program is to identify additional types of on-site sewage disposal systems that can be used in Maryland. The Department is authorized to make grants available to political subdivisions for the purpose of constructing innovative and alternative on-site sewage disposal systems.

B. The subdivisions shall use the State grants to provide grants to owners of improved properties with failed conventional systems and owners of previously recorded land that has failed a soil percolation test.

C. Grants shall be used only for installing experimental systems using Department approved innovative and alternative system design criteria.

D. This chapter establishes eligibility criteria for participation by local political subdivisions and property owners in the program.

#### Regulation .02 Definitions.

*COMAR 26.03.05.02*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Department” means the Department of the Environment.

  (2) “Includes or including” means includes or including by way of illustration and not by way of limitation.

  (3) “Innovative and alternative on-site sewage disposal system” means any new, experimental, or non-conventional technology that is added to or used in place of a conventional septic or other on-site sewage system.

  (4) “Program” means the innovative and alternative on-site sewage disposal system grant program.

#### Regulation .03 General Provisions.

*COMAR 26.03.05.03*

A. This program may not be applied to the development of an unimproved parcel of land that is proposed to be subdivided into building lots.

B. The Department shall manage and supervise the program and make grant available to political subdivisions under conditions listed in Regulation .04 of this chapter.

C. A project for which State financial assistance is granted shall comply with all applicable State laws and regulations governing the safe and adequate disposal of sewage.

D. State financial assistance may not provide more than $10,000 or 50 percent of the anticipated construction costs of the project, whichever is less.

E. The Department shall request comment from the Department of State Planning or any community planning agency regarding demographics, land use, and fiscal impact or any other pertinent information regarding program projects.

#### Regulation .04 Political Subdivision Eligibility.

*COMAR 26.03.05.04*

A. To be eligible for State funds, a political subdivision shall:

  (1) Have local funding and manpower resources available to establish and maintain local innovative and alternative on-site sewage disposal system programs including the ability to:

    (a) Collect data;

    (b) Prepare technical reports; and

    (c) Inspect the operation and performance of the systems installed.

  (2) Submit an agreement to be signed with the Department as outlined in Regulation .06 of this chapter, and their innovative and alternative program plan within 3 months of their notification by the Department of the availability of program funds. The program plan and agreement shall detail the role of the local county health department in the innovative and alternative program.

  (3) Have known hydrogeological problems, such as permanently high or seasonally high water table conditions, shallow soils, or slowly permeable soils, which can be addressed by innovative and alternative sewage disposal systems.

  (4) Submit a final eligibility and priority list of applicants to the Department for review and approval as outlined in Regulation .06 of this chapter within 1 year of the execution of the Department agreement with the political subdivision.

B. Priority for allocating funds to eligible political subdivisions shall be given to those subdivisions whose collective innovative and alternative program plans offer the best opportunity to satisfy the purpose of the program, as defined in Regulation .01A, of this chapter, on a Statewide basis.

C. Funds not dispensed to applicants by political subdivisions within 6 months of their receipt shall be returned to the Department for reallocation.

#### Regulation .05 Applicant Eligibility.

*COMAR 26.03.05.05*

A. To be eligible for State funds from a political subdivision under the program an applicant shall:

  (1) Own property in this State that is included in the county master water and sewer plan as an area where individual on-site water and sewer systems may be used that:

    (a) Has an existing failed septic system, or

    (b) Is unimproved, was platted before 1972, and has failed percolation testing requirements;

  (2) Have made a good faith effort to obtain approval of, or to use a conventional septic system;

  (3) Agree to conditions of the experiment as outlined in Regulation .07 of this chapter; and

  (4) Be limited to one grant to serve one homesite to:

    (a) Upgrade an existing system;

    (b) Abate an existing pollution or public health problem related to sewage disposal; or

    (c) Improve one unimproved site with a new home and innovative and alternative on-site sewage disposal system.

B. Priority for program participation shall be given to applicants who have:

  (1) An existing failed on-site sewage disposal system which cannot be repaired using conventional methods;

  (2) An existing pollution or public health problem related to sewage disposal; and

  (3) Property which offers a significant opportunity for providing useful data to the experimental effort.

#### Regulation .06 Department Agreements with Political Subdivisions.

*COMAR 26.03.05.06*

Political subdivisions receiving grants under this program are required to enter into an agreement with the Department. This agreement shall provide for:

A. The political subdivision to commit adequate resources for establishing a local innovative and alternative on-site sewage disposal system program to be conducted in accordance with requirements established by the Department and including:

  (1) Applicant screening and site evaluations;

  (2) Input to and review of system design;

  (3) System inspection and monitoring;

  (4) Technical reporting on system performance in accordance with requirements established by the Department; and

  (5) Review by the local planning agency for relation to land use or other pertinent information.

B. The role the local county health departments will serve in the program including a description of their participation in:

  (1) Applicant screening;

  (2) Site evaluation;

  (3) Review of system design; and

  (4) Monitoring and reporting.

C. A selection process for choosing projects to be funded when the number of eligible, priority applicants exceeds available funding levels. With the concurrence of the Department, State grant participation may be established at less than 50 percent of the project costs for any individual project.

D. The political subdivision to screen and list applications for project eligibility and priority ranking in accordance with requirements in this chapter. The screening process shall include:

  (1) A site evaluation and determination of the nature of the project and its suitability to receive grant assistance including:

    (a) The applicant's name;

    (b) A plat description of site to be served, including size, property boundaries, and location;

    (c) A statement as to whether the property is improved or unimproved;

    (d) The number of bedrooms in the house;

    (e) The estimated sewage flow;

    (f) Site characteristics including slope, soil data, surface and subsurface drainage, vegetation and well location; and

    (g) Relation of the project to the local comprehensive plan and relation to other State or local programs for management of development, including the Chesapeake Bay Critical Areas Program and Agricultural Land Preservation Program;

  (2) Preparation of a site location map or maps which identify the location of the eligible sites in relation to the nearest roads and topographical features; and

  (3) Prioritization of eligible applicants.

E. The political subdivision to conduct in-depth site evaluations for each site meeting eligibility and priority requirements to ascertain ability of the site to support an innovative and alternative system. Site evaluation shall be conducted in accordance with Department requirements and include description or assessment of the following site characteristics:

  (1) Soil depth to ground water or bedrock, or both;

  (2) Soil profiles;

  (3) Soil permeability;

  (4) Extent of tree cover; and

  (5) Any other site characteristics which may affect the performance of innovative and alternative sewage disposal systems considered applicable for the site.

F. The political subdivision to make recommendations for each site evaluated, including the type of innovative and alternative sewage disposal system best suited to the site, and a relisting of eligible and priority applicants given in-depth evaluation findings. This listing shall be submitted in accordance with the timetable outlined in Regulation .04 of this chapter.

G. The Department to approve of political subdivisions' screening listing and in-depth evaluation results before State grant awards to political subdivisions. The Department's approval process shall include:

  (1) Review of screening, prioritization, and site evaluation procedures and results;

  (2) Consideration of the ability of available technologies to meet site constraints;

  (3) Consideration of the potential of the site to support feasible and economical monitoring systems and provide useful experimental data; and

  (4) Consideration of comments received from the Department's submittal of the final priority listing of eligible projects and the site location map or maps of the eligible sites to the State Clearinghouse for intergovernmental review in accordance with the process described in COMAR 16.02.01.

H. The political subdivision to make progress reports to the Department on the administration of the local programs, including status reports on the performance of funded projects.

#### Regulation .07 Political Subdivision Agreements with Applicants.

*COMAR 26.03.05.07*

A. Before Department and political subdivision approval of funding for innovative and alternative on-site sewage disposal systems, an agreement shall be signed by the applicant, political subdivision, and the Department which:

  (1) Identifies project elements and fixes their cost based upon a fair assessment of project installation costs, and establishes that the amount of State grant participation may not exceed 50 percent of the anticipated total project cost.

  (2) Establishes financial responsibility of homeowners for:

    (a) Costs incurred in installation above the fixed amount; and

    (b) All operating and maintenance costs.

  (3) Limits the State's share of the project installation cost to $10,000 or less.

  (4) Establishes applicant repayment requirements for the full amount of funds provided under this agreement if, for reasons of neglect, the innovative and alternative system is not adequately maintained or is damaged beyond repair.

  (5) Establishes the applicant's financial responsibility for system modification which may be required by the Department or the political subdivision when failure of the system to operate satisfactorily poses a threat to the public health, safety, or comfort. In these cases, necessary system modifications shall be in accordance with the requirements established by the Department or the local health department. System modifications may include requirements for installing holding tanks and regular pumping and hauling of sewage wastes from the holding tanks.

  (6) Establishes salvage rights of the State upon default of the applicant.

  (7) Establishes access for the political subdivision and the Department to enter the applicant's land in order to make periodic inspection and to monitor the system for at least 2 years from initiation of system use or for the duration of the project.

  (8) Requires installation by the applicant of either a water meter or cycle counter (for effluent pumping systems), which shall be monitored.

  (9) Acknowledges that the proposed innovative and alternative sewage system is experimental and that the applicant's participation is voluntary.

  (10) Acknowledges that the political subdivision, the Department and any of their agents or employees do not, either officially or individually, underwrite the operation of any innovative and alternative system approved under this program or incur any liability to the applicant if the innovative and alternative system fails.

  (11) Requires that the applicant assure continued, efficient, and effective operation of the system.

  (12) Requires the terms of this agreement to run with the land and bind the applicant, his heirs, successors or assigns, and that this agreement shall be recorded in the land records of the political subdivision where the property is located.

  (13) Provides for this agreement to be voided at the discretion of the Department if the system construction is not completed within 6 months of the grant award and requires the applicant to repay all funds with interest.

  (14) Establishes any special requirements or conditions deemed necessary by the Department and the political subdivision.

B. Representatives of the Department and the political subdivision shall meet with program participants, individually or in groups, before the signing of the agreement to:

  (1) Outline applicant responsibilities in the program;

  (2) Describe the innovative and alternative system most appropriate for the site; and

  (3) Explain any special design or maintenance features of the system which may require applicant involvement beyond that required for a conventional septic system.

### Chapter 06 — Stormwater Pollution Control Cost-Share Program

**Authority:** Environment Article, §§9-345 and 9-350, Annotated Code of Maryland

**Administrative History:** Effective date: April 8, 1985 (12:7 Md. R. 707)

**Administrative History:** Chapter recodified from COMAR 10.50.05 to COMAR 26.03.06

**Administrative History:** Regulation .02B amended effective November 20, 1994 (21:23 Md. R. 1937)

**Administrative History:** Regulation .05B amended effective November 20, 1994 (21:23 Md. R. 1937)

#### Regulation .01 General.

*COMAR 26.03.06.01*

These regulations establish the State's cost-sharing program to assist local governments in installing certain stormwater pollution control practices intended to protect, restore, and improve the water quality of the Chesapeake Bay and other waters of the State by reducing water pollution from stormwater runoff in existing urbanized areas.

#### Regulation .02 Definitions.

*COMAR 26.03.06.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Agreement” means a legally binding contract which governs each grant awarded under this program.

  (2) “Applicant” means a county or incorporated municipality.

  (3) “Department” means the Department of the Environment.

  (4) “Grant” means the funds transferred under this program for financial assistance which do not have to be repaid.

  (5) “Includes or including” means includes by way of illustration and not by way of limitation.

  (6) Project.

    (a) “Project” means a structural or nonstructural measure or a combination of measures which work as a unit to reduce water pollution from stormwater runoff on one or more properties.

    (b) “Project” includes feasibility studies and the design and monitoring of a structural or nonstructural measure or measures to reduce stormwater pollution.

  (7) “Secretary” means the Secretary of the Environment.

#### Regulation .03 General Provisions.

*COMAR 26.03.06.03*

A. A grant awarded under this regulation may not exceed:

  (1) Seventy-five percent of the total project cost; and

  (2) $500,000.

B. A grant may be used for construction on privately-owned property if:

  (1) Necessary for the purpose of the project; and

  (2) An agreement has been made with the property owner and the applicant.

C. The proposed grant and the related project shall be subject to State Clearinghouse review procedures.

#### Regulation .04 Applicant Eligibility.

*COMAR 26.03.06.04*

An applicant is eligible to apply for financial assistance for one or more projects if the following conditions are fulfilled:

A. The applicant shall be a county or an incorporated municipality in Maryland;

B. The applicant shall submit evidence which demonstrates that the project will:

  (1) Provide pollutant reduction benefits for the stormwater which it handles,

  (2) Handle stormwater generated primarily from existing residential, commercial, industrial, or institutional use.

#### Regulation .05 Selection Criteria and Priority System Establishment.

*COMAR 26.03.06.05*

A. The Department shall establish and maintain a stormwater pollution control project priority list.

B. The selection criteria for grant awards shall provide the basis for developing the project priority list. These criteria shall include:

  (1) The local water quality impacts caused by existing stormwater runoff conditions;

  (2) Previous efforts expended to correct any existing stormwater problem;

  (3) The level of pollution control provided by a proposed project;

  (4) Over-all project cost;

  (5) The applicant's ability and commitment to:

    (a) Inspect and review construction performance,

    (b) Provide the 25 percent match through funds or in-kind services and fulfill all grant conditions,

    (c) Assure accountability for all funds awarded;

  (6) Innovative or alternative nature of the project;

  (7) Public visibility of the completed project.

#### Regulation .06 Preapplication Procedures.

*COMAR 26.03.06.06*

A. The applicant shall complete a preapplication form supplied by the Department which shall include:

  (1) Type and general description of the stormwater pollution control practice to be used;

  (2) Project location, existing and proposed land use, ownership, drainage area, topography, and soil characteristics;

  (3) Approximate cost, based on accepted engineering judgment;

  (4) Approximate project implementation schedule;

  (5) Location of any water supply in immediate vicinity;

  (6) Adjacent watercourse and structures.

B. The applicant shall forward the preauthorization form to the Department within 60 days of the adoption of this regulation.

C. Within 45 days after the receipt of the preapplication form, the Department shall notify the applicant as to whether its preapplication is approved or disapproved.

D. Departmental approval of the preapplication form assures placement on the priority list, although not necessarily within the fundable range.

E. If the preapplication is approved, the applicant will be notified of the project's position on the priority list and the availability of funding.

#### Regulation .07 Application Procedures.

*COMAR 26.03.06.07*

Upon receiving written notice by the Department as to the availability of funding for a particular project, the applicant shall submit within 30 days an application which includes:

A. A final schedule for the completion of the project which sets out significant milestones and the dates for the preparation of design plans and specifications;

B. All design, construction, maintenance, and other plans, and the final cost estimates of the project in accordance with the final schedule.

#### Regulation .08 Technical Design Review.

*COMAR 26.03.06.08*

A. The Department, upon receipt of the application, shall prepare a technical project review.

B. The Department shall submit copies of the technical project review to the State Clearinghouse.

C. The applicant, upon receipt of the technical project review comments and State Clearinghouse recommendations, shall respond to all comments and recommendations.

#### Regulation .09 Cost-Sharing Agreement.

*COMAR 26.03.06.09*

A. The project summary report of each approved project will be prepared by the Department and submitted to the Board of Public Works. Upon approval by the Board of Public Works, the Department shall execute an agreement with the applicant. The agreement shall require the applicant to do the following:

  (1) Establish, construct, or install the stormwater pollution control practices in accordance with the technical design standards and plans submitted to and approved by the Department;

  (2) Secure all necessary local, State, or federal permits;

  (3) Maintain the project for at least 15 years in the manner necessary to obtain the intended water quality benefits;

  (4) If constructed on private property, bind any successor in title, for the term of the project as specified in the agreement; and

  (5) If requested, grant the Department a security interest in any equipment or similar item purchased with State stormwater pollution control cost-sharing funds.

B. If the project is constructed on private property, the applicant shall obtain all necessary legal agreements with the private property owner before the Department executes a cost-sharing agreement with the applicant.

#### Regulation .10 Project Execution.

*COMAR 26.03.06.10*

A. After all parties execute the cost-share agreement, the applicant shall begin the approved project.

B. The applicant shall submit monthly progress reports to the Department. Failure to adhere to the approved project schedule may result in the withdrawal of cost-share funds by the Department.

C. The Department may inspect the construction or installation of a project to ensure that it complies with the technical design specifications approved by the Department.

D. The applicant shall agree to:

  (1) Permit the inspection of the construction site; and

  (2) Assist State employees in making inspections.

#### Regulation .11 Distribution of Stormwater Management Cost-Sharing Funds.

*COMAR 26.03.06.11*

A. Payment may be made in total or incrementally at the discretion of the Department. The nature of payment will be specified in the executed cost-share agreement.

B. The Department shall authorize payment to reimburse the applicant if it has determined that all of the following conditions have been met:

  (1) The applicant has submitted an itemized statement for the portion of the project for which it requests payment.

  (2) The itemized statement is supported by payment receipts or unpaid invoices from vendors.

  (3) The applicant signs each receipt and certifies that the invoice is true and correct to the best of his knowledge. Each receipt for payment or invoice shall show:

    (a) Vendor names;

    (b) Type of material, labor, or equipment supplied; and

    (c) The unit cost paid for each item, the total number of units, and the total amount paid to each vendor.

  (4) The total amount of any claim for payment shall be shown clearly on a separate line on the face of the receipt. Items which were not used on the approved project shall be noted and the total adjusted on any receipt or invoice submitted to the Department.

  (5) The Department had determined that the project has been installed or initiated, whichever applies under the terms of the cost-share agreement, or in the case of equipment, structures, or similar items, that it has been received and properly installed by the applicant.

C. The applicant shall certify to the Department with the seal and signature of a Maryland Registered Professional Engineer that the project meets all applicable standards and specifications in the technical design before final payment is made.

D. The applicant agrees not to authorize any significant extra work order or change order without the approval of the Department.

E. The Department, at its discretion, may fund extra work or change orders. However, the cost of all extra work or change orders in excess of 5 percent of the grant or not authorized by the Department are the responsibility of the applicant.

#### Regulation .12 Project Inspection.

*COMAR 26.03.06.12*

A. After the Department has distributed the grant funds for a project, the Department shall periodically inspect the project to ensure proper maintenance in conformance with the grant agreement.

B. The applicant shall maintain a complete record of the maintenance inspections and overall performance of the project in accordance with procedures set forth in COMAR 26.09.02. The records will be available to the Department upon request.

#### Regulation .13 Failure to Establish or Maintain Stormwater Management Cost-Sharing Projects.

*COMAR 26.03.06.13*

If the applicant fails to establish, install, construct, or maintain the stormwater management project in accordance with any agreement executed with the Department, the applicant shall be liable for the full amount of State stormwater management cost-sharing funds paid for the project. However, the applicant is not liable for adequate maintenance of the stormwater management project if damage is caused by an act of nature that could not be reasonably anticipated.

### Chapter 07 — Water Pollution Control Fund Construction Financial Assistance Regulations (Industrial User Section)

**Authority:** Environment Article, §§9-345—9-349, Annotated Code of Maryland

**Administrative History:** Effective date: April 21, 1986 (13:8 Md. R. 900)

**Administrative History:** Chapter recodified from COMAR 10.50.06 to COMAR 26.03.07

#### Regulation .01 Scope.

*COMAR 26.03.07.01*

The laws of Maryland have been amended by Laws of Maryland 1984, Chapter 795, codified at Environment Article, §§9-345—9-349, Annotated Code of Maryland, to allow financial assistance to industrial users for loans or loan guarantees for projects that provide pretreatment of pollutants that are discharged directly or indirectly into publicly owned treatment works or into any conveyance leading to a publicly owned treatment works.

#### Regulation .02 Definitions.

*COMAR 26.03.07.02*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Board” means the Water Science Advisory Board.

  (2) “Department” means the Department of the Environment.

  (3) “Discharge permit” means a permit issued by the Department for the discharge of any pollutant or combination of pollutants into the waters of this State.

  (4) “Federal Clean Water Act” means the United States statute codified at 33 U.S.C. §§1251 et seq., as amended, and such regulations, policies, and guidelines as published from time to time pertaining to the Act.

  (5) “Includes or including” means includes by way of example and not by limitation.

  (6) “Sewage” means any human or animal excretion, domestic waste, or industrial waste. Industrial waste, for the purpose of this regulation, means all water-carried solid, liquid, or gaseous wastes resulting from any process of industry, manufacturing, or trade, or from the development or recovery of any natural resource.

  (7) “Sewerage system”:

    (a) Means the channels used or intended to be used to collect or dispose of sewage;

    (b) Means structure and appurtenance used or intended to be used to collect or prepare sewage for discharge into the waters of the State;

    (c) Includes a sewer of any size; but

    (d) Does not include the plumbing system inside a building served by the sewerage system.

#### Regulation .03 General Provisions.

*COMAR 26.03.07.03*

A. The Department of the Environment and the Department of Housing and Community Development, in accordance with these regulations, may jointly award loans to industrial users for projects that provide for pretreatment of pollutants that are discharged directly or indirectly into publicly owned treatment works or into a conveyance leading to a publicly owned treatment works.

B. An applicant for a loan shall:

  (1) Obtain applicable federal, State, and local permits, including construction, discharge, highway, waterway, and wetland permits;

  (2) Comply with other applicable federal and State laws before application to the Board of Public Works for the loan;

  (3) Maintain in force applicable permits as required by law; and

  (4) Comply with applicable federal and State laws throughout the life of the loan.

#### Regulation .04 Priority System.

*COMAR 26.03.07.04*

The State priority system for the award of loans shall be developed by the Department of the Environment, may be subjected to public hearings, and will result in a priority list which shall be used to award the financial assistance. The priority system shall take into account, as appropriate:

A. The EPA National Pretreatment Standards, 40 CFR §403.6, which are incorporated by reference;

B. The water quality or public health impacts of the existing circumstances;

C. The problem prevention aspects of the proposed project;

D. Previous efforts expended to correct an existing problem;

E. The financial capacity of the applicant to repay the loan;

F. Cost effectiveness of the proposed project;

G. Planning requirements;

H. Applicant's plans for monitoring and report; and

I. Measures to assure accountability for loans.

#### Regulation .05 Application Requirements.

*COMAR 26.03.07.05*

A. Preapplication to Establish Eligibility and Ranking. Anyone interested in applying for a loan shall submit to the Department of Housing and Community Development sufficient information, as indicated on the preapplication form, for the Department of Housing and Community Development and the Department of the Environment to determine tentative project eligibility, ranking, and cost and applicant financial capability.

B. Application After Eligibility and Ranking Determined. After the eligibility and ranking of potential applicants has been tentatively determined, a person tentatively determined to be eligible may apply to the Department of the Environment for a loan by submitting, in the number of copies directed by the Department of the Environment, the following:

  (1) An application on the form furnished by the Department of the Environment;

  (2) A detailed narrative description of the project;

  (3) Plans and specifications for the project;

  (4) Schedule for construction of the project;

  (5) Description of the applicant's:

    (a) Management system for construction and operation of the project, and

    (b) Bookkeeping and accounting system for accounting for expenditures for construction of the project and repayment of the loan; and

  (6) A certification that the applicant for the loan is unable to obtain, on reasonable terms, sufficient credit to finance the applicant's actual needs without the loan.

#### Regulation .06 Project Eligibility.

*COMAR 26.03.07.06*

A. A loan may not be awarded that will cause a project to be funded at a level exceeding 100 percent of the total project costs.

B. Loans may be awarded up to 100 percent of the eligible costs of the project.

C. Loans may be made to refinance existing financing that has been already obtained at terms that are found to be not reasonable.

D. Eligible Costs. Costs eligible for a loan are actual construction costs. In addition, at the discretion of the Department of the Environment, loans may be awarded to include some or all of the following supplementary project costs:

  (1) Reports;

  (2) Plans;

  (3) Specifications;

  (4) Rehabilitation and improvement of process facilities which will reduce the discharge of pollutants more effectively than the installation of additional pretreatment equipment.

#### Regulation .07 Award of a Loan.

*COMAR 26.03.07.07*

The Department of the Environment may only approve a loan to industrial users for projects that provide pretreatment of pollutants that are discharged directly or indirectly into publicly owned treatment works if:

A. The Secretary of Housing and Community Development determines that there is a reasonable assurance of repayment of the loan;

B. The Secretary of Housing and Community Development determines that the applicant for a loan is unable to obtain, on reasonable term sufficient credit to finance the applicant's actual needs without the loan;

C. The Department of the Environment determines that the project meets applicable technical standards and that cost estimates are reasonable and represent eligible cost;

D. When the applicant does not own the property where the pretreatment project will be constructed, the landowner consents to the terms and conditions of the agreement;

E. The Secretary of the Department of the Environment determines that the project will cost-effectively reduce the discharge of pollutants and improve water quality; and

F. The loan:

  (1) Bears at least the same rate of interest as the most recent State general obligation bond sale preceding the date of approval by the Board of Public Works;

  (2) Shall be repaid within 30 years; and

  (3) Does not exceed, as an aggregate principal amount to a single applicant in a calendar year, $500,000, unless the Board of Public Works determines that extraordinary circumstances exist.

#### Regulation .08 Conditions of Loan Agreements.

*COMAR 26.03.07.08*

Loan agreements shall include:

A. Specification of the purpose, amount, manner of repayment, and other conditions required by the Board of Public Works;

B. The obligation of the applicant to:

  (1) Construct, install, and operate the pretreatment project in a manner which ensures compliance with pretreatment requirements and technical specifications;

  (2) Maintain the project for its expected life span;

  (3) Bind a successor in interest;

C. On loans over $2,500, a granting to the State of a security interest specified by the Department of the Environment in equipment, structures, or property purchased in whole or part with State monies.

### Chapter 08 — Water Pollution Control Fund Construction Financial Assistance Regulations (State and Local Government Section)

**Authority:** Environment Article, §§9-302, 9-345--350; Agriculture Article, §8-701; Annotated Code of Maryland

**Administrative History:** Effective date: April 21, 1986 (13:8 Md. R. 901)

**Administrative History:** Chapter recodified from COMAR 10.50.07 to COMAR 26.03.08

**Administrative History:** Regulation .01 amended effective August 6, 1990 (17:15 Md. R. 1863)

**Administrative History:** Regulation .03 amended effective August 6, 1990 (17:15 Md. R. 1863)

#### Regulation .01 Scope.

*COMAR 26.03.08.01*

The laws of Maryland have been amended to allow financial assistance to State and local governmental entities in the form of grants and loans for projects that provide protection, restoration, and improvement of the quality of the waters of the State.

#### Regulation .02 Definitions.

*COMAR 26.03.08.02*

A. “Applicant” means any State or local governmental entity.

B. “Board” means the Water Science Advisory Board.

C. “Department” means the Department of the Environment.

D. “Discharge permit” means a permit issued by the Department for the discharge of any pollutant or combination of pollutants into the waters of this State.

E. “Federal Clean Water Act” means the United States of America, Statute 33 U.S.C. 1251 et seq., as amended and such regulations, policies and guidelines as published from time to time pertaining to the Act.

F. “House connection” means the sewerage system from the “Y” branch on the lateral sewer to the building lot property line.

G. “Includes or including” means includes by way of example and not by limitation.

H. “Project schedule” means a listing of significant events in the anticipated order of time of execution to ensure the orderly and timely progression and completion of a project.

I. “Sewage” means any human or animal excretion, domestic waste, or industrial waste.

J. “Sewerage system” means the channels used or intended to be used to collect or dispose of sewage, and any structure or appurtenance used or intended to be used to collect or prepare sewage for discharge into the waters of the State. This includes any sewer of any size, but does not include the plumbing system inside any building served by the sewerage system.

#### Regulation .03 General Provisions.

*COMAR 26.03.08.03*

A. Financial Assistance for Control of Nonpoint Sources of Agriculturally Related Water Pollution.

  (1) Except for the provisions promulgated in §A(2)—(4), of this regulation, all requirements for State financial assistance for control of nonpoint sources of agriculturally related water pollution are contained in the Department of Agriculture's regulations, COMAR 15.01.05.

  (2) Notwithstanding limitations in the percent of eligible costs set forth in COMAR 15.01.05, grants awarded to governmental entities or for projects on State-owned land may be awarded for up to 100 percent of the total eligible cost of a project.

  (3) In awarding the grants, the Department will consider both the applicant's financial capability to cost share and any resultant economic benefit in determining the extent of any matching dollar amount.

  (4) The Department shall award the grants only after prior consultation with the Secretary of Agriculture.

B. The Board of Public Works, upon recommendation made by the Department of the Environment in accordance with these regulations, may award grants or loans to State and local governmental entities for the eligible costs of projects that will provide protection, restoration, and improvement of the quality of the waters of the State. The Department, in consultation with the Secretaries of State Planning, Natural Resources, Agriculture, and Housing and Community Development, shall establish priority systems for determining which projects shall receive financial assistance.

C. An applicant shall obtain all applicable federal, State, and local permits, including construction, discharge, highway, waterway and wetland permits, and comply with all other applicable federal and State laws before application to the Board of Public Works for the grant or loan. Initiation of construction before approval of the Board of Public Works may disqualify the project for financial assistance.

D. The proposed project shall be subject to State Clearinghouse review procedures found in COMAR 16.02.01 at the preapplication stage and again at the application stage if there is a substantial change in the scope of the project.

#### Regulation .04 Priority System.

*COMAR 26.03.08.04*

A. The State priority system for the award of financial assistance shall be developed by the Department, may be subjected to public hearings and will result in a priority list which shall be used to award the financial assistance. The priority system shall take into account, as appropriate:

  (1) The water quality or public health impacts of the existing circumstances;

  (2) The problem prevention aspects of the proposed project;

  (3) Previous efforts expended to correct any existing problem;

  (4) The financial capacity of the applicant;

  (5) Cost effectiveness of a proposed project;

  (6) Planning requirements;

  (7) Applicant's plans for monitoring and review; and

  (8) Measures to assure accountability for all financial assistance.

B. Based on the priority system, the Department of the Environment shall develop a priority list of projects.

#### Regulation .05 Application Requirements.

*COMAR 26.03.08.05*

A. Preapplication to Establish Eligibility and Ranking. Anyone interested in applying for financial assistance shall submit to the Department on the form provided by the Department sufficient information for the Department to determine tentative project eligibility and priority ranking, financial capability, preliminary cost estimates, and certification that the project is consistent with the County Water and Sewer Plan. Projects applying for financial assistance under the Federal Clean Water Act shall be submitted annually on or about June 1.

B. Application after Eligibility and Ranking Determined. After the eligibility and ranking of potential applicants has been tentatively determined, any person tentatively determined to be eligible may apply to the Department of the Environment for financial assistance by submitting, in the number of copies directed by the Department of the Environment, the following:

  (1) For projects applying for financial assistance under the Clean Water Act, the requirements are contained in 40 CFR §35.2040 which is incorporated by reference.

  (2) For projects applying for financial assistance for chlorine removal, nitrogen removal, special water quality needs or public health needs:

    (a) An application on the form furnished by the Department.

    (b) A report on the feasibility of the project.

    (c) Clearinghouse review and comment.

    (d) Certification of consistency with the County Water and Sewer Plan.

    (e) Project schedule.

    (f) When required by the Department, approved plans and specifications.

    (g) A certification that other fund sources are not available or are insufficient for the proposed project. The certification shall be accompanied by evidence of financial inability to fund the project and a description of efforts expended to obtain funds from other governmental and private entities.

#### Regulation .06 Project Eligibility.

*COMAR 26.03.08.06*

A. Financial assistance may not be awarded that will cause a project to be funded at a level exceeding 100 percent of the total project cost.

B. Combined State and federal financial assistance normally may not exceed 87-1/2 percent of the federally eligible cost of a project except grants may be awarded for up to 96-1/4 percent of the eligible cost of projects which contain innovative or alternative technology as define in the Clean Water Act and up to 100 percent of the eligible costs of projects undertaken for chlorine removal, nitrogen removal, existing special water quality needs or public health needs, constructing, equipping, rehabilitating and improving sewerage systems at a State-owned institution or facility.

C. State financial assistance in the form of loans shall be as set forth in Regulation .07 of this chapter.

D. Eligible Cost.

  (1) Costs eligible for combined federal and State grants shall be as specified in the Clean Water Act.

  (2) Costs eligible for State grants or loans are actual construction-related costs. In addition the following may, in the discretion of the Department of the Environment, be awarded to include some or all of the following supplementary project costs:

    (a) Reports;

    (b) Plans;

    (c) Specifications;

    (d) Legal and administrative services;

    (e) Equipment;

    (f) Rehabilitation or improvement;

    (g) Acquisition of interest in land;

    (h) Acquisition of interest in easements; and

    (i) Acquisition of rights-of-way.

  (3) Eligibility of supplementary costs will be determined by the Department based on the financial capability of the applicant to bear the additional cost. State financial assistance for supplementary costs may be in the form of a loan.

  (4) Ordinary cost of government such as salaries and expenses of elected and appointed officials, and other staff, except as may be eligible on federally funded projects, preparation of routine financial reports and studies and development of sewer-use ordinances are not eligible.

#### Regulation .07 Special Requirements.

*COMAR 26.03.08.07*

A. A reserve fund shall be established for grant and loan amendments to meet cost increases.

B. Loans:

  (1) Shall bear at least the same rate of interest as the most recent State general obligation bond sale preceding the date of approval by the Board of Public Works;

  (2) Shall be repaid within 30 years;

  (3) May not exceed $500,000 as an aggregate principal amount to a single applicant in any calendar year, unless the Board of Public Works determines that extraordinary circumstances exist.

C. Loan agreements shall include specification of the purpose, amount, manner of repayment, the obligation of the applicant to construct, install and operate the project in a manner which ensures compliance with all contract documents and the discharge permit, maintain the project for its expected life span, and any other condition required by the Board of Public Works.

D. Authorization of payments of State funds may be made by the Department of the Environment only in accordance with policy and procedures of the Board of Public Works.

### Chapter 09 — Water Supply Construction Financial Assistance Regulations

**Authority:** Environment Article, §§9-404 and 9-420—9-426, Annotated Code of Maryland

**Administrative History:** Effective date: December 19, 1983 (10:25 Md. R. 2269)

**Administrative History:** Regulation .05L adopted as an emergency provision effective August 17, 1984 (11:18 Md. R. 1582); emergency status expired December 15, 1984; adopted permanently effective December 17, 1984 (11:25 Md. R. 2134)

**Administrative History:** Regulation .05L amended effective July 15, 1985 (12:14 Md. R. 1432)

**Administrative History:** Chapter recodified from COMAR 10.17.12 to COMAR 26.03.09

**Administrative History:** Regulation .05 amended effective October 6, 2008 (35:20 Md. R. 1776)

**Administrative History:** Regulation .05C amended as an emergency provision effective March 6, 1996 (23:7 Md. R. 550); emergency status expired June 28, 1996; amended permanently effective December 2, 1996 (23:24 Md. R. 1685)

**Administrative History:** Regulation .06 amended effective October 6, 2008 (35:20 Md. R. 1776)

#### Regulation .01 Scope.

*COMAR 26.03.09.01*

Sections 5(b) and 5(c) of Chapter 306, Acts of 1982, Laws of Maryland, authorizes the Board of Public Works to award financial assistance to State and local governmental entities for the purpose of assisting in the acquisition, construction, equipping, rehabilitation, and improvement of water supply facilities where these projects are critical to public health or necessary to assure compliance with Safe Drinking Water Requirements.

#### Regulation .02 Definitions.

*COMAR 26.03.09.02*

A. “Applicant” means any State or local governmental entity.

B. “Construction” means the physical installation of any new water supply facility, or the upgrading or rehabilitation of any existing water supply facility.

C. “Department” means the Department of the Environment.

D. “Financial assistance” means State grants, loans, or loan guarantees.

E. “Local governmental entity” includes a county, municipality, sanitary commission, and local or regional water authority.

F. “Secretary” means the Secretary of the Environment.

G. “Significant change order” means one which introduces a new element or goal in the approved water facility project. It may consist of a change in treatment capacity or flow capacity, a different area to be served, the purchase of equipment not contemplated in the original contract, or the substitution of a piece of equipment by another which has a capability greater or less than that originally specified. The dollar amount of the change may not be the sole determining factor as to whether or not a change order significantly alters the project.

#### Regulation .03 General Provisions.

*COMAR 26.03.09.03*

A. Funds available under this program are intended to be used as a last resort measure to assist regional and local governmental agencies in solving water supply system inadequacies, when it can be demonstrated that the applicant has insufficient or limited financial capability to proceed with necessary construction projects.

B. Financial assistance is limited to State and local governmental entities. Eligible project costs are determined by the Department using principles set forth in Regulation .05 of this chapter.

C. The Department shall use a project priority system in determining which projects will receive financial assistance.

D. Financial assistance may only be provided up to a maximum of 87-1/2 percent of the eligible costs of the project.

E. Project applications shall consist of a pre-application and final application, including documentation of need and such other information as may be required by the Department.

F. A water facility construction permit, as required by the Environment Article, §9-204, Annotated Code of Maryland, shall be required before the Board of Public Works' consideration of financial assistance for construction of the project.

G. The proposed project is subject to State Clearinghouse review procedures.

H. The applicant shall follow all local bidding requirements. When local bidding requirements do not exist, bidding procedures satisfactory to the Board of Public Works shall be followed.

I. A governmental entity receiving financial assistance under this chapter may not award a contract on a “cost-plus” basis.

J. Any project for which State financial assistance is granted shall comply with all applicable State Law.

K. The documents listed below are incorporated by reference. Each is available for public inspection at the appropriate office in each county, and in Baltimore City. The documents are:

  (1) Allegany County Comprehensive Water and Sewerage Plan;

  (2) Anne Arundel County Comprehensive Water and Sewerage Plan;

  (3) Baltimore County Comprehensive Water and Sewerage Plan;

  (4) Calvert County Comprehensive Water and Sewerage Plan;

  (5) Caroline County Comprehensive Water and Sewerage Plan;

  (6) Carroll County Comprehensive Water and Sewerage Plan;

  (7) Cecil County Comprehensive Water and Sewerage Plan;

  (8) Charles County Comprehensive Water and Sewerage Plan;

  (9) Dorchester County Comprehensive Water and Sewerage Plan;

  (10) Frederick County Comprehensive Water and Sewerage Plan;

  (11) Garrett County Comprehensive Water and Sewerage Plan;

  (12) Harford County Comprehensive Water and Sewerage Plan;

  (13) Howard County Comprehensive Water and Sewerage Plan;

  (14) Kent County Comprehensive Water and Sewerage Plan;

  (15) Montgomery County Comprehensive Water and Sewerage Plan;

  (16) Prince George's County Comprehensive Water and Sewerage Plan;

  (17) Queen Anne's County Comprehensive Water and Sewerage Plan;

  (18) St. Mary's County Comprehensive Water and Sewerage Plan;

  (19) Somerset County Comprehensive Water and Sewerage Plan;

  (20) Talbot County Comprehensive Water and Sewerage Plan;

  (21) Washington County Comprehensive Water and Sewerage Plan;

  (22) Wicomico County Comprehensive Water and Sewerage Plan;

  (23) Worcester County Comprehensive Water and Sewerage Plan;

  (24) Baltimore City Comprehensive Water and Sewerage Plan.

L. Before the award of State financial assistance for construction, the need for facility construction or improvement shall be identified, and a project to meet that need shall be contained in the approved County Comprehensive Water and Sewerage Plan. The Department may also require a public hearing on the project, in addition to the public hearing required pursuant to adoption of the county water and sewerage plan.

M. A water appropriation and use permit, as required by Natural Resources Article, §8-811, Annotated Code of Maryland, shall be required before the Board of Public Work's approval of financial assistance for construction of the project.

N. Financial assistance may be approved by the Board of Public Works for community associations if the assistance is passed through a governmental entity. In these cases, a governmental entity shall be the responsible applicant. The Department shall require that the community association be incorporated and be responsible for financial and ownership requirements as are found necessary to assure continued, efficient, and effective operation of the system. The governmental entity shall agree to act as the agent for the community association in applying for financial assistance and shall be jointly responsible for complying with the terms of the grant or loan agreement.

#### Regulation .04 Application Requirements.

*COMAR 26.03.09.04*

A. An applicant shall submit a pre-application which includes sufficient information for the Department to determine:

  (1) Project eligibility;

  (2) Priority ranking;

  (3) The extent to which funds will be available to support projects on the annual priority list.

B. Final Application. The Department shall require the applicant to submit, within 1 year, a final application when the project falls within the fundable range on the annual priority list. The Department may, at its discretion, extend the application deadline. The application shall contain any additional information the Department may require including:

  (1) Certification that the project is in conformance with the County Comprehensive Water and Sewerage Plan;

  (2) Copies of pertinent State construction permits;

  (3) Copies of design plans and specifications;

  (4) Studies and reports which demonstrate the engineering feasibility and cost effectiveness of projects where acquisition, equipment, and construction or any combination of these costs exceed $5,000;

  (5) Certification that all other requirements for eligibility found in Regulations .05 and .07 of this chapter are met; and

  (6) In addition to all other eligibility and special requirements, grant applicants may be required to demonstrate a plan of action that will provide for the future financial stability of the water supply system. The plan of action may include a rational rate structure, scheduled capital improvements, and assurances that sufficient funding will be available to provide for continued, efficient, and effective operation of the system.

C. If the Department determines that under Regulation .05E, of this chapter, feasibility studies, planning, and plans and specifications are eligible for funding, the Department may petition the Board of Public Works for these funds before determining the extent to which the State may participate in providing financial assistance for construction.

#### Regulation .05 Project Eligibility.

*COMAR 26.03.09.05*

A. The award of financial assistance may not cause a project to be funded at a level exceeding 100 percent of the total project costs.

B. State financial assistance may not exceed 87-1/2 percent of the eligible cost of a project, except that in the case of a project to be undertaken by the Maryland Environmental Service, pursuant to an order issued by the Secretary, the State financial assistance may equal the total cost of the project less the amount of any federal grant application to project costs.

C. The total amount of a State grant for any project may not exceed $1,500,000.

D. Project Costs Eligible for Financial Assistance. Project costs which are eligible for financial assistance under this chapter may include:

  (1) The acquisition of facilities;

  (2) The construction of new facilities;

  (3) Additions to or modifications of existing facilities;

  (4) Equipment purchases;

  (5) Lands, easements, and rights-of-way; and

  (6) Planning, design, and project administration.

#### Regulation .06 Priority System.

*COMAR 26.03.09.06*

A. The Department shall annually rank applications for grant and loan assistance.

B. The Department shall hold a public hearing, following public notification in the Maryland Register and the Department's web site regarding the annual priority list.

C. Following the public hearing, the Department may change the rankings of projects based on public input.

D. Projects Not on Annual Priority List. The Board of Public Works may award financial assistance for projects not included on the annual priority list, if it determines that:

  (1) The project arises out of an unanticipated immediate need; and

  (2) Irreparable damage to the public health would result if the project is not constructed.

E. Priority System.

  (1) The State priority system for the award of financial assistance shall be developed by the Department, may be subject to public hearings, and will result in a priority list that shall be used to award the financial assistance. The priority system shall take into account, as appropriate:

    (a) The public health benefits of the project;

    (b) The project's ability to comply with any mandatory legal requirements;

    (c) The environmental benefits, system reliability benefits, or both of the project;

    (d) The project's compliance with water conservation requirements;

    (e) The size of the community, with a preference given to small community projects; and

    (f) The financial, technical, and managerial capacity of the applicant.

  (2) Based on the priority system, the Department shall develop a priority list of projects.

#### Regulation .07 Special Requirements.

*COMAR 26.03.09.07*

A. The Department annually shall establish a reserve fund to be used for grant and loan amendments in order to meet change orders, cost overruns, and emergency projects.

B. Financial assistance provided under this chapter may not be applied to projects whose construction was initiated before approval by the Board of Public Works.

C. State Loans.

  (1) Loans for water supply facility projects shall bear the same rate of interest as the bonds from which the proceeds are used to provide the loan.

  (2) The loan shall be repaid within 30 years and the first payment shall be made at a time stipulated by the Board of Public Works.

  (3) Costs associated with the sale, administration, and registration of bonds may be included in the repayment schedule, as required by the Board of Public Works.

D. State Loan Guarantees. A loan guarantee of the principal of, or interest on, any commercial loan or obligation to finance an eligible project may be made under the following conditions:

  (1) The applicant certifies that it is unable to obtain sufficient credit on reasonable terms to finance its actual needs without the guarantee; and

  (2) The Board of Public Works determines that there is a reasonable assurance of repayment of the loan obligation.

#### Regulation .08 Financial Agreement.

*COMAR 26.03.09.08*

A. Terms of Financial Agreement. The financial agreement required by the Board of Public Works as a condition of financial assistance shall include terms which:

  (1) Provide salvage rights by the State upon default of the applicant;

  (2) Require that the applicant maintain adequate accounting records and submit monthly accounting reports to the Department;

  (3) Describe the grant, loan, or loan guarantee payment and repayment schedules;

  (4) Provide that a project sign will be erected when total State participation in the project exceeds $10,000;

  (5) Require the applicant to follow all State and local environmental control laws in constructing the project;

  (6) Require the applicant to operate and maintain the water supply facility in accordance with applicable sections of Environment Article, Title 9, Annotated Code of Maryland;

  (7) Provide that the agreement may be voided by the Department if construction has not commenced within 6 months of the award for construction and, if voided, shall require the applicant to repay all funds with interest;

  (8) Require that all significant extra work orders or change orders be approved by the Department before the contractor is authorized to proceed and, upon approval, the applicant may request an amendment to the grant or loan agreement; and

  (9) Require that the applicant agree that the total amount of all change orders not exceed 5 percent of the original total award of financial assistance and that all costs exceeding this amount or costs not authorized by the Department are the responsibility of the applicant.

B. Financial agreements may also include any special conditions or requirements recommended by the Department and approved by the Board of Public Works.

### Chapter 10 — Financial Assistance for the Construction of Solid Waste Processing and Disposal Facilities

**Authority:** Chapter 306, Acts of 1982, Laws of Maryland

**Administrative History:** Effective date: August 12, 1985 (12:16 Md. R. 1606)

**Administrative History:** Chapter recodified from COMAR 10.17.14 to CIMAR 26.03.10

#### Regulation .01 Definitions.

*COMAR 26.03.10.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Applicant” means a State or local governmental entity requesting financial assistance under this chapter.

  (2) “Construction” means either physically installing a new solid waste processing or disposal facility, or rehabilitating or improving an existing facility.

  (3) “Department” means the Maryland Department of the Environment.

  (4) “Financial assistance” means grants, loans, or loan guarantees approved by the State's Board of Public Works.

  (5) “Local governmental entity” means a county, municipality, sanitary commission, or a regional solid waste authority.

  (6) “Secretary” means the Secretary of the Environment.

  (7) “Solid waste disposal facility” means a sanitary landfill or any other facility which is used for the final disposal of solid waste.

  (8) “Solid waste processing facility” means an incinerator, transfer station, resource recovery plant, composting facility, or any other combination of structures, machinery, or devices used to reduce or alter the volume, chemical characteristics, or physical characteristics of solid waste before disposal or use.

#### Regulation .02 General Provisions.

*COMAR 26.03.10.02*

A. Funds available under this program are intended to be used as a last resort measure to assist regional and local governmental entities in solving solid waste disposal or processing system inadequacies, when it can be demonstrated that the applicant has insufficient or limited financial capability to proceed with necessary construction projects.

B. Financial assistance under this chapter shall be limited to:

  (1) Projects involving solid waste processing or disposal facilities;

  (2) State and local governmental entities; and

  (3) Not more than 87-1/2 percent of eligible project costs.

C. A project may receive financial assistance under this chapter if:

  (1) The project is in conformance with the approved county solid waste management plan;

  (2) A public hearing required by the Department on the project has been held, in addition to a hearing held before the adoption of the solid waste management plan; and

  (3) The project conforms with other applicable State and federal requirements.

D. Proposed projects are subject to State Clearinghouse review procedures in accordance with COMAR 16.02.01. Each project which the Department submits to the Board of Public Works for financial assistance approval shall be accompanied by the comments from the Clearinghouse's intergovernmental review process.

E. The award of State financial assistance may not cause project funding to exceed 100 percent of the total project costs.

F. State assistance may not exceed 87-1/2 percent of eligible project costs as described in Regulation .03, of this regulation. For a project undertaken by the Maryland Environmental Service, pursuant to an order by the Secretary, eligible costs shall be as authorized under Natural Resources Article, §3-101(b), Annotated Code of Maryland, as amended.

#### Regulation .03 Project Eligibility.

*COMAR 26.03.10.03*

A. Project costs which are eligible for financial assistance under this chapter may include:

  (1) The acquisition of new facilities;

  (2) The construction of new facilities;

  (3) Additions to, or modifications of, existing facilities;

  (4) Equipment purchases; and

  (5) Lands, easements, and rights-of-way.

B. Project costs which may not be funded, except as provided for in §C, of this regulation, include:

  (1) Feasibility studies;

  (2) Planning;

  (3) Administrative costs and overhead; or

  (4) Plans and specifications.

C. Project costs outlined in §B, of this regulation, may be funded if the:

  (1) Secretary determines that the applicant does not have the financial capability to produce the necessary feasibility studies, plans, and specifications; and

  (2) Applicant is requesting financial assistance in the form of a loan or a loan guarantee.

D. The award of a loan or loan guarantee does not eliminate the requirement that the applicant obtain all required permits for a solid waste processing or disposal facility. The applicant shall remain liable for repayment of all applicable loans regardless of whether a permit is issued or the facility becomes operational.

E. Allowances. The additional costs permitted in §C, of this regulation, may not exceed the percent of the total project cost as interpolated from Tables 1 and 2. State participation for these costs shall require a bona fide commitment from the applicant that construction of the proposed project will begin within 2 years.

#### Regulation .04 Applications for Assistance.

*COMAR 26.03.10.04*

A. Applications for assistance under this chapter shall consist of two parts, the preliminary application and the final application. They shall include documentation of need and such other information as may be required by the Department.

B. The preliminary application shall be submitted to the Department (who shall submit it to the State Clearinghouse) and shall include sufficient information for the Department to determine the following:

  (1) Project eligibility;

  (2) Project need and priority ranking;

  (3) Financial capability of the applicant; and

  (4) Previous attempts by the applicant to fund the project using other resources.

C. If the project falls within the fundable range of the annual priority list, the Department shall require that the applicant submit a final application which includes:

  (1) Certification that the project is consistent with the appropriate approved county solid waste management plan;

  (2) Certification by the applicant to the Board of Public Works that:

    (a) Other sources of funding are either unavailable or insufficient for the proposed project; and

    (b) Federal grants for the project are not jeopardized by the award of State financial assistance by the Board of Public Works;

  (3) Certification of the applicant's inability to fund the proposed project; and

  (4) For applications which include the cost of construction:

    (a) Copies of pertinent State construction permits;

    (b) Copies of design plans and specifications; and

    (c) Studies and reports which demonstrate the engineering feasibility and cost-effectiveness of projects.

#### Regulation .05 Priority List and Ranking System.

*COMAR 26.03.10.05*

A. The Department, once a year, shall rank separately applications for grants, loans, and loan guarantees. The Department shall consider the comments and recommendations provided by the State Clearinghouse's intergovernmental review in the ranking process.

B. The Department shall provide adequate notice and opportunity for public comment concerning the annual priority list.

C. The Department may change the ranking of projects as a result of public comment.

D. Upon recommendation of the Secretary, the Board of Public Works may award financial assistance for projects not included on the annual priority list, if it determines that:

  (1) The project is the result of an unanticipated immediate need; and

  (2) Serious damage to public health or the environment would result if approval of the project is delayed until after the next annual priority list is prepared.

E. Priority Rankings.

  (1) Priority rankings shall be determined by a scoring system based on weighted scores. Highest scores will receive the highest priority ranking.

  (2) If a tie exists, preference shall be given to correction of the most severe public health or environmental problem as determined by the Department.

F. Scoring System. Scores assigned to each category are as follows:

  (1) Category I--Public Health and Environmental Impacts (Points Available in Each Sub-Category).

    (a) Facility described in the application for assistance is:

      (i) Causing an increase in waters of the State, of at least one order of magnitude in any three key chemical parameters, as specified by the Department; or

      (ii) Not in compliance with 40 CFR §257.3-3, which is incorporated by reference.  Maximum points under §F(1) of this regulation ----------------------------------- 100.

    (b) Facility is not in compliance with at least one of the criteria in 40 CFR 257 (except part 257.3-3), 10 points for each criterion listed there, maximum of ------------ 100.

  (2) Category II — Problem Prevention (Points Available in Each Sub-Category).

    (a) Aggregate life of all solid waste disposal facilities within the applicant's jurisdiction is less than 3 years for the principal type of solid waste to be accepted at the

    (b) The percentage of the jurisdiction's solid waste disposal capacity provided by the facility described in the application for assistance is:

      (i) 75—100 ---------------------------------------------- 100,

      (ii) 50—74 ----------------------------------------------- 75,

      (iii) Less than 50 ---------------------------------------- 50;

    (c) The percentage of the jurisdiction's solid waste processing capacity provided by the facility described in the application for assistance is:

      (i) 75—100 ----------------------------------------------- 75,

      (ii) 50—74 ----------------------------------------------- 50,

      (iii) Less than 50 ---------------------------------------- 25.

  (3) Category III — Previous Efforts by the Applicant to Solve the Problem (Points Available in Each Sub-Category). Points will be assigned to reflect previous efforts made by the applicant to correct the problem as follows:

    (a) Development of scope of work ---------------------------- 20;

    (b) Preparation of plans and specifications ----------------- 20;

    (c) Certification by applicant that federal, local, and private funding sources have been solicited ------------------- 40;

    (d) Certification by applicant that equipment has been purchased or reasonable attempts have been made to effect the necessary improvements ------------------------------ 20.

  (4) Category IV — Applicant's Financial Capability. The financial capability of applicants will be assessed based on a comparison of median household income within the total areas to be served. Points will be assigned as follows:

    (a) Application is for loan guarantee ----------------------- 25.

    (b) Table 3. Financial Capability.

G. Ordinary operating expenses of local government, for example, salaries, are not eligible for funding under this chapter.

#### Regulation .06 Allocation of Funds.

*COMAR 26.03.10.06*

The Department annually shall allocate available funds as described below:

A. Up to 10 percent of the funds shall be placed in a reserve fund for emergency projects and for grant amendments and loan or loan guarantee increases necessitated by change orders and cost overruns;

B. Not more than 25 percent of the funds not reserved under §A, of this regulation, shall be set aside for grants; and

C. Funds remaining after the reserve fund and grant fund are established shall be used for loans and loan guarantees.

#### Regulation .07 Financial Agreement.

*COMAR 26.03.10.07*

A. Approval by the Board of Public Works of financial assistance shall be conditioned upon the execution of a suitable financial agreement between the State and the applicant.

B. The financial agreement required by the Board of Public Works as a condition of financial assistance shall include terms which:

  (1) Provide salvage rights by the State upon default of the applicant;

  (2) Require the applicant to maintain accounting records and submit monthly accounting reports to the Department;

  (3) Describe the grant, loan, or loan guarantee payment and repayment schedules;

  (4) Provide that a project sign will be erected when total State participation in the project exceeds $10,000;

  (5) Require the applicant to follow all State environmental control laws and regulations in constructing the project;

  (6) Require the applicant to operate and maintain the facility in accordance with Environment Article, Title 7, Subtitle 2 or §9-204, Annotated Code of Maryland;

  (7) Provide that the agreement may be voided by the Department if construction has not begun within 6 months of the award of financial assistance and, if voided, shall require the applicant to repay all previously awarded funds with interest;

  (8) Require that extra work orders or change orders be approved by the Department before the contractor is authorized to proceed, and upon approval, the applicant may request an amendment to the grant or loan agreements; and

  (9) Require the applicant to accept responsibility for costs which exceed 5 percent of the original total award for assistance, unless change orders have been authorized by the Department under §B(8), of this regulation.

C. Financial agreements may also include special conditions or requirements recommended by the Department and approved by the Board of Public Works.

D. The applicant shall follow local bidding requirements. If local bidding requirements do not exist, bidding procedures satisfactory to the Board of Public Works shall be followed.

#### Regulation .08 Special Requirements.

*COMAR 26.03.10.08*

A. A governmental entity receiving financial assistance under this chapter may not award a contract on a cost-plus basis.

B. The following conditions apply to loans approved under this chapter:

  (1) Loans shall bear the same rate of interest as the bonds from which the proceeds are used to provide the loan. Costs associated with the sale of bonds may be included in the repayment schedule as required by the Board of Public Works;

  (2) The loan shall be repaid within 30 years and the first payment shall be made at a time stipulated by the Board of Public Works.

C. A loan guarantee of the principal of, or interest on, any commercial loan or obligation to finance an eligible project may be made only if the:

  (1) Applicant certifies that it is unable to obtain sufficient credit on reasonable terms to finance its actual needs without a guarantee; and

  (2) Board of Public Works determines that there is a reasonable assurance of repayment of the loan obligation.

D. Financial assistance provided under this chapter may not be applied to projects whose construction was initiated before approval by the Board of Public Works.

### Chapter 11 — Environmental Review Procedures for Facilities Receiving Financial Assistance from the Maryland Water Quality Financing Administration

**Authority:** Environment Article, §§9-204 and 9-1604, Annotated Code of Maryland

**Administrative History:** Effective date: September 18, 1989 (16:18 Md. R. 2025)

**Administrative History:** Regulation .01B amended effective May 5, 1997 (24:9 Md. R. 658)

**Administrative History:** Regulation .02B amended effective May 5, 1997 (24:9 Md. R. 658)

**Administrative History:** Regulation .04B amended effective May 5, 1997 (24:9 Md. R. 658)

**Administrative History:** Regulation .08C, D amended effective May 5, 1997 (24:9 Md. R. 658)

#### Regulation .01 Purpose and Policy.

*COMAR 26.03.11.01*

A. This chapter specifies the procedures for the review of projects funded through the Maryland Water Quality Financing Administration for impacts on the human and natural environment.

B. The regulations establish the Department's policy and procedures for identifying and analyzing environmental impacts of proposed projects.

#### Regulation .02 Definitions.

*COMAR 26.03.11.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Applicant” means a local government as defined in Environment Article, §9-1601, Annotated Code of Maryland, or other person that desires to construct a project, and that has applied for a loan pursuant to Environment Article, Title 9, Subtitle 16, Annotated Code of Maryland.

  (2) “Categorical exclusion” is a determination by the Department of categories of projects that do not have a significant effect on the environment.

  (3) “Department” means the Maryland Department of the Environment.

  (4) “EID” means an environmental information document.

  (5) “EIS” means an environmental impact statement.

  (6) “FNSI” means a finding of no significant impact.

  (7) “Loan agreement” means a written agreement between the Maryland Water Quality Financing Administration and an applicant with respect to a loan.

  (8) “Project” means a project for the construction of a facility, as defined under Environment Article, §9-1601, Annotated Code of Maryland, which is financed, in whole or in part, by the Maryland Water Quality Financing Administration.

#### Regulation .03 Applicability.

*COMAR 26.03.11.03*

This chapter applies to all projects financed, in whole or in part, by the Maryland Water Quality Financing Administration as required by federal law.

#### Regulation .04 Categorical Exclusions.

*COMAR 26.03.11.04*

A. General. EIDs and environmental assessments or EISs are not required for excluded categories of projects.

B. Categories of Projects Eligible for Exclusion. The following categories of projects are eligible for exclusion:

  (1) Minor rehabilitation of existing facilities;

  (2) Functional replacement of equipment or structures, or both;

  (3) New ancillary facilities that do not increase the capacity of the existing facility;

  (4) Infiltration and inflow corrections;

  (5) Construction of water distribution or wastewater collection systems, or both, for existing communities;

  (6) Refinancing of projects previously constructed; or

  (7) Projects where funding is being provided for planning.

C. Determination.

  (1) The Department shall determine whether a project is eligible for a categorical exclusion as early as possible following the receipt from an applicant of a preloan application containing a project description.

  (2) Before the Department makes a final decision to grant an exclusion, the Department will publish a notice of eligibility for categorical exclusion in a prominent advertisement in at least one newspaper of general circulation in the area concerned. The public notice shall:

    (a) Reference the preloan application;

    (b) Include a brief description of the proposed project; and

    (c) Include a brief statement of how the project meets the criteria for a categorical exclusion.

  (3) The Department shall submit the notice of eligibility for categorical exclusion to those lead State and federal agencies responsible for the federal laws itemized in Appendix F of the Initial Guidance for State Revolving Funds (January 28, 1988).

  (4) The Department shall allow a 20-day comment period, following public notice, before issuing its final decision on the categorical exclusion.

  (5) The Department's final decision will be issued to the applicant.

D. Revocation. The Department shall revoke a categorical exclusion and shall require an environmental review if, subsequent to the granting of an exclusion, the Department determines that:

  (1) The proposed project no longer meets the requirements for a categorical exclusion due to changes in the proposed project;

  (2) New evidence indicates that the project may seriously impact the environment; or

  (3) Federal, State, or local environmental laws are being or may be violated.

#### Regulation .05 Environmental Information Documents.

*COMAR 26.03.11.05*

A. An EID consists of a written analysis prepared by an applicant describing the environmental impacts of a proposed project.

B. An applicant shall prepare an EID on a form supplied by the Department as part of the application for the loan agreement.

C. The EID shall be prepared as early in the application process as possible so that the Department can conduct its environmental review as early as possible.

D. The EID shall be of sufficient scope to enable the Department to identify and evaluate related environmental impacts of a proposed project.

E. An EID does not have to be prepared for projects when a categorical exclusion is granted.

#### Regulation .06 Environmental Review.

*COMAR 26.03.11.06*

An environmental review consists of a study of a project to identify and evaluate the related environmental impacts. The process shall include a review of the EID to determine whether any significant impacts are anticipated and whether any changes can be made in the project to eliminate or mitigate significant adverse impacts. The Department has overall responsibility for this review, although applicants will contribute to the review through submission of EIDs. The Department may determine to partition or divide its environmental review of a large project intended to be built in several phases.

#### Regulation .07 Environmental Assessments.

*COMAR 26.03.11.07*

At the conclusion of the environmental review, the Department shall prepare an environmental assessment which is a concise summary of the review.

#### Regulation .08 Finding of No Significant Impact.

*COMAR 26.03.11.08*

A. Determination. If the Department determines, at the conclusion of the environmental review, that no significant environmental impacts are anticipated, or when the project design and scope is altered or other measures are taken to eliminate or mitigate any significant environmental impacts, the Department shall issue a proposed FNSI to the applicant. The environmental assessment prepared by the Department shall be included as part of the proposed FNSI.

B. Public Inspection of Documents. After the Department issues the proposed FNSI, the Department will make available for public inspection in at least one location in the region in which the project is located, a copy of the proposed FNSI, the EID, the environmental assessment, the loan application, and a copy or summary of other materials considered by the Department.

C. Written Comments and Request for Hearing. Within 10 days after the Department issues the proposed FNSI, the Department will publish a prominent advertisement in at least one newspaper of general circulation in the area concerned. The advertisement shall include:

  (1) A summary of the proposed project;

  (2) The place where the materials required by §B of this regulation are available for public inspection;

  (3) A statement that the public has 20 days after the advertisement publication date to submit written comments; and

  (4) The address to which the comments may be sent.

D. Notification to State and Federal Agencies. The Department shall submit the FNSI to those lead State and federal agencies responsible for the federal laws itemized in Appendix F of the Initial Guidance for State Revolving Funds (January 28, 1988).

E. Determination of Need for Public Hearing.

  (1) The Department may schedule a public hearing, to be held jointly by the Department and the applicant, before issuing a FNSI if the:

    (a) Department determines the environmental impact of the project is of broad, general interest; or

    (b) Project generated substantial public interest as indicated by written comments concerning the environmental impact.

  (2) Notwithstanding the factors in §E(1), of this regulation the Department may determine that previous opportunities for public participation have been adequate to allow the Department to determine whether a final FNSI should be issued.

F. Notification of Public Hearing. If the Department schedules a joint public hearing on the proposed FNSI, the Department will notify the public of the scheduled public hearing by placing a prominent advertisement in at least one newspaper of general circulation in the region affected. The notice shall:

  (1) Give the date, time, location, and subject of the hearing; and

  (2) Be published at least 20 days before the scheduled hearing.

G. The Department will respond to comments on the proposed FNSI before issuing the final FNSI.

H. Issuance of Final FNSI. If no information is presented that would affect the issuance of the final FNSI, the Department will issue the final FNSI to the applicant.

#### Regulation .09 Environmental Impact Statement.

*COMAR 26.03.11.09*

A. Criteria for Initiating Environmental Impact Statements. If the Department determines, after the environmental review, that significant environmental impacts may occur and cannot adequately be mitigated or that any of the conditions set forth in 40 CFR §6.108(a)—(g) and 6.509 exist, the applicant shall prepare a draft EIS and shall submit it to the Department for preliminary approval.

B. Content of Environmental Impact Statements. Preparers of EIS's shall conform with the requirements of 40 CFR §§6.201 — 6.205 in intent and scope. The Department may specify any additional issues it requires to be addressed in the EIS.

C. After the Department grants preliminary approval of the draft EIS, the Department shall assure the review of the draft EIS by State and federal agencies through the State Clearinghouse, and shall allow these agencies a 20-day comment period.

D. Public Inspection of Documents. Within 10 days after the Department grants preliminary approval of a draft EIS, the Department will make available for public inspection in at least one location in the region in which the project is located, a copy of the draft EIS, the EID, the environmental assessment, the loan application, and a copy or summary of other materials considered by the Department.

E. Written Comments and Request for Hearing. Within 10 days after preliminary approval of the draft EIS, the applicant shall publish a prominent advertisement in at least one newspaper of general circulation in the area concerned. The advertisement shall be made at the applicant's expense and in a format stipulated by the Department and shall include:

  (1) A summary of the nature and location of the proposed project;

  (2) The place where the materials required by §D, of this regulation, are available for public inspection;

  (3) A statement that the public has 10 days after the advertisement publication date to submit a written request for a public hearing, to be held jointly by the Department and the applicant, on the draft EIS;

  (4) A statement that the public has 20 days after the advertisement publication date to submit written comments; and

  (5) The address to which the comments or request for a public hearing may be sent.

F. The applicant shall file a copy of the public notice and a certification of publication with the Department.

G. The Department may schedule a joint public hearing on the draft EIS if the:

  (1) Department determines the environmental impact of the project is of broad, general interest; or

  (2) Project generated substantial public interest as indicated by written comments concerning the environmental impact.

H. Notification of Public Hearing. If the Department schedules a joint public hearing on the draft EIS, the applicant shall notify the public of the scheduled public hearing by placing a prominent advertisement in at least one newspaper of general circulation in the region affected. The notice shall:

  (1) Be at the applicant's expense;

  (2) Give the date, time, location, and subject of the hearing; and

  (3) Be published at least 20 days before the scheduled hearing.

I. Upon request by the Department, the applicant shall have 10 working days to respond to any comments on the draft EIS.

J. Proposed Final EIS. Not sooner than 5 working days after concluding any public hearing held under the provisions of this regulation, and if no information is presented that would affect the issuance of a proposed final EIS, the Department, in writing, will authorize the applicant to prepare a proposed final EIS.

K. Review of Proposed Final EIS. The Department will make the proposed final EIS available to the public by distribution to a mailing list consisting of persons who submitted comments to or attended any public hearing on the draft EIS, and to public libraries in the area concerned.

L. Final EIS. After a 15-day comment period, the Department will determine to proceed or not to proceed with the project and will issue its record of decision in the final EIS.

M. Mitigation Measures. In the final EIS, the Department shall list any mitigation measures necessary to make the project environmentally acceptable. Mitigation measures shall be included in the loan agreement and may be included in the construction permit or NPDES discharge permit.

N. Cost of EIS. The cost to the applicant of preparing the EIS is eligible to be financed with loans made by the Administration.

#### Regulation .10 Reaffirmation.

*COMAR 26.03.11.10*

If 5 or more years has lapsed since a previously determined categorical exclusion, FNSI, or EIS, the Department may determine to reaffirm or modify the decision contained in a previously issued categorical exclusion, FNSI, or EIS, following the Department's environmental reevaluation of the proposed project. The Department's decision to reaffirm a categorical exclusion, FNSI, or EIS more than 5 years old shall follow the public review procedures described in Regulations .04, .08, or .09, respectively, of this chapter.

### Chapter 12 — Construction Permits and Certain Related Requirements for Major Water Supply and Major Sewerage Systems

**Authority:** Environment Article, §§9-204 and 9-510, Annotated Code of Maryland

**Administrative History:** Effective date: January 1, 1992 (18:25 Md. R. 2759)

**Administrative History:** Regulations .02, .05, and .06 amended as an emergency provision effective November 17, 1995 (22:25 Md. R. 1959); amended permanently effective February 26, 1996 (23:4 Md. R. 274)

**Administrative History:** Regulation .03C adopted effective October 4, 1999 (26:20 Md. R. 1548)

**Administrative History:** Regulation .04A amended effective October 4, 1999 (26:20 Md. R. 1548)

#### Regulation .01 Scope.

*COMAR 26.03.12.01*

These regulations set forth certain requirements in connection with the installation, material alteration, or material extension of major water supply systems and major sewerage systems, including the requirement that a permit must first be issued by the Department of the Environment, and the related fees.

#### Regulation .02 Definitions.

*COMAR 26.03.12.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Department” means the Department of the Environment.

  (2) “Design capacity” means the maximum flow capacity that something is capable of providing while achieving and maintaining the level of performance for which it was designed.

  (3) “Includes” means including but not limited to.

  (4) “Local government" means a Maryland county, municipality, sanitary commission, sanitary district, or other local government entity or unit of it.

  (5) “MGD” means million gallons per day.

  (6) “Major sewerage system” means the pipes or other channels by which sewage is or is intended to be collected, conveyed, prepared for discharge and disposed of, together with all structures, pumping stations, tanks, equipment, and appurtenances used or intended to be used in its collection, conveyance, or preparation for discharge in satisfactory condition into the ground waters or other waters of the State, excluding only:

    (a) Minor building connections;

    (b) The plumbing systems, including pumping stations, inside the buildings served;

    (c) Septic tanks and their related drain fields and other appurtenances; and

    (d) Gravity sewers with diameters 15 inches or smaller.

  (7) “Major water supply system” means a system consisting of all pipes or other channels, structures, pumping stations, equipment, and appurtenances by means of which water is, or is intended to be, collected, treated, or conveyed for drinking or domestic purposes, which serves, or is intended to serve, 25 or more of the same persons on a day-to-day basis at least 6 months out of the year or which serves, or is intended to serve, 15 or more residential connections, excluding only:

    (a) Minor building connections;

    (b) The plumbing systems, including pumping stations, inside the buildings served;

    (c) Wells; and

    (d) Water mains with diameters 15 inches or smaller.

  (8) “Materially alters” means any alteration other than:

    (a) Normal maintenance and repair;

    (b) The addition of a minor building connection; or

    (c) The installation of a meter, valve, or hydrant, and similar minor alterations.

  (9) “Materially extends” means any extension of water mains or gravity sewers with diameters greater than 15 inches.

  (10) “Minor building connection” means a pipe or other channel having a projected flow not exceeding 5,000 gallons per day average daily flow running from a particular building, structure, or other facility that it serves to that point at which it is first connected to a:

    (a) Pipe or other channel that runs along a right-of-way area;

    (b) Pipe or other channel which also serves other buildings; or

    (c) Pumping station.

  (11) “Person” includes:

    (a) Any individual, partnership, firm, association, corporation, or other entity;

    (b) Any receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind; and

    (c) The federal government, a state, a local government, or unit of them.

  (12) “Pumping station” means a facility or system with a total design capacity greater than 5,000 gallons per day average daily flow that is designed to deliver water or sewage from a lower elevation to a higher elevation. The facility may include pumps, controls, and auxiliary equipment, as well as the structures containing these items.

  (13) “Right-of-way area” means:

    (a) A road, street, alley, or other easement or right-of-way area benefitting more than one parcel of land; and

    (b) An existing or proposed road, street, alley, or other easement or right-of-way area benefitting more than one lot or parcel of land, as shown on a subdivision plat that is recorded in the local land records or as shown on a plat submitted to a governmental entity for review in connection with an intended or planned subdivision.

  (14) “Sewage” means:

    (a) Any human excretion or water-carried domestic waste; and

    (b) A mixture of any human excretion or water-carried domestic waste with any other liquid or water-carried waste, such as manufacturing or industrial waste, street wash, rain water discharged from roofs, lawns, paved areas, etc., and ground garbage.

  (15) “Sewage collection lines” means the part, if any, of a major sewerage system consisting of the pipes and other channels by which sewage is collected and conveyed to the place for its treatment and disposal, including sanitary sewer lines and force main lines, but excluding pumping stations.

  (16) “Sewage treatment plant” means the part, if any, of a major sewerage system consisting of a facility, other than a septic tank, using chemical, physical, or biological processes, or all of these, to prepare sewage in a satisfactory condition for discharge into the ground waters or other waters of the State or for application on land after it is treated.

  (17) Unit Process.

    (a) “Unit process” means the equipment and other improvements at a water supply plant or sewage treatment plant used in each distinct step in the process of treating water or sewage.

    (b) “Unit process” includes:

      (i) Clarifiers;

      (ii) Activated sludge aeration tanks;

      (iii) Disinfection facilities;

      (iv) Filtration units;

      (v) Digestors; and

      (vi) Belt filter presses.

  (18) “Water distribution lines” means the part, if any, of a major water supply system consisting of the pipes and other channels by which water that has been prepared for human consumption is conveyed from the place of its treatment to the consumer or other user, excluding pumping stations.

  (19) “Water supply plant” means the part, if any, of a major water supply system consisting of a facility using chemical, physical, or biological processes, or all of these, to prepare water that is safe for human consumption and domestic purposes, together with all water storage facilities irrespective of their location.

#### Regulation .03 General Requirements.

*COMAR 26.03.12.03*

A. Permit. A person shall have a permit issued by the Department under Environment Article, §9-204, Annotated Code of Maryland, before the person installs, materially alters, or materially extends a major water supply system or major sewerage system within the State.

B. Construction in Accordance with Permit. Within the State, a person may not:

  (1) Install, materially alter, or materially extend a major water supply system or major sewerage system except in accordance with a permit, and including any conditions or requirements set forth in the permit, issued to the person by the Department under Environment Article, §9-204, Annotated Code of Maryland; or

  (2) Embody any material change in construction until the Department has issued a revised permit based on the submission to the Department of any material change in the plans and specifications, together with the reason for the change.

C. Capacity Development Assessment Program. Before a permit may be issued under Environment Article, §9-204, Annotated Code of Maryland, for new major water supply systems, a permit applicant shall demonstrate to the satisfaction of the Department that it has the technical, financial, and managerial capacity to operate the system as required by COMAR 26.04.01.36.

#### Regulation .04 Application for Permit.

*COMAR 26.03.12.04*

A. Application Contents.

  (1) To apply for a permit, an applicant shall submit to the Department an application consisting of all of the following:

    (a) A completed application form as specified by the Department;

    (b) A fee equal to the sum of the amounts due under Regulations .05 and .06 of this chapter unless the permit is exempt from the requirement to pay a fee under the provisions of the governmental exemption set forth in Regulation .07 of this chapter;

    (c) The complete plans and specifications for the installation, alteration, or extension of the major water supply system or major sewerage system, prepared in accordance with all requirements of §§B—E of this regulation;

    (d) If required by the Department, an engineering report prepared in accordance with the requirements of §F of this regulation;

    (e) Information the Department may require to demonstrate that the requirements of the county water and sewer comprehensive plan and applicable laws are satisfied; and

    (f) Other information the Department requires, including information required by the Department in COMAR 26.04.01.36.

  (2) Upon receiving an application, the Department shall determine the total fee due and, if the applicant has paid less than the total amount which the Department determines is due, the Department shall promptly notify the applicant of the need to pay the additional amount due. Until the Department has received the total fee which it has determined is due, together with everything required under or pursuant to §A(1) of this regulation, and any changes or corrections required by the Department have been made, the complete application is not considered to have been submitted and the Department is under no obligation to issue or deny a permit.

  (3) Fees are nonrefundable.

  (4) Fees may be paid by check or money order made payable to the Maryland Department of the Environment.

  (5) Submittal of plans and specifications shall be made by the person or persons for whom the work is to be done, or their properly authorized engineers or agents.

B. Submission of Plans and Specifications.

  (1) Complete plans and specifications for proposed work should be submitted for approval at least 30 days before action on them is expected, although action may be taken by the Department before the expiration of that time.

  (2) Reports, plans, and specifications shall be prepared by, signed by, and bear the seal of, a professional engineer licensed in Maryland, except that landscaping and any architectural feature of any building, pumping station, water filtration plant, sewage treatment plant, or elevated water storage unit may also be submitted, signed by, and bear the seal of, an architect licensed in Maryland. Plans not conforming with the requirements of this subsection may not be accepted.

  (3) Plans shall be neatly and legibly drawn upon transparencies or acceptable paper so that copies may be obtained. Except when the originals are presented to the Department for preliminary review, the originals shall be kept by the party presenting the plans, and true copies, which may be white, blue, or black line prints, offset prints, or photostats on a white background, shall be submitted to the Department.

  (4) Plans may not be returned after submission.

  (5) When revisions are necessary, the revisions shall be made on the original tracings and new true copies shall be submitted to the Department. Revisions or additions may not be made directly on the true copies previously or currently submitted to the Department.

  (6) Plans shall be specifically prepared for each project.

C. Size of Plans. Plans may not be greater than 30 × 42 inches or less than 8-1/2 × 11 inches.

D. Number of Plans.

  (1) Two sets of plans and specifications shall be submitted for water supply plants, sewage treatment plants, and pumping stations.

  (2) One set of plans and specifications shall be submitted for water distribution lines, sewage collection lines, and any other improvements for which a permit is required by this chapter.

  (3) If acceptable and approved, the plans shall be retained in the Department's files, and an appropriate reference made to them in the written permit.

E. Title of Plans.

  (1) Each separate drawing shall include a proper title containing the name of the person or persons for whom it is made, the name of the locality to which it refers, a proper description for a full understanding of the nature of the drawing, and the scale, date, and name of the engineer, architect, or surveyor preparing it.

  (2) On each plan showing a locality or street layout, an arrow shall be placed designating the direction of north. Plans should be so arranged, whenever practicable, so that north is towards the top or to the left of the sheet.

F. Engineer's Report.

  (1) A complete engineering report, if required by the Department, shall accompany or precede the application for each new major project.

  (2) The report shall contain full information discussing any existing facility and the proposed or new facility, and include all pertinent data necessary to permit a clear and comprehensive review of the subject.

#### Regulation .05 Major Water Supply System Application and Permit Fees.

*COMAR 26.03.12.05*

A. Exception. Notwithstanding §§B—E of this regulation and Regulation .09 of this chapter, and in the discretion of the Department, fees for minor improvements or revisions to existing permits may be waived or reduced.

B. Application and Permit Fees. An applicant for a permit to install, materially alter, or materially extend a major water supply system shall pay the sum of the applicable fees set forth in the fee schedules in §§C—E of this regulation.

C. Water Supply Plants.

  (1) Fees for a new plant and fees for an existing plant at which two or more new unit processes are to be constructed are as follows:

  (2) Fees for an existing plant at which only one new unit process is to be constructed are as follows:

  (3) If no fee is due under §C(1) or (2) of this regulation, the fee shall be the lesser of the:

    (a) Amount listed in §C(2) of this regulation for the design capacity of the particular plant; or

    (b) Sum of the following:

      (i) $125 for each unit process that is installed, materially altered, or materially extended, plus

      (ii) $125 for each component, which is not part of a unit process, that is installed, materially altered, or materially extended.

  (4) In §C(3)(b) of this regulation, examples of components which are not part of a unit process include bar screens, intake structures, storage tanks, flow diversion structures, and chemical feed pumps.

D. Water Distribution Lines.

  (1) Fees for new lines and material alterations and material extensions to existing lines are set forth in §D(2) and (3) of this regulation. Water supply plant and pumping station fees are additional.

  (2) Fees for distribution lines and appurtenances are as follows:

E. Pumping Stations.

  (1) Fees for new pumping stations and for material alterations and material extensions to existing pumping stations are set forth in the following fee schedule in this section:

  (2) The combined design capacity of all lift stations applied for under the permit shall be used in calculating the design capacity.

#### Regulation .06 Major Sewerage System Application and Permit Fees.

*COMAR 26.03.12.06*

A. Exception. Notwithstanding §§B—E of this regulation and Regulation .09 of this chapter, and in the discretion of the Department, fees for minor improvements or revisions to existing permits may be waived or reduced.

B. Application and Permit Fees. An applicant for a permit to install, materially alter, or materially extend a major sewerage system shall pay the sum of the applicable fees set forth in the fee schedules in §§C—E of this regulation.

C. Sewage Treatment Plants.

  (1) Fees for a new plant and fees for an existing plant at which two or more new unit processes are to be constructed are as follows:

  (2) Fees for an existing plant at which only one new unit process is to be constructed are as follows:

  (3) If no fee is due under §C(1) or (2) of this regulation, the fee shall be the lesser of the:

    (a) Amount listed in §C(2) of this regulation for the design capacity of the particular plant; or

    (b) Sum of the following:

      (i) $125 for each unit process that is installed, materially altered, or materially extended, plus

      (ii) $125 for each component, which is not part of a unit process, that is installed, materially altered, or materially extended.

  (4) In §C(3)(b) of this regulation, examples of components which are not part of a unit process include bar screens, comminutors, splitter boxes, flow meters, sludge holding tanks, and sludge drying beds.

D. Sewage Collection Lines.

  (1) Fees for new lines and material alterations and material extensions to existing lines are set forth in §D(2) and (3) of this regulation. Sewage treatment plant and pumping station fees are additional.

  (2) Fees for sewage collection lines and appurtenances are as follows:

E. Pumping Stations.

  (1) Fees for new pumping stations and for material alterations and material extensions to existing pumping stations are set forth in the following fee schedule:

  (2) The combined design capacity of all lift stations applied for under the permit shall be used in calculating the design capacity.

#### Regulation .07 Governmental Exemption from Payment of Fee.

*COMAR 26.03.12.07*

A. General. Improvements to be constructed pursuant to a permit are not exempt from the fees due under this chapter unless they will be governmentally owned as soon as they become affixed to the real property, that is, as they are constructed, and satisfy all requirements of either §B or C of this regulation. The applicant for the permit shall be a governmental entity as listed in Regulation .02B(11)(c) of this chapter, and the permit shall be issued in the name of that governmental entity.

B. Local Governments.

  (1) When the applicant is a local government, the application and permit are exempt from the fee that would otherwise be due if:

    (a) The requirements of §A of this regulation are satisfied; and

    (b) As part of its application, the local government submits documentation, satisfactory to the Department, that less than half of the total cost of the improvements to be constructed pursuant to the permit are expected to be directly or indirectly funded from amounts private developers or other private persons have previously contractually agreed to pay, in connection with the development of a project or projects that the improvements authorized by the permit will serve.

  (2) Unless the Department requires additional documentation in a specific instance, the documentation required by §B(1)(b) of this regulation may be in the form of a certification, signed by a local government official, that the requirement of §B(1)(b) of this regulation is satisfied.

C. State and Federal Governments. When the applicant is a state, the federal government, or a unit of them, the application and permit are exempt from the fee that would otherwise be due, provided that the requirements of §A of this regulation are satisfied.

D. Satisfactory Documentation. Before exempting a permit from payment of the fee that otherwise would be due, the Department may require documentation satisfactory to it that the applicable requirements of this regulation are satisfied.

#### Regulation .08 As-Constructed Plans.

*COMAR 26.03.12.08*

Within 60 days after the completion of the work under a permit, the holder of the permit shall submit to the Department, for permanent record, a copy of the plans, with a certification satisfactory to the Department, that shows the work as built, or a certification satisfactory to the Department that the work was built in accordance with the original plans approved by the Department.

#### Regulation .09 Revised Permits and Revised Permit Fees.

*COMAR 26.03.12.09*

An applicant for a revised permit to install, materially alter, or materially extend a major water supply system or major sewerage system shall submit any information the Department requires and pay a nonrefundable revised permit application fee of $100.

#### Regulation .10 Permit Expiration and Extensions.

*COMAR 26.03.12.10*

A. Permits expire 3 years after the date of issuance, unless an extension is granted by the Department.

B. The permit holder may apply to the Department for a 1-year extension of the permit expiration date. The nonrefundable fee for applying for the extension is $50.

C. The granting of a permit extension is in the discretion of the Department.

#### Regulation .11 Applicability.

*COMAR 26.03.12.11*

A. This chapter implements the requirements of Environment Article, §9-204, Annotated Code of Maryland, in connection with major water supply systems and major sewerage systems.

B. This chapter may not be interpreted as meaning that a permit issued under Environment Article, §9-204, Annotated Code of Maryland, is not required for the installation, material alteration, or material extension of a:

  (1) Water supply system, as defined in Environment Article, §9-201, Annotated Code of Maryland, that is not a major water supply system; or

  (2) Sewerage system, as defined in Environment Article, §9-201, Annotated Code of Maryland, that is not a major sewerage system.

#### Regulation .12 Penalties.

*COMAR 26.03.12.12*

Persons violating these regulations or any permit issued under these regulations are subject to Environment Article, §§9-268 and 9-334—9-342, Annotated Code of Maryland, and the penalties set forth there.

### Chapter 13 — Bay Restoration Fund Implementation

**Authority:** Environment Article, §9-1605.2, Annotated Code of Maryland;Chs. 80 and 379, Acts of 2014; Chs. 124 and 153, Acts of 2015

**Administrative History:** Effective date: February 3, 2014 (40:2 Md. R. 92)

**Administrative History:** Regulation .01A amended effective June 23, 2014 (41:12 Md. R. 669)

**Administrative History:** Regulation .02B amended effective April 9, 2018 (45:7 Md. R. 346); June 18, 2018 (45:12 Md. R. 619)

**Administrative History:** Regulation .03 amended effective June 23, 2014 (41:12 Md. R. 669); March 28, 2016 (43:6 Md. R. 412)

**Administrative History:** Regulation .03A amended effective June 18, 2018 (45:12 Md. R. 619)

**Administrative History:** Regulation .03A, B amended effective April 9, 2018 (45:7 Md. R. 346)

**Administrative History:** Regulation .03E amended effective May 17, 2021 (48:10 Md. R. 401)

**Administrative History:** Regulation .03F adopted effective April 9, 2018 (45:7 Md. R. 346)

**Administrative History:** Regulation .04A amended effective January 23, 2015 (42:1 Md. R. 19)

**Administrative History:** Regulation .04A, C amended effective June 23, 2014 (41:12 Md. R. 669)

**Administrative History:** Regulation .04D adopted effective January 23, 2015 (42:1 Md. R. 19)

**Administrative History:** Regulation .04D amended effective April 8, 2019 (46:7 Md. R. 371)

#### Regulation .01 Scope.

*COMAR 26.03.13.01*

This chapter specifies the procedures for implementing the Bay Restoration Fund authorized under Environment Article, §9-1605.2, Annotated Code of Maryland. The Bay Restoration Fund is administered by the Maryland Water Quality Financing Administration, a unit of the Department, and is comprised of two sub-funds:

A. Wastewater Fund: Bay Restoration Fund fees collected from customers or users of wastewater treatment plants are deposited by the Comptroller into this fund and are used to provide grants for the upgrade of wastewater treatment plants with enhanced nutrient removal technology, a portion of the operation and maintenance costs related to ENR, and other authorized uses.

B. Onsite Sewage Disposal System Fund: Bay Restoration Fund fees collected from users of onsite sewage disposal systems (such as septic systems or holding tanks) are deposited by the Comptroller into this fund and are used to provide grants or loans for the upgrade of onsite sewage disposal systems with best available technology for removal of nitrogen, and other authorized uses.

#### Regulation .02 Definitions.

*COMAR 26.03.13.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Administration” means the Maryland Water Quality Financing Administration.

  (2) “Biological nutrient removal” has the meaning stated in Environment Article, §9-1601, Annotated Code of Maryland.

  (3) “Department” means the Maryland Department of the Environment.

  (4) “Eligible cost” has the meaning stated in Environment Article, §9-1605.2, Annotated Code of Maryland.

  (5) “Enhanced nutrient removal” or “ENR” has the meaning stated in Environment Article, §9-1601, Annotated Code of Maryland.

  (6) “Local government” has the meaning stated in Environment Article, §9-1601, Annotated Code of Maryland.

  (7) “Low-income homeowner” means a household with an income less than the income eligible standards established by the Maryland Department of Human Services for its Energy Assistance Program.

  (8) “Nonconforming onsite sewage disposal systems” means existing onsite sewage disposal systems that do not comply with current State or local laws, regulations, or policies.

  (9) “Onsite Sewage Disposal System” means a sewage system that discharges treated effluent into the ground, such as a septic system.

  (10) “Person” has the meaning stated in Environment Article, §1-101, Annotated Code of Maryland.

  (11) “Seller” means any person or local government entering into a contract to sell nutrient or sediment load reductions to the Department in accordance with Regulation .03F of this chapter.

  (12) “Septic equivalent dwelling unit” means a measure determined based on the average daily flow of a septic system as follows:

    (a) A household septic or any other septic system with average daily flow of 195 gallons per day or less is considered one septic equivalent dwelling unit; or

    (b) For a larger septic system, septic equivalent dwelling units are determined by the average daily flow of the system divided by 195 gallons per day.

#### Regulation .03 Wastewater Fund.

*COMAR 26.03.13.03*

A. Bay Restoration Fund fees deposited into the Wastewater Fund shall be used:

  (1) To provide a source of revenue or security for the payment of principal and interest on bonds issued by the Administration, and the cost of issuance, if the bond proceeds are deposited in the Bay Restoration Fund;

  (2) To provide grant awards to wastewater treatment plants whose users have contributed to the Bay Restoration Fund for up to 100 percent of the eligible cost to upgrade wastewater treatment plants to enhanced nutrient removal treatment levels at the design capacity approved by the Department;

  (3) For a portion of the operation and maintenance costs, starting in FY 2010, of wastewater treatment plants that operate at the enhanced nutrient removal treatment levels, not to exceed 10 percent of the amount deposited into the Wastewater Fund annually;

  (4) Starting in FY 2016, to provide for up to 87.5 percent of project costs relating to combined sewer overflow abatement, rehabilitation of existing sewers, and upgrading conveyance systems, including pumping stations;

  (5) To provide for up to 100 percent of project costs for the implementation of a stormwater alternative compliance plan, authorized by a local government pursuant to Environment Article, §4-202.1(K)(3), Annotated Code of Maryland, and undertaken by an organization exempt from taxation under IRS §501(C)(3) or §501(C)(4) or §501(C)(19) or §501(D);

  (6) Starting in FY 2018, for additional funding to be used in accordance with Regulation .04 of this chapter for the upgrade of onsite sewage disposal systems and other eligible uses pursuant to Environment Article, §9-1605.2(h)(2)(i)1, Annotated Code of Maryland;

  (7) Starting in FY 2018, to provide for up to 50 percent of the eligible cost of cost-effective and efficient stormwater projects undertaken by local governments who have implemented a system of charges. To be eligible for funding, the local governments shall show evidence of funds set aside and available to cover the balance of project costs;

  (8) To provide for the Department’s reasonable operating expenses to administer the Bay Restoration Wastewater Fund not to exceed 1.5 percent of the fees deposited into the Wastewater Fund annually;

  (9) To provide for future upgrades of wastewater treatment plants to achieve additional nutrient removal or water quality improvements at ENR treatment levels or better;

  (10) To earn interest;

  (11) To purchase nitrogen, phosphorus, and sediment load reductions.

B. Project Prioritization.

  (1) Before FY 2018, priority for funding shall be:

    (a) First for ENR upgrades at wastewater treatment plants with a design capacity of 500,000 gallons per day or more that discharge to the Chesapeake Bay;

    (b) Second for the most cost-effective ENR upgrades at wastewater treatment plants with a design capacity of less than 500,000 gallons per day that discharge to the Chesapeake Bay;

    (c) Third for ENR upgrades at wastewater treatment plants that discharge into the Atlantic Coastal Bay or other waters of the State;

    (d) Fourth for future upgrades of wastewater treatment plants to achieve additional nutrient removal or water quality improvements at ENR treatment levels or better;

    (e) Fifth for combined sewer overflow abatement projects, rehabilitation of existing sewers, and upgrading conveyance systems, including pumping stations.

  (2) Starting in FY 2018, priority for funding shall be:

    (a) First for ENR upgrades at wastewater treatment plants with a design capacity of 500,000 gallons per day or more that discharge to the Chesapeake Bay;

    (b) Second for the most cost-effective ENR upgrades at wastewater treatment plants with a design capacity of less than 500,000 gallons per day that discharge to the Chesapeake Bay, based on their project ranking in accordance with §C of this regulation;

    (c) Third for ENR upgrades at wastewater treatment plants that discharge into the Atlantic Coastal Bay or other waters of the State, based on their project ranking in accordance with §C of this regulation;

    (d) Fourth for future upgrades of wastewater facilities to achieve additional nutrient removal or water quality improvements at ENR treatment levels or better, based on their project ranking in accordance with §C of this regulation;

    (e) Fifth for purchase of nitrogen, phosphorus, and sediment load reductions in accordance with §F of this regulation;

    (f) Sixth for any of the following types of projects based on their project ranking in accordance with §C of this regulation:

      (i) Combined sewer overflow abatement, rehabilitation of existing sewers, and upgrading conveyance systems, including pumping stations;

      (ii) Nitrogen reduction of onsite sewage disposal systems in accordance with Regulation .04 of this chapter;

      (iii) Stormwater projects by local governments who have implemented a system of charges; and

      (iv) Stormwater alternative compliance plans.

C. Ranking System. The Department shall request and accept applications for financial assistance annually and prepare a project priority list that ranks individual projects according to the methodology developed by the Department based on the following factors:

  (1) Nutrient loads currently discharged and projected nutrient load reduction;

  (2) Cost-effectiveness in providing water quality or public health benefits;

  (3) Relative effectiveness of water quality benefit to the Chesapeake Bay or other body of water identified by the Department as impaired under Section 303(d) of the Clean Water Act;

  (4) The existence of an Administrative or Civil Compliance Order or of a compliance schedule in a discharge permit;

  (5) Sustainability benefits such as water reuse, asset management, full cost pricing, energy conservation and smart growth;

  (6) Readiness to proceed to construction.

D. Funding Allocation. Each fiscal year, the total available grant funds, net of revenue needed for payment of debt service on outstanding bonds, operation and maintenance grants, and allowed operating expenses shall be allocated in priority order to construction ready projects in accordance with §§B and C of this regulation.

E. Enhanced Nutrient Removal Operation and Maintenance Grants.

  (1) In fiscal year 2010 and thereafter, up to 10 percent of the fees collected annually in the Wastewater Fund shall be given to owners of wastewater treatment plants that are operating at or above the enhanced nutrient removal treatment level as grant awards to partially offset the cost of operation and maintenance.

  (2) The operation and maintenance grant for wastewater treatment plants operating at the enhanced nutrient removal treatment levels shall be at the base rate of $30,000 per year for every one million gallons per day design flow, not to exceed $300,000 per facility per year. Facilities with less than one million gallons per day design flow shall receive the base rate of $30,000 per year. This formula may be adjusted if there is a change in the Bay Restoration Fund statute, or if the amount appropriated in the budget is reduced.

  (3) The Department may offer a prorated amount of an operations and maintenance grant to correspond with the number of months that a wastewater treatment plant operated at the enhanced nutrient removal treatment level in the first year of project completion.

  (4) The Department may offer additional operation and maintenance grants for facilities achieving above the enhanced nutrient removal treatment level based on the additional load reductions achieved.

  (5) To qualify for the annual operation and maintenance grant, the following criteria shall be met:

    (a) The users of the wastewater treatment plant pay the Bay Restoration Fund fee;

    (b) The owner shall file an application with the Department on or before January 31 of each year, or by a date specified by the Department;

    (c) The owner shall demonstrate, by submitting performance data for the prior calendar year, that the plant was operated in a manner that optimized enhanced nutrient removal and used its best efforts to achieve equal to or less than 3 mg/l total nitrogen and equal to or less than 0.3 mg/l total phosphorus in wastewater effluent concentration;

    (d) The owner shall provide data requested by the Department about the impact that a wastewater treatment plant that was upgraded to ENR has had on growth within the municipality or county that such a wastewater treatment plant is located as required by Environment Article, §9-1605.2, Annotated Code of Maryland.

F. Purchase of Nitrogen, Phosphorus, and Sediment Load Reductions.

  (1) Nitrogen, phosphorus, or sediment load reductions eligible for purchase shall meet the following criteria:

    (a) The environmental practices generating the purchased nitrogen, phosphorus, and sediment load reductions shall be located in Maryland;

    (b) The purchase of nitrogen, phosphorus, and sediment load reductions may not be from the agricultural sector or be permitted from environmental practices implemented on agricultural land as defined in COMAR 15.20.12.02;

    (c) The load reductions to be purchased pursuant to these regulations shall have been created on or after July 1, 2017; and

    (d) The load reductions purchased pursuant to these regulations may not be used for any other purpose.

  (2) Contracts for purchase of load reductions shall meet the following criteria:

    (a) The contracts executed by the Department for the purchase of nitrogen, phosphorus, and sediment load reductions may not exceed an annual obligation of $4,000,000 in FY 2018, $6,000,000 in FY 2019, $10,000,000 in FY 2020 and $10,000,000 in FY 2021, and may not exceed a cumulative expenditure of $30,000,000 over the term of the contracts;

    (b) The term of the contracts for the annual purchase of nitrogen, phosphorus, and sediment load reductions may not exceed the useful life of the environmental practice as determined by the Department;

    (c) The Department may not sign any new contracts for the annual purchase of nitrogen, phosphorus, and sediment load reductions after June 30, 2021; and

    (d) Payment provisions will be defined in each purchasing contract and shall require documentation submitted by the seller reporting the nitrogen, phosphorus, or sediment load reduction resulting from a completed environmental practice.

  (3) The Department shall use baseline loads and load reductions from baseline loads in developing a methodology for the purchase of nitrogen, phosphorus, and sediment load reductions.

  (4) The purchasing baseline loads used to calculate the reduction of nitrogen, phosphorus, or sediment load reduction resulting from a proposed environmental practice are as follows:

    (a) The baseline for wastewater treatment plants that received a grant from the Bay Restoration Fund for ENR upgrade shall be the lesser of:

      (i) The annual load calculated based on a nitrogen concentration of 3.0 mg/l for nitrogen or a phosphorus concentration of 0.3 mg/l for phosphorus; or

      (ii) The annual load for nitrogen or phosphorus, whichever is applicable, reported for the wastewater treatment plant for calendar year 2016;

    (b) The baseline for wastewater treatment plants that did not receive a grant from the Bay Restoration Fund shall be the lesser of:

      (i) The annual load calculated based on a nitrogen concentration of 18 mg/l for the nitrogen or a phosphorus concentration of 2 mg/l for the phosphorus, and the baselines may not to exceed the waste load allocation or concentrations assigned to the wastewater treatment plant by the discharge permit; or

      (ii) The annual load for nitrogen or phosphorus, whichever is applicable, reported for the wastewater treatment plant for calendar year prior to a proposal submitted in response to a Request for Proposals issued by the Department pursuant to these regulations, and the baseline may not to exceed the waste load allocation or concentrations assigned to the wastewater treatment plant by the discharge permit;

    (c) The baseline per septic equivalent dwelling unit for nitrogen loading for a septic system that is connected to wastewater treatment plant on or after July 1, 2017, and did not receive State or federal financial assistance for the connection shall be:

      (i) For a septic system that has not been upgraded with the best available technology, 18.56 lbs/year for a system located within the critical areas, 11.60 lbs/year for a system located within 1,000 feet of surface water, and 6.96 lbs/year for all other system locations; and

      (ii) For a septic system that has been upgraded with the best available technology, 9.28 lbs/year for a system located within the critical areas, 5.80 lbs/year for a system located within 1,000 feet of surface water, and 3.48 lbs/year for all other system locations;

    (d) The baseline for a permittee implementing stormwater best management practices and non-agricultural nonpoint source practices for nitrogen, phosphorus, or sediment reduction shall be the load reduction achieved after subtracting the load reductions the permittee is required to make under its municipal separate storm sewer system permit; or

    (e) The baseline for a person not regulated under municipal separate storm sewer system permit or property owner implementing stormwater best management practices or any other permissible nonpoint source practices for nitrogen, phosphorus, or sediment reduction shall be the existing conditions of the date a proposal is submitted for the purchase of a load reduction pursuant to these regulations, as determined by the Department consistent with appropriate assumptions and provisions of the Chesapeake Bay TMDL and the Chesapeake Bay Watershed Model, or other Chesapeake Bay Program models, provided that the reduction is not used by a regulated entity to meet the reductions required under its municipal separate storm sewer system permit.

  (5) Calculations to determine the total annual nitrogen, phosphorus, or sediment load reduction resulting from a proposed environmental practice shall be consistent with appropriate assumptions and provisions of the Chesapeake Bay TMDL and the Chesapeake Bay Watershed Model, or other Chesapeake Bay Program models and shall be based on the following:

    (a) For a wastewater treatment plant, the load reduction is the annual loading identified in the monthly discharge monitoring reports submitted to the Department by the permittee as required under the national pollution discharge elimination system permit or groundwater discharge permit, subtracted from the baseline loading;

    (b) For septic system connections to wastewater treatment plants, the nitrogen reduction from each septic system is the average flow of 250 gallons per day per connected septic equivalent dwelling unit multiplied by the annual average nitrogen concentration at the wastewater treatment plant servicing the connections for the calendar year preceding the connection, subtracted from the baseline loading;

    (c) For a septic system connection to wastewater treatment plants, the phosphorus reduction is zero lbs/year; or

    (d) For stormwater best management practices and non-agricultural non-point source practices, the load reduction is the loads generated after the implementation of the best management practice as determined by the Department consistent with appropriate assumptions and provisions of the Chesapeake Bay TMDL and the Chesapeake Bay Watershed Model, or other Chesapeake Bay Program models subtracted from the baseline loading.

  (6) The gross nitrogen, phosphorus, and sediment reduction calculated in §F(5) of this regulation shall be converted to net delivered load reduction consistent with appropriate assumptions and provisions of the Chesapeake Bay TMDL and the Chesapeake Bay Watershed Model, or other Chesapeake Bay Program models, and the converted load is the maximum amount available for purchase.

  (7) The Department may not process any payment without being able to verify the reported reductions through the review of the supporting documentation provided by the seller, the review of other documents available to the Department, or on-site inspection, or combination of whichever is applicable.

  (8) The Department shall use a competitive process to select sellers for the purchase of nitrogen, phosphorus, or sediment load reduction, based on the following factors:

    (a) Cost — Lowest annual cost per pound for nitrogen and phosphorus load reduction, and lowest cost/ton for sediment load reduction with the cost of reduction for each pollutant evaluated and compared independently;

    (b) Materiality — Annual load reduction of at least 500 lbs of nitrogen or 100 lbs of phosphorus or 30 tons of sediment;

    (c) Sustainability — The environment practice is innovative and is able to produce nitrogen, phosphorus, or sediment load reductions, or combinations thereof, for extended periods of time or provide additional environmental benefits; and

    (d) Additional benefits — The environmental practice provides additional benefits to water quality, habitat, watershed function, or social/community enhancement beyond nitrogen, phosphorus, and sediment reduction.

  (9) Any load reductions purchased pursuant to this program and regulations shall be based on projects, practices, or activities initiated after the execution of a contract between the seller and the Department in response to the Request for Proposal issued by the Department.

  (10) Beginning July 1, 2018, the Department shall report each year to the Bay Restoration Fund Advisory Committee on the implementation of this program.

#### Regulation .04 Onsite Sewage Disposal System Fund.

*COMAR 26.03.13.04*

A. Bay Restoration Fund fees deposited into the Onsite Sewage Disposal System Fund shall be used:

  (1) To provide grants or loans up to 100 percent for:

    (a) The cost to upgrade an existing onsite sewage disposal system with the best available technology for the removal of nitrogen;

    (b) The cost difference between a conventional onsite sewage disposal system and an onsite sewage disposal system that utilizes the best available technology for the removal of nitrogen;

    (c) The cost of replacing multiple onsite sewage disposal systems located in the same community with a new community sewerage system that is owned by a local government and that meets enhanced nutrient removal standards, and the cost may not exceed the sum of the cost difference between conventional onsite sewage disposal systems and new onsite sewage disposal systems that use the best available technology for removing nitrogen; and

    (d) The cost of connecting a property using an onsite sewage disposal systems to an existing wastewater treatment plant that meets either enhanced nutrient removal or biological nutrient removal standards. This cost may not exceed the sum of the cost of onsite sewage disposal systems that include best available technology for removing nitrogen. This cost may include payment of principal, but not interest, of debt issued by a local government for such connection.

  (2) To provide grants or loans up to 100 percent for the cost of repairing or replacing failing onsite sewage disposal systems with a system that uses the best available technology for the removal of nitrogen. This option is available only to low-income homeowners. The cost is the total cost of repair, replacement and upgrade including wastewater disposal drainfields, provided that funds are available after addressing the priorities listed in Regulation .04A(1)(a) and (b) of this chapter.

  (3) For the Department’s operating expenses, including technical assistance, to administer the Bay Restoration Onsite Sewage Disposal System Fund not to exceed 8 percent of fees deposited into the Onsite Sewage Disposal System Fund.

  (4) For expenses of a local public entity, not to exceed 10 percent of the fees deposited into the onsite sewage disposal system fund, to administer, enforce, and implement regulations adopted by the Department and delegated to the local public entity, for the reduction of nitrogen using best available technology at onsite sewage disposal systems.

B. Project Prioritization. Funding shall be based on the following order of priority:

  (1) Failing onsite sewage disposal systems in the Chesapeake and Atlantic Coastal Bays Critical Area, with best available technology for the removal of nitrogen;

  (2) Failing onsite sewage disposal systems outside the Chesapeake and Atlantic Coastal Bays Critical Area, with best available technology for the removal of nitrogen;

  (3) Nonconforming onsite sewage disposal systems in the Chesapeake and Atlantic Coastal Bays Critical Area, with best available technology for the removal of nitrogen;

  (4) Nonconforming onsite sewage disposal systems outside the Chesapeake and Atlantic Coastal Bays Critical Area, with best available technology for the removal of nitrogen;

  (5) Other onsite sewage disposal systems in the Chesapeake and Atlantic Coastal Bays Critical Area including new construction, with best available technology for the removal of nitrogen;

  (6) Other onsite sewage disposal systems outside the Chesapeake and Atlantic Coastal Bays Critical Area, including new construction, with best available technology for the removal of nitrogen.

C. Grant Awards. The Department shall request and accept applications for financial assistance annually and shall award grants based on the following factors:

  (1) Total number of septic systems within a county;

  (2) Number of septic systems within the Chesapeake Bay and Atlantic Coastal Bays Critical Area within a county;

  (3) Grant funding requested by the county or its authorized agent.

D. Income Based Grant Eligibility.

  (1) Homeowners with existing onsite sewage disposal systems or new onsite sewage disposal system construction may qualify for grant funding based on their income as follows:

    (a) Up to 100 percent of the approved cost for annual household income of $300,000 or less;

    (b) Up to 50 percent of the approved cost for annual household income above $300,000.

  (2) Not for profit entities with existing onsite sewage disposal systems or proposing new onsite sewage disposal system construction may qualify for up to 100 percent of the approved cost as grant funding.

  (3) Businesses with existing onsite sewage disposal systems or proposing a new onsite sewage disposal system construction can qualify for up to 50 percent of the approved cost as grant funding.

  (4) Small businesses, as defined by COMAR 21.01.02.01, with existing onsite sewage disposal systems or proposing a new onsite sewage disposal system construction can qualify for up to 75 percent of the approved cost as grant funding.

  (5) The grant eligibility percentages in this section may be adjusted in the future based on higher or lower funding demands for the upgrade of onsite sewage disposal systems.

E. Procedures for Review, Public Notice and Public Hearing for Projects Not Located in the Priority Funding Area.

  (1) Departmental Review. The applicant shall submit a complete application to include the following:

    (a) Information about the public health issues that the project addresses including a description of the current condition of the onsite sewage disposal system based on factors such as type of soil, lot size, water table, bacteria samples, and dye tests;

    (b) The anticipated mitigation that the project will provide to the identified public health issues;

    (c) Information regarding any potential new development resulting from the project;

    (d) Measures to be taken to mitigate the potential impacts of new growth resulting from the project;

    (e) Evidence that demonstrates the total net nitrogen reduction resulting from the project as well as any additional nitrogen loading that may result from potential new growth, including:

      (i) Methods used to calculate the total nitrogen reductions and additional nitrogen loading; and

      (ii) Assumptions relied upon to calculate the total nitrogen reductions and additional nitrogen loading; and

    (f) Language amending the Water and Sewer Plan in draft or final form to identify the problem area and provide proof of available sewer service capacity, including identity of all necessary service agreements, proposed service area boundary changes, and any text and data changes needed to document new sewerage services.

  (2) Notice of Application and Public Hearing. Upon receiving an application for funding, the Department shall coordinate with the Maryland Department of Planning prior to granting preliminary approval and shall:

    (a) Provide a 30-day public notice on its website homepage summarizing:

      (i) The public health issues being addressed by the project;

      (ii) New in-fill growth resulting from the project;

      (iii) Mitigation measures to lessen the impact of new growth that could result from the project;

      (iv) Net nitrogen reductions resulting from the project that shall consider the impact of additional nitrogen loading from potential new growth; and

      (v) A deadline for receiving written comments;

    (b) Provide a copy of the public notice to any interested party that has requested such notice; and

    (c) Provide an opportunity for a public hearing, if requested within 30 days of the public notice.

  (3) If a public hearing is held regarding an application:

    (a) The applicant shall attend the hearing and present information concerning the application;

    (b) Written comments shall be accepted if they are received by the Department on or before the deadline specified by the Department; and

    (c) Oral comments may be made at the public hearing.

  (4) Determination of Preliminary Approval. The Department shall, in coordination with the Maryland Department of Planning, make its determination of preliminary approval:

    (a) Based on the information received with the application, along with any written comments received or any oral public comments received at the hearing that raise issues of law or material facts regarding an application for funding, but only if the issues are pertinent to purposes of the onsite sewage disposal system fund; or

    (b) If no public hearing is requested, based on the information received with the application and from written comments that raise issues of law or material facts regarding an application for funding, but only if the issues are pertinent to purposes of the onsite sewage disposal system fund.

  (5) Funding Approval. Upon granting an applicant preliminary approval for funding, the Department shall submit the application for a Priority Funding Area exception to the Smart Growth Coordinating Committee or to such body as may be designated by the State to consider applications for Priority Funding Area exceptions, for final approval or disapproval. The Smart Growth Coordinating Committee shall formally notify the Department of its decision.

  (6) Grant Conditions: Upon final approval of a priority funding area exception by the Smart Growth Coordinating Committee or such other body as may be designated by the State to consider applications for Priority Funding Area exceptions, the Department shall notify the applicant of the approval and shall enter into a grant agreement with the applicant that shall include terms and conditions of such final approval, including:

    (a) A denial of access for any future connections not included in the project’s proposed service area;

    (b) Limits on potential new developments that could result from the project;

    (c) A requirement to amend the county water and sewer plan;

    (d) Provisions to ensure that the funding for the project will not unduly impede access to funding for upgrading other individual onsite sewage disposal systems within the jurisdiction; and

    (e) A certification from the county’s environmental health director that the project is consistent with a public health area of concern and shall be subsequently added to the county’s water and sewer plan.

## Subtitle 04 — Regulation of Water Supply, Sewage Disposal, Solid Waste, and Recyclable Materials

### Chapter 01 — Quality of Drinking Water in Maryland

**Authority:** Environment Article, Title 9, Subtitles 2 and 4, Annotated Code of Maryland

**Administrative History:** Effective date: October 21, 1977 (4:22 Md. R. 1670)

**Administrative History:** Appendix E adopted effective January 27, 1978 (5:2 Md. R. 84)

**Administrative History:** Regulations .01, .06—.11, .15A, .19A and B, .20F, and .22 amended effective August 10, 1987 (14:16 Md. R. 1774)

**Administrative History:** Regulations .15G—P, .19E, .28—.33, and .35 adopted effective August 10, 1987 (14:16 Md. R. 1774)

**Administrative History:** Regulations .26, .27, and .34 adopted effective November 30, 1987 (14:24 Md. R. 2555)

**Administrative History:** Appendices A—E recodified as Regulation .36

**Administrative History:** Chapter recodified from COMAR 10.17.07 to COMAR 26.04.01

**Administrative History:** Chapter revised effective March 18, 1991 (18:5 Md. R. 596)

**Administrative History:** Regulation .01B amended effective December 21, 1992 (19:25 Md. R. 2208)

**Administrative History:** Regulation .03A amended effective December 21, 1992 (19:25 Md. R. 2208)

**Administrative History:** Regulation .04A amended effective December 21, 1992 (19:25 Md. R. 2208)

**Administrative History:** Regulation .05-2 adopted effective December 21, 1992 (19:25 Md. R. 2208)

**Administrative History:** Regulation .08 amended effective December 21, 1992 (19:25 Md. R. 2208)

**Administrative History:** Regulation .10 repealed and new Regulation .10 adopted effective December 21, 1992 (19:25 Md. R. 2208)

**Administrative History:** Regulation .11 repealed and new Regulation .11 adopted effective December 21, 1992 (19:25 Md. R. 2208)

**Administrative History:** Regulation .11-1—.11-3 adopted effective December 21, 1992 (19:25 Md. R. 2208)

**Administrative History:** Regulation .12 amended effective December 21, 1992 (19:25 Md. R. 2208)

**Administrative History:** Regulation .17 amended effective December 21, 1992 (19:25 Md. R. 2208)

**Administrative History:** Regulation .20A, F amended effective December 21, 1992 (19:25 Md. R. 2208)

**Administrative History:** Regulation .33 amended effective December 21, 1992 (19:25 Md. R. 2208)

**Administrative History:** Chapter revised effective January 2, 1995 (21:26 Md. R. 2192)

**Administrative History:** Regulation .01B amended effective October 4, 1999 (26:20 Md. R. 1548); October 16, 2000 (27:20 Md. R. 1842)

**Administrative History:** Regulation .03A amended effective October 16, 2000 (27:20 Md. R. 1842)

**Administrative History:** Regulation .04 amended effective October 16, 2000 (27:20 Md. R. 1842)

**Administrative History:** Regulation .12 amended effective October 16, 2000 (27:20 Md. R. 1842)

**Administrative History:** Regulation .15 amended effective October 16, 2000 (27:20 Md. R. 1842)

**Administrative History:** Regulation .15-1 amended effective October 16, 2000 (27:20 Md. R. 1842)

**Administrative History:** Regulation .15-2 amended effective October 16, 2000 (27:20 Md. R. 1842)

**Administrative History:** Regulation .20-1 amended effective October 16, 2000 (27:20 Md. R. 1842)

**Administrative History:** Regulation .20-2 adopted effective October 16, 2000 (27:20 Md. R. 1842)

**Administrative History:** Regulation .23C adopted effective October 16, 2000 (27:20 Md. R. 1842)

**Administrative History:** Regulation .29D adopted effective October 16, 2000 (27:20 Md. R. 1842)

**Administrative History:** Regulation .31 repealed effective October 16, 2000 (27:20 Md. R. 1842)

**Administrative History:** Regulation .36 adopted effective October 4, 1999 (26:20 Md. R. 1548)

**Administrative History:** Chapter revised as an emergency provision effective January 1, 2002 (29:4 Md. R. 415); revised permanently effective April 29, 2002 (29:8 Md. R. 702)

**Administrative History:** Chapter revised effective September 1, 2003 (30:17 Md. R. 1205)

**Administrative History:** Regulation .01B amended effective April 25, 2005 (32:8 Md. R. 743); December 14, 2009 (36:25 Md. R. 1956); August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .01-1 amended effective April 25, 2005 (32:8 Md. R. 743)

**Administrative History:** Regulation .01-1B amended effective December 14, 2009 (36:25 Md. R. 1956); March 7, 2011 (38:5 Md. R. 319); August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .03A amended effective August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .04A amended effective August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .05F adopted effective March 7, 2011 (38:5 Md. R. 319)

**Administrative History:** Regulation .05-2 amended effective April 25, 2005 (32:8 Md. R. 743)

**Administrative History:** Regulation .15-2I amended effective August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .05-2L adopted effective December 14, 2009 (36:25 Md. R. 1956)

**Administrative History:** Regulation .05-5 adopted effective March 7, 2011 (38:5 Md. R. 319)

**Administrative History:** Regulation .06-2 amended effective March 7, 2011 (38:5 Md. R. 319)

**Administrative History:** Regulation .07 amended effective December 14, 2009 (36:25 Md. R. 1956)

**Administrative History:** Regulation .07-1 amended effective December 14, 2009 (36:25 Md. R. 1956)

**Administrative History:** Regulation .08E amended effective April 25, 2005 (32:8 Md. R. 743)

**Administrative History:** Regulation .09C amended effective April 25, 2005 (32:8 Md. R. 743)

**Administrative History:** Regulation .10 amended effective August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .11 amended effective August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .11D adopted effective March 7, 2011 (38:5 Md. R. 319)

**Administrative History:** Regulation .11-1 amended effective August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .11-2 amended effective March 7, 2011 (38:5 Md. R. 319); August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .11-3D adopted effective March 7, 2011 (38:5 Md. R. 319)

**Administrative History:** Regulation .11-4 adopted effective August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .12 amended effective April 25, 2005 (32:8 Md. R. 743)

**Administrative History:** Regulation .15-2 amended effective April 25, 2005 (32:8 Md. R. 743); December 14, 2009 (36:25 Md. R. 1956); March 7, 2011 (38:5 Md. R. 319)

**Administrative History:** Regulation .17A amended effective March 7, 2011 (38:5 Md. R. 319)

**Administrative History:** Regulation .19D amended effective August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .19D, G amended effective March 7, 2011 (38:5 Md. R. 319)

**Administrative History:** Regulation .20 amended effective April 25, 2005 (32:8 Md. R. 743); December 14, 2009 (36:25 Md. R. 1956); March 7, 2011 (38:5 Md. R. 319)

**Administrative History:** Regulation .20-1 amended effective March 7, 2011 (38:5 Md. R. 319)

**Administrative History:** Regulation .20-2 amended effective March 7, 2011 (38:5 Md. R. 319)

**Administrative History:** Regulation .20C, D amended effective August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .20-2E amended effective December 14, 2009 (36:25 Md. R. 1956); August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .21 amended effective December 14, 2009 (36:25 Md. R. 1956); March 7, 2011 (38:5 Md. R. 319)

**Administrative History:** Regulation .21H amended effective August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .21I adopted effective August 29, 2016 (43:17 Md. R. 957)

**Administrative History:** Regulation .23 amended effective December 14, 2009 (36:25 Md. R. 1956)

**Administrative History:** Regulation .23C amended effective March 7, 2011 (38:5 Md. R. 319)

**Administrative History:** Regulation .25B amended effective December 14, 2009 (36:25 Md. R. 1956)

**Administrative History:** Regulation .25C amended effective April 25, 2005 (32:8 Md. R. 743)

**Administrative History:** Regulation .30B amended effective December 14, 2009 (36:25 Md. R. 1956)

**Administrative History:** Regulation .34 amended effective March 1, 2004 (31:4 Md. R. 318)

#### Regulation .01 Definitions.

*COMAR 26.04.01.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Action level” means the concentration of a contaminant which, if exceeded, triggers treatment or other requirements which a water system must follow.

  (2) “Approving Authority” means the Secretary of the Environment or his designee.

  (3) “Best available technology (BAT)” means the best technology, treatment techniques, or other means which the approving authority finds available, after examination for efficacy under field conditions and not solely under laboratory conditions, taking cost into consideration.

  (4) “Board” means the State Board of Waterworks and Waste Systems Operators as described in Environment Article, Title 12, Annotated Code of Maryland.

  (5) “Clean compliance history” is, for the purposes of subpart Y of 40 CFR §141, a record of no MCL violations under §141.63; no monitoring violations under §141.21 or subpart Y; and no coliform treatment technique trigger exceedances or treatment technique violations under subpart Y.

  (6) “Combined distribution system” means the interconnected distribution system consisting of the distribution systems of wholesale systems and of the consecutive systems that receive finished water.

  (7) “Community water system” means a public water system which serves at least 15 service connections used by year-round residents, or regularly serves at least 25 year-round residents.

  (8) “Compliance cycle” means the 9-year calendar year cycle during which public water systems will monitor. Each compliance cycle consists of three 3-year compliance periods. The first calendar year cycle begins January 1, 1993 and ends December 31, 2001, the second begins January 1, 2002 and ends December 31, 2010, the third begins January 1, 2011 and ends December 31, 2019.

  (9) “Compliance period” means a 3-year calendar period within a compliance cycle. Each compliance cycle has three 3-year compliance periods. Within the first compliance cycle, the first compliance period runs from January 1, 1993 to December 31, 1995, the second from January 1, 1996 to December 31, 1998, the third compliance period from January 1, 1999 to December 31, 2001. Within the second compliance cycle, the first compliance period runs from January 1, 2002 to December 31, 2004, the second from January 1, 2005 to December 31, 2007, the third compliance period from January 1, 2008 to December 31, 2010.

  (10) “Comprehensive performance evaluation (CPE)” means a thorough review and analysis of a treatment plant's performance-based capabilities and associated administrative, operation, and maintenance practices.

  (11) “Consecutive system” means a public water system that receives some or all of its finished water from one or more wholesale systems. Delivery may be through a direct connection or through the distribution system of one or more consecutive systems.

  (12) “Construction permit” means a permit issued by the Department of the Environment under Environment Article, §9-204, Annotated Code of Maryland, to authorize installation of a water system.

  (13) “Contaminant” means any physical, chemical, biological, or radioactive substance in drinking water.

  (14) “Conventional filtration treatment” means a series of processes including coagulation, flocculation, sedimentation, and filtration resulting in substantial particulate removal.

  (15) “Coverage ratio” means the ratio of the sum of the annual net operating profit for 5 years to the sum of the annual debt service requirements for 5 years.

  (16) Direct Filtration.

    (a) “Direct filtration” means a series of processes resulting in substantial particulate removal.

    (b) “Direct filtration” includes coagulation and filtration.

    (c) “Direct filtration” does not include sedimentation.

  (17) “Disinfectant” means any oxidant, including but not limited to chlorine, chlorine dioxide, chloramines, and ozone, added to the water in any part of the treatment or distribution process, that is intended to inactivate pathogenic microorganisms.

  (18) “Disinfection profile” means a graphical representation of a water system's level of Giardia lamblia or virus inactivation measured during the course of a year.

  (19) “Dose-equivalent” means the product of the absorbed dose from ionizing radiation and such factors as account for differences in biological effectiveness due to the type of radiation and its distribution in the body as specified by the International Commission on Radiological Units and Measurements (ICRU).

  (20) “Enhanced coagulation” means the addition of sufficient coagulant for improved removal of disinfection byproduct precursors by conventional filtration treatment.

  (21) “Enhanced softening” means the improved removal of disinfection byproduct precursors by precipitative softening.

  (22) “Filter profile” means a graphical representation of individual filter performance, based on continuous turbidity measurements or total particle counts versus time for an entire filter run, from startup to backwash inclusive, that includes an assessment of filter performance while another filter is being backwashed.

  (23) “GAC10” means granular activated carbon filter beds with an empty-bed contact time of 10 minutes based on average daily flow and a carbon reactivation frequency of every 180 days, except that the reactivation frequency for GAC10 used as a best available technology for compliance with Regulation .15-2 of this chapter shall be 120 days.

  (24) “GAC20” means granular activated carbon filter beds with an empty-bed contact time of 20 minutes based on average daily flow and a carbon reactivation frequency of every 240 days.

  (25) “Gross alpha particle activity” means the total radioactivity due to alpha particle emission as inferred from measurements on a dry sample exclusive of the contribution, if any, due to radon and uranium.

  (26) “Gross beta particle activity” means the total radioactivity due to beta particle emission as inferred from measurements on a dry sample exclusive of the contribution, if any, due to potassium-40 and other naturally occurring radionuclides.

  (27) “Ground water under the direct influence of surface water (GWUDI)” means any water beneath the surface of the ground with:

    (a) Significant occurrence of insects or other macroorganisms, algae, or large diameter pathogens such as Giardia lamblia or Cryptosporidium; or

    (b) Significant and relatively rapid shifts in water characteristics such as turbidity, temperature, conductivity, or pH which closely correlate to climatological or surface water conditions.

  (28) “Haloacetic acids (five) (HAA5)” mean the sum of the concentrations in milligrams per liter of the haloacetic acid compounds (monochloroacetic acid, dichloroacetic acid, trichloroacetic acid, monobromoacetic acid, and dibromoacetic acid, rounded to 2 significant figures after addition.

  (29) “Halogen” means one of the chemical elements chlorine, bromine, or iodine.

  (30) “Initial compliance period” means the first full 3-year compliance period which begins at least 18 months after promulgation of a regulation under 40 CFR 141, with the exception that for contaminants listed in Regulations .06A(1), (5), (8), (11), and (16) and .07D(19)—(21) and E(16)—(30) of this chapter, the initial compliance period means January 1, 1993—December 31, 1995 for systems with 150 or more service connections, and January 1, 1996—December 31, 1998 for systems having fewer than 150 service connections.

  (31) “Lead-free” means:

    (a) Containing not more than a weighted average of 0.25 percent lead when used with respect to the wetted surface of pipes, pipe fitting, plumbing fittings, and fixtures; and

    (b) Not containing more than 0.2 percent lead when used with respect to solder and flux.

  (32) “Level 1 assessment” is an evaluation to identify the possible presence of sanitary defects, defects in distribution system coliform monitoring practices, and (when possible) the likely reason that the system triggered the assessment. It is conducted by the system operator or owner. Minimum elements include review and identification of a typical events that could affect distributed water quality or indicate that distributed water quality was impaired; changes in distribution system maintenance and operation that could affect distributed water quality (including water storage);source and treatment considerations that bear on distributed water quality, where appropriate (e.g., whether aground water system is disinfected);existing water quality monitoring data; and inadequacies in sample sites, sampling protocol, and sample processing. The system must conduct the assessment consistent with any State directives that tailor specific assessment elements with respect to the size and type of the system and the size, type, and characteristics of the distribution system.

  (33) “Level 2 assessment” is an evaluation to identify the possible presence of sanitary defects, defects in distribution system coliform monitoring practices, and (when possible) the likely reason that the system triggered the assessment. A Level 2 assessment provides a more detailed examination of the system (including the system’s monitoring and operational practices) than does a Level1 assessment through the use of more comprehensive investigation and review of available information, additional internal and external resources, and other relevant practices. It is conducted by an individual approved by the State, which may include the system operator. Minimum elements include review and identification of atypical events that could affect distributed water quality or indicate that distributed water quality was impaired; changes in distribution system maintenance and operation that could affect distributed water quality (including water storage); source and treatment considerations that bear on distributed water quality, where appropriate (e.g., whether a ground water system is disinfected); existing water quality monitoring data; and inadequacies in sample sites, sampling protocol, and sample processing. The system must conduct the assessment consistent with any State directives that tailor specific assessment elements with respect to the size and type of the system and the size, type, and characteristics of the distribution system. The system must comply with any expedited actions or additional actions required by the State in the case of an E. coli MCL violation.

  (34) “Man-made beta particle and photon emitters” means all radionuclides emitting beta particles and/or photons listed in Maximum Permissible Body Burdens and Maximum Permissible Concentration of Radionuclides in Air or Water for Occupational Exposure, NBS Handbook 69, except the daughter products of thorium-232, uranium-235, and uranium-238.

  (35) “Maximum contaminant level (MCL)” means the maximum permissible level of a contaminant in water which is delivered to the users of a public water system. In the case of turbidity, the maximum permissible level is measured at the point of entry to the distribution system. Materials added to the water under circumstances controlled by the consumer are excluded from this definition. Materials resulting from corrosion of piping and plumbing caused by water quality are not excluded from this definition.

  (36) “Maximum contaminant level goal (MCLG)” means the maximum level of a contaminant in drinking water at which no known or anticipated adverse effects on the health of persons would occur, and which allows an adequate margin of safety. Maximum contaminant level goals are nonenforceable health goals.

  (37) “Maximum residual disinfectant level (MRDL)” means a level of a disinfectant added for water treatment that may not be exceeded at the consumer's tap without an unacceptable risk of adverse health effects. The disinfectants include chlorine, chloramines, and chlorine dioxide.

  (38) “Maximum residual disinfectant level goal (MRDLG)” means the maximum level of a disinfectant added for water treatment at which no known or anticipated adverse effect on the health of individuals occurs, and which allows an adequate margin of safety. MRDLGs are nonenforceable health goals and do not reflect the benefit of the addition of the chemical for control of water-borne microbial contaminants.

  (39) “Maximum total trihalomethane potential (MTP)” means the maximum concentration of total trihalomethanes produced in a given water sample containing a halogen disinfectant residual after 7 days at a temperature of 25°C or above.

  (40) “Near the first service connection” means within the first 20 percent of connections that receive finished water from the treatment plant, as measured by water transport time within the distribution system.

  (41) “Net operating profit” means the total of the operating profit and the nonoperating revenue.

  (42) “New system” means a community water system or a nontransient noncommunity water system that commences operation after October 1, 1999.

  (43) “Noncommunity water system” means a public water system that does not meet the requirements of §B(5) of this regulation. These systems serve motels, hotels, medical facilities, restaurants, schools, industrial plants, and similar facilities not connected to a community water system.

  (44) “Nontransient noncommunity water system (NTNCWS)” means a public water system that is not a community water system and that regularly serves at least 25 of the same individuals over 6 months per year.

  (45) “Operating profit” means the total of the operating revenue minus operating expenses.

  (46) “Operating ratio” means the ratio of the sum of the annual operating revenues for 5 years to the sum of the annual operating, maintenance, and replacement expenses for 5 years.

  (47) “Person” means the State, a federal agency, county, municipality, partnership, corporation, cooperative, company, sanitary district, sanitary commission, authority, institution, or individual.

  (48) “Picocurie (pCi)” means that quantity of radioactive material producing 2.22 nuclear transformations per minute.

  (49) “Plan for compliance” means a schedule of actions that is submitted by the violator and is approved by the Approving Authority.

  (50) “Point-of-entry treatment device (POE)” is a treatment device applied to the drinking water entering a house or building for the purpose of reducing contaminants in the water distributed throughout the house or building.

  (51) “Point-of-use treatment device (POU)” is a treatment device applied to a single tap used for the purpose of reducing contaminants in drinking water at that one tap.

  (52) Public Water System.

    (a) “Public water system” means a system that provides water for human consumption to the public through pipes or other constructed conveyances, if the system has at least 15 service connections or regularly serves at least 25 individuals daily at least 60 days out of the year.

    (b) “Public water system” includes:

      (i) Any collection, treatment, storage, and distribution facilities under control of the operator of the system, and used primarily in conjunction with the system; and

      (ii) Any collection or pretreatment storage facilities not under that control which are used primarily in connection with the system.

    (c) “Public water system” does not include any special irrigation districts as defined in 40 CFR §141.2.

  (53) “Rem” means the unit of dose-equivalent from ionizing radiation to the total body or any internal organ or organ system. A millirem (mrem) is 1/1000 of a rem (0.001 rem).

  (54) “Repeat compliance period” means any subsequent compliance period after the initial compliance period.

  (55) “Reportable incident” means any occurrence in the operation, maintenance, repair, or extension of a water supply system or its appurtenances that causes a permanent or temporary change that may adversely affect the quality or quantity of water supplied to the users of the system.

  (56) “Sampling point” means each entry point to the distribution system which is representative of each well after treatment where ground water sources are used, or, where surface water sources are used, each entry point to the distribution system after any application of treatment or a point in the distribution system which is representative of each source after treatment.

  (57) “Sanitary defect” is a defect that could provide a pathway of entry for microbial contamination into the distribution system or that is indicative of a failure or imminent failure in a barrier that is already in place.

  (58) “Sanitary survey” means an on-site review of the water source, facilities, equipment, operation and maintenance of a public water system for the purpose of evaluating the adequacy of the system for producing and distributing safe drinking water.

  (59) “Seasonal system” is a noncommunity water system that is not operated as a public water system on a year-round basis and starts up and shuts down at the beginning and end of each operating season.

  (60) Service Connection.

    (a) “Service connection” means a connection to a water system.

    (b) “Service connection” does not include a connection to a system that delivers water by a constructed conveyance other than a pipe if:

      (i) The water is used exclusively for purposes other than residential uses, consisting of drinking, bathing, cooking, or other similar uses;

      (ii) The State determines that alternative water to achieve the equivalent level of public health protection provided by the national primary drinking water regulations is provided for residential or similar uses for drinking and cooking; or

      (iii) The State determines that the water provided for residential or similar drinking, cooking, and bathing is centrally treated or treated at the point of entry by the provider, a pass-through entity, or the user to achieve the equivalent level of protection provided by the applicable national primary drinking water regulations.

  (61) “Standard sample” means the aliquot of finished drinking water that is examined for the determination of the maximum contaminant level.

  (62) “Subpart H systems” means public water systems using surface water or ground water under the direct influence of surface water as a source that are subject to the requirements of Subpart H of 40 CFR §141.

  (63) “Superintendent” means an individual employed or appointed in accordance with Environment Article, Title 12, Annotated Code of Maryland, and certified by the Board to be in responsible charge of the operation of a water supply system.

  (64) “Supplier of water” means any person who owns or operates a public water system.

  (65) “SUVA” means specific ultraviolet absorption at 254 nanometers (nm), an indicator of the humic content of water. It is a calculated parameter obtained by dividing a sample's ultraviolet absorption at a wavelength of 254 nm (UV254) (in m-1) by its concentration of dissolved organic carbon (DOC) in milligrams per liter (mg/l).

  (66) “Too numerous to count” means that the total number of bacterial colonies exceeds 200 on a 47-millimeter diameter membrane filter used for coliform detection.

  (67) “Total organic carbon (TOC)” means total organic carbon in milligrams per liter (mg/l) measured using heat, oxygen, ultraviolet irradiation, chemical oxidants, or combinations of these oxidants that convert organic carbon to carbon dioxide, rounded to 2 significant figures.

  (68) “Total trihalomethanes (TTHM)” means the sum of the concentrations in milligrams per liter of the trihalomethane compounds trichloromethane (chloroform), dibromochloromethane, bromodichloromethane, and tribromomethane (bromoform), rounded to two significant figures.

  (69) “Transient noncommunity water system (TWS)” means a noncommunity water system that does not regularly serve at least 25 of the same individuals over 6 months per year.

  (70) “Treatment technique” means a required process intended to reduce the level of a contaminant which, if exceeded, triggers treatment or other requirements which a water system must follow.

  (71) “Trihalomethane (THM)” means a family of organic compounds, derived from methane, wherein three of the four hydrogen atoms in methane are each substituted by a halogen atom in the molecular structure.

  (72) “Uncovered finished water storage facility” means a tank, reservoir, or other facility used to store water that will undergo no further treatment to reduce microbial pathogens, except residual disinfection, and is directly open to the atmosphere.

  (73) “Variance” means a legal change issued by the Approving Authority in the requirements for a public water system to comply with an MCL to a supplier of water because of the following:

    (a) The poor quality of raw water and the lack of a suitable alternative supply;

    (b) The treatment methods generally available have not resulted in compliance with an MCL; and

    (c) All other reasonable technological, economic, and legal efforts to comply with an MCL have been made.

  (74) “Virus” means a virus of fecal origin which is infectious to humans by waterborne transmission.

  (75) “Waterborne disease outbreak” means the significant occurrence of acute infectious illness, epidemiologically associated with the ingestion of water from a public water system which is deficient in treatment, as determined by the Approving Authority.

  (76) “Wholesale system” means a public water system that treats source water as necessary to produce finished water and then delivers some or all of that finished water to another public water system. Delivery may be through a direct connection or through the distribution system of one or more consecutive systems.

#### Regulation .01-1 Incorporation by Reference.

*COMAR 26.04.01.01-1*

A. In this chapter, the following documents are incorporated by reference.

B. Documents Incorporated. Code of Federal Regulations (CFR) — 40 CFR §§141 and 142 (July 1, 2014):

  (1) Surface Water Treatment Rule (40 CFR §§141.70—141.76, Subpart H) June 8, 2001, January 14, 2002, October 23, 2002, October 29, 2002, and February 13, 2013 revisions.

  (2) Interim Enhanced Surface Water Treatment Rule (40 CFR §141, Subpart P, §§141.170—141.175), January 14, 2002, revision;

  (3) Long Term 1 Enhanced Surface Water Treatment Rule (40 CFR §§141.500—141.570, Subpart T), January 14, 2002;

  (4) Long Term 2 Enhanced Surface Water Treatment Rule (40 CFR §§141.700—141.723, Subpart W), January 5, 2006, January 30, 2006, and February 6, 2006.

  (5) Bottled Water (21 CFR §165.110);

  (6) Best Available Technology (40 CFR §§141.61—141.66, Subpart G) February 13, 2013 revisions;

  (7) Lead and Copper Rule (40 CFR §§141.80—141.91, Subpart I) revised January 12, 2000 and October 10, 2007;

  (8) Monitoring and Analytical Methods (40 CFR §§141.21—141.29, Subpart C) February 13, 2013 revisions;

    (a) Coliform Bacteria (40 CFR §141.21) November 21, 2006 and February 13, 2013 revisions;

    (b) Inorganics (40 CFR §141.23) October 23, 2002, October 29, 2002, and March 25, 2003 revisions;

    (c) Organics (40 CFR §141.24) October 23, 2002, and October 29, 2002, revisions; and

    (d) Radionuclides (40 CFR §§141.25—141.26) December 7, 2000, and October 23, 2002, revision.

  (9) Method Detection Limit (40 CFR §136), October 23, 2002, revision;

  (10) Public Notification of Drinking Water Violations (40 CFR §141, Subpart Q; 40 CFR §§141.201—141.211, November 8, 2006, February 13, 2013, and February 26, 2014 revisions;

  (11) Consumer Confidence Report (40 CFR §§141.151—141.155, Subpart O), January 14, 2002, November 27, 2002, March 25, 2003, January 4, 2006, November 8, 2006, February 13, 2013, and February 26, 2014 revisions;

  (12) Disinfectant Residuals, Disinfection Byproducts, and Disinfection Byproduct Precursors:

    (a) Stage 1 Disinfection Byproduct Rule (40 CFR §141, Subpart L; 40 CFR §§141.130—141.144, Subpart L, §141.65), December 16, 1998, January 16, 2001, January 4, 2006, and February 13, 2013 revisions; and

    (b) Stage 2 Disinfection Byproduct Rule (40 CFR §141, Subpart U §§141.600—141.605, Subpart V §§141.606—141.629), January 4, 2006, January 27, 2006, and June 29, 2009, revisions;

  (13) Arsenic Rule (40 CFR §§141.6, 141.51, 141.60, 141.62, 141.65, 142.61, 142.62) March 25, 2003 revision;

  (14) Definitions (40 CFR §141.2) January 14, 2002, January 4, 2006, January 5, 2006, and February 13, 2013 revisions;

  (15) Unregulated Contaminant Monitoring Regulation (40 CFR §141.40), March 12, 2002, October 29, 2002, January 4, 2007, and May 2, 2012 revisions;

  (16) Ground Water Rule (40 CFR §§141.21, 141.28, 141.153, 141.202, 141.203, 141.400—141.405, 142.14—142.16) — November 8, 2006, November 21, 2006, and February 13, 2013 revisions; and

  (17) Revised Total Coliform Rule (40 CFR §§141.4, 141.52, 141.63, 141.71, 141.74, 141.132, §§141.851—141.861, Subpart Y, and 142.15—142.16, 142.63) — February 13, 2013, and February 26, 2014 revisions.

#### Regulation .02 Coverage.

*COMAR 26.04.01.02*

This regulation applies to each public water system in the State except that it does not apply to a public water system which satisfies all of the following:

A. Consists only of distribution and storage facilities, and does not have any collection and treatment facilities;

B. Obtains all of its water from, but is not owned or operated by, a supplier of water to which this regulation applies;

C. Does not sell water to any person; and

D. Is not a carrier which conveys passengers in interstate commerce.

#### Regulation .03 Requirements for a Variance, Granting a Variance, and Public Hearings.

*COMAR 26.04.01.03*

A. The Approving Authority may grant to a supplier of water a variance or variances from certain requirements of this chapter. The requirements for obtaining variances are as follows:

  (1) The Approving Authority may issue a variance based on the condition that the supplier of water installs the best technology, treatment techniques, or other means, which the Approving Authority finds are available when taking costs into consideration, and based upon an evaluation that indicates that alternative sources of water are not reasonably available;

  (2) The Approving Authority may issue a variance to a supplier of water after documentation and consideration of findings set in 40 CFR §142.20;

  (3) The Approving Authority may issue to systems serving fewer than 10,000 persons a variance from a maximum contaminant level, or a treatment technique in accordance with 40 CFR §§142.301—142.313, Subpart K, except for microbial contaminants that are included in subparts H, P, S, T, W, and Y of the 40 CFR §141.

  (4) Variances from the treatment technique requirements of 40 CFR §141, Subpart H, may not be granted;

  (5) Variances from the total coliform and E. coli maximum contamination levels may not be granted; beginning April 1, 2016 the total coliform maximum contaminant level is no longer effective;

  (6) Variances from a maximum contaminant level for any synthetic organic chemical may only be granted if the:

    (a) Conditions of §A(4) of this regulation are met; and

    (b) Requirements of Regulation .03-1 of this chapter are met;

  (7) Except as otherwise provided in this regulation, variances from a maximum contaminant level may be granted if the Approving Authority finds that:

    (a) Characteristics of the raw water sources (which are reasonably available to the system) are such that the system cannot meet the requirements respecting the maximum contaminant levels of this regulation when application has been made of the best technology, treatment techniques, or other means, which the Approving Authority finds are generally available, taking costs into consideration; and

    (b) The granting of a variance does not result in an unreasonable risk to the health of persons served by the system;

  (8) Variances for a treatment technique other than treatment technique requirements of 40 CFR §141, Subpart H, may be granted if the Approving Authority finds that the supplier of water applying for the variance has demonstrated that the treatment technique is not necessary to protect the health of persons because of the nature of the raw water source of the system.

B. A supplier of water may request the granting of a variance under this regulation for a public water system by submitting a request for a variance in writing to the Approving Authority. The written request shall include the following information:

  (1) The nature and duration of the variance requested.

  (2) Relevant analytical results of water quality sampling of the system, including tests conducted under the requirements of this regulation.

  (3) For any request made under §A(1) of this regulation:

    (a) Explanation in full and evidence that application of the best available treatment technology and techniques has been made.

    (b) Economic and legal factors relevant to ability or inability to comply.

    (c) Analytical results of alternate raw water quality relevant to the variance request.

    (d) A proposed compliance schedule, including the date each step toward compliance will be achieved. The schedule includes as a minimum the following dates:

      (i) The date by which arrangement for alternate raw water source or improvement of existing raw water source will be completed;

      (ii) The date of initiation of the connection of the alternate raw water source or improvement of existing raw water source; and

      (iii) The date by which final compliance is to be achieved.

    (e) A plan for the provision of safe drinking water in the case of an excessive rise in the contaminant level for which the variance is requested.

    (f) A plan for interim control measures during the effective period of variance.

  (4) For a request made under §A(2) of this regulation, a statement that the supplier of water will perform monitoring and other reasonable requirements prescribed by the Approving Authority as a condition of the variance.

  (5) Other information, if any, believed to be pertinent by the applicant and other information required by the Approving Authority.

C. The Approving Authority shall act on any variance request submitted under §B of this regulation within 90 days after receipt of the request and all necessary information. In addition, before acting on a request for a variance from:

  (1) An MCL, the Approving Authority shall consider such factors as the following:

    (a) The availability and effectiveness of treatment methods for the contaminant for which the variance is requested; and

    (b) Cost and other economic considerations such as implementing treatment, improving the quality of the source of water, or using an alternate source;

  (2) A required treatment technique, because this treatment is unnecessary to protect the public health, the Approving Authority shall consider such factors as the following:

    (a) Quality of the water source, including pertinent sources of pollution; and

    (b) Source protection measures employed by the supplier of water.

D. If the Approving Authority decides to deny the application for a variance, the applicant shall be notified in writing of the intention to issue a denial. The notice shall include a statement of reasons for the proposed denial, and shall offer the applicant an opportunity to present, within 30 days of receipt of the notice, additional information or argument to the Approving Authority. The Approving Authority shall make a final determination on the request within 30 days after receiving additional information or argument.

E. If the Approving Authority proposes to grant a variance request submitted under §B of this regulation, the applicant shall be notified of the decision in writing. The notice shall identify  the proposed variance, the facility covered, and the period of time for which the proposed variance will be effective. In addition, for a variance from a:

  (1) Maximum contaminant level, the notice shall provide that the variance will be terminated when the supplier of water complies with the applicable standard, and may be terminated upon a finding by the Approving Authority that the supplier of water has failed to comply with any requirements of a final schedule approved by the Approving Authority;

  (2) Treatment technique, the notice shall provide that the variance may be terminated at any time upon a finding that the nature of the raw water source is such that the application of the treatment technique for which the variance was granted is necessary to protect the health of individuals, or if the supplier of water has failed to comply with any of the conditions prescribed by the Approving Authority, as a condition to the granting of the variance.

F. Compliance Schedules.

  (1) For a variance specified in §A(1) of this regulation, the Approving Authority shall propose a schedule for:

    (a) Compliance, including increments of progress, by the supplier of water with each contaminant level requirement with respect to which the variance was granted; and

    (b) Implementation of control measures by the supplier of water as the Approving Authority may require for each contaminant, subject to the contaminant level requirement, during the period ending on the date of compliance.

  (2) The proposed schedule shall specify dates by which steps toward compliance are to be taken, including at the minimum, when applicable, the date:

    (a) By which arrangement for an alternate raw water source or improvement of existing raw water source will be completed;

    (b) Of initiation of the connection for the alternate raw water source or improvement of the existing raw water source; and

    (c) By which final compliance is to be achieved.

  (3) If the supplier of water has no access to an alternate raw water source, and can effect or anticipate no adequate improvement of the existing raw water source, the proposed schedule may specify an indefinite time period for compliance until a new and effective treatment technology is developed at which time a new compliance schedule shall be prescribed by the Approving Authority.

  (4) The proposed schedule for implementation of interim control measures during the period of variance shall specify interim treatment techniques, methods and equipment, and dates by which steps toward meeting the interim control measures are to be met.

  (5) The schedule shall be prescribed by the Approving Authority at the time of granting the variance.

G. Before a variance or a schedule proposed by the Approving Authority under §§D—F of this regulation may take effect, the Approving Authority, the supplier of water, or both, shall provide public notice of an opportunity for a public hearing concerning the variance or schedule. Public notice of a hearing on a variance or schedule shall be circulated in a manner designed to inform interested and potentially interested persons of the proposed variance or schedule, and shall include at least the following:

  (1) Publishing of a notice in a newspaper or newspapers of general circulation in the area served by the supplier of water, and posting of a notice in the principal post office of each municipality or area served by the supplier of water; and

  (2) Mailing a notice to the agency of the county in which the system is located and who is responsible for the water supply program, and to other appropriate agencies at the discretion of the Approving Authority. The notice shall:

    (a) Include a summary of the proposed variance and schedule; and

    (b) Inform interested persons that they may request a public hearing on the proposed variance or schedule.

H. Requests for a hearing may be submitted by an interested person. The request shall be submitted in writing to the Approving Authority within 30 days after issuance of the public notices provided for in §G of this regulation. The request shall include the following information:

  (1) The name, address and telephone number of the individual, organization or other entity requesting a hearing;

  (2) A brief statement of the interest of the person making the request in the proposed variance or schedule;

  (3) A brief statement of the information that the person making the request intends to submit at the hearing; and

  (4) The signature of the individual making the request, or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.

I. The Approving Authority gives notice of any hearing to be held in the manner set forth in §G of this regulation. Notice of the hearing shall also be sent to any person requesting the hearing. Notice of the hearing shall include a statement of the purpose of the hearing, information regarding the time and location for the hearing, and the address and telephone number of an office at which interested persons may obtain further information concerning the hearing. Notice of the hearing shall be given at least 15 working days before the time scheduled for the hearing.

J. A hearing convened under §I, of this regulation, will be conducted before a hearing officer to be designated by the Approving Authority. The hearing officer shall have the authority to subpoena or call witnesses, receive oral and written testimony, limit the introduction of irrelevant or repetitious evidence, and limit or prohibit cross-examination. Following the conclusion of the hearing, the hearing officer shall forward the record of the hearing to the Approving Authority.

K. The variance or schedule shall become effective 30 days after notice for a hearing is given under §G of this regulation if no timely request for a hearing is submitted and the Approving Authority does not determine to hold a public hearing.

L. Within 30 days after the termination of the public hearing held under §§G—K, of this regulation, the Approving Authority shall confirm, revise or rescind the proposed variance or schedule.

#### Regulation .03-1 Variances and Exemptions for Synthetic Organic Chemicals.

*COMAR 26.04.01.03-1*

A. In addition to the procedures prescribed in Regulations .03 and .04 of this chapter, variances and exemptions from the maximum contaminant levels for synthetic organic chemicals may be granted by the Approving Authority if the requirements set forth below in §A(1)—(4), and in §§B and C of this regulation are met:

  (1) Except as provided in §A(2) of this regulation, a supplier of water is eligible for a variance only if the supplier:

    (a) Installs packed tower aeration or granular activated carbon (except for vinyl chloride); and

    (b) Demonstrates that despite using and effectively operating the above treatment method, the system still cannot meet the MCL.

  (2) If a supplier of water can demonstrate through comprehensive engineering assessments, which may include pilot plant studies, that the treatment methods identified in §A(1) of this regulation would only achieve a negligible reduction in contaminants, the Approving Authority may issue a schedule of compliance that requires the supplier of water being granted the variance to examine other treatment methods as a condition of obtaining the variance.

  (3) If the Approving Authority determines that a treatment method identified in §A(2) of this regulation is technically feasible, the Approving Authority may require the supplier of water to install or use, or both, that treatment method in connection with a compliance schedule issued under the provisions of Regulation .03 of this chapter. The Approving Authority's determination shall be based upon studies by the supplier of water and other relevant information.

  (4) The Approving Authority may require a supplier of water to use bottled water or a point-of-use device, or other means as a condition of granting a variance or an exemption from the requirements of Regulation .07D of this chapter, to avoid an unreasonable risk to health.

B. Suppliers of water using bottled water as a condition for receiving a variance or an exemption from the requirements of Regulation .07D of this chapter shall:

  (1) Provide sufficient quantities of bottled water to each person supplied by the public water system;

  (2) Deliver bottled water door-to-door; and

  (3) Meet the requirements of either §B(3)(a)—(c) or (d)—(e), of this regulation:

    (a) Develop, obtain approval from the Approving Authority for, and put in place a monitoring program that provides reasonable assurances that the bottled water meets all MCLs;

    (b) Monitor a representative sample of the bottled water for all contaminants regulated under Regulation .07D of this chapter the first quarter that it supplies the bottled water to the public, and annually after that;

    (c) Provide on an annual basis the results of the monitoring to the Approving Authority;

    (d) Obtain from the bottled water company certification that the:

      (i) Bottled water supplied has been taken from an approved source as defined in 21 CFR § 129.3(a);

      (ii) Bottled water company has conducted monitoring in accordance with 21 CFR § 129.80(g)(1)—(3); and

      (iii) Bottled water does not exceed any MCLs or quality limits set in 21 CFR § 103.35, 110, and 129;

    (e) Provide the required certification in §B(3)(d) to the Approving Authority the first quarter after it supplies bottled water, and annually after that.

C. Suppliers of water using point-of-use devices as a condition for obtaining a variance or an exemption from MCLs for volatile organic compounds shall meet the following requirements:

  (1) Apply the technology under a plan approved by the Approving Authority, which includes all of the following:

    (a) Includes results from field testing the device to be employed.

    (b) Provides certification that the device in §C(1)(a), of this regulation, will achieve the desired performance.

    (c) Describes a monitoring schedule that addresses the parameters to be measured, frequency, and location. The monitoring plan shall be adequate to ensure that the microbiological safety of the water is not compromised and that it provides health protection equivalent to a monitoring plan for central water treatment.

    (d) Addresses the tendency for an increase in heterotrophic bacteria concentration in water treated with activated carbon, if it will be used in the treatment devices.

  (2) Install, operate, and maintain a point-of-use device for each building connected to the system.

  (3) Provide monthly operating reports to the Approving Authority in a format specified by the Approving Authority.

  (4) Maintain the microbiological safety of the water.

  (5) Provide the Approving Authority with all the information it will need to determine that the:

    (a) Conditions of this section will be met; and

    (b) Supplier of water has taken the necessary measures so that the rights and responsibilities of the public water system customer convey with title upon sale of property.

#### Regulation .04 Requirements for an Exemption, Granting an Exemption, and Public Hearings.

*COMAR 26.04.01.04*

A. The Approving Authority may grant exemptions to public water systems, after documentation and consideration of findings, as specified in 40 CFR §§142.20 and 142.50. The Approving Authority may not issue an exemption to a public water system granted a variance under §1415(e) of the Safe Drinking Water Act. Exemptions may not be granted for the maximum contaminant level for total coliforms, and E. coli. The Approving Authority may exempt any supplier of water from any other requirement respecting a maximum contaminant level or treatment technique requirement, or both, of this regulation, upon a finding that:

  (1) Due to compelling factors, which may include economic factors, the supplier of water is unable to:

    (a) Comply with the contaminant level requirement or treatment technique requirement; or

    (b) Implement measures to develop an alternative source of water supply;

  (2) The public water system was in operation on the effective date of the contaminant level requirement or treatment technique requirement or, for a water system that was not in operation by the effective date, a reasonable alternative source of drinking water is not available;

  (3) The granting of the exemption will not result in an unreasonable risk to health; and

  (4) Management or restructuring changes cannot reasonably be made that will result in compliance with the regulation, or improve the quality of the drinking water if compliance cannot be achieved.

B. A supplier of water may request the granting of an exemption under this regulation for a public water system by submitting a request for exemption in writing to the Approving Authority. The written request shall include the following information:

  (1) The nature and duration of the exemption requested;

  (2) Relevant analytical results of water quality sampling of the system including results of relevant tests conducted pursuant to the requirements of this regulation;

  (3) Explanation in full of compelling factors such as time or economic factors which prevent the supplier of water from achieving compliance;

  (4) Other information, if any, believed by the applicant to be pertinent to the application;

  (5) A proposed compliance schedule, including the date when each step toward compliance will be achieved; and

  (6) Other information as the Approving Authority may require.

C. The Approving Authority shall act on any exemption request submitted under §B of this regulation, within 90 days after the receipt of the request and all necessary information. In consideration of whether the supplier of water is unable to comply, the Approving Authority shall consider the following factors:

  (1) Construction, installation, modification, and operation of treatment equipment systems;

  (2) The time needed to put into operation a new treatment facility to replace an existing system which is not in compliance; and

  (3) Economic feasibility of compliance.

D. Disposition of an Exemption Request.

  (1) If the Approving Authority decides to deny the application for an exemption, the applicant shall be so notified. The notice includes a statement of the reasons for the proposed denial, and offers the applicant an opportunity to present, within 30 days of receipt of the notice, additional information or argument to the Approving Authority. The Approving Authority shall make a final determination on the request within 30 days after receiving any additional information or argument. If additional information or argument is not submitted by the applicant, the application shall be denied.

  (2) Upon granting an exemption request submitted under §B of this regulation, the Approving Authority notifies the applicant of the action in writing. The notice identifies the facility covered, and specifies the termination date of the exemption. The notice provides that the exemption will be terminated when the supplier of water comes into compliance with the applicable standard, and may be terminated upon a finding by the Approving Authority that the supplier of water has failed to comply with any requirements of a final schedule issued under §F of this regulation.

  (3) The Approving Authority shall propose a schedule for:

    (a) Compliance, including increments of progress or measures to develop an alternative source of water supply, by the supplier of water with each contaminant level requirement and treatment technique requirement covered by the exemption; and

    (b) Implementation by the supplier of water of control measures the Approving Authority may require for each contaminant covered by the exemption.

  (4) The schedule shall be prescribed by the Approving Authority at the time the exemption is granted, subsequent to the provision of the opportunity for a hearing under §E, of this regulation.

E. Before a schedule prescribed by the Approving Authority under §D may take effect, the Approving Authority shall provide public notice of an opportunity for hearing on an exemption schedule in a manner designed to inform interested and potentially interested persons of the proposed schedule, as set forth in Regulation .03G and H of this chapter. All hearings that are held regarding exemptions shall be in accordance with Regulations .03I and J of this chapter. If a timely request for a public hearing is not made and the Approving Authority determines not to hold a public hearing, then the schedule becomes effective 30 days after notice for a hearing is given.

F. Time of Compliance.

  (1) Within 30 days after the termination of the public hearing under §§D and E, of this regulation, the Approving Authority shall revise the proposed schedule as necessary and prescribe a final schedule for compliance and interim measures for the supplier of water which was granted an exemption under §C of this regulation.

  (2) The schedule shall require compliance by the supplier of water with each contaminant level and treatment technique requirement as expeditiously as practicable but not to exceed 3 years after the compliance date in §1412(b)(10) of the Safe Drinking Water Act.

  (3) If a supplier of water does not serve more than 3,300 persons and needs financial assistance for the necessary improvements, an exemption granted under §A of this regulation may be renewed for one or more additional 2-year periods, but not to exceed a total of 6 additional years, if the supplier of water establishes that it is taking all practicable steps to meet the requirements of the standard, and the established compliance schedule.

G. Bottled Water and Point-of-Use Devices. A supplier of water using:

  (1) Bottled water as a condition of obtaining an exemption from the requirements of Regulation .07D of this chapter shall meet the requirements set out in Regulation .03-1B of this chapter;

  (2) Point-of-use devices as a condition of obtaining an exemption from the requirements of Regulation .07D of this chapter shall meet the requirements set out in Regulation .03-1C of this chapter.

#### Regulation .05 Design, Construction, and Modification of Public Water Supply Systems.

*COMAR 26.04.01.05*

A. A construction permit shall be obtained from the Approving Authority before construction of a new public water system or before increasing the capacity of or substantially modifying an existing public water system. For new or expanded public water systems, plans shall be submitted to the Approving Authority according to COMAR 26.03.01.

B. To the extent practicable, location of part or all of the new or expanded facility shall be avoided at a site which:

  (1) Is subject to earthquakes, floods, fires or man-made disasters which could cause breakdown of the public water system or a portion of it; and

  (2) Is within the flood plain of a 100-year flood.

C. Applicants under this regulation shall comply with COMAR 26.08.01—.04.

D. A supplier of water using any device employed in the treatment of drinking water shall have the approval of the Approving Authority before installation of the treatment device.

E. Before a community water system makes any significant modifications to its existing treatment process for the purposes of achieving compliance with disinfection byproduct MCLs set forth in Regulation .07F(1) of this chapter, the system shall submit and obtain the approval of the Approving Authority of a detailed plan setting forth its proposed modification and those safeguards that it will implement to ensure that the bacteriological quality of the drinking water served by the system will not be adversely affected by the modification.

F. Any supplier of water deemed to have optimized corrosion control in accordance with 40 CFR §141.81(a) shall provide notice to and obtain approval from the Approving Authority before the addition of a new source or the implementation of a long-term change in treatment as set forth in Regulation .19G(1)(f)(ii) of this chapter.

#### Regulation .05-1 Use of Noncentralized Treatment Devices.

*COMAR 26.04.01.05-1*

A. A supplier of water may use point-of-entry devices to comply with maximum contaminant levels only if the supplier meets the following requirements. The supplier shall:

  (1) Apply the technology under a plan approved by the Approving Authority. The plan shall:

    (a) Include results from field testing the device to be employed.

    (b) Provide certification that a device will achieve the desired performance.

    (c) Describe a monitoring schedule that addresses the parameters to be measured, frequency, and location. The monitoring plan shall be adequate to ensure that the microbiological safety of the water is not compromised and that it provides health protection equivalent to a monitoring plan for central water treatment.

    (d) Address the tendency for an increase in heterotrophic bacteria concentration in water treated with activated carbon, if it will be used in the treatment devices.

  (2) Install, operate, and maintain a point-of-entry device for each building connected to the system.

  (3) Provide monthly operating reports to the Approving Authority in a format specified by the Approving Authority.

  (4) Maintain the microbiological safety of the water.

  (5) Provide the Approving Authority with all the information it needs to determine that the conditions of this section will be met, and to determine that the supplier of water has taken the necessary measures so that the rights and responsibilities of the public water system customer convey with title upon sale of property.

B. Suppliers of water may not use bottled water or point-of-use devices to achieve compliance with an MCL. Bottled water or point-of-use devices may be used on a temporary basis to avoid an unreasonable risk to health.

#### Regulation .05-2 Treatment Requirements for Surface Water Supplies and Ground Water Supplies Under Direct Influence of Surface Water.

*COMAR 26.04.01.05-2*

A. A supplier of water using a surface water source or a ground water source under the direct influence of surface water shall provide treatment that complies with the treatment technique requirements of 40 CFR Part 141, Subparts H, P, and T. The treatment requirements mandate installing and properly operating water treatment processes that reliably achieve:

  (1) At least 99.9 percent removal or inactivation, or both, of Giardia lamblia cysts between a point where the raw water is not subject to recontamination by surface water runoff and a point downstream before or at the first customer;

  (2) At least 99.99 percent removal or inactivation, or both, of viruses between a point where the raw water is not subject to recontamination by surface water runoff and a point downstream before or at the first customer; and

  (3) At least 99 percent removal of Cryptosporidium between a point where the raw water is not subject to recontamination by surface water runoff and a point downstream before or at the first customer for filtered systems, or control of Cryptosporidium in accordance with and in compliance with an approved watershed control plan for unfiltered systems.

B. A supplier of water using a surface water source or a ground water source under the direct influence of surface water that serves at least 10,000 individuals shall meet the:

  (1) Requirements for avoiding filtration set forth in 40 CFR §§141.71 and 141.171 and the disinfection requirements set forth in 40 CFR §§141.72 and §141.172; or

  (2) Filtration requirements set forth in 40 CFR §§141.73 and §141.173 and the disinfection requirements set forth in 40 CFR §§141.72(b) and §141.172.

C. A supplier of water using a surface water source or a ground water source under the direct influence of surface water that serves fewer than 10,000 individuals shall meet the:

  (1) Requirements for avoiding filtration set forth in 40 CFR §141.71 and the disinfection requirements set forth in 40 CFR §141.72; or

  (2) Filtration requirements set forth in 40 CFR §141.73 and the disinfection requirements set forth in 40 CFR §141.72.

D. Beginning January 1, 2005, a supplier of water using a surface water source or a ground water source under the direct influence of surface water that serves fewer than 10,000 individuals shall also meet the:

  (1) Additional requirements for avoiding filtration set forth in 40 CFR §§141.520—141.522 and the additional disinfection requirements set forth in 40 CFR §§141.530 — 141.544; or

  (2) Additional filtration requirements set forth in 40 CFR §§141.550—141.553 and 141.560—141.564 and the additional disinfection requirements set forth in 40 CFR §§141.72 and 141.530—141.544.

E. A supplier of water at a system that uses a surface water source or a ground water source under the direct influence of surface water shall comply with the applicable reporting and record keeping requirements in 40 CFR §§141.75, 141.175, and 141.570—141.571.

F. The Approving Authority may require a supplier of water using a surface water source or a ground water source under the direct influence of surface water to filter, if the Approving Authority has determined that the supplier of water would be unable to meet the applicable criteria for avoiding filtration found in 40 CFR §§141.71, 141.171, and 141.521—141.522. The supplier of water shall be notified in writing with reasons given for the Approving Authority's decision.

G. If at any time a supplier of water using a surface water source or a ground water source under the direct influence of surface water does not meet the applicable criteria to avoid filtration established in 40 CFR §§141.71, 141.171, and 141.521—141.522, then the supplier is required to monitor, report, filter, and disinfect in accordance with the applicable standards and requirements of the Surface Water Treatment Rule set forth in 40 CFR §§141.72—141.75, Subpart H, §§141.172—141.175, Subpart P, and §§141.530—141.571, Subpart T.

H. A supplier of water using a surface water source or a ground water source under the direct influence of surface water who demonstrates to the satisfaction of the Approving Authority that the supplier meets the applicable criteria to avoid filtration of 40 CFR §§141.71, 141.171, and 141.521— 141.522 is also required to disinfect, monitor, and report in accordance with the applicable standards and requirements of 40 CFR §§141.72, 141.74, and 141.75, Subpart H, §§141.172 and 141.175, Subpart P, and §§141.530—141.543 and 141.570—141.571, Subpart T.

I. The Approving Authority shall determine if public water systems using ground water are under the direct influence of surface water. The Approving Authority may require suppliers of water to conduct studies, perform sampling, and submit data to enable the Approving Authority to make these determinations. The Approving Authority may also rely on independent studies, hydrogeologic data, or its own studies to make these determinations. The Approving Authority shall determine a source to be under the influence of surface water if that source is at risk to contamination from Giardia lamblia cysts. In general, the Approving Authority shall consider the following evidence in making its determinations:

  (1) The concentration of total or fecal coliform in the untreated source water under dry weather and wet weather conditions;

  (2) The presence of organisms in the source water that are commonly found in surface water such as protozoa, algae, insects, Giardia lamblia, or other large diameter pathogens;

  (3) If there are rapid shifts in source water turbidity levels coincident with rainfall events;

  (4) If the results of dye tracer studies demonstrate a close hydrologic connection with surface water;

  (5) Results of measurement of hydraulic gradients from nearby surface water bodies to the production well or spring;

  (6) The depth and integrity of construction of a well or construction and integrity of a spring box or receiver;

  (7) Results of evaluations at other sources under similar conditions;

  (8) Evidence of disease outbreaks in the population served by the system;

  (9) Past violations of coliform bacteria maximum contaminant levels;

  (10) Results of on-site inspections; and

  (11) Whether the well is completed in a confined aquifer as defined in COMAR 26.04.04 and whether the well was constructed in accordance with COMAR 26.04.04.

J. If the Approving Authority has determined that a ground water source is under the direct influence of surface water, the Approving Authority shall notify the supplier of water in writing. The Approving Authority may also notify the supplier of water that the supplier is required to filter, if the Approving Authority has determined that the system would be unable to meet the applicable criteria for avoiding filtration set forth in 40 CFR §§141.71, 141.171, and 141.520—141.522. The Approving Authority shall give the supplier of water the reasons for the Approving Authority's decision. A supplier of water using a ground water source under the direct influence of surface water shall, within:

  (1) 6 months after being notified that the supplier's source is under the direct influence of surface water, monitor and report as required by 40 CFR Part 141, Subparts H, P, and T; and

  (2) 18 months after being notified that the supplier's source is under the direct influence of surface water:

    (a) Meet the applicable criteria to avoid filtration and disinfection requirements of 40 CFR Part 141, Subparts H, P, and T; or

    (b) Filter and disinfect in accordance with the applicable standards and requirements of 40 CFR Part 141, Subparts H, P, and T.

K. A supplier of water at a system using a surface water source or a ground water source under the direct influence of surface water that did not conduct optional monitoring under 40 CFR §141.172 because they served fewer than 10,000 individuals when the monitoring was required, but serve more than 10,000 individuals before January 1, 2005, shall:

  (1) Comply with 40 CFR §§141.170—141.175;

  (2) Consult with the Approving Authority to establish a disinfection benchmark; and

  (3) Consult with the Approving Authority before making a significant change to its disinfection practice, as defined in 40 CFR §141.172(c)(1)(i)—(iv).

L. Testing; Treatment; Record Keeping.

  (1) All public water systems using a surface water source or a ground water source under the direct influence of surface water (Subpart H systems) shall comply with 40 CFR §§141.700—141.722, the regulations concerning enhanced treatment for Cryptosporidium.

  (2) A supplier of water shall conduct an initial and a second round of source water monitoring for each water treatment facility that treats a surface water or GWUDI source, as set forth in 40 CFR §§141.700—141.706 beginning not later than the month that starts with the date listed in the following table:

  (3) A supplier of water shall monitor on a schedule and in a manner set forth in 40 CFR §§141.701—141.702 and shall:

    (a) Submit a sampling schedule for each required round of source water monitoring to the Approving Authority not later than 3 months prior to the applicable date listed in Regulation .05-2L(1) of this chapter for each round of monitoring;

    (b) If the Approving Authority does not respond to a water supplier regarding its sampling schedule, sample according to the schedule submitted to the Approving Authority; and

    (c) Collect samples within 2 days before or 2 days after the dates indicated in their sampling schedule unless the exceptions identified in 40 CFR §141.702(b)(2)(i) and (ii) apply.

  (4) A supplier of water shall collect samples for each plant that treats a surface water or GWUDI source in accordance with 40 CFR §141.703 and shall collect source water samples prior to treatment with chemicals (such as coagulants, oxidants, and disinfectants), unless the system meets the condition of §L(5) of this regulation.

  (5) The Approving Authority may approve sampling after chemical treatment if the Approving Authority determines that sampling before treatment is not feasible, and if the Approving Authority determines that chemical treatment is unlikely to have a significant adverse effect on the analysis of the sample.

  (6) For the analysis of Cryptosporidium, E. coli, and turbidity, a supplier of water shall:

    (a) Use the analytical methods identified in 40 CFR §141.704;

    (b) Have the samples analyzed by a laboratory satisfying the criteria set forth in 40 CFR §141.705; and

    (c) Conduct the analysis in accordance with 40 CFR §§141.704—141.705.

  (7) A supplier of water shall submit its sampling schedules in accordance with 40 CFR §141.702, and shall:

    (a) Report source water monitoring results as specified in 40 CFR §§141.706 and 141.721(a) and (d);

    (b) Report to the Approving Authority the results from source water monitoring not later than 10 days after the end of the month following the month when the sample is collected; and

    (c) If serving at least 10,000 people, report the results from the initial source water monitoring required under 40 CFR §141.707(a) to EPA and the Approving Authority in accordance with 40 CFR §706(b)—(e).

  (8) If a supplier of water wishes to use previously collected data to comply with initial source water monitoring, then it shall comply with the grandfathering requirements set forth in 40 CFR §141.707.

  (9) A supplier of water shall comply with requirements set forth in 40 CFR §141.708 when making a significant change in disinfection practice.

  (10) A supplier of water required to develop disinfection profiles under 40 CFR §141.708 shall comply with 40 CFR §141.709.

  (11) A supplier of water shall maintain records of results from the initial round of source water monitoring required under 40 CFR §141.701(a) and the second round of source water monitoring required under 40 CFR §141.701(b) as specified in 40 CFR §141.722(a) and (b).

aApplies only to filtered systems.

M. Cryptosporidium Treatment Bin Classification for Filtered Systems.

  (1) Following completion of initial source water monitoring required under §L(2) of this regulation, filtered systems shall calculate their initial Cryptosporidium treatment bin concentration for each plant by using the following table and as specified in 40 CFR §141.710:

  (2) Filtered systems shall report their Cryptosporidium bin classification as specified in 40 CFR §141.710 and shall report their:

    (a) Initial bin classification to the Approving Authority not later than 6 months after the system is required to complete initial source water monitoring; and

    (b) Second bin classification to the Approving Authority not later than 6 months after the system is required to complete the second round of source water monitoring.

Bin Classification Table for Filtered Systems

N. Additional Requirements for Cryptosporidium Treatment.

  (1) If a filtered system is required to provide additional treatment under 40 CFR §141.710(a), then it shall provide the level of additional treatment for Cryptosporidium in accordance with 40 CFR §141.711.

  (2) Unfiltered systems shall calculate the arithmetic mean of all Cryptosporidium sample concentrations reported under §L of this regulation in accordance with 40 CFR §141.712(a), and shall provide the level of additional treatment for Cryptosporidium required in 40 CFR §141.712(b).

  (3) Suppliers of water required to provide additional treatment for Cryptosporidium under 40 CFR §§141.710—141.712 shall provide the treatment required according to the following schedule:

  (4) If the bin classification for a filtered system changes following the second round of source water monitoring, filtered systems must recalculate their Cryptosporidium bin concentration and bin classification in accordance with 40 CFR §141.710(d), and the system must provide the level of treatment for Cryptosporidium required under 40 CFR §141.711 on a schedule the State approves.

Cryptosporidium Treatment Compliance Dates Table

O. Toolbox Options for Meeting Cryptosporidium Treatment Requirements.

  (1) Suppliers of water may obtain treatment credits by complying with the requirements of 40 CFR §§141.715—141.720 for toolbox options including:

    (a) Microbial toolbox options, treatment credits, and criteria for meeting Cryptosporidium treatment requirements as set forth in 40 CFR §141.715;

    (b) Source toolbox components set forth in 40 CFR §141.716;

    (c) Prefiltration treatment toolbox components set forth in 40 CFR §141.717;

    (d) Treatment performance toolbox components set forth in 40 CFR §141.718;

    (e) Additional filtration toolbox components set forth in 40 CFR §141.719; and

    (f) Inactivation toolbox components set forth in 40 CFR §141.720.

  (2) Suppliers of water shall report to the Approving Authority as specified in 40 CFR §141.721 for any microbial toolbox options used to comply with treatment requirements under 40 CFR §141.711 or 141.712. Alternatively, for treatment credits, the Approving Authority may approve certifications that demonstrate that a water system is operating within required treatment parameters, rather than to require it to report monthly operational data for tool box options.

  (3) Suppliers of water shall keep the results of treatment monitoring associated with microbial toolbox options, as required by 40 CFR §§141.716—141.720, for 3 years.

#### Regulation .05-3 Treatment Requirements—Control of Disinfection Byproduct (DBP) Precursors.

*COMAR 26.04.01.05-3*

A. Suppliers of water using surface water or ground water under the direct influence of surface water using conventional filtration treatment serving 10,000 or more individuals shall comply with the requirements of 40 CFR Part 141, Subpart L, beginning January 1, 2002.

B. Suppliers of water using surface water or ground water under the direct influence of surface water using conventional filtration treatment serving fewer than 10,000 individuals shall comply with the requirements of 40 CFR Part 141, Subpart L, beginning January 1, 2004.

C. The treatment requirement to control disinfection by product precursors mandates installing and properly operating water treatment processes which reliably achieve at least:

  (1) Enhanced coagulation and enhanced softening requirements of §D of this regulation;

  (2) Alternate compliance criteria for enhanced coagulation and enhanced softening set forth in 40 CFR §141.135(a)(2) and the monitoring requirements for disinfection byproduct precursors (DBPP) set forth in 40 CFR §141.132(d); or

  (3) Additional alternative compliance criteria for softening systems set forth in 40 CFR §141.135(a)(3) and monitoring requirements set forth in 40 CFR §141.132.

D. A supplier of water using surface water or ground water under the direct influence of surface water using conventional filtration treatment is considered to be in compliance with §C(1) of this regulation if the supplier of water meets the following provisions:

  (1) Step 1 Total Organic Carbon (TOC) percent reduction set forth in 40 CFR §141.135(b)(2); or

  (2) Step 2 TOC percent reduction set forth in 40 CFR §141.135(b)(3)—(4).

E. A supplier of water shall monitor and report to the Approving Authority set forth in 40 CFR §141.135 to ensure compliance with the requirements for disinfection byproduct precursors.

#### Regulation .05-4 Recycle Provisions.

*COMAR 26.04.01.05-4*

A. Applicability. All Subpart H systems that employ conventional filtration or direct filtration treatment and that recycle spent filter backwash water, thickener supernatant, or liquids from dewatering processes shall meet the requirements in §§B—D of this regulation.

B. Reporting.

  (1) Suppliers of water shall notify the Approving Authority in writing by December 8, 2003, if the system recycles spent filter backwash water, thickener supernatant, or liquids from dewatering processes.

  (2) Notification under this section shall include, at a minimum:

    (a) A plant schematic showing the origin of all flows which are recycled (including, but not limited to, spent filter backwash water, thickener supernatant, and liquids from dewatering processes), the hydraulic conveyance used to transport them, and the location where they are reintroduced back into the treatment plant;

    (b) Typical recycle flow in gallons per minute (gpm), the highest observed plant flow experienced in the previous year (gpm), design flow for the treatment plant (gpm), and State-approved operating capacity for the plant where the Approving Authority has made such determinations.

C. Treatment Technique Requirement.

  (1) By June 8, 2004, any system that recycles spent filter backwash water, thickener supernatant, or liquids from dewatering processes shall return these flows through the processes of a system's existing conventional or direct filtration system or at an alternate location approved by the Approving Authority.

  (2) If capital improvements are required to modify the recycle location to meet this requirement, all capital improvements shall be completed not later than June 8, 2006.

D. Record Keeping.

  (1) Beginning June 8, 2004, a supplier of water shall collect and retain on file recycle flow information specified in §D(2) of this regulation for review and evaluation by the Approving Authority.

  (2) The following recycle flow information shall be retained:

    (a) A copy of the recycle notification and information submitted to the Approving Authority under §B of this regulation;

    (b) A list of all recycle flows and the frequency with which they are returned;

    (c) The average and maximum backwash flow rate through the filters;

    (d) The average and maximum duration of the filter backwash process in minutes;

    (e) The typical filter run length;

    (f) A written summary of how filter run length is determined;

    (g) The type of treatment provided for the recycle flow; and

    (h) If applicable, data on the physical dimensions of the equalization units, treatment units, or both, typical and maximum hydraulic loading rates, type of treatment chemicals used and average dose and frequency of use, and frequency at which solids are removed.

#### Regulation .05-5 Treatment Requirements for Ground Water Supplies.

*COMAR 26.04.01.05-5*

A. Applicability. All public water suppliers that use ground water are subject to the requirements of 40 CFR §141 Subpart S except public water suppliers that combine all of their ground water with surface water or with ground water under the direct influence of surface water prior to treatment under 40 CFR §141 Subpart H. For the purposes of this regulation, "ground water system” is defined as any public water system subject to 40 CFR §141 Subpart S, including consecutive systems receiving finished ground water.

B. General Requirements. Ground water suppliers subject to 40 CFR §141 Subpart S shall comply with the following requirements:

  (1) Sanitary survey information requirements for all ground water systems in accordance with Regulation .11-3D of this chapter.

  (2) Microbial source water monitoring requirements for ground water suppliers that do not treat all of their ground water to at least 99.99 percent (4-log) treatment of viruses, using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the Approving Authority, before or at the first customer in accordance with Regulation .11-2 of this chapter.

  (3) Treatment technique requirements, described in 40 CFR §141.403, that apply to ground water systems that have fecally contaminated source waters, as determined by source water monitoring conducted under 40 CFR §141.402, or that have significant deficiencies that are identified by the Approving Authority, or that are identified by EPA under the Safe Drinking Water Act section 1445. A ground water supplier with fecally contaminated source water or with significant deficiencies subject to the treatment technique requirements of 40 CFR §141 Subpart S shall implement one or more of the following corrective action options:

    (a) Correct all significant deficiencies;

    (b) Provide an alternate source of water;

    (c) Eliminate the source of contamination; or

    (d) Provide treatment that reliably achieves at least 4-log treatment of viruses, using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the Approving Authority, before or at the first customer.

  (4) Ground water suppliers that provide at least 4-log treatment of viruses, using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the Approving Authority, before or at the first customer are required to conduct compliance monitoring to demonstrate treatment effectiveness, as described in Regulation .11D of this chapter.

  (5) If requested by the Approving Authority, ground water suppliers shall provide the Approving Authority with any existing information that will enable the Approving Authority to perform a hydrogeologic sensitivity assessment. For the purpose of this regulation, “hydrogeologic sensitivity assessment” means a determination of whether groundwater suppliers obtain water from hydrogeologically sensitive settings.

C. Ground Water Suppliers with Significant Deficiencies Or Source Water Fecal Contamination.

  (1) When a significant deficiency, such as an aspect of the system that may have potential to cause risks to public health, is identified by the Approving Authority, or when a ground water source sample collected under Regulation .11-2D of this chapter is fecal indicator-positive or as otherwise specified in this regulation, the ground water suppliers shall meet the treatment technique requirements of 40 CFR §141.403.

  (2) If directed by the Approving Authority, a ground water supplier with a ground water source sample collected under Regulation .11-2D(2), D(4) or E of this chapter that is fecal indicator-positive shall comply with the treatment technique requirements of §C of this regulation.

  (3) When a significant deficiency is identified by the Approving Authority at a Subpart H public water supplier that uses both ground water and surface water, the supplier shall comply with provisions of §C of this regulation except in cases where the Approving Authority determines that the significant deficiency is in a portion of the distribution system that is served solely by surface water or ground water under the direct influence of surface water.

  (4) Unless the Approving Authority directs the ground water supplier to implement a specific corrective action, the ground water supplier shall consult with the Approving Authority regarding the appropriate corrective action within 30 days of receiving written notice from the Approving Authority of a significant deficiency, written notice from a laboratory that a ground water source sample collected under Regulation .11-2D(3) of this chapter was found to be fecal indicator-positive, or direction from the Approving Authority that a fecal indicator-positive collected under Regulation .11-2D(2) or (4) or E of this chapter requires corrective action. For the purposes of 40 CFR §141 Subpart S, significant deficiencies include, but are not limited to, defects in design, operation, or maintenance, or a failure or malfunction of the sources, treatment, storage, or distribution system that the Approving Authority determines to be causing, or have potential for causing, the introduction of contamination into the water delivered to consumers.

  (5) Within 120 days (or earlier if directed by the Approving Authority) of receiving written notification from the Approving Authority of a significant deficiency, written notice from a laboratory that a ground water source sample collected under Regulation .11-2D(3) of this chapter was found to be fecal indicator-positive, or direction from the Approving Authority that a fecal indicator-positive sample collected under Regulation .11-2D(2) or (4) or E of this chapter requires corrective action, the ground water supplier shall either:

    (a) Have completed corrective action in accordance with applicable Approving Authority plan review processes or other Approving Authority guidance or direction, if any, including Approving Authority-specified interim measures; or

    (b) Be in compliance with an approved corrective action plan and schedule subject to the following conditions:

      (i) Any subsequent modifications to an approved corrective action plan and schedule must also be approved by the Approving Authority; and

      (ii) If the Approving Authority specifies interim measures for protection of the public health pending approval of the corrective action plan and schedule, or pending completion of the corrective action plan, the supplier shall comply with these interim measures as well as with any schedule specified by the Approving Authority.

  (6) Corrective Action Alternatives. Ground water suppliers that meet the conditions of §C(1) or (2) of this regulation shall implement one or more of the following corrective action alternatives:

    (a) Correct all significant deficiencies;

    (b) Provide an alternate source of water;

    (c) Eliminate the source of contamination; or

    (d) Provide treatment that reliably achieves at least 4-log treatment of viruses, using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the Approving Authority, before or at the first customer for the ground water source.

  (7) Special Notice to the Public of Significant Deficiencies or Source Water Fecal Contamination.

    (a) For ground water suppliers required to comply with 40 CFR §141 Subpart S, any supplier that receives notice from the Approving Authority of a significant deficiency, or notice from a laboratory of a fecal indicator-positive ground water source sample that is not invalidated by the Approving Authority under Regulation .11-2G of this chapter, shall comply with special public notice requirements of 40 CFR §141.153(h)(6) and Regulation .20B(3) of this chapter.

    (b) In addition to the applicable public notice requirements of 40 CFR §141.202, community ground water suppliers shall comply with special public notification requirements set forth in Regulation .20B(3) of this chapter.

D. Treatment technique violations for ground water suppliers.

  (1) A ground water supplier with a significant deficiency is in violation of the treatment technique requirement if, within 120 days (or earlier if directed by the Approving Authority) of receiving written notice from the Approving Authority of the significant deficiency, the supplier:

    (a) Does not complete corrective action in accordance with any applicable plan review processes or other Approving Authority guidance and direction, including Approving Authority specified interim actions and measures; or

    (b) Is not in compliance with an approved corrective action plan and schedule.

  (2) Unless the Approving Authority invalidates a fecal indicator-positive ground water source sample under Regulation .11-2G of this chapter, a ground water system is in violation of the treatment technique requirement if, within 120 days, or earlier if directed by the Approving Authority, of meeting the conditions of §C(1) or (2) of this regulation, the supplier:

    (a) Does not complete corrective action in accordance with any applicable plan review processes or other Approving Authority guidance and direction, including Approving Authority-specified interim measures, or

    (b) Is not in compliance with an Approving Authority approved corrective action plan and schedule.

  (3) A ground water supplier subject to the requirements of Regulation .11D(3) of this chapter that fails to maintain at least 4-log treatment of viruses, using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the Approving Authority, before or at the first customer for a ground water source is in violation of the treatment technique requirement if the failure is not corrected within four hours of determining the supplier is not maintaining at least 4-log treatment of viruses before or at the first customer.

  (4) Ground water suppliers shall give public notification under Regulation .20C(1)(f) of this chapter for the treatment technique violations specified in §D(1)-(3) of this regulation.

#### Regulation .06 Maximum Contaminant Level for Inorganic Chemicals in Drinking Water.

*COMAR 26.04.01.06*

A. With the exception of nitrate, nitrite, and total nitrate plus nitrite, all inorganic chemical contaminant levels are based on potential adverse health effects resulting from long term exposure to the contaminant in drinking water. All suppliers of water to community water systems shall comply with the MCL for fluoride. All suppliers of water to community water systems and nontransient noncommunity water systems shall comply with the MCLs for arsenic, asbestos, barium, cadmium, chromium, mercury, selenium, antimony, beryllium, cyanide, and thallium. All suppliers of water to community water systems, nontransient noncommunity water systems, and transient noncommunity water systems shall comply with the MCLs for nitrate, nitrite, and total nitrate plus nitrite. Compliance with MCLs for inorganic chemicals is determined under Regulation .14 of this chapter. The following are maximum contaminant levels for inorganic chemicals:

1Unless otherwise specified.

B. Notwithstanding §A(2) of this regulation, the MCL value of 0.05 milligrams per liter (mg/l) for arsenic applies to community water systems until January 22, 2006. Beginning January 23, 2006, this section is no longer applicable.

C. At the discretion of the Approving Authority, levels of nitrate and total nitrate plus nitrite not to exceed 20 milligrams/liter may be allowed in a noncommunity water system if the supplier of water demonstrates to the satisfaction of the Approving Authority that:

  (1) The water is not available to children under 6 months old;

  (2) The supplier will post a warning which indicates that levels of nitrate or total nitrate plus nitrite exceed 10 milligrams/liter and the potential health effects of exposure;

  (3) Adverse health effects do not result; and

  (4) The supplier notified county health officers and the Approving Authority annually of all nitrate or total nitrate plus nitrite levels that exceed 10 milligrams/liter.

#### Regulation .06-1 Best Available Technology for Inorganic Chemicals.

*COMAR 26.04.01.06-1*

The Approving Authority has identified the treatment technologies appearing at 40 CFR §§141.62(c) and (d) and 142.61(a) as the best technology, treatment techniques, or other means available for achieving compliance with the maximum contaminant level for inorganic constituents listed in Regulation .06 of this chapter.

#### Regulation .06-2 Control of Lead and Copper.

*COMAR 26.04.01.06-2*

A. Suppliers of water to a public water system shall comply with the requirements of 40 CFR §§141.80—141.91. These requirements, based on treatment technique requirements, require regular testing by suppliers of water for lead and copper, establish procedures to reduce lead and copper at consumers' taps, and specify public education actions.

B. Additional Monitoring Requirements for Lead and Copper in Tap Water.

  (1) Reduced Monitoring.

    (a) A small water system (serving 3,300 or fewer individuals) or a medium water system (serving 3,301 to 50,000 individuals) that demonstrates for two consecutive 6-month monitoring periods that the tap water lead 90th percentile value computed under 40 CFR §141.80(c)(3) is less than or equal to 0.005 milligram per liter, and that the tap water copper 90th percentile value computed under 40 CFR §141.80(c)(3) is less than or equal to 0.65 milligram per liter, may reduce the number of tap water samples in accordance with 40 CFR §141.86(c), and reduce the frequency of sampling to once every 3 calendar years.

    (b) A large water system (serving more than 50,000 individuals) that demonstrates for two consecutive 6-month monitoring periods that the tap water lead 90th percentile value computed under 40 CFR §141.80(c)(3) is less than or equal to 0.005 milligram per liter, and the tap water copper 90th percentile value computed under 40 CFR §141.80(c)(3) is less than or equal to 0.65 milligram per liter, may request in writing to the Approving Authority to reduce the number of tap water samples in accordance with 40 CFR §141.86(c), and reduce the frequency of sampling to once every 3 calendar years.

  (2) Monitoring Waivers for Small Water Systems.

    (a) Monitoring waivers as described under 40 CFR §141.86(g) apply only to small (serving 3,300 or fewer individuals) nontransient, noncommunity water systems that do not have residential connections.

    (b) Continued eligibility. Under 40 CFR §141.86(g)(5), waivers may not be renewed automatically. A system shall:

      (i) Certify on an annual basis that it meets the materials criteria set forth in 40 CFR §141.86(g)(1); and

      (ii) Comply with the requirements of 40 CFR §141.86(g)(2).

    (c) The Approving Authority shall review annual waiver certifications and may renew or revoke waivers.

    (d) Requirements Following Waiver Revocation. Under 40 CFR §141.86(g)(6), a system whose full or partial waiver has been revoked by the Approving Authority:

      (i) Shall commence lead and copper tap water monitoring at the initial frequency of two consecutive 6-month monitoring periods and initial number of samples not later than 90 days after receiving notification from the Approving Authority;

      (ii) If the system exceeds lead or copper action levels, or both, shall implement corrosion control treatment in accordance with the deadlines and requirements in 40 CFR §141.81(e);

      (iii) If the system meets both the lead and copper action levels, it shall monitor for lead and copper at the tap not less frequently than once every 3 years using the reduced number of sample sites set forth in 40 CFR §141.86(c); and

      (iv) If the supplier of water has fewer than five drinking water taps that can be used for human consumption, it must collect at least one sample from each tap that is available, and collect additional samples from those same taps on different days during the monitoring period in order to have the minimum number of lead and copper samples specified in §B(2)(e).

    (e) A minimum of five lead and copper samples is required for small water systems when performing routine or follow up monitoring.

C. Reporting Requirements. Suppliers of water shall comply with reporting requirements specified in 40 CFR §§141.80—141.90 and 141.154 including the following:

  (1) Calculate the 90th percentile lead and copper concentrations as specified under 40 CFR §141.80(c)(3) during each monitoring period and report the values to the Approving Authority as described under 40 CFR §141.90(a) in the format determined by the Approving Authority;

  (2) Notify and obtain approval from the Approving Authority as required by 40 CFR §141.90(a)(3) before adding a new source and before implementing long term changes in water treatment; and

  (3) Certify compliance with public notice and education requirements under 40 CFR §141.85.

D. Water suppliers shall provide public education and supplemental sampling as set forth in Regulation .20-1 of this chapter.

#### Regulation .07 Maximum Contaminant Levels for Organic Chemicals in Drinking Water.

*COMAR 26.04.01.07*

A. Suppliers of water to community water systems and nontransient noncommunity water systems shall comply with the MCLs for organic chemicals in §§D, E, and F of this regulation.

B. Maximum Contaminant Levels for Total Trihalomethanes. Community and nontransient noncommunity Subpart H systems serving 10,000 or more individuals shall comply with §F(1)—(4) of this regulation beginning January 1, 2002. Community and nontransient noncommunity Subpart H systems serving fewer than 10,000 individuals and systems using only ground water not under the direct influence of surface water shall comply with §F(1)—(4) of this regulation beginning January 1, 2004. All water systems shall comply with these MCLs until the date specified in Regulation .15-2I(2)(b) of this chapter.

C. MCLs for organic chemicals are shown in §§D—F of this regulation.

D. Volatile Organic Contaminants.

E. Synthetic Organic Contaminants.

F. Disinfection Byproducts Maximum Contaminant Levels.

  (1) Total trihalomethanes (TTHM) 0.080 mg/l

  (2) Haloacetic acids (five) (HAA5) 0.060 mg/l

  (3) Bromate ... 0.010 mg/l

  (4) Chlorite ... 1.0 mg/l

#### Regulation .07-1 Best Available Technology for Organic Chemicals.

*COMAR 26.04.01.07-1*

A. The Approving Authority has identified the best available technology to achieve the maximum contaminant levels for contaminants listed in Regulation .07D and E of this chapter. These technologies include granular activated carbon (GAC), packed tower aeration (PTA), and oxidation (OX).

B. The best available technology for each contaminant listed in Regulation .07D and E of this chapter is specified in the following table:

C. Disinfection Byproducts and Disinfectants. The best available technology, treatment technique, or other means available for each contaminant listed in Regulations .07F and .23C of this chapter is specified in the following table:

#### Regulation .07-2 Treatment Techniques for Acrylamide and Epichlorohydrin.

*COMAR 26.04.01.07-2*

A. A supplier of water to a public water system who uses products containing acrylamide or epichlorohydrin shall certify annually, in writing to the Approving Authority, that the product of monomer level and dosage does not exceed the following levels:

  (1) For acrylamide, 0.05 percent dosed at 1 ppm (or an equivalent combination of monomer concentration in the material being added and polymer dosage rate as long as the concentration in the finished water does not exceed 0.0005 milligram/liter of acrylamide); and

  (2) For epichlorohydrin, 0.01 percent dosed at 20 ppm (or an equivalent combination of monomer concentration in the material being added and polymer dosage rate as long as the concentration in the finished water does not exceed 0.002 milligram/liter of epichlorohydrin).

B. The certification shall be in the manner approved by the Approving Authority.

#### Regulation .08 Maximum Contaminant Level for Turbidity in Drinking Water.

*COMAR 26.04.01.08*

A. The maximum contaminant level for turbidity is applicable to all suppliers of water using surface water sources, or ground water sources under the direct influence of surface water, in whole or in part.

B. Until June 29, 1993, the maximum contaminant level for turbidity in drinking water, when measured at a representative entry point to the distribution system, is:

  (1) 1 turbidity unit (TU), as determined by a monthly average pursuant to Regulation .12 of this chapter, except that 5 or fewer turbidity units may be allowed if this higher level of turbidity does not:

    (a) Interfere with disinfection,

    (b) Prevent maintenance of an effective disinfectant agent throughout the distribution system, and

    (c) Interfere with microbiological determinations;

  (2) 5 turbidity units (TU) based on an average of two samples collected on consecutive days.

C. The Approving Authority may set turbidity performance requirements for filtration technologies other than conventional filtration treatment, direct filtration, slow sand filtration, or diatomaceous earth filtration as set forth in 40 CFR §141.173.

D. If the Approving Authority has determined that a system shall install filtration and the system installs filtration after June 29, 1993, then the requirements of §B of this regulation shall continue to apply until filtration is installed.

E. The turbidity standards for systems using a surface water source or a ground water source under the direct influence of surface water are as follows:

  (1) Suppliers of water at all systems shall meet the turbidity requirements in 40 CFR §§141.70—141.75;

  (2) Suppliers of water at systems serving 10,000 or more individuals shall meet the additional turbidity requirements in 40 CFR §141.173(a); and

  (3) Beginning January 1, 2005, suppliers of water at systems serving fewer than 10,000 individuals shall meet the additional turbidity requirements of 40 CFR §§141.550— 141.553.

F. Notwithstanding §A of this regulation, all unfiltered systems that are monitoring in accordance with the criteria to avoid filtration found in 40 CFR §§141.70—141.75 are subject only to the turbidity requirements of 40 CFR §§141.70—141.75.

#### Regulation .09 Maximum Contaminant Levels for Radioactive Substances in Drinking Water.

*COMAR 26.04.01.09*

A. The maximum containment levels for radioactive substances are applicable only to community water systems. The following are the MCLs for radioactive substances:

  (1) Alpha particle radioactivity:

  (2) Beta particle and photon radioactivity from man-made radionuclides:

    (a) The average annual concentration for beta particle and photon radioactivity from man-made radionuclides in drinking water may not produce an annual dose-equivalent to the total body or any internal organ greater than 4 mrem/year;

    (b) Compliance with this regulation shall be determined in accordance with 40 CFR §141.66(d).

B. Compliance Dates.

  (1) Suppliers of water at community water systems shall comply with the MCLs in this regulation on December 8, 2003.

  (2) Compliance with reporting requirements for the radionuclides under 40 CFR Part 141, Appendix A to Subpart O and 40 CFR Part 141, Appendices A and B to Subpart Q is required on December 8, 2003.

C. Compliance Dates.

  (1) Suppliers of water at community water systems shall comply with the MCLs in this regulation on December 8, 2003.

  (2) Compliance with reporting requirements for the radionuclides under 40 CFR Part 141, Appendix A to Subpart O and 40 CFR Part 141, Appendices A and B to Subpart Q is required on December 8, 2003.

D. The Approving Authority has identified the treatment techniques appearing at 40 CFR §141.66, Table B as the best available technology for achieving compliance with the maximum contaminant levels for radioactive contaminants listed in this regulation.

#### Regulation .10 Maximum Contaminant Levels for Coliform Bacteria in Drinking Water.

*COMAR 26.04.01.10*

A. Until March 31, 2016, the maximum contamination level of total coliform is based on the presence or absence of total coliform in each sample, rather than coliform density. The maximum contaminant level for coliform bacteria is exceeded if:

  (1) More than 5 percent of the samples collected in any month are positive for total coliform for any supplier of water that collects 40 or more samples a month;

  (2) Two or more samples collected in any month are positive for total coliform for any supplier of water that collects less than 40 samples a month;

  (3) A total coliform repeat sample is positive following a fecal coliform-positive or E. coli-positive routine sample; or

  (4) Any repeat sample is positive for fecal coliform or E. coli.

B. A supplier of water shall determine compliance with §A of this regulation in each month it is required to monitor total coliform by using:

  (1) All routine samples required by Regulation .11A of this chapter;

  (2) All repeat samples required by Regulation .11-2A and B of this chapter;

  (3) Any routine or repeat samples not invalidated under Regulation .11-2C of this chapter; and

  (4) All samples taken in compliance with Regulation .11B(1) of this chapter.

C. Special purpose samples, such as those taken to determine whether disinfection practices following pipe replacement or repair have been sufficient, may not be used to determine compliance with §A of this regulation.

D. [Best] Until March 31, 2016, the best technology, treatment techniques, or other means of achieving compliance with §A of this regulation are:

  (1) Protection of wells from contamination by appropriate placement and construction;

  (2) Maintenance of a disinfectant residual throughout the distribution system;

  (3) Proper maintenance of the distribution system including pipe replacement, main flushing programs, proper operation of storage tank and reservoirs, and continual maintenance of positive water pressure in the distribution system;

  (4) Filtration and disinfection of surface and ground water as described in 40 CFR Part 141, Subpart H; and

  (5) The implementation of a local wellhead protection program under the approval of the Approving Authority.

E. Until March 31, 2016, any fecal coliform-positive repeat sample or E. coli-positive routine sample, or any total coliform-positive repeat sample following a fecal coliform-positive or E. coli-positive routine sample, the system is in violation of the MCL for total coliforms. This is a violation that may pose an acute risk to health.

F. Beginning April 1, 2016, a system is in violation of the MCL for E.coli for samples taken under the requirements of Regulation .11-4 of this chapter when any of the conditions below occur.  A violation of the MCL for E.coli may pose an acute risk to health.  The MCL for E.coli is exceeded if:

  (1) The system has an E.coli-positive repeat sample following a total coliform-positive routine sample;

  (2) The system has a total coliform-positive repeat sample following an E.coli-positive routine sample;

  (3) The system fails to take all required repeat samples following an E.coli routine sample; or

  (4) The system fails to test for E.coli when any repeat sample tests positive for total coliform.

G. Until March 31, 2016, a supplier of water shall determine compliance with §§A—B of this regulation for each month in which it is required to monitor for total coliforms. Beginning April 1, 2016, a supplier of water shall determine compliance with the MCL for E. coli in accordance with §F of this regulation for each month in which it is required to monitor for total coliforms.

H. Beginning April 1, 2016, the best technology, treatment techniques, or other means of achieving compliance with the maximum contaminant level for total coliforms in §§A—B of this regulation, and for achieving compliance with the maximum contaminant level for E. coli in §F of this regulation are:

  (1) Protection of wells from fecal contamination by appropriate placement and construction;

  (2) Maintenance of a disinfectant residual throughout the distribution system;

  (3) Proper maintenance of the distribution system including appropriate pipe replacement and repair procedures, main flushing programs, proper operation and maintenance of storage tank and reservoirs, cross connection control, and continual maintenance of positive water pressure in the distribution system;

  (4) Filtration and/or disinfection of surface water, as described in subparts H, P, T, and W of 40 CFR §141, or disinfection of ground water, as described in subpart S of 40 CFR §141, using strong oxidants such as chlorine, chlorine dioxide, or ozone; and

  (5) For systems using ground water, compliance with the requirements of a Wellhead Protection Program developed and implemented under section 1428 of the SDWA.

I. Pursuant to section 1412 of the SDWA, the technology, treatment techniques, or other means available identified in this section are affordable technology treatment techniques, or other means available to systems serving 10,000 or fewer people for achieving compliance with the maximum contaminant level for total coliforms in §§A and B of this regulation and for achieving compliance with the maximum contaminant level for E. coli in §F of this regulation.

#### Regulation .11 Microbiological Contaminant Sampling and Analytical Requirements for Total Coliform.

*COMAR 26.04.01.11*

A. Routine Monitoring for Total Coliform of Community and Noncommunity Water Supply Systems Until March 31, 2016.

  (1) A supplier of water to a community water system shall sample for total coliform at regular intervals throughout the month and in number proportionate to the population served as set forth in the coliform sample table in §A(2) of this regulation.

  (2) Coliform Sample Table.

  (3) A supplier of water to a noncommunity system shall:

    (a) Sample for total coliform once a quarter if the system serves 25 to 1,000 persons and uses only ground water not under the direct influence of surface water; or

    (b) Comply with §A(1) of this regulation, if the system:

      (i) Serves more than 1,000 persons;

      (ii) Uses surface water in total or in part; or

      (iii) Uses ground water under the direct influence of surface water.

  (4) A noncommunity water supply system shall comply with §A(1) of this regulation within 6 months after the Approving Authority determines the ground water is under the direct influence of surface water.

  (5) A supplier of water shall sample for total coliform at points which are representative of conditions within the distribution system and in accordance with a sampling siting plan written by the supplier of water. The Approving Authority may revise or review this plan.

  (6) A supplier of water shall monitor for total coliform at regular intervals throughout the month, except if a system uses only ground water and serves less than 4,901 individuals, then the system may collect all required routine samples on 1 day from different sites.

B. Alternative Routine Monitoring Frequency for Total Coliform Until March 31, 2016.

  (1) Public water systems that use surface water or ground water under the direct influence of surface water and that avoid filtration are required to collect at least one total coliform sample near the first service connection each day the source water turbidity exceeds 1 nephelometric turbidity unit (NTU). This sample shall be collected within 24 hours of the turbidity measurement. The Approving Authority may waive the 24-hour requirement under 40 CFR §141.21(a)(5), which is incorporated by reference.

  (2) The Approving Authority may reduce the total coliform sampling frequency of a community or noncommunity water system if the:

    (a) System serves less than 1,000 individuals;

    (b) System has a history of no coliform bacterial contamination in its current configuration;

    (c) System is supplied solely by a protected ground water source;

    (d) System is free of significant sanitary defects based on a sanitary survey conducted within 5 years; and

    (e) Reduction is granted in writing.

  (3) Sampling frequency for total coliform may not be reduced to less than once a:

    (a) Quarter for community systems; and

    (b) Year for noncommunity systems.

  (4) The Approving Authority may reduce total coliform sampling frequency for a noncommunity system using only ground water that regularly serves more than 1,000 individuals for those months when the population served falls below 1,000 individuals.

C. Analytical Requirements for Total Coliform Analysis Until March 31, 2016.

  (1) Total coliform analysis shall be conducted in accordance with methods specified in 40 CFR §141.21(f), which is incorporated by reference.

  (2) The total coliform samples need only to be analyzed for the presence or absence of total coliform and the standard sample size shall be at least 100 milliliters, regardless of analytical method.

D. Compliance Monitoring for Ground Water Supplies.

  (1) Existing Ground Water Sources. A ground water supplier that provides at least 4-log treatment of viruses, using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the Approving Authority, before or at the first customer for any ground water source before December 1, 2009, shall notify the Approving Authority in writing that it provides at least 4-log treatment of viruses, and begin compliance monitoring in accordance with §D(3) of this regulation. Notification to the Approving Authority shall include engineering, operational, or other information that the Approving Authority requests to evaluate the submission. If the supplier subsequently discontinues 4-log treatment of viruses, the supplier shall conduct ground water source monitoring as required under Regulation .11-2 D—J of this chapter.

  (2) New Ground Water Sources. A ground water supplier that places a ground water source in service after November 30, 2009, and that provides at least 4-log treatment of viruses, using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the Approving Authority, before or at the first customer for the ground water source shall comply with the following requirements:

    (a) The supplier shall notify the Approving Authority in writing that it provides at least 4-log treatment of viruses, using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the Approving Authority, before or at the first customer for the ground water source. Notification to the Approving Authority shall include engineering, operational, or other information that the Approving Authority requests to evaluate the submission.

    (b) The supplier shall conduct compliance monitoring as required under §D(3) of this regulation within 30 days of placing the source in service.

    (c) The supplier shall conduct ground water source monitoring required under Regulation .11-2 D—J of this chapter if the supplier subsequently discontinues 4-log treatment of viruses.

  (3) Monitoring requirements. A ground water supplier subject to the requirements of Regulation .05-5C of this chapter, or §D(1) or (2) of this regulation shall monitor the effectiveness and reliability of treatment for that ground water source before or at the first customer as follows:

    (a) Chemical Disinfection.

      (i) Ground Water Suppliers Serving Greater Than 3,300 People. A ground water supplier that serves greater than 3,300 people shall continuously monitor the residual disinfectant concentration using analytical methods specified in 40 CFR §141.74(a)(2) at a location approved by the Approving Authority and shall record the lowest residual disinfectant concentration each day that water from the ground water source is served to the public. The ground water supplier shall maintain the Approving Authority-determined residual disinfectant concentration every day the ground water supplier serves water from the ground water source to the public. If there is a failure in the continuous monitoring equipment, the ground water supplier shall conduct grab sampling every four hours until the continuous monitoring equipment is returned to service. The supplier shall resume continuous residual disinfectant monitoring within 14 days.

      (ii) Ground water suppliers serving 3,300 or fewer people. A ground water supplier that serves 3,300 or fewer people shall monitor the residual disinfectant concentration using analytical methods specified in 40 CFR §141.74(a)(2) at a location approved by the Approving Authority and record the residual disinfection concentration each day that water from the ground water source is served to the public. The ground water supplier shall maintain the approved residual disinfectant concentration every day the ground water supplier serves water from the ground water source to the public. The ground water supplier shall take a daily grab sample during the hour of peak flow or at another time specified by the Approving Authority. If any daily grab sample measurement falls below the minimum residual disinfectant concentration, the ground water supplier shall take follow-up samples every 4 hours until the residual disinfectant concentration is restored to the approved minimum level. Alternatively, a ground water supplier that serves 3,300 or fewer people may monitor continuously and meet the requirements of §D(3)(a)(i) of this regulation.

    (b) Membrane Filtration. A ground water supplier that uses membrane filtration to meet the requirements of this regulation shall monitor the membrane filtration process and shall operate the membrane filtration in accordance with all Approving Authority-specified requirements. A ground water supplier that uses membrane filtration is in compliance with the requirement to achieve at least 4-log removal of viruses when the requirements of 40 CFR §141.403(b)(3)(ii)(A)—(C) are met.

    (c) Alternative Treatment. A ground water supplier that uses an approved alternative treatment to meet the requirements of 40 CFR 141 Subpart S by providing at least 4-log treatment of viruses, using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the Approving Authority, before or at the first customer shall monitor and operate the alternative treatment in accordance with all Approving Authority-specified compliance requirements.

  (4) Discontinuing Treatment. A ground water supplier may discontinue 4-log treatment of viruses, using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the Approving Authority, before or at the first customer for a ground water source if the Approving Authority determines and documents in writing that 4-log treatment of viruses is no longer necessary for that ground water source. A supplier that discontinues 4-log treatment of viruses is subject to the source water monitoring and analytical method requirements of Regulation .11-2 D—J of this chapter.

  (5) Failure to meet the monitoring requirements of this regulation is a monitoring violation and requires the ground water supplier to provide public notification under Regulation .20D(1)(a) of this chapter.

#### Regulation .11-1 Microbiological Contaminant Sampling and Analytical Requirements for Fecal Coliform Until March 31, 2016.

*COMAR 26.04.01.11-1*

A. When any routine or repeat sample is total coliform-positive, the supplier of water shall analyze that total coliform culture medium for fecal coliform or E. coli. The Approving Authority may allow a public water system to forego the fecal coliform or E. coli analysis if the supplier of water assumes that the total coliform-positive is fecal coliform-positive or E. coli-positive and reports this to the Approving Authority in accordance with Regulation .19 of this chapter.

B. The fecal coliform and E. coli analysis shall be conducted in accordance with methods specified in 40 CFR §141.21(f), which is incorporated by reference.

#### Regulation .11-2 Frequency of Repeat Sampling and Sample Invalidation for Total Coliform, and Triggered Source Water Monitoring.

*COMAR 26.04.01.11-2*

A. Frequency of Repeat Sampling for Total Coliform Until March 31, 2016.

  (1) If a routine sample is total coliform-positive, the supplier of water shall take repeat samples within 24 hours from the time the system is notified of the positive result. The Approving Authority may extend this time limit if the system cannot collect the repeat samples within 24 hours. If the time limit is extended, the Approving Authority shall specify how much time the system has to collect the repeat samples. Systems with one service connection may follow the alternative repeat monitoring as specified in §A(4) of this regulation.

  (2) The supplier of water shall take the following number of repeat samples for each total coliform-positive routine sample:

    (a) Three repeat samples when the supplier of water is required to collect more than one routine sample a month; or

    (b) Four repeat samples when the supplier of water is required to collect one, or less than one, routine sample a month.

  (3) The supplier of water shall follow the sampling method below, except the Approving Authority may determine an alternative sampling plan if the conditions below cannot be met:

    (a) Collect one repeat sample from the original total coliform-positive tap; and

    (b) Collect at least one other repeat sample within five service connections upstream of the original site and another within five service connections downstream of the original site.

  (4) The supplier of water shall collect all repeat samples on the same day, except systems with a single service connection may collect check samples over a 4-day period or collect larger sample volumes as long as the total sample volume equals:

    (a) 400 milliliters, when the system is required to take one, or less than one, routine sample a month; or

    (b) 300 milliliters, when the system is required to take more than one routine sample a month.

  (5) If one or more repeat sample is total coliform-positive, the supplier of water shall collect an additional set of repeat samples in the manner specified in §A(1)—(4) of this regulation, until one complete set of repeat samples contains no coliform, or the supplier of water exceeds the maximum contamination level under Regulation .10 of this chapter.

  (6) A sample taken within five service connections of a positive routine sample may be counted as a repeat sample if the sample was collected after the positive routine sample but before notification of the sample results.

  (7) A supplier of water using a ground water source subject to Regulation .05-5 of this chapter, shall perform triggered source water monitoring in accordance with Regulation .11-2D—J of this chapter if conditions described in Regulation .11-2D(1) of this chapter exist.

B. Repeat Sampling the Next Month Until March 31, 2016.

  (1) When a supplier of water collects one or more total coliform-positive samples that are not invalidated under §C of this regulation, and is required to routinely take less than five routine samples a month, the supplier of water shall collect at least five routine samples the next month water is supplied to the public.

  (2) Waiver.

    (a) The Approving Authority may waive, in writing, the requirement in §B(1) of this regulation.

    (b) The Approving Authority may only issue a waiver in accordance with §B(2)(c) or (d) of this regulation.

    (c) The Approving Authority may issue a waiver if the Approving Authority performs a site visit before the end of the next month the system provides water to the public to determine whether additional sampling and corrective action is needed by the supplier of water.

    (d) The Approving Authority may issue a waiver if the Approving Authority has determined why the sample was total coliform-positive and establishes that the supplier of water has corrected the problem before the end of the next sampling month. The supplier of water shall still collect at least one sample the next month the system supplies water to the public unless the Approving Authority determines that the system corrected the problem before the repeat samples were taken and all repeat samples were total coliform-negative. The Approving Authority may not waive the five-sample requirement solely on the grounds that the check samples were negative. The written waiver shall:

      (i) Be signed by the supervisor of the State official recommending the waiver;

      (ii) Include the specific cause of the positive result and the corrective action taken by the supplier of water; and

      (iii) Be available to the EPA and the public.

C. Invalidation of Total Coliform Samples Until March 31, 2016.

  (1) Invalidation by Approving Authority.

    (a) The Approving Authority may invalidate a total coliform-positive sample when the conditions of §C(1)(b), (c), or (d) of this regulation have been met.

    (b) The Approving Authority may invalidate a total coliform-positive sample when the laboratory establishes that improper sample analysis caused the positive result.

    (c) The Approving Authority may invalidate a total coliform-positive sample when repeat samples collected as described in §A of this regulation demonstrate that the original total coliform-positive sample was caused by a domestic or another nondistribution system plumbing problem. This determination can only be made when all repeat samples taken at the original tap are total coliform-positive and all repeat samples collected within five service connections of the original tap are total coliform-negative. The Approving Authority may not invalidate a sample simply on the grounds that all repeat samples were negative.

    (d) The Approving Authority may invalidate a total coliform-positive sample when the total coliform-positive sample result is caused by a condition which does not reflect the water quality of the distribution system. In this case, the decision to invalidate a positive coliform sample shall be in writing and signed by the supervisor of the official recommending the decision. The document shall include the specific cause of the total coliform-positive sample and action taken or to be taken by the supplier of water to correct the problem. This document shall be made available to the EPA and the public. The supplier of water shall still collect repeat samples as described in §A(1)—(4) of this regulation and use them to determine compliance with the maximum contaminant level.

  (2) Invalidation by Laboratory.

    (a) Unless total coliform is detected in a sample, a laboratory shall invalidate a sample if the sample:

      (i) Produces a turbid culture in the absence of gas production using an analytic method when gas formation is examined;

      (ii) Produces a turbid culture in the absence of an acid reaction in the presence-absence coliform test; or

      (iii) Exhibits confluent growth or produces colonies too numerous to count with an analytical method using a membrane filter.

    (b) When a laboratory invalidates a sample as described in §C(2)(a) of this regulation, the supplier of water shall collect another sample from the original location within 24 hours of notification of the invalidated sample. The supplier of water shall continue to resample until it obtains a valid result. The Approving Authority may waive the 24-hour limit on a case-by-case basis.

D. Triggered Source Water Monitoring for Ground Water Supplies.

  (1) General Requirements Until March 31, 2016. A ground water supplier subject to Regulation .05-5 of this chapter shall conduct triggered source water monitoring pursuant to 40 CFR §141.402(a) if the following conditions exist:

    (a) The supplier does not provide at least 4-log treatment of viruses, using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the Approving Authority, before or at the first customer for each ground water source; and

    (b) The supplier is notified that a sample collected under Regulation .11A of this chapter is total coliform-positive and the sample is not invalidated under Regulation .11-2C of this chapter until March 31, 2016.

  (2) Sampling Requirements Until March 31, 2016. A groundwater supplier shall collect, within 24 hours of notification of the routine total coliform-positive sample, at least one ground water source sample from each ground water source in use at the time that the total coliform-positive sample was collected under Regulation .11 of this chapter until March 31, 2016, except as provided in §D(2)(b) of this regulation.

    (a) The Approving Authority may extend the 24-hour time limit on a case-by-case basis if the supplier cannot collect the ground water source water sample within 24 hours due to circumstances beyond its control. In the case of an extension, the Approving Authority must specify how much time the supplier has to collect the sample.

    (b) If approved by the Approving Authority, suppliers with more than one ground water source may meet the requirements of §D(2) of this regulation by sampling a representative ground water source or sources. If directed by the Approving Authority, suppliers shall submit for approval a triggered source water monitoring plan. The plan shall include a sampling siting plan developed in accordance with Regulation .11A(5) of this chapter, and shall identify one or more ground water sources that are representative of each monitoring site in the supplier’s sample siting plan until March 31, 2016, and that the supplier intends to use for representative sampling under §D(2) of this regulation.

    (c) A ground water supplier serving 1,000 people or fewer may use a repeat sample collected from a ground water source to meet the requirements of §A of this regulation and to satisfy the monitoring requirements of §D(2) of this regulation for that ground water source. If the repeat sample collected from the ground water source is E. coli positive, the supplier shall comply with §D(3) of this regulation.

  (3) Additional Requirements Until March 31, 2016. If the Approving Authority does not require corrective action under Regulation .05-5C of this chapter for a fecal indicator-positive source water sample collected under §D of this regulation that is not invalidated under §G of this regulation, the supplier shall collect five additional source water samples from the same source within 24 hours of being notified of the fecal indicator-positive sample.

  (4) Consecutive and Wholesale Systems Until March 31, 2016.

    (a) In addition to the other requirements of §D of this regulation, a consecutive ground water supplier that has a total coliform-positive sample collected under Regulation .11 of this chapter until March 31, 2016, shall notify the wholesale supplier or suppliers within 24 hours of being notified of the total coliform positive sample.

    (b) In addition to the other requirements of §D of this regulation, a wholesale ground water supplier shall comply with the following:

      (i) A wholesale ground water supplier that receives notice from a consecutive supplier it serves that a sample collected under Regulation .11 of this chapter until March 31, 2016, is total coliform positive shall, within 24 hours of being notified, collect a sample from its ground water source(s) under §D(2) of this regulation and analyze it for a fecal indicator under §F of this regulation.

      (ii) If the sample collected under §D(4)(b)(i) of this regulation is fecal indicator-positive, the wholesale ground water supplier shall notify all consecutive suppliers served by that ground water source of the fecal indicator source water positive within 24 hours of being notified of the ground water source sample monitoring result and shall meet the requirements of this §D(3) of this regulation.

  (5) Exceptions to the Triggered Source Water Monitoring Requirements Until March 31, 2016. A ground water supplier is not required to comply with the source water monitoring requirements of §D of this regulation if either of the following conditions exists:

    (a) Until March 31, 2016, the Approving Authority determines, and documents in writing, that the total coliform-positive sample collected under Regulation .11 of this chapter is caused by a distribution system deficiency; or

    (b) Until March 31, 2016, the total coliform-positive sample collected under Regulation .11 of this chapter, is collected at a distribution system location or under conditions that the Approving Authority determined will cause total-coliform-positive samples.

  (6) Beginning April 1, 2016, a groundwater supplier subject to Regulation .05-5 of this chapter shall conduct triggered source water monitoring pursuant to 40 CFR §141.420(a) if the following conditions exist:

    (a) The supplier does not provide at least 4-log treatment of viruses, using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the Approving Authority, before or at the first customer for each ground water source; and

    (b) The supplier is notified that a sample collected under Regulations .11-4D—G of this chapter is total coliform-positive and the sample is not invalidated under Regulation .11-4C(3) beginning April 1, 2016.

  (7) Beginning April 1, 2016, a groundwater supplier shall collect, within 24 hours of notification of the routine total coliform-positive sample, at least one ground water source sample from each ground water source in use at the time that the total coliform-positive sample was collected under Regulations .11-4D—G of this chapter beginning April 1, 2016, except as provided in §D(7)(b) of this regulation.

    (a) The Approving Authority may extend the 24-hour time limit on a case-by-case basis if the supplier cannot collect the ground water source water sample within 24 hours due to circumstances beyond its control. In the case of an extension, the Approving Authority must specify how much time the supplier has to collect the sample.

    (b) If approved by the Approving Authority, suppliers with more than one ground water source may meet the requirements of §D(7) of this regulation by sampling a representative ground water source or sources. If directed by the Approving Authority, suppliers shall submit for approval a triggered source water monitoring plan. The plan shall include a sampling siting plan developed in accordance with Regulation .11-4C of this chapter, and shall identify one or more ground water sources that are representative of each monitoring site in the supplier’s sample siting plan developed in accordance with Regulation .11-4C of this chapter beginning April 1, 2016, and that the supplier intends to use for representative sampling under §D(7) of this regulation.

    (c) Beginning April 1, 2016, a groundwater system serving 1,000 or fewer people may use a repeat sample collected from a ground water source to meet both the requirements of Regulation 11-4 of this chapter and to satisfy the monitoring requirements of paragraph §D(2) of this regulation for that ground water source only if the Approving Authority approves the use of E. coli as a fecal indicator for source water monitoring under §D of this regulation and approves the use of a single sample for meeting both the triggered source water monitoring requirements in §D of this regulation and the repeat monitoring requirements in Regulation .11-4H of this chapter. If the repeat sample collected from the ground water source is E. coli-positive, the system must comply with §D(3) of this regulation.

  (8) Beginning April 1, 2016, if the Approving Authority does not require corrective action under Regulation .05-5C of this chapter for a fecal indicator-positive source water sample collected under §D of this regulation that is not invalidated under §G of this regulation, the supplier shall collect five additional source water samples from the same source within 24 hours of being notified of the fecal indicator-positive sample.

  (9) Consecutive and Wholesale Systems beginning April 1, 2016.

    (a) In addition to the other requirements of §D of this regulation beginning April 1, 2016, a consecutive ground water supplier that has a total coliform-positive sample collected under Regulations .11-4D—G of this chapter shall notify the wholesale supplier or suppliers within 24 hours of being notified of the total coliform positive sample.

    (b) In addition to the other requirements of §D of this regulation, a wholesale ground water supplier shall comply with the following:

      (i) Beginning April 1, 2016, a wholesale ground water supplier that receives notice from a consecutive supplier it serves that a sample collected under Regulations .11-4D—G of this chapter is total coliform positive shall, within 24 hours of being notified, collect a sample from its ground water source(s) in accordance with §D(7) of this regulation and analyze it for a fecal indicator in accordance with §F of this regulation.

      (ii) If the sample collected under §D(4)(b)(i) of this regulation is fecal indicator-positive, the wholesale ground water supplier shall notify all consecutive suppliers served by that ground water source of the fecal indicator source water positive result within 24 hours of being notified of the ground water source sample monitoring result and shall meet the requirements of §D(3) of this regulation.

  (10) Beginning April 1, 2016, a ground water supplier is not required to comply with the source water monitoring requirements of §D of this regulation if either of the following conditions exists:

    (a) The Approving Authority determines, and documents in writing, that the total coliform-positive sample collected under Regulations .11-4D—G of this chapter beginning April 1, 2016 is caused by a distribution system deficiency; or

    (b) The total coliform-positive sample collected under Regulations .11-4D—G of this chapter beginning April 1, 2016 is collected at a distribution system location or under conditions that the Approving Authority determined will cause total-coliform-positive samples.

E. Assessment Source Water Monitoring. If directed by the Approving Authority, ground water suppliers shall conduct assessment source water monitoring. A ground water supplier conducting assessment source water monitoring may use a triggered source water sample collected under §D(1) of this regulation to meet the assessment source water monitoring. If assessment source water monitoring is required by the Approving Authority, the monitoring shall include:

  (1) Collection of a total of 12 ground water source samples that represent each month the supplier provides ground water to the public;

  (2) Collection of samples from each well unless the supplier obtains written approval from the Approving Authority to conduct monitoring at one or more wells within the ground water system that are representative of multiple wells used by that supplier and that draw water from the same hydrogeologic setting;

  (3) Collection of a standard sample volume of at least 100 mL for fecal indicator analysis regardless of the fecal indicator or analytical method used;

  (4) Analysis of all ground water source samples using one of the analytical methods listed in 40 CFR §141.402(c)(2) for the presence of E. coli;

  (5) Collection of ground water source samples at a location prior to any treatment of the ground water source unless the Approving Authority approves a sampling location after treatment; and

  (6) Collection of ground water source samples at the well itself unless the system’s configuration does not allow for sampling at the well itself and the Approving Authority approves an alternate sampling location that is representative of the water quality of that well.

F. Analytical Methods.

  (1) A ground water supplier subject to the source water monitoring requirements of §D of this regulation shall collect a standard sample volume of at least 100 mL for fecal indicator analysis regardless of the fecal indicator or analytical method used.

  (2) A ground water supplier shall analyze all ground water source samples collected under §D of this regulation using one of the analytical methods listed in the table in 40 CFR §141.402(c)(2) for the presence of E. coli, enterococci, or coliphage.

G. Invalidation of a Fecal Indicator Positive Ground Water Source Sample.

  (1) A ground water supplier may obtain invalidation from the Approving Authority for a fecal indicator-positive ground water source sample collected under §D of this regulation only under the following conditions:

    (a) The supplier provides the Approving Authority with written notice from the laboratory that improper sample analysis occurred; or

    (b) The Approving Authority determines and documents in writing that there is substantial evidence that a fecal indicator-positive ground water source sample is not related to source water quality.

  (2) If the Approving Authority invalidates a fecal indicator-positive ground water source sample, the ground water supplier shall collect another source water sample under §D of this regulation within 24 hours of being notified by the Approving Authority of its invalidation decision and shall have it analyzed for the same fecal indicator using the analytical methods in §F of this regulation. The Approving Authority may extend the 24-hour time limit on a case-by-case basis if the supplier cannot collect the source water sample within 24 hours due to circumstances beyond its control. In the case of an extension, the Approving Authority shall specify how much time the supplier has to collect the sample.

H. Sampling location.

  (1) Any ground water source sample required under §D of this regulation shall be collected at a location prior to any treatment of the ground water source unless the Approving Authority approves a sampling location after treatment.

  (2) If the system’s configuration does not allow for sampling at the well itself, the supplier may collect a sample at a location approved by the Approving Authority to meet the requirements of §D of this regulation if the sample is representative of the water quality of that well.

I. New Sources. If directed by the Approving Authority, a ground water supplier that places a new ground water source into service after November 30, 2009, shall conduct assessment source water monitoring under §E of this regulation. If directed by the Approving Authority, the supplier shall begin monitoring before the ground water source is used to provide water to the public.

J. Public Notification.

  (1) A ground water supplier with a ground water source sample collected under §D or E of this regulation that is fecal indicator-positive and that is not invalidated under §G of this regulation, including consecutive suppliers served by the ground water source, shall conduct public notification under Regulation .20B of this chapter.

  (2) Monitoring Violations. Failure to meet the requirements of §§D—I of this regulation is a monitoring violation and requires the ground water supplier to provide public notification under Regulation .20D of this chapter.

#### Regulation .11-3 Sanitary Survey Requirements for Community and Noncommunity Water Supply Systems.

*COMAR 26.04.01.11-3*

A. Public water systems that are required to regularly collect fewer than five total coliform samples a month shall undergo an initial sanitary survey by the Approving Authority. Community water supplies shall be surveyed before June 29, 1994. Noncommunity water supplies shall be surveyed before June 29, 1999.

B. After the initial sanitary survey is completed, the systems in §A of this regulation shall undergo an additional sanitary survey every 5 years. Noncommunity water supply systems using only protected and disinfected ground water shall undergo a sanitary survey at least once every 10 years.

C. Information collected in the course of developing a local wellhead protection program shall be considered for identifying sources of contamination within the delineated wellhead area. The Approving Authority shall review the results of each sanitary survey and determine if existing monitoring frequencies are adequate or if additional measures need to be taken to improve water quality.

D. Sanitary surveys of ground water systems shall be conducted in accordance with the requirements of 40 CFR §§141.21 and 141.401.

  (1) Ground water suppliers shall provide the Approving Authority, at the request of the Approving Authority, any existing information that will enable the Approving Authority to conduct a sanitary survey.

  (2) Sanitary surveys, as conducted by the Approving Authority, shall include, but not be limited to, an onsite review of the water source or sources (identifying sources of contamination by using results of source water assessments or other relevant information where available), facilities, equipment, operation, maintenance, and monitoring compliance of a public water supplier to evaluate the adequacy of the system, its sources and operations and the distribution of safe drinking water.

  (3) The sanitary survey must include an evaluation of the applicable components that follow:

    (a) Source;

    (b) Treatment;

    (c) Distribution system;

    (d) Finished water storage;

    (e) Pumps, pump facilities, and controls;

    (f) Monitoring, reporting, and data verification;

    (g) System management and operation; and

    (h) Operator compliance with requirements of the Approving Authority.

#### Regulation .11-4 Microbiological Contaminant Monitoring and Reporting Requirements.

*COMAR 26.04.01.11-4*

A. Applicability.

  (1) This regulation applies to all public water systems.

  (2) Suppliers of water shall comply with the provisions of this regulation beginning April 1, 2016, unless otherwise specified.

  (3) Suppliers of water that fail to comply with the applicable requirements of 40 CFR §§141.851—141.861, are in violation of the regulation.

B. Analytical Methods and Laboratory Certification.

  (1) Analytical Methodology.

    (a) The standard sample volume required for analysis, regardless of analytical method used, is 100 ml.

    (b) The samples shall be analyzed for the presence or absence of total coliforms and E. coli; a determination of density is not required.

    (c) The time from sample collection to initiation of test medium incubation may not exceed 30 hours. Suppliers are encouraged but not required to hold samples below 10° C during transit.

    (d) If drinking water having residual chlorine (measured as free, combined, or total chlorine) is to be analyzed, sufficient sodium thiosulfate (Na2S2O3) shall be added to the sample bottle before sterilization to neutralize any residual chlorine in the water sample.

    (e) Analyses shall be conducted for total coliform and E. coli analyses in accordance with an EPA approved analytical method, which is incorporated by reference.

  (2) Laboratory certification. Suppliers shall have all compliance samples required under this regulation analyzed by a laboratory certified by the EPA, or the Approving Authority to analyze drinking water samples. The laboratory used by the supplier shall be certified for each method, and associated contaminants used for compliance monitoring analyses under this regulation.

C. General Monitoring Requirements for All Public Water Systems.

  (1) Sample Siting Plans.

    (a) No later than March 31, 2016, suppliers shall develop a written sample siting plan, which identifies sampling sites and includes a sample collection schedule and which shall be representative of water throughout the distribution system. These plans are subject to review by the Approving Authority and revision as needed. Suppliers shall collect total coliform samples according to the written sample siting plan. Monitoring required by this regulation may take place at a customer's premise, dedicated sampling station, or other designated compliance sampling location. Routine and repeat sample sites and any sampling points necessary to meet the requirements of Regulation .11-2 shall be included in the sampling plan.

    (b) Suppliers shall collect samples at regular time intervals throughout the month, except that suppliers that use only ground water and serve 4,900 or fewer people may collect all required samples on a single day if they are taken from different sites.

    (c) Suppliers shall take at least the minimum number of required samples even if the system has had an E. coli MCL violation or has exceeded the coliform treatment technique triggers in §I(1) of this regulation.

    (d) A supplier may conduct more compliance monitoring than is required by this regulation to investigate potential problems in the distribution system and use monitoring as a tool to assist in uncovering problems. A supplier may take more than the minimum number of required routine samples and shall include the results in calculating whether the coliform treatment technique trigger in §I(1)(a) of this regulation has been exceeded if the samples are taken in accordance with the existing sample siting plan and are representative of water throughout the distribution system.

    (e) Suppliers shall identify repeat monitoring locations in the sample siting plan according to the requirements of 40 CFR §141.853(a) which is incorporated by reference.

  (2) Special purpose samples. Special purpose samples, such as those taken to determine whether disinfection practices are sufficient following pipe placement, replacement, or repair, may not be used to determine whether the coliform treatment technique trigger has been exceeded. Repeat samples taken according to §H of this regulation are not considered special purpose samples, and shall be used to determine whether the coliform treatment technique trigger has been exceeded.

  (3) Invalidation of total coliform samples. A total coliformpositive sample invalidated under this section does not count toward meeting the minimum monitoring requirements of this regulation.

    (a) The Approving Authority may invalidate a total coliformpositive sample if the one of the following conditions are met:

      (i) The laboratory establishes that improper sample analysis caused the total coliform-positive result;

      (ii) The Approving Authority, on the basis of the results of repeat samples collected as required under §H of this regulation, determines that the total coliform-positive sample resulted from a domestic or other nondistribution system plumbing problem.  The Approving Authority cannot invalidate a sample on the basis of repeat sample results unless all repeat sample(s) collected at a location other than the original tap are total coliform-negative; or

      (iii) The Approving Authority has substantial grounds to believe that a total coliform-positive result is due to a circumstance or condition that does not reflect water quality in the distribution system. In this case, the supplier shall still collect all repeat samples required under §H of this regulation, and use them to determine whether a coliform treatment technique trigger in §I of this regulation has been exceeded.

    (b) A laboratory shall invalidate a total coliform sample (unless total coliforms are detected) if the sample produces a turbid culture in the absence of gas production using an analytical method where gas formation is examined (e.g., the Multiple-Tube Fermentation Technique), produces a turbid culture in the absence of an acid reaction in the Presence-Absence (P-A) Coliform Test, or exhibits confluent growth or produces colonies too numerous to count with an analytical method using a membrane filter (e.g., Membrane Filter Technique). If a laboratory invalidates a sample because of such interference, the supplier shall collect another sample from the same location as the original sample within 24 hours of being notified of the interference problem, and have it analyzed for the presence of total coliforms. The supplier shall continue to re-sample within 24 hours and have the samples analyzed until it obtains a valid result. The Approving Authority may waive the 24-hour time limit on a case-by-case basis. Alternatively, the Approving Authority may implement criteria for waiving the 24-hoursampling time limit to use in lieu of case-by-case extensions.

D. Routine Monitoring Requirements for Noncommunity Water Systems Serving 1,000 or Fewer People Using Only Ground Water.

  (1) General.

    (a) This section applies to noncommunity water systems using only ground water (except ground water under the direct influence of surface water, as defined in Regulation .01 of this chapter) and serving 1,000 or fewer people.

    (b) Following any total coliform-positive sample taken under the provisions of this section, suppliers shall comply with the repeat monitoring requirements and E. coli analytical requirements in §H of this regulation.

    (c) Once all monitoring required by this section and §H of this regulation for a calendar month has been completed, suppliers shall determine whether any coliform treatment technique triggers specified in §I of this regulation have been exceeded. If any trigger has been exceeded, suppliers shall complete assessments as required by §I of this regulation.

  (2) Monitoring frequency for total coliforms. Suppliers shall monitor each calendar quarter that the system provides water to the public, except for seasonal systems or as provided under §D(3)—(8) and (10) of this regulation. Seasonal systems shall meet the monitoring requirements of §D(9) of this regulation.

  (3) Transition.

    (a) Systems, including seasonal systems, shall continue to monitor according to the total coliform monitoring schedules under Regulation .11A(5) of this chapter that were in effect on March 31, 2016, unless any of the conditions for increased monitoring in §D(6) of this regulation are triggered on or after April 1, 2016, or unless otherwise directed by the Approving Authority.

    (b) Beginning April 1, 2016, the Approving Authority shall perform a special monitoring evaluation during each sanitary survey to review the status of the system, including the distribution system, to determine whether the system is on an appropriate monitoring schedule in accordance with 40 CFR §141.853(c).

  (4) Annual site visits. Beginning no later than January 1, 2017, systems on annual monitoring, including seasonal systems, shall have an initial and recurring annual site visit by the Approving Authority that is equivalent to a Level 2 assessment or an annual voluntary Level 2 assessment that meets the criteria in §I(2) of this regulation in order to remain on annual monitoring.

  (5) Criteria for annual monitoring. Beginning April 1, 2016, the Approving Authority may reduce the monitoring frequency for a well-operated ground water system from quarterly routine monitoring to no less than annual monitoring, if the system demonstrates that it meets the criteria for reduced monitoring in §D(5)(a)—(c) of this regulation, except for a system that has been on increased monitoring under the provisions of §D(6) of this regulation. A system on increased monitoring under §D(6) of this regulation shall meet the provisions of §D(7) of this regulation to go to quarterly monitoring and shall meet the provisions of §D(8) of this regulation to go to annual monitoring.

    (a) The system has a clean compliance history for a minimum of 12 months;

    (b) The most recent sanitary survey shows that the system is free of sanitary defects or has corrected all identified sanitary defects, has a protected water source, and meets approved construction standards; and

    (c) The Approving Authority has conducted an annual site visit within the last 12 months and the supplier has corrected all identified sanitary defects. The supplier may substitute a Level 2 assessment that meets the criteria in §I (2) for the annual site visit.

  (6) A system on quarterly or annual monitoring that experiences any of the events identified in §D(6)(a)—(d) of this regulation shall begin monthly monitoring the month following the event.  A system on annual monitoring that experiences an event identified in §D(6)(e) of this regulation shall begin quarterly monitoring the quarter following the event.  The supplier shall continue monthly or quarterly monitoring until the requirements in §D(7) of this regulation for quarterly monitoring or §D(8) of this regulation for annual monitoring are met.  A system on monthly monitoring for reasons other than those identified in §D(6)(a)—(d) of this regulation is not considered to be on increase monitoring for the purposes of §D(7) and (8) of this regulation.

    (a) The system triggers a Level 2 assessment or two Level 1 assessments under the provisions of §I of this regulation in a rolling 12-month period;

    (b) The system has an E. coli MCL violation;

    (c) The system has a coliform treatment technique violation;

    (d) The system has two monitoring violations under this regulation, or one monitoring violation under this regulation and one Level 1 assessment under the provisions of §I of this regulation in a rolling 12-month period for a system on quarterly monitoring; or

    (e) The system has one monitoring violation under this regulation for a system on annual monitoring.

  (7) The Approving Authority may reduce the monitoring frequency for a system on monthly monitoring triggered under §D(6) of this regulation to quarterly monitoring if the system meets the criteria in §D(7)(a) and (b) of this regulation.

    (a) Within the last 12 months, the system shall have a completed sanitary survey or a site visit by the Approving Authority or by its designee or a voluntary Level 2 assessment by a party approved by the Approving Authority, be free of sanitary defects, and have a protected water source; and

    (b) The system shall have a clean compliance history for a minimum of 12 months.

  (8) The Approving Authority may reduce the monitoring frequency for a system on increased monitoring under §D(6) of this regulation if the system meets the criteria in §D(7) of this regulation plus the criteria in §D(8)(a) and (b) of this regulation.

    (a) An annual site visit by the Approving Authority and correction of all identified sanitary defects. The supplier may substitute a voluntary Level 2 assessment by a party approved by the Approving Authority for the annual site visit in any given year.

    (b) The supplier shall have in place or adopt one or more additional enhancements to the water system barriers to contamination in §D(8)(b)(i)—(v) of this regulation:

      (i) An approved cross connection control plan;

      (ii) An operator certified by the Board of Waterworks and Waste Systems Operators or regular visits by a circuit rider certified by the Board of Waterworks and Waste Systems Operators;

      (iii) Continuous disinfection entering the distribution system and a residual in the distribution system in accordance with criteria specified by the Approving Authority;

      (iv) Demonstration of maintenance of at least a 4-log removal or inactivation of viruses as provided for under 40 CFR §141.403(b)(3); or

      (v) Other equivalent enhancements to water system barriers as approved by the Approving Authority.

  (9) Seasonal Systems.

    (a) Beginning April 1, 2016, all seasonal systems shall demonstrate completion of an approved start-up procedure, which may include a requirement for startup sampling prior to serving water to the public.

    (b) Beginning April 1, 2016 a seasonal system shall monitor every month that it is in operation unless it meets the criteria in §D(9)(b)(i)—(iii) of this regulation to be eligible for monitoring less frequently than monthly, except as provided under §D(3) of this regulation.

      (i) Seasonal systems monitoring less frequently than monthly shall have an approved sample siting plan that designates the time period for monitoring based on site-specific considerations (e.g., during periods of highest demand or highest vulnerability to contamination). Seasonal systems shall collect compliance samples during this time period.

      (ii) To be eligible for quarterly monitoring, the system shall meet the criteria in §D(7) of this regulation.

      (iii) To be eligible for annual monitoring, the system shall meet the criteria under §D(8) of this regulation.

    (c) The Approving Authority may exempt any seasonal system from some or all of the requirements for seasonal systems if the entire distribution system remains pressurized during the entire period that the system is not operating, except that systems that monitor less frequently than monthly shall monitor during the vulnerable period designated by the Approving Authority.

  (10) Additional routine monitoring the month following a total coliform-positive sample. Suppliers collecting samples on a quarterly or annual frequency shall conduct additional routine monitoring the month following one or more total coliform-positive samples (with or without a Level 1 treatment technique trigger). Suppliers shall collect at least three routine samples during the next month, except that the Approving Authority may waive this requirement if the conditions of 40 CFR §141.854(j) are met. Suppliers may either collect samples at regular time intervals throughout the month or may collect all required routine samples on a single day if samples are taken from different sites. Suppliers shall use the results of additional routine samples in coliform treatment technique trigger calculations under §I of this regulation.

E. Routine Monitoring Requirements for Community Water Systems Serving 1,000 or Fewer People Using Ground Water.

  (1) General.

    (a) This section applies to community water systems using only ground water (except ground water under the direct influence of surface water, as defined in Regulation .01 of this chapter) and serving 1,000 or fewer people.

    (b) Following any total coliform-positive sample taken under the provisions of this section, suppliers shall comply with the repeat monitoring requirements and E. coli analytical requirements in §H of this regulation.

    (c) Once all monitoring required by this section and §H of this regulation for a calendar month has been completed, suppliers shall determine whether any coliform treatment technique triggers specified in §I of this regulation have been exceeded. If any trigger has been exceeded, suppliers shall complete assessments as required by §I of this regulation.

  (2) Monitoring frequency for total coliforms. The monitoring frequency for total coliforms is one sample/month, except as provided for under §E(3)—(6) of this regulation.

  (3) Transition.

    (a) All suppliers shall continue to monitor according to the total coliform monitoring schedules under Regulation .11A(5) of this chapter that were in effect on March 31, 2016, unless any of the conditions in §E(5) of this regulation are triggered on or after April 1, 2016, or unless otherwise directed by the Approving Authority.

    (b) Beginning April 1, 2016, the Approving Authority shall perform a special monitoring evaluation during each sanitary survey to review the status of the system, including the distribution system, to determine whether the system is on an appropriate monitoring schedule in accordance with 40 CFR §141.855(b)(2).

  (4) Criteria for reduced monitoring. The Approving Authority may reduce the monitoring frequency from monthly monitoring to no less than quarterly monitoring if the system is in compliance with operator certification provisions and demonstrates that it meets the criteria in §E(4)(a)—(c) of this regulation. A system that loses its certified operator shall return to monthly monitoring the month following that loss.

    (a) The system has a clean compliance history for a minimum of 12 months.

    (b) The most recent sanitary survey shows the system is free of sanitary defects, or that the system is in compliance with an approved plan and schedule to correct the sanitary defects. The sanitary survey must also show that the system has a protected water source and meets approved construction standards.

    (c) The system meets at least one of the following criteria:

      (i) An annual site visit by the Approving Authority that is equivalent to a Level 2 assessment or an annual Level 2 assessment by a party approved by the Approving Authority and correction of all identified sanitary defects (or an approved plan and schedule to correct them and is in compliance with the plan and schedule).

      (ii) An approved cross connection control plan.

      (iii) Continuous disinfection entering the distribution system and a residual in the distribution system in accordance with criteria specified by the Approving Authority.

      (iv) Demonstration of maintenance of at least a 4-log removal or inactivation of viruses as provided for under 40 CFR §141.403(b)(3).

      (v) Other equivalent enhancements to water system barriers as approved by the Approving Authority.

  (5) Return to routine monthly monitoring requirements. Systems on quarterly monitoring that experience any of the events in §E(5)(a)—(d) of this regulation shall begin monthly monitoring the month following the event. The supplier shall continue monthly monitoring until it meets the reduced monitoring requirements in §E(4) of this regulation.

    (a) The system triggers a Level 2 assessment or two Level 1 assessments in a rolling 12-month period.

    (b) The system has an E. coli MCL violation.

    (c) The system has a coliform treatment technique violation.

    (d) The system has two monitoring violations under this regulation in a rolling 12-month period.

  (6) Additional routine monitoring the month following a total coliform-positive sample. Suppliers collecting samples on a quarterly frequency shall conduct additional routine monitoring the month following one or more total coliform-positive samples (with or without a Level 1 treatment technique trigger). Suppliers shall collect at least three routine samples during the next month, except that the Approving Authority may waive this requirement if the conditions of §E(6)(a), (b), or (c) of this regulation are met. Suppliers may either collect samples at regular time intervals throughout the month or may collect all required routine samples on a single day if samples are taken from different sites. Suppliers shall use the results of additional routine samples in coliform treatment technique trigger calculations.

    (a) The Approving Authority may waive the requirement to collect three routine samples the next month in which the system provides water to the public if the Approving Authority, or an agent approved by the Approving Authority, performs a site visit before the end of the next month in which the system provides water to the public. Although a sanitary survey need not be performed, the site visit shall be sufficiently detailed to allow the Approving Authority to determine whether additional monitoring and/or any corrective action is needed. The Approving Authority cannot approve an employee of the system to perform this site visit, even if the employee is an agent approved by the Approving Authority to perform sanitary surveys.

    (b) The Approving Authority may waive the requirement to collect three routine samples the next month in which the system provides water to the public if the Approving Authority has determined why the sample was total coliform-positive and has established that the supplier has corrected the problem or will correct the problem before the end of the next month in which the supplier serves water to the public. In this case, the Approving Authority shall document this decision to waive the following month's additional monitoring requirement in writing, have it approved and signed by the supervisor of the Approving Authority official who recommends such a decision, and make this document available to the EPA and the public. The written documentation shall describe the specific cause of the total coliform-positive sample and what action the supplier has taken and/or will take to correct this problem.

    (c) The Approving Authority may not waive the requirement to collect three additional routine samples the next month in which the supplier provides water to the public solely on the grounds that all repeat samples are total coliform-negative. If the Approving Authority determines that the supplier has corrected the contamination problem before the supplier takes the set of repeat samples required in 40 CFR §141.858, and all repeat samples were total coliform-negative, the Approving Authority may waive the requirement for additional routine monitoring the next month.

F. Routine Monitoring Requirements for Subpart H Public Water Systems Serving 1,000 or Fewer People.

  (1) General.

    (a) This section applies to Subpart H public water systems, as defined in Regulation .01 of this chapter, serving 1,000 or fewer people.

    (b) Following any total coliform-positive sample taken under the provisions of this section, suppliers shall comply with the repeat monitoring requirements and E. coli analytical requirements in §H of this regulation.

    (c) Once all monitoring required by this section and §H of this regulation for a calendar month has been completed, suppliers shall determine whether any coliform treatment technique triggers specified in §I of this regulation have been exceeded. If any trigger has been exceeded, suppliers shall complete assessments as required by §I of this regulation.

    (d) Seasonal Systems.

      (i) Beginning April 1, 2016, all seasonal systems shall demonstrate completion of an approved start-up procedure, which may include a requirement for start-up sampling prior to serving water to the public.

      (ii) The Approving Authority may exempt any seasonal system from some or all of the requirements for seasonal systems if the entire distribution system remains pressurized during the entire period that the system is not operating.

  (2) Routine monitoring frequency for total coliforms. Subpart H systems of this regulation (including consecutive systems) shall monitor monthly. Systems may not reduce monitoring.

  (3) Unfiltered Subpart H Systems. A Subpart H system of this chapter that does not practice filtration in compliance with subparts H, P, T, and W of 40 CFR §141 shall collect at least one total coliform sample near the first service connection each day the turbidity level of the source water, measured as specified in 40 CFR §141.74(b)(2), exceeds 1 NTU. When one or more turbidity measurements in any day exceed 1 NTU, the supplier shall collect this coliform sample within 24 hours of the first exceedance, unless the Approving Authority determines that the supplier, for logistical reasons outside the supplier's control, cannot have the sample analyzed within 30 hours of collection and identifies an alternative sample collection schedule. Sample results from this coliform monitoring shall be included in determining whether the coliform treatment technique trigger in §I of this regulation has been exceeded.

G. Routine Monitoring Requirements for Public Water Systems Serving More Than 1,000 People.

  (1) General.

    (a) This section applies to public water systems serving more than 1,000 persons.

    (b) Following any total coliform-positive sample taken under the provisions of this section, suppliers shall comply with the repeat monitoring requirements and E. coli analytical requirements in §H of this regulation.

    (c) Once all monitoring required by this section and §H of this regulation for a calendar month has been completed, suppliers shall determine whether any coliform treatment technique triggers specified in §I of this regulation have been exceeded. If any trigger has been exceeded, suppliers shall complete assessments as required by §I of this regulation.

    (d) Seasonal Systems.

      (i) Beginning April 1, 2016, all seasonal systems shall demonstrate completion of a Approving Authority-approved start-up procedure, which may include a requirement for start-up sampling prior to serving water to the public.

      (ii) The Approving Authority may exempt any seasonal system from some or all of the requirements for seasonal systems if the entire distribution system remains pressurized during the entire period that the system is not operating.

  (2) Monitoring frequency for total coliforms. The monitoring frequency for total coliforms is based on the population served by the system, as follows:

  (3) Unfiltered Subpart H Systems. A Subpart H system of this part that does not practice filtration in compliance with subparts H, P, T, and W of 40 CFR 141 shall collect at least one total coliform sample near the first service connection each day the turbidity level of the source water, measured as specified in 40 CFR §141.74(b)(2), exceeds 1 NTU. When one or more turbidity measurements in any day exceed 1 NTU, the supplier shall collect this coliform sample within 24 hours of the first exceedance, unless the Approving Authority determines that the supplier, for logistical reasons outside the supplier's control, cannot have the sample analyzed within 30 hours of collection and identifies an alternative sample collection schedule. Sample results from this coliform monitoring shall be included in determining whether the coliform treatment technique trigger in §I of this regulation has been exceeded.

  (4) Reduced monitoring. Suppliers may not reduce monitoring, except for noncommunity water systems using only ground water (and not ground water under the direct influence of surface water) serving 1,000 or fewer people in some months and more than 1,000 persons in other months. In months when more than 1,000 persons are served, the suppliers shall monitor at the frequency specified in §G(1) of this regulation. In months when 1,000 or fewer people are served, the Approving Authority may reduce the monitoring frequency, in writing, to a frequency allowed under §D of this regulation for a similarly situated system that always serves 1,000 or fewer people, taking into account the provisions in §D(1)—(7).

H. Repeat Monitoring and E. coli Requirements

  (1) Repeat Monitoring.

    (a) If a sample taken under §§D—G of this regulation is total coliform-positive, the supplier shall collect a set of repeat samples within 24 hours of being notified of the positive result. The supplier shall collect no fewer than three repeat samples for each total coliform-positive sample found. The Approving Authority may extend the 24-hour limit on a case-by-case basis if the supplier has a logistical problem in collecting the repeat samples within 24 hours that is beyond its control. Alternatively, the Approving Authority may implement criteria for the supplier to use in lieu of case-by-case extensions. In the case of an extension, the Approving Authority shall specify how much time the supplier has to collect the repeat samples. The Approving Authority cannot waive the requirement for a supplier to collect repeat samples in §H(a)—(c) of this regulation.

    (b) The supplier shall collect all repeat samples on the same day, except that the Approving Authority may allow a supplier with a single service connection to collect the required set of repeat samples over a 3-day period or to collect a larger volume repeat sample(s) in one or more sample containers of any size, as long as the total volume collected is at least 300 ml.

    (c) The supplier shall collect an additional set of repeat samples in the manner specified in §H(1)(a)—(c) of this regulation if one or more repeat samples in the current set of repeat samples is total coliform-positive. The supplier shall collect the additional set of repeat samples within 24 hours of being notified of the positive result, unless the Approving Authority extends the limit as provided in §H(1)(a) of this regulation. The supplier shall continue to collect additional sets of repeat samples until either total coliforms are not detected in one complete set of repeat samples or the supplier determines that a coliform treatment technique trigger specified in §I(1) of this regulation has been exceeded as a result of a repeat sample being total coliform-positive and notifies the Approving Authority. If a trigger identified in §I of this regulation is exceeded as a result of a routine sample being total coliform-positive, suppliers are required to conduct only one round of repeat monitoring for each total coliform-positive routine sample.

    (d) After a supplier collects a routine sample and before it learns the results of the analysis of that sample, if it collects another routine sample(s) from within five adjacent service connections of the initial sample, and the initial sample, after analysis, is found to contain total coliforms, then the supplier may count the subsequent sample(s) as a repeat sample instead of as a routine sample.

    (e) Results of all routine and repeat samples taken under §§D—G of this regulation not invalidated by the Approving Authority shall be used to determine whether a coliform treatment technique trigger specified in §I of this regulation has been exceeded.

  (2) Escherichia coli (E. coli) Testing.

    (a) If any routine or repeat sample is total coliform-positive, the supplier shall analyze that total coliform-positive culture medium to determine if E. coli are present. If E. coli are present, the supplier shall notify the Approving Authority by the end of the day when the supplier is notified of the test result, unless the supplier is notified of the result after the Approving Authority office is closed and the Approving Authority does not have either an after-hours phone line or an alternative notification procedure, in which case the supplier shall notify the Approving Authority before the end of the next business day.

    (b) The Approving Authority has the discretion to allow a supplier, on a case-by-case basis, to forgo E. coli testing on a total coliform-positive sample if that supplier assumes that the total coliform-positive sample is E. coli-positive. Accordingly, the supplier shall notify the Approving Authority as specified in §H(2)(a) of this regulation and the provisions of 40 CFR §141.63(c) apply.

I. Coliform Treatment Technique Triggers and Assessment Requirements for Protection Against Potential Fecal Contamination

  (1) Treatment Technique Triggers. Suppliers shall conduct assessments in accordance with §I(2) of this regulation after exceeding treatment technique triggers in §I(1)(a) and (b) of this regulation.

    (a) Level 1 Treatment Technique Triggers.

      (i) For suppliers taking 40 or more samples per month, the system exceeds 5.0% total coliform-positive samples for the month.

      (ii) For suppliers taking fewer than 40 samples per month, the system has two or more total coliform-positive samples in the same month.

      (iii) The system fails to take every required repeat sample after any single total coliform-positive sample.

    (b) Level 2 treatment technique triggers.

      (i) An E. coli MCL violation, as specified in 40 CFR §141.860(a).

      (ii) A second Level 1 trigger as defined in §I(1)(a) of this regulation, within a rolling 12-month period, unless the Approving Authority has determined a likely reason that the samples that caused the first Level 1 treatment technique trigger were total coliform-positive and has established that the supplier has corrected the problem.

      (iii) For systems with approved annual monitoring, a Level 1 trigger in 2 consecutive years.

  (2) Requirements for assessments.

    (a) Suppliers shall ensure that Level 1 and 2 assessments are conducted in order to identify the possible presence of sanitary defects and defects in distribution system coliform monitoring practices. Level 2 assessments shall be conducted by parties approved by the Approving Authority.

    (b) When conducting assessments, suppliers shall ensure that the assessor evaluates minimum elements that include review and identification of inadequacies in sample sites; sampling protocol; sample processing; atypical events that could affect distributed water quality or indicate that distributed water quality was impaired; changes in distribution system maintenance and operation that could affect distributed water quality (including water storage); source and treatment considerations that bear on distributed water quality, where appropriate (e.g., small ground water systems); and existing water quality monitoring data. The supplier shall conduct the assessment consistent with any Approving Authority directives that tailor specific assessment elements with respect to the size and type of the system and the size, type, and characteristics of the distribution system.

  (3) Level 1 Assessments. A supplier shall conduct a Level 1 assessment consistent with Approving Authority requirements if the system exceeds one of the treatment technique triggers in §I(1)(a) of this regulation.

    (a) The supplier shall complete a Level 1 assessment as soon as practical after any trigger in §I(1)(a) of this regulation. In the completed assessment form, the supplier shall describe sanitary defects detected, corrective actions completed, and a proposed timetable for any corrective actions not already completed. The assessment form may also note that no sanitary defects were identified. The supplier shall submit the completed Level 1 assessment form to the Approving Authority within 30 days after the supplier learns that it has exceeded a trigger.

    (b) If the Approving Authority reviews the completed Level 1 assessment and determines that the assessment is not sufficient (including any proposed timetable for any corrective actions not already completed), the Approving Authority shall consult with the supplier. If the Approving Authority requires revisions after consultation, the supplier shall submit a revised assessment form to the Approving Authority on an agreed-upon schedule not to exceed 30 days from the date of the consultation.

    (c) Upon completion and submission of the assessment form by the supplier, the Approving Authority shall determine if the supplier has identified a likely cause for the Level 1 trigger and, if so, establish if the supplier has corrected the problem, or has included a schedule acceptable to the Approving Authority for correcting the problem.

  (4) Level 2 Assessments. A supplier shall ensure that a Level 2 assessment consistent with Approving Authority requirements is conducted if the supplier exceeds one of the treatment technique triggers in §I(1)(b) of this regulation. The supplier shall comply with any expedited actions or additional actions required by the Approving Authority in the case of an E. coli MCL violation.

    (a) The supplier shall ensure that a Level 2 assessment is completed as soon as practical after any trigger in §I(1)(b) of this regulation. The supplier shall submit a completed Level 2 assessment form to the Approving Authority within 30 days after the supplier learns that it has exceeded a trigger. The assessment form shall describe sanitary defects detected, corrective actions completed, and a proposed timetable for any corrective actions not already completed. The assessment form may also note that no sanitary defects were identified.

    (b) The supplier may conduct Level 2 assessments if the supplier has staff or management with the certification or qualifications specified by the Approving Authority unless otherwise directed by the Approving Authority.

    (c) If the Approving Authority reviews the completed Level 2 assessment and determines that the assessment is not sufficient (including any proposed timetable for any corrective actions not already completed), the Approving Authority shall consult with the supplier. If the Approving Authority requires revisions after consultation, the supplier shall submit a revised assessment form to the Approving Authority on an agreed-upon schedule not to exceed 30 days.

    (d) Upon completion and submission of the assessment form by the supplier, the Approving Authority shall determine if the supplier has identified a likely cause for the Level 2 trigger and determine whether the supplier has corrected the problem, or has included a schedule acceptable to the Approving Authority for correcting the problem.

  (5) Corrective Action. Suppliers shall correct sanitary defects found through either Level 1 or 2 assessments conducted under §I(2) of this regulation. For corrections not completed by the time of submission of the assessment form, the supplier shall complete the corrective action(s) in compliance with a timetable approved by the Approving Authority in consultation with the supplier. The supplier shall notify the Approving Authority when each scheduled corrective action is completed.

  (6) Consultation. At any time during the assessment or corrective action phase, either the water supplier or the Approving Authority may request a consultation with the other party to determine the appropriate actions to be taken. The supplier may consult with the Approving Authority on all relevant information that may impact on its ability to comply with a requirement of §I(6), including the method of accomplishment, an appropriate time frame, and other relevant information.

J. Violations of the Revised Total Coliform Rule.

  (1) E. coli MCL Violation.  A system is in violation of the MCL for E. coli when any of the following conditions identified in §J(1)(a)—(d) of this regulation occur:

    (a) The system has an E.coli-positive repeat sample following a total coliform-positive routine sample;

    (b) The system has a total coliform-positive repeat sample following an E.coli-positive routine sample;

    (c) The system fails to take all required repeat samples following an E.coli-positive routine sample; or

    (d) The system fails to test for E. coli when any repeat sample tests positive for total coliform.

  (2) Treatment Technique Violation.

    (a) A treatment technique violation occurs when a system exceeds a treatment technique trigger specified in §I(1) of this regulation and then fails to conduct the required assessment or corrective actions within the time frame specified in §I(2) and (3) of this regulation.

    (b) A treatment technique violation occurs when a seasonal system fails to complete an Approving Authority-approved start-up procedure prior to serving water to the public.

  (3) Monitoring Violations.

    (a) Failure to take every required routine or additional routine sample in a compliance period is a monitoring violation.

    (b) Failure to analyze for E. coli following a total coliform-positive routine sample is a monitoring violation.

  (4) Reporting Violations.

    (a) Failure to submit a monitoring report or completed assessment form after a system properly conducts monitoring or assessment in a timely manner is a reporting violation.

    (b) Failure to notify the Approving Authority following an E. coli-positive sample as required by 40 CFR §141.858(b)(1) in a timely manner is a reporting violation.

    (c) Failure to submit certification of completion of Approving Authority-approved start-up procedure by a seasonal system is a reporting violation.

#### Regulation .12 Turbidity Sampling and Analytical Requirements.

*COMAR 26.04.01.12*

A. A supplier of water using a surface water source or a ground water source under the direct influence of surface water shall perform turbidity monitoring as required by 40 CFR §§141.70—141.75.

B. Filtered and unfiltered public water systems using surface water sources shall also comply with §§C and D of this regulation until June 29, 1993. A supplier of water using unfiltered surface water or ground water under the direct influence of surface water, which is required by the Approving Authority to filter, but which has not installed filtration, shall continue to comply with §§C and D of this regulation until filtration is installed, even beyond June 29, 1993.

C. The supplier of water shall take samples at a representative entry point to the water distribution system at least once per day for the purpose of making turbidity measurements to determine compliance with Regulation .08 of this chapter.

D. If a measurement indicates the maximum allowable limit has been exceeded, the sampling and measurements shall be repeated, preferably in 1 hour. If the repeat sample confirms that the maximum allowable limit has been exceeded, the supplier of water shall report to the Approving Authority as directed in Regulation .19 of this chapter. If the results of the repeat sample are less than the first sample, the second value should be used in the calculation of the monthly average; otherwise, repeat samples may not be used in calculating the monthly average. If the monthly average of the daily samples exceeds the maximum allowable limit, or if the average of two samples taken on consecutive days exceeds 5 TU, the supplier of water shall notify the Approving Authority as directed in Regulation .19 of this chapter and shall notify the public as directed in Regulation .20 of this chapter.

E. Measurements of turbidity shall be made by the Nephelometric Method in accordance with the methods specified in 40 CFR §141.74(a)(1). Continuous turbidity monitoring may be used by a supplier of water only with approval by the Approving Authority.

F. Suppliers of water at systems serving 10,000 or more individuals shall meet the turbidity monitoring requirements in 40 CFR §141.173(a) in addition to the requirements of §§A—E of this regulation.

G. Suppliers of water at systems serving fewer than 10,000 individuals shall meet the turbidity monitoring requirements in 40 CFR §§141.550—141.564 in addition to the requirements of §§A—E of this regulation.

#### Regulation .13 Sampling Analysis: Gross Alpha Particle Activity, Radium-226, Radium-228, Uranium.

*COMAR 26.04.01.13*

A. This regulation applies to a community water system (CWS).

B. Sampling Location. The supplier of water to a community water system shall:

  (1) Sample at every entry point to the distribution system that is representative of all sources being used (after this called a sampling point) under normal operating conditions; and

  (2) Take each sample at the same sampling point unless:

    (a) Conditions make another sampling point more representative of each source; or

    (b) The Approving Authority has designated a distribution system location.

C. Initial Monitoring.

  (1) The supplier of water to an existing CWS shall conduct initial monitoring by December 31, 2007 in order to determine compliance with Regulation .09A of this chapter. The Approving Authority may require more frequent monitoring in the event of possible contamination or if changes in the distribution system or treatment processes occur that may increase the concentration of radioactivity in finished water.

  (2) The supplier of water to a new CWS or a CWS that uses a new source of water shall begin to conduct initial monitoring for the new source within the first quarter after initiating use of the source.

  (3) For systems without acceptable historical data, as defined in §C(4) of this regulation, the supplier of water shall collect four consecutive quarterly samples at all sampling points before December 31, 2007.

  (4) The Approving Authority may allow historical monitoring data collected at a sampling point, if designated as appropriate by the Approving Authority, to satisfy the initial monitoring requirements for that sampling point, for the following situations:

    (a) A CWS having only one entry point to the distribution system may use the monitoring data from the last compliance monitoring period beginning June 1, 2000 through December 8, 2003;

    (b) A CWS with multiple entry points and having appropriate historical monitoring data for each entry point to the distribution system may use the monitoring data from the last compliance monitoring period beginning June 1, 2000 through December 8, 2003; or

    (c) A CWS with historical monitoring data for a representative point in the distribution system may use the monitoring data from the last compliance monitoring period beginning June 1, 2000 through December 8, 2003, if:

      (i) The Approving Authority finds that the historical data satisfactorily demonstrate that each entry point to the distribution system is expected to be in compliance based upon the historical data and reasonable assumptions about the variability of contaminant levels between entry points; and

      (ii) The Approving Authority makes a written finding indicating how the data conforms to these requirements.

  (5) For gross alpha particle activity, uranium, radium-226, and radium-228 monitoring, the Approving Authority may waive the final 2 quarters of initial monitoring for a sampling point if the results of the samples from the previous 2 quarters are below the detection limit.

  (6) If the average of the initial monitoring results for a sampling point is above the maximum contaminant level (MCL), the supplier of water shall collect and analyze quarterly samples at that sampling point until the system has results from 4 consecutive quarters that are at or below the MCL, unless the supplier enters into another schedule as part of a formal compliance agreement with the Approving Authority.

D. Reduced Monitoring.

  (1) The supplier of water may reduce the future frequency of monitoring for a contaminant from once every 3 years to once every 9 years at each sampling point, if the average of the initial monitoring results for each such contaminant is below the detection limit specified in 40 CFR §141.25, Table B.

  (2) The supplier of water may reduce the future frequency of monitoring for a contaminant from once every 3 years to once every 6 years at each sampling point, if:

    (a) For gross alpha particle activity or uranium, the average of the initial monitoring results are at or above the detection limit but at or below 1/2 the MCL; or

    (b) For combined radium-226 and radium-228, the average of the initial monitoring results is at or above the detection limit but at or below 1/2 the MCL.

  (3) The supplier of water shall collect and analyze at least one sample for a contaminant at each sampling point every 3 years if:

    (a) For gross alpha particle activity or uranium, the average of the initial monitoring results is above 1/2 the MCL but at or below the MCL; or

    (b) For combined radium-226 and radium-228, the average of the initial monitoring results is above 1/2 the MCL but at or below the MCL.

  (4) The supplier of water shall use the samples collected during the most recent reduced monitoring period to determine the monitoring frequency for subsequent monitoring periods. For example, if a system's sampling point is on a 9-year monitoring period, and the sample result is above 1/2 MCL, the next monitoring period for that sampling point is 3 years.

  (5) If a CWS has a monitoring result that exceeds the MCL while on reduced monitoring, the supplier of water shall collect and analyze quarterly samples at that sampling point until the system has results from 4 consecutive quarters that are below the MCL, unless the supplier of water enters into another schedule as part of a formal compliance agreement with the Approving Authority.

E. Compositing.

  (1) To fulfill quarterly monitoring requirements for gross alpha particle activity, radium-226, radium-228, or uranium, a supplier of water may composite up to four consecutive quarterly samples from a single entry point if analysis is done within a year of the first sample.

  (2) The composited result shall be used as the average analytical result to determine compliance with the MCLs and the future monitoring frequency.

  (3) If the analytical result from the composited sample is greater than 1/2 MCL, the Approving Authority may direct the water supplier to take additional quarterly samples before allowing the system to sample under a reduced monitoring schedule.

F. Substitutions.

  (1) If the measured gross alpha particle activity does not exceed 5 picocuries per liter (pCi/l), a gross alpha particle activity measurement may be substituted for the required radium-226 measurement.

  (2) If the measured gross alpha particle activity does not exceed 15 picocuries per liter (pCi/l), a gross alpha particle activity measurement may be substituted for the required uranium measurement.

  (3) If a supplier of water uses a gross alpha particle activity measurement instead of a radium-226 measurement, uranium measurement, or both, the gross alpha particle activity analytical result shall be used to determine the future monitoring frequency for radium-226, uranium, or both.

  (4) If the gross alpha particle activity result is less than detection, 1/2 the detection limit shall be used to determine compliance and the future monitoring frequency.

G. Analyses conducted to determine compliance with this regulation shall be made in accordance with those methods specified in 40 CFR §141.25 (1989), which is incorporated by reference.

H. Detection Limit.

  (1) For the purpose of monitoring radioactivity concentrations in drinking water, the required sensitivity of the radioanalysis is defined in terms of a detection limit. The detection limit shall be that concentration which can be measured with an accuracy of plus or minus 100 percent at the 95 percent confidence level (1.96 sigma where sigma is the standard deviation of the net counting rate of the sample).

  (2) To determine compliance with Regulation .09A(1) of this chapter, the detection limit may not exceed 1 pCi/liter. To determine compliance with Regulation .09A(2) of this chapter, the detection limit may not exceed 3 pCi/liter.

  (3) To determine compliance with Regulation .09B, the detection limit may not exceed the concentrations listed in Table A of this regulation.

  (4) To judge compliance of a public water system with the maximum

#### Regulation .13-1 Sampling and Analytical Requirements for Beta Particle and Photon Radioactivity.

*COMAR 26.04.01.13-1*

A. This regulation applies to a community water system (CWS). A CWS, both surface and ground water, designated by the Approving Authority as vulnerable shall sample for beta particle and photon radioactivity.

B. Monitoring.

  (1) Suppliers of water shall collect quarterly samples for beta emitters and annual samples for tritium and strontium-90 at each entry point to the distribution system, after this called a sampling point, beginning within the next calendar quarter after being notified by the Approving Authority.

  (2) Suppliers of water at systems already designated as vulnerable by the Approving Authority shall continue to sample until the Approving Authority reviews and either reaffirms or removes the designation.

  (3) If the gross beta particle activity minus the naturally occurring potassium-40 beta particle activity at a sampling point has a running annual average (computed quarterly) less than or equal to 50 picocuries per liter (pCi/l) (screening level), the Approving Authority may reduce the frequency of monitoring at that sampling point to once every 3 years.

C. CWS in the Vicinity of a Nuclear Facility.

  (1) The Approving Authority may allow the supplier of water to utilize environmental surveillance data collected by the nuclear facility instead of monitoring data collected at the system's entry points if the Approving Authority determines that the data is applicable to a particular water system.

  (2) If there is a release from a nuclear facility, a supplier of water at a CWS that uses surveillance data shall begin monitoring at the system's entry points in accordance with §B(1) and (2) of this regulation.

D. Suppliers of water designated by the Approving Authority as utilizing waters contaminated by effluents from nuclear facilities shall monitor as specified in 40 CFR §141.26(b)(2).

E. Suppliers of water designated by the Approving Authority to monitor for beta particle and photon radioactivity may not apply for a waiver from the monitoring frequencies that are specified in §A or C of this regulation.

F. Analysis for gross beta particle activity shall be conducted in accordance with 40 CFR §141.26(b)(4) and (5).

G. Sampling When Sampling Points Exceed the Maximum Contaminant Level.

  (1) Suppliers of water shall monitor monthly at the sampling points that exceed the maximum contaminant level in 40 CFR §141.66(d)(2) beginning the month after the exceedance occurs.

  (2) Suppliers of water shall continue monthly monitoring until the CWS has established, by a rolling average of three monthly samples, that the MCL is being met.

  (3) Water suppliers who establish that the MCL is being met shall return to quarterly monitoring as set forth in §B, C, or D of this regulation as determined by the Approving Authority.

#### Regulation .13-2 General Monitoring and Compliance Requirements for Radionuclides.

*COMAR 26.04.01.13-2*

A. This regulation applies to a community water system (CWS). The Approving Authority may require more frequent monitoring than specified in Regulations .13 and .13-1 of this chapter, or may require confirmation samples at its discretion. The results of the initial and confirmation samples shall be averaged for use in compliance determinations.

B. Suppliers of water shall monitor at the time designated by the Approving Authority during each compliance period.

C. Compliance with Regulation .09 of this chapter shall be determined based on the analytical results obtained at each sampling point. If one sampling point is in violation of an MCL, the system is in violation of the MCL.

D. For a CWS monitoring more than once per year:

  (1) Compliance with the MCL is determined by a running annual average at each sampling point;

  (2) If the average of any sampling point is greater than the MCL, the system is out of compliance with the MCL; and

  (3) If any sample result causes the running average to exceed the MCL at any sample point, the system is out of compliance with the MCL immediately.

E. Suppliers of water shall include all samples taken and analyzed under the provisions of Regulations .13, .13-1, and .13-2 of this chapter in determining compliance, even if that number is greater than the minimum required.

F. If a supplier of water does not collect all required samples when compliance is based on a running annual average of quarterly samples, compliance shall be based on the running average of the samples collected.

G. If a sample result is less than the detection limit, zero will be used to calculate the annual average, unless a gross alpha particle activity is being used instead of radium-226, uranium, or both. If gross alpha particle activity is being used instead of radium-226, uranium, or both and if the gross alpha particle activity result is less than detection, 1/2 the detection limit shall be used to calculate the annual average.

H. The Approving Authority may delete results of obvious sampling or analytical errors.

I. If the MCL for radioactivity set forth in Regulation .09 of this chapter is exceeded, the operator of a CWS shall give notice to the Approving Authority as required by Regulation .19 of this chapter and to the public as required by Regulation .20 of this chapter.

J. Suppliers of water may be eligible for variances or exemptions from the maximum contaminant levels for radionuclides based on criteria outlined in 40 CFR §142.65.

#### Regulation .14 Inorganic Chemical Sampling and Analytical Requirements.

*COMAR 26.04.01.14*

A. Monitoring for the purpose of determining compliance with Regulation .06 of this chapter shall be conducted by the supplier of water to a community water system, nontransient noncommunity water system, and transient noncommunity water system in accordance with the requirements of 40 CFR §141.23(a)(1)—(3).

B. Routine Monitoring Frequency.

  (1) A supplier of water to a community surface or combined surface and ground water system and a supplier of water to a nontransient noncommunity surface or combined surface and ground water system shall:

    (a) Monitor each entry point annually for the contaminants listed in Regulation .06A(1), (2), (4)—(11), (14), and (15) of this chapter;

    (b) Monitor each entry point quarterly for nitrates, although a supplier may reduce the frequency to annual monitoring for nitrates if the results from four consecutive quarters, collected after January 1, 1993, are all less than 50 percent of the MCL;

    (c) Collect the annual sample required by §B(1)(b) of this regulation during the quarter which previously yielded the highest analytical result;

    (d) Return to quarterly monitoring for nitrates if any annual sample is greater than 50 percent of the MCL;

    (e) Monitor each entry point once for nitrites; and

    (f) Collect follow-up nitrite analysis in accordance with 40 CFR §141.23(e)(3)—(4), if the first was equal to or greater than 50 percent of the nitrite MCL.

  (2) A supplier of water to a community and nontransient noncommunity ground water system shall:

    (a) Monitor each entry point once every 3 years for the contaminants listed in Regulation .06A(1), (2), (4)—(11), (14) and (15) of this chapter;

    (b) Monitor each entry point annually for nitrates;

    (c) Increase nitrate monitoring frequency to quarterly for at least 1 year following any sample which is 50 percent or greater than the MCL, although a supplier of water may return to annual nitrate sampling if the Approving Authority determines that the results are reliably and consistently less than the MCL for at least 4 consecutive quarters;

    (d) Collect the annual sample required by §B(2)(c) of this regulation during the quarter which previously yielded the highest analytical result;

    (e) Monitor each entry point once for nitrites before December 31, 1995; and

    (f) Collect follow up nitrite analysis in accordance with 40 CFR §141.23(e)(3)—(4) if the first test was equal to or greater than 50 percent of the MCL.

  (3) Notwithstanding §B(1) and (2) of this regulation, a supplier of water to a nontransient noncommunity water system is not required to monitor for fluoride.

  (4) A supplier of water to a transient noncommunity water system shall monitor:

    (a) Annually for nitrates; and

    (b) Once for nitrites and, if the nitrite result is equal to or greater than 50 percent of the MCL, the supplier of water shall conduct repeat testing in accordance with 40 CFR §141.23(e)(3)—(4).

  (5) Asbestos.

    (a) In this subsection, “corrosive finished water” includes but is not limited to water provided by a water supplier who fails to meet the treatment technique requirements of 40 CFR §§141.81 or 141.82.

    (b) A supplier of water to a community or nontransient noncommunity water system is vulnerable to asbestos contamination and shall conduct an analysis for asbestos if the:

      (i) Supplier's well is constructed in asbestos-bearing rock;

      (ii) Supplier's surface source is subject to asbestos contamination; or

      (iii) Supplier has asbestos concrete pipe in its distribution system and has corrosive finished water.

    (c) The frequency and location of monitoring for asbestos by systems vulnerable to asbestos shall be in accordance with the requirements of 40 CFR §141.23(b)(1) and (5)—(10), which is incorporated by reference.

    (d) If the Approving Authority determines that a system is not vulnerable to asbestos contamination, the supplier of water may receive a waiver from all testing for asbestos.

  (6) Cyanide. The Approving Authority may grant a waiver to a supplier of water to a community or nontransient noncommunity water system from all testing for cyanide if the Approving Authority determines that the system is not vulnerable to cyanide contamination due to lack of any industrial sources of cyanide that could contribute cyanide to the water system.

  (7) The Approving Authority may designate a time during each compliance period that a supplier of water to a public water system shall monitor, and this supplier of water shall monitor during the time designated.

  (8) Suppliers of water at all systems that begin operation after January 22, 2004 or at systems that begin use of a new source of water after January 22, 2004 shall:

    (a) Demonstrate compliance with the MCLs for contaminants listed in Regulation .06A of this chapter within a period of time specified by the Approving Authority;

    (b) Comply with the initial sampling frequencies specified by the Approving Authority to ensure a system can demonstrate compliance with the MCLs; and

    (c) Conduct routine and increased monitoring frequencies in accordance with the requirements in this regulation.

C. The monitoring frequencies under §§B and F of this regulation are minimum requirements and may be increased at the discretion of the Approving Authority.

D. A supplier of water to a public water system may reduce the number of samples to be analyzed by the use of compositing. Compositing shall be performed according to the requirements of 40 CFR §141.23(a)(4).

E. Waivers.

  (1) The Approving Authority may grant a waiver from the requirements of §B(1)(a) and (2)(a) of this regulation to a supplier of water.

  (2) A waiver of §B(1)(a) and (2)(a) of this regulation may not exceed 9 years, and at least one sample is required to be collected during the term of the waiver.

  (3) The Approving Authority shall follow the requirements of 40 CFR §141.23(b)(4) and (c)(4)—(6), when evaluating and issuing a waiver.

F. Repeat Monitoring When Results Exceed MCLs.

  (1) A supplier of water shall:

    (a) Collect and analyze a second sample from each sampling point at which a routine sample exceeded a maximum contaminant level for the contaminants listed in Regulation .06A(1) and (3)—(16) of this chapter; and

    (b) Comply with the requirements of 40 CFR §141.23(m) and (n), which is incorporated by reference, when a routine sample exceeds the maximum contaminant level for arsenic.

  (2) For all contaminants listed in Regulation .06A of this chapter except nitrates and nitrites, if the results of sampling indicate an exceedance of the MCL, the Approving Authority may require that one additional sample be collected as soon as possible after the initial sample was taken, but not to exceed 2 weeks, at the same sampling point.

  (3) A supplier of water shall collect and analyze a second sample for nitrates, nitrites, or total nitrates plus nitrites within 24 hours of being notified that a routine sample exceeded an MCL for nitrates, nitrites, or total nitrates plus nitrites.

  (4) A supplier of water shall monitor on a quarterly frequency from each sampling point that has been determined to exceed a maximum contaminant level for the contaminants listed in Regulation .06A(1)—(11), (14), and (15) of this chapter, as determined by §G of this regulation.

  (5) The Approving Authority may decrease the quarterly monitoring testing required in §F(4) of this regulation in accordance with the requirements of 40 CFR §141.23(c)(8).

G. Compliance Determination and Notification.

  (1) The average of the results from routine and confirmation samples shall be used to determine compliance. Compliance with maximum contaminant levels shall be determined in accordance with 40 CFR §141.23(f)(3) and(i). The Approving Authority may delete results from obvious sampling errors.

  (2) A supplier of water that does not collect the repeat sample within the time frame required by §F(3) of this regulation shall:

    (a) Immediately notify the Approving Authority and also notify the consumers served by the system in accordance with Regulation .20 of this chapter;

    (b) Take and analyze a confirmation sample within 2 weeks of notification of the analytical results of the first sample; and

    (c) For nitrate or nitrite sampling, comply with Tier 1 public notice requirements set forth in Regulation .20(J) of this chapter, and immediately notify individuals served by the public water system.

  (3) A supplier of water that has exceeded a maximum contaminant level in Regulation .06A of this chapter, as determined by §G(1) of this regulation, shall notify the Approving Authority as required by Regulation .19 of this chapter and give public notice as required by Regulation .20 of this chapter.

  (4) Arsenic sampling results shall be reported to the nearest 0.001 milligrams per liter (mg/l).

H. Monitoring and analysis conducted to determine compliance with Regulation .06A of this chapter shall be made in accordance with approved methods and procedures cited in 40 CFR §141.23(k).

I. Suppliers of water may be eligible for variances or exemptions from the maximum contaminant levels for inorganic chemicals based on criteria outlined in 40 CFR §142.62.

#### Regulation .15 Volatile Organic Chemical (VOC) Sampling and Analytical Requirements.

*COMAR 26.04.01.15*

A. Definition. For the purpose of this regulation, "0.0005 milligram/liter" means the detection level for any contaminant in Regulation .07D of this chapter.

B. Initial Monitoring.

  (1) Beginning with the initial compliance period, analysis of substances for the purpose of determining compliance with Regulation .07D of this chapter shall be conducted by the supplier of water to a community water system or nontransient noncommunity water system in accordance with the requirements of 40 CFR §141.24(f)(1)—(3), which is incorporated by reference. Four consecutive quarterly samples are required within the initial compliance period for all contaminants in Regulation .07D of this chapter.

  (2) Monitoring data collected after January 1, 1988, required under §1445 of the Safe Drinking Water Act (Public Law 93-523), is allowed for purposes of initial monitoring compliance. If the data are generally consistent with the requirements of 40 CFR §141.24, this data, that is, a single sample rather than four quarterly samples, may be used to satisfy the initial monitoring requirement of §B(1) of this regulation.

  (3) A supplier of water to a community or nontransient noncommunity water system that collected and tested the sample or samples for all contaminants listed in Regulation .07D of this chapter after January 1, 1988, and before December 31, 1992 , and did not detect any contaminant listed in Regulation .07D of this chapter, shall be considered to have met the initial monitoring requirements of §B(1) of this regulation and shall collect and test annually until December 31, 1995.

  (4) A supplier of water to a community or nontransient noncommunity water system serving fewer than 3,300 people that collected samples between October 6, 1992 and September 30, 1993, and did not detect any contaminant listed in Regulation .07D of this chapter, shall be considered to have met the initial monitoring requirements of §B(1) of this regulation for each contaminant so analyzed and not detected.

C. A supplier of water to a community or nontransient noncommunity water system whose testing to meet the initial monitoring requirements did not detect any contaminant listed in Regulation .07D of this chapter shall collect annual samples following the completion of initial monitoring.

D. Reduced Monitoring—Ground Water Systems. After a minimum of 3 years of annual sampling, a supplier of water to a community or nontransient noncommunity ground water system with no previous detection of any contaminant listed in Regulation .07D of this chapter may take one sample during each compliance period.

E. Waiver—Ground Water Systems.

  (1) The Approving Authority may issue a waiver from the requirements of §§C and D of this regulation to a supplier of water to a community and nontransient noncommunity ground water system, if the contaminants listed in Regulation .07D of this chapter were not detected after completing the initial monitoring. The Approving Authority may grant a waiver after evaluating the factors specified in 40 CFR §141.24(f)(8), which is incorporated by reference. The period of the waiver may not exceed 6 years and may be renewed by the Approving Authority.

  (2) As a condition of a waiver, the supplier of water to a community or nontransient noncommunity ground water system shall:

    (a) Take one sample at each entry point during the waiver period; and

    (b) Update its vulnerability assessment in accordance with the factors listed in 40 CFR §141.24(f)(8).

  (3) If the Approving Authority does not reconfirm that the system is nonvulnerable to VOC contamination within 3 years of its previous determination, the supplier shall return to annual sampling.

F. Waiver—Surface Water Systems. The Approving Authority may issue a waiver from the requirements of §C of this regulation to the supplier of water to a community and nontransient noncommunity surface water system which does not detect a contaminant listed in Regulation .07D of this chapter after completing the initial monitoring. The Approving Authority may grant a waiver after evaluating the factors of 40 CFR §141.24(f)(8) and in accordance with the requirements of 40 CFR §141.24(f)(10), which is incorporated by reference.

G. Confirmation Samples. The Approving Authority may require a confirmation sample for a positive or negative result. If required by the Approving Authority, the result shall be averaged with the first sampling result and the average used for the compliance determination specified in 40 CFR §141.24(f)(15), which is incorporated by reference. The Approving Authority may delete the results of obvious sampling errors from this calculation.

H. Repeat Sampling Following Detections.

  (1) If a contaminant listed in Regulation .07D(2)—(21) of this chapter is detected at a level exceeding 0.0005 milligram/liter in any sample, the supplier of water to a community and nontransient noncommunity water system shall monitor quarterly at each sampling point which resulted in a detection. The Approving Authority may decrease the quarterly monitoring requirement pursuant to the requirements of 40 CFR §141.24(f)(11)(ii)—(v), which is incorporated by reference.

  (2) A supplier of water shall monitor for vinyl chloride in accordance with 40 CFR §141.24(f)(11)(v), which is incorporated by reference.

I. Repeat Sampling Following Levels Above MCLs.

  (1) A supplier of water to a community and nontransient noncommunity surface water system which violates the requirements of Regulation .07D of this chapter, as determined by 40 CFR §141.24(f)(15), shall monitor quarterly in accordance with the requirements of 40 CFR §141.24(f)(12), which is incorporated by reference.

  (2) The supplier may monitor annually at the times specified in 40 CFR §141.24(f)(11)(iii) if the Approving Authority determines that the system is reliably and consistently below the maximum contaminant level in accordance with 40 CFR §141.24(f)(12).

J. Compliance Determination and Notification.

  (1) Compliance with Regulation .07D of this chapter shall be determined pursuant to the requirements of 40 CFR §141.24(f)(15).

  (2) When a supplier of water has violated Regulation .07D of this chapter, as determined by §J(1) of this regulation, the supplier shall notify the Approving Authority as required by Regulation .19 of this chapter and give public notice as required by Regulation .20 of this chapter.

K. A supplier of water may reduce the total number of samples to be analyzed by the use of compositing. Compositing shall be performed according to the requirements of 40 CFR §141.24(f)(14).

L. Analysis for the contaminants listed in Regulation .07D of this chapter shall be conducted pursuant to 40 CFR §141.24(f)(16) and (17).

M. The monitoring frequencies under Regulation .15 of this chapter are minimum requirements and the Approving Authority may increase monitoring frequencies in situations where it determines more frequent monitoring is needed.

N. Each approved laboratory shall determine the method detection limit (MDL) as defined in 40 CFR 136, Appendix B, which is incorporated by reference, at which it is capable of detecting VOCs. The acceptable MDL is 0.0005 milligram/liter. This concentration is the detection concentration for purposes of this regulation.

O. A supplier of water to a public water system shall monitor at the time designated by the Approving Authority within each compliance period.

P. Suppliers of water at all systems that begin operation after January 22, 2004 and at all systems that begin use of a new source of water after January 22, 2004 shall:

  (1) Demonstrate compliance with the MCLs within a period of time specified by the Approving Authority;

  (2) Comply with the initial sampling frequencies specified by the Approving Authority to ensure a system can demonstrate compliance with the MCL; and

  (3) Conduct routine and increased monitoring frequencies in accordance with the requirements in this regulation.

Q. Suppliers of water may be eligible for variances or exemptions from the maximum contaminant levels for organic chemicals based on criteria outlined in 40 CFR §142.62.

#### Regulation .15-1 Synthetic Organic Chemical (SOC) Sampling and Analytical Requirements.

*COMAR 26.04.01.15-1*

A. Monitoring for the purpose of determining compliance with Regulation .07E of this chapter shall be conducted by the supplier of water to a community or nontransient noncommunity water system in accordance with the requirements of 40 CFR §141.24(h)(1)—(3), which is incorporated by reference.

B. Monitoring Frequency.

  (1) Initial Monitoring. A supplier of water to a community or nontransient noncommunity water system shall collect and analyze four consecutive quarterly samples for each contaminant listed in Regulation .07E of this chapter during each compliance period.

  (2) A supplier of water may use data collected after January 1, 1990, if the data are generally consistent with the requirements of 40 CFR §141.24(h), to satisfy the monitoring requirements of the initial compliance period. A single sample may be used to satisfy the requirement for four quarterly samples.

  (3) A supplier of water to a community or nontransient noncommunity water system serving fewer than 3,300 people that collected samples between October 6, 1992 and September 30, 1993, and did not detect any contaminant listed in Regulation .07E of this chapter shall be considered to have met the initial monitoring requirements of §B(1) of this regulation for each contaminant so analyzed and not detected.

  (4) A supplier of water to a community or nontransient noncommunity water system serving more than 3,300 persons may reduce the frequency of sampling to two quarterly samples in 1 year during each repeat compliance period, if there is no detection of a contaminant listed in Regulation .07E of this chapter in the initial monitoring period.

  (5) A supplier of water to a community or nontransient noncommunity water system serving less than or equal to 3,300 persons may reduce the frequency of sampling to one sample during each repeat compliance period, if there is no detection of a contaminant listed in Regulation .07E of this chapter in the initial monitoring period.

C. Waivers.

  (1) The Approving Authority may grant a waiver from the requirements of §B of this regulation to any supplier of water. The Approving Authority may grant a waiver after evaluating the factors specified in 40 CFR §141.24(h)(6), which is incorporated by reference.

  (2) For each compliance period, the Approving Authority shall reanalyze the conditions in accordance with the requirements of 40 CFR §141.24(h)(6) and, based upon this analysis, may terminate a waiver, in which case the supplier of water shall comply with §B of this regulation.

D. Confirmation Samples. The Approving Authority may require a confirmation sample for positive or negative results. If required by the Approving Authority, the result shall be averaged with the first sampling result and the average used for the compliance determination specified in 40 CFR §141.24(h)(11), which is incorporated by reference. The Approving Authority may delete the results of obvious sampling errors from this calculation.

E. Repeat Sampling Following Detections.

  (1) If an organic contaminant listed in Regulation .07E of this chapter is detected, as defined in 40 CFR §141.24(h)(18), which is incorporated by reference, in any sample, the supplier shall monitor quarterly for that contaminant at each sampling point which resulted in the detection.

  (2) The Approving Authority may reduce the monitoring requirements of §E(1) of this regulation to annual testing pursuant to the requirements of 40 CFR §141.24(h)(7)(ii) and (iii), which is incorporated by reference.

  (3) A supplier of water which is permitted to monitor annually by the Approving Authority shall monitor during the quarter that previously yielded the highest analytical result.

  (4) A supplier of water which has three consecutive annual samples with no detection of a contaminant is eligible for a waiver under §C of this regulation.

  (5) If monitoring results in the detection of either aldicarb, aldicarb sulfone, or aldicarb sulfoxide, then the supplier shall collect and analyze repeat samples for aldicarb, aldicarb sulfone, and aldicarb sulfoxide. If monitoring results in the detection of either heptachlor or heptachlor epoxide, then the supplier shall collect and analyze repeat samples for heptachlor and heptachlor epoxide.

F. Repeat Sampling When Over MCLs.

  (1) A supplier or water to a community or nontransient noncommunity water system which exceeds the maximum contaminant levels of Regulation .07E of this chapter, as determined by 40 CFR §141.24(h)(11), shall monitor pursuant to the requirements of 40 CFR §141.24(h)(8), which is incorporated by reference. A minimum of four quarterly samples is required.

  (2) When the Approving Authority determines that a water system is reliably and consistently below the MCL, as determined by §G(1) of this regulation, following at least four quarterly samples showing that the system is in compliance, the supplier of water may reduce its monitoring to annual sampling with the approval of the Approving Authority.

G. Compliance Determination and Notification.

  (1) Compliance with Regulation .07E of this chapter shall be determined by the Approving Authority pursuant to the requirements of 40 CFR §141.24(h)(11).

  (2) When a supplier of water has violated Regulation .07E of this chapter, as determined by §G(1) of this regulation, the supplier shall notify the Approving Authority as required by Regulation .19 of this chapter and give public notice as required by Regulation .20 of this chapter.

H. A supplier of water may reduce the total number of samples that shall be analyzed by the use of compositing. Compositing shall be performed according to the requirements of 40 CFR §141.24(h)(10), which is incorporated by reference.

I. Analysis for the contaminants listed in regulation .07E of this chapter shall be conducted pursuant to 40 CFR §141.24(e), (h)(13) and (h)(19), which is incorporated by reference.

J. The monitoring frequencies under this regulation are minimum requirements. The Approving Authority may increase the monitoring frequencies in situations when it determines more frequent monitoring is needed, in which case the supplier shall comply with these frequency determinations.

K. A supplier of water to a public water system shall monitor at the time designated by the Approving Authority within each compliance period.

L. Suppliers of water at all systems that begin operation after January 22, 2004 and at all systems that begin use of a new source of water after January 22, 2004 shall:

  (1) Demonstrate compliance with the MCLs within a period of time specified by the Approving Authority;

  (2) Comply with the initial sampling frequencies specified by the Approving Authority to ensure a system can demonstrate compliance with the MCL; and

  (3) Conduct routine and increased monitoring frequencies in accordance with the requirements in this regulation.

M. Suppliers of water may be eligible for variances or exemptions from the maximum contaminant levels for organic chemicals based on criteria outlined in 40 CFR §142.62.

#### Regulation .15-2 Disinfection Byproducts Sampling and Analytical Requirements.

*COMAR 26.04.01.15-2*

A. Applicability.

  (1) Community and Nontransient Noncommunity Water System Stage 1 Disinfection Byproducts Rule (DBPR) Compliance Dates.

    (a) Subpart H systems serving 10,000 or more individuals shall comply with Regulation .07F(1)—(4) of this chapter beginning January 1, 2002.

    (b) Subpart H systems serving fewer than 10,000 individuals and ground water systems not under the influence of surface water shall comply with Regulation .07F(1)—(4) of this chapter beginning January 1, 2004.

  (2) Transient Noncommunity Water System Stage 1 DBPR Compliance Dates.

    (a) Subpart H systems serving 10,000 or more individuals and using chlorine dioxide as a disinfectant or oxidant shall comply with the chlorine dioxide MRDL established in Regulation .23D of this chapter beginning January 1, 2002.

    (b) Subpart H systems serving fewer than 10,000 individuals and using chlorine dioxide as a disinfectant or oxidant and systems using only ground water not under the direct influence of surface water and using chlorine dioxide as a disinfectant or oxidant shall comply with the chlorine dioxide MRDL beginning January 1, 2004.

  (3) Stage 2 DBPR Compliance Dates. Systems shall comply with the requirements specified in §I of this regulation and 40 CFR §141.620 (Subpart V—Stage 2 Disinfection Byproduct).

B. Monitoring Frequency.

  (1) Systems shall take all samples during normal operating conditions.

  (2) Systems may consider multiple wells drawing water from a single aquifer as one treatment plant for determining the minimum number of TTHM and HAA5 samples required.

  (3) Disinfection Byproduct Precursor. In order to qualify for reduced monitoring for TTHM and HAA5, Subpart H systems not monitoring under the provisions of 40 CFR §141.132(d) shall take monthly total organic carbon (TOC) samples every 30 days at a location prior to any treatment, beginning April 1, 2008, or earlier if specified by the State. In addition to meeting other criteria for reduced monitoring in 40 CFR §141.132(b)(1), the source water TOC running annual average shall be less than or equal to 4.0 mg/L (based on the most recent four quarters of monitoring) on a continuing basis at each treatment plant to reduce or remain on reduced monitoring for TTHM and HAA5.

  (4) Subpart H Systems Serving 10,000 or More Individuals.

    (a) Routine Monitoring. Systems shall collect and analyze at least four water samples per quarter per treatment plant during normal operating conditions.

    (b) Reduced Monitoring. Systems shall collect and analyze one sample per quarter per treatment plant during normal operating conditions after completing 1 year of monitoring and if the following conditions are met:

      (i) The TTHM annual average is less than or equal to 0.040 milligram per liter and HAA5 annual average is less than or equal to 0.03 milligram per liter; and

      (ii) The requirements of §B(3) of this regulation are satisfied.

  (5) Subpart H System Serving 500 to 9,999 Individuals or Ground Water System, Not GWUDI, Serving 10,000 or More Individuals and Using a Chemical Disinfectant.

    (a) Routine Monitoring. Systems shall collect and analyze at least one water sample per quarter per treatment plant during normal operating conditions.

    (b) Reduced Monitoring. Systems shall collect and analyze one water sample per year per treatment plant during normal operating conditions after completing one year of monitoring if the following conditions are met:

      (i) The TTHM annual average is less than or equal to 0.040 milligram per liter and HAA5 annual average is less than or equal to 0.030 milligram per liter; and

      (ii) The requirements of §B(3) of this regulation are satisfied.

  (6) Subpart H System Serving Fewer Than 500 Individuals or Ground Water System Serving Fewer Than 10,000 Individuals and Using a Chemical Disinfectant.

    (a) Routine Monitoring. Systems shall collect and analyze at least one water sample per year per treatment plant during the month of warmest water temperature and normal operating conditions.

    (b) Reduced Monitoring. Subpart H Water Systems serving less than 500 individuals are not eligible for reduced monitoring. Groundwater systems on reduced monitoring shall collect and analyze one sample per 3-year monitoring cycle per treatment plant during normal operating conditions after completing 1 year of monitoring, if either of the following conditions is met:

      (i) The TTHM annual average is less than or equal to 0.040 milligram per liter and HAA5 annual average is less than or equal to 0.030 milligram per liter for 2 consecutive years; or

      (ii) The TTHM annual average is less than or equal to 0.020 milligram per liter and HAA5 annual average is less than or equal to 0.015 milligram per liter for 1 year.

  (7) Systems on a reduced monitoring schedule shall resume routine monitoring at the frequency identified in §B(4), (5), or (6) of this regulation in the quarter immediately following the occurrence if:

    (a) The system exceeds 0.060 milligram per liter for TTHMs or 0.045 milligram per liter for HAA5; or

    (b) The system uses only ground water not under the direct influence of surface water and serves fewer than 10,000 people and exceeds an annual average of 0.080 milligram per liter for TTHMs or an annual average of 0.060 milligram per liter for HAA5.

  (8) Systems on an increased monitoring schedule may resume routine monitoring if the TTHM annual average is less than or equal to 0.060 milligram per liter and the HAA5 annual average is less than or equal to 0.045 milligram per liter.

C. Location. If a system elects to sample more frequently than the minimum required, at least 25 percent of all samples shall be collected at distribution system locations representing maximum residence time. The remaining samples shall be taken at distribution system locations representative of at least average residence time in the distribution system and represent the entire distribution system, taking into account the number of individuals served, different sources of water, and different treatment methods. Each system shall monitor in accordance with a monitoring plan as set forth in 40 CFR §141.132(f).

D. Compliance Date Extension for Treatment Installation. A system that is installing GAC or membrane technology to comply with this section may apply to the Approving Authority for an extension of up to 24 months past the dates in §K of this regulation, but not later than December 31, 2003. In granting the extension, the Approving Authority shall set a schedule for compliance and may specify any interim measures that the system shall take. Failure to meet the schedule or interim treatment requirements constitutes a violation of this regulation.

E. Repeat Sampling If Over MCLs.

  (1) A water system which exceeds the maximum contaminant levels of Regulation .07F(1)—(4) of this chapter as determined under 40 CFR §§141.133 and 141.64(b)(2)(i) shall increase monitoring to once per quarter per treatment plant during normal operating conditions.

  (2) Subpart H systems serving 10,000 or more individuals shall increase monitoring to at least four water samples per quarter per treatment plant during normal operating conditions.

  (3) A ground water system serving fewer than 10,000 individuals shall increase monitoring to at least one water sample per quarter during normal operating conditions if either the TTHM annual average is greater than or equal to 0.080 milligram per liter or the HAA5 annual average is greater than or equal to 0.060 milligram per liter.

F. Compliance Determination and Notification.

  (1) Quarterly analyses shall be averaged arithmetically and reported to the Approving Authority. Compliance with Regulation .07F(1)—(4) of this chapter shall be determined based on a running annual average of quarterly samples pursuant to the requirements of 40 CFR §§141.133 and 141.134.

  (2) If a supplier of water has violated Regulation .07F of this chapter as determined by the average of sample results covering any 12-month period, the supplier shall notify the Approving Authority as required by Regulation .19 of this chapter and give public notice as required by Regulation .20 of this chapter.

G. Analysis. Analyses made to determine compliance with Regulation .07F of this chapter shall be conducted by one of the EPA-approved methods as set forth in 40 CFR §141.131.

H. Increased Monitoring. The Approving Authority may increase the monitoring frequencies if it determines more frequent monitoring is needed, and the supplier shall comply with these frequency determinations.

I. Stage 2 Disinfectant Byproducts Requirements.

  (1) Applicability. Community water systems and nontransient noncommunity water systems that use a primary or residual disinfectant other than ultraviolet light or deliver water that has been treated with a primary or residual disinfectant other than ultraviolet light, and certain consecutive systems, shall comply with the monitoring and other requirements of 40 CFR §§141.600—141.629, Subparts U and V, to achieve compliance with MCLs based on locational running annual averages (LRAA) for total trihalomethanes (TTHM) and haloacetic acids (five) (HAA5) and with maximum residual disinfectant levels for chlorine and chloramine.

  (2) Compliance Dates.

    (a) Quarterly monitoring shall begin in the first calendar quarter that includes the compliance date specified in the table in §I(2)(b) of this regulation.

    (b) If monitoring is at a frequency less than quarterly, sampling shall begin in the calendar month recommended in the Initial Distribution System Evaluation Report prepared under 40 CFR §§141.601—141.602 or the calendar month identified in the monitoring plan developed under 40 CFR §141.622, not later than 12 months after the compliance date specified in the following table:

  (3) Monitoring and Compliance.

    (a) Systems shall follow the monitoring requirements of 40 CFR §141.620(c)(6) and (7) and §141.64(b)(2), Subpart V.

    (b) Systems required to monitor quarterly shall calculate LRAAs for TTHM and HAA5 using monitoring results required by this regulation. Compliance is achieved if each LRAA does not exceed the MCL. Systems that fail to complete four consecutive quarters of monitoring shall calculate compliance with the MCL based on the average of the available data from the most recent four quarters. Systems that take more than one sample per quarter at a monitoring location shall average all samples taken in the quarter at that location to determine a quarterly average to be used in the LRAA calculation.

    (c) For systems required to monitor yearly or less frequently, compliance is achieved if each sample taken is less than the MCL. If any sample exceeds the MCL, systems shall comply with the requirements of 40 CFR §141.625. If no sample exceeds the MCL, the sample result for each monitoring location is considered the LRAA for that monitoring location.

    (d) Systems that fail to monitor are in violation of the monitoring requirements for each quarter that a monitoring result would be used in calculating a LRAA.

    (e) Routine Monitoring.

      (i) Locations. Systems shall monitor at not fewer than the number of locations identified as follows:

      (ii) Monitoring Plan. Systems shall develop and implement a monitoring plan to be kept on file for State and public review. The monitoring plan shall contain the elements specified in 40 CFR §141.622, Subpart V, and be complete not later than the date the system conducts the initial monitoring required.

    1All systems shall monitor during the month of highest disinfection byproduct concentrations.

    (f) Reduced Monitoring. Systems may reduce monitoring to the level specified in the table in this paragraph pursuant to 40 CFR §141.623(a)—(d) when the following conditions are met:

      (i) LRAA is less than or equal to 0.040 milligram per liter for TTHM and less than or equal to 0.030 milligram per liter for HAA5 at all monitoring locations, based on data collected pursuant to 40 CFR §141, Subpart V or L; and

      (ii) Source water annual average TOC level, before any treatment, is less than or equal to 4.0 milligrams per liter at each treatment plant treating surface water or ground water under the direct influence of surface water, based on monitoring conducted under §B(3) of this regulation and in compliance with 40 CFR §141.132(d).

      (iii) Table.

    (g) Increased Monitoring.

      (i) A supplier of water shall increase monitoring to include dual sample sets once per quarter at all locations if a TTHM sample is greater than 0.080 milligram per liter or an HAA5 sample is greater than 0.060 milligram per liter at any location. There shall be 90 days between the samples. The approved sample period is based on the month that includes the peak historical month for the water system. Sample periods may include: 1) January, April, July, October; 2) February, May, August, November; or 3) March, June, September, December.

      (ii) A supplier of water is in violation of the MCL when the LRAA exceeds the MCLs in 40 CFR §141.64(b)(2), Subpart V, calculated based on four consecutive quarters of monitoring (or the LRAA calculated based on fewer than four quarters of data if the MCL would be exceeded regardless of the monitoring results of subsequent quarters). A supplier of water is in violation of the monitoring requirements for each quarter that a monitoring result would have been used in calculating an LRAA if the system failed to obtain the monitoring result.

      (iii) A supplier of water may return to routine monitoring if the supplier conducts increased monitoring for at least four consecutive quarters and if the LRAA for every monitoring location is less than or equal to 0.060 milligram per liter for TTHM and less than or equal to 0.045 milligram per liter for HAA5.

    (h) Operational Evaluation Reports.

      (i) A supplier of water shall provide Operational Evaluation Reports to the Approving Authority if operational evaluation levels are exceeded. A supplier of water shall calculate whether the operational evaluation level has been exceeded by using the standards established in 40 CFR §141.626(a).

      (ii) A supplier of water exceeds the operational evaluation level at any monitoring location where calculated values of TTHM and HAA5 exceed 0.080 and 0.060 milligram per liter as specified in 40 CFR §141.626(a).

      (iii) A supplier of water shall conduct an operational evaluation and submit a written report of the evaluation to the Approving Authority not later than 90 days after being notified of the analytical result that exceeds the operational evaluation level. A supplier of water shall conduct an operational evaluation in accordance with 40 CFR §141.626(b). The written report shall be made available to the public upon request.

  1Systems on quarterly monitoring shall take dual sample sets every 90 days.

  (4) Reporting Requirements.

    (a) A supplier of water shall report the following information for each monitoring location to the Approving Authority within 10 days of the end of any quarter in which monitoring is required:

      (i) Number of samples taken during the last quarter.

      (ii) Date and results of each sample taken during the last quarter.

      (iii) Arithmetic average of quarterly results for the last four quarters for each monitoring location (LRAA), beginning at the end of the fourth calendar quarter that follows the compliance date and at the end of each subsequent quarter. If the LRAA calculated is based on fewer than four quarters of data and it would cause the MCL to be exceeded regardless of the monitoring results of subsequent quarters, systems shall report this information to the Approving Authority as part of the first report due following the compliance date or anytime thereafter that this determination is made. If systems are required to conduct monitoring at a frequency that is less than quarterly, they shall make compliance calculations beginning with the first compliance sample taken after the compliance date, unless they are required to conduct increased monitoring under 40 CFR §141.625.

      (iv) Whether the MCL was violated at any monitoring location.

      (v) Any operational evaluation levels that were exceeded during the quarter and, if so, the location, date, and calculated TTHM and HAA5 levels.

    (b) Subpart H systems seeking to qualify for reduced monitoring or to remain on reduced TTHM/HAA5 monitoring shall report the following source water TOC information for each treatment plant that treats surface water or ground water under the direct influence of surface water to the Approving Authority within 10 days of the end of any quarter in which monitoring is required:

      (i) Number of source water TOC samples taken each month during last quarter;

      (ii) Date and result of each sample taken during last quarter;

      (iii) Quarterly average of monthly samples taken during last quarter or the result of the quarterly sample;

      (iv) Running annual average (RAA) of quarterly averages from the past four quarters; and

      (v) Whether the source water TOC RAA exceeded 4.0 milligrams per liter.

    (c) The Approving Authority may choose to perform calculations and determine whether the MCL was exceeded or if the system is eligible for reduced monitoring in lieu of having the system report that information.

  (5) Recordkeeping Requirements. Systems shall retain any monitoring plans and monitoring results pursuant to 40 CFR §141.33.

1The Approving Authority may grant up to an additional 24 months for compliance with MCLs and operational evaluation levels if systems require capital improvements to comply with an MCL.

J. Requirements for Consecutive Systems. Consecutive systems that do not add a disinfectant but deliver water that has been treated with a primary or residual disinfectant other than ultraviolet light, shall comply with the analytical and monitoring requirements for chlorine and chloramines set forth in 40 CFR §§141.131—141.133 and shall report monitoring results pursuant to 40 CFR §141.134(c).

#### Regulation .15-3 Special Monitoring for Unregulated Contaminants.

*COMAR 26.04.01.15-3*

Special monitoring for chemicals shall be conducted pursuant to 40 CFR §141.40. Suppliers of water to community and nontransient noncommunity water systems shall monitor for contaminants in accordance with 40 CFR §141.40.

#### Regulation .15-4 Reporting and Public Notification for Certain Unregulated Contaminants.

*COMAR 26.04.01.15-4*

A. The requirements of this regulation apply only to the contaminants referred to in Regulation .15-3 of this chapter.

B. The owner or operator of a community water system or nontransient noncommunity water system who is required to monitor under Regulation .15-3 of this chapter shall send a copy of the results of the monitoring within 30 days of receipt and any public notice under §C of this regulation to the Approving Authority.

C. The owner or operator shall notify persons served by the system of the availability of the results of sampling conducted under Regulation .15-3 of this chapter by including this notice in the first set of water bills issued by the system after the receipt of the results, or by providing a written notice to the persons served by the system within 3 months after receipt of the results. The notice shall identify an individual and supply the telephone number to contact that individual for information on the monitoring results.

#### Regulation .15-5 Disinfectant Residuals.

*COMAR 26.04.01.15-5*

A. Applicability. CWS and NTNCWS Subpart H systems serving 10,000 or more individuals shall comply with this regulation beginning January 1, 2002. Subpart H systems serving fewer than 10,000 individuals and systems using only ground water not under the direct influence of surface water shall comply with this regulation beginning January 1, 2004.

B. Monitoring Frequency and Location. Community and nontransient noncommunity water systems that use chlorine or chloramines shall measure the residual disinfectant level at the same points in the distribution system and at the same time that total coliforms are sampled, as specified in Regulation .11 of this chapter. Subpart H systems may use the results of residual disinfectant concentration sampling conducted under 40 CFR §141.74(b)(6)(i) for unfiltered systems or 40 CFR §141.74(c)(3)(i) for systems which filter instead of taking separate samples.

C. Additional Monitoring. On each day following a routine sample monitoring result that exceeds the MRDL, the system shall take three samples as close to the first customer as possible, at intervals of at least 6 hours. If a system uses chlorine to maintain a disinfectant residual in the distribution system, and there are one or more disinfectant addition points after the entrance to the distribution system, such as booster chlorination, the system shall take one sample at each of the following locations:

  (1) As close to the first customer as possible in a location representative of average residence time; and

  (2) As close to the end of the distribution system as possible to reflect maximum residence time in the distribution system.

D. Location. Each system shall monitor in accordance with a monitoring plan as set forth in 40 CFR §141.132(f).

E. Compliance Determination and Notification.

  (1) All monthly analyses shall be averaged arithmetically and reported to the Approving Authority. Compliance with Regulation .23D of this chapter shall be determined based on a running annual average computed quarterly of monthly averages of all samples under the requirements of 40 CFR §§141.133 and 141.134.

  (2) If a supplier of water has violated Regulation .23D of this chapter as determined by the quarterly averages of sample results covering any 4 consecutive quarters, the supplier shall notify the Approving Authority as required by Regulation .19 of this chapter and give public notice as required by Regulation .20 of this chapter.

  (3) In cases where systems switch between the use of chlorine and chloramines for residual disinfection during the year, compliance shall be calculated and determined by including together all monitoring results of both chlorine and chloramines. Reports submitted to the Approving Authority shall clearly indicate which residual was analyzed for each sample.

#### Regulation .16 Alternative Analytical Techniques.

*COMAR 26.04.01.16*

With the written permission of the Approving Authority, a supplier of water may employ alternative analytical techniques. An alternative technique is acceptable only if it is substantially equivalent to the prescribed test in both precision and accuracy as it relates to the determination of compliance with any maximum contaminant level. The use of the alternative analytical technique may not decrease the frequency of monitoring required by Regulations .11—.15-3 of this chapter.

#### Regulation .17 Approved Laboratories.

*COMAR 26.04.01.17*

A. For the purpose of determining compliance with this chapter, samples may be considered only if they have been analyzed by a laboratory approved by the Approving Authority, except that measurements for alkalinity, calcium, conductivity, orthophosphate, silica, turbidity, temperature, pH, and disinfectant residual may be performed by any person acceptable to the Approving Authority.

B. The Approving Authority may consider reciprocity of approval with other states when the Environmental Protection Agency has certified laboratories acceptable to the Approving Authority, or when those states certify laboratories according to established Environmental Protection Agency criteria. These labs shall apply to the Approving Authority for certification.

#### Regulation .18 Monitoring of Consecutive Public Water Systems.

*COMAR 26.04.01.18*

When a supplier of water provides water to one or more other public water systems, the Approving Authority may modify the monitoring requirements imposed by Regulations .11—.15-3 of this chapter, to the extent that the interconnection of the systems justifies treating them as a single system for monitoring purposes. Any modified monitoring shall be conducted pursuant to a schedule specified by the Approving Authority.

#### Regulation .19 Reporting Requirements.

*COMAR 26.04.01.19*

A. When the supplier of water uses the services of a laboratory certified by the Approving Authority, the supplier of water shall report within 10 days following a sample analysis, analytical data required by this chapter to the Water Management Administration. Report forms shall be supplied by the Water Management Administration.

B. Except when specified in §D of this regulation, the supplier of water shall report to the Approving Authority:

  (1) Within 48 hours the failure to comply with this chapter, including failure to comply with all monitoring and testing schedules that are required by the Approving Authority; and

  (2) Within 24 hours, information related to Tier 1 violations or situations, or Tier 2 turbidity violations.

C. The supplier of water is not required to report analytical results to the Approving Authority in cases where a laboratory certified by the Approving Authority performs the analysis and reports the results to the Approving Authority.

D. Reporting Requirements for Total Coliform, Fecal Coliform, and E.coli.

  (1) A supplier of water which has exceeded the maximum contamination level for total coliform under Regulation .10 of this chapter shall report the violation to the Approving Authority before the end of the next business day after the supplier of water was notified of the violation until March 31, 2016.

  (2) When fecal coliform or E. coli are detected, or when a supplier of water assumes a total coliform-positive sample is positive for fecal coliform or E. coli, the supplier of water shall notify the Approving Authority by the end of the business day on which the supplier of water was notified of the results. If the supplier of water was notified of the fecal or E. coli result after the end of the business day, the supplier of water shall notify the Approving Authority by the end of the next business day until March 31, 2016.

  (3) A supplier of water which has failed to comply with a coliform monitoring or sanitary survey requirement shall report the violation to the Approving Authority within 10 days after the supplier of water discovers the violation.

  (4) Reporting for E. coli After April 1, 2016.

    (a) A supplier shall notify the Approving Authority by the end of the day when the supplier learns of an E. coli MCL violation, unless the supplier learns of the violation after the Approving Authority office is closed and the Approving Authority does not have either an after-hours phone line or an alternative notification procedure, in which case the supplier shall notify the Approving Authority before the end of the next business day, and notify the public in accordance with subpart Q of 40 CFR §141.

    (b) A supplier shall notify the Approving Authority by the end of the day when the supplier is notified of an E. coli- positive routine sample, unless the supplier is notified of the result after the Approving Authority office is closed and the Approving Authority does not have either an after-hours phone line or an alternative notification procedure, in which case the supplier shall notify the Approving Authority before the end of the next business day.

  (5) A supplier that has violated the treatment technique for coliforms in Regulation .11-4I of this chapter shall report the violation to the Approving Authority no later than the end of the next business day after it learns of the violation, and notify the public in accordance with subpart Q of 40 CFR §141.

  (6) A supplier required to conduct an assessment under the provisions of Regulation .11-4I of this chapter shall submit the assessment report within 30 days. The supplier shall notify the Approving Authority in accordance with Regulation .11-4I of this chapter when each scheduled corrective action is completed for corrections not completed by the time of submission of the assessment form.

  (7) A supplier that has failed to comply with a coliform monitoring requirement shall report the monitoring violation to the Approving Authority within 10 days after the supplier discovers the violation, and notify the public in accordance with subpart Q of 40 CFR §141.

  (8) A seasonal system shall certify, prior to serving water to the public, that it has complied with the Approving Authority-approved start-up procedure.

  (9) In addition to the requirements of 40 CFR §141.31, a ground water supplier regulated under 40 CFR §141 Subpart S shall provide the following information to the Approving Authority:

    (a) A ground water supplier conducting compliance monitoring under Regulation .11D of this chapter shall notify the Approving Authority any time the system fails to meet any requirements specified by the Approving Authority including, but not limited to, minimum residual disinfectant concentration, membrane operating criteria or membrane integrity, and alternative treatment operating criteria, if operation in accordance with the criteria or requirements is not restored within four hours. The ground water supplier shall notify the Approving Authority as soon as possible, but in no case later than the end of the next business day.

    (b) After completing any corrective action under Regulation .05-5C of this chapter, a ground water supplier shall notify the Approving Authority within 30 days of completion of the corrective action.

    (c) If a ground water supplier subject to the requirements of Regulation .11-2D of this chapter does not conduct source water monitoring under Regulation .11-2D(5)(b) of this chapter, the supplier shall provide documentation to the Approving Authority within 30 days of the total coliform positive sample that the sample is not representative of the water in the distribution system and that the sample is subject to invalidation by the Approving Authority.

E. Unless stated otherwise by the Approving Authority, the supplier of water shall perform all monitoring, reporting, and public notification responsibilities under this regulation.

F. The supplier of water, within 10 days of each public notification required under 40 CFR Part 141, Subpart Q, shall:

  (1) Submit to the Approving Authority a representative copy of the initial public notice and any repeat notices; and

  (2) Submit a certification that the public information requirements have been met and include a representative copy of each type of notice distributed, published, posted, and made available to individuals served by the water system and the media.

G. Reporting Requirements for Lead and Copper.

  (1) Suppliers of water that monitor for lead shall comply with the reporting requirements set forth in 40 CFR §141.90, including the following:

    (a) Source water monitoring reporting requirements pursuant to 40 CFR §141.88;

    (b) Corrosion control treatment reporting requirements pursuant to 40 CFR §§141.81—141.82,

    (c) Source water treatment reporting requirements pursuant to 40 CFR §141.83;

    (d) Public education program reporting requirements pursuant to 40 CFR §141.85; and

    (e) Reporting of additional monitoring data associated with 40 CFR §§141.86, 141.87 and 141.88; and

    (f) Reporting requirements for tap water monitoring for lead and copper and for water quality parameter monitoring required by 40 CFR §§141.81, 141.86 and 141.87.

      (i) Water suppliers shall report the 90th percentile lead and copper concentrations measured from among all lead and copper tap water samples collected during each monitoring period (calculated in accordance with 40 CFR §141.80(c)(3)), except if the Approving Authority provides those calculations in accordance with 40 CFR §141.90(h), and the system has provided the information required by 40 CFR §141.90(h)(2) by the date set forth in 40 CFR §141.90(h)(1).

      (ii) Prior to the addition of a new source or any long-term change in water treatment, water suppliers deemed to have optimized corrosion control under 40 CFR §141.81(b)(3), water suppliers subject to reduced monitoring pursuant to 40 CFR §141.86(d)(4), or water suppliers subject to a monitoring waiver pursuant to 40 CFR §141.86(g), shall submit documentation describing the change(s) proposed in accordance with 40 CFR §141.90(a) for review and approval by the Approving Authority.

  (2) If a system exceeds the lead action level, the water supplier shall submit written documentation of material evaluation that identifies the initial number of lead service lines in the distribution system at the time the action level is exceeded. This documentation shall be provided to the Approving Authority within 12 months after the end of the monitoring period in which the exceedance occurred.

#### Regulation .20 Public Notification of Variances, Exemptions, and Noncompliance with Standards.

*COMAR 26.04.01.20*

A. General Public Notification Requirements.

  (1) Each supplier of water shall give notice for all violations of national primary drinking water regulations (NPDWR) and for the situations identified in Table 1 of 40 CFR §§141.201 and 141.211, Subpart Q.

  (2) The type of public notification required is determined by the tier to which it is assigned, as follows:

    (a) Tier 1 public notice is required for violations of the NPDWR and situations with significant potential to have serious adverse effects on human health as a result of short-term exposure;

    (b) Tier 2 public notice is required for all other NPDWR violations and situations with potential to have serious adverse effects on human health; and

    (c) Tier 3 public notice is required for all other NPDWR violations and situations not included in Tier 1 and Tier 2.

  (3) Each supplier of water must provide public notice as described in 40 CFR Part 141, Subpart Q, to persons served by the water system. A supplier of water that sells or otherwise provides drinking water to other public water systems is required to give public notice to the owner or operator of the consecutive system. The consecutive system shall provide notice to the individuals it serves.

  (4) If a supplier of water has a violation in a portion of the distribution system that is physically or hydraulically isolated from other parts of the distribution system, the Approving Authority may allow the supplier to limit the distribution of the public notice to individuals served by the portion of the system that is out of compliance. If the Approving Authority grants permission for limiting distribution, it shall issue the permission in writing.

  (5) A copy of the notice shall be filed with the Approving Authority as specified in Regulation .19F of this chapter.

B. Tier 1 Public Notices.

  (1) The violation categories requiring Tier 1 notices are specified in 40 CFR §141.202 and include:

    (a) Violation of the MCL for fecal coliform or E. coli, or failure to test for fecal coliform or E. coli if a repeat sample tests positive for total coliform;

    (b) Violation of the MCL for nitrate, nitrite, or total nitrate and nitrite, or failure to take a confirmation sample within 24 hours of a nitrate or nitrite exceedance;

    (c) Exceedance of the nitrate MCL by noncommunity water systems where permitted to exceed the MCL by the Approving Authority under 40 CFR §141.11(d);

    (d) Violation of the MRDL for chlorine dioxide, exceedance of the MRDL in the distribution system following an exceedance of the MRDL at the entrance of the distribution system, or failure to take the required samples in the distribution system as specified in 40 CFR §141.133(c)(2)(i);

    (e) Violation of the turbidity MCL based on exceeding an average of 5 NTU for 2 consecutive days as determined after consultation with the Approving Authority, or if consultation does not take place within 24 hours after the system learns of the violation;

    (f) Violation of the treatment technique requirement resulting from a single exceedance of the maximum allowable turbidity requirement where the Approving Authority determines after consultation that a Tier 1 notice is required or when consultation does not take place within 24 hours after the system learns of the violation;

    (g) Occurrence of a water-borne disease outbreak or other water-borne emergency such as:

      (i) Failure of key treatment processes;

      (ii) Natural disaster that disrupts the water system; or

      (iii) A chemical spill that increases the potential for drinking water contamination;

    (h) Detection of E. coli, enterococci, or coliphage in source water samples for ground water systems under Regulation .11-2D or E of this chapter;

    (i) Other violations or situations with significant potential to have serious adverse effects on human health as a result of short-term exposure, as determined by the Approving Authority.

  (2) Manner of Tier 1 Notice. A supplier of water shall:

    (a) Provide a Tier 1 public notice as soon as practical but not later than 24 hours after learning of the violation;

    (b) Contact the Approving Authority as soon as practical but not later than 24 hours after learning of the violation to determine additional public notice requirements;

    (c) Comply with any additional Tier 1 public notification requirements that are established as a result of consultation with the Approving Authority, which may include the timing, form, manner, frequency, and content of repeat notices or other actions designed to reach all individuals served; and

    (d) Use one or more of the following forms of delivery:

      (i) Appropriate broadcast media, such as radio and television;

      (ii) Posting of the notice in conspicuous locations throughout the area served;

      (iii) Hand delivery of the notice to persons served; or

      (iv) Another delivery method approved in writing by the Approving Authority.

  (3) Noncommunity ground water systems.

    (a) In addition to the applicable public notification requirements of 40 CFR §141.202, a non-community ground water supplier that receives notice from the Approving Authority of a significant deficiency shall inform the public served by the water supplier, in a manner approved by the Approving Authority, of any significant deficiency that has not been corrected within 12 months of being notified by the Approving Authority, or earlier, if directed by the Approving Authority. The supplier shall continue to inform the public annually until the significant deficiency is corrected. The information must include:

      (i) The nature of the significant deficiency and the date the significant deficiency was identified by the Approving Authority;

      (ii) The plan and schedule for correction of the significant deficiency, including interim measures, progress to date, and any interim measures completed, as approved by the Approving Authority; and

      (iii) For systems with a large proportion of non-English speaking consumers, as determined by the Approving Authority, information in the appropriate language(s) regarding the importance of the notice or a telephone number or address where consumers may contact the supplier to obtain a translated copy of the notice or assistance in the appropriate language.

    (b) If directed by the Approving Authority, a noncommunity water supplier with significant deficiencies that have been corrected shall inform its customers of the significant deficiencies, how the deficiencies were corrected, and the dates of correction.

C. Tier 2 Public Notice.

  (1) The violation categories requiring Tier 2 notices are specified in Table 1 of 40 CFR §§141.203 and 141.211, and include:

    (a) All violations of the MCL, MRDL, and treatment technique requirements except if Tier 1 notice is required;

    (b) Violations of the monitoring and testing procedure requirements if the Approving Authority determines that a Tier 2 public notice is required based on potential health impacts and persistence of the violation; and

    (c) Failure to comply with the terms and conditions of any variance or exemption in place;

    (d) Repeated failure to conduct monitoring of the source water for Cryptosporidium and for failure to determine bin classification or mean Cryptosporidium level;

    (e) Failure to take corrective action or failure to maintain at least 4-log treatment of viruses, using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the Approving Authority before or at the first customer under Regulation .05-5C of this chapter; and

    (f) Treatment technique violations specified in Regulation .05-5D(1)-(3) of this chapter for ground water suppliers subject to that regulation.

  (2) Manner of Tier 2 Notice. A supplier of water shall:

    (a) Provide a Tier 2 public notice as soon as practical but not later than 30 days after learning of the violation, subject to the following:

      (i) If the notice is posted, the notice shall remain in place for as long as the violation persists, but not less than 7 days; and

      (ii) The Approving Authority may grant in writing additional time for the initial notice of up to 3 months from the date that the system learns of the violation;

    (b) Repeat the notice every 3 months as long as the violation or situation persists, unless the Approving Authority determines that appropriate circumstances warrant a different repeat notice frequency. In no circumstances may the repeat notice be given less frequently than once per year. The Approving Authority may not allow less frequent repeat notice for an MCL or treatment technique violation under Regulation .11-4 of this chapter or a treatment technique violation under Regulation .05-2 of this chapter. The Approving Authority may not allow less frequent repeat notice for a Tier 2 repeat notice. Approving Authority determinations that allow repeat notices to be given less frequently than once every 3 months must be in writing;

    (c) For Tier 2 turbidity violations, initiate consultation with the Approving Authority as soon as practical but not later than 24 hours after the system learns of the violation, comply with any public notification requirements in 40 CFR §141.203(b)(3), and if consultation does not take place within the 24-hour period, distribute a Tier 1 notice of the violation within the next 24 hours, that is, not later than 48 hours after the system learns of the violation; and

    (d) Comply with any public notification requirements specified in 40 CFR §141.203(b)(3).

  (3) If notice is posted under §L(2)(a) of this regulation, the notice shall remain in place for as long as the violation persists, but not fewer than 7 days.

  (4) Unless otherwise directed by the Approving Authority, a community water system shall provide notice by:

    (a) Mail or other direct delivery to each customer receiving a bill and to service connections to which water is delivered; and

    (b) Any other method reasonably determined to reach individuals regularly served by the system such as posting of the notice in conspicuous locations throughout the area served, Internet, local newspapers, hand delivery, or delivery to community organizations, if the individuals would not normally be reached by the notice required in Regulation .20K(2)(d)(i) of this chapter.

  (5) Unless otherwise directed by the Approving Authority, a noncommunity water system shall provide notice by:

    (a) Posting the notice in conspicuous locations or by mail and direct delivery to each customer; and

    (b) Any other method reasonably determined to reach individuals regularly served by the system such as Internet and hand delivery.

D. Tier 3 Public Notice.

  (1) The violation categories and other situations requiring Tier 3 notices are specified in 40 CFR §141.204 and include:

    (a) Monitoring violations under 40 CFR §141 except if Tier 1 notice is required or the Approving Authority determines that Tier 2 notice is required;

    (b) Failure to comply with a testing procedure except if Tier 1 notice is required or the Approving Authority determines that Tier 2 notice is required;

    (c) Operating under a variance or an exemption;

    (d) Results are available for unregulated contaminant monitoring;

    (e) Exceedance of the fluoride secondary maximum contaminant level; and

    (f) Reporting and record-keeping violations under subpart Y of 40 CFR §141.

  (2) Manner of Tier 3 Notice.

    (a) A supplier of water shall provide a Tier 3 public notice not later than 1 year after the system learns of the violation or begins operating under a variance or exemption. If the public notice is posted, the notice must remain in place as long as the situation persists, but not less than 7 days. The system shall repeat the notice annually for as long as the situation persists.

    (b) Unless otherwise directed by the Approving Authority, a community water system shall provide notice by:

      (i) Mail or other direct delivery to each customer receiving a bill and to other service connections, and, if customers would not normally be reached by mail or other direct delivery, any other method reasonably determined to reach individuals regularly served by the system such as Internet and hand delivery; or

      (ii) Include the notice, which shall satisfy the form, manner, and content requirements of this regulation, in the Consumer Confidence Report as described in Regulation .20-2 of this chapter if the report will be distributed not later than 12 months after the learning of the violation or situation.

    (c) Unless otherwise directed by the Approving Authority, a noncommunity water system shall provide notice by:

      (i) Posting the notice in conspicuous locations throughout the system or by mail or direct delivery; or

      (ii) Any other method reasonably determined to reach persons regularly served by the system such as Internet and hand delivery.

E. Public Notice Content.

  (1) Each public notice shall meet the requirements as described in 40 CFR §141.205, and shall include the following information:

    (a) A description of the violation or situation including the contaminant of concern, and the contaminant level;

    (b) When the violation or situation occurred;

    (c) Any potential adverse health effects from the violation or situation using standard language as specified in 40 CFR Part 141, Subpart Q, Appendices A—B;

    (d) The population at risk, including subpopulations that are particularly vulnerable;

    (e) Whether alternative water supplies should be used;

    (f) What action consumers should take, including conditions under which consumers should seek medical help, if known;

    (g) What the system is doing to correct the violation or situation;

    (h) When the water system expects to return to compliance or resolve the situation;

    (i) The name, business address, and phone number of the designee of the water system as a source of additional information; and

    (j) A statement to encourage the notice recipient to distribute the notice to other persons served, if applicable.

  (2) Each public notice:

    (a) Shall be displayed in a conspicuous way if printed or posted;

    (b) May not contain overly technical language or small print;

    (c) May not be formatted in a way that defeats the purpose of the notice;

    (d) May not contain language that nullifies the purpose of the notice; and

    (e) Shall comply with the multilingual requirements in 40 CFR §141.205(c)(2).

  (3) As described in Regulation .20E(1)(j) of this chapter, a water supplier shall include the following language, if applicable:

  (4) A supplier of water shall give a copy of the most recent public notice for any continuing violation, the existence of a variance or exemption, or other ongoing situations requiring public notice to all new billing units or new customers. Noncommunity systems shall continue to post the public notice in conspicuous locations to inform new consumers.

  (5) A supplier of water shall notify individuals served by the system of the availability of unregulated contaminant monitoring results under 40 CFR §141.40 not later than 12 months after the monitoring results are known. The notice shall:

    (a) As to form and manner, follow the requirements for a Tier 3 notice in §D of this regulation; and

    (b) Identify a person to contact for information on the monitoring results, and provide the person's telephone number.

  (6) A supplier of water to a community water system shall notify individuals served by the system of fluoride levels that exceed the secondary maximum contaminant level of 2 milligrams per liter as determined by the last single sample taken in accordance with Regulation .14 of this chapter, but does not exceed the maximum contaminant level for fluoride. The public notice shall:

    (a) Be provided as soon as practical, but not later than 12 months after the system learns of the exceedance, and if required by the Approving Authority, be provided initially sooner than 12 months and repeated more often than annually;

    (b) Include the mandatory language as specified in 40 CFR §141.208;

    (c) Remain in place for as long as the SMCL is exceeded, but not fewer than 7 days; and

    (d) Follow the requirements for a Tier 3 public notice in §D of this regulation.

  (7) A supplier of water to a noncommunity water system shall notify persons served by the system that the Approving Authority has granted permission for the system to exceed nitrate levels of 10 milligrams per liter in the drinking water. The public notice shall be posted continuously as specified in 40 CFR §141.209.

  (8) The Approving Authority may give the required notice of this regulation on behalf of the supplier of water.

  (9) A supplier of water that is required to monitor source water under 40 CFR §141.701 shall notify persons served by the system that monitoring has not been completed as specified not later than 30 days after the system failed to collect any 3 months of monitoring, and, if applicable, a supplier of water shall notify persons served by the system that the bin determination has not been made as required. The form and manner of notification shall meet the requirements of a Tier 2 notice as specified in §C of this regulation and the requirements of 40 CFR §141.211.

#### Regulation .20-1 Public Education for Lead.

*COMAR 26.04.01.20-1*

A. All suppliers of water of each community water system and each nontransient noncommunitiy water system shall provide public education about lead as specified by 40 CFR §§141.85 and 141.154, including consumer notice of lead tap water monitoring results to persons served at the sites that are tested.

B. A supplier of water of each community water system and each nontransient noncommunity water system that exceeds the lead action level shall issue notice to persons served by the system that may be affected by lead contamination of their drinking water, sample the tap water of any customer who requests it, and provide other public education in accordance with §A of this regulation.

C. Community water suppliers that exceed the lead action level and are not already repeating public education tasks shall deliver public education materials to persons served by the system within 60 days after the end of the monitoring period in which the exceedance occurred.

  (1) Suppliers shall submit a press release to newspaper, television and radio stations twice every 12 months on a schedule agreed upon with the State.

  (2) The Approving Authority may extend the activities §C of this regulation beyond the 60 day requirement if the extension is approved in writing by the State in advance of the 60 day deadline. This extension is only appropriate if the system has initiated public education activities prior to the end of the 60 day deadline.

D. Nontransient noncommunity water suppliers that exceed the lead action level and are not already repeating public education tasks must deliver public education materials to persons served by the system in accordance with 40 CFR §141.85 within 60 days after the end of the monitoring period in which the exceedance occurred.

  (1) Suppliers must repeat public education tasks in §D of this regulation twice every 12 months on a schedule agreed upon with the Approving Authority.

  (2) Activities in §D of this regulation may be extended beyond the 60 day requirement by the Approving Authority if the extension is approved in writing by the Approving Authority in advance of the 60 day deadline, and only if the system has initiated public education activities prior to the end of the 60 day deadline.

#### Regulation .20-2 Consumer Confidence Reports.

*COMAR 26.04.01.20-2*

A. A supplier of water to a community water system shall deliver an annual consumer confidence report to their customers as required by 40 CFR §§141.151—141.155: Subpart O—Consumer Confidence Report. This report shall contain information on the quality of the water delivered by the supplier and characterize the risks from exposure to contaminants detected in the drinking water in an accurate and understandable manner.

B. Each supplier of water to a community water system shall deliver its first report by July 1, 2001, and subsequent reports by July 1 annually thereafter. The first report shall contain data collected during, or before, calendar year 2000 and shall be in accordance with 40 CFR §141.153(d)(3). Each subsequent report shall contain data collected during, or before, the previous calendar year.

C. A supplier of water to a community water system that began operation after July 1, 2000, shall deliver its first report by July 1 of the year after its first full calendar year in operation and annually thereafter.

D. A supplier of water to a community water system that sells water to another community water system shall deliver the applicable information required in the consumer confidence report to the buyer system:

  (1) By April 1, 2001, for the 2000 report, and by April 1 annually thereafter; or

  (2) On a date mutually agreed upon by the seller and the purchaser, and specifically included in a contract between the parties.

E. Content of the Report.

  (1) An annual report issued under this regulation shall provide a report that contains the information specified in 40 CFR §§141.153, 141.154, and 141.211. The report does not replace the function of the Public Notice requirements under Regulation .20 of this chapter. This information includes, but is not limited to, the requirements in §E(2)—(9) of this regulation.

  (2) Required Language and Information.

    (a) All reports shall contain the following language: “Some people may be more vulnerable to contaminants in drinking water than the general population. Immunocompromised persons such as persons with cancer undergoing chemotherapy, persons who have undergone organ transplants, people with HIV/AIDS or other immune system disorders, some elderly persons, and infants can be particularly at risk from infections. These people should seek advice about drinking water from their health care providers. EPA/ CDC guidelines on appropriate means to lessen the risk of infection by Cryptosporidium and other microbial contaminants are available from the Safe Drinking Water Hotline (800-426-4791).”

    (b) Beginning in the report due by July 1, 2002, a supplier of water at a community water system that detects arsenic above 0.005 milligrams per liter (mg/l) and up to and including 0.010 milligrams per liter (mg/l):

      (i) Shall include in its report a short informational statement about arsenic, using language such as that provided in 40 CFR §141.154(b)(1); or

      (ii) May write its own educational statement in consultation with the Approving Authority.

    (c) Systems with nitrate at levels above 5 milligrams per liter shall include the required language in 40 CFR §141.154.

    (d) Suppliers of water that monitor for lead shall include language as specified in 40 CFR §141.154.

    (e) Systems which detect total trihalomethane levels above 0.080 milligrams per liter, but below 0.100 milligrams per liter, as an annual average shall include the required language in 40 CFR §141.154.

    (f) Beginning in the report due by July 1, 2002 and ending January 22, 2006, a supplier of water at a community water system that detects arsenic above 0.010 milligrams per liter (mg/l) and up to and including 0.05 milligrams per liter (mg/l) shall include the arsenic health effects language prescribed by 40 CFR §141.154 Subpart O.

  (3) Information on Source Water.

    (a) The report shall identify the source or sources of the water delivered by the community water system by providing information on the:

      (i) Type of water, for example, surface water or ground water;

      (ii) Commonly used name, if any; and

      (iii) Location of the body, or bodies, of water.

    (b) If a source water assessment has been completed, the report shall notify consumers of the availability of this information and the means to obtain it. In addition, in the report, a supplier of water is encouraged to highlight significant sources of contamination in the source water area if they have readily available information. If a system has received a source water assessment from the Approving Authority, the report shall include a brief summary of the system's susceptibility to potential sources of contamination, using language provided by, or approved by Approving Authority.

  (4) Definitions for the following shall be included in the report:

    (a) Maximum contaminant level goal (MCLG) and maximum contaminant level (MCL);

    (b) Variances or exemptions if a community water system is operating under a variance or an exemption;

    (c) Treatment technique when data is included on a contaminant for which EPA has set a treatment technique;

    (d) Action level when data is included on a contaminant for which EPA has set an action level;

    (e) Maximum residual disinfectant level goal (MRDLG); or

    (f) Maximum residual disinfectant level (MRDL).

    (g) For a report that contains information regarding a Level 1 or Level 2 assessment required by Regulation .11-4 of this chapter, Level 1 assessment and Level 2 assessment, as applicable.

  (5) Information on Detected Contaminants.

    (a) Information shall be included as specified in 40 CFR §141.153(d) for regulated contaminants, unregulated contaminants, treatment techniques, and 40 CFR §141.153 (e) for other contaminants identified by the Approving Authority as a public health risk in drinking water. The data should be provided in one or more tables as appropriate.

    (b) For detected regulated contaminants, the table or tables shall contain:

      (i) The highest contaminant level used to determine compliance and the range of detected levels from monitoring for contaminants subject to an MCL, except turbidity, total coliform, fecal coliform and E. coli;

      (ii) The MCL for that contaminant;

      (iii) The MCLG for that contaminant expressed in the same units as the MCL;

      (iv) A treatment technique, or specify the action level, applicable to that contaminant.

    (c) When compliance with the MCL is determined on a system-wide basis by calculating a running annual average of all samples at all monitoring locations, the average and range of detection shall be provided, in the same units as the MCL. The system is required to include individual sample results for the Initial Distribution System Evaluation (IDSE) conducted under 40 CFR §141, Subpart U, when determining the range of TTHM and HAA5 results to be reported in the annual consumer confidence report for the calendar year that the IDSE samples were taken.

  (6) In addition to the public notification requirements established under Regulation .14 of this chapter, the report shall note any violation that occurred during the year covered by the report, and include a clear and readily understandable explanation of the violation, any potential adverse health effects, and the steps the system has taken to correct the violation and other related information as follows:

    (a) Monitoring and reporting of compliance data;

    (b) Filtration and disinfection requirements established under Regulation .05-2 of this chapter;

    (c) Lead and copper control requirements established under Regulation .06-2 of this chapter;

    (d) Treatment technique requirements for Acrylamide and Epichlorohydrin established under Regulation .07-2 of this chapter;

    (e) Record keeping of compliance data;

    (f) Special monitoring requirements established under Regulation .15-3 of this chapter;

    (g) Violations of the terms of variances, exemptions, or administrative or judicial orders;

    (h) If applicable, an explanation for a variance or exemption, the date issued, a brief status report, and a notice of opportunity for public input.

  (7) Explanation of Contaminants.

    (a) The report shall contain a brief explanation regarding contaminants that may reasonably be expected to be found in drinking water, including bottled water, as specified in 40 CFR §141.153(h)(1)(i)—(iii), or comparable language.

    (b) The following paragraph or equivalent shall be included: “Drinking water, including bottled water, may reasonably be expected to contain at least small amounts of some contaminants. The presence of contaminants does not necessarily indicate that the water poses a health risk. More information about contaminants and potential health effects can be obtained by calling the Environmental Protection Agency's Safe Drinking Water Hotline (800-426-4791).”

  (8) The report shall contain:

    (a) The telephone number of the owner, operator, or designee of the community water system as a source of additional information concerning the report;

    (b) The required health information as specified in 40 CFR §141.154; and

    (c) Information, including time and place of regularly scheduled meetings, about opportunities for public participation in decisions that may affect the quality of the water.

  (9) Special Public Notice for Ground Water Suppliers. Community ground water suppliers shall inform the public served by the water supplier about a fecal indicator-positive source sample that is not invalidated under Regulation .11-2G of this chapter, or any significant deficiency that has not been corrected, in accordance with the requirements of 40 CFR §§141.153(h)(6) and 141.403(a). The supplier shall continue to inform the public annually until the Approving Authority determines that the particular significant deficiency is corrected or the fecal contamination in the ground water source is addressed in accordance with Regulation .05-5C of this chapter.

  (10) Any system required to comply with a Level 1 or Level 2 assessment requirement under Regulation .11-4 of this chapter that is not due to an E. coli MCL violation shall include the information specified in 40 CFR §141.153(h)(7).

F. For communities with a large proportion non-English speaking residents, information in the appropriate language or languages shall be provided regarding the importance of the notice or contain a telephone number or address where persons served may contact the water system to obtain a translated copy or to request assistance in the appropriate language.

G. Report Delivery and Record Keeping.

  (1) Except as provided in §H of this regulation, each supplier of water to a community water system shall mail or otherwise directly deliver one copy of the report to each customer.

  (2) The supplier of water to a community water system shall make a good faith effort to reach consumers who do not get water bills, using means recommended by the Approving Authority. Good faith effort will be tailored to the consumers who are served by the system but are not bill-paying customers, such as renters or workers. A good faith effort to reach consumers would include a mix of methods appropriate to the particular system, such as:

    (a) Posting the reports on the Internet;

    (b) Mailing to postal patrons in metropolitan areas;

    (c) Advertising the availability of the report in the news media;

    (d) Publication in a local newspaper;

    (e) Posting in public places such as cafeterias or lunch rooms of public buildings;

    (f) Delivery of multiple copies for distribution by single-biller customers such as apartment buildings or large private employers; or

    (g) Delivery to community organizations.

  (3) Not later than the date the system is required to distribute the report to its customers, each supplier of water for a community water system shall mail a copy of the report to the Approving Authority, followed within 3 months by a certification that the report has been distributed to customers, and that the information is correct and consistent with the compliance monitoring data previously submitted to the Approving Authority.

  (4) Not later than the date the system is required to distribute the report to its customers, each community water system shall deliver the report to any other agency or clearinghouse identified by the Approving Authority.

  (5) Each community water system shall make its reports available to the public upon request.

  (6) Each community water system serving 100,000 or more persons shall post its current year's report to a publicly accessible site on the Internet.

  (7) Any supplier of water subject to this regulation shall retain copies of its consumer confidence report for not less than 3 years.

H. The requirement of §G(1), (5) and (6) of this regulation for a supplier of water to a community water system serving less than 10,000 persons has been waived. These systems shall:

  (1) Publish the reports in one or more local newspapers serving the area in which the system is located;

  (2) Publish a notice in the newspaper, or by other means approved by the State, that informs the customers that the reports will not be mailed; and

  (3) Make the reports available to the public upon request.

I. Supplier of water to systems serving 500 or fewer persons may forego the requirements of §H(1) and (2) of this regulation if they provide notice at least once per year to their customers by mail, by door-to-door delivery, or by posting in an appropriate location, that the report is available upon request.

#### Regulation .21 Record Maintenance.

*COMAR 26.04.01.21*

A. A supplier of water shall keep records of microbiological analyses and turbidity analyses for at least 5 years and records of chemical analyses for at least 10 years. Actual laboratory reports may be kept, or data may be transferred into tabular summaries, provided the following information is included:

  (1) The date, place, and time of sampling, and the name of the person who collected the sample;

  (2) Identification of the sample as to whether it was a routine distribution system sample, check sample, raw or processed water sample, or other special purpose sample;

  (3) Date of analysis;

  (4) Laboratory and person responsible for performing analysis;

  (5) The analytical technique/method used; and

  (6) The results of the analysis.

B. A supplier of water shall keep records of the action to correct violations of this regulation for at least 3 years from the date of the last action taken with respect to the particular violation involved.

C. Copies of any written reports, summaries or communications relating to sanitary surveys of the system conducted by the supplier of water, by a private consultant, or by any local, State or federal agency shall be kept by that organization for a period of at least 10 years after completion of a sanitary survey.

D. The supplier of water shall keep records for at least 5 years after expiration of the variance or exemption.

E. Copies of public notices issued pursuant to Regulation .20 of this chapter and certifications made to the Approving Authority shall be kept for 3 years after issuance.

F. Copies of monitoring plans developed pursuant to this chapter shall be kept for the same period of time as the records of analyses taken under the plan are required to be kept under §A of this regulation, except as specified elsewhere in this chapter.

G. The Approving Authority may keep the records for the time requirements established in this regulation for a supplier of water if requested in writing by the supplier.

H. In addition to the previous requirements of this regulation, a ground water supplier subject to 40 CFR §141 Subpart S shall maintain information in its records, including the following:

  (1) Documentation of corrective actions. Documentation shall be kept for a period of not less than 10 years.

  (2) Documentation of notice to the public as required under Regulation .20-2E(9). Documentation shall be kept for a period of not less than 3 years.

  (3) Records of decisions under Regulation .11-2D(5)(b) of this chapter and records of invalidation of fecal indicator-positive ground water source samples under Regulation .11-2G of this chapter. Documentation shall be kept for a period of not less than 5 years.

  (4) For consecutive systems, documentation of notification to the wholesale system(s) of total-coliform positive samples that are not invalidated under 40 CFR §141.21(c) until March 31, 2016, or under 40 CFR §141.853 beginning April 1, 2016. Documentation shall be kept for a period of not less than 5 years.

  (5) For systems, including wholesale systems that are required to perform compliance monitoring under Regulation .11D of this chapter:

    (a) Records of the minimum disinfectant residual specified by the Approving Authority for 4-log virus inactivation. Documentation shall be kept for a period of not less than 10 years.

    (b) Records of the lowest daily residual disinfectant concentration and records of the date and duration of any failure to maintain the minimum residual disinfectant concentration for a period of more than four hours. Documentation shall be kept for a period of not less than 5 years.

    (c) Records of specified compliance requirements for membrane filtration and of parameters specified by the Approving Authority for alternative treatment, and records of the date and duration of any failure to meet the membrane operating, membrane integrity, or alternative treatment operating requirements for more than four hours. Documentation shall be kept for a period of not less than 5 years.

I. In addition to §A of this regulation, a public water supplier subject to 40 CFR §141, Subpart Y shall maintain information in its records, including the following:

  (1) The supplier shall maintain any assessment form, regardless of who conducts the assessment, and documentation of corrective actions completed as a result of those assessments, or other available summary documentation of the sanitary defects and corrective actions taken under Regulation .11-4H of this chapter for Approving Authority review. This record shall be maintained by the supplier for a period not less than 5 years after completion of the assessment or corrective action.

  (2) The supplier shall maintain a record of any repeat sample taken that meets Approving Authority criteria for an extension of the 24-hour period for collecting repeat samples as provided for under Regulation .11-4H(1)(a) of this chapter.

#### Regulation .22 Emergency Plan Provisions.

*COMAR 26.04.01.22*

A. The objective of the emergency plan provision is to assure adequate, safe drinking water for human survival. The Approving Authority shall provide to affected citizenry and local officials the necessary assistance to enable the provision of an emergency supply of water. The assistance shall include notification of the emergency need to the Maryland Civil Defense Agency and appraisal of the particular situation through contact with local health department personnel. The local health department personnel will provide timely quality control of the emergency water supply and keep the Approving Authority on situation events. The Approving Authority will provide to the public an emergency telephone number with which to report any disasters.

B. Suppliers of water to community water systems existing before July 1, 1987 shall prepare and submit for approval to the Approving Authority within 1 year following promulgation of this section a plan for providing a safe and adequate drinking water supply under emergency conditions. For community water systems constructed after July 1, 1987, the supplier of water shall prepare and submit for approval a plan for providing a safe and adequate drinking water supply under emergency conditions within 3 months following start up of the water system.

#### Regulation .23 Disinfection.

*COMAR 26.04.01.23*

A. The Approving Authority shall have the right to establish minimum sampling frequencies and locations for determining disinfectant residuals for public water systems. The responsibility and cost for testing, recording, and reporting the results to the Approving Authority shall be borne by the supplier of water.

B. The Approving Authority shall have the right to establish minimum disinfectant residual concentrations in a public drinking water distribution system.

C. Sampling and Analysis of Residual Disinfectant Concentrations.

  (1) Sampling and analysis of residual disinfectant concentrations shall be conducted as set forth in 40 CFR §141.74(a)(2) or 141.131(c) or with DPD colorimetric test kits using protocol approved by the Approving Authority.

  (2) Consecutive systems that do not add a disinfectant but deliver water that has been treated with a primary or residual disinfectant other than ultraviolet light, shall comply with the following requirements:

    (a) Analytical and monitoring requirements for chlorine and chloramines in 40 CFR §§141.131(c) and 141.132(c)(1);

    (b) Compliance requirements in 40 CFR §141.133(c)(1), unless required earlier by the State; and

    (c) Reporting requirements for monitoring results in accordance with 40 CFR §141.134(c).

D. Maximum Residual Disinfectant Levels.

  (1) Maximum residual disinfectant levels (MRDLs) are as follows:

  (2) CWSs and NTNCWSs. Subpart H systems serving 10,000 or more individuals shall comply with this regulation beginning January 1, 2002. Subpart H systems serving fewer than 10,000 individuals and systems using only ground water not under the direct influence of surface water shall comply with this regulation beginning January 1, 2004.

E. Control of Disinfectant Residuals. Notwithstanding the MRDLs in §D(1) of this regulation, systems may increase residual disinfectant levels in the distribution system of chlorine or chloramines, except for chlorine dioxide, to a level and for a time necessary to protect public health and to address specific microbiological contamination problems caused by circumstances such as, but not limited to, distribution line breaks, storm runoff events, source water contamination events, or cross-connection events.

F. Systems shall report disinfection profiles and benchmarks to the Approving Authority as described in 40 CFR §§141.708—141.709 and Regulation .05-2L(9) and (10) of this chapter prior to making a significant change in disinfection practice.

#### Regulation .24 Notice of Violation and Orders.

*COMAR 26.04.01.24*

A. When the Approving Authority determines that a supplier of water has not complied with this regulation, the Approving Authority shall issue a notice of violation, or order in writing to the supplier of water stating the:

  (1) Regulation being violated;

  (2) Corrective action required from the supplier of water; and

  (3) Period of time in which the violation shall be corrected.

B. If a supplier of water fails to comply with the notice of violation or order, the Approving Authority may enter a civil action.

#### Regulation .25 Plan for Compliance.

*COMAR 26.04.01.25*

A. Notice of Violation or Order. After issuing a notice of violation or order, the Approving Authority may agree to the provisions of a plan for compliance submitted by the supplier of water. The plan for compliance shall be in writing and will present the timetable and the manner for completing the corrective action specified in the notice of violation or order. The supplier of water will not be considered to be in violation of the notice of violation or order as long as the supplier of water fulfills the conditions of the plan for compliance.

B. Sanitary Survey Report.

  (1) A sanitary survey is an on-site review of the water source (identifying sources of contamination by using results of source water assessments where available), facilities, equipment, operation, maintenance, and monitoring compliance of a public water system (PWS) to evaluate the adequacy of the PWS, its sources and operations, and the distribution of safe drinking water.

  (2) For the purposes of this section, a significant deficiency includes a defect in design, operation, or maintenance, or a failure or malfunction of the sources, treatment, storage, or distribution system that the Approving Authority determines to be causing, or has the potential for causing, the introduction of contamination into the water delivered to consumers.

  (3) After conducting a sanitary survey and completing a report, the Approving Authority may require the supplier of water to take corrective action to resolve deficiencies noted in the sanitary survey. Suppliers of water shall provide a plan for compliance on or before 45 days from the receipt of the report to indicate how and on what schedule the system the will address significant deficiencies noted in the survey. The plan for compliance shall be in writing and shall present the timetable and the manner for completing the corrective action specified by the sanitary survey report. The supplier of water is not in violation of the notice or order if the Approving Authority approves the plan for compliance and the supplier of water fulfills the conditions of the plan for compliance.

  (4) Suppliers of water shall correct significant deficiencies identified in sanitary surveys according to the schedule approved by the Approving Authority, or if there is no approved schedule, according to the schedule reported pursuant to 40 CFR §141.723(c) if such deficiencies are within the control of the system.

C. Composite Correction Program.

  (1) A composite correction program includes a comprehensive performance evaluation and a correction program. The comprehensive performance evaluation shall:

    (a) Identify factors that may be adversely impacting a plant's capability to achieve compliance with 40 CFR Part 141, Subparts P and T; and

    (b) Emphasize approaches that can be implemented without significant capital improvements.

  (2) For purposes of compliance with 40 CFR Part 141, Subparts P and T, the comprehensive performance evaluation shall consist of at least the following components:

    (a) Assessment of plant performance;

    (b) Evaluation of major unit processes;

    (c) Identification and prioritization of performance limiting factors;

    (d) Assessment of the applicability of comprehensive technical assistance; and

    (e) Preparation of a CPE report.

  (3) As specified in 40 CFR Part 141, Subparts P and T, the Approving Authority may require a composite correction program for a Subpart H water system with any individual filter that has a measured turbidity level of greater than 2.0 NTU in two consecutive measurements taken 15 minutes apart at any time in each of 2 consecutive months.

  (4) The plan for compliance shall:

    (a) Be in writing;

    (b) Present the timetable and the manner for completing the corrective actions specified by the composite correction program; and

    (c) Be completed and submitted to the Approving Authority for review and approval not later than 90 days following the exceedance.

#### Regulation .26 Monthly Operating Reports.

*COMAR 26.04.01.26*

A. The Approving Authority may require suppliers of water to submit a monthly operating report not later than 10 days after the end of the reporting period.

B. The Approving Authority shall specify the information required and the format of the monthly operating reports for each water supply system.

C. The current monthly operating report shall be kept at the water treatment plant, and all entries shall be made on a daily basis.

D. Reportable incidents shall be noted in the monthly operating report of addendums attached to it.

E. The superintendent in charge of daily operations shall complete the monthly operating report, certify that the report is truthful to the best of his knowledge and belief, and sign the operating report at the end of the day, shift, work period, or at an interval specified by the Approving Authority. The supplier of water shall be responsible for submitting the report within the required time limit.

F. The Approving Authority shall report to the Board any irregular, untruthful, or misleading information reported on the operating report.

#### Regulation .27 Maintenance Log.

*COMAR 26.04.01.27*

A. A supplier of water shall maintain a log of all maintenance activities that occur during the daily operation of the water supply system.

B. The Approving Authority shall specify the information that shall be contained in the maintenance log.

C. The superintendent in daily responsible charge shall attest to the veracity of the log by signing the maintenance log at the end of the day, shift, work period, or at an interval specified by the Approving Authority.

D. The current maintenance log shall be maintained at the plant site at all times and may not be removed except for duplication. The log books shall be retained for 3 years before disposal.

E. The Approving Authority shall report to the Board any irregular, untruthful, or misleading information reported on the maintenance log.

#### Regulation .28 Emergency Reporting Procedures.

*COMAR 26.04.01.28*

Suppliers of water shall contact the Approving Authority when a reportable incident occurs during the operation of the water treatment and distribution system within 1 hour of the supplier of water becoming aware of the incident.

#### Regulation .29 Sodium Monitoring and Analytical Requirements.

*COMAR 26.04.01.29*

A. Suppliers of water for community public water systems shall collect and analyze one sample per plant at the entry point of the distribution system for the determination of sodium concentration. Samples shall be collected and analyzed annually for systems utilizing surface water sources in whole or in part, and at least every 3 years for systems utilizing solely ground water sources. The minimum number of samples required to be taken by the system shall be based on the number of treatment plants used by the system, except that multiple wells drawing raw water from a single aquifer may, at the Approving Authority's discretion, be considered one treatment plant for determining the minimum number of samples. The supplier of water may be required by the Approving Authority to collect and analyze water samples for sodium more frequently in locations where the sodium content is variable.

B. The supplier of water shall report to the Approving Authority the results of the analyses for sodium within the first 10 days of the month following the month in which the sample results were received or within the first 10 days following the end of the required monitoring period as stipulated by the Approving Authority, whichever of these is first. If greater than annual sampling is required, the supplier of water shall report the average sodium concentration within 10 days of the month following the month in which the analytical results of the last sample used for the annual average has been received.

C. The supplier of water shall notify appropriate local and State public health officials of the sodium levels by written notice by direct mail within 3 months. A copy of each notice required to be provided by this section shall be sent to the State within 10 days of its issuance. The supplier of water is not required to notify appropriate local and State public health officials of the sodium levels when the State provides the notices instead of the supplier.

D. Analysis for sodium shall be conducted as set forth in 40 CFR §141.23(k)(1).

#### Regulation .30 Distribution System.

*COMAR 26.04.01.30*

A. Material Survey. Community water supply systems shall identify whether the following construction materials are present in their distribution systems and shall submit a report to the Approving Authority:

  (1) Lead from piping, solder, caulking, interior lining of the distribution mains, alloys, and home plumbing;

  (2) Copper from piping and alloys, service lines, and home plumbing;

  (3) Galvanized piping, service lines, and home plumbing;

  (4) Ferrous piping materials such as cast iron and steel;

  (5) Asbestos cement pipe;

  (6) Vinyl lined asbestos cement pipe; and

  (7) Coal tar lined pipes and tanks.

B. Requirements for Uncovered Finished Water Storage Facilities.

  (1) Water suppliers may not begin construction of uncovered finished water storage facilities.

  (2) Systems using uncovered finished water storage facilities shall comply with 40 CFR §141.714.

  (3) Systems shall notify the Approving Authority of the use of each uncovered finished water storage facility not later than April 1, 2008.

  (4) For each uncovered finished water storage facility, systems shall meet the following conditions, or be in compliance with a schedule approved by the Approving Authority to meet these conditions, not later than April 1, 2009:

    (a) Systems shall cover any uncovered finished water storage facility; and

    (b) Systems shall treat the discharge from the uncovered finished water storage facility to the distribution system to achieve inactivation, removal, or inactivation and removal of at least 4-log virus, 3-log Giardia lamblia, and 2-log Cryptosporidium using a protocol approved by the Approving Authority.

  (5) Systems shall report the use of uncovered finished water storage facilities to the Approving Authority as described in 40 CFR §141.714.

  (6) Systems shall keep the results of treatment monitoring associated with uncovered finished water reservoirs under 40 CFR §141.714 for 3 years.

  (7) Failure to comply with the requirements of this section is a violation of the treatment technique requirement.

#### Regulation .31 Repealed.

*COMAR 26.04.01.31*

#### Regulation .32 Cross Connection Control Programs.

*COMAR 26.04.01.32*

A. Suppliers of water to community water systems existing before January 1, 1986, shall prepare and submit for approval to the Approving Authority by January 1, 1988, a plan for controlling cross connections. For community water systems constructed after January 1, 1988, the supplier of water shall prepare and submit for approval a plan for controlling cross connections with the plans and specifications required under Regulation .05 of this chapter or within 3 months following start-up of the water system if a construction permit has already been issued by the Approving Authority.

B. Following receipt of approval by the Approving Authority for the cross connection control program submitted in compliance with §A, of this regulation, including any amendment required by the Approving Authority, the supplier of water shall implement the approved plan.

#### Regulation .33 Direct and Indirect Additives.

*COMAR 26.04.01.33*

A. For purposes of this regulation, “products” means any:

  (1) Chemical or substance added to a public water supply;

  (2) Materials used in the manufacture of public water supply components or appurtenances; or

  (3) Pipe, storage tank, valve, fixture, or other materials which come in contact with water intended for use in public water supply.

B. Suppliers of water to the community water systems shall receive approval from the Approving Authority before application of coatings and coatings systems to water storage facilities or other water contact surfaces. Suppliers of water shall also submit the analytical results of water that have been collected from newly coated tanks and obtain approval from the Approving Authority before placing these tanks in service.

C. Suppliers of water shall use only products, as defined in §A of this regulation, in a public water supply that are acceptable to the Approving Authority. The Approving Authority shall consider the following when determining which products are acceptable for use in a public water supply:

  (1) If the product meets the applicable American National Standards Institute (ANSI)/National Sanitation Foundation (NSF) standards for direct or indirect drinking water additives; or

  (2) If the product is certified by an organization having a third-party certification program accredited by the American National Standards Institute (ANSI) to meet criteria that are at least as stringent as those in §C(1) of this regulation.

#### Regulation .34 Penalties.

*COMAR 26.04.01.34*

A person who violates:

A. Any provision of this chapter, except for Regulations .26—.28 and .33, is subject to the penalties provided by Environment Article, §9-413, Annotated Code of Maryland;

B. Regulations .26—.28, or .33 of this chapter is guilty of a misdemeanor and upon conviction is subject to the penalties provided by Environment Article, §10-304, Annotated Code of Maryland;

C. Any term or condition of an order issued pursuant to the authority vested in the Department by Environment Article, Title 9, Subtitle 2 or 4, Annotated Code of Maryland, is subject to the penalties provided by the subtitle pursuant to which the order is issued.

#### Regulation .35 Civil Actions.

*COMAR 26.04.01.35*

The Secretary may institute a civil action in any court of appropriate jurisdiction for injunctive relief to prevent violation of any order or regulation issued pursuant to this chapter, in addition to any other remedies provided under this chapter.

#### Regulation .36 Capacity Development Requirements.

*COMAR 26.04.01.36*

A. Applicability.

  (1) This regulation applies to the owner of a new system that applies for a construction permit as required by COMAR 26.03.12 on or after October 1, 1999.

  (2) A system that has infrastructure in place before October 1, 1999, and then becomes a community water system or a nontransient noncommunity water system by the addition of new users or connections is not subject to this regulation.

B. General Requirements.

  (1) The owner of a new system subject to this regulation shall comply with the requirements of this regulation by including the information in §§C—K of this regulation with the application for a construction permit required under Environment Article, §9-204, Annotated Code of Maryland.

  (2) The Department may not issue a construction permit if the information required by §§C—K of this regulation is not submitted by the owner and approved by the Department.

C. System Description. A system description shall include:

  (1) A site plan for all water supply sources including:

    (a) A map and a description of each water source; and

    (b) Identification and location of all existing and proposed on-site stormwater management facilities and waste discharges for the properties served by the proposed water system;

  (2) An identification of the municipality, area, or facility to be served by the proposed system;

  (3) Provisions for future extension or expansion of the water system; and

  (4) Proposed treatment processes including:

    (a) The criteria and basis of design of treatment units;

    (b) Methods or procedures used in arriving at treatment recommendations, and reasons or justifications for any deviations from conventional processes or methods; and

    (c) Population records and demographic trends that forecast 10 years into the future.

D. Source Adequacy Analysis. A source adequacy analysis shall include:

  (1) An analysis of the ability of the proposed and existing sources to reliably meet average, maximum daily, and instantaneous peak demands based upon existing conditions and conditions 10 years in the future;

  (2) Determination of the safe yield of the sources of supply;

  (3) For systems purchasing water, a copy of the agreement with the supplier that demonstrates the reliability and adequacy of the water supply; and

  (4) Characterization of the water quality of the sources of supply, including comparison of the water quality data to established or proposed drinking water standards.

E. Infrastructure Replacement Plan. An infrastructure replacement plan shall include:

  (1) A description of all treatment and transmission facilities, including pumping stations and storage facilities, and including the useful life of each piece of equipment; and

  (2) An equipment replacement plan including expected replacement dates and costs.

F. Staffing Plan. A staffing plan shall include:

  (1) An organizational chart showing all aspects of water system management and operation;

  (2) A description of the responsibilities of all staff;

  (3) A demonstration that the system will comply with the operator certification requirements listed in COMAR 26.06.01; and

  (4) A plan for providing on-going training to all managers and operators.

G. Operations Plan.

  (1) The owner of a new system subject to the requirements of this regulation shall submit an operations plan. Community water systems shall comply with the requirements of §G(1)(a) and (b) of this regulation. Nontransient noncommunity water systems shall comply with the requirements of §G(1)(a)(i)—(v) of this regulation. An operations plan shall include:

    (a) Standard operating procedures for:

      (i) Routine operation and maintenance;

      (ii) Water quality monitoring to comply with regulatory requirements for supply sources, treatment, and the distribution system;

      (iii) Record keeping and reporting, including consumer confidence reports;

      (iv) Testing of backflow prevention devices in treatment and storage facilities;

      (v) Storage tank inspection and cleaning;

      (vi) Water main valve location and exercising;

      (vii) Customer complaint response;

      (viii) Customer notification of planned outages; and

      (ix) Main flushing; and

    (b) A plan for tracking unaccounted-for water.

  (2) The owner of a new system shall implement the operations plan.

H. Cross Connection Control Plan. The owner of a new system shall submit a cross connection control plan which explains how the water system will comply with the requirements of Regulation .32 of this chapter.

I. Ownership and Easement Documentation.

  (1) Ownership and easement documentation shall include:

    (a) The system's ownership and organization including:

      (i) The name and address of the system owner or owners;

      (ii) The names of the chief executive officers, director or agency head, and board of directors;

      (iii) A description of the water system's legal basis, for example, nonprofit, limited partnership; and

      (iv) Copies of any leases or easements for land, water supply sources, or physical facilities used in the operation of the system;

    (b) Acquisition of easements, rights of way, or both, for all water pipelines and appurtenances located on private property not owned by the water system; and

    (c) For community water systems, ownership in fee simple of the land where the water treatment facilities and other necessary structures are or will be located.

  (2) If pipelines are to be located in public or dedicated streets and roads, the applicant shall:

    (a) Inform the Department of this in its application; and

    (b) Show that it retains the rights of ownership and maintenance of those pipelines; and

J. Emergency Management Plan.

  (1) Community water systems shall submit an emergency management plan consisting of the following:

    (a) The identification of all potential risks including contamination, chemical handling, equipment failures, drought, and outages;

    (b) The identification of personnel responsible for emergency management;

    (c) Emergency response plans for identified risks; and

    (d) Notification procedures and means for implementation of the emergency response plan.

  (2) Nontransient noncommunity water systems shall submit an emergency management plan containing the names and phone numbers of the people responsible for action in the event of an emergency and for emergency sources of potable water.

K. Financial Plan.

  (1) The owner of a new system subject to the requirements of this regulation shall submit a financial plan. Community water systems shall comply with the requirements of §K(2)—(4) of this regulation. Nontransient noncommunity water systems shall comply with the requirements of §K(5) of this regulation.

  (2) The financial plan for a community water system shall include a revenue and expenditure analysis that compares all anticipated water system revenues with planned expenditures for a 5-year period and describe the water system's:

    (a) Annual revenue, expenses, and cash flow projections;

    (b) Debt incurred for meeting capital expenditures; and

    (c) 5-year plan for capital improvements.

  (3) The financial plan shall demonstrate that:

    (a) Record keeping and accounting practices in place will accurately record the actual costs of the water system, the revenues received, and expenses incurred in the operation of the system;

    (b) The coverage ratio is greater than 1.0; and

    (c) The operating ratio is greater than 1.0.

  (4) To satisfy the requirements of §K(3) of this regulation, the financial plan shall at a minimum set forth:

    (a) The date of execution of the described obligation;

    (b) The name or names of the trustee or trustees;

    (c) The amount of indebtedness authorized to be secured by the described obligation;

    (d) The amount of indebtedness actually secured by the described obligation; and

    (e) A description of the mortgaged property or collateral.

  (5) The financial plan for a nontransient noncommunity water system shall include detailed operational cost estimates and a reliable source of revenue.

L. A copy of the operations plan required in §G of this regulation and a copy of the emergency management plan required in §J of this regulation shall be kept onsite at each plant.

### Chapter 02 — Sewage Disposal and Certain Water Systems for Homes and Other Establishments in the Counties of Maryland Where a Public Sewage System Is Not Available

**Authority:** Environment Article, §§9-216, 9-217, 9-223, 9-252, 9-319, 9-510, 9-1108, 10-103, 10-301, and 10-304, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.05 effective November 16, 1953; amended effective July 1, 1957, November 15, 1957, June 8, 1965, October 15, 1966, April 1, 1967, December 1, 1970

**Administrative History:** Regulations .01E and .02C amended, .02C-1 adopted effective December 17, 1984 (11:25 Md. R. 2134)

**Administrative History:** Regulations .06—.16 effective November 16, 1953

**Administrative History:** Regulation .17 effective June 1, 1957

**Administrative History:** Regulations .18—.21 effective November 16, 1953

**Administrative History:** Chapter recodified from COMAR 10.17.02 to COMAR 26.04.02

**Administrative History:** Regulations .01—.21 repealed and new Regulations .01—.11 adopted effective November 18, 1985 (12:23 Md. R. 2218)

**Administrative History:** Regulations .01, .02, .04, and .05 amended as an emergency provision effective May 6, 1986 (13:11 Md. R. 1267); emergency status extended at 13:20 Md. R. 2205

**Administrative History:** Regulation .01 amended effective November 3, 1986 (13:22 Md. R. 2398)

**Administrative History:** Regulation .02 amended effective November 3, 1986 (13:22 Md. R. 2398)

**Administrative History:** Regulation .04 amended effective November 3, 1986 (13:22 Md. R. 2398)

**Administrative History:** Regulation .05 amended effective November 3, 1986 (13:22 Md. R. 2398)

**Administrative History:** Regulation .06 amended effective November 3, 1986 (13:22 Md. R. 2398)

**Administrative History:** Regulation .11 amended effective November 3, 1986 (13:22 Md. R. 2398)

**Administrative History:** Map recodified as Regulation .12

**Administrative History:** Regulation .01B amended effective March 25, 1996 (23:6 Md. R. 477)

**Administrative History:** Regulation .02C and D amended effective April 27, 1992 (19:8 Md. R. 806)

**Administrative History:** Regulation .03C amended effective March 25, 1996 (23:6 Md. R. 477)

**Administrative History:** Regulation .04J amended effective July 4, 1994 (21:13 Md. R. 1160)

**Administrative History:** Regulation .05O and Q amended effective April 27, 1992 (19:8 Md. R. 806)

**Administrative History:** Regulation .08 amended effective December 10, 1990 (17:24 Md. R. 2837)

**Administrative History:** Regulation .10 amended effective October 26, 1992 (19:21 Md. R. 1894)

**Administrative History:** Chapter revised effective January 1, 2013 (39:19 Md. R. 1238)

**Administrative History:** Regulations .01—.12 repealed and new Regulations .01—.12 adopted; Map recodified as Regulation .13 effective May 12, 2014 (41:9 Md. R. 522)

**Administrative History:** Regulation .01B amended effective April 8, 2019 (46:7 Md. R. 371)

**Administrative History:** Regulation .05K amended effective April 8, 2019 (46:7 Md. R. 371)

**Administrative History:** Regulation .07 amended effective November 24, 2016 (43:23 Md. R. 1280)

**Administrative History:** Regulation .09B amended effective February 13, 2017 (44:3 Md. R. 190)

#### Regulation .01 Definitions.

*COMAR 26.04.02.01*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Approving Authority” means the Secretary of the Department of the Environment or the Secretary’s designee.

  (2) “Aquifer” means any formation of soil, sand, rock, gravel, limestone, sandstone, or other material, or any crevice from which underground water is or may be produced.

  (3) “At-grade system” means an on-site sewage disposal system utilizing a raised bed of gravel over the natural soil surface with a distribution system constructed so as to distribute sewage equally along the length of the gravel bed.

  (4) “Best Available Technology for Removal of Nitrogen (BAT)” means a technology that has been approved by the Department as a best available technology for removing nitrogen from onsite sewage disposal systems.

  (5) “Certified service provider” means an individual who is certified by the Department to perform operation and maintenance on BAT systems.

  (6) “Chemical toilet” means a toilet arranged to receive the nonwater-carried human waste directly into a deodorizing and liquefying chemical in a watertight tank.

  (7) “Cistern” means a covered tank in which rain water from roof drains is stored for household or other purposes.

  (8) “Community sewerage system” means any system, whether publicly or privately owned, serving two or more individual lots for the collection and disposal of domestic sewage or domestic sewage combined with industrial waste including various devices for the treatment of that sewage.

  (9) “Community water supply system” means a source of water and distribution system, including treatment facilities and storage facilities whether publicly or privately owned, serving two or more individual lots.

  (10) “Confined aquifer” means an aquifer bounded above and below by beds of distinctly lower permeability than that of the aquifer itself and which contains ground water under pressure greater than that of the atmosphere. This term is synonymous with the term “artesian aquifer”.

  (11) “Contamination” means the introduction into water of any substance, which may transfer infectious agents or other foreign substances (organic, inorganic, radiological, or biological), in concentrations which may constitute a health hazard or impair the usefulness of the water.

  (12) “Controlled hazardous substance” means a substance identified as a hazardous substance by the Department of the Environment pursuant to Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland, and COMAR 26.13.01.03B(26).

  (13) “Conventional on-site sewage disposal system” is a system that meets current regulations and includes a sewage treatment unit or BAT with standard trench or deep trench subsurface irrigation, a seepage pit on-site disposal or a sand mound system under Regulation .05 of this chapter, or an at-grade system under Regulation .05 of this chapter.

  (14) “County water and sewer plan” means a comprehensive plan and all amendments and revisions of it as required by Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland, for the provision of adequate water and sewerage systems, whether publically or privately owned throughout the county, including towns, municipal corporations, and sanitary districts in the county.

  (15) “Deep trench” means a trench having perforated pipe in which the trench side wall and bottom area are used to calculate the absorptive area in the system design. At least 2 inches of gravel/stone covers the pipe and extends throughout the depth of absorptive side wall to the trench bottom.

  (16) “Domestic sewage” means the liquid or water carried wastes derived from dwellings, including floating homes, business buildings, institutions, and the like, exclusive of wastes derived from industrial processes.

  (17) “Floating home” means any vessel, whether self-propelled or not, which is:

    (a) Used, designated, or occupied as a permanent dwelling unit, place of business, or for any private or social club, including a structure constructed upon a barge primarily immobile and out of navigation or any structure which functions substantially as a land structure while the same is moored or docked within Maryland; and

    (b) Which has a volume coefficient greater than 3,000 square feet based upon the ratio of the habitable space of a vessel measured in cubic feet and the draft of a vessel measured in feet of depth.

  (18) “Fall line” means the contact between the unconsolidated sediments of the coastal plain physiographic province and the crystalline rocks of the Maryland Piedmont physiographic province (see the map of Maryland Physiographic Provinces and Their Divisions in this chapter), and is approximated by the line connecting the numerous waterfalls and rapids in adjacent streams.

  (19) “Flood plain soils” are those soils that are listed in the soil survey as either having a flood hazard or being susceptible to flooding.

  (20) “Grease intercepter” means a receptacle designed to collect and retain grease and fatty substances normally found in kitchen or similar wastes.

  (21) “Ground water” means underground water in a zone of saturation.

  (22) “Hazardous substance” means any matter:

    (a) That conveys toxic, lethal, or sublethal effects to plant, aquatic, or animal life, or which may be injurious to human health, or persists in the environment; or

    (b) Which causes sublethal alterations to aquatic, plant, animal, or human systems through their cumulative or immediate reactions.

  (23) “Holding tank” means a watertight receptacle which is used, or intended to be used, for the collection of sewage.

  (24) “Liquid waste hauler” means a person engaged in the business of cleaning and emptying septic tanks, holding tanks, seepage pits, privies, or any other on-site disposal facility.

  (24-1) “Membrane Bioreactors (MBR)” is a treatment technology that combines the biological-activated sludge process and the membrane filtration process and that is capable of reducing the 5 day biochemical oxygen demand (BOD5 ), total nitrogen (TN), and total suspended solids (TSS) concentrations in wastewater effluent to less than 1 mg/l of TSS, less than 3 mg/l of TN, and less than 3 mg/l of BOD5.

  (25) “Mobile home” means a structure that can be used with or without a permanent foundation, is transportable in one or more sections, built on a permanent chassis, and is designed to be used as a dwelling when connected to the required utilities.

  (26) “Non-conventional on-site sewage disposal systems” are experimental systems and innovative technologies not currently described in these regulations that are undergoing evaluation by the Department of the Environment and the Approving Authority.

  (27) “On-site disposal” means the disposal of sewage effluent beneath the land surface.

  (28) “On-site sewage disposal system” means a sewage treatment unit, collection system, disposal area, and related appurtenances related to on-site sewage disposal.

  (29) “Percolation test” means a procedure used to determine the rate of movement of water through soil at the depth of installation of a proposed on-site sewage disposal system.

  (30) “Permeability” means the capability of a soil, rock, aquifer, or confining bed to transmit waters or air.

  (31) “Person” means an individual, partnership, firm, corporation, cooperative enterprise, or a governmental agency.

  (32) “Pollution” means any contamination or other alteration of the physical, chemical, or biological properties of any ground or surface waters of this State, including a change in temperature, taste, color, turbidity, or odor of the waters or the discharge or deposit of any organic matter, harmful organism, or liquid, gaseous, solid, radioactive, or other substance onto the ground surface or into any waters of this State that will render the ground or waters harmful or detrimental to:

    (a) Public health, safety, or welfare;

    (b) Domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses;

    (c) Livestock, wild animals, or birds; or

    (d) Fish or other aquatic life.

  (33) “Potable water” means water which is free from substances or agents which may cause disease or harmful physiological effects, and which complies with the bacteriological and chemical quality requirements of COMAR 26.04.01 and 26.04.04.

  (34) “Privy” means an earth or watertight pit or receptacle for receiving nonwater-carried human wastes over which is placed a privy house containing a seat or seats.

  (35) “Sand mound system” means an on-site sewage disposal system utilizing a raised bed of sand fill with a distribution system constructed so as to distribute sewage equally into the sand fill.

  (36) “Seepage pit” means a dug or drilled hole extending into porous soils for the purpose of introducing sewage effluent into the ground.

  (37) “Septage” means the liquid and solid material pumped or removed from chemical toilets, septic tanks, seepage pits, privies, cesspools, or holding tanks when the system is cleaned and maintained.

  (38) “Septic tank” means a watertight receptacle which receives the discharge of sewage from a building sewer or part of it and is designed and constructed to permit the settling and the digestion of the organic matter by anaerobic bacterial action.

  (39) “Sewage” means water-carried human, domestic and other wastes and includes all human and animal excreta.

  (40) “Sewage treatment unit” means a device designed and constructed to receive sewage and to provide treatment to reduce organic and inorganic matter and includes septic tanks, BAT, aerobic treatment units, or any other approved devices.

  (41) “Sewer” means the system of pipes, lift stations, and other appurtenances that receive and convey sewage and is designed to exclude stormwater, surface water, and ground water.

  (42) “Site evaluation” means the inventory and review of all site characteristics pertinent to on-site sewage disposal systems including topography, geology, surface and subsurface drainage, seasonal high water table, drinking water sources and wells, proximity to waters of the State, soil evaluation and percolation tests.

  (43) “Soil evaluation” means a description of the physical properties of a soil including color, texture, structure, limiting horizons, and percolation rates.

  (44) “Soil survey” means the scientific inventory of soil maps, soil unit descriptions, classification in the national system, and interpretation for use, as conducted by the National Cooperative Soil Survey by the United States Department of Agriculture, Natural Resources Conservation Service, in cooperation with the Maryland Agricultural Experiment Station.

  (45) “Spring” means groundwater seeping out of the earth where the water table intersects the ground surface.

  (46) “Standard trench” or shallow trench means a trench having either at least 6 inches of gravel or stone beneath and at least 2 inches over the perforated pipe or at least 6 inches air space beneath an open chamber. Only the bottom area is used to calculate the absorptive area in the design of a standard trench.

  (47) “Stream” means a perennial or intermittent watercourse of groundwater origin.

  (48) “Subsurface sewage disposal” means the process of on-site sewage disposal in which the sewage effluent is applied to land by distribution beneath the surface through perforated pipes or pressurized pipes and includes a standard trench, deep trench, sand mound or at-grade system.

  (49) “Unconfined aquifer” means an aquifer not bounded above by a bed of distinctly lower permeability than that of the aquifer itself and containing ground water under pressure approximately equal to that of the atmosphere. This term is synonymous with the term “water table aquifer”.

  (50) “Unconsolidated material” means uncemented soil and sediment material having not more than 70 percent coarse fragments (greater than 2 millimeters) by weight or 50 percent coarse fragments (greater than 2 millimeters) by volume. Volume is estimated by visual comparison with a standard chart.

  (51) “Water supply system” means a system that provides water for human consumption through pipes or other constructed conveyances and includes all sources of water that are or may be used as potable water including wells, springs, cisterns, or other sources and their appurtenances, such as, pitless adaptors, pumps, pressure tanks, water lines, and treatment and storage facilities.

  (52) “Well” means any hole that extends more than 20’ below the ground surface to explore for ground water, to obtain or monitor ground water, or to inject water into any underground formation from which ground water may be produced or to transfer heat to or from the ground or groundwater.

#### Regulation .02 General Provisions.

*COMAR 26.04.02.02*

A. The requirements of this chapter apply to new on-site sewage disposal systems and non-community water supply systems, replacements, additions to existing systems, repair or replacement of an existing system and any potential changes in the strength or volume of the sewage entering an on-site sewage disposal system.

B. If a community sewerage system is adequate and economically available to the building to be served, the Approving Authority may require a connection to the system.

C. On-Site Disposal System.

  (1) Notwithstanding any other provision of this regulation, the Department may approve an on-site sewage disposal system:

    (a) For a lot or parcel that was recorded and approved by the Department on or before November 17, 1985 if it meets the Department’s regulations and policies that were in effect on November 17, 1985, and has at least one replacement system area; or

    (b) For a lot or parcel that was recorded and approved by the Department on or before November 18, 1985 and was approved subject to a 10,000 square foot or greater disposal area, if it meets the other requirements and policies that were in effect on November 17, 1985. However, if a lot was approved subject to a 10,000 square foot disposal area, this disposal area is required; or

    (c) For a lot that was recorded without Department approval before November 18, 1985, if it meets the other requirements of this regulation except that only area sufficient for an initial and one replacement system is required for the lot’s initial dwelling unit. A 10,000 square foot area sufficient for an initial system installation and two replacement systems is required for each additional dwelling unit.

  (2) If the Department has approved a county’s groundwater protection plan, a sewage disposal system may be installed with less than a 4-foot treatment zone in a coastal plain county if the system complies with a groundwater protection report incorporated in the county’s master water and sewerage plan. These counties include Talbot, Dorchester, Wicomico, Worcester, Somerset, Caroline, and Queen Anne’s. A maximum density requirement of 160 residences or its equivalent per square mile for ground water protection shall apply in these areas for lots where direct ground water penetration is used for sewage disposal.

D. A person may not dispose of sewage, body, or industrial wastes in any manner which may cause pollution of the ground surface, the waters of the State, or create a nuisance.

E. A person may only dispose of sewage, body, or industrial wastes in accordance with an approved on-site sewage disposal permit or other method of disposal approved by the Approving Authority.

F. Water Supply for Non-Community System.

  (1) Only the following may be used as a water supply for residential and other establishments not served by a community system:

    (a) A well that satisfies the requirements of COMAR 26.04.04; and

    (b) A surface water system permitted by the Department and which meets the requirements of COMAR 26.04.01.

  (2) A spring or dug well may not be used as a water supply for a new homesite.

  (3) A cistern may not be used as a potable water supply.

  (4) A well for a new construction, addition, or alteration and a potential source of contamination shall meet the minimum setback requirements established in COMAR 26.04.04.

  (5) The owner of an abandoned well shall properly fill and seal the well in compliance with the requirements of COMAR 26.04.04.11.

G. Building and floating home contractors, septic contractors, plumbers, licensed well drillers, drivers, and diggers, along with any person for whom the work is being performed, are responsible for compliance with these regulations and COMAR 26.04.04.

H. An on-site sewage disposal system may not serve more than one building unless specifically authorized by the Approving Authority. In those instances where connection of more than one building to an onsite sewage disposal system is approved, the available area for onsite sewage disposal shall meet the requirements established by §C of this regulation.

I. If water under pressure is not available, all human body wastes shall be disposed of in approved privies, chemical toilets, or any other installations acceptable to the Approving Authority. These methods may not be authorized for new construction.

J. Site evaluations including percolation tests shall be conducted under the supervision of the Approving Authority. Other pertinent soil evaluations may be required by the Approving Authority if considered necessary.

K. A holding tank may be used to resolve an existing on-site sewage disposal failure if a community sewerage facility is not available and on-site repair protective of the public health is not possible. A holding tank may not be permitted to serve new construction or for the purpose of adding capacity to an existing disposal system in order to accommodate a change in property use. For a building served by a holding tank, the Approving Authority may not allow a building addition or a change-in-use or operation that would result in a foreseeable or potential increase in sewage flows from the building. A holding tank may be permitted to serve a public building as determined by the Approving Authority and the Department of the Environment to be essential. The permission to allow a holding tank for an essential public service building shall include consideration of the following:

  (1) Whether the proposed building is directly related to and necessary to protect the public safety;

  (2) Whether the proposed building supplies any critical public service;

  (3) The volume and character of the waste to be generated, and, its ultimate disposal; and

  (4) The expected length of time the holding tank will be in service before a conventional disposal mode is available.

L. A holding tank is required to hold a minimum of 7 days effluent and shall be of watertight construction. The Approving Authority may require a test of water tightness, in accordance with Regulation .05(F) of this chapter. The owner shall regularly remove and dispose of the contents in accordance with Regulation .08 of this chapter. The applicant shall submit, along with the application, a maintenance contract which is acceptable to the Approving Authority and which includes an acceptable pumping schedule by an approved liquid waste hauler. The Approving Authority may issue a holding tank permit if it determines that the issuance of the permit complies with the requirements of this section and does not compromise the public health, a maintenance contract requires safe and adequate disposal of sewage generated, and a holding tank agreement and easement is recorded in the land records for the property.

M. Criteria for a Holding Tank for an Owner Occupied, Legally Occupied, and Legally Situated Dwelling Unit.

  (1) A community sewerage facility is not available and on-site repair is not possible.

  (2) The dwelling unit is presently legally occupied by the owner or some other person who has permission of the owner or is vacant, but could be occupied by the owner or some other person who has permission of the owner.

  (3) The dwelling is physically occupied in compliance with all required occupancy permits, except for any permit or permit requirement relating directly to the sewage disposal system. If no occupancy permit is required, a dwelling unit is legally if it is physically occupied.

  (4) The dwelling has all required governmental approvals relating to its size (including all enclosed floor space) and location.

  (5) The square footage of the original dwelling may is not increased.

  (6) The estimated daily sewage flow may not be increased beyond the proven historical use.

  (7) The dwelling does not require major repairs.

  (8) The dwelling is existing if it has been occupied year round within 3 years prior to the date of an application for approval of a sewage disposal system. The approving authority may grant a variance if:

    (a) The applicant demonstrates to the satisfaction of the approving authority that occupancy was interrupted by events beyond his control;

    (b) The dwelling is the only structure on the property; and

    (c) The dwelling has been occupied year round within 7 years of the application.

N. No part of an on-site sewage disposal system may be covered or used until it has been inspected and approved by the Approving Authority or a third party approved by the Approving Authority.

O. If hydrologic or geologic problems exist, or if construction activities may adversely impact the sewage system, the Approving Authority may require installation, inspection, and approval of the on-site sewage disposal system before issuance of the building permit by the local agency issuing building permits.

P. The permitee shall backfill all as excavations soon as possible. If an excavation is required to be left open, the excavator shall properly protect the excavation to prevent injury to humans and animals.

Q. Every person engaged in the business of removing and disposing of the solid and liquid contents of on-site sewage disposal systems shall obtain an annual permit from the Approving Authority.

R. Sewage or sewage effluent, treated or non-treated, may not be disposed of in any manner that is likely to cause contamination of a potable water supply system or waters of the State, or create a nuisance.

S. An Approving Authority may require operating permits for on-site sewage disposal systems.

T. A local jurisdiction may establish a responsible management entity to manage, operate and maintain an on-site sewage disposal system.

#### Regulation .03 On-Site Sewage Disposal Permits.

*COMAR 26.04.02.03*

A. An applicant shall submit an application for an on-site sewage disposal permit in a form required by the Approving Authority and shall include a site plan, which identifies soil evaluations, percolation and other test locations, proposed system design, existing and proposed improvements, proposed BAT or other treatment methods and the location of existing and proposed wells to serve the property, along with any relevant datum concerning wells or disposal systems within 100 feet of the property line, and any additional information the Approving Authority may request.

B. The Approving Authority may issue a permit for an on-site sewage disposal system if it determines that the site and proposed design can safely dispose of sewage and conform with applicable laws and regulations. Within 30 days of a permit denial, the applicant shall be notified in writing as to the reason for denial.

C. In determining whether or not to issue an on-site sewage disposal permit, the Approving Authority shall evaluate the appropriateness and design of the proposed system. The review shall include consideration of all site evaluation information.

D. The applicant is responsible for submitting or making available all soils information, design specifications and other data that may be required by the Approving Authority to complete its permit review responsibilities.

E. A person may not construct or attempt to construct an on-site sewage disposal system without first receiving a permit from the Approving Authority. A person may not alter an on-site sewage disposal system or cause it to receive any increase in flow or change in the character of wastewater unless permitted by the Approving Authority.

F. A person may not construct or alter any structure, residence, floating home, or commercial establishment served or to be served by an on-site sewage disposal system or private water supply system, and a county or municipality may not issue, if applicable, a building permit or a use permit for the desired new construction or alteration, until the Approving Authority has:

  (1) Issued both an on-site sewage disposal permit and a well construction permit for facilities served by an on-site sewage disposal system and a private water supply system;

  (2) Issued an on-site sewage disposal permit for facilities served by an on-site sewage disposal system and a public water supply system;

  (3) Issued a well construction permit for facilities served by a private water supply system and public sewerage; or

  (4) Certified the existing on-site sewage disposal and water supply systems as capable of treating and disposing the existing sewage flows and meeting the water demand and any reasonable foreseeable increase in sewage flows or water demand. The Approving Authority shall consider the number of bedrooms, total enclosed living space and changes that affect the volume or character of the wastewater in making this determination.

G. If, in the opinion of the Approving Authority, a safe and adequate water supply is not available to the lot, an on-site sewage disposal permit shall be denied.

H. The Approving Authority may not permit an on-site sewage disposal system to be installed if, in the opinion of the Approving Authority, it may pollute a well water supply, a water supply reservoir, shellfish growing waters, bathing beaches, a lake or tidewater areas.

I. The permit to construct an on-site sewage disposal system is not valid for more than 2 years from the date of issuance, but may be renewed at the discretion of the Approving Authority. Additional testing or evaluations, before the renewal of a permit, may be required by the Approving Authority.

J. The permits required by this regulation are in addition to any approval to subdivide land pursuant to COMAR 26.04.03.

K. A permit issued for the construction of an on-site sewage disposal system shall include the statement that the Maryland Department of the Environment recommends septic tanks, BAT and other pretreatment units be pumped at a frequency adequate to ensure that solids are not discharged to the disposal area.

L. An on-site sewage disposal permit or a permit for an individual sewerage system may not be issued unless the project is in conformance with the approved county water and sewerage plan.

#### Regulation .04 Site Evaluation.

*COMAR 26.04.02.04*

A. Site Evaluation Criteria.

  (1) In determining whether to approve a lot or parcel for on-site sewage disposal the Approving Authority shall consider the following site evaluation criteria:

    (a) The general topography, geology, soil classification, and hydrology;

    (b) Surface and subsurface drainage conditions;

    (c) Soil descriptions, test results, and boring logs;

    (d) Requirements for seasonal testing; and

    (e) Performance of on-site sewage disposal systems and wells in the area and the potential impact of new on-site sewage disposal systems on individual water well supplies in adjacent areas.

  (2) The applicant shall submit, or make available, all soils information, design specifications and other data that the Approving Authority may require to complete its permit review responsibilities.

  (3) The applicant shall make available to the Approving Authority all information on private soil testing and environmental factors on the property that may impact onsite sewage disposal or potable drinking water supplies.

  (4) A site evaluation is conducted, and the results are evaluated, in accordance with the following requirements:

    (a) An adequate number of site evaluations including percolation tests and other pertinent observations, as required by the Approving Authority, are conducted within the area designated for on-site sewage disposal as necessary to determine the suitability of the area for sewage disposal.

    (b) The Approving Authority may require additional site evaluations and percolation testing where soil texture or structure varies or limiting geologic conditions are encountered, or when the Approving Authority deems it necessary to evaluate a larger disposal and recovery area for the estimated sewage flow.

    (c) The minimum allowable percolation rate after prewetting is 1 inch per 30 minutes, except for a system approved under Regulation .05V of this chapter.

    (d) A percolation rate faster than 2 minutes per inch, after prewetting, may not be approved west of the fall line and may also be disapproved east of the fall line if, in the opinion of the Approving Authority, adequate protection of the ground water may not be provided due to the rapid movement of water through the soil.

    (e) A percolation rate of between 2 and 5 minutes per inch, after prewetting, may be grounds for disapproval if in the opinion of the Approving Authority adequate protection of the ground water may not be provided due to rapid movement of water through the soil.

    (f) In carbonate rock areas a minimum of four treatment zone observation test pits, excavated perpendicular to the bed rock ridges, are required per sewage disposal area.

    (g) Each limiting horizons that may restrict the vertical flow of effluent in the soil treatment zone within 2 feet of the infiltrative surface is described in the site evaluation report. If a limiting horizon is identified, the design of the on-site sewage disposal system is adequate to overcome this limitation.

B. Soils Testing Requirements. In an area where the soil survey maps, soil borings or historical data indicate moderate or severe limitations based on seasonally perched or seasonally high water tables; site evaluations, a soil percolation test and any other test that the Approving Authority requires is performed at the time of the year when the highest water table is present as indicated by observation wells, rainfall totals and site conditions at the on-site sewage disposal area. The applicant shall conduct all soil tests at the depth and in the soil intended to be used for the on-site sewage disposal system. The official source of soil information is the National Resource Conservation Service (NRCS) Soil Data Mart, a part of the National Soil Information System.

C. Soil Treatment Zones.

  (1) Conventional on-site sewage disposal systems may not be approved where there is less than 4 feet of unsaturated, unconsolidated material sufficient to attenuate effluent below the bottom of the on-site sewage disposal system except as provided in §C(2) of this regulation and Regulation .05V of this chapter.

  (2) In the coastal plain province where 4 feet of unsaturated, unconsolidated material sufficient to attenuate effluent below the bottom of the on-site sewage disposal system is not available, the Approving Authority may identify areas where on-site sewage disposal systems using less than 4 feet of unsaturated soil may be allowed, if:

    (a) The aquifer is a Type III (other than Type I or Type II), pursuant to COMAR 26.08.02.09B; or

    (b) The aquifer has limited potential to serve as a drinking water source. These aquifers shall meet one or more of the following conditions:

      (i) Insufficient potable water to serve as a year-round supply due to seasonally fluctuating water tables;

      (ii) Interconnection with tidewater such that if pumped for water supply, brackish water or saltwater intrusion into the aquifer has or would occur; or

      (iii) Evidence the aquifer has already been polluted by, or is in imminent danger of being polluted, by activities in the area.

  (3) All the following criteria are required for all areas in which aquifers have been designated, pursuant to §C(2) of this regulation, for installation of on-site sewage disposal systems using less than 4 feet of unsaturated soil below the bottom of the sewage disposal field or pit:

    (a) The area is delineated in a ground water protection report prepared by the county government or its representative; and the groundwater protection report is approved by the county health department and included in the appropriate county water and sewer plan approved by the Department of the Environment.

    (b) The groundwater protection report sets density, design, and construction requirements to minimize degradation of aquifers designated for discharge and justifies any variances to §C(3)(b)—(g) of this regulation.

    (c) A quantitatively and qualitatively superior potable water supply is available from one or more deeper confined aquifers that are separated from the disposal aquifer by a confining aquiclude.

    (d) Measures are taken by the county health department to ensure that the aquifer designated for waste disposal is not currently and will not be used for a potable water supply.

    (e) Discharge to a surficial aquifer does not contaminate a deeper aquifer of Type I or II, pursuant to COMAR 26.08.01—.04, or any aquifer used for water supply.

    (f) If a water supply well taps a confined aquifer beneath the disposal aquifer the permitee shall grout through the disposal aquifer.

    (g) The on-site sewage disposal system and recovery area is located 100 feet from any well in a confined aquifer.

    (h) Unimproved lots served by these on-site sewage disposal systems may not be less than 2 acres in size.

D. Approvals for lots in the Appalachian physiographic province of the State (see the map of Maryland Physiographic Provinces and Their Divisions in this chapter), where 4 feet of unsaturated, unconsolidated soil sufficient to attenuate effluent below the subsurface disposal system is not available, may require concurrent approval of the Department of the Environment at the discretion of the Water Management Administration. Training and assistance by the Water Management Administration personnel will be provided at the request of the Approving Authority. In limestone or dolomite areas of the Appalachian physiographic province, deviation from the 4-foot requirement may not be given for new development.

E. Sewage disposal areas shall meet all physical and distance requirements outlined in regulations .03 and 04 of this chapter, exclusive of easements, rights-of-way, buildings, and any other permanent or physical objects, and may not be disturbed by earth moving, compaction, tree removal or grading after approval by the Approving Authority without prior authorization of the Approving Authority.

F. The sewage disposal area for a dwelling unit or other building for human occupation on an individual lot recorded and approved by the Department on or after November 18, 1985, shall meet the following criteria:

  (1) The area is adequate for the installation of an initial and two replacement on-site sewage disposal systems; and

  (2) For each dwelling unit, or other buildings for human occupation, the area shall not be less than 10,000 square feet.

G. The sewage disposal area for a dwelling unit or other building for human occupation on an individual lot, recorded and approved by the Department before November 18, 1985, shall meet the following criteria:

  (1) The area is adequate for the installation of an initial and one replacement on-site sewage disposal system; and

  (2) For lots created subject to a minimum 10,000 square foot sewage disposal area, a minimum 10,000 square foot area is maintained.

H. The Approving Authority shall use the best available water usage information in determining estimated daily flows for institutional and commercial establishments for determining required sewage disposal area including area for initial and required replacement systems. .

I. An on-site disposal system and replacement area may not be located in flood plain soils or on slopes in excess of 25 percent.

J. The following horizontal separation distances are required to be maintained between the on-site disposal system including its recovery area and the features listed although greater distances may be required at the discretion of the Approving Authority:

K. A lot located within 2,500 feet of the normal water level of an existing or proposed water supply reservoirs, measured horizontally, within a 5,000-foot radius upstream from a water intake on a stream used as potable water supply source, or within a 5,000-foot radius of a water intake located within a reservoir shall have an area of not less than 2 acres and a minimum width of 175 feet. An on-site sewage disposal system may not be located within 300 feet, measured horizontally, of the normal high water level of a water supply reservoir. Normal water means the elevation of the spillway crest. These limitations do not apply to areas below the dam forming the reservoir.

L. The Approving Authority may consider an application for a variance from the requirements listed in §K of this regulation in order to cluster lots as provided under local law. However, the number of clustered lots under two acres may not exceed the number of lots that would have been approvable under §K of this regulation. A variance may not be granted that allows the transfer of density units or development rights to a subdivision located within 2,500 feet of a water supply reservoir.

#### Regulation .05 Design and Construction of Conventional On-Site Sewage Disposal Systems.

*COMAR 26.04.02.05*

A. Sewage from bathrooms, kitchens, laundry fixtures, and other household plumbing, exclusive of the backwash from potable water treatment devices, shall receive adequate treatment from a sewage treatment unit before the effluent is discharged to an approved on-site sewage disposal area.

B. On-site sewage disposal systems and replacement areas location requirements:

  (1) The sewage disposal system is at least 100 feet removed from any water well system in unconfined aquifers and 50 feet from any water well system in confined aquifers.

  (2) The on-site sewage disposal system is located downgrade from a private water supply. A variance to this requirement may be granted by the Department of the Environment after consideration of hydrogeologic conditions and recommendations of the Approving Authority.

C. The owner of a restaurant or an establishment discharging grease shall install a grease interceptor on each separate kitchen waste drain.

D. Residential Septic Tank Size Criteria. Septic tanks serving a residential use, not requiring a BAT system, shall meet the following criteria and tables. This table provides for use of garbage disposal units, automatic clothes washers, and other household appliances.

E. Criteria of a Residential Septic Tank.

  (1) A residential septic tank shall have a minimum of two compartments or two tanks in series.

  (2) A residential septic tank shall be made of materials and constructed in a manner acceptable to the Approving Authority.

  (3) A residential septic tank shall be watertight. Manufacturers shall certify that septic tanks are watertight. The Approving Authority may require one of the following tests to determine watertightness.

    (a) Vacuum Testing. Seal the empty tank and apply a vacuum to two inches of mercury. The tank is acceptable if 90 percent of the vacuum is held for 2 minutes.

    (b) Water-Pressure Testing. Seal the tank with all the inlet and outlet pipes installed. Fill with water and let stand for 24 hours. Refill the tank. The tank is acceptable if the water as level measured in the tank remains the same for one hour.

F. Institutional Septic Tank Criteria. The applicant for an institutional or commercial installation, not requiring a BAT system, shall calculate the minimum septic tank capacity according to the following criteria:

  (1) Flows of 1,500 gallons per day (gpd) or greater: V = 1,125 gallons + 0.75Q where V = minimum septic tank volume, Q = estimated daily peak sewage flow;

  (2) Flows of less than 1,500 gallons per day (gpd): V = 1.5 Q; and

  (3) 1,000 gallons is the minimum septic tank capacity.

G. Septic Tank Criteria where a BAT system is required under Regulation .07 of this chapter. If an approved BAT system includes a septic tank, the permitee shall size the septic tank in accordance with the requirements of the manufacturer or designer of the BAT.

H. Pump Chambers and Equipment Criteria.

  (1) Pressure distribution systems, including sand mound and at-grade systems, have a pump that provides adequate capacity for handling peak flow at the design head. The design head shall include static head, friction head, and an additional 2 feet of discharge head.

  (2) The pump is installed to allow the sewage to drain back to the pumping chamber from the distribution system to prevent freezing. Use of check valves is not recommended.

  (3) A pump is used that can resist the corrosive effects of septic tank effluent.

  (4) A minimum of 6 inches is provided between the pump intake and the floor of the pumping chamber.

  (5) The pump is constructed and located to prevent the entrance of surface water or ground water.

  (6) The dosing frequency is approximately 6 times a day.

  (7) A minimum of 1-day storage capacity is provided above the high water alarm.

  (8) A high water alarm is installed within the pumping chamber and wired on a circuit separate from that of the pump.

  (9) The pumping chamber provides adequate volume to store the sewage between doses.

  (10) The pump control sensor is located so that it is not affected by flow entering the pump chamber.

I. For residential property the minimum design flow is based on 150 gpd per bedroom. The Approving Authority may establish design flows based on equivalent square footage; however, the minimum design flow may not be less than 300 gpd per residence and 150 gpd per bedroom.

J. The Department shall provide guidance on estimating design flows for commercial and institutional establishments. Design flow is based on the maximum daily flow. Applications for commercial and institutional establishments shall include a proposed design flow for the system. The Approving Authority may approve design flows based upon actual flow measurements, estimated flows for square footage or estimated flow for similar establishments. The design flow may not be less than 400 gpd for a commercial or institutional establishment. Any facility discharging waste other than domestic sewage may be required to obtain an individual groundwater discharge permit.

K. Loading Rates for Onsite Sewage Disposal Systems.

  (1) A domestic, commercial, or institutional establishment with effluent quality stronger than 300 mg/l biological oxygen demand or 300 mg/l suspended solids shall employ a pretreatment unit to pretreat the effluent to a maximum of 300 mg/l biological oxygen demand and 300 mg/l suspended solids.

  (2) Maximum loading rates are based on wastewater with the equivalent strength of typical domestic sewage.

  (3) The maximum loading rates for on-site disposal of sewage by sewage disposal systems are as follows:

L. The absorptive area required is calculated by dividing the appropriate design flow by the appropriate loading rate.

M. Standard trench length is calculated by dividing the required absorptive area by the proposed trench width.

N. Standard Trench System.

  (1) Approval of Standard Trench System. A standard trench system may be approved by the Approving Authority if an adequate treatment zone and absorptive area are available. The system size is based on bottom absorptive area only.

  (2) Standard trench length = a ÷ w

  (3) Minimum distance, sidewall to sidewall, between standard trenches is at least 6 feet of undisturbed soil between 2-foot wide trenches and 9 feet between 3-foot wide trenches.

O. Deep Trench System.

  (1) Approval of Deep Trench Systems. A deep trench system may be approved by the Approving Authority when sufficient soils are available to allow the use of side walls in determining minimum absorption area requirements and an adequate treatment zone is available.

  (2) Deep trench length =  [(w+2) ÷ (w+1+2d)] × a ÷ w

  (3) Minimum distance, sidewall to sidewall, between deep trenches shall be two times the effective absorptive depth of gravel in the deepest trench or 18 feet, whichever is the lesser distance. The distance between trenches may not be less than 10 feet.

P. The minimum distance between seepage pits is equal to three times the diameter of the largest pit.

Q. Criteria for Large Onsite Sewage Disposal Systems

  (1) Property with an accumulative maximum daily flow of 5,000 gpd or greater, served by onsite sewage disposal, is a large onsite sewage disposal system.

  (2) An applicant for a large onsite sewage disposal system with a maximum daily flow of 10,000 gpd, or more, shall obtain an Individual Groundwater Discharge Permit from MDE. The Department may require an applicant for a system with a maximum daily flow of less than 10,000 gpd to obtain an Individual Groundwater Discharge Permit if specific project characteristics warrant additional monitoring or control or special permit requirements.

  (3) An application for a large on-site sewage disposal system is submitted by the property owner, or property owner’s agent, to the Approving Authority and MDE. Evaluation and review of an application is performed jointly by the Approving Authority and MDE.

  (4) A large system incorporates uniform low-pressure distribution with dosing and resting features in its design and construction.

  (5) Suitable sewage disposal area is set aside for the installation of an initial and two replacement systems at 100 percent of the peak daily flow.

  (6) The initial installation is designed and constructed for 150 percent of the peak daily flow.

  (7) A nitrogen balance analysis for the groundwater system is performed by a qualified professional and submitted to the Approving Authority and MDE. The nitrogen concentration at the property line or at any point adjacent to a water course does not exceed 10 mg per liter.

  (8) A mounding analysis is performed by a qualified professional and submitted to the Approving Authority and MDE. The 20-year mound height is estimated and does not rise to a point where the minimum required separation distance between the bottom of the system and the water table is not maintained.

R. Maximum daily flow is used as the basis of disposal area design regardless of the type of treatment unit or disposal method proposed.

S. Greater absorption area than provided for in this regulation may be required by the Approving Authority based on local conditions and experience.

T. Fill material may not be used in conventional subsurface sewage disposal systems except as placed over open chambers or perforated pipe.

U. Sand Mound Systems.

  (1) The criteria for a sand mound system are:

    (a) Ground water is located at least 2 feet below the ground surface as measured during the period of the highest water table;

    (b) Excessively permeable material or fractured bedrock is located at least 2 feet below the ground surface;

    (c) Percolation rates measured after prewetting utilizing a method that measures vertical permeability are not faster than 1 inch per 2 minutes and not slower than 1 inch per 60 minutes; and

    (d) The sewage disposal area has a slope of less than 12 percent.

  (2) The Approving Authority may require the depth to groundwater or fractured rock to be greater than 2 feet below the ground surface to ensure proper operation of a sand mound system if the Approving Authority determines that local conditions make greater depths necessary.

  (3) The criteria and conditions for performing site evaluation and testing for a sand mound system area:

    (a) Tests are performed in the least permeable soil horizon which is located in the upper 24 inches of soil; and

    (b) Tests are conducted with an apparatus which minimizes horizontal movement of water.

  (4) The criteria for construction of a sand mound are:

    (a) The long axis of the sand mound and the trench or bed is perpendicular to the slope.

    (b) All parts of a sand mound shall meet the horizontal separation distance in Regulation .04J of this chapter.

    (c) The linear loading rate, determined by dividing the design flow by the length of the gravel bed does not exceed 10 gallons per day per foot.

    (d) A two compartment septic tank or two tanks in series, with an effluent filter installed in the outlet baffle of the second tank or compartment, is used for pretreatment for all sand mounds that do not require BAT.

    (e) Sand mounds shall use a pressure distribution system which is designed to have a minimum pressure of 2 feet of head at the distal end.

    (f) The distribution system is installed level on a bed or in a series of trenches with at least 6 inches of gravel below the pipe.

    (g) The gravel is between 3/4 inch and 2 inches in size and free of fines.

    (h) A minimum of 2 inches of gravel is placed above the distribution pipe.

    (i) The gravel is covered with a geotextile filter fabric to prevent sand and fines from entering the gravel.

    (j) The trench or bed is constructed so that the bottom of the trench or bed is level.

    (k) The sand beneath the trench or bed is:

      (i) Of an effective size between 0.25 and 0.5 mm and have a uniformity coefficient of 3.5 or less; or

      (ii) Of an effective size between 0.15 and 0.3 mm and have a uniformity coefficient between 4 and 6 and contain less than 20 percent of material larger than 2.0 mm and less than 5 percent of material less than 0.053 mm.

    (l) Holes in the distribution lines are free of burrs and other protrusions.

    (m) The sand mound is covered with approximately a 6 inch layer of top soil and seeded.

    (n) The sand mound side slopes may not exceed a 3 to 1 grade regardless of the natural slope of the ground.

    (o) The top of the sand mound is crowned to allow rain water to run off.

    (p) Settling problems are corrected when they are detected.

    (q) Observation ports to measure effluent levels in the mound are installed:

      (i) At the gravel and sand interface in the gravel bed or trench; and

      (ii) At the soil and sand interface beneath the gravel bed.

  (5) The criteria for sizing sand mounds are:

    (a) The bed or trenches in the mound are sized to absorb not more than:

      (i) 1.2 gallons per square foot per day based on the bottom area of the beds or trenches for sand meeting the specification set forth in §V(4)(k)(i) of this regulation; and

      (ii) 1.0 gallons per square foot per day based on the bottom area of the beds or trenches for sand meeting the specification set forth in §V(4)(k)(ii) of this regulation.

    (b) The sand mound has a basal area sized to absorb effluent in accordance with the following:

      (i) For a vertical percolation rate between 2 minutes per inch and 30 minutes per inch, not more than 1.2 gallons per square foot per day;

      (ii) For a vertical percolation rate between 31 minutes per inch and 45 minutes per inch, not more than 0.75 gallons per square foot per day; and

      (iii) For a vertical percolation rate between 46 minutes per inch and 60 minutes per inch, not more than 0.5 gallons per square foot per day.

    (c) The basal area includes only that area that is directly below the trenches or bed and that area downslope from the trenches or bed.

    (d) The amount of sand fill below the trench or bed may not be less than 1 foot.

    (e) The total distance from the bottom of the trench or bed to the high water table may not be less than 4 feet except when a lesser separation is approved pursuant to Regulation .04C(3)(a) of this chapter.

    (f) A minimum 25 foot wide area downslope of the sand mound is designated on a plan as an area protected from compaction and grading and free of structures such as buildings and driveways. If a limiting horizon that may restrict the vertical flow of effluent through the soil beneath the sand mound is present, this 25 foot wide area may be increased.

  (6) Site preparation requirements are:

    (a) The site is not compacted by earthmoving or other equipment;

    (b) The grass or other vegetation is cut and removed as much as possible;

    (c) The soil is plowed to a depth of 6 inches perpendicular to the slope;

    (d) Work may not be done during wet weather, during wet soil conditions, or during freezing and thawing conditions;

    (e) Trees on the site are cut at ground level and the stumps left in place; and

    (f) A certified sand mound installer is present during construction of all sand mounds.

  (7) Certification of Installers.

    (a) A sand mound system may only be installed by a certified installer.

    (b) The Maryland Department of the Environment may award a sand mound installer certification if the applicant has successfully completed a course of study and examination in the practice of construction of mound systems. The course and examination shall be approved by the Department of the Environment.

    (c) The course of study and examination shall be given at least once each year by the Department of the Environment or the Department’s designee.

    (d) The certification is valid for a period of 3 years and may be renewed if the installer has complied with all the applicable laws and regulations.

    (e) The Maryland Department of the Environment may withdraw certification at any time for violation of these regulations.

V. At-Grade Systems.

  (1) The criteria for the use of an at-grade system are:

    (a) Ground water is located at least 4 feet below the ground surface as measured during the period of the highest water table;

    (b) Excessively permeable material or fractured bedrock is located at least 4 feet below the ground surface;

    (c) Percolation rates measured after prewetting utilizing a method that measures vertical permeability are not faster than 1 inch per 2 minutes and not slower than 1 inch per 60 minutes; and

    (d) The sewage disposal area has a slope of less than 12 percent.

  (2) The criteria and conditions for performing a site evaluation and testing for an at-grade system are:

    (a) Tests are performed in the least permeable soil horizon which is located in the upper 30 inches of soil; and

    (b) Tests are conducted with an apparatus which minimizes horizontal movement of water.

  (3) The criteria for construction of an at-grade system are:

    (a) The long axis of the trench or bed is perpendicular to the slope;

    (b) All parts of an at-grade system shall meet the horizontal separation distance in Regulation .04J of this chapter;

    (c) The linear loading rate, determined by dividing the design flow by the length of the gravel bed may not exceed 9 gallons per day per foot;

    (d) A two compartment septic tank or two tanks in series is used for pretreatment for all at-grade systems that do not require BAT;

    (e) An at-grade system uses a pressure distribution system designed to have a minimum pressure of 2 feet of head at the distal end;

    (f) The distribution system is installed level on a bed or in a series of trenches with at least 6 inches of gravel below the pipe;

    (g) The gravel is free of fines and is between 3/4 inch and 2 inches in size;

    (h) A minimum of 2 inches of gravel is placed above the distribution pipe;

    (i) The gravel is covered with a geotextile filter fabric to prevent fines from entering the gravel;

    (j) Holes in the distribution lines are free of burrs and other protrusions;

    (k) An at-grade system is covered with approximately a 12 inch layer of top soil and seeded;

    (l) An at-grade system’s side slopes may not exceed a 3 to 1 grade and shall extend a minimum distance of 5 feet from the gravel bed regardless of the natural slope of the ground;

    (m) The top of the at-grade system is crowned to allow rain water to run off; and

    (n) Settling problems are corrected when they are detected.

  (4) Criteria for Sizing an At-Grade System.

    (a) The at-grade system has an effective gravel absorption area sized to absorb effluent in accordance with the following:

      (i) 2 to 15 minutes per inch — 0.8 gallons per day per square foot;

      (ii) 16 to 30 minutes per inch — 0.6 gallons per day per square foot; and

      (iii) 31 to 60 minutes per inch — 0.4 gallons per day per square foot.

    (b) The total distance from the bottom of the trench or bed to the high water table may not be less than 4 feet except when a lesser separation is approved pursuant to Regulation .04C(3)(a) and.04D of this chapter.

    (c) A minimum 25 foot wide area downslope of the at-grade system is designated on a plan as an area protected from compaction and grading and shall remain free of structures such as buildings and driveways. If a limiting horizon is present beneath the at-grade system, this 25 foot wide area may be increased.

  (5) The criteria for preparing a site for an at-grade system area:

    (a) The site may not be compacted by earthmoving or other equipment;

    (b) The grass or other vegetation is cut and removed as much as possible;

    (c) The soil beneath the entire at-grade is plowed to a depth of 6 inches perpendicular to the slope;

    (d) Work may not be done during wet weather, during wet soil conditions, or during freezing and thawing conditions; and

    (e) Trees on the site are cut at ground level and the stumps left in place.

  (6) Certification of Installers.

    (a) At-grade systems may only be installed by a certified installer.

    (b) The Maryland Department of the Environment may award an at-grade installer certification, if the applicant has successfully completed a course of study and examination in the practice of construction of at-grade systems. The course and examination shall be approved by the Department of the Environment.

    (c) The course of study and examination shall be given at least once each year by the Department of the Environment or the Department’s designee.

    (d) An at-grade system may be installed if a certified at-grade installer is present during the construction of the at-grade system.

    (e) The certification is valid for a period of 3 years and may be renewed prior to its expiration if the installer has complied with all the applicable laws and regulations.

#### Regulation .06 Non-Conventional On-Site Sewage Disposal Systems.

*COMAR 26.04.02.06*

A. The Department of the Environment and the Approving Authority shall consider reasonable methods for correcting existing system failures and providing facilities for homes that lack indoor plumbing and will provide the best technical guidance in attempting to resolve existing pollution or public health problems. If a public sewer is not available and a conventional on-site sewage disposal system design cannot alleviate the problem or does not provide the best method of correction, the Department may approve new technology or experimental systems.

B. Innovative or alternative technology or experimental designs may also be used for new construction on existing lots of record. The use of non-conventional on-site sewage disposal systems on new construction where site limitations preclude the use of conventional on-site disposal systems shall be reviewed and approved using professional judgment. The site conditions, soil properties and ground water condition at the proposed site shall demonstrate adequate support for successful use of the proposed system as an alternative to a conventional on-site sewage disposal system.

C. Limits for Experimental Non-Conventional On-Site Sewage Disposal Systems Used in New Construction. The number of experimental non-conventional disposal systems approved for use on new construction is limited by:

  (1) The availability of personnel and equipment required for the extensive monitoring and evaluation associated with the installation of these systems; and

  (2) A system’s potential to provide data required to adequately evaluate system operation on a site experiencing one of the major restrictions for conventional on-site sewage disposal systems found in Maryland.

D. Submission of Proposals. An applicant shall submit an application to the local Approving Authority and the Department of the Environment for review and approval. The applicant shall follow the following procedures.

  (1) The Approving Authority may elect to perform the site evaluation or request the applicant to retain a professional consultant to prepare a hydrogeological report to demonstrate that the soil properties and ground water conditions at the proposed site supports the use of the proposed system. In all cases, the site evaluation should be performed with the assistance of the Water Management Administration’s Regional Consultant of the Department of the Environment. The professional consultant retained by the applicant shall have adequate experience in examining soil properties and ground water, preferably in Maryland. The applicant shall obtain any available information on the effectiveness of the proposed system in use in similar settings, and shall submit this information as well as the hydrogeological report, to both the local Approving Authority and the Department of the Environment.

  (2) Non-Conventional On-site Sewage Disposal System Design.

    (a) System design may commence if both the local Approving Authority and Maryland Department of the Environment approve of the site and grant a permit for the proposed system.

    (b) The applicant shall arrange for professional engineer, an Environmental Health Specialist, or other qualified consultant as determined by the Approving Authority, to design the proposed system.

    (c) The applicant shall submit one set of drawings to the local Approving Authority and one set to the Department of the Environment for concurrent review and approval.

E. If a non-conventional on-site sewage disposal system, requires specialized operation or extensive maintenance, the applicant shall submit a satisfactory agreement that has been signed by the applicant, the local Approving Authority and Maryland Department of the Environment, which assures proper operation and adequate maintenance. For example, the Department and the Approving Authority may require a service contract for the life of the system.

F. The applicant shall record in the land records notice that the property is served by a non-conventional sewage disposal system and that the system requires special operation and maintenance, and shall submit a copy of this notice to the Approving Authority before a permit to construct may be issued. Monitoring requirements shall be determined using professional judgment. The local Approving Authority and the Department of the Environment shall monitor these systems for not less than 2 years after construction and full use.

G. Results from monitoring and testing programs will be used by the Department of the Environment in establishing new criteria for the use and design of non-conventional on-site sewage disposal systems.

H. Non-conventional on-site sewage disposal systems may not be considered as acceptable on-site sewage disposal systems with regard to the subdivision of land pursuant to COMAR 26.04.03.

#### Regulation .07 Best Available Technology for Removal of Nitrogen (BAT).

*COMAR 26.04.02.07*

A. A person may not install, or have installed, an onsite sewage disposal system unless the onsite sewage disposal system utilizes BAT for any of the following:

  (1) New construction in the Chesapeake Bay and the Atlantic Coastal Bays Critical Areas;

  (2) A replacement system to serve a property in the Chesapeake Bay and the Atlantic Coastal Bays Critical Areas.

B. A person may not install, or have installed, for new construction or a replacement system an onsite sewage disposal system where the design flow is 5000 gallons per day or greater unless the sewage disposal system utilizes BAT or equivalent technology.

C. New construction does not include the renovation, repair, or change of use of an existing residence or other building unless:

  (1) The residence or building is located in a Critical Area; and

  (2) The Approving Authority finds that residence or building’s existing onsite sewage disposal system is not adequate to serve the proposed changes, in accordance with this chapter.

D. This regulation does not preempt a local jurisdiction's authority to require a BAT system outside the Critical Area in order to protect public health or the waters of the State.

E. The property owner shall maintain and operate all new and existing BAT systems for the life of the system through one of the following management measures:

  (1) The BAT system is operated and maintained by a responsible management entity approved by the Department, and established by the Approving Authority or local government, to assume operation and maintenance of BAT systems;

  (2) The BAT system is covered by a renewable operating permit, which is issued by or required by the Approving Authority and which includes enforcement provisions, inspections, and monitoring; or

  (3) The BAT system is operated and maintained by a certified service provider. The owner shall ensure the BAT system is inspected and has necessary operation and maintenance performed at a minimum of once per year.

F. All BAT systems sold in the State shall include both a two-year operation and maintenance contract and a two-year warranty, which shall be in effect at the point of initial installation.

G. Certified Service Providers.

  (1) The Department shall maintain a list of certified service providers.

  (2) An individual may become certified if he completes and passes a course of study on operation and maintenance of BAT systems approved by the Department. The course of study shall include instruction on how BAT systems function as well as elements on operation, maintenance, and repair of BAT systems.

  (3) The Department may revoke a certification of service provider for BAT systems for violation of these regulations.

  (4) A certified service provider shall report on inspection, operation and maintenance activities to the Department, or the Department’s designee, in a manner acceptable to the Department on a yearly basis prior to the yearly anniversary of the date of installation.

  (5) The certified service provider shall have a certificate of qualification from the manufacturer, vendor or the local representative of the BAT system being serviced.

  (6) A property owner may obtain certification as a service provider to maintain his system personally, subject to all the requirements of this regulation pertaining to operating and maintaining BAT systems.

H. A person who has completed a course of study approved by the Department for the installation of BAT, and has a certification of qualification for installing BAT systems from the manufacturer, is required to be present on the property while a BAT unit is installed.

I. Within 1 month of the completion of an installation, a person installing a BAT system shall report to the Department, or the Department’s designee, in a manner acceptable to the Department, the address and date of completion of the BAT installation and the type of BAT installed.

J. The owner of an onsite sewage disposal system with a design flow less than 1500 gpd, requiring a BAT system under §A or D of this regulation, may only install:

  (1) A BAT system that has been approved by the Department; or

  (2) An individually engineered nonproprietary BAT system if a governmental agency or their designee is the responsible management entity or issues renewable operating permits.

K. The owner of an onsite sewage disposal system with a design flow greater than 1,500 gpd, requiring a BAT system under §A, B or D of this regulation may only install a BAT system that is individually engineered for the site and approved by the Department or the Department’s designee.

L. A permitee shall construct a BAT unit in a manner and of materials acceptable to the Department and the Approving Authority.

M. If the applicant demonstrates that extremely low, variable or sporadic wastewater flow results in malfunctioning of the BAT system, the Department may grant a variance to the BAT requirement upon a request from the Approving Authority.

#### Regulation .08 Special Methods of Sewage Collection and Disposal.

*COMAR 26.04.02.08*

A. A person may not build a privy unless the privy will, in the judgment of the Department, prevent:

  (1) The soil from coming in contact with any fecal matter; and

  (2) Flies from gaining access to any fecal matter.

B. Privies shall be located and constructed so as to prevent contamination of ground and surface water. A privy shall be constructed in such a manner as to be insect and rodent free and to prevent odor nuisances. Location and construction plans shall be approved by the Approving Authority before issuing a sewage disposal construction permit.

C. Chemical toilets shall be constructed of impervious materials, vented to the outside air above the roof line of the structure housing them, and supplied with an adequate amount of the chemical agent used to reduce and deodorize the tank contents. Chemical toilets shall be used only for special term events, construction projects and in the abatement of problems.

D. When privies or chemical toilets become filled to recommended capacity, the owner shall remove the contents and dispose of the sewage in accordance with Regulation 09 of this chapter.

#### Regulation .09 Septage.

*COMAR 26.04.02.09*

A. The owner of a septic tank, seepage pit, privy, or watertight holding tank for sewage shall remove all solid and liquid contents as to prevent a nuisance or a menace to public health or comfort and shall dispose of the sewage in compliance with applicable State and local requirements.

B. Transportation.

  (1) A person engaged in the transportation of septage shall comply with §B(2) and (3) of this regulation.

  (2) Vehicle Requirements.

    (a) The owner of each vehicle used for transporting septage shall maintain the vehicle in a clean and sanitary condition; and

    (b) Each vehicle is subject to inspection by the Department or the Department’s designee.

  (3) The owner shall comply with following vehicle identification requirements:

    (a) The name of the septage hauler is legibly lettered on both sides of each vehicle used for transporting septage, and the lettering is at least 3 inches in height.

    (b) The words “Sewage Only” is lettered on the rear of each vehicle and shall be at least 4 inches in height.

#### Regulation .10 Variances.

*COMAR 26.04.02.10*

The Department of the Environment may grant variances to area, well siting, distances and slope requirements of these regulations upon the recommendation of the Approving Authority provided that the public health is protected.

#### Regulation .11 Appeal.

*COMAR 26.04.02.11*

A person aggrieved by a final decision of the Approving Authority in a contested case has the right to have the decision reviewed in accordance with the provisions of the Administrative Procedure Act and other applicable statutes and regulations. All appeals shall be filed with the Director, Water Management Administration, within 30 days after notification of the final decision by the Approving Authority.

#### Regulation .12 Penalty.

*COMAR 26.04.02.12*

A person who violates any provision of these regulations shall, upon conviction, be guilty of a misdemeanor and subject to a fine of not less than $50 and not more than $100 for each offense. Each day’s failure to comply with any provision of these regulations shall constitute a separate violation. The Approving Authority may also seek injunctive relief to enforce provisions of this regulation by initiating appropriate civil proceedings.

#### Regulation .13 Map.

*COMAR 26.04.02.13*

### Chapter 03 — Water Supply and Sewerage Systems in the Subdivision of Land in Maryland

**Authority:** Environment Article, §9-506, Annotated Code of Maryland

**Administrative History:** Effective date: March 3, 1972

**Administrative History:** Regulation .01P amended effective December 14, 1979 (6:25 Md. R. 1981)

**Administrative History:** Regulation .02K amended effective February 24, 1986 (13:4 Md. R. 396)

**Administrative History:** Regulation .04-1 adopted effective February 24, 1986 (13:4 Md. R. 396)

**Administrative History:** Regulations .04-1—.07 recodified as Regulations .05—.08

**Administrative History:** Chapter recodified from COMAR 10.17.03 to COMAR 26.04.03

**Administrative History:** Preface amended and codified as Regulation .01 and Regulation .01 amended and recodified as Regulation .01-1 effective February 10, 1997 (24:3 Md. R. 190)

**Administrative History:** Regulation .06 repealed and new Regulation .06 adopted effective October 26, 1992 (19:21 Md. R. 1894)

#### Regulation .01 Purpose.

*COMAR 26.04.03.01*

A. It is the intent of this chapter to ensure that subdivisions developed in the State are served by an adequate community water supply and community sewerage system or, when developed in the absence of either a community water supply or community sewerage system, provide for an adequate and safe supply of drinking water and for the safe disposal of sewerage on each building site until such time as community water and sewerage facilities are made available.

B. This chapter also applies to mobile home parks constructed in the absence of community water or sewer systems.

#### Regulation .01-1 Definitions.

*COMAR 26.04.03.01-1*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Approving Authority” means the Secretary of the Environment or his designee.

  (2) “Community sewerage system” means any system, whether publicly or privately owned, serving two or more individual lots for the collection and disposal of sewage or industrial wastes of a liquid nature, including various devices for the treatment of the sewage and industrial wastes.

  (3) “Community water supply system” means a source of water and a distribution system, including treatment facilities and storage facilities, whether publicly or privately owned, serving two or more individual lots.

  (4) “County plan” means a comprehensive plan and all amendments and revisions of it for the provision of adequate water supply systems and sewerage and solid waste disposal systems and solid waste acceptance facilities throughout the county to include all towns, municipal corporations, and sanitary districts in it.

  (5) “Developer or subdivider” means a person, persons, partnership, firm, corporation, or cooperative enterprise undertaking or participating in the development of a subdivision.

  (6) “Fifty-year flood plain” means that area which would be inundated by storm water runoff equivalent to that which would occur with a rainfall of 50-year frequency, and is designated in the soil survey for a particular jurisdiction and to include the additional drainage which would accumulate from developed areas above the site under consideration.

  (7) “Individual sewerage system” means a single system of sewers and piping, treatment tanks, or other facilities serving only a single lot and disposing of sewage or individual wastes of a liquid nature, in whole or in part, on or in the soil of the property, into any waters of this State, or by other methods.

  (8) “Individual water supply system” means a single system of piping, pumps, tanks, or other facilities utilizing a source of ground or surface water to supply only a single lot.

  (9) “Lot” means a part of a subdivision or a parcel of land used as a building site or intended to be used for building purposes, whether immediate or future, which would not be further subdivided.

  (10) “Lot area” means the total usable area which is included within the rear, side, and front lot lines but to exclude those areas:

    (a) Covered by mean high tide;

    (b) In an existing or proposed public road; and

    (c) Having land sloped exceeding 25 percent and areas located within the 50-year flood plain.

  (11) “Lot width” means the horizontal distance between the side boundaries of the lot as measured at the:

    (a) Line which forms the roadside boundary of the lot;

    (b) Building setback line; or

    (c) Sewage disposal area, if a minimum 20-foot wide area extending from the roadway to the individual water supply and sewage disposal area is delineated for access to those systems.

  (12) “Minimum ownership” means the minimum ownership area which may be required to be titled and recorded in the name of a person or persons, partnership, firm, corporation, or cooperative enterprise when community water or sewerage systems are not available. More than one lot may be included in the minimum ownership area.

  (13) “Preliminary plan” means a drawing of a proposed subdivision containing information as required by these regulations for review by the Approving Authority.

  (14) “Record plat” means a completed drawing of the subdivision which contains all pertinent information required by these regulations and any other data necessary for recording plats.

  (15) “Soil survey” means the scientific inventory consisting of soil maps, soil unit descriptions, classification in the National System, and interpretations for use, as conducted by the National Cooperative Soil Survey by the U.S. Department of Agriculture, Soil Conservation Service, in cooperation with the Maryland Agricultural Experiment Station.

  (16) “Subdivision” means the division of a single tract, tracts, or other parcels of land, or a part of it, into two or more lots, for the purpose, whether immediate or future, of sale or of building development. Subdivision includes a change in street lines or lot lines, unless the Approving Authority determines that the change will not adversely affect the safety and adequacy of well sites or sewage disposal areas of the subject lot or adjacent lots. However, division of land for agricultural purposes into parcels of more than 3 acres, not involving any new street or easement of access, may not be included within the meaning of “subdivision”.

#### Regulation .02 Submission of Plans and Procedures for Securing Approval.

*COMAR 26.04.03.02*

A. Any developer or subdivider contemplating the subdivision of land, before preparation of a preliminary plan, may request a review by the Approving Authority and other agencies having jurisdiction to secure information concerning general requirements in the area in which the proposed subdivision is to be located. If individual water supply or individual sewerage systems are contemplated, rejection or tentative approval may be secured at this time by submitting a boundary plat of the proposed subdivision and by drilling test wells and performing soil percolation tests on the entire tract in the numbers and at the locations as the Approving Authority may require, but not less than one percolation test per acre. The soil percolation tests should be performed only at the time of year when the highest water table can be expected as indicated for a given area by the soil survey. The results of the percolation tests shall be considered along with available data on the general topography, soil classifications, surface and subsurface drainage conditions, elevation of the water table, the history of failures of sewerage systems and individual water supplies in adjacent areas, and the extent of sewerage systems and individual water supply development in the adjacent area. The development of a subdivision may not be considered where, in the opinion of the Approving Authority, the infiltration of individual sewerage system wastes may result in the contamination of the ground water.

B. Application for approval of a subdivision shall include a preliminary plan and any other forms required by the Approving Authority. These forms shall include a description of the methods proposed for providing water supply and sewage disposal. Where individual water supply or sewerage systems are contemplated, the Approving Authority shall require at least one percolation test on each lot at the approximate disposal site, and any other tests as may be required, to be conducted under the supervision of the Approving Authority, with the resultant data becoming part of the application. The soil percolation test sites will be shown on the preliminary plan.

C. In those areas where the soil survey indicates moderate or severe restriction due to seasonal high water tables, the percolation tests shall be performed at the time of year when the highest water table can be expected as indicated for a given area by the soil survey. The tests shall be performed at such elevation as to leave undisturbed soil for the underground sewage disposal area after grading is completed. The Approving Authority shall consider the general topography of the area, soil classifications, surface and subsurface drainage conditions, elevation of the ground water table, the history of failures of sewerage systems, and well water supply development in the adjacent area.

D. The preliminary plan of a subdivision shall be clearly drawn to scale and shall show street arrangements, building lines, right-of-ways, utility and drainage easements, lot dimensions, and lot area. All lots shall be numbered. Topography shall be shown on 2-foot contours, provided, however, that if ground slope is sufficiently steep for 5-foot contours to show the surface configuration, the Approving Authority may permit use of the larger contour interval. Smaller contour intervals may be required where 2-foot contours do not indicate existing surface conditions. A general site location map shall be included with the preliminary plan for reference identification of the area. At least two white prints of the preliminary plan shall be submitted to the Approving Authority.

E. If a community water supply or community sewerage system is to be used in the development of any new subdivision, the record plat shall contain a statement, signed by the Approving Authority, to the effect that use of the community water supply or community sewerage system is in conformance with the county plan. The record plat shall also contain a statement, signed by the owner, that the facilities will be available to all lots offered for sale.

F. If a community water supply or community sewerage system is to be constructed to serve any new subdivision, the record plat shall contain a statement, in addition to the above, signed by the owner, to the effect that plans for the facilities, including any necessary point of discharge, have been approved by the Department of the Environment. The Approving Authority shall require of the owner any assurance he deems necessary that the facilities will be maintained and operated so as to provide for a continuous and acceptable water supply or sewage disposal service to the properties served.

G. If individual water supplies or individual sewage systems are to be used to serve any new subdivision, the preliminary plan shall show the proposed location of water supply wells, sewage disposal areas, location of percolation tests, and shall include the location of existing wells and sewerage systems located within 100 feet of the proposed subdivision boundaries.

H. All lots in a subdivision proposed for uses other than single family dwellings, such as churches, public utilities, shopping centers, multi-family dwellings and buildings, general commercial or industrial buildings, shall be designated for that use on the preliminary plan, together with scale dimensions and approximate area of each site. Where individual water supply or individual sewerage systems are proposed for the facilities, these sites shall be planned with due regard for the size of the system that will be required and the necessary land area which shall be provided for the installation and replacement of the systems.

I. Within 30 days after completion of the required tests and after consultation with other official agencies and review of all pertinent data, if the Approving Authority is satisfied that the site is suitable for the proposed water supply and sewage disposal installations, an approval to proceed will be issued. Lots may not be sold for purposes of construction or construction begun in any subdivision without the approval of the Approving Authority.

J. If a record plat is not filed within 6 months of the approval of the preliminary plan, the approved preliminary plan shall become null and void, provided, however, that extension may be granted at the discretion of the Approving Authority upon written request for not more than 12 months following the termination date of the preliminary plan.

K. A subdivision plat may not be recorded in the land record offices of this State unless it bears the signature of the Secretary or the Secretary's designee.

#### Regulation .03 Minimum Ownership.

*COMAR 26.04.03.03*

A. In all subdivisions, individual water supply and sewage disposal facilities may be permitted when in conformance with the county plan and where the following acceptable physical conditions are present: topography, soil types, surface and subsurface drainage, and the absence of a fluctuating high water table. These determinations shall be based upon available information which shall include the history of individual water supply and individual sewerage system failures in adjacent areas, extent of existing individual water supplies and sewerage systems, information obtained from the soil survey for the jurisdiction, standard percolation tests, available geologic and hydrologic data and any other information which may be available. Minimum ownership of property shall be determined in accordance with the following criteria:

  (1) For each dwelling unit a minimum area of 10,000 square feet exclusive of buildings, easements, right-of-ways, and other permanent or physical objects, shall be provided for the subsurface disposal of sewage.

  (2) Minimum ownership shall be determined in accordance with provisions of Regulation .02A, B, and C of this chapter, and the following table:

  (3) Where soil percolation test results indicate readings of less than 1 minute for a 1 inch drop, the approval or rejection of the area for subdivision purposes shall be at the discretion of the Approving Authority.

  (4) Percolation tests shall be made in sufficient number and at the locations specified by the Approving Authority. Areas included in the table are subject to exclusions designated in Regulation .01-1B(10) of this chapter. Minor variations in lot widths and total area given in the table not exceeding 5 percent of the table values may be allowed when, in the opinion of the Approving Authority, conditions warrant these variations.

  (5) Where community sewerage is available and individual water supply systems must be utilized, the minimum lot area shall be 10,000 square feet with a minimum of 75 feet. In this situation the lot area may include areas having land slopes exceeding 25 percent.

  (6) In subdivisions where individual water supplies and individual sewerage facilities are authorized, the developer may subdivide the property in a manner which will provide for smaller lots than determined by the table in §A(2) of this regulation. However, a notation shall be made on the preliminary plan and on the record plat that the minimum ownership shall be equal to the minimum width and minimum area established by the table until community sewerage and water have been made available. Not more than one principal building may be erected or constructed on a lot, or lots, contained in the minimum ownership area as established by the table until community sewerage has been made available.

Over 30 minutes unacceptable

B. In subdivisions where individual water supplies or individual sewerage systems are proposed, if the Approving Authority finds that the lot sizes permitted in §A(2) of this regulation will not assure the safety of individual water supplies or the continued functioning of individual sewerage systems, he shall reject the subdivision plan or require its amendment to provide increased lot sizes. In making the amendments, the Approving Authority shall include the following factors along with any others which may be given:

  (1) Topography;

  (2) Soil type and condition;

  (3) Surface and subsurface drainage;

  (4) Water table level;

  (5) History of failures of individual sewerage systems in adjacent areas; and

  (6) Extent of individual water supply or individual sewerage system development in adjacent areas.

C. In subdivisions near or adjacent to existing or proposed potable water supply reservoirs, a lot located within 2,500 feet of the normal water level, measured horizontally, may not have installed an individual sewerage system unless it has an area of not less than 43,560 square feet with a minimum width of 175 feet. In addition, no part of the sewage disposal facility may be closer to the normal water level, measured horizontally, than is given below:

Normal water level shall be the elevation of the spillway crest. These limitations may not apply to areas below the dam forming the reservoir.

D. In subdivisions near or adjacent to streams used as potable water supply sources, a lot location within 5,000 feet upstream from the water intake may not use an individual sewerage facility unless it has an area of not less than 43,560 square feet with a minimum width of 175 feet. In addition, no part of the sewage disposal facility may be closer to the stream bank than is given below:

E. The lot sizes designated in §A, of this regulation, may not apply when community water supply and community sewerage facilities are available or under construction contract. When these community utilities are used, lot size requirements shall be those designated by the planning and zoning authority, or other authorities or agencies having jurisdiction in the area. Individual water supply and sewerage systems may be provided on an interim basis as authorized by the county plan.

#### Regulation .04 Approval of Community Water Supply and Community Sewerage Installations.

*COMAR 26.04.03.04*

A. Where the installation of a community water supply or a community sewerage system, or both, is to be provided, plans for the installation shall be subject to the approval of the Approving Authority and the Department of the Environment.

B. Where a community water supply system or community sewerage system, or both, is proposed for a subdivision and is to be operated by an entity such as an individual, partnership, or a utility corporation rather than a public agency, the operating entity shall comply with the regulations of the Public Service Commission (Article 78, Annotated Code of Maryland) and shall be responsible for operation and maintenance of the system. In all cases the operating entity shall be approved by the Approving Authority and the Department of the Environment. This approval shall be conditioned upon the financial and ownership requirements as are found necessary to assure continued, efficient, and effective operation of the system.

#### Regulation .05 Variances.

*COMAR 26.04.03.05*

The Department of the Environment may grant minor variances to area, well siting, distance, width, and slope requirements of these regulations, if lot configuration and physical circumstances so require, upon the recommendation of the Approving Authority provided that the public health is protected.

#### Regulation .06 Appeal.

*COMAR 26.04.03.06*

A person aggrieved by a final decision of the Approving Authority in a contested case has the right to have the decision reviewed in accordance with the provisions of the Administrative Procedure Act and other applicable statutes and regulations. All appeals shall be filed with the Director, Water Management Administration, within 30 days after notification of the final decision by the Approving Authority.

#### Regulation .07 Penalty.

*COMAR 26.04.03.07*

Any person who violates the provision of any of these regulations shall, upon conviction, be guilty of a misdemeanor and shall be punished by a fine of not less than $50 and no more than $100 for each offense and such other penalties as may be provided by law.

#### Regulation .08 Effective Date.

*COMAR 26.04.03.08*

Any preliminary plan or record plat of a subdivision which has been submitted to the Approving Authority before the date of adoption may not be required to comply with these regulations, if final approval and recordation, when required by law, is completed no later than 6 months from the date of adoption.

### Chapter 04 — Well Construction

**Authority:** Environment Article, §§9-1305 and 9-1305.1, Annotated Code of Maryland

**Administrative History:** Effective date: November 28, 1980 (7:24 Md. R. 2257)

**Administrative History:** Regulations .02J and .07B, C, D, G, J, and N amended effective March 1, 1982 (9:4 Md. R. 331)

**Administrative History:** Regulations .07Q and .09D adopted effective August 31, 1981 (8:17 Md. R. 1420)

**Administrative History:** Regulation .09C and D amended as an emergency provision effective May 26, 1983 (10:12 Md. R. 1070), emergency status expired September 26, 1983

**Administrative History:** Regulation .09C and D amended and E adopted effective December 5, 1983 (10:24 Md. R. 2189)

**Administrative History:** Map recodified as Regulation .13

**Administrative History:** Chapter recodified from COMAR 10.17.13 to COMAR 26.04.04

**Administrative History:** Regulation .07D amended as an emergency provision effective November 5, 2007 (34:26 Md. R. 2260); emergency status expired May 3, 2008

**Administrative History:** Regulation .09B amended effective September 2, 2002 (29:17 Md. R. 1382)

**Administrative History:** Regulation .09B-1, F, and G adopted effective November 25, 1991 (18:23 Md. R. 2493)

**Administrative History:** Regulation .12D amended effective October 26, 1992 (19:21 Md. R. 1894)

**Administrative History:** Regulation .12F amended effective November 25, 1991 (18:23 Md. R. 2493)

**Administrative History:** Regulations .01—.13 repealed and new Regulations .01—.39 adopted effective January 19, 2015 (42:01 Md. R. 19)

#### Regulation .01 Purpose and Administrative Responsibilities.

*COMAR 26.04.04.01*

A. Purpose. This chapter establishes the standards and procedures applicable to the construction, abandonment and maintenance of wells in Maryland.

B. Pre-emption of Local Authority. In accordance with Environment Article, §9-1304, Annotated Code of Maryland, the regulations of this chapter are the only procedures and standards applicable to construction of wells.

#### Regulation .02 Definitions.

*COMAR 26.04.04.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Abandonment” means to discontinue the use of a well permanently.

  (2) “Annular space” means the space between casings or between the casing and borehole.

  (3) “Approving Authority” means the Secretary of the Environment or the Secretary’s designee.

  (4) “Aquifer” means a formation, group of formations, or part of a formation that contains sufficient saturated permeable material to yield significant quantities of water to a well.

  (5) Bedrock.

    (a) “Bedrock” means solid rock that underlies gravel, soil, or other superficial material.

    (b) “Bedrock” also means in absolute terms material that a 6-inch auger, equipped with carbide cutting teeth, penetrates at a rate of less than 1 inch in 3 minutes.

  (6) “Bentonite” means a colloidal clay, composed of at least 85 percent sodium montmorillonite.

  (7) “Bored well” means any excavation made using power driven equipment where the drill consists of a continuous spiral of metal solid or hollow stem auger or bucket attached to a shaft and where the excavated material is brought to the ground surface by upward movement along the surface of the spiral or removed by lifting the spiral or bucket.

  (8) “Borehole” means a hole drilled or bored into the earth, into which casing, screen, liners, grout, gravel pack and other physical objects that may be installed to construct a well. The generalized term includes the excavations for dug, driven, and jetted wells.

  (9) “Casing” means any metal, plastic or other pipe installed from the surface to either the bedrock or screened aquifer in the borehole.

  (10) “Cathodic protection well” means a well constructed to minimize the electrolytic corrosion of metallic equipment that comes in contact with the ground.

  (11) “Cluster” means a group of wells that are constructed for the same use on the same property.

  (12) “Confined aquifer” means an aquifer that is bounded above and below by beds of distinctly lower permeability than that of the aquifer itself and contains ground water under pressure greater than that of the atmosphere. This term is synonymous with the term “artesian aquifer”.

  (13) “Confining layer” means a body of impermeable or of distinctly less permeable material stratigraphically adjacent to one or more aquifers.

  (14) “Department” means the Department of the Environment.

  (15) “Development” means the process whereby a well is pumped, surged, bailed, airlifted, swabbed, or jetted to remove any material that may be blocking the well screen or fractures within the borehole.

  (16) “Disinfection” means the inactivation or removal of those agents that may cause infection.

  (17) “Domestic well” means a well used to supply potable water to one or more dwellings.

  (18) “Driven well” means any well in which the casing is manually or mechanically driven into the ground with little or no material excavated during well construction.

  (19) “Dug well” means any well made using only hand tools.

  (20) “Emergency condition” means:

    (a) The lack of water poses an immediate and significant danger to the health and welfare of persons, livestock, domestic fowl, or crops; or

    (b) The Approving Authority has determined that other exceptional circumstances exist.

  (21) “Geothermal well” means a well used to transfer heat to or from the ground or ground water.

  (22) “Grout” or “grouting material” means a stable, impervious bonding material that is reasonably free of shrinkage and is capable of providing a watertight seal in the annular space throughout the depth required.

  (23) “Hydrofracturing” means a method of developing or reworking an existing well whereby water is pumped down the borehole under pressure in an attempt to increase the well's yield.

  (24) “Industrial well” means a well used to supply water to an industrial or commercial facility for use in processing, washing, or manufacturing of goods and services.

  (25) “Injection well” means any hole made in the ground to inject fluids into any underground formation from which ground water may be produced.

  (26) “Irrigation well” means a well that is used for watering crops other than residential lawns and gardens.

  (27) “Jetted well” means any well made using water under pressure as a means of drilling or penetrating the ground.

  (28) “Jetted-driven well” means a jetted well where the diameter of the excavation is less than the diameter of the well casing used and the well casing is driven into the excavation.

  (29) “Liner” means a pipe that is installed inside a completed and cased well or borehole to:

    (a) Protect the integrity of the borehole;

    (b) Seal off zones of undesirable quality;

    (c) Repair compromised casing or;

    (d) Repair compromised screens.

  (30) “Monitoring well” means a permanent well used for:

    (a) Determining the water table;

    (b) Determining the potentiometric surface of an aquifer;

    (c) Obtaining a ground water sample; or

    (d) Ground water withdrawal for remediation purposes.

  (31) “Non-potable well” means a well that is not used or intended to be used as a drinking water supply.

  (32) “Person” means the federal government, the State, any county, municipal corporation, or other political subdivision of the State, or any of their units, an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation, or any other entity.

  (33) “Piezometer” means a nonpumping well of a temporary nature to measure water tables.

  (34) “Pitless adapter” means a device designed for attachment to the exterior of a well casing and equipped with lateral connections designed for the attachment of pipes leading from the well for purposes of conducting water to a distribution system and allowing extension of well casing above grade.

  (35) “Pitless unit” means a device designed to replace a section of casing with lateral connections designed for the attachment of pipes leading from the well for the purposes of conducting water to a distribution system and allowing extension of well casing above grade.

  (36) “Pollution” means any contamination or other alteration of the physical, chemical, or biological properties of any waters of the State, including a change in temperature, taste, color, turbidity, or odor of the waters, or the discharge or deposit of any organic matter, harmful organism, or liquid, gaseous, solid, radioactive, or other substance into any waters of this State that will render the waters harmful or detrimental to:

    (a) Public health, safety, or welfare;

    (b) Domestic commercial, industrial, agricultural, recreational, or other legitimate beneficial uses;

    (c) Livestock, wild animals, or birds; or

    (d) Fish or other aquatic life.

  (37) “Potable water” means water that is free from impurities in amounts sufficient to cause disease or harmful physiological effects and that conforms with the maximum contaminant levels as adopted by the United States Environmental Protection Agency and listed in 40 CFR §141, Subpart G as amended.

  (38) “Public well” means a well that is used to supply water to a public water system as defined in COMAR 26.04.01.

  (39) “Replacement well” means a well that is to replace any existing water supply.

  (40) Reworking.

    (a) “Reworking” means the rehabilitation or modification of a well.

    (b) “Reworking” includes but is not limited to:

      (i) Removing and replacing well screen;

      (ii) Placing a new screen in a well;

      (iii) Placing liner pipe in a well; and

      (iv) Redevelopment of a well.

    (c) “Reworking” does not include:

      (i) Increasing the diameter of a well; or

      (ii) Deepening of a well.

  (41) “Standby well” means a water supply well that is a backup to the primarily used water supply well which meets the construction and potability standards of this chapter.

  (42) “Test well” means a well used for the purpose of exploring for ground water for a water supply and used to determine aquifer properties.

  (43) “Unconfined aquifer” means an aquifer that is not bounded above by a bed of distinctly lower permeability than that of the aquifer itself and contains ground water under pressure approximately equal to that of the atmosphere. This term is synonymous with the term “water table aquifer”.

  (44) “Variance” means a deviation from the requirements of these regulations granted by the Department according to the provisions of Regulation .37.

  (45) “Water supply well” means every type of well, except monitoring and closed loop geothermal wells.

  (46) “Well” means a hole made in the ground:

    (a) To explore for ground water;

    (b) To obtain or monitor ground water;

    (c) To inject water into any underground formation from which ground water may be produced; or

    (d) To transfer heat to or from the ground or ground water, if the hole:

      (i) Extends more than 20 feet below the surface of the ground; and

      (ii) Is not a well for obtaining geothermal resources under Environment Article, §5-601, Annotated Code of Maryland.

#### Regulation .03 Application for a Well Construction Permit.

*COMAR 26.04.04.03*

A. An application for a well construction permit shall be made on the forms provided by the Approving Authority.

B. A separate application shall be made for each well, except that a single application may be made for a cluster of wells under one of the following conditions:

  (1) The cluster is for closed loop geothermal or dewatering wells and the maximum number of wells drilled per application is 20; or

  (2) The cluster is for piezometers used in spill control investigations and other groundwater investigations required by the Department.

C. If piezometers are converted to permanent monitoring wells, a tag must be obtained for each one.

D. An application shall be legible and complete. An illegible or incomplete application may be returned to the applicant with a statement of the reason for rejection.

E. An application for a well construction permit shall be submitted to the Approving Authority for review, except for:

  (1) An application for a test well for a public water supply system or a public well, which shall be submitted to the Department through the Approving Authority; and

  (2) An application for a water supply well for use on a dairy farm, which shall be submitted to the Approving Authority who shall submit to the Maryland Department of Health for review prior to issuance.

F. An application for an injection well shall be submitted to the Department through the Approving Authority.

G. An application for dewatering wells shall be made to the Approving Authority if:

  (1) The wells will be deeper than 30 feet;

  (2) The well will be in use for greater than 30 days; or

  (3) The well will contain pumping equipment.

H. An application for a cluster of wells shall include a drawing indicating the location of each proposed well on the property.

I. For a well permitted as part of a cluster that is proposed to be converted to a permanent monitoring well a separate application shall be made.

J. The Approving Authority may request additional information deemed necessary to consider the application.

#### Regulation .04 Review and Approval of an Application for a Well Construction Permit.

*COMAR 26.04.04.04*

A. Application Review and Approval.

  (1) The Approving Authority shall review the application for completeness and notify the applicant of any additional information needed.

  (2) The Approving Authority shall approve the application if:

    (a) The application is complete;

    (b) The proposed well meets the criteria of §B of this regulation;

    (c) The proposed source or sources of drilling water meets the requirements of this chapter;

    (d) The Approving Authority has received the required well permit fee, if applicable; and

    (e) One of the following conditions regarding water appropriation or use permitting is met:

      (i) An application for an appropriation or use permit has been submitted, if required, in accordance with applicable State law and regulation; or

      (ii) A notice of exemption, if required under Environment Article, §5-502, Annotated Code of Maryland, has been made with the Department.

  (3) If it approves the application, the Approving Authority shall sign the application and issue a well construction permit.

  (4) An application that has been disapproved by the Approving Authority shall be returned to the applicant with a statement of the reasons for disapproval.

B. Criteria for Approval.

  (1) A proposed well construction shall be in accordance with the applicable Master Water and Sewer Plan, promulgated in accordance with Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland.

  (2) A proposed well location for a water supply or open loop geothermal well shall satisfy the following minimum horizontal distance requirements:

    (a) 10 feet from a property line;

    (b) 15 feet from a road or dedicated right-of-way;

    (c) 30 feet from a building foundation;

    (d) 100 feet from identifiable sources of contamination and designated subsurface sewage disposal areas if the proposed well will utilize an unconfined aquifer as a water supply source;

    (e) 50 feet from identifiable sources of contamination and designated subsurface sewage disposal areas if the proposed well will utilize a confined aquifer as a water supply source; and

    (f) Except as provided in §B(3) of this regulation, 50 feet from any sewage gravity or force main.

  (3) If a force main is constructed of materials approved by the Department and has passed a leakage test in accordance with the recommended standards for sewage works, and, if required by the Approving Authority, concrete encasement of sewage force main joints have been emplaced within a 50-foot radius of the proposed well, then the distance from any force main may be 10 feet.

  (4) A proposed well location for a closed loop geothermal well shall satisfy the following minimum distance requirements:

    (a) 10 feet from a property line;

    (b) 15 feet from a road or dedicated right-of-way:

    (c) 50 feet from potential sources of contamination: and

    (d) 50 feet from any gravity sewer line, except the distance of removal shall be at least 10 feet when the sewer is constructed of:

      (i) Cast iron pipe with either water-tight lead caulked joints or joints fitted with neoprene gaskets;

      (ii) Solvent welded Scheduled 40 (or SDR equivalent) or better polyvinyl chloride (PVC) pipe; or

      (iii) Thermally welded high density polyethylene (HDPE) pipe.

  (5) A water supply well may not be located within or under any building other than a separate structure constructed specifically for the housing of pumping equipment.

  (6) The Approving Authority may approve a monitoring or closed loop geothermal well location within a building, if unobstructed access to the well is provided.

  (7) All wells shall be located so as to be accessible for cleaning, treatment, repair, testing, inspection, and other requirements that may be necessary.

  (8) The location of a water supply well shall be in accordance with any conditions on well spacing that may be imposed by the Department through an appropriation or use permit.

C. Notwithstanding satisfaction of the criteria of this regulation, the Approving Authority, before approving a permit, shall determine the acceptability of a proposed well location with regard to all identifiable sources of contamination, topography, surface drainage, easements, and ground water conditions.

D. Upon written request, deviation from the distance criteria may be permitted by the Approving Authority without a variance approved by the Department per Regulation .37 of this chapter for a domestic well constructed on an individual lot in those cases where the property owner has initiated or completed construction of the residential dwelling for that lot in compliance with all other State, county, or municipal laws and regulations. The request shall describe the need for a deviation and shall contain a statement signed by the owner confirming the basis for a deviation.

#### Regulation .05 Issuance of Well Construction Permits.

*COMAR 26.04.04.05*

A. A well may not be constructed until the Approving Authority has issued a permit to drill the well, except as provided in Regulation .06 of this chapter.

B. The Approving Authority may issue a well construction permit only to a person licensed by the State Board of Well Drillers as a master well driller.

C. Except as provided in Regulation .06 of this chapter, the Approving Authority may issue a well construction permit after receipt and review of a completed application submitted in accordance with this chapter.

D. The Approving Authority may impose special conditions on the permit that are necessary to protect the public health and environment.

E. The Approving Authority shall issue a separate permit for each well, except that the Approving Authority may permit a well cluster under one permit.

F. The permit, if necessary, authorizes the construction of a temporary well to supply drilling water for construction of the permitted well. The temporary well shall be sealed within 48 hours of completion of construction of the permitted well, in accordance with this chapter.

G. Written Permit and Well Identification Tag.

  (1) Issuance of a well construction permit shall consist of a written permit and a durable well identification tag.

  (2) Written Permit.

    (a) The permit shall state pertinent information and requirements applicable to the approved well.

    (b) A permit shall be valid for a period of 12 months from the date of issuance by the Approving Authority.

    (c) Upon written request by the well driller, a permit may be extended in 6-month increments by the Approving Authority.

  (3) Well Identification Tag.

    (a) The well driller, immediately after grouting the well, shall permanently attach to the well the identification tag furnished by the Approving Authority.

    (b) The identification tag shall be permanently fastened to the well casing above the finished grade by means of a stainless steel band.

    (c) For wells where a pitless adapter or pitless unit is not used, the identification tag shall be permanently attached or fastened to a concrete base where this base completely surrounds the casing.

    (d) For closed loop geothermal wells, the well identification tag shall be supplied to the owner.

    (e) If the identification tag is removed from the well during later work on the well, it shall be replaced in the proper position and manner by the person who removes it.

#### Regulation .06 Emergency Procedure to Obtain a Well Construction Permit.

*COMAR 26.04.04.06*

A. The Approving Authority may permit emergency construction of wells for the conditions specified in Regulation .02B(20) of this chapter or for the following types of wells:

  (1) Monitoring wells at pollution spill sites to control the spread of the pollution as required by the Department; or

  (2) Geothermal wells if a loss of heating or cooling poses a health threat or significant loss of goods or livestock.

B. If an emergency condition occurs during normal business hours, the Approving Authority may grant an emergency permit in accordance with the following procedures:

  (1) The existence of an emergency condition shall be verified by the Approving Authority;

  (2) If the emergency is verified to the satisfaction of the Approving Authority, the Approving Authority may issue a verbal emergency permit number to a master well driller;

  (3) The permit number shall be in the possession of the permittee during construction of the well, and shall constitute authorization to construct the well;

  (4) The emergency permit shall become null and void if well construction is not started within 2 days after issuance of the emergency permit number; and

  (5) Within 3 business days after the start of construction of the well, the master well driller shall submit to the Approving Authority a completed, written application, including the emergency permit number.

C. If an emergency condition occurs during nonbusiness hours:

  (1) The master well driller shall attempt to contact the Approving Authority through the Approving Authority's nonbusiness-hours emergency telephone number;

  (2) If the Approving Authority cannot be contacted, then the well may be constructed without receiving a verbal permit number provided that not later than the first business day following the start of well construction activity, an application is submitted to the Approving Authority; and

  (3) The Approving Authority shall verify the emergency condition before the issuance of a permit.

D. Any well constructed under an emergency condition shall be constructed in conformance with all applicable laws and regulations of the Approving Authority.

E. If the new well location is found to be unacceptable by the Approving Authority, the well shall be sealed in accordance with this chapter.

#### Regulation .07 Verbal Authorization to Construct a Well.

*COMAR 26.04.04.07*

A. The Approving Authority may grant verbal authorization to a master well driller to construct a well when:

  (1) The application has been submitted and approved by the Approving Authority; or

  (2) The authorization is for an emergency well.

B. Verbal Authorization and Permit Number.

  (1) Verbal authorization shall be accompanied by the issuance of a well construction permit number.

  (2) Upon request by Approving Authority personnel, the well driller shall supply the well construction permit number for the well being drilled.

C. Verbal authorization may not be granted if the well is to provide water for a use requiring a permit to appropriate or use water, and this permit has not been obtained or is not valid.

D. Any well constructed with verbal authorization shall be constructed in conformance with all applicable laws and the regulations of this chapter.

#### Regulation .08 Transfer of Permit.

*COMAR 26.04.04.08*

A. A well construction permit may be transferred from the permittee to another master well driller provided:

  (1) The well has not been completed;

  (2) The permit has not expired;

  (3) The permittee obtains the Approving Authority's approval to transfer the permit; and

  (4) The transferee notifies the Approving Authority in writing of their intention to accept the permit.

B. The transferee shall be responsible for complying with all laws and regulations applicable to the construction of the well.

C. The transferee may not begin well construction before obtaining the permit and well tag from the permittee and receiving the approval of the transfer from the Approving Authority.

D. The Approving Authority shall maintain a separate log of permit transfers.

#### Regulation .09 Permit Invalidation.

*COMAR 26.04.04.09*

A. A permit is invalid if, prior to well completion, the Maryland Board of Well Drillers suspends or revokes the license of the master well driller permit holder.

B. The Approving Authority may invalidate a permit after a finding that information submitted to support the application was inaccurate.

C. The Approving Authority may invalidate a permit after a finding that information submitted to support the application is no longer applicable to the site.

D. The Approving Authority shall notify the permittee that a permit has been invalidated.

#### Regulation .10 Permittee's Responsibilities.

*COMAR 26.04.04.10*

A. The master well driller to whom a well construction permit is issued is responsible for construction of the well in accordance with the permit and applicable laws and regulations.

B. All other persons working on a well or potable water supply system, including but not limited to a pump installer, a water-conditioner installer, an electrician, or a master plumber, also shall be responsible for their phase of the work and its conformance to applicable laws and regulations.

C. Only the permittee, or his licensed employee or licensed agent, is authorized to construct the well.

D. The permittee, or his licensed employee or licensed agent, shall be present on-site to supervise the work of constructing a well.

E. Permit information shall be available on-site during construction of the well and made available upon request to the Approving Authority.

F. The permittee, upon completion of the well, shall prepare, sign, and submit to the Approving Authority a legible well completion report. The requirements for well completion reports are set forth in Regulation .29 of this chapter.

#### Regulation .11 Permits for Reworked and Deepened Wells.

*COMAR 26.04.04.11*

A. A well construction permit is not required if an existing well requires only reworking or repairing, and not deepening.

B. If reworking the well includes hydrofracturing, the well driller shall submit a Hydrofracture of Well Report within 45 days after completion of the work as required in Regulation .28 of this chapter.

C. If an existing well requires deepening, and the well identification number is verifiable by means of the well identification tag or prior permit, a well construction permit is not required except in areas of known water quality problems, however, upon completion, the well driller shall submit to the Approving Authority the well identification number and an updated completion report in accordance with the regulations of this chapter.

D. If a well requires deepening and the well driller cannot provide the well identification number, the well driller shall apply for a well construction permit.

E. If a well which is governed by a water appropriation and use permit requires deepening permission must be obtained from the Department.

#### Regulation .12 Procedure for Authorizing Conversions of Test Wells.

*COMAR 26.04.04.12*

A. A permitted test well that is found to produce the required amount of water may be converted to a water supply well if:

  (1) It has been constructed in conformance with the regulations of this chapter for the use for which conversion is sought and COMAR 26.17.06;

  (2) Upon written request, the conversion is approved by the Approving Authority;

  (3) For wells that are to supply water for a public water supply system, the request is approved by the Department; and

  (4) For wells that are to supply water for use on a dairy farm, the request is approved by the Maryland Department of Health.

B. A test well may be converted to a monitoring well when requested in writing and approved by the Approving Authority.

C. A test well may be converted to a standby well when requested in writing and approved by the Approving Authority.

D. A test well shall be abandoned and sealed in accordance with this chapter within 180 days after completion unless a longer period of time is approved by the Approving Authority or the Approving Authority has approved its conversion to a water supply well, a monitoring well, or a geothermal well.

#### Regulation .13 Relocation During Construction.

*COMAR 26.04.04.13*

A. If it is necessary to relocate a well under construction in order to obtain sufficient yield or potable water or because of a well construction problem, the well driller may relocate the well construction site under authority of the original permit if:

  (1) The new site meets the requirements of this chapter and the requirements of the Approving Authority; and

  (2) The permittee provides a drawing of the new well location on the well completion report.

B. If the new well location is found to not meet the requirements of this chapter the well shall be abandoned in accordance with this chapter.

#### Regulation .14 Notification of Well Construction Activities.

*COMAR 26.04.04.14*

A. Water Supply Wells.

  (1) The permittee shall notify the Approving Authority on the business day prior to commencing well drilling activities to allow the Approving Authority the opportunity to inspect.

  (2) The Approving Authority may require that the permittee provide notice before commencing a yield test in Hydrogeologic Area 3.

  (3) The Approving Authority may require that the permittee provide notice before the installation of the pitless adapter or pitless unit.

  (4) The Approving Authority may require that the permittee provide notification prior to commencing grouting activities to allow them the opportunity to inspect.

B. Nonpotable, Monitoring, and Geothermal Wells.

  (1) The Approving Authority may require the permittee give notice in advance of commencing well construction activities on monitoring wells and nonpotable wells.

  (2) The permittee shall notify the Approving Authority one business day prior to commencing well drilling activities of geothermal wells.

C. A well driller shall notify a municipality if the well will be drilled inside the municipality's corporate boundary line or if the well will be drilled 1 mile or less outside the municipality's corporate boundary line.

#### Regulation .15 Construction Standards — Hydrogeologic Areas.

*COMAR 26.04.04.15*

A. Geologic and hydrologic conditions in Maryland require varying well construction standards. For the purposes of this chapter, the State has been divided into five hydrogeologic areas. A map of the approximate hydrogeologic area boundaries is in Regulation .39 of this chapter.

B. The Five Hydrogeologic  Areas.

  (1) Hydrogeologic Area 1. The area where the unconfined Quaternary aquifer of the Maryland Coastal Plain is of major importance; the area described in “United States Geological Survey (USGS) Professional Paper 822, Water Resources of the Delmarva Peninsula, 1973” and “Maryland Geological Survey (MGS), Report of Investigation No. 40, The Columbia Aquifer of the Eastern Shore of Maryland, Part 1 Hydrogeology, 1984”, which is incorporated by reference.

  (2) Hydrogeologic Area 2. The area where the confined aquifers of the Maryland Coastal Plain are of major importance as described in “MGS, Open File Report 72-02-1, A User's Guide for the Artesian Aquifers of the Maryland Coastal Plain, 1972”.

  (3) Hydrogeologic Area 3. The rocks of the Maryland Piedmont and Blue Ridge as described in “MGS, Report of Investigation 10, Ground Water Occurrence in the Maryland Piedmont, 1969”, and “MGS, Open File Report 69-02-1, Ground Water Aquifers and Mineral Commodities of Maryland, 1969”, exclusive of the carbonate rocks.

  (4) Hydrogeologic Area 4. The sedimentary rocks of the Maryland Appalachian Highlands and Valley and Ridge Provinces, exclusive of carbonate rocks, as described in the references listed in Hydrogeologic Area 3.

  (5) Hydrogeologic Area 5. The carbonate rocks as defined by the “Maryland Geological Survey, Geologic Map of Maryland”, Scale: 1:250,000 dated 1968.

#### Regulation .16 Construction Standards — General.

*COMAR 26.04.04.16*

A. Sanitary Protection During Well Construction.

  (1) During well construction, the permittee shall protect against pollution of the well and any water-bearing geologic formations by any cause, including surface water drainage.

  (2) Whenever construction ceases before the well is grouted, the open annular space shall be covered by the permittee and the well shall be capped.

B. Water for Well Construction.

  (1) Only water from a source approved by the Approving Authority in accordance with this section may be used in the construction and development of a well.

  (2) Water used for construction of a well shall be taken from the best source available to the well driller.

  (3) The best source, in order of preference, shall be:

    (a) A public water supply system meeting the requirements of COMAR 26.04.01 for water quality;

    (b) Any other potable water supply;

    (c) A nonpotable well;

    (d) A temporary well, constructed specifically for the purposes of obtaining water for the construction of the well.

  (4) Water used for the construction or development of a well shall:

    (a) Have a turbidity of not more than 25 standard units, except when the turbidity is due to the oxidation of dissolved iron or manganese;

    (b) Be transported, when necessary, in tank trucks used only for the purpose of transporting drilling or potable water;

    (c) Be treated with chlorine in amounts indicated in §B(5) of this regulation;

    (d) Have a color of not more than 25 standard units; and

    (e) Contain no objectionable odor.

  (5) Chlorine treatment required in §B(4)(c) of this regulation, shall be as follows:

    (a) For water from a public supply approved under COMAR 26.04.01, a chlorine compound shall be added to the water to produce a free chlorine residual of at least 1.0 mg/l when delivered at the drilling site;

    (b) For water from any other potable water supply, the free chlorine residual of at least 3.0 mg/l in the water delivered at the drilling site;

    (c) Water from a nonpotable well shall be dosed with chlorine to produce a minimum free chlorine residual of 50 mg/l.

C. Screening in More Than One Aquifer Prohibited. A well may not be screened in more than one aquifer.

D. Sealing-Off Strata. In order to preserve the quality of ground water, the Approving Authority may include a special condition in a well construction permit requiring that aquifers and other strata be sealed off.

E. Well Development. All wells shall be developed according to the following requirements:

  (1) Well development means the process whereby a well is pumped, surged, bailed, airlifted, swabbed or jetted to remove any material that may be blocking the well screen or fractures within the borehole;

  (2) Development shall continue until formation cuttings, drilling fluids, and additives are removed from the well;

  (3) For wells in Hydrogeologic Areas 1 and 2, well development shall remove the fine sand, silt, and clay from the water-bearing zone surrounding the well screen;

  (4) Any hydrofracturing shall be performed in accordance with Regulation .28 of this chapter; and

  (5) Every well shall be developed in order to obtain the full yield of the well and a water quality that meets all of the following requirements:

    (a) Contains less than 5 milligrams sand or larger sized particles per liter of water, where particles with a diameter between 0.0625 and 2.0 mm are considered to be sand; and

    (b) Has a turbidity of less than 10 NTU (nephelometric turbidity unit) as determined by methods designated in 40 CFR §141.74(a)(1), except if the turbidity is due to the oxidation of dissolved iron or manganese naturally occurring in the water.

#### Regulation .17 Construction Standards — Casing.

*COMAR 26.04.04.17*

A. Well Casing.

  (1) Markings.

    (a) Except as provided in §A(1)(b) of this regulation, all casing shall be marked by the manufacturer sufficiently to allow identification of the casing.

    (b) Well casing for monitoring wells is exempt from displaying markings.

    (c) The well driller shall provide, upon request, sufficient information to allow identification of casing used for monitoring wells.

  (2) Plastic Well Casing.

    (a) Plastic well casing shall be polyvinyl chloride, PVC, manufactured to meet the standards of the American Society of Testing and Materials (ASTM) Standard F-480.

    (b) Plastic well casing shall be installed in accordance with the maximum depth limits specified:

    (c) In Hydrogeologic Areas 3, 4, and 5, plastic well casing may not be used for the main casing where caving conditions occur before casing placement.

    (d) Plastic well casing 4 inches or less in diameter shall be a minimum of schedule 40.

    (e) All plastic well casing greater than 4 inches in diameter shall be a minimum of SDR 26.

  (3) Metal Well Casing.

    (a) Metal well casing shall meet one of the following standards:

      (i) ASTM standard A-53 or A-589;

      (ii) American Petroleum Institute standard 5A or 5L; or

      (iii) ASTM standard A-312, type 304 minimum, for stainless steel.

    (b) Metal well casing of 4 inches or less, nominal size, shall be schedule 40 or better.

    (c) Metal well casing greater than 4 inches, nominal size, shall have a minimum nominal wall thickness of 0.188 inches.

    (d) The Approving Authority may require that Schedule 40 or Standard Schedule metal well casing be used where there is corrosive water, soil, or geology.

    (e) Metal casing shall be new, prime pipe, being free of pits or breaks.

  (4) Casing material is not permitted which will cause the delivered water to be toxic or violate State or federal primary drinking water standards in effect at the time the well is constructed.

  (5) Other types and sizes of well casing may be approved by the Approving Authority for special applications, upon written request by the well driller.

B. Minimum Casing Length.

  (1) In Hydrogeologic Areas 1 and 2, the casing shall extend to the top of or into the aquifer used.

  (2) In Hydrogeologic Areas 3, 4, and 5, the casing shall extend through the weathered zone and be seated a minimum of 2 feet into bedrock.

  (3) Less than 20 feet of casing may not be used in any area except as provided in Regulation .23 of this chapter.

  (4) In Hydrogeologic Area 4, the minimum casing length is 40 feet.

C. Minimum Casing Diameter.

  (1) Potable water supply wells shall have a minimum main casing diameter of 4 inches in all hydrogeologic areas of the State.

  (2) In Hydrogeologic Areas 1 and 2, for potable water supply wells, the 4-inch minimum main casing diameter shall extend to, whichever comes first:

    (a) A minimum of 250 feet; or

    (b) The top of the aquifer used.

  (3) Criteria for Variance for Telescoping Casing.

    (a) The Approving Authority shall submit a report to the Department for approval prior to granting variances to §C(2) of this regulation for increasing or decreasing the minimum depth of the 4-inch minimum main casing diameter.

    (b) The report shall contain at a minimum the following information:

      (i) Area of county where variance is being considered;

      (ii) Aquifer for which variance is being considered;

      (iii) Discussion of current aquifer usage and predicted aquifer usage; and

      (iv) Proposed variance wording.

    (c) The report shall be incorporated in the county Master Water and Sewer Plan prior to implementation.

D. Well Casing Joints.

  (1) Joints shall be watertight.

  (2) Joints for metal casing may be either electrically welded or threaded.

  (3) Joints for plastic well casing may be either threaded, solvent welded, or o-ring.

  (4) Screws or other mechanical devices may only be used to join PVC well liner:

    (i) For solvent welded joints used in liners;

    (ii) With nonpenetrating stainless steel screws;

    (iii) And per the recommendations of the pipe manufacturer to maintain their warranty.

E. Other Installation Requirements.

  (1) Liners shall meet the standards for well casing under §§A and D of this regulation.

  (2) Well casing may not be cut off or cut into below ground except to install a pitless unit.

  (3) Well casing shall extend at least 8 inches above the finished grade.

#### Regulation .18 Construction Standards — Screen.

*COMAR 26.04.04.18*

A. Well Screens.

  (1) All wells that obtain water from aquifers in Hydrogeologic Areas 1 and 2 shall be equipped with a screen that shall adequately prevent the entrance of formation material into the well during use.

  (2) Well screens shall have sufficient structural strength to accomplish the purpose for which they are installed.

  (3) Well screen openings shall provide, so far as is practical, the maximum amount of open area, consistent with strength of screen material and sediment grain size of the water-bearing formation to permit maximum transmission without clogging.

  (4) Well screens, other than those made commercially, constructed by creating openings or slots in the casing, or liner, or both, by any mechanical contrivance are prohibited unless approved by the Approving Authority in a special permit condition.

  (5) The well screen shall be provided with fittings necessary to seal the screen to the casing. If the screen diameter is smaller than the casing diameter, then extension of the screen blank section to at least 20 feet above the base of the main casing is required, or a packer or a reducer fitting shall be used.

  (6) A fitting shall be provided to close the bottom of the screen.

B. Gravel-Packed Wells.

  (1) Gravel, which is packed in the annular space, shall be water-washed, disinfected, and free from clay, silt, and organic material.

  (2) Gravel pack may not connect aquifers.

#### Regulation .19 Construction Standards — Grouting.

*COMAR 26.04.04.19*

A. All wells shall be grouted in accordance with this regulation.

B. Time Limits.

  (1) All wells shall be grouted as soon as possible but not later than 24 hours after the well casing has been set in place in Hydrogeological Area’s 1 & 2.

  (2) In Hydrogeological Area’s 3, 4 & 5 all wells shall be grouted within 72 hours after the permanent casing has been set.

  (3) After grouting is completed, there shall be a minimum curing time before drilling may be resumed of:

    (a) 18 hours for Type I and Type II Portland cement; and

    (b) 12 hours for Type III Portland cement.

C. Grouting Materials.

  (1) Cement.

    (a) The annular space may be filled with neat Portland or quick-setting cement in a ratio of not over 6 gallons of water per 94-pound sack of cement.

    (b) Bentonite may be added to the neat cement grout in an amount not to exceed 6 pounds per 94-pound sack of cement. If bentonite is added to the neat cement grout, then additional water may be added at the ratio of 1 gallon of water per 2 pounds of bentonite.

  (2) Bentonite.

    (a) Bentonite with a minimum solids content of 20 percent may be used to fill the annular space in accordance with the following:

      (i) When mixed as a slurry, at 2 pounds bentonite per gallon of water; or

      (ii) In chip or pellet form and if hydrated per the manufacturer specifications, when the annular space is less than 20 feet in depth.

    (b) Bentonite may not be used for grouting where it will come into contact with ground water having a pH below 4.0 or a total dissolved solids content greater than 1,000 mg/l.

  (3) Thermal Enhanced Bentonite Grout.

    (a) Bentonite slurry shall be mixed per manufacturer specifications.

    (b) The sand-bentonite ratio may not be greater than 250 pounds of sand per 50 pounds of bentonite.

    (c) Sand shall be “000” well gravel that meets the following:

      (i) 95 percent silica sand;

      (ii) Have a uniformity coefficient not greater than 1.7; and

      (iii) Have a particle size range of 0.60 mm to 0.15 mm.

  (4) Thermally Enhanced Cementatious Grout:

    (a) Shall be mixed per manufacturers specifications; and

    (b) Have a permeability rating not less than 1 × 10<sup>¯7</sup>.

  (5) Cement alone or bentonite alone may be required as a special condition in a well construction permit for any well.

  (6) If rapid loss of grout material occurs during grout emplacement, coarse fill material may be used in the zone or zones in which the loss is occurring.

  (7) Other grouting materials or mixtures may be authorized as a special condition in a well construction permit for any well after review and approval by the Department.

D. Standards for Grouting Unconfined Aquifer Wells in Hydrogeologic Areas 1 and 2. For wells screened in an unconfined aquifer under this section, the annular space shall be grouted to a depth of at least 20 feet.

E. Standards for Grouting Confined Aquifer Wells in Hydrogeologic Area 2. Under this section:

  (1) The depth of grouting may not be less than 30 feet;

  (2) The annular space above the screen and below the grout shall be completely filled with clay, drill cuttings, or sand before grouting operations begin;

  (3) For two part (lapped) telescoped wells, the drilling fluid may be used as fill material in the annular space if the drill fluid has a weight greater than 11 pounds per gallon;

  (4) Drilling fluid less than 11 pounds per gallon may not be used as an acceptable fill material;

  (5) For wells intended to have a yield greater than 5,000 gallons per day, the grout shall extend from a minimum of 5 feet into the confining bed, immediately above the aquifer being used, to the land surface; and

  (6) For wells intended to have a yield of less than 5,000 gallons per day, the grout shall extend from a minimum of 5 feet into the first confining bed, which is at least 5 feet thick, to the land surface.

  (7) Relative depths to confining layers are described in “MGS, Open File Report No. 12-02-20, Maryland Coastal Plain Aquifer Information System: Hydrogeologic Framework, 2013”, which is incorporated by reference.

F. Standards for Grouting Wells in Hydrogeologic Areas 3, 4, and 5.

  (1) The annular space shall be grouted completely from the bottom of the casing to the land surface.

  (2) The minimum depth of grout may not be less than 18 feet in Hydrogeologic Areas 3 and, and may not be less than 38 feet in Hydrogeologic Area 4 and 5.

  (3) If caving conditions are experienced on wells with greater than 30 feet of casing, the annular space shall be grouted from the point where caving occurred or from a depth of 30 feet, whichever is greater, to the land surface.

G. If the annular space cannot be grouted in accordance with these regulations, the well shall be abandoned and sealed in accordance with this chapter.

H. Deviation from Grouting Standards.

  (1) Deviation from the grouting standards given in §§D, E, and F of this regulation may be approved by the Approving Authority for unusual conditions that prevent conformance with those standards.

  (2) The deviation from the grouting standard shall be requested on a form provided by the Approving Authority. The request shall be submitted to the Approving Authority within 5 days after the well is completed. The Approving Authority shall reject or approve the request within 5 business days.

I. Grout Height.

  (1) For wells where a pump is not to be installed, the final grout height shall be at ground grade.

  (2) For wells where a pump is to be installed, the final grout height shall be immediately below the pitless adapter or pitless unit.

#### Regulation .20 Construction Standards — Methods of Grouting.

*COMAR 26.04.04.20*

A. All grout shall be emplaced in one continuous operation upward from the bottom of the casing or depth specified in these regulations.

B. Pouring, dumping, or shoveling of grout slurries into the annular space or well bore are prohibited.

C. The drilling fluids in the annular space shall be thinned before grouting to a density less than that of the intended grout density.

D. Grout shall be emplaced so that it completely displaces the fluid in the annular space from the bottom of the interval being grouted to the ground surface.

E. The following are approved methods of grouting when performed in accordance with the conditions specified:

  (1) Grout Pipe Outside of Casing (Tremie Pipe).

    (a) The annular space shall be a minimum of 1½ inches.

    (b) All grout shall be placed by pumping through the grout pipe.

    (c) The entire interval to be grouted shall be open and without obstructions; washing or jetting with water is recommended for cleaning the borehole and may serve to remove obstructions caused by caving which otherwise would prevent a proper grout.

    (d) The grout pipe shall extend from the surface to the bottom of the interval to be grouted.

    (e) The grout pipe may remain extended to the bottom of the interval during and after grouting, or it may be raised slowly as the grout is placed provided that the discharge end of the grout pipe remains submerged in the emplaced grout at all times until grouting is completed.

    (f) In the event of interruption in the grouting operations, the bottom of the grout pipe shall be raised above the grout level and should not be resubmerged until the air and water have been displaced from the grout pipe.

    (g) Grouting Depths of 20 feet or Less. Grout may be placed by a grout pipe inserted only 10 feet into the annular space, provided that:

      (i) The entire interval to be grouted is clearly visible from the surface and is dry; and

      (ii) An annular space larger than the minimum 1½ inches may be required to assure visibility from the surface.

  (2) Grout Pipe — Inside Casing.

    (a) The bottom of the casing is fitted with a cementing shoe or float shoe and the casing is placed in the borehole a short distance off the bottom;

    (b) The grout pipe is placed in the casing a short distance from the float shoe or is mechanically attached to the float shoe; and

    (c) Grout is pumped through the grout pipe until grout appears at the land surface.

  (3) Grouting with Bentonite Chips or Pellets. A well may be grouted using bentonite chips or pellets under the following conditions:

    (a) The grouting depth is 20 feet or less;

    (b) The annular space is open and free of obstruction;

    (c) The annular space is at least 1½ inches;

    (d) The drilling fluid, if present, is thinned to a viscosity of less than 30 seconds and the weight is less than 9 pounds per gallon;

    (e) The bentonite chips or pellets may be poured down the annular space; and

    (f) The annular space is continuously measured to assure proper filling without bridging.

    (g) If bridging occurs and the annular space cannot be completely filled then:

      (i) The annular space shall be jetted to remove the bentonite; or

      (ii) The well shall be abandoned and sealed in accordance with this chapter.

  (4) The Approving Authority may approve other grouting methods not specifically identified by this regulation.

#### Regulation .21 Construction Standards — Upper Terminal of Well.

*COMAR 26.04.04.21*

A. Except as provided for in this regulation, the following construction techniques for upper terminals for potable water supply wells are prohibited:

  (1) Use of buried well seals, or other devices, including a buried “sanitary well seal” to cap wells below ground surface and provide access for electrical cable or water pipes; and

  (2) All pits, including frost pits, which are holes or depressions in the ground surrounding casings, in which all pumping and other equipment subject to freezing is emplaced.

B. All wells shall be extended at least 8 inches above final grade.

C. In areas where flooding is likely to occur, including 100-year flood plains and coastal areas, the casing shall terminate at least 24 inches above finished ground surface or pump house floor.

D. Pitless Adapters or Pitless Units Required.

  (1) Pitless adapters or pitless units shall be installed on all water supply wells except:

    (a) Wells enclosed in an above-grade pump house;

    (b) Wells for a public water supply if enclosed in a below-grade pump house or water treatment facility that conforms to regulations of the Department concerning public water supply system design; or

    (c) For suction lift systems where the well casing is 2 inches in diameter or less and used as a suction line a standard plumbing tee may be used as a pitless adapter.

  (2) All pitless adapters and pitless units shall:

    (a) Be of a type approved by the National Sanitation Foundation International;

    (b) Meet the standards of the Water Systems Council; or

    (c) Be approved by the Approving Authority.

  (3) Exemptions. Irrigation wells with a terminal 2 feet above grade and fitted with a ventless sanitary well cap are not required to have a pitless adapter or pitless unit installed.

E. Proper Installation of Pitless Adapters or Pitless Units.

  (1) The well casing or pitless adaptor or pitless unit shall be located at least 8 inches above the finished ground surface or pump house floor if located inside of a building.

  (2) Connections of the Pitless Adapter or Pitless Unit.

    (a) Connections of the pitless adaptor or pitless unit to the well casing and the lateral connections from it shall be watertight.

    (b) A metal-cutting hole saw shall be used to construct the pitless adapter hole in the casing.

    (c) Cutting the pitless adapter hole in the casing by using an acetylene torch is not permitted.

    (d) All burrs resulting from the cutting operation shall be removed.

    (e) Both outside and inside surfaces of that portion of casing surrounding the pitless adapter hole shall be made smooth.

  (3) A pitless adapter or pitless unit shall be installed in conformance with the depth of water service pipe requirements of the applicable State or county plumbing code.

F. Well Caps.

  (1) All wells shall be capped with one of the following:

    (a) A watertight, screened vented cap;

    (b) A watertight cap; or

    (c) The base of a pump motor, provided that, to prevent the entrance of vermin and debris:

      (i) The motor mount provides a watertight seal; and

      (ii) If venting is required, the vent is screened.

  (2) All well caps shall:

    (a) Meet one of the following requirements:

      (i) Comply with the standards of the National Sanitation Foundation International or the Water Systems Council; or

      (ii) Be a type approved by the Approving Authority; and

    (b) If screws, nuts, and bolts are used in them they must be stainless steel.

  (3) The electrical conduit access shall be plugged if the pump is not installed.

G. In areas where flooding is likely to occur, including 100-year flood plains and coastal areas, wells shall be fitted with flood resistant caps.

H. Flowing Artesian Wells.

  (1) All wells, including a flowing artesian well, may not be allowed to run water to waste.

  (2) A flowing artesian well shall be fitted with a watertight cap or be fitted with a valve to stop the flow of water.

I. Access Port for Water Level Measurement. The Department, through a special condition in a Water Appropriation and Use Permit, may require that any well be equipped with an access port for water level measurements.

J. For irrigation wells where the pumping equipment is installed and removed every season the well shall be capped as follows:

  (1) A sanitary well seal may be used when the pumping equipment is installed; and

  (2) A watertight or screen-vented cap shall be used when the pumping equipment is not installed.

#### Regulation .22 Construction Standards — Pumping Equipment.

*COMAR 26.04.04.22*

A. The selection and installation of the pumping equipment shall conform to COMAR 09.20, or the local plumbing code, whichever is more stringent.

B. Electrical connections for pumping equipment shall conform to the National Electrical Code, or to the local electrical code, whichever is more stringent.

C. If a safety rope is used it:

  (1) Shall be secured in the interior of the well; and

  (2) May not penetrate the well casing or cap.

D. If an electrical conduit is present at the well terminal, it shall:

  (1) Be secured to the well cap so as to prevent the entrance of vermin and debris;

  (2) Be plugged at the interior opening with caulk or other suitable material to provide a water-resistant and insect-resistant seal; and

  (3) Extend at least 18 inches below the finished grade.

E. Upon completion of pump installation, the person installing the pumping equipment shall disinfect the well, pump, and water supply system in accordance with this chapter.

F. In areas of the State where the plumbing code does not specify pump installation requirements, then the pumping equipment shall be installed in accordance with the manufacturer's recommendations.

#### Regulation .23 Construction Standards and Special Requirements for Specific Types of Wells.

*COMAR 26.04.04.23*

A. The following special requirements for specific types of wells based on the intended use of the well are as follows:

  (1) Irrigation Wells.

    (a) Wells in unconfined aquifers in Hydrogeologic Areas 1 and 2 used solely for irrigation shall have an annular space grouted to a minimum depth of 20 feet below land surface.

    (b) All other irrigation wells shall meet the grouting requirements of Regulation .19 of this chapter.

  (2) Monitoring Wells.

    (a) The well driller shall submit to the Approving Authority the construction specifications that are proposed for a monitoring well as an attachment to the permit application.

    (b) The Approving Authority may approve, as a special condition of a permit, special construction standards for wells installed for the purpose of monitoring ground water.

    (c) If the Approving Authority does not approve special construction standards, then well construction shall comply with the provisions of this chapter.

    (d) For an at-grade or below-grade well terminal, the well terminal shall be water tight and enclosed in a well vault.

  (3) Injection Wells.

    (a) The well driller for an injection well shall submit to the Approving Authority the construction specifications that are proposed as an attachment to the permit application.

    (b) The Approving Authority may not issue a permit to construct an injection well unless a State Discharge Permit has been issued by the Department.

  (4) Geothermal Wells — Closed Loop.

    (a) The pipe material, jointing, pressure testing, and anti-freeze solutions for a closed loop geothermal well shall conform to the standards of COMAR 09.15.05.

    (b) The anti-freeze solution shall be environmentally safe.

    (c) The borehole of a closed-loop geothermal well shall be grouted from the bottom of the borehole to the ground surface.

    (d) The upper terminal of a closed-loop geothermal well may terminate below grade if:

      (i) The well location is marked by a metal plate so that the location can be found by a metal detector; or

      (ii) The manifold and horizontal lines are marked with detection tape.

    (e) When the closed-loop geothermal well is terminated below grade, the well tag shall be attached to the flow center.

    (f) If using copper as an exchange medium a maintenance agreement must be recorded in the County land records.

  (5) Cathodic Protection Wells.

    (a) The borehole of a cathodic protection well shall be grouted from the bottom of the borehole to the ground surface.

    (b) The well driller shall submit to the Approving Authority the construction specifications that are proposed for a cathodic protection well as an attachment to the permit application.

  (6) Dewatering Wells.  The annular space of a dewatering shall be grouted to a depth of 5 feet below the static water level.

B. The following specific construction standards for specific wells, based on construction method, are as follows:

  (1) Driven Wells.

    (a) Driven wells may not be used for a potable water supply.

    (b) In a driven well an oversize hole for grout, at least 4 inches greater in diameter than the casing, shall be constructed to a depth of at least 10 feet, and the annular space between this hole and the casing shall be grouted to land surface.

    (c) The upper terminal of a driven well and pitless adapter or pitless unit installation shall be in accordance with this chapter.

  (2) Bored, Augered, and Dug Wells Cased with Concrete Pipe.

    (a) Bored, augered, and dug wells shall have a borehole with a minimum diameter of 6 inches larger than the outside diameter of the casing.

    (b) The annular space shall be filled with grout to a depth of at least 30 feet below land surface, unless otherwise approved by the Approving Authority.

    (c) The annular space below the grout shall be filled with a sand or gravel pack.

    (d) Joints in the concrete casing shall be sealed with an impervious seal, such as cement and o-rings, to a depth of at least 20 feet.

    (e) The casing shall extend to a depth of at least 2 feet below the lowest seasonal water table.

    (f) The minimum depth of the casing shall be 20 feet.

    (g) The well shall be protected with either:

      (i) A precast, overlapping, steel-reinforced concrete cover; or

      (ii) A metal cover at least 3/16 of an inch thick and fitted with a watertight gasket; and

      (iii) Be at least 8 inches above grade.

  (3) Jetted and Jetted-Driven Wells.

    (a) Jetted and jetted-driven wells shall be grouted to a minimum depth of 20 feet. This will necessitate construction of an oversize hole for grout to this depth.

    (b) Jetted and jetted-driven wells may not be used for potable water supplies.

  (4) Horizontal Wells. The well driller shall submit plans with the Application for a Permit to Drill that provide details on how the horizontal well is to be constructed and identify the materials to be used.

#### Regulation .24 Disinfection of Wells and Water Supply Systems.

*COMAR 26.04.04.24*

A. Upon completion of well construction activities, the permittee shall disinfect a water supply well in accordance with this regulation.

B. Whenever any work is done on the well after disinfection of the well by the well driller, the person doing the work shall be responsible for disinfection of the well and water supply system in accordance with this regulation.

C. Material. Tablets or dry granular material may not be used as the only chlorination material. The materials, which may be used for disinfection, are:

  (1) Calcium hypochlorite,

  (2) Sodium dichloro-triazine dehydrate; or

  (3) Sodium hypochlorite.

D. Standard Disinfection Procedure.

  (1) The chlorine shall be placed in the well in quantities that will produce a concentration of at least 100 mg/l chlorine. The amount required to obtain this concentration will depend on the casing diameter and the amount of water in the well.

  (2) The well shall be chlorinated using all of the following sequential steps:

    (a) Chlorine tablets or granular chlorine shall be dropped in the top of the well and allowed to settle to the bottom, or a prepared 10 gallon chlorine solution, with a chlorine concentration of at least 100 mg/l, but not more than 500 mg/l, shall be placed in the bottom of the well by pumping or gravity through a tremie pipe, drill rod, hose, or other approved method.

    (b) A chlorine solution of at least 10 gallons and producing a concentration of at least 100 mg/l, but not more than 500 mg/l, in the well shall be introduced (poured) into the top of the well. All surfaces above the static level shall be washed with this solution.

    (c) After the solution has been placed in the well, the water shall be agitated to thoroughly disperse the solution. Agitation may be accomplished by turning the pump on and off, or if no pump is available, by using a bailer, a swab, a plunger, air, or other approved method.

    (d) If the well has been connected to the pressure tank and distribution system, a small amount of the chlorinated water shall then be pumped through the system to thoroughly disinfect the system.

    (e) The well shall be allowed to stand without further agitation for at least 12 hours.

    (f) If a residual of at least 5 mg/l chlorine remains in the water after 12 hours, the well shall then be pumped to waste until the odor and taste of chlorine is no longer detectable. If less than 5 mg/l free residual chlorine is found in the water after 12 hours, the disinfection procedure shall be repeated.

  (3) Chlorinated water and water pumped during the flushing of the well during the disinfection procedure may not be discharged:

    (a) To an on-site sewage disposal system; or

    (b) Directly to surface waters of the State.

E. Disinfection Procedure for Wells That Do Not Respond to the Standard Procedure.

  (1) If, after testing, the well cannot meet the bacteriological standard of this chapter, it shall be chlorinated as in §D of this regulation.

  (2) If the well remains unresponsive after repeating the standard disinfection procedure per this section, a volume of water chlorinated to a concentration of 100 mg/l and at least two times the volume of chlorinated, standing water in the well, but not less than 50 gallons, shall be introduced into the well in order to completely displace the volume of chlorinated, standing water and force it out into the water bearing formation.

F. If bacteriological contamination persists after repeated disinfection, the Approving Authority may require the well to be abandoned and sealed in accordance with this chapter.

#### Regulation .25 Maintenance and Repair.

*COMAR 26.04.04.25*

A. All material used in the maintenance, replacement, or repair of any well shall meet the requirements for new installation.

B. Broken, punctured, or otherwise defective or unserviceable casing, screens, fixtures, seals, or any part of the wellhead shall be repaired and replaced, or the well shall be properly abandoned and sealed.

C. Any work performed on a water supply well with a well cap not meeting the standards of this chapter, shall also include the installation of a well cap meeting the standards of this chapter.

D. Extension of the well casing for an above-grade terminal shall be completed in the following manner:

  (1) Install a pitless unit;

  (2) If plastic casing is existing, then solvent weld additional plastic casing;

  (3) If metal casing is existing, then thread or weld additional metal casing;

  (4) A mechanical compression coupling; or

  (5) Install a pipe coupling that is approved by the Approving Authority.

#### Regulation .26 Minimum Yield and Yield Testing for Domestic Water Supply Wells.

*COMAR 26.04.04.26*

A. A domestic well or double well combination shall produce a minimum yield of 1 gallon per minute for 6 hours.

B. Replacement wells servicing an existing dwelling are exempt from the minimum yield requirement of 1 gallon per minute.

C. The Approving Authority may require a mandatory yield test in any hydrogeologic area of the State for any well, if it is determined that a yield test is necessary to assure an adequate water supply.

D. The County Water and Sewer Plan shall delineate those areas where a mandatory yield test is required for water supply wells in Hydrogeologic Areas 1, 2, 4, and 5.

E. Each domestic well in Hydrogeologic Area 3 shall be tested for yield in accordance with §G of this regulation unless the requirement has been waived pursuant to §F of this regulation.

F. The County Water and Sewer Plan shall delineate those areas in Hydrogeologic Area 3 where the mandatory yield test is waived.

G. Yield Test Procedures.

  (1) Except as provided in §F of this regulation, all domestic wells drilled in Hydrogeologic Area 3 shall be yield tested as provided below:

    (a) On the yield test report form, the permittee shall note pertinent data related to the yield test, including but not limited to:

      (i) Static water level;

      (ii) Measured depth of well;

      (iii) Whether the well has been hydrofractured;

      (iv) Estimated well yield prior to hydrofracturing;

      (v) Depth of test pump in well;

      (vi) Name of the person performing the test;

      (vii) License number of person performing test; and

      (viii) Well construction permit number;

    (b) The pump and related equipment shall be placed in the well;

    (c) Pumping shall begin at a rate of withdrawal greater than 8 gallons per minute until the water level drops to a point close to the pump;

    (d) If the water level drops to near the pump, the pumping rate shall be adjusted so that the water level remains constant;

    (e) Measure and record the flow rate of water discharged and water level at 15 minute intervals throughout the test; and

    (f) Discharge water at least 50 feet from the well and any on-site sewage disposal system.

  (2) A single interruption of pumping of up to 15 minutes due to equipment failure or other unusual circumstances is permitted, but the amount of down time shall be made up by additional pumping at the end of the test.

  (3) The criteria for approval shall be a minimum yield of one gallon per minute for 6 hours continuous pumpring after the well has been pumped out as provided in §G(1)(c) of this regulation.

  (4) The pump test may be terminated early and the well yield shall be considered adequate if a well:

    (a) Cannot be pumped out after 3 hours pumping as provided in §G(1)(c) of this regulation; or

    (b) Yields 4 gallons per minute or greater for 3 hours continuous pumping, after the well has been pumped out as provided in §G(1)(c) of this regulation.

H. The Approving Authority may permit two wells to be connected to meet the minimum yield requirement if:

  (1) A written request is submitted to the Approving Authority for each installation;

  (2) The wells to be connected are tested in accordance with the yield test procedures of this chapter;

  (3) Each well demonstrates a yield of at least 0.5 gallons per minute during the yield test; and

  (4) Both wells are tested for yield at the same time.

I. The yield test data shall be submitted to the Approving Authority for review.

J. Domestic Water Supply System Standard.

  (1) The water supply system shall produce not less than 500 gallons of water in a 2-hour period, at least once each day.

  (2) If the sustained yield of the well is not capable of meeting the total water supply standard, sufficient storage shall be provided.

K. Well Storage.

  (1) If well storage is selected, the amount of storage required is calculated by subtracting the well's yield over a 2-hour period from 500 gallons.

  (2) A quantity of water in storage is equal to the number of feet below the static water level and 10 feet from the bottom of the well, multiplied times 1.5 gallons per foot for a 6-inch well or 0.65 gallons per foot for a 4-inch well.

#### Regulation .27 Yield Test for Nondomestic Wells.

*COMAR 26.04.04.27*

The Department may require a yield test for a nondomestic well as part of the data collection requirements associated with an application for a Water Appropriation and Use Permit.

#### Regulation .28 Hydrofracture of Wells.

*COMAR 26.04.04.28*

A. The Approving Authority shall be notified at least 2 business days in advance of commencing hydrofracturing work on an existing well.

B. Hydrofracturing may not be conducted on any well not constructed according to the requirements of this chapter without approval from the Approving Authority.

C. Hydrofracturing may not be conducted in Hydrogeologic Area 5 without written permission from the Approving Authority.

D. Hydrofracturing may be performed only by qualified professionals who possess a Maryland well driller's license or who are working as a subcontractor and under the direct supervision of a licensed Maryland well driller.

E. Hydrofracturing a well within 100 feet of another water supply well requires written approval of the Approving Authority.

F. The well to be hydrofractured shall be at least 50 feet from any other potable water supply well.

G. Hydrofracturing a water supply well or test well within 500 feet of a landfill or area of known ground water contamination requires the Approving Authority's written approval.

H. The well to be hydrofractured shall be at least 100 feet from any potential source of contamination.

I. Water used for hydrofracturing shall:

  (1) Meet the requirements of Regulation .16B(3)(a) and(b) of this chapter; or

  (2) Be from a source approved by the Approving Authority.

J. New well construction may require deepening to meet the minimum system yield requirements of Regulation .26J of this chapter if there is a drop in static water level as a result of hydrofracturing.

K. After hydrofracture, the total volume of water introduced into the well shall be removed prior to conducting test for yield in accordance with the procedures outlined in Regulation .26G of this chapter.

L. Hydrofracture of Well Report.

  (1) The well driller shall file a Hydrofracture of Well Report to the Approving Authority within 45 days after hydrofracturing the well.

  (2) Yield test data shall be submitted with the Hydrofracture of Well Report for both new wells and existing wells.

#### Regulation .29 Well Completion Reports.

*COMAR 26.04.04.29*

A. The permittee is responsible for submitting, on a form provided by the Approving Authority, a well completion report.

B. Submission.

  (1) The well completion report shall be submitted to the Approving Authority by the premittee not later than 45 days after construction or deepening of the well has been completed or after construction activity on an unsuccessful well, or dry hole, has been terminated.

  (2) Well construction activity shall be considered complete for the purpose of this regulation when the permittee:

    (a) Does not install the pump and the well is grouted; or

    (b) Installs the pump before expiration of the permit and the well is ready for use.

C. Information Required.

  (1) The permittee shall provide all information required in the well completion report form in accordance with Environment Article, §9-1308, Annotated Code of Maryland.

  (2) For a well cluster, a drawing of the well locations shall be submitted with the well completion report for each well.

  (3) If geophysical logs were generated, then the driller shall submit two copies of the log.

#### Regulation .30 Approval of Well for Use as Potable Water Supply.

*COMAR 26.04.04.30*

A. When Certificate of Potability Required.

  (1) A person may not put into service a well or water supply system that may be used for human consumption unless the Approving Authority has first issued a Certificate of Potability for the well.

  (2) This section does not apply to any well that is not used as a potable water supply.

  (3) If a well is later converted from a nonpotable water supply well to a potable water supply well, the well shall:

    (a) Meet the requirements of §B of this regulation; and

    (b) Be approved by the Approving Authority.

  (4) Before a standby well can be used as a potable water source, the owner shall obtain a Certificate of Potability for the well.

B. Certificate of Potability. The Approving Authority may issue a Certificate of Potability if a well meets the following criteria:

  (1) The well has been constructed in accordance with this chapter;

  (2) The well has been constructed in accordance with any permit special condition;

  (3) The well meets the yield requirements of this chapter;

  (4) The well completion report has been submitted in accordance with Regulation 29 of this chapter;

  (5) The well identification tag is affixed to the well; and

  (6) The well meets the requirements, as applicable, for a public water supply system under §C of this regulation or a nonpublic potable water supply system under §D of this regulation.

C. A well for a public water supply system shall:

  (1) Be approved by the Department; and

  (2) Meet the requirements of COMAR 26.04.01.

D. A well for a nonpublic potable water supply system, upon sampling and testing by the Approving Authority, shall meet the following limits:

  (1) Bacteriological, which means that:

    (a) The well water has tested negative for the presence of coliform bacteria for two consecutive samples collected at least 24 hours apart; and

    (b) The water samples were analyzed following procedures approved for use in accordance with COMAR 26.08.05; and

  (2) Chemical and physical, which means that:

    (a) A well water sample meets the maximum contaminant limits of COMAR 26.04.01 for Nitrate-nitrogen; and

    (b) A well water sample meets the turbidity standards as specified under Regulation .16E of this chapter.

E. Additional analyses of the water may be required by the Approving Authority if it has reason to believe that constituents may be present in amounts that may be adverse to human health.

F. Potable water contaminant standards for nonpublic potable water supply systems shall be the maximum contaminant levels for potable water adopted by the US EPA and listed in 40 CFR §141 Subpart G as amended.

G. Issuance of Interim Certificate of Potability.

  (1) The Approving Authority may issue an Interim Certificate of Potability if the well meets the following:

    (a) The most recent bacteriological sample from the well has tested negative for the presence of coliform bacteria; and

    (b) The water sample from the well meets the chemical and physical water quality standards of §§D(1) and (2), and F of this regulation.

  (2) A water system may be put into service with an Interim Certificate of Potability.

  (3) The subsequent water sample shall be collected within 6 months of the date of the first water sample and if this water sample is negative for coliform bacteria, a Certificate of Potability may be issued for the water system.

  (4) The Approving Authority may impose special conditions on an Interim Certificate of Potability.

H. Wells Failing to Meet Requirements for Certificate of Potability.

  (1) The Approving Authority may grant additional time for a well failing Certificate of Potability requirements to be brought into compliance with this chapter.

  (2) Except for those wells granted a permanent deviation in accordance with §J of this regulation, wells that cannot be brought into compliance with this chapter shall be abandoned and sealed.

  (3) If, in the opinion of the Approving Authority, the results of the analysis required in this regulation indicate that constituents are present in amounts that may be adverse to human health or safety, a Certificate of Potability may not be issued.

I. Special Conditions. The Approving Authority may impose special conditions on a Certificate of Potability.

J. Granting of Permanent Deviation.

  (1) The Approving Authority, as a special condition, may grant a permanent deviation to the Certificate of Potability to install an adequate:

    (a) Water disinfection device;

    (b) Nitrate removal device;

    (c) Naturally occurring radionuclide removal device; or

    (d) Water treatment device for any naturally occurring inorganic contaminant that exceeds the standards set in §D of this regulation.

  (2) All water treatment devices approved as a special condition in a Certificate of Potability shall be approved only under the following conditions:

    (a) The well has been carefully evaluated to determine that there are no physical defects and the well was constructed in accordance with this chapter; and

    (b) A public water supply is not available.

  (3) A water treatment device approved as a special condition in a Certificate of Potability for water disinfection shall be approved only if:

    (a) The well has not responded to the disinfection procedures described in Regulation .24 of this chapter; and

    (b) In Hydrogeologic Areas 1, 2, 3, and 4, fecal coliform contamination is not present.

  (4) In Hydrogeologic Area 5, the Approving Authority may grant a permanent deviation for fecal coliform provided the following treatment is provided:

    (a) 1 micron absolute filtration;

    (b) Chlorination; and

    (c) Ultraviolet radiation.

  (5) If a permanent deviation is granted an attachment to the property deed shall be made that reflects the need for treatment, prior to the issuance of the Certificate of Potability.

  (6) A water treatment device for nitrate removal may be approved as a special condition in a Certificate of Potability. The approval requires that a source of water having less than the maximum contaminant level for nitrate as set in 26.04.01 is not available less than 600 feet beneath the surface of the ground.

  (7) A water treatment device for arsenic removal may be approved as a special condition in a Certificate of Potability. The approval requires that a source of water having less than the maximum contaminant level for arsenic as set forth in COMAR 26.04.01 is not available less than 600 feet beneath the surface of the ground.

  (8) A water treatment device approved as a special condition in a Certificate of Potability for naturally occurring radionuclide removal shall be approved only if a radionuclide free aquifer is not available less than 600 feet beneath the surface of the ground.

  (9) Any water treatment device approved as a special condition in a Certificate of Potability shall be capable of removing the targeted contaminant to levels below the standards set forth in §D of this regulation.

  (10) The Approving Authority may require submittal of a continuing service contract for the water treatment device prior to granting the permanent deviation.

#### Regulation .31 Tests by a Maryland Certified Water Laboratory.

*COMAR 26.04.04.31*

A. At the option of the Approving Authority, the results of water quality tests performed by a Maryland certified water laboratory may be substituted for results obtained by the Approving Authority from a State-operated laboratory.

B. The Maryland certified water laboratory shall certify that the sample was obtained and transported in accordance with COMAR 26.08.05.

C. All tests taken by a Maryland certified water laboratory for an initial Certificate of Potability shall be submitted to the Approving Authority by the well owner prior to issuance of the Certificate of Potability.

#### Regulation .32 Release of Information on Test Results.

*COMAR 26.04.04.32*

A. The Approving Authority shall maintain files of test results and shall release copies of these results, upon request, to the person who requested the tests and to persons for whose benefit the tests were performed.

B. Copies of the Certificate of Potability shall be released to all subsequent owners of the property or their agents upon request.

C. The Approving Authority shall provide, with each well sample result, the address and telephone number of the office where an interpretation of the test results may be obtained.

D. When the Approving Authority believes the sample, due to the collection and analysis date, is no longer representative of the condition of the well, the Approving Authority shall include this information along with the sample results.

#### Regulation .33 Well Owners' Responsibilities.

*COMAR 26.04.04.33*

A. Every well shall be maintained in a condition to conserve and protect the ground water resource.

B. After the well is completed, the well owner is responsible for maintaining the upper terminal of the well as specified in this chapter.

C. The owner of a flowing artesian well shall maintain the upper terminal of the well to prevent the wasting of water as provided in this chapter.

D. After the well is completed, the well owner shall maintain the access port in a manner that prevents the entrance of water, dust, insects, or other foreign material and permits ready access for water level measurements.

E. After the well is completed, the well owner is responsible for maintaining the identification tag attached to the well.

F. Whenever work is done on the well, the work shall be done in accordance with this chapter.

G. The well owner shall disclose all special conditions written into an Interim Certificate of Potability or Certificate of Potability to any purchaser of the property served by a well before entering into a contract of sale or lease.

#### Regulation .34 Well Abandonment and Sealing Standards — General.

*COMAR 26.04.04.34*

A. Any well shall be considered abandoned when:

  (1) The well is in such a state of disrepair that continued use for its intended purpose is impracticable;

  (2) The well has been permanently disconnected from any water supply system or irrigation system; or

  (3) The well is unsuccessful, that is, it does not meet the requirements of this chapter.

B. All wells constructed prior to April 1, 1969 that are not in use shall be abandoned.

C. An abandoned well shall be filled and sealed in accordance with this regulation.

D. The Approving Authority may require a well owner to abandon and seal a well if it:

  (1) Is causing or is a potential source of pollution of waters of the State;

  (2) Is producing water that is polluted;

  (3) Does not have an Interim Certificate of Potability, if required; or

  (4) Is no longer needed for its intended purpose.

E. Well sealing shall:

  (1) Restore as nearly as possible those subsurface conditions that existed before the well was constructed, taking into account changes, if any, that have occurred since the time of construction; or

  (2) Provide better protection against aquifer communication through the borehole.

F. An abandoned well shall be sealed in such a way that:

  (1) If it is a cased well:

    (a) The annular space is sealed so that it will not act as a channel for the interchange of waters; and

    (b) The interior of the well casing is sealed so that it will not act as a channel for the interchange of waters;

  (2) If it is an uncased well bore, it will not act as a channel for the interchange of waters; and

  (3) It will not present a hazard to the safety and well-being of humans or animals.

G. Any abandoned well shall be sealed only:

  (1) By a well driller licensed by the Maryland State Board of Well Drillers; or

  (2) Under the supervision of a representative of the Approving Authority.

H. Abandonment and Sealing Notification. For wells designed to be used at a rate of more than 10,000 gallons per day, a licensed well driller shall:

  (1) Provide written notification to the Approving Authority that identifies the well to be sealed and an outline of the work to be done;

  (2) Identify whether the well casing is to be perforated or ripped; and

  (3) Provide 24-hour notification to the Approving Authority before the commencement of sealing operations.

I. Abandonment and Sealing Approval.

  (1) When the Approving Authority has reason to believe that the sealing of a well necessitates close supervision, it may require:

    (a) The submission of sealing plans and specifications for approval before sealing operations are initiated; and

    (b) 24 hours’ notice before the commencement of sealing operations.

  (2) The Approving Authority may approve of a well sealing procedure not identified in Regulation .36 of this chapter, provided the sealing procedure complies with Regulation .36D of this chapter.

J. Reports on the Abandonment and Sealing of Wells.

  (1) When a well is abandoned and sealed, the person sealing it shall submit a completed Water Well Abandonment Sealing Report on the form provided by the Approving Authority.

  (2) This report shall be submitted not later than 45 days after abandonment and sealing of the well or test hole.

#### Regulation .35 Well Sealing Materials.

*COMAR 26.04.04.35*

A. The following sealing materials are acceptable to seal a well:

  (1) Concrete when mixed at five 94-pound sacks of Portland cement per yard of concrete;

  (2) Neat Portland cement grout when mixed in accordance with Regulation .19 of this chapter;

  (3) A mixture of five 94-pound sacks of Portland cement and 1 cubic yard sand;

  (4) Bentonite, if used:

    (a) As a slurry mixed at 2 pounds per gallon of water; or

    (b) In chip or pellet form; and

  (5) Combinations of these materials.

B. Drilling fluid may not to be used to seal a well.

C. Fill Materials.

  (1) Clay, silt, sand, gravel, crushed stone, mixtures of these materials, and sealing materials may be used as a filler in sealing a well.

  (2) In the sealing of an unsuccessful well in Hydrogeologic Areas 3, 4, and 5, the drill cuttings may be used as fill material.

  (3) Material containing organic matter may not be used.

  (4) The Approving Authority may require that fill material be disinfected.

#### Regulation .36 Well Sealing Procedures.

*COMAR 26.04.04.36*

A. Preliminary Work Before Sealing a Well.

  (1) The well shall be investigated to determine:

    (a) Its present condition;

    (b) The details of its construction; and

    (c) Whether there are any obstructions that will interfere with the process of filling and sealing.

  (2) If there are any obstructions, they shall be removed, if possible, by cleaning the hole or redrilling.

  (3) Liners shall be removed prior to sealing or an alternate sealing plan must be approved by the Approving Authority.

B. Filling and Sealing Wells.

  (1) In all hydrogeologic areas of the State, the annular space of cased wells shall be sealed.

  (2) Wells in an unconfined aquifer in Hydrogeologic Areas 1 and 2 shall be sealed by either of the following procedures:

    (a) If the well casing is not removed, fill the well with sealing material; or

    (b) If the well casing is removed, fill the entire length of the borehole with sealing material.

  (3) Wells in a confined aquifer in Hydrogeologic Area 2 shall be filled and sealed by either of the following procedures:

    (a) If the casing has been removed, the well shall be filled the entire depth with sealing material; or

    (b) If the casing has not been removed:

      (i) Consideration shall be given to perforating or ripping the casing opposite the confining layers; and

      (ii) The well shall be filled with sealing material.

  (4) Unconfined wells less than 2-inch diameter shall be sealed only with neat Portland cement.

  (5) Wells in Hydrogeologic Areas 3, 4, and 5 Filling and Sealing Procedures.

    (a) Fill material shall extend from the bottom of the well to within 20 feet of the casing bottom, except for filling materials used in unsuccessful wells under Regulation .35C(2) of this chapter.

    (b) If rapid loss of sealing material into the rock occurs during emplacement, coarse fill material may be used to fill voids.

C. Placement of Material. The following standards shall be met in placing filling or sealing materials:

  (1) The well shall be sealed with the appropriate material emplaced from the top of the fill material;

  (2) When neat Portland cement, concrete, or bentonite slurry is used, it shall be placed in one continuous operation utilizing a pipe extended to the bottom of the interval to be sealed except as noted in §D of this regulation;

  (3) Bentonite chips or pellets:

    (a) Shall be used in such a way as to prevent bridging, but if bridging occurs, the well shall be drilled out;

    (b) May not be used for casing diameters smaller than 2 inches; and

    (c) Shall follow the specific product manufacturer’s instructions for their use.

D. Special Procedures for Filling and Sealing Certain Wells.

  (1) A dug well shall be filled and sealed by the following procedure:

    (a) Placing fill material in the well to a level approximately 5 feet below the land surface;

    (b) Placing a 2-feet thick layer of concrete above the fill; and

    (c) Filling the remainder of the well to the ground surface.

  (2) A monitoring well shall be sealed by the following procedure:

    (a) For monitoring wells less than 50 feet in depth:

      (i) Ripping or removing the casing; and

      (ii) Filling the well with sealing material; or

    (b) For monitoring wells greater than 50 feet in depth follow the procedures specified in §B of this regulation.

  (3) A geothermal well shall be sealed by;

    (a) Removing all fluids from the tubing; and

    (b) Filling the tubing and any open portion of the borehole with grout.

#### Regulation .37 Variances.

*COMAR 26.04.04.37*

Upon the recommendation of the Approving Authority and the approval of the Department, variances to the distance requirements of the regulations of this chapter for all wells and the construction standards for replacement wells may be granted, provided that the public health and the environment are protected.

#### Regulation .38 Enforcement and Appeal.

*COMAR 26.04.04.38*

A. If the Approving Authority determines that there has been a violation of this chapter or of any permit or permit special condition, the Approving Authority shall:

  (1) Serve upon the alleged violator a written complaint specifying the nature and extent of the violation, items to be corrected, and time limits for correction; and

  (2) Notify the well owner of the violation.

B. If a person violating a requirement of this chapter cannot correct the violation, the Approving Authority may require abandonment and sealing of the well.

C. A person aggrieved by a final decision of the Approving Authority in a contested case has the right to have the decision reviewed in accordance with the provisions of the Administrative Procedure Act and other applicable statutes and regulations. All appeals shall be filed with the Director, Water Management Administration, within 30 days after notification of the final decision by the Approving Authority.

D. A person who violates any provision of this chapter is guilty of a misdemeanor and upon conviction is subject to the provisions under Environment Article, §9-1311, Annotated Code of Maryland.

E. A person who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter is guilty of a misdemeanor and upon conviction is subject to the provisions under Environment Article, §9-1311, Annotated Code of Maryland.

#### Regulation .39 Map of Maryland Showing Hydrogeologic Areas.

*COMAR 26.04.04.39*

### Chapter 05 — Shared Facilities

**Authority:** Environment Article, §§9-208, 9-252, 9-319, 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: November 4, 1985 (12:22 Md. R. 2104)

**Administrative History:** Chapter recodified from COMAR 10.17.15 to COMAR 26.04.05

#### Regulation .01 Definitions.

*COMAR 26.04.05.01*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Approving authority” means the local, county, or city health department.

  (2) “Controlling authority” means a governmental body empowered by the county or municipality to provide for management, operation, and continuous preventive and corrective maintenance of a shared facility.

  (3) “Shared facility” means a water or sewerage system which serves more than one lot of land or more than one user on a single lot of land with water or sewerage systems located on the individual lots or on parcels owned in common by the users or the controlling authority.

  (4) “Users” means a single family residence, multi-residential unit, commercial unit, or equivalent of them, which is served by the shared facility.

#### Regulation .02 Applicability.

*COMAR 26.04.05.02*

A. A controlling authority shall conform to all applicable State and county laws, ordinances, and regulations.

B. A controlling authority may purchase, hold, lease, build, construct, own, operate, repair, maintain, and improve a shared facility in a county and enter into contractual agreements with the federal government, the State, or with a municipality, person or individual providing services for a shared facility.

C. The controlling authority may not be the approving authority.

D. The controlling authority may establish, operate, or manage a shared facility if this action does not violate any federal, State or local laws or regulations, and is in compliance with the county water and sewer plan, and would be in the interest of the public health, safety, and comfort.

E. In all cases, the controlling authority and its designee shall be approved by the approving authority and the Department of the Environment. This approval shall be conditional upon the financial and ownership requirements as are found necessary to insure continued efficiency and effective operation of the system.

F. The controlling authority shall make such provisions as are necessary to insure that all sanitary facilities under its control cannot be dissolved or otherwise made legally or functionally inoperative unless the sanitary facilities are replaced by facilities which provide equal or better protection to the public health and that of the users, except when the users no longer require any sanitary facilities.

G. Any person may apply in writing to a controlling authority requesting the controlling authority to establish and operate a shared facility.

H. The approving authority may order the controlling authority to perform repairs or corrections in order to insure proper operation of the shared facility.

#### Regulation .03 Design.

*COMAR 26.04.05.03*

A. All water and sewerage systems shall be constructed and operated in accordance with all applicable State and local laws and regulations.

B. The design of all sewerage treatment and disposal systems operated as a shared facility shall be reviewed and approved by both the Department of the Environment and the approving authority.

C. Subsurface Disposal.

  (1) There shall be an area or areas of land suitable for subsurface disposal set aside for each dwelling unit or equivalent which is equal to that specified in COMAR 26.04.03 for sewage purposes.

  (2) The land so set aside may not have any structures erected upon it except that the approving authority may approve the installation of playground or athletic equipment of types which do not affect the operation or performance of the systems.

  (3) This land may not be disturbed by earth moving or grading after its approval for use by the approving authority without prior authorization by the approving authority.

  (4) A covering or topping such as gravel, asphalt, or concrete, which impedes the growth of vegetation, may not be placed on the land set aside for subsurface disposal.

  (5) The suitability of land for wastewater disposal shall be determined in accordance with COMAR 26.04.02 and 26.04.03.

  (6) The wastewater flow, by which the sizing of the disposal fields is determined, shall be calculated by adding the flows per individual unit as determined in COMAR 26.04.02.

  (7) The land set aside for sewage disposal shall have enough area for the construction of the initial disposal field and two replacement fields.

D. Collection Lines. The collection lines of any shared facility shall be guided by the design guidelines for sewerage facilities which are contained in “Design Guidelines for Sewerage Facilities” 1978 Edition (Technical Bulletin M-DHMH-EHA-S001) which is incorporated by reference. The following shall also apply:

  (1) All piping, pumps, and control equipment shall be capable of withstanding the corrosive effects of anaerobic sewage.

  (2) Duplex pumping facilities may not be required for individual home pumping units.

E. Septic Tanks.

  (1) All shared systems which use septic tanks shall have one tank per dwelling unit.

  (2) Septic tanks shall have an access port at ground level, which is at least 24 inches in its minimum dimension, to enable the tank to be inspected and cleaned.

  (3) All tanks shall be located so as to be accessible for cleaning and maintenance.

F. Pumps.

  (1) All sewerage disposal systems using septic tank effluent pumping (STEP) type collection system shall have an individual pump for each user.

  (2) The pumps shall be housed in a water-tight pump pit with access to the surface of the ground.

  (3) All pumps shall be located so as to be accessible for repair and replacement.

G. The approving authority, with concurrence by the Department of the Environment, may grant exceptions to §§D—F of this regulation when, in the opinion of the approving authority, the exceptions will result in improved or equivalent operation, maintenance, or benefit to the public health, and when improved technology, determined by the approving authority to be equivalent or an improvement to that specified in §§D—F, is to be employed.

### Chapter 06 — Sewage Sludge Management

**Authority:** Environment Article, Title 1, Subtitle 6, and Title 9, Subtitle 2, Part III, Annotated Code of Maryland

**Administrative History:** Effective date: August 4, 1976 (3:16 Md. R. 852)

**Administrative History:** Regulations .01—.06 amended effective August 3, 1981 (8:15 Md. R. 1307)

**Administrative History:** Chapter, Uses and Methods of Collection, Handling, Burning, Storage, Transportation, Processing or Distribution of Sewage Sludge, Processed Sludge, or  Any Other Product Containing These Materials, repealed effective November 3, 1986 (13:22 Md. R. 2399)

**Administrative History:** Annotation: COMAR 10.17.10 cited in Attorney General Opinion No. 84-005 (January 31, 1984)

**Administrative History:** Regulations .01—.14, Sewage Sludge Management, adopted effective November 3, 1986 (13:22 Md. R. 2399)

**Administrative History:** Chapter recodified from COMAR 10.17.10 to COMAR 26.04.06

**Administrative History:** Regulation .01 amended effective December 10, 1990 (17:24 Md. R. 2837)

**Administrative History:** Regulation .02B amended effective December 10, 1990 (17:24 Md. R. 2837)

**Administrative History:** Regulation .03A amended effective December 10, 1990 (17:24 Md. R. 2837)

**Administrative History:** Regulation .04C amended effective December 10, 1990 (17:24 Md. R. 2837)

**Administrative History:** Regulation .09 amended effective December 11, 1989 (16:24 Md. R. 2621)

**Administrative History:** Regulation .09A amended effective April 25, 1994 (21:8 Md. R. 675); August 15, 1994 (21:16 Md. R. 1391); May 15, 2000 (27:9 Md. R. 859)

**Administrative History:** Regulation .13A amended effective December 10, 1990 (17:24 Md. R. 2837)

**Administrative History:** Regulation .13E amended effective December 10, 1990 (17:24 Md. R. 2837); September 27, 1993 (20:19 Md. R. 1472)

**Administrative History:** Regulation .13F adopted effective December 11, 1989 (16:24 Md. R. 2621)

**Administrative History:** Regulation .15 adopted effective December 10, 1990 (17:24 Md. R. 2837)

**Administrative History:** Regulations .01—.15 repealed and new Regulations .01—.75 adopted effective May 26, 2014 (41:10 Md. R. 562)

#### Regulation .01 Purpose and Scope.

*COMAR 26.04.06.01*

A. The purpose of this chapter is to establish requirements and control measures for the utilization of sewage sludge.

B. These regulations specifically apply to all persons engaged in the following utilization activities of sewage sludge, or any product containing this material, which is either generated or utilized in the State of Maryland:

  (1) Treatment facility, Regulations .12—.16 of this chapter;

  (2) Composting facility, Regulations .17—.21 of this chapter;

  (3) Transportation, Regulations .22—.26 of this chapter;

  (4) Storage facility, Regulations .27—.31 of this chapter;

  (5) Distribution facility, Regulations .32—.36 of this chapter;

  (6) Agricultural land, Regulations .37—.41 of this chapter;

  (7) Marginal land, Regulations .42—.46 of this chapter;

  (8) Energy generation or incineration, Regulations .47—.51 of this chapter;

  (9) Marketing, Regulations .52—.55 of this chapter;

  (10) Research project, Regulations .56—.60 of this chapter;

  (11) Innovative project, Regulations .61—.65 of this chapter; and

  (12) Disposal or alternative utilization at municipal landfill, Regulations .66—.70 of this chapter.

C. A person may not engage in sewage sludge utilization in a manner which will likely:

  (1) Cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department;

  (2) Create a nuisance;

  (3) Be conducive to insect and rodent infestation or the attracting or harboring of animals or vectors;

  (4) Pollute the air;

  (5) Allow the physical transportation of sewage sludge outside the permitted site by any means; or

  (6) Cause a discharge of constituents to waters of this State unless otherwise permitted by the Department.

#### Regulation .02 Incorporation by Reference.

*COMAR 26.04.06.02*

In this chapter, the following documents are incorporated by reference:

A. 40 CFR §503.32, as amended; and

B. 40 CFR §503.33, as amended.

#### Regulation .03 Definitions.

*COMAR 26.04.06.03*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Aerobic digestion” means the biochemical decomposition of organic matter in sewage sludge by microorganisms in the presence of air.

  (2) “Agricultural land” means as defined in COMAR 15.20.06.

  (3) “Agronomic rate” means the sewage sludge application rate, in dry weight basis, based on the nitrogen or phosphorus requirement of the crop or vegetation to be grown, whichever is determined to be the most limiting nutrient, that is designed to minimize the amount of the limiting nutrient in the sewage sludge that passes below the root zone of the crop or vegetation grown on the land to the groundwater.

  (4) “Anaerobic digestion” means the biochemical decomposition of organic matter in sewage sludge by microorganisms in the absence of air.

  (5) “Aquifer” means a geologic formation, group of formations, or portion of a formation capable of yielding significant quantities of groundwater to wells or springs.

  (6) “Base flood” means a flood that has a 1 percent chance of occurring in any given year (for example, a flood with a magnitude equaled once in 100 years).

  (7) Biosolids.

    (a) “Biosolids” means treated sewage sludge that meets the standards for Class A or B sewage sludge.

    (b) “Biosolids” does not mean grit and screenings collected at a wastewater treatment plant or ash generated by the incineration of sewage sludge.

  (8) “Bulk sewage sludge” means sewage sludge that is not sold or given away in a bag or other container for application to the land.

  (9) “Cesspool” means a covered hole or pit to hold sewage.

  (10) “Class A sewage sludge” means treated sewage sludge that meets the standards defined in 40 CFR §503.32(a).

  (11) “Class B sewage sludge” means treated sewage sludge that meets the standards defined in 40 CFR §503.32(b).

  (12) “Collection” means any action involved in the gathering or subsequent placement of sewage sludge, or any other product containing sewage sludge, into a vehicle, container, or any other vessel for transportation.

  (13) “Composting” means the biological decomposition of organic matter under controlled thermophilic aerobic conditions.

  (14) “Constituent” means any component of sewage sludge that is an organic, inorganic, or combination of organic and inorganic substances, including pathogenic organisms.

  (15) “Constituent limit” means a numerical value that describes the:

    (a) Amount of a constituent allowed per unit amount of sewage sludge, such as milligrams per kilogram of total solids;

    (b) Amount of a constituent that can be applied to a unit area of land, such as kilograms per hectare; or

    (c) Volume of a material that can be applied to a unit area of land, such as gallons per acre.

  (16) "Container" means either an open or closed receptacle with a load capacity of 1 metric ton or less that includes a bucket, box, carton, vehicle or trailer.

  (17) “Contaminate” means to introduce a substance that causes the maximum contaminant level for constituents as defined by the United States Environmental Protection Agency (USEPA) in 40 CFR §141.62(b) to be exceeded in surface or groundwater of the State or that causes the existing concentration of constituents in surface or groundwater to increase when the existing concentration of constituent in the surface or groundwater exceeds the maximum contaminant level for nitrate or other constituents as defined by the USEPA in 40 CFR §141.62(b).

  (18) “Contaminate an aquifer” means to introduce a substance that causes the maximum contaminant level for nitrate or other constituents as defined by the USEPA in 40 CFR §141.62(b) to be exceeded in the groundwater of the State or that causes the existing concentration of nitrate in the groundwater to increase when the existing concentration of nitrate in the groundwater exceeds the maximum contaminant level for nitrate as defined by the USEPA in 40 CFR §141.62(b).

  (19) “County” means as defined in the Environment Article, §1-101(c), Annotated Code of Maryland.

  (20) “Cover” means soil or other material acceptable to the Department used to cover sewage sludge placed on a sewage sludge site.

  (21) “Cover crop” means a crop, such as cereal grains, that is planted following the harvest of summer crops for the purpose of the seasonal protection of soil, the assimilation of residual nitrogen left from a previous crop, and the continued mineralization of nitrogen.

  (22) “Crop residue” means vegetative matter remaining on the soil surface after harvest, which is capable of minimizing rainfall impact energy to reduce soil erosion potential.

  (23) “Crops for direct human consumption” means crops that are consumed by humans without processing to minimize pathogens before marketing to the consumer.

  (24) “Cumulative constituent loading rate” means the maximum amount of an inorganic constituent that can be applied to an area of land.

  (25) “CWA” means the Federal Clean Water Act (formerly referred to as either the Federal Water Pollution Act or the Federal Water Pollution Control Act Amendments of 1972), Public Law 92-500, as amended by Public Law 95-217, Public Law 95-576, Public Law 96-483, Public Law 97-117, and Public Law 100-4.

  (26) “Density of microorganisms” means the number of microorganisms per unit mass of total solids in dry weight in the sewage sludge.

  (27) “Department” means the Maryland Department of the Environment.

  (28) Disposal.

    (a) “Disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placement of sewage sludge into or on any land or water.

    (b) “Disposal” includes incineration or landfilling.

  (29) “Dried sewage sludge” means sewage sludge with total solids content greater than 35 percent.

  (30) “Dry weight basis” means a weight calculated on the basis of sewage sludge having been dried at 105ºC until reaching a constant mass, which is essentially 100 percent solids content.

  (31) “Established crop” means a crop that has germinated and attained at least 70 percent surface coverage on the field as measured by the standard line-transect method.

  (32) “Feed crops” means crops produced primarily for consumption by animals.

  (33) “Fiber crops” means crops that produce fiber for processing into woven material, such as flax and cotton.

  (34) “Field ditch” means a perennial or intermittent man-made drainage ditch that:

    (a) Was never a natural stream;

    (b) Is distinguished from a natural stream by its landscape position and associated soil mapping units, as found in the United States Department of Agriculture (USDA) soil survey for the county; and

    (c) Is not within a:

      (i) Floodplain soil-mapping unit;

      (ii) Hydric soil that is mapped as a narrow, elongated feature in a fluvial or floodplain position; and

      (iii) Soil-mapping unit that has a slope class of “B” or steeper.

  (35) “Final cover” means the last layer of soil or other material placed on a sewage sludge site at closure.

  (36) “Final utilization” means the complete and ultimate utilization of sewage sludge after which the sewage sludge receives no further treatment or processing.

  (37) “Food chain crops” means crops grown for human consumption, crops grown as feed for animals that will be consumed by humans, and tobacco.

  (38) “Food crops” means same as food chain crops.

  (39) “Forest” means a tract of land thick with trees and underbrush.

  (40) “Grit” means sand, gravel, cinders, or other materials with a high specific gravity removed during the treatment of wastewater in a wastewater treatment plant.

  (41) “Groundwater” means water below the land surface in a saturated zone.

  (42) “Handle” means same as market.

  (43) “Holding tank” means a watertight receptacle, which is used, or intended to be used, for the collection of sewage.

  (44) “Incineration” means the controlled combustion of organic matter and inorganic matter in sewage sludge by high temperatures in an enclosed device.

  (45) “Incinerator” means a furnace or combustion unit that uses controlled flame combustion for the thermal destruction of sewage sludge with or without other wastes.

  (46) “Incinerator ash” means the residual ash generated during the firing of a waste to energy facility or an incinerator.

  (47) “Label” means the display of all written, printed, or graphic material on the immediate container, or information accompanying the material.

  (48) “Land application” means the placement of sewage sludge, or any other product containing sewage sludge on or mixed with or injected into land used to support vegetative growth.

  (49) Land with a High Potential for Public Exposure.

    (a) “Land with a high potential for public exposure” means land that the public uses frequently.

    (b) “Land with a high potential for public exposure” includes a public contact site and a marginal land located in a populated area, such as a construction site located in a city.

  (50) Land with a Low Potential for Public Exposure.

    (a) “Land with a low potential for public exposure” means land that the public uses infrequently.

    (b) “Land with a low potential for public exposure” includes agricultural land, forest, and a marginal land located in an unpopulated area, such as a strip mine located in a rural area.

  (51) “Leachate” means any liquid that has percolated through solid waste including sewage sludge and may contain dissolved, miscible, or suspended material from the sewage sludge or solid waste pile.

  (52) “Liquid byproducts” means liquid that:

    (a) Is generated from the contact of precipitation with sewage sludge in storage;

    (b) Separates from sewage sludge during storage; or

    (c) Is generated from cleaning a treatment, composting, storage, or distribution facility.

  (53) “Liquid sewage sludge” means sewage sludge with solids content less that 15 percent or sewage sludge that fails the free liquids test described in Regulation .09C(4)(b) of this chapter.

  (54) “Local health official” means the county health officer, the Baltimore City Commissioner of Health, the Director of the Office of Environmental Protection at Montgomery County, other local officials as identified by the Department, or their designees.

  (55) “Lower explosive limits” means the lowest percent by volume of a mixture of explosive gases that will propagate a flame in air at 25ºC and atmospheric pressure.

  (56) “Management unit” means an area sharing common characteristics, including soil type, nutrient content, and plant type or crop produced, so that nutrients can be recommended and managed in a uniform and consistent manner.

  (57) Marginal Land.

    (a) “Marginal land” means land where the soil characteristics provide poor support for normal vegetative growth over time, and are being, or are proposed to be, revegetated.

    (b) “Marginal land” may include land regraded after surface mining activities, abandoned strip mine areas, areas where topsoil has been removed, filled areas, a landfill closure cap, and closed and capped landfills.

  (58) Market.

    (a) “Market” means to barter, sell, offer for sale, consign, furnish, provide, or otherwise supply a material as part of a commercial enterprise or a giveaway program.

    (b) “Market” does not mean marketing to a distribution facility regulated by the Department under Regulations .32—.36 of this chapter.

  (59) “Mineralization” means the process that converts unavailable organic forms of nutrient elements to an available inorganic state as a result of bacterial decomposition.

  (60) “Municipal landfill” has the meaning stated in COMAR 26.04.07.

  (61) “Nuisance” means unreasonable interference with the quality of life of the public because of the characteristics of noise, odor, solids, vapors, liquids, or gases, which causes distress or potential health impacts to members of the public or residents or users of properties adjacent to a site where sewage sludge is being utilized or has been utilized, as determined by the Department.

  (62) “Nutrient Management Plan” has the meaning stated in COMAR 15.20.08.

  (63) “Pasture land” means land on which animals feed directly on feed crops, such as legumes, grasses, or grain stubble.

  (64) “Pathogenic organisms” means organisms capable of causing disease in humans that include certain bacteria, protozoa, viruses, and viable helminth ova.

  (65) “Permanent facility” means a facility that is designed primarily for sewage sludge treatment or sewage sludge composting.

  (66) "Permitting Authority” means the Maryland Department of the Environment.

  (67) “Permittee” means a person who holds a Sewage Sludge Utilization Permit.

  (68) “Person” means the federal government, the State, any county, municipal corporation, or other political subdivision of the State, or any of their units, or an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation, or any other entity.

  (69) “PFRP” means a process to further reduce pathogens.

  (70) “pH” means the logarithm of the reciprocal of the hydrogen ion concentration measured at 25ºC or measured at another temperature and then converted to an equivalent value at 25ºC.

  (71) “Privy” means an earth or watertight pit or receptacle for receiving non-water-carried human wastes over which is placed a privy house containing a toilet seat or seats.

  (72) “PSRP” means a process to significantly reduce pathogens.

  (73) Public Contact Site.

    (a) “Public contact site” means land with a high potential for contact by the public.

    (b) “Public contact site” includes public parks, athletic fields, cemeteries, plant nurseries, turf farms, and golf courses.

  (74) “Qualified groundwater scientist” means an individual with a baccalaureate or post-graduate degree in the natural sciences or engineering who has sufficient training and experience in groundwater hydrology and related fields, as may be demonstrated by State registration, professional certification, or completion of accredited university programs, to make sound professional judgments regarding groundwater monitoring, constituent fate and transport, and corrective action to the satisfaction of the Department.

  (75) “Reclamation site” means same as a “marginal land.”

  (76) “Runoff” means any precipitation, leachate, or other liquid that drains over land from any part of a site that is derived from precipitation.

  (77) “Screenings” means materials such as rags or debris collected during the primary treatment of wastewater in a wastewater treatment plant.

  (78) “Sewage sludge” means any thickened liquid, suspension, settled solid, or dried residue that a sewage treatment plant extracts from sewage.

  (79) “Sewage sludge cake” means sewage sludge with total solids content between 15 and 35 percent.

  (80) “Sewage sludge compost” means a sewage sludge produced by the decomposition of a mixture of sewage sludge and a bulking agent, such as wood chips, that destroys primary pathogenic and malodorous components.

  (81) Sewage Sludge Generator.

    (a) “Sewage sludge generator” means a person who owns or operates a facility that receives and processes sewage in this State or produces sewage sludge to be utilized in this State.

    (b) “Sewage sludge generator” includes:

      (i) The Washington Suburban Sanitary Commission; and

      (ii) The Maryland Environmental Service.

    (c) “Sewage sludge generator” does not include the owner or operator of a septic system.

  (82) “Sewage Sludge Utilization Permit” means a permit, issued by the Department, to utilize sewage sludge.

  (83) “Sewage sludge utilizer” means any person who utilizes sewage sludge in this State.

  (84) “Sewage treatment plant” means a wastewater treatment plant.

  (85) "SOUR” means the specific oxygen uptake rate that represents the mass of oxygen consumed per unit time per unit mass of total solids, in dry weight basis, in the sewage sludge.

  (86) “State” means the State of Maryland unless otherwise specified.

  (87) “Storage” means the containment of sewage sludge, or any other product containing sewage sludge after removal from a wastewater treatment plant and before utilization.

  (88) “Surface water” means all waters of the State that are not groundwater.

  (89) “Tidal wetland” has the meaning stated in COMAR 26.04.02.02.

  (90) “Total solids” means the materials in sewage sludge that remain as residue when the sewage sludge is dried at 103 to 105ºC.

  (91) “Transportation” means the movement or conveyance of sewage sludge or any other product containing sewage sludge by air, rail, road, pipeline, or water.

  (92) “Treatment” means a process, which alters, modifies, or changes the biological, physical, or chemical characteristics of sewage or sewage sludge.

  (93) “Unstable area” means land subject to natural or human-induced forces including land on which soils are subject to mass movement, areas underlain by limestone or marble, (“karst terrain”), and areas subject to dissolution features, such as the formation of sinkholes.

  (94) “USDA-NRCS” means the United States Department of Agriculture-Natural Resources Conservation Service.

  (95) “User” means a person other than a sewage sludge utilizer whom does not require a Sewage Sludge Utilization Permit to use a Class A sewage sludge as fertilize or soil conditioner in residential or commercial property.

  (96) Utilize Sewage Sludge.

    (a) "Utilize sewage sludge” means to collect, handle, burn, store, treat, or transport sewage sludge to or from a sewage sludge generator or utilizer in this State, to apply sewage sludge to land, or to dispose of sewage sludge.

    (b) “Utilize sewage sludge” includes composting, distribution, generating energy, marketing, conducting innovative or research projects, disposing or alternatively utilizing at a municipal landfill, or constructing and operating a landfill for sewage sludge, or any product containing sewage sludge, which is either generated or utilized in the State.

  (97) “Vector attraction” means the characteristic of sewage sludge that attracts rodents, flies, mosquitoes, or other organisms capable of transporting infectious agents.

  (98) “Volatile solids” means the amount of the total solids in sewage sludge lost when the sewage sludge is combusted at 550ºC in the presence of excess air.

  (99) “Wastewater treatment plant” or ”WWTP" means a facility designed and constructed to receive, treat, or store sewage or sewage combined with other waterborne waste.

#### Regulation .04 Right of Entry.

*COMAR 26.04.06.04*

The person applying for a Sewage Sludge Utilization Permit shall agree, as a condition for the issuance of the permit or any other authorization or approval issued by the Department, to allow the Secretary of the Department of the Environment, the local health official, or their authorized representatives, at reasonable times and upon presentation of credentials, to:

A. Enter upon the premises or a location where any records are required to be maintained under the terms and conditions of the Sewage Sludge Utilization Permit, authorization, or approval issued by the Department;

B. Have access to and copy any records required to be maintained under the terms and conditions of the Sewage Sludge Utilization Permit, authorization, or approval issued by the Department;

C. Inspect any monitoring equipment or monitoring procedures required in the Sewage Sludge Utilization Permit, authorization, or approval issued by the Department;

D. Inspect any collection, transport vehicles, treatment, pollution management, or control facilities required under the Sewage Sludge Utilization Permit, authorization, or approval issued by the Department;

E. Sample any ground or surface waters, soils, vegetation, sewage sludge, or other materials on the site;

F. Perform any activities to determine compliance status with the terms and conditions of the Sewage Sludge Utilization Permit, authorization, or approvals issued by the Department or the applicable regulations; and

G. Obtain any photographic documentation or evidence.

#### Regulation .05 Constituent Limits for Sewage Sludge.

*COMAR 26.04.06.05*

A. Specific Constituent Limitations for Sewage Sludge.

  (1) The following constituent limitations apply to application of sewage sludge:

    (a) Bulk sewage sludge may not be applied to the land if the concentration of any constituent in the sewage sludge exceeds the ceiling concentration for the constituent in Table 1 of §B(1) of this regulation;

    (b) Bulk sewage sludge may not be applied to agricultural or marginal land, forest, or a public contact site if either:

      (i) The cumulative loading rate for any constituent exceeds the cumulative constituent loading rate for the constituent in Table 2 of §B(2) of this regulation; or

      (ii) The concentration of any constituent in the sewage sludge exceeds the concentration for the constituent in Table 3 of §B(3) of this regulation;

    (c) Bulk sewage sludge may not be applied to a lawn or a home garden if the concentration of any constituent in the sewage sludge exceeds the concentration for the constituent in Table 3 of §B(3) of this regulation; and

    (d) Sewage sludge may not be sold or given away in a bag or other container for application to the land if:

      (i) The concentration of any constituent in the sewage sludge exceeds the concentration for the constituent in Table 3 of §B(3) of this regulation; or

      (ii) The product of the concentration of any constituent in the sewage sludge and the whole annual sewage sludge application rate for the sewage sludge causes the annual constituent loading rate for the constituent in Table 4 of §B(4) of this regulation to be exceeded.

  (2) Determination of Annual Whole Sewage Sludge Application Rate (AWSAR).

    (a) The following equation expresses the relationship between the AWSAR in metric tons per hectare per 365 day period on a dry weight basis and the annual constituent loading rate (ACLR) in kilograms per hectare per 365 day period for a constituent:

    (b) To determine the AWSAR for sewage sludge, a person shall sequentially do the following:

      (i) Step 1 — analyze a sample of the sewage sludge to determine the concentration for each of the constituents listed in Table 4 of §B(4) of this regulation;

      (ii) Step 2 — using the constituent concentrations from Step 1 and the ACLRs from Table 4 of §B(4) of this regulation, calculate an AWSAR for each constituent using Equation # 1 from §A(2)(a) of this regulation; and

      (iii) Step 3 — identify as the AWSAR for the sewage sludge the lowest AWSAR calculated in Step 2.

  Equation # 1: AWSAR = ACLR/(C x 0.001)

B. Constituent Concentrations and Loading Rates — Sewage Sludge.

  (1) Ceiling Concentrations.

  (2) Cumulative Constituent Loading Rates.

  (3) Constituent Concentrations.

  (4) Annual Constituent Loading Rates.

#### Regulation .06 Sampling and Testing Requirements for a Sewage Sludge Generator.

*COMAR 26.04.06.06*

A. Except for owners or operators of on-site sewage disposal systems as defined in COMAR 26.04.02.02B(27), each sewage sludge generator shall submit to the Department the results of laboratory analysis of representative composite sewage sludge samples from each wastewater treatment plant located in State and out-of-State in accordance with the following requirements:

  (1) All sample analyses shall be performed by an independent laboratory or another laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department; and

  (2) The analysis shall include, at a minimum, percent of total solids, pH, ammonium nitrogen, nitrate nitrogen, total phosphorus, total potassium, total arsenic, total cadmium, total copper, total lead, total mercury, total molybdenum, total nickel, total selenium, total zinc, polychlorinated biphenyls (PCBs), the dry weight concentration of total Kjeldahl nitrogen, and any analysis demonstrating that the sewage sludge meets the requirements for Class A or Class B.

B. Unless the Department specifies an alternative schedule, as provided in §C(2) and (3) of this regulation, the analysis required in §A of this regulation shall be performed in accordance with the frequency specified in the following Table 1:

C. The Department may:

  (1) Require analyses for sewage sludge constituents other than those identified in §A(2) of this regulation to adequately assess the quality of sewage sludge;

  (2) Require more frequent analysis than is specified in §B of this regulation to adequately assess the quality of sewage sludge;

  (3) Approve a request to discontinue analyzing for any of the constituents identified in §A(2) of this regulation or to reduce the testing frequency specified in §B of this regulation if a sufficient number of sewage sludge samples have been analyzed by the sewage sludge generator to characterize sewage sludge quality on an annual as well as seasonal basis;

  (4) Require that laboratory results be accompanied by a description of the method of analysis; and

  (5) Reject an analysis if it determines that the method of analysis is inaccurate, or for any other good cause.

D. The Department may consider the failure to submit the analysis required in §§A—C of this regulation to be grounds for:

  (1) Revocation or modification of any Sewage Sludge Utilization Permit, authorization, or approval previously issued by the Department for the utilization of that generator’s sewage sludge; and

  (2) Denial of any new, material alteration or extension, modification, or renewal application for a Sewage Sludge Utilization Permit, authorization, or approval issued by the Department for the utilization of that generator’s sewage sludge.

E. The Department may establish a plant-available nitrogen value for a generator’s sewage sludge using the equation in §F of this regulation if the sewage sludge generator submits to the Department the following:

  (1) A written request to establish a plant-available nitrogen value for the generator’s sewage sludge to be utilized in the following calendar year;

  (2) A certification that the sewage sludge treated by the generator during the preceding calendar year meets the standards for Class A or B sewage sludge and that the sewage sludge was treated under the direction and supervision of a responsible municipal official, the generator’s wastewater treatment plant owner, or other responsible official in accordance with a system designed to ensure that qualified personnel properly gather and evaluate the certification information submitted to the Department;

  (3) A written statement that the approved treatment process that has been authorized by the Department has not been changed during the preceding calendar year; and

  (4) The results of laboratory analysis of representative composite samples of the sewage sludge which was obtained from the wastewater treatment plant that is generating the sewage sludge in accordance with §§A—C of this regulation or as determined by the Department.

F. The pounds of plant-available nitrogen per ton of sewage sludge (PAN lbs/ton) shall be calculated using the following equation:

G. The Department may revoke an authorization to land apply a generator’s sewage sludge with an established plant-available nitrogen value if:

  (1) The generator does not comply with the treatment standards for Class B sewage sludge;

  (2) The generator does not comply with the sampling and testing requirements specified in this regulation;

  (3) The generator does not comply with the record-keeping and reporting requirements specified in Regulation .07 of this chapter;

  (4) The generator does not comply with the sewage sludge generator fees requirements specified in Regulation .08 of this chapter;

  (5) The generator does not comply with the terms and conditions of the Sewage Sludge Utilization Permit, authorization, or approval issued by the Department for the generator’s wastewater treatment plant;

  (6) The sewage sludge has been generated in a state in which the laws or the application of these laws do not result in the land application of sewage sludge in that state; or

  (7) For any other good cause as determined by the Department.

#### Regulation .07 Record-Keeping and Reporting Requirements for a Sewage Sludge Generator.

*COMAR 26.04.06.07*

A. Except for owners or operators of on-site sewage disposal systems as defined in COMAR 26.04.02.02B(27), each sewage sludge generator shall submit to the Department a complete and accurate generator’s report on a form provided by the Department.

B. A sewage sludge generator whose wastewater treatment plant is located out-of-State shall submit to the Department a generator's report for that portion of the generator's sewage sludge that is utilized in the State as a condition for reauthorizing the utilization of that generator's sewage sludge in Maryland under a Sewage Sludge Utilization Permit.

C. The sewage sludge generator shall maintain records of the destination and final utilization of the sewage sludge leaving that generator’s wastewater treatment plant. At a minimum, the records shall include the following:

  (1) The date the sewage sludge leaves that generator’s wastewater treatment plant;

  (2) The amount of sewage sludge leaving that generator’s wastewater treatment plant;

  (3) The sewage sludge utilization method; and

  (4) The county and site where the bulk sewage sludge is being utilized.

D. The sewage sludge generator shall submit to the Department the generator’s report in accordance with a schedule established by the Department.

E. A responsible municipal official, the generator’s wastewater treatment plant owner, or other responsible official as stipulated on the generator’s report form shall sign the sewage sludge generator’s report.

F. The sewage sludge generator shall provide the sewage sludge utilizer with an annual certification as required in Regulation .06E(2) of this chapter.

G. The sewage sludge generator shall inform the sewage sludge utilizer of any changes to the sewage sludge treatment process at the generator’s wastewater treatment plant that requires the Department’s authorization.

H. Failure to submit the required generator’s report may constitute grounds for revocation or modification of any Sewage Sludge Utilization Permit, authorization, or approval previously issued by the Department for that generator’s sewage sludge, and denial of any new, modification, or renewal application for a Sewage Sludge Utilization Permit, authorization, or approval to be issued by the Department for that generator’s sewage sludge.

#### Regulation .08 Sewage Sludge Generator Fees.

*COMAR 26.04.06.08*

A. Each sewage sludge generator shall pay the Department an annual sewage sludge generator fee for each wet ton of sewage sludge generated by the sewage sludge generator during the previous calendar year as reported on the Sewage Sludge Generator Report Form provided by the Department.

B. The sewage sludge generator fee shall be determined based on:

  (1) The amount of sewage sludge generated; and

  (2) A per ton fee rate that may vary depending on the sewage sludge utilization option, whether the source of the sewage sludge is in-State or out-of-State, and the Department’s anticipated costs of monitoring and regulating sewage sludge utilization activities and anticipated costs for program implementation.

C. Annual Generator Fee Schedule.

  (1) Base Fee Rate.

    (a) The base fee rate to be used in calculating the annual generator fee for a sewage sludge generator shall be $1.00 for each wet ton of sewage sludge generated.

    (b) The Department may modify the base fee rate on an annual basis for the next applicable State fiscal year to provide adequate revenue to cover the Department’s anticipated costs of monitoring and regulating sewage sludge utilization activities and anticipated costs for program implementation.

  (2) Base Fee Rate Adjustment Factors.

    (a) In-State Sources of Sewage Sludge.

      (i) For in-State sources of sewage sludge, the base fee rate shall be adjusted depending on how the sewage sludge is utilized by using the appropriate base fee rate adjustment factor in Table 1 of §C(2)(a)(ii) of this regulation, as explained in §C(3) of this regulation.

      (ii) Table 1 – Base Fee Rate Adjustment Factors.

    (b) For out-of-State sources of sewage sludge, the base fee rate adjustment factor shall be 2.0.

  (3) Fee Calculation — In-State Sources of Sewage Sludge. To determine the annual generator fee for a sewage sludge generator located in Maryland, the following process shall be followed:

    (a) Calculate a utilization option fee for each utilization option applicable to the generator by:

      (i) Identifying the base fee rate adjustment factor for a given utilization option from Table 1 of §C(2)(a)(ii) of this regulation; and

      (ii) Calculating the utilization option fee as (the number of wet tons of sewage sludge generated during the reporting period) x (the base fee rate for the reporting period as determined by the Department) x (the base fee rate adjustment factor for the utilization option);

    (b) Determine a tentative annual sewage sludge generator fee by adding together the utilization option fees determined in accordance with §C(3)(a) of this regulation; and

    (c) Set the annual sewage sludge generator fee at either the tentative annual sewage sludge generator fee determined in accordance with §C(3)(b) of this regulation or $50, whichever is greater.

  (4) Fee Calculation — Out-of-State Sources of Sewage Sludge. To determine the annual sewage sludge generator fee for a sewage sludge generator whose source or sources of sewage sludge is located outside of Maryland, the following process shall be followed:

    (a) Calculate the tentative annual sewage sludge generator fee as (the number of wet tons of sewage sludge utilized during the reporting period) x (the base fee rate for the reporting period as determined by the Department) x ( the base fee rate adjustment factor for out-of-State sources of sewage sludge); and

    (b) Set the annual sewage sludge generator fee at either the tentative annual generator fee determined in accordance with §C(4)(a) of this regulation or $50, whichever is greater.

  (5) Annual Billing. Billing for the annual generator fee shall be based on the generation of sewage sludge by a generator during the previous calendar year as reported on the generator’s Sewage Sludge Generator Report as required in Regulation .07 of this chapter.

D. Failure to pay the annual generator fee may constitute grounds for revocation or modification of any Sewage Sludge Utilization Permit, authorization, or approval issued by the Department for the utilization of that generator’s sewage sludge, and denial of any new, modification, or renewal application for a Sewage Sludge Utilization Permit, authorization, or approval for the generator for the utilization of that generator’s sewage sludge.

E. The Department may inspect and audit all records or files associated with the annual generator fee required in §C of this regulation.

F. If an audit reveals that any amount of money was improperly withheld from the Department:

  (1) A generator shall remit that amount to the Department within 30 days of notification of the error by the Department; and

  (2) A generator may be subject to other penalties as provided by law or regulation.

#### Regulation .09 Sewage Sludge Utilization Permits.

*COMAR 26.04.06.09*

A. Except as provided under the provisions of §C of this regulation, a person may not engage in the following utilization activities of sewage sludge, or any product containing this material, without first obtaining a Sewage Sludge Utilization Permit from the Department: treatment, composting, transportation, storage, distribution, application on agricultural land or marginal land, energy generation or incineration, marketing, conducting innovative or research projects, or disposal or alternative utilization at a municipal landfill.

B. The Department may not issue a Sewage Sludge Utilization Permit for the purpose of utilizing sewage sludge to grow tobacco.

C. Sewage Sludge Utilization Permits issued under this regulation are not required for the following persons or activities:

  (1) A person who is engaged in the transportation or land application on agricultural or marginal land of Class A sewage sludge subject to the following conditions:

    (a) The Class A sewage sludge shall only be transported from the facility that generated the Class A sewage sludge to the marketing destination in accordance with the transportation requirement in Regulation .22 of this chapter;

    (b) The Class A sewage sludge may not be field stockpiled (staged) or land applied in a manner that will cause an undue risk to the environment or public health, safety, or welfare, or in a manner that causes or is likely to cause a discharge of constituents to the waters of the State;

    (c) The Class A sewage sludge shall only be field stockpiled (staged) in accordance with Section 1D of the Maryland Nutrient Management Manual incorporated by reference into COMAR 15.20.07.02 and in compliance with other applicable State, federal, and local laws and regulations;

    (d) The Class A sewage sludge shall only be land applied on agricultural land in accordance with a nutrient management plan prepared by a certified and licensed nutrient management consultant or a certified operator in accordance with the Maryland Department of Agriculture requirements in COMAR 15.20.04 and in compliance with COMAR 15.20.07 and 15.20.08;

    (e) If the Class A sewage sludge field stockpiled (staged) at a site is otherwise regulated by an individual or general NPDES Permit, the provisions of that permit will supersede the requirements in §C(1)(a)—(c) of this regulation; and

    (f) In the event of an odor problem, the Department will notify the person who is applying the Class A sewage sludge that corrective measures shall be implemented, such as the temporary cessation of Class A sewage sludge application, or the application of odor control agents, such as lime, potassium permanganate, or other odor control agents. For the purpose of this requirement, an “odor problem” is defined as the receipt of at least one odor complaint regarding the Class A sewage sludge utilization followed by verification of the objectionable off-site odors by the Department, or a finding by the Department that odors caused by the utilization of the Class A sewage sludge are occurring offsite and are sufficiently strong as to be the likely cause of a complaint;

  (2) A person transporting sewage sludge that was generated in another state for utilization outside of the State of Maryland;

  (3) A person requesting to transport sewage sludge from a wastewater treatment plant to another wastewater treatment plant to be utilized for seeding as determined by the Department if:

    (a) The person receives a written authorization from the Department before the transportation of sewage sludge from one wastewater treatment plant to the wastewater treatment plant requiring seeding; and

    (b) The period of transportation does not exceed 30 days unless specifically authorized by the Department;

  (4) A person requesting to transport sewage sludge from a wastewater treatment plant during inclement weather conditions, or as a result of a process failure, equipment breakdown, or any other emergency conditions at the wastewater treatment plant as determined by the Department to a permitted sewage sludge or municipal landfill for disposal or alternative utilization if:

    (a) The sewage sludge does not contain free liquid, with the presence of free liquid determined by:

      (i) Application of Method 9095B (Paint Filter Liquids Test) as outlined in the most recent edition of the USEPA Publication SW-846 “Test Methods for Evaluating Solid Waste”, which is incorporated by reference in COMAR 26.13.01.05A(4); or

      (ii) A comparable test approved by the Department;

    (b) The person receives written authorization from the Department before the transportation of sewage sludge from the wastewater treatment plant to a permitted municipal landfill for disposal or alternative utilization is commenced;

    (c) The person complies with the requirements for transportation and disposal or alternative utilization at the municipal landfill established by the Department or out-of-State authority; and

    (d) The period of transportation does not exceed 30 days unless specifically authorized by the Department;

  (5) A person requesting the transportation of liquid sewage sludge from a wastewater treatment plant during inclement weather conditions, or as a result of a process failure, equipment breakdown, or any other emergency conditions at the wastewater treatment plant as determined by the Department to another wastewater treatment if:

    (a) The person receives written authorization from the Department before the transportation of sewage sludge from one wastewater treatment plant to the other wastewater treatment plant;

    (b) The person complies with the requirements for transportation established by the Department; and

    (c) The period of transportation does not exceed 30 days unless specifically authorized by the Department;

  (6) A person who constructs and operates a sewage sludge-to-energy facility or a sewage sludge incinerator if the sewage sludge-to-energy facility or the sewage sludge incinerator is regulated by an air quality permit issued by the Department in accordance with the requirements in COMAR 26.11.02;

  (7) A person who constructs and operates a sewage sludge landfill if the sewage sludge landfill is regulated by a refuse disposal permit issued by the Department in accordance with the requirements in COMAR 26.04.07;

  (8) A person mixing sewage sludge that has been classified by the Department as Class A sewage sludge with other material if:

    (a) The person demonstrates to the Department that the final utilization of the mixture will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department; and

    (b) The person receives a written authorization from the Department before the mixing may commence;

  (9) A person who stores bagged sewage sludge that has been classified by the Department as Class A sewage sludge as part of commercial activities, such as hardware stores, garden centers, and nurseries, if:

    (a) The period of storage does not exceed 180 days; and

    (b) The storage does not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department;

  (10) A person who constructs and operates a sewage sludge-to-energy facility or a sewage sludge incinerator at a wastewater treatment plant if:

    (a) The wastewater treatment plant is regulated by and is in compliance with the sewerage construction permit issued for the wastewater treatment plant by the Department in accordance with the requirements in COMAR 26.03.12; and

    (b) The sewage sludge-to-energy facility or the sewage sludge incinerator is regulated by an air quality permit issued by the Department in accordance with the requirements in COMAR 26.11.02;

  (11) A person who installs, materially alters, or materially extends a sewage sludge storage or distribution facility at a wastewater treatment plant if the wastewater treatment plant is regulated by and is in compliance with the sewerage construction permit issued for the wastewater treatment plant by the Department in accordance with the requirements in COMAR 26.03.12; and

  (12) A person who conducts an innovative or research project to utilize sewage sludge at a wastewater treatment plant if:

    (a) The innovative or research projects, such as the utilization of sewage sludge in brickmaking, as fuel, in resource recovery projects, or other projects is conducted in a manner that it will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department;

    (b) The wastewater treatment plant is regulated by and is in compliance with the sewerage construction permit issued for the wastewater treatment plant by the Department in accordance with the requirements in COMAR 26.03.12;

    (c) If applicable, the innovative or research project is regulated by an air quality permit issued by the Department in accordance with the requirements in COMAR 26.11.02; and

    (d) The innovative or research project is regulated by any other applicable permits issued by the Department.

#### Regulation .10 Performance Bonds, Liability Insurance, or Other Form of Security.

*COMAR 26.04.06.10*

A. Except as provided under the provisions of §B of this regulation, a person applying for a Sewage Sludge Utilization Permit shall file with the Department a performance bond on a form prescribed or approved by the Department, liability insurance, or other form of security. The performance bond, liability insurance, or other form of security shall be payable to the Department and the obligation of the performance bond, liability insurance, or other form of security shall be conditioned upon the compliance with the terms and conditions of the Sewage Sludge Utilization Permit.

B. A performance bond, liability insurance, or other form of security is not required for the following persons or activities:

  (1) An applicant proposing to dispose of or utilize sewage sludge at a municipal landfill if it is determined by the Department that the municipal landfill is regulated by a Refuse Disposal Permit issued in accordance with Environment Article, §9-204, Annotated Code of Maryland, and that the financial assurance requirement in Environment Article, §9-211, Annotated Code of Maryland, has been met;

  (2) Users of sewage sludge that comply with the requirements of Regulations .09 and .52 of this chapter, and market Class A sewage sludge in accordance with a Sewage Sludge Utilization Permit issued by the Department; or

  (3) Any local, State, or federal governmental agency or unit.

C. The amount of the performance bond, liability insurance, or other form of security shall be:

  (1) $10,000 for a Sewage Sludge Utilization Permit for the transportation or marketing of sewage sludge, or for utilizing sewage sludge as part of a research project;

  (2) $30,000 for a Sewage Sludge Utilization Permit to apply sewage sludge on agricultural land;

  (3) $50,000 for a Sewage Sludge Utilization Permit to apply sewage sludge on marginal land;

  (4) $75,000 for a Sewage Sludge Utilization Permit for utilizing sewage sludge as part of an innovative project; or

  (5) $125,000 for a Sewage Sludge Utilization Permit for an in-State sewage sludge treatment, composting, storage, or distribution facility.

D. The amount of the performance bond, liability insurance, or other form of security for combined activities is the highest amount of all utilization activities listed in the Sewage Sludge Utilization Permit Application.

E. The Department may allow a permittee obtaining several Sewage Sludge Utilization Permits to apply sewage sludge on agricultural or marginal land to file one performance bond, liability insurance, or other form of security to satisfy the security requirements for more than one utilization site. The amount of the performance bond, liability insurance, or other form of security shall be the amount required in §C of this regulation for the first site plus 40 percent of the amount required in §C of this regulation for each additional site up to a maximum amount of $200,000.

F. Liability under the performance bond, liability insurance, or other form of security shall remain in effect until all terms and conditions of the Sewage Sludge Utilization Permit have been met. The Department may release the performance bond, liability insurance, or other form of security after the Department has determined that all terms and conditions of the Sewage Sludge Utilization Permits covered by the performance bond, liability insurance, or other form of security have been complied with.

G. The performance bond, liability insurance, or other form of security shall be executed by the person applying for a Sewage Sludge Utilization Permit and obtained from a corporate surety licensed to do business in this State. Instead of a performance bond, liability insurance, or other form of security executed by a corporate surety, the person may elect to deposit with the Department cash or negotiable bonds of the federal government or of this State or any other securities acceptable to the Department. The amount of the cash deposit or the market value of any securities shall be at least equal to the required sum of the performance bond, liability insurance, or other form of security. The Department shall receive and hold the cash or securities in trust, for the purposes for which the deposit is posted.

H. The obligation of the person applying for a Sewage Sludge Utilization Permit and of any corporate surety under the performance bond, liability insurance, or other form of security shall become due and payable, and all or any part of any cash or securities shall be applied to payment of the costs of complying with any requirement of the Sewage Sludge Utilization Permit if the Department has:

  (1) Notified the permittee and any corporate surety that the terms and conditions of the Sewage Sludge Utilization Permit have not been complied with, and has specified in the notice the particular noncompliance with the Sewage Sludge Utilization Permit terms or conditions;

  (2) Given the permittee a reasonable opportunity to correct the deficiencies and to comply with all of the terms and conditions of the Sewage Sludge Utilization Permit; and

  (3) Determined that, at the end of a reasonable length of time, some or all of the noncompliance specified under §H(1) of this regulation remain uncorrected.

#### Regulation .11 Denial of Sewage Sludge Utilization Permit Application.

*COMAR 26.04.06.11*

A. The Department shall deny an application for a Sewage Sludge Utilization Permit if the Department finds that:

  (1) The person applying for a Sewage Sludge Utilization Permit cannot utilize sewage sludge without causing an undue risk to the environment or the public health, safety, or welfare as may be determined by the Department;

  (2) The person applying for a Sewage Sludge Utilization Permit is violating Environment Article, §§9-230—9-251, 9-269, or 9-270, Annotated Code of Maryland;

  (3) The sewage sludge generator from which the sewage sludge was generated has not paid the applicable generator’s fee specified in Regulation .08 of this chapter; or

  (4) The sewage sludge has been generated in a state in which the laws or the application of those laws do not result in the land application of sewage sludge in that state.

B. The Department may deny an application for a Sewage Sludge Utilization Permit if the Department finds that:

  (1) The sewage sludge generator from which the sewage sludge was generated is not in compliance with the sampling and testing requirements specified in Regulation .06 of this chapter;

  (2) The sewage sludge generator from which the sewage sludge was generated is not in compliance with the record-keeping and reporting requirements specified in Regulation .07 of this chapter;

  (3) The person applying for a Sewage Sludge Utilization Permit has insufficient resources to meet the performance bond or other financial securities requirements of the Sewage Sludge Utilization Permit;

  (4) The person applying for a Sewage Sludge Utilization Permit has failed to submit the applicable Sewage Sludge Utilization Permit Application fee;

  (5) The person applying for a Sewage Sludge Utilization Permit has failed to submit information requested by the Department; or

  (6) For any other good cause as determined by the Department.

C. The Department shall send to the local health official and the local soil conservation district a notice of the denial of an application in the county for a Sewage Sludge Utilization Permit.

#### Regulation .12 Treatment Facility.

*COMAR 26.04.06.12*

A. The Department may issue a Sewage Sludge Utilization Permit to construct and operate a treatment facility to generate Class A or B sewage sludge and to market the Class A sewage sludge in Maryland if the person applying for a permit demonstrates that the following conditions and requirements will be met:

  (1) The treatment process shall meet, at a minimum, the applicable requirements for Class A or B sewage sludge;

  (2) For a facility constructed after May 26, 2014, a 1,000-foot buffer zone shall be maintained between the treatment facility sewage sludge processing or storage area and the nearest inhabited off-site dwelling, except that this buffer distance may be reduced if the Department determines that the treatment facility has adequate odor control measures;

  (3) The treatment facility shall be designed, constructed, and operated to safely treat the sewage sludge in a manner that will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department; and

  (4) For marketing Class A sewage sludge in Maryland that is generated by a wastewater treatment plant in Maryland, the person applying for a permit shall describe to the Department’s satisfaction how the following conditions will be met:

    (a) The sewage sludge to be marketed will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department, or in a manner that causes or likely to cause a discharge of constituents to the waters of the State; and

    (b) The sewage sludge to be marketed is free of liquid, with the presence of free liquid determined by

      (i) Application of Method 9095B (Paint Filter Liquids Test) as outlined in the most recent edition of the U.S. EPA Publication SW-846 “Test Methods for Evaluating Solid Waste”, which is incorporated by reference in COMAR 26.13.01.05A(4); or

      (ii) A comparable test approved by the Department.

B. A written quality control monitoring plan approved by the Department shall be implemented to ensure that the Class A sewage sludge to be marketed meets the Department's standards regarding the destruction of primary pathogenic organisms, reduction of vector attraction, and limitations for heavy metals and other constituents.

C. The Department may issue a Sewage Sludge Utilization Permit to construct and operate a sewage sludge treatment facility by processes other than those used to classify the material as Class A or B sewage sludge if the applicant demonstrates, at a minimum, that the requirements specified under §A of this regulation will be met.

#### Regulation .13 Treatment Facility — Permit Application Requirements.

*COMAR 26.04.06.13*

A. A person shall submit to the Department a separate Sewage Sludge Utilization Permit Application for each site where a sewage sludge treatment facility is to be located. A person shall submit to the Department six completed copies of the Sewage Sludge Utilization Permit Application on a form provided by the Department. A person shall also submit a performance bond, liability insurance, or other form of security required under the provisions of Regulation .10 of this chapter. The application shall include the following completed information:

  (1) A written authorization signed by the legal owners of the site where the treatment facility is to be located;

  (2) A current site plan designating the property boundary lines, the exact acreage of the site, existing and proposed treatment facility structures, the location of any wells on the site and within 1/2 mile of the site, any residences or buildings on site and within 1/2 mile of the site, the proximity of the site to major roads in the area and any roads on the site, and surrounding land uses;

  (3) Tax maps and liber and folio numbers for the parcels of land on which the treatment facility will be located and the names of the legal owners of the site;

  (4) A current site specific topographic map with a minimum scale of 1 inch = 200 feet and a contour interval of not more than 5 feet showing the areal extent of the site, and the location of any stream, spring, or seep within 1/2 mile of the site;

  (5) A site specific geologic and hydrogeologic report as required by the Department, including a hydrologic map showing the location of the 100-year flood plain, if applicable, and the location of all soil tests, soil borings and test pits on the site;

  (6) A description of the source, type, and quantity of the sewage sludge to be treated, including any previous treatment the sewage sludge has received, such as anaerobic digestion, aerobic digestion, lime stabilization, composting, or dewatering;

  (7) A detailed description of the treatment methods, processes, and monitoring procedures;

  (8) Detailed engineering plans and specifications for the treatment facility prepared, signed, and bearing the seal of a registered professional engineer;

  (9) A detailed operation plan that includes, when applicable:

    (a) Procedures for sampling, on-site record keeping, and reporting of the sewage sludge to be treated;

    (b) Types of equipment to be used for collection, management, washdown, and other operations;

    (c) Days and hours of operation;

    (d) Methods and procedures to prevent or control odors and other potential nuisance conditions at the site;

    (e) Methods and procedures for utilizing the treated sewage sludge;

    (f) Contingency or emergency plans to manage fires, equipment breakdown, spills, and other emergency events;

    (g) Methods and procedures for restricting public access to the site;

    (h) For marketing Class A sewage sludge, a marketing plan and strategy for the treated sewage sludge with a description of the marketing system to include an identification of the final utilization of the Class A sewage sludge;

    (i) For marketing Class A sewage sludge, documentation that the marketing and final utilization of the Class A sewage sludge:

      (i) Will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department, and

      (ii) Will not cause or likely cause a discharge of constituents to the waters of the State;

    (j) For marketing Class A sewage sludge, a label that shall accompany the marketed sewage sludge, which:

      (i) Includes identification of the product as Class A sewage sludge or biosolids, sources of the sewage sludge, instructions for proper use with specific amounts and type of use (rate of application), field stockpiling (staging) and storage requirements, odor control measures, warnings, and restrictions necessary for utilization;

      (ii) Advises the person who is utilizing the product that the authorization to market the product does not relieve the person from civil or criminal liabilities or penalties for noncompliance with the Environment Article, Title 9, Annotated Code of Maryland, or any local, State, federal, or other state laws or regulations; and

      (iii) Includes any specific restrictions, warnings, or cautionary statements that the Department requires to be included on the label; and

    (k) For marketing Class A sewage sludge, a demonstration of how the applicant will implement any additional conditions and management practices to market the Class A sewage sludge that the Department may require as it determines necessary;

  (10) Quality control monitoring plans;

  (11) Information on protection of water resources, including:

    (a) A detailed discussion of the methods to be used for the protection of ground and surface waters of the State; and

    (b) If required by the Department, a proposed ground and surface water monitoring plan that meets the following requirements:

      (i) The plan shall include a system for routinely monitoring the quality of waters of the State at, surrounding, and beneath the site, including the location and type of monitoring stations, and the method of construction of monitoring wells; and

      (ii) The plan shall provide for monitoring wells to be installed by a State licensed well driller in accordance with COMAR 26.04.04;

  (12) Plans for on-site storage of treated sewage sludge;

  (13) An assessment of the potential environmental impact of the treatment facility;

  (14) Unless the analytical results have been submitted to the Department in accordance with the requirements of Regulation .06 of this chapter, the most recent results of a laboratory analysis of a representative composite sample of the sewage sludge that was obtained from the wastewater treatment plant that generated the sewage sludge, subject to the following requirements:

    (a) The sample was obtained in accordance with the requirements of Regulation .06 of this chapter;

    (b) The analysis of the sample was performed by an independent laboratory or other laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department;

    (c) If requested by the Department, the results shall be accompanied by a description of the method or methods of analysis; and

    (d) The analytical results include, at a minimum:

      (i) Percent of total solids, pH, ammonium nitrogen, nitrate nitrogen, total phosphorous, total potassium, total arsenic, total cadmium, total copper, total lead, total mercury, total molybdenum, total nickel, total selenium, total zinc, polychlorinated biphenyls (PCBs), and the dry weight concentration of total Kjeldahl nitrogen; and

      (ii) Any other sewage sludge constituent that the Department determines necessary to adequately assess the potential impact of the project on public health and the environment; and

  (15) Other information that may be requested by the Department.

B. The Department may reject an analysis of a sewage sludge sample submitted in accordance with §A(14) of this regulation and require retesting and resubmittal of results if the Department determines that the method of analysis is inaccurate, or for any other good cause.

C. Permit Application Fees.

  (1) A person shall pay the Department a nonrefundable Sewage Sludge Utilization Permit Application fee in accordance with the following schedule:

    (a) For a new permit application, $350; and

    (b) For a renewal permit application, $350.

  (2) For activities which involve transportation of sewage sludge in combination with any other activities listed in the Sewage Sludge Utilization Permit Application, the Department will issue a single Sewage Sludge Utilization Permit to include all activities. For combined activities, only the application fee listed for transportation of sewage sludge in Regulation .23C of this chapter shall be waived.

#### Regulation .14 Treatment Facility — Public and Local Government Participation Requirements for a Permit Application.

*COMAR 26.04.06.14*

A. To provide a county or a municipal corporation, if appropriate, with an opportunity to consult with the Department about the decision to issue, deny, or place restrictions on a Sewage Sludge Utilization Permit, the Department shall:

  (1) Publish a notice of the receipt of the Sewage Sludge Utilization Permit Application in a local newspaper having a substantial circulation in the county where the sewage sludge treatment facility is to be constructed and operated that contains the following information:

    (a) Name of the person applying for the permit;

    (b) A brief description of the project;

    (c) Sources of the sewage sludge;

    (d) Project type;

    (e) Location of the site;

    (f) A list of the persons within the local jurisdiction who have been sent copies of the application;

    (g) A statement of the right of the county or municipal corporation, if applicable, to request a public hearing within 15 calendar days after receipt of the application; and

    (h) Provisions for examination of the application by interested parties; and

  (2) Mail a copy of the application and the public notice published in accordance with §A(1) of this regulation to:

    (a) The chairman of the legislative body and any elected executive of the county and municipal corporation where the sewage sludge treatment facility is to be constructed and operated;

    (b) The chairman of the legislative body and any elected executive of any other county within 1 mile of the sewage sludge treatment facility; and

    (c) The local health official.

B. Within 15 calendar days of receipt of the application and the public notice, the chairman of the legislative body or any elected executive of the county or municipal corporation where the sewage sludge treatment facility is to be constructed and operated may request in writing that the Department conduct a public hearing.

C. If the Department receives a request for a public hearing in accordance with §B of this regulation, or if the Department determines that a public hearing would serve the public interest, the Department shall hold a public hearing in the affected subdivision where the facility is to be constructed and operated. The Department shall notify the person applying for the Sewage Sludge Utilization Permit and shall give the person the opportunity to present information at the public hearing.

D. After the Department has established the date, place, and time for a public hearing, the Department shall publish a notice of the public hearing in a local newspaper having a substantial circulation in the county where the sewage sludge treatment facility is to be constructed and operated. The notice shall contain the following information:

  (1) A statement of the legal authority and jurisdiction under which the public hearing is to be held, and a reference to the particular statutes and regulations involved;

  (2) Name of the person applying for the permit;

  (3) A brief description of the project;

  (4) Sources of the sewage sludge;

  (5) Project type;

  (6) Location of the site;

  (7) The date, time, and place of the public hearing; and

  (8) Provisions for examination of the application by interested parties.

#### Regulation .15 Treatment Facility — Record-Keeping and Reporting Requirements for a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.15*

A. The permittee shall generate a report containing the following information and maintain all documents used to generate the report for a period of 10 years:

  (1) The source, type, and quantity, including documentation of sewage sludge received and treated at the treatment facility;

  (2) The sewage sludge treatment methods;

  (3) Process monitoring and operating information demonstrating that the treated sewage sludge meets the requirements as specified in the applicable Sewage Sludge Utilization Permit;

  (4) A summary of the results of laboratory analysis that includes:

    (a) Copies of all analyses of chemical quality of the treated sewage sludge generated at the facility and the water quality for all constituents listed in the applicable Sewage Sludge Utilization Permit; and

    (b) In the event that a constituent exceeded the allowable level, a discussion or explanation of the exceedance;

  (5) The time periods during which the treatment facility is inoperational;

  (6) The quantity, including documentation of treated and untreated sewage sludge transported from the treatment facility;

  (7) The dates of transportation of treated and untreated sewage sludge from the treatment facility;

  (8) The destinations and final utilization of treated and untreated sewage sludge;

  (9) Descriptions of problems encountered and their solutions;

  (10) Other related information regarding the treatment facility as required by the applicable Sewage Sludge Utilization Permit; and

  (11) Other information that may be requested by the Department.

B. The permittee shall submit to the Department three completed copies of the report required by §A of this regulation for each year the Sewage Sludge Utilization Permit is in effect. The permittee shall submit to the Department the report on a form provided by the Department and in accordance with a schedule established by the Department.

#### Regulation .16 Treatment Facility — Modifications of a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.16*

A. The Department may modify a Sewage Sludge Utilization Permit to include a new condition as may be required by a new law or regulation, to clarify permit conditions, or for other good cause.

B. The Department may modify a Sewage Sludge Utilization Permit upon request by the permittee if the following conditions are met:

  (1) The permittee submits to the Department four completed copies of the Sewage Sludge Utilization Permit modification application on a form provided by the Department, and all other required information and forms as determined by the Department, with the application including a description of the proposed modification and an explanation as to why the modification is needed;

  (2) The permittee pays the Department a nonrefundable Sewage Sludge Utilization Permit modification fee in accordance with the following schedule:

    (a) For a minor modification, $40; and

    (b) For a major modification, $130; and

  (3) The Department determines that the proposed modification is in compliance with the applicable requirements of this chapter and will not cause an undue risk to the environment or public health, safety, or welfare.

C. The following are minor modifications to a Sewage Sludge Utilization Permit for a sewage sludge treatment facility:

  (1) Modification to the treatment facility’s operation plan;

  (2) Addition of new sewage sludge sources or types of sewage sludge received at the treatment facility;

  (3) Modification to the treatment facility’s water quality monitoring plans;

  (4) The permittee’s name change; or

  (5) Other modifications as determined by the Department.

D. The following are major modifications to a Sewage Sludge Utilization Permit for a sewage sludge treatment facility:

  (1) Extension of the size of the structures or buildings used for the treatment of sewage sludge;

  (2) Modification to the types of treatment authorized by the Sewage Sludge Utilization Permit for the treatment facility; or

  (3) Other modifications as determined by the Department.

E. If the Department considers a modification application complete and acceptable, the Department may modify the Sewage Sludge Utilization Permit.

F. If the Department modifies a Sewage Sludge Utilization Permit, the Department shall send notice of the modification to the local health official and the local soil conservation district in the county in which the Sewage Sludge Utilization Permit is issued by the Department.

G. The Department may deny a modification application if the permittee is not in compliance with the applicable requirements of this chapter or any of the terms or conditions of the Sewage Sludge Utilization Permit, or for other good cause as determined by the Department.

#### Regulation .17 Composting Facility.

*COMAR 26.04.06.17*

A. The Department may not issue a Sewage Sludge Utilization Permit to install, materially alter, or materially extend a sewage sludge composting facility until:

  (1) The composting facility meets all zoning and local land use requirements of the county where the composting facility is to be located; and

  (2) The Department has received a written statement that the board of county commissioners or the county council of the county where the composting facility is to be located does not oppose the issuance of the Sewage Sludge Utilization Permit.

B. The Department may issue a Sewage Sludge Utilization Permit to install, materially alter, or materially extend a sewage sludge composting facility and to market the Class A sewage sludge compost if the person applying for a Sewage Sludge Utilization Permit demonstrates that the following conditions and requirements will be met:

  (1) The composting process shall meet, at a minimum, the applicable requirements for Class A or B sewage sludge;

  (2) For a facility constructed after May 26, 2014, a 1,000-foot buffer zone shall be maintained between the composting facility sewage sludge processing or storage area and the nearest inhabited off-site dwelling, except that this buffer distance may be reduced if the Department determines that the composting facility has adequate odor control measures;

  (3) The composting facility shall be designed, constructed, and operated to safely compost the sewage sludge in a manner that will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department;

  (4) The composting process shall be conducted in a vessel approved by the Department, or inside a roofed structure with an impervious floor with drains connected to a sanitary sewer system or other permitted treatment facility;

  (5) The composted sewage sludge shall be placed on an impervious floor with drains connected to a sanitary sewer system or other permitted wastewater treatment facility; and

  (6) For marketing Class A sewage sludge compost in Maryland that is generated by a composting facility in Maryland, the person applying for a permit shall describe to the Department’s satisfaction how the following conditions will be met:

    (a) The sewage sludge to be marketed will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department; and

    (b) The sewage sludge does not contain free liquid, with the presence of free liquid determined by:

      (i) Application of Method 9095B (Paint Filter Liquids Test) as outlined in the most recent edition of the USEPA Publication SW-846 “Test Methods for Evaluating Solid Waste”, which is incorporated by reference in COMAR 26.13.01.05A(4); or

      (ii) A comparable test approved by the Department.

C. A written quality control monitoring plan approved by the Department shall be implemented to ensure that the Class A sewage sludge to be marketed meets the Department's standards regarding the destruction of primary pathogenic organisms, reduction of vector attraction, and limitations for heavy metals and other constituents.

#### Regulation .18 Composting Facility — Permit Application Requirements.

*COMAR 26.04.06.18*

A. A person shall submit to the Department a separate Sewage Sludge Utilization Permit Application for each site where a sewage sludge composting facility is to be installed, materially altered, or materially extended. A person shall submit to the Department seven completed copies of the Sewage Sludge Utilization Permit Application on a form provided by the Department. A person shall also submit a performance bond, liability insurance, or other form of security required under the provisions of Regulation .10 of this chapter.  The application shall include the following completed information:

  (1) A written authorization signed by the legal owners of the site where the composting facility is to be installed, materially altered, or materially extended;

  (2) A current site plan designating the property boundary lines, the exact acreage of the site, existing and proposed composting facility structures, the location of any wells on the site and within 1/2 mile of the site, any residences or buildings on site and within 1/2 mile of the site, the proximity of the site to major roads in the area and any roads on the site, and surrounding land uses;

  (3) Tax maps and liber and folio numbers for the parcels of land on which the composting facility will be located and the names of the legal owners of the site;

  (4) A current site specific topographic map with a minimum scale of 1 inch = 200 feet and a contour interval of not more than 5 feet showing the areal extent of the site, and the location of any stream, spring, or seep within 1/2 mile of the site;

  (5) A site specific geologic and hydrogeologic report as required by the Department, including a hydrologic map showing the location of the 100-year flood plain, if applicable, and the location of all soil tests, soil borings and test pits on the site;

  (6) A description of the source, type, and quantity of sewage sludge to be composted, including any previous treatment the sewage sludge has received, such as anaerobic digestion, aerobic digestion, lime stabilization, composting, or dewatering;

  (7) A detailed description of the composting methods, processes, and monitoring procedures;

  (8) Detailed engineering plans and specifications for the installation, material alteration, or material extension of the composting facility prepared, signed, and bearing the seal of a registered professional engineer;

  (9) A detailed operation plan that includes, when applicable:

    (a) Procedures for sampling, on-site record keeping, and reporting of the sewage sludge to be composted;

    (b) Types of equipment to be used for collection, management, washdown, and other operations;

    (c) Days and hours of operation;

    (d) Methods and procedures to prevent or control odors and other potential nuisance conditions at the site;

    (e) Methods and procedures for utilizing the composted sewage sludge;

    (f) Contingency or emergency plans to manage fires, equipment breakdown, spills, and other emergency events;

    (g) Methods and procedures for restricting public access to the site;

    (h) For marketing Class A sewage sludge, a description of the marketing system to include an identification of the final utilization of the Class A sewage sludge;

    (i) For marketing Class A sewage sludge, documentation that the marketing and final utilization of the Class A sewage sludge will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department, and it does not cause or likely cause a discharge of constituents to the waters of the State;

    (j) For marketing Class A sewage sludge, a label that shall accompany the marketed sewage sludge, which:

      (i) Includes identification of the product as Class A sewage sludge or biosolids, sources of the sewage sludge, instructions for proper use with specific amounts and type of use (rate of application), field stockpiling (staging) and storage requirements, odor control measures, warnings, and restrictions necessary for utilization;

      (ii) Advises the person who is utilizing the product that the authorization to market the product does not relieve the person from civil or criminal liabilities or penalties for noncompliance with the Environment Article, Title 9, Annotated Code of Maryland, or any local, State, federal, or other state laws or regulations; and

      (iii) Includes any specific restrictions, warnings, or cautionary statements that the Department requires to be included on the label, and

    (k) For marketing Class A sewage sludge, a description that satisfies the Department of how the person will implement any additional conditions and management practices to market the Class A sewage sludge that the Department may require as it determines necessary;

  (10) Quality control monitoring plans;

  (11) Information on protection of water resources, including:

    (a) A detailed discussion of the methods to be used for the protection of ground and surface waters of the State; and

    (b) If required by the Department, a proposed ground and surface water monitoring plan that meets the following requirements:

      (i) The plan shall include a system for routinely monitoring the quality of waters of the State at, surrounding, and beneath the site, including the location and type of monitoring stations, and the method of construction of monitoring wells; and

      (ii) The plan shall provide for monitoring wells to be installed by a State licensed well driller in accordance with COMAR 26.04.04;

  (12) Plans for on-site storage of composted sewage sludge;

  (13) An assessment of the potential environmental impact of the composting facility;

  (14) Fire prevention and control plan;

  (15) A marketing plan and strategy for the composted sewage sludge with a description of the marketing system to include an identification of the final utilization of the Class A sewage sludge;

  (16) Unless the analytical results have been submitted to the Department in accordance with the requirements of Regulation .06 of this chapter, the most recent results of a laboratory analysis of a representative composite sample of the sewage sludge that was obtained from the wastewater treatment plant that generated the sewage sludge, subject to the following requirements:

    (a) The sample was obtained in accordance with the requirements of Regulation .06 of this chapter;

    (b) The analysis of the sample was performed by an independent laboratory or other laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department;

    (c) If requested by the Department, the results shall be accompanied by a description of the method or methods of analysis; and

    (d) The analytical results include, at a minimum:

      (i) Percent of total solids, pH, ammonium nitrogen, nitrate nitrogen, total phosphorous, total potassium, total arsenic, total cadmium, total copper, total lead, total mercury, total molybdenum, total nickel, total selenium, total zinc, polychlorinated biphenyls (PCBs), and the dry weight concentration of total Kjeldahl nitrogen; and

      (ii) Any other sewage sludge constituent that the Department determines necessary to adequately assess the potential impact of the project on public health and the environment; and

  (17) Other information that may be requested by the Department.

B. The Department may reject an analysis of a sewage sludge sample submitted in accordance with §A(16) of this regulation and require retesting and resubmittal of results if the Department determines that the method of analysis is inaccurate, or for any other good cause.

C. Permit Application Fees.

  (1) A person shall pay the Department a nonrefundable Sewage Sludge Utilization Permit Application fee in accordance with the following schedule:

    (a) For a new permit application, $350; and

    (b) For a renewal permit application, $350.

  (2) For activities which involve transportation of sewage sludge in combination with any other activities listed in the Sewage Sludge Utilization Permit Application, the Department will issue a single Sewage Sludge Utilization Permit to include all activities. For combined activities, only the application fee listed for transportation of sewage sludge in Regulation .23C of this chapter shall be waived.

#### Regulation .19 Composting Facility — Public and Local Government Participation Requirements for a Permit Application.

*COMAR 26.04.06.19*

A. To provide a county or a municipal corporation, if appropriate, with an opportunity to consult with the Department about the decision to issue, deny, or place restrictions on a Sewage Sludge Utilization Permit, the Department shall:

  (1) Publish a notice of the receipt of the Sewage Sludge Utilization Permit Application in a local newspaper having a substantial circulation in the county where the sewage sludge composting facility is to be installed, materially altered, or materially extended that contains the following information:

    (a) Name of the person applying for the permit;

    (b) A brief description of the project;

    (c) Sources of the sewage sludge;

    (d) Project type;

    (e) Location of the site;

    (f) A list of the persons within the local jurisdiction who have been sent copies of the application;

    (g) A statement of the right of the county or municipal corporation, if applicable, to request a public hearing within 15 calendar days after receipt of the application; and

    (h) Provisions for examination of the application by interested parties; and

  (2) Mail a copy of the application and the public notice published in accordance with §A(1) of this regulation to:

    (a) The chairman of the legislative body and any elected executive of the county and municipal corporation where the sewage sludge composting facility is to be installed, materially altered, or materially extended;

    (b) The chairman of the legislative body and any elected executive of any other county within 1 mile from the location where the sewage sludge composting facility is to be installed, materially altered, or materially extended; and

    (c) The local health official.

B. Within 15 calendar days of receipt of the application and the public notice, the chairman of the legislative body or any elected executive of the county or municipal corporation where the sewage sludge composting facility is to be installed, materially altered, or materially extended may request in writing that the Department conduct a public hearing.

C. If the Department receives a request for a public hearing in accordance with §B of this regulation, or if the Department determines that a public hearing would serve the public interest, the Department shall hold a public hearing in the affected subdivision where the sewage sludge composting facility is to be installed, materially altered, or materially extended . The Department shall notify the person applying for the Sewage Sludge Utilization Permit and shall give the person the opportunity to present information at the public hearing.

D. After the Department has established the date, place, and time for a public hearing, the Department shall publish a notice of the public hearing in a local newspaper having a substantial circulation in the county where the sewage sludge composting facility is to be installed, materially altered, or materially extended. The notice shall contain the following information:

  (1) A statement of the legal authority and jurisdiction under which the public hearing is to be held, and a reference to the particular statutes and regulations involved;

  (2) Name of the person applying for the permit;

  (3) A brief description of the project;

  (4) Sources of the sewage sludge;

  (5) Project type;

  (6) Location of the site;

  (7) The date, time, and place of the public hearing; and

  (8) Provisions for examination of the application by interested parties.

#### Regulation .20 Composting Facility — Record-Keeping and Reporting Requirements for a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.20*

A. The permittee shall generate a report containing the following information and maintain all documents used to generate the report for a period of 10 years:

  (1) The source, type, and quantity, including documentation of sewage sludge received and composted at the composting facility;

  (2) The types of sewage sludge composting methods;

  (3) Process monitoring and operating information demonstrating that the composted sewage sludge meets the requirements as specified in the applicable Sewage Sludge Utilization Permit;

  (4) A summary of the results of laboratory analysis that includes:

    (a) Copies of all analyses of chemical quality of the composted sewage sludge generated at the facility and the water quality for all constituents listed in the applicable Sewage Sludge Utilization Permit; and

    (b) In the event that a constituent exceeded the allowable level, a discussion or explanation of the exceedance;

  (5) The time periods during which the composting facility is inoperational;

  (6) The quantity, including documentation of composted and uncomposted sewage sludge transported from the composting facility;

  (7) The dates of transportation of composted and uncomposted sewage sludge from the composting facility;

  (8) The destinations and final utilization of composted and uncomposted sewage sludge;

  (9) Descriptions of problems encountered and their solutions;

  (10) Other related information regarding the composting facility as required by the applicable Sewage Sludge Utilization Permit; and

  (11) Other information that may be requested by the Department.

B. The permittee shall submit to the Department three completed copies of the report required by §A of this regulation for each year the Sewage Sludge Utilization Permit is in effect. The permittee shall submit to the Department the report on a form provided by the Department and in accordance with a schedule established by the Department.

#### Regulation .21 Composting Facility — Modifications, Material Alteration, or Extension.

*COMAR 26.04.06.21*

A. The Department may modify a Sewage Sludge Utilization Permit to include a new condition as may be required by new law or regulation, to clarify permit conditions, or for other good cause.

B. The Department may modify a Sewage Sludge Utilization Permit or materially alter or extend a composting facility upon request by the permittee if the following conditions are met:

  (1) The permittee submits to the Department four completed copies of the Sewage Sludge Utilization Permit modification application on a form provided by the Department, and all other required information and forms as determined by the Department, with the application including a description of the proposed modification, or material alteration or extension, and an explanation as to why it is needed;

  (2) The permittee shall pay the Department a nonrefundable fee in accordance with the following schedule:

    (a) For a modification, $40; and

    (b) For a material alteration or extension, $130; and

  (3) The Department determines that the proposed modification, or material alteration or extension is in compliance with the applicable requirements of this chapter and will not cause an undue risk to the environment or public health, safety, or welfare.

C. The following are modifications to a Sewage Sludge Utilization Permit for a sewage sludge composting facility:

  (1) Modification to the composting facility’s operation plan;

  (2) Addition of new sewage sludge sources or types of sewage sludge received at the composting facility;

  (3) Modification to the composting facility’s water quality monitoring plans;

  (4) The permittee’s name change; or

  (5) Other modifications as determined by the Department.

D. The following are material alterations or extensions to the sewage sludge composting facility:

  (1) Materially altering or extending the size of the structures or buildings used for composting sewage sludge;

  (2) Change to the types of composting processes authorized by the Sewage Sludge Utilization Permit for the composting facility; or

  (3) Other material alterations or extensions as determined by the Department.

E. If the Department considers a modification application complete and acceptable, the Department may modify the Sewage Sludge Utilization Permit.

F. If the Department modifies a Sewage Sludge Utilization Permit or materially alters or extends a composting facility, the Department shall send notice of the modification, material alteration or extension to the local health official and the local soil conservation district in the county in which the Sewage Sludge Utilization Permit is issued by the Department.

G. The Department may deny a modification application if the permittee is not in compliance with the applicable requirements of this chapter or any of the terms or conditions of the Sewage Sludge Utilization Permit or for other good cause as determined by the Department.

#### Regulation .22 Transportation.

*COMAR 26.04.06.22*

A. The Department may issue a Sewage Sludge Utilization Permit to transport sewage sludge if the equipment to be used, the operation plan, and the destination of the sewage sludge meet the requirements established by the Department.

B. Liquid sewage sludge may be pumped and transported by pipeline, truck, rail, or barge. Liquid sewage sludge shall be transported in closed watertight vessels or containers.

C. Sewage sludge cake that is greater than 15 percent but less than 20 percent total solids content may be transported in watertight containers, such as dump truck bodies or trailers that are sealed to prevent leakage or in closed body vehicles, such as a concrete mixer truck, subject to the following requirements:

  (1) The vehicle trailer shall be equipped with metal splash guards securely attached horizontally at the front and rear of the trailer; and

  (2) Each splash guard shall span at least 25 percent of the trailer's open area and have no gaps through which sewage sludge cake may escape.

D. Sewage sludge cake that is greater than 20 percent but less than 35 percent total solids content may be transported in watertight containers, such as dump truck bodies or trailers that are sealed to prevent leakage or in closed body vehicles, such as a concrete mixer truck, subject to the following requirements:

  (1) The vehicle trailer shall be equipped with metal splash guards securely attached horizontally at the front and rear of the trailer;

  (2) Each splash guard shall be at least 4 feet in length and shall be firmly welded or attached to the body of the trailer; and

  (3) A medium or heavy duty solid rubber or plastic tarp shall cover the open area of the trailer and shall overlap the splash guard by a minimum of 1 foot. The tarp shall be firmly held down with straps that are attached to ratchets that are bolted to the trailer. The tarp shall cover the top of the trailer so that there is no vertical opening between the tarp and the splash guards, and no opening between the tarp and the sides of the trailer.

E. Sewage sludge cake may be transported in watertight containers, such as dump truck bodies or trailers that are sealed to prevent leakage or in closed body vehicles, such as a concrete mixer truck, subject to the following freeboard requirements:

  (1) If the total solids content is greater than 15 percent but less than 25 percent, then a minimum of 2 feet of freeboard shall be maintained between the sewage sludge cake and the top of the trailer unless the top of the trailer is completely sealed; or

  (2) If the total solids content is greater than 25 percent but less than 35 percent, then a minimum of 1 foot of freeboard shall be maintained between the sewage sludge cake and the top of the trailer unless the top of the trailer is completely sealed.

F. The Department may require certain types of sewage sludge cake to be transported as liquid sewage sludge.

G. Dried sewage sludge may be transported in open vehicles, such as dump trucks, that are sealed to prevent leakage. The vehicles shall be covered with tarps or the equivalent.

#### Regulation .23 Transportation — Permit Application Requirements.

*COMAR 26.04.06.23*

A. A person shall submit to the Department a separate Sewage Sludge Utilization Permit Application for each site where sewage sludge is to be transported. A person shall submit to the Department six completed copies of the Sewage Sludge Utilization Permit Application on a form provided by the Department. A person shall also submit a performance bond, liability insurance, or other form of security required under the provisions of Regulation .10 of this chapter. The application shall include the following completed information:

  (1) A description of the source, type, and quantity of sewage sludge to be transported, including any previous treatment the sewage sludge has received, such as anaerobic digestion, aerobic digestion, lime stabilization, composting, or dewatering;

  (2) Unless the analytical results have been submitted to the Department in accordance with the requirements of Regulation .06 of this chapter, the most recent results of a laboratory analysis of a representative composite sample of the sewage sludge that was obtained from the wastewater treatment plant that generated the sewage sludge, subject to the following requirements:

    (a) The sample was obtained in accordance with the requirements of Regulation .06 of this chapter;

    (b) The analysis of the sample was performed by an independent laboratory or other laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department;

    (c) If requested by the Department, the results shall be accompanied by a description of the method or methods of analysis; and

    (d) The analytical results include, at a minimum:

      (i) Percent of total solids, pH, ammonium nitrogen, nitrate nitrogen, total phosphorous, total potassium, total arsenic, total cadmium, total copper, total lead, total mercury, total molybdenum, total nickel, total selenium, total zinc, polychlorinated biphenyls (PCBs), and the dry weight concentration of total Kjeldahl nitrogen; and

      (ii) Any other sewage sludge constituent that the Department determines necessary to adequately assess the potential impact of the project on public health and the environment;

  (3) A detailed operation plan that includes, when applicable:

    (a) Delineation of transportation routes, description of transportation vehicles, including type, size, number, type of seals on transportation vehicles and any modification made to prevent spills and leaks, and plans for maintaining clean transportation vehicles;

    (b) A spill or leak clean-up plan describing the procedures for managing and reporting a sewage sludge spill or leak;

    (c) Procedures for record keeping and reporting of the sewage sludge to be transported;

    (d) Types of equipment to be used for collection, management, washdown, and other operations;

    (e) Days and hours of operation;

    (f) Methods and procedures for utilizing sewage sludge; and

    (g) Contingency or emergency plans to manage equipment breakdown, spills, and other emergency events;

  (4) The destination and a detailed description of the final utilization of the sewage sludge at the destination; and

  (5) Other information that may be requested by the Department.

B. The Department may reject an analysis of a sewage sludge sample submitted in accordance with §A(2) of this regulation and require retesting and resubmittal of results if the Department determines that the method of analysis is inaccurate, or for any other good cause.

C. Permit Application Fees. A person shall pay the Department a nonrefundable Sewage Sludge Utilization Permit Application fee in accordance with the following schedule:

  (1) For a new permit application, $45; and

  (2) For a renewal permit application, $45.

#### Regulation .24 Transportation — Public and Local Government Participation Requirements for a Permit Application.

*COMAR 26.04.06.24*

A. To provide a county or a municipal corporation, if appropriate, with an opportunity to consult with the Department about the decision to issue, deny, or place restrictions on a Sewage Sludge Utilization Permit, the Department shall mail a copy of the application to transport sewage sludge in Maryland to:

  (1) The chairman of the legislative body and any elected executive of the county and municipal corporation where the sewage sludge is to be transported; and

  (2) The chairman of the legislative body and any elected executive of any other county within 1 mile of the site where the sewage sludge is to be transported.

B. The Department will consider all written comments and suggestions received within 15 calendar days after the chairman of the legislative body or the elected executive of the county or municipal corporation where the sewage sludge is to be transported receives the application regarding the proposed project.

#### Regulation .25 Transportation — Record-Keeping and Reporting Requirements for a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.25*

A. The permittee shall generate a report containing the following information and maintain all documents used to generate the report for a period of 10 years:

  (1) The source, type, and quantity, including documentation of treated and untreated sewage sludge transported;

  (2) The types of treatment the transported sewage sludge has received;

  (3) The dates of transportation of treated and untreated sewage sludge;

  (4) The destinations and final utilization of treated and untreated sewage sludge;

  (5) Descriptions of problems encountered and their solutions;

  (6) Other related information regarding the transportation of sewage sludge as required by the applicable Sewage Sludge Utilization Permit; and

  (7) Other information that may be requested by the Department.

B. The permittee shall submit to the Department three completed copies of the report required by §A of this regulation for each year the Sewage Sludge Utilization Permit is in effect. The permittee shall submit to the Department the report on a form provided by the Department and in accordance with a schedule established by the Department.

#### Regulation .26 Transportation — Modifications of a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.26*

A. The Department may modify a Sewage Sludge Utilization Permit to include a new condition as may be required by a new law or regulation, to clarify permit conditions, or for other good cause.

B. The Department may modify a Sewage Sludge Utilization Permit upon request by the permittee if the following conditions are met:

  (1) The permittee submits to the Department four completed copies of the Sewage Sludge Utilization Permit modification application on a form provided by the Department, and all other required information and forms as determined by the Department, with the application including a description of the proposed modification and an explanation as to why the modification is needed;

  (2) The permittee shall pay the Department a nonrefundable Sewage Sludge Utilization Permit modification fee in accordance with the following schedule:

    (a) For a minor modification, $40; and

    (b) For a major modification, $130; and

  (3) The Department determines that the proposed modification is in compliance with the applicable requirements of this chapter and will not cause an undue risk to the environment or public health, safety, or welfare.

C. The following are minor modifications to a Sewage Sludge Utilization Permit for transportation of sewage sludge:

  (1) Modification to haul routes;

  (2) Modification to the types of transportation vehicles;

  (3) Modification to the types of sewage sludge to be transported;

  (4) The permittee’s name change; or

  (5) Other modifications as determined by the Department.

D. The following are major modifications to a Sewage Sludge Utilization Permit for transportation of sewage sludge:

  (1) Modification to the sources of sewage sludge to be transported; or

  (2) Other modifications as determined by the Department.

E. If the Department considers a modification application complete and acceptable, the Department may modify the Sewage Sludge Utilization Permit.

F. If the Department modifies a Sewage Sludge Utilization Permit, the Department shall send notice of the modification to the local health official and the local soil conservation district in the county in which the Sewage Sludge Utilization Permit is issued by the Department.

G. The Department may deny a modification application if the permittee is not in compliance with the applicable requirements of this chapter or any of the terms and conditions of the Sewage Sludge Utilization Permit or for other good cause as determined by the Department.

#### Regulation .27 Storage Facility.

*COMAR 26.04.06.27*

A. The Department may not issue a Sewage Sludge Utilization Permit to install, materially alter, or materially extend a sewage sludge storage facility until the storage facility meets all zoning and local land use requirements of the county where the storage facility is to be located.

B. The Department may issue a Sewage Sludge Utilization Permit to install, materially alter, or materially extend a sewage sludge storage facility if the person applying for a Sewage Sludge Utilization Permit demonstrates that the following conditions and requirements will be met:

  (1) A 1,000-foot buffer zone shall be maintained between the storage facility property boundary lines and the nearest inhabited off-site dwelling, except that this buffer distance may be reduced if the Department determines that the storage facility has adequate odor control measures;

  (2) A storage facility may not be located in a flood prone area;

  (3) A storage facility located within a 100-year flood plain shall be evaluated as to its hydrologic impact on adjoining landowners;

  (4) The storage facility shall be designed, constructed, and operated to safely store sewage sludge in a manner that will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department;

  (5) A storage facility may be located on soils of low to moderate permeability or on soils that seal through sedimentation and biological action, subject to the following:

    (a) The permeability of such soils may not exceed 1.0 x 10-7 cm/sec as measured by appropriate test methods that are acceptable to the Department; or

    (b) If a storage facility is proposed on other soils, the Department shall require permeability tests or use of an impermeable membrane liner or soil sealant, or any combination of these;

  (6) The minimum design capacity of a storage facility not completely enclosed shall be the maximum volume of sewage sludge to be stored, plus the estimated liquid volume from precipitation on the facility occurring during the period of storage, minus the expected liquid volume of evaporation on from the storage facility surface during the period of storage, plus the liquid volume resulting from the maximum expected 25-year, 24-hour precipitation event;

  (7) A storage facility may be constructed of:

    (a) Compacted soils;

    (b) Manufactured materials, such as asphalt, steel, or reinforced concrete;

    (c) Fiberglass; or

    (d) Other materials approved by the Department;

  (8) A storage facility constructed on an above ground embankment shall meet the following:

    (a) The minimum combined inner and outer slopes of the embankment shall be 5 horizontal to 1 vertical with the wet side slope not steeper than a ratio of 2:1 and the dry side slope not steeper than 3:1;

    (b) Embankments having a height of 14 feet or less shall have a minimum top width of 8 feet;

    (c) Embankments having a height of 15 feet to 19 feet shall have a minimum top width of 10 feet; and

    (d) The initial construction height of the embankment may be increased over the design height to insure that the approved top elevation of the embankment is maintained after settlement of the embankment has occurred, subject to the following:

      (i) The increase in height of the embankment for the initial construction may not exceed 5 percent of the total approved height when compaction rollers are used; and

      (ii) The increase in height of the embankment for the initial construction may not exceed 10 percent of the total approved height when bulldozers or scrapers alone are used;

  (9) The minimum height of the storage facility after settlement shall be 10 percent greater than the design storage depth for the sewage sludge, except that the Department may waive this provision or reduce the freeboard requirements if the storage facility design includes a secondary containment capability and the accumulated liquids are routinely removed from the storage facility;

  (10) The side slopes of an excavated storage facility may not be steeper than 1:1;

  (11) A storage facility constructed by both the embankment and excavation method shall meet all of the requirements of §B(8) of this regulation if the design depth of the sewage sludge impounded against the embankment is 3 feet or more;

  (12) The storage facility shall be located in a relatively level area, usually less than 5 percent slope, and shall be located no closer than 150 feet from any drainage ditch, swale, or gully, and shall be bermed to prevent run-on of surface water, except that areas with ground slopes of greater than 5 percent may be considered suitable for a storage facility if diversion ditches, increased buffer distances, or other provisions can be made to further control storm water in the area of the storage facility;

  (13) The cell floor elevation shall be at least 2 feet above the maximum seasonal high groundwater elevation;

  (14) A storage facility may not be located on an unstable area;

  (15) The storage facility shall be lined to prevent leakage of material to groundwater, with an acceptable liner being:

    (a) A compacted soil layer at least 2 feet thick with an installed permeability of 1.0 x 10-5 cm/sec or less in combination with an artificial liner at least 30 mil in thickness with a permeability of 1.0 x 10-7 cm/sec or less, as measured by appropriate test methods that are acceptable to the Department; or

    (b) Other manufactured storage structures acceptable to the Department, including asphalt or reinforced concrete structures, steel tanks, fiberglass tanks, or their equivalent;

  (16) If a clay or soil liner is specified, the liner shall be constructed with protective layers to prevent erosion, dessication, and other sources of damage;

  (17) Public access to the storage facility shall be controlled; and

  (18) Any other conditions required by the Department to protect the public health and the environment.

#### Regulation .28 Storage Facility — Permit Application Requirements.

*COMAR 26.04.06.28*

A. A person shall submit to the Department a separate Sewage Sludge Utilization Permit Application for each site where a sewage sludge storage facility is to be installed, materially altered, or materially extended. A person shall submit to the Department seven completed copies of the Sewage Sludge Utilization Permit Application for a new Sewage Sludge Utilization Permit, a modification to a Sewage Sludge Utilization Permit, or a Sewage Sludge Utilization Permit renewal on a form provided by the Department. A person shall also submit a performance bond, liability insurance, or other form of security required under the provisions of Regulation .10 of this chapter. The application shall include the following completed information:

  (1) A written authorization signed by the legal owners of the site where the storage facility is to be installed, materially altered, or materially extended;

  (2) A current site plan designating the property boundary lines, the exact acreage of the site, existing and proposed storage facility structures, the location of any wells on the site and within 1/2 mile of the site, any residences or buildings on site and within 1/2 mile of the site, the proximity of the site to major roads in the area and any roads on the site, and surrounding land uses;

  (3) Tax maps and liber and folio numbers for the parcels of land on which the storage facility will be installed, materially altered, or materially extended and the names of the legal owners of the site;

  (4) A current site-specific topographic map with a minimum scale of 1 inch = 200 feet and a contour interval of not more than 5 feet showing the areal extent of the site, and the location of any stream, spring, or seep within 1/2 mile of the site;

  (5) A site specific geologic and hydrogeologic report as required by the Department, including a hydrologic map showing the location of the 100-year flood plain, if applicable, and the location of all soil tests, soil borings and test pits on the site;

  (6) A description of the source, type, and quantity of sewage sludge to be stored, including any previous treatment the sewage sludge has received, such as anaerobic digestion, aerobic digestion, lime stabilization, composting, or dewatering;

  (7) Detailed engineering plans and specifications including the design capacity calculation for the installation, material alteration, or material extension of the storage facility prepared, signed, and bearing the seal of a registered professional engineer;

  (8) The specifications for any liners or soil sealants used;

  (9) A quality assurance/quality control plan for construction of the storage facility which includes a provision that construction quality assurance/quality control shall be performed by an independent contractor not associated with the construction contractor;

  (10) A detailed operation plan that includes, when applicable:

    (a) Procedures for sampling, on-site record keeping, and reporting of the sewage sludge to be stored;

    (b) Types of equipment to be used for collection, management, washdown, and other operations;

    (c) Days and hours of operation;

    (d) Methods and procedures to prevent or control odors and other potential nuisance conditions at the site;

    (e) Methods and procedures for utilizing the stored sewage sludge;

    (f) Contingency or emergency plans to manage fires, equipment breakdown, spills, and other emergency events; and

    (g) Methods and procedures for restricting public access to the site;

  (11) Information on protection of water resources, including:

    (a) A detailed discussion of the methods to be used for the protection of ground and surface waters of the State; and

    (b) If required by the Department, a proposed ground and surface water monitoring plan that meets the following requirements:

      (i) The plan shall include a system for routinely monitoring the quality of waters of the State at, surrounding, and beneath the site, including the location and type of monitoring stations, and the method of construction of monitoring wells; and

      (ii) The plan shall provide for monitoring wells to be installed by a State licensed well driller in accordance with COMAR 26.04.04;

  (12) An assessment of the potential environmental impact of the storage facility;

  (13) Documentation showing the maximum seasonal high groundwater elevation;

  (14) For storage facilities constructed of earthen materials, or for storage facilities constructed or installed below grade, the following information:

    (a) Adequate test boring logs, for a minimum of three borings per 10 acres, subject to the following:

      (i) The logs shall detail the soil, sediment, and rock types encountered, depth of groundwater at time of completion and at 24 hours, 48 hours, and 72 hours after completion, and depth of auger refusal, if applicable; and

      (ii) The location of each boring shall be accurately mapped in accordance with §A(5) of this regulation;

    (b) A description of the geology at the site, including a discussion of the geologic formations directly involved and the present and future use of these formations as a groundwater source and their relationship to underlying formations, providing cross sections based on the information compiled from borehole data, with this information being incorporated into the geologic and hydrogeologic report required by §A(5) of this regulation;

    (c) A description of the hydrologic characteristics of the site, including a groundwater contour map superimposed on a topographic map, showing the location of the water table and the direction and rate of groundwater flow, a discussion of the infiltration capacity of surface soils, and the percolation capacity of subsurface soils, with this information being incorporated into the geologic and hydrogeologic report required by §A(5) of this regulation; and

    (d) Provision for sediment and erosion control approved by the appropriate approving authority;

  (15) For manufactured storage facilities, the following information:

    (a) Information on the structural materials to be used;

    (b) Design specifications, such as dimensions, structural capacity, maximum load, and restrictions on use; and

    (c) Installation or construction techniques and procedures;

  (16) For above ground enclosed storage facilities, a plan for controlling gaseous emissions and odors;

  (17) Unless the analytical results have been submitted to the Department in accordance with the requirements of Regulation .06 of this chapter, the most recent results of a laboratory analysis of a representative composite sample of the sewage sludge that was obtained from the wastewater treatment plant that generated the sewage sludge, subject to the following requirements:

    (a) The sample was obtained in accordance with the requirements of Regulation .06 of this chapter;

    (b) The analysis of the sample was performed by an independent laboratory or other laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department;

    (c) If requested by the Department, the results shall be accompanied by a description of the method or methods of analysis; and

    (d) The analytical results include, at a minimum:

      (i) Percent of total solids, pH, ammonium nitrogen, nitrate nitrogen, total phosphorous, total potassium, total arsenic, total cadmium, total copper, total lead, total mercury, total molybdenum, total nickel, total selenium, total zinc, polychlorinated biphenyls (PCBs), and the dry weight concentration of total Kjeldahl nitrogen; and

      (ii) Any other sewage sludge constituent that the Department determines necessary to adequately assess the potential impact of the project on public health and the environment;

  (18) A proposed closure and post-closure plan to be implemented for a period of not less than five years after the cessation of storage of sewage sludge at the storage facility and the removal of all sewage sludge stored at the storage facility; and

  (19) Other information that may be requested by the Department.

B. The Department may reject an analysis of a sewage sludge sample submitted in accordance with §A(17) of this regulation and require retesting and resubmittal of results if the Department determines that the method of analysis is inaccurate, or for any other good cause.

C. Permit Application Fees.

  (1) A person shall pay the Department a nonrefundable Sewage Sludge Utilization Permit Application fee in accordance with the following schedule:

    (a) For a new permit application, $750; and

    (b) For a renewal permit application, $750.

  (2) For activities, which involve transportation of sewage sludge in combination with any other activities listed in the Sewage Sludge Utilization Permit Application, the Department will issue a single Sewage Sludge Utilization Permit to include all activities. For combined activities, only the application fee listed for transportation of sewage sludge in Regulation .23C of this chapter shall be waived.

#### Regulation .29 Storage Facility — Public and Local Government Participation.

*COMAR 26.04.06.29*

A. To provide a county or a municipal corporation, if appropriate, with an opportunity to consult with the Department about the decision to issue, deny, or place restrictions on a Sewage Sludge Utilization Permit, the Department shall mail a copy of a new, modification, or renewal Sewage Sludge Utilization Permit Application to install, materially alter, or materially extend a sewage sludge storage facility to:

  (1) The chairman of the legislative body and any elected executive of the county and municipal corporation where the storage facility is to be installed, materially altered or materially extended; and

  (2) The chairman of the legislative body and any elected executive of any other county within 1 mile from the location where the storage facility is to be installed, materially altered or materially extended.

B. The Department shall comply with the requirements for public participation in the permitting process in Environment Article, Title 1, Subtitle 6, and §9-234.1, Annotated Code of Maryland.

#### Regulation .30 Storage Facility — Record-Keeping and Reporting Requirements for a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.30*

A. The permittee shall generate a report containing the following information and maintain all documents used to generate the report for a period of 10 years:

  (1) The source, type, and quantity, including documentation of sewage sludge received and stored at the storage facility;

  (2) The quantity, including documentation of sewage sludge transported from the storage facility;

  (3) The dates of transportation of sewage sludge to and from the storage facility;

  (4) The destinations and final utilization of sewage sludge transported from the storage facility;

  (5) The water quality monitoring results required by the Department;

  (6) Descriptions of problems encountered and their solutions;

  (7) Other related information regarding the storage facility as required by the applicable Sewage Sludge Utilization Permit; and

  (8) Other information that may be requested by the Department.

B. The permittee shall submit to the Department three completed copies of the report required by §A of this regulation for each year the Sewage Sludge Utilization Permit is in effect. The permittee shall submit to the Department the report on a form provided by the Department and in accordance with a schedule established by the Department.

#### Regulation .31 Storage Facility — Modifications, Material Alterations or Extensions.

*COMAR 26.04.06.31*

A. The Department may modify a Sewage Sludge Utilization Permit to include a new condition as may be required by a new law or regulation, to clarify permit conditions, or for other good cause.

B. The Department may modify a Sewage Sludge Utilization Permit or materially alter or extend a storage facility upon request by the permittee if the following conditions are met:

  (1) The permittee submits to the Department six completed copies of the Sewage Sludge Utilization Permit application on a form provided by the Department, and all other required information and forms as determined by the Department, with the application including a description of the proposed modification, material alteration or extension, and an explanation as to why it is needed;

  (2) The permittee shall pay the Department a nonrefundable fee in accordance with the following schedule:

    (a) For a modification, $40; and

    (b) For a material alteration or extension, $130; and

  (3) The Department determines that the proposed modification, material alteration, or extension is in compliance with the applicable requirements of this chapter and will not cause an undue risk to the environment or public health, safety, or welfare.

C. The following are modifications to a Sewage Sludge Utilization Permit for a sewage sludge storage facility:

  (1) Modification to the source or type of sewage sludge authorized for storage at the storage facility;

  (2) Modification to the storage facility’s operation plan;

  (3) Modification to the storage facility’s water quality monitoring plans;

  (4) Modification to the closure and post-closure plan;

  (5) Modification to the storage facility’s days or hours of operation if:

    (a) The days and hours of operation were not an issue of concern during the public hearing process; and

    (b) The permittee provides the Department with a written statement from the local government where the storage facility is located that the revised days and hours of operations meet all zoning and local land use requirements of the county where the storage facility is located;

  (6) The permittee’s name change; or

  (7) Other modifications as determined by the Department.

D. If the Department considers a modification application complete and acceptable, the Department may modify the Sewage Sludge Utilization Permit.

E. The following are material alterations or extensions to the sewage sludge storage facility:

  (1) Materially altering or extending the size of the structures or buildings used for storage of sewage sludge;

  (2) Change to the storage facility’s days or hours of operation if:

    (a) The days and hours of operation were an issue of concern during the public hearing process; and

    (b) The permittee provides the Department with a written statement from the local government where the storage facility is located that the revised days and hours of operations meet all zoning and local land use requirements of the county where the storage facility is located; or

  (3) Other material alterations or extensions as determined by the Department.

F. If the Department considers an application for material alteration or extension complete and acceptable, the Department may process the application in accordance with the requirements under Regulation .29 of this chapter.

G. If the Department modifies a Sewage Sludge Utilization Permit or materially alters or extends a storage facility, the Department shall send notice of the modification, material alteration or extension to the local health official and the local soil conservation district in the county in which the Sewage Sludge Utilization Permit is issued by the Department.

H. The Department may deny an application to modify a Sewage Sludge Utilization Permit or materially alter or extend a storage facility if the permittee is not in compliance with the applicable requirements of this chapter or any of the terms or conditions of the Sewage Sludge Utilization Permit or for other good cause as determined by the Department.

#### Regulation .32 Distribution Facility.

*COMAR 26.04.06.32*

A. The Department may issue a Sewage Sludge Utilization Permit to install, materially alter, or materially extend a sewage sludge distribution facility if the person applying for a Sewage Sludge Utilization Permit demonstrates that the following conditions and requirements will be met:

  (1) The sewage sludge has been classified by the Department as Class A sewage sludge;

  (2) When distributed, a label shall accompany the distributed sewage sludge, which:

    (a) Includes identification of the product as Class A sewage sludge or biosolids, sources of the sewage sludge, instructions for proper use with specific amounts and type of use (rate of application), warnings, and restrictions necessary for usage or storage;

    (b) Advises the person who is utilizing the product that the authorization to distribute the product does not relieve the person from civil or criminal liabilities or penalties for noncompliance with the Environment Article, Title 9, Annotated Code of Maryland, or any local, State, federal, or other state laws or regulations; and

    (c) Includes any specific restrictions, warnings, or cautionary statement that the Department requires to be included on the label;

  (3) The sewage sludge to be distributed from the distribution facility does not contain free liquid, with the presence of free liquid determined by:

    (a) Application of Method 9095B (Paint Filter Liquids Test) as outlined in the most recent edition of the USEPA Publication SW-846 “Test Methods for Evaluating Solid Waste”, which is incorporated by reference in COMAR 26.13.01.05A(4); or

    (b) A comparable test approved by the Department;

  (4) For a facility constructed after May 26, 2014, a 1,000-foot buffer zone shall be maintained between the distribution facility sewage sludge processing or storage area and the nearest inhabited off-site dwelling, except that this buffer distance may be reduced if the Department determines that the distribution facility has adequate odor control measures;

  (5) A distribution facility may not be located in a flood prone area;

  (6) A distribution facility located within a 100-year flood plain shall be evaluated as to its hydrologic impact on adjoining landowners;

  (7) The distribution facility is designed, constructed, and operated to safely distribute sewage sludge in a manner that will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department;

  (8) The cell floor elevation shall be at least 2 feet above the maximum seasonal high groundwater elevation;

  (9) A distribution facility may not be located on an unstable area;

  (10) Any other special conditions and management practices to land apply Class A sewage sludge required by the Department as the Department determines necessary; and

  (11) Public access to the distribution facility is controlled.

B. A written quality control monitoring plan approved by the Department shall be implemented by the facility to ensure that the Class A sewage sludge to be distributed meets the Department's standards regarding the destruction of primary pathogenic organisms, reduction of vector attraction, and limitations for heavy metals and other constituents.

#### Regulation .33 Distribution Facility — Permit Application Requirements.

*COMAR 26.04.06.33*

A. A person shall submit to the Department a separate Sewage Sludge Utilization Permit Application for each site where a sewage sludge distribution facility is to be located. A person shall submit to the Department six completed copies of the Sewage Sludge Utilization Permit Application for a new Sewage Sludge Utilization Permit, a modification to a Sewage Sludge Utilization Permit, or a Sewage Sludge Utilization Permit renewal on a form provided by the Department. A person shall also submit a performance bond, liability insurance, or other form of security required under the provisions of Regulation .10 of this chapter. The application shall include the following completed information:

  (1) A written authorization signed by the legal owners of the site where the distribution facility is to be installed, materially altered, or materially extended;

  (2) A current site plan designating the property boundary lines, the exact acreage of the site, existing and proposed distribution facility structures, the location of any wells on the site and within 1/2 mile of the site, any residences or buildings on site and within 1/2 mile of the site, the proximity of the site to major roads in the area and any roads on the site, and surrounding land uses;

  (3) Tax maps and liber and folio numbers for the parcels of land on which the distribution facility will be installed, materially altered, or materially extended and the names of the legal owners of the site;

  (4) A current site-specific topographic map with a minimum scale of 1 inch = 200 feet and a contour interval of not more than 5 feet showing the areal extent of the site, and the location of any stream, spring, or seep within 1/2 mile of the site;

  (5) A site-specific geologic and hydrogeologic report as required by the Department, including a hydrologic map showing the location of the 100-year flood plain, if applicable, and the location of all soil tests, soil borings and test pits on the site;

  (6) A description of the source, type, and quantity of sewage sludge to be distributed, including any previous treatment the Class A sewage sludge has received, such as anaerobic digestion, aerobic digestion, lime stabilization, composting, or dewatering;

  (7) Detailed engineering plans and specifications including the design capacity calculation for the installation, material alteration, or material extension of the distribution facility prepared, signed, and bearing the seal of a registered professional engineer;

  (8) A detailed operation plan that includes, when applicable:

    (a) Procedures for sampling, on-site record keeping, and reporting of the sewage sludge to be distributed;

    (b) Types of equipment to be used for collection, management, washdown, and other operations;

    (c) Days and hours of operation;

    (d) Methods and procedures to prevent or control odors and other potential nuisance conditions at the site;

    (e) Methods and procedures for utilizing the distributed sewage sludge;

    (f) Contingency or emergency plans to manage fires, equipment breakdown, spills, and other emergency events; and

    (g) Methods and procedures for restricting public access to the site;

  (9) A proposed ground and surface water monitoring plan that:

    (a) Includes a system for routinely monitoring the quality of waters of the State at, surrounding, and beneath the site;

    (b) Specifies the location and type of monitoring stations;

    (c) Specifies the method of construction of monitoring wells; and

    (d) Provides that monitoring wells shall be installed by a State licensed well driller in accordance with COMAR 26.04.04;

  (10) An assessment of the potential environmental impact of the distribution facility;

  (11) Documentation showing the maximum seasonal high groundwater elevation;

  (12) Unless the analytical results have been submitted to the Department in accordance with the requirements of Regulation .06 of this chapter, the most recent results of a laboratory analysis of a representative composite sample of the sewage sludge that was obtained from the wastewater treatment plant that generated the sewage sludge, subject to the following requirements:

    (a) The sample was obtained in accordance with the requirements of Regulation .06 of this chapter;

    (b) The analysis of the sample was performed by an independent laboratory or other laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department;

    (c) If requested by the Department, the results shall be accompanied by a description of the method or methods of analysis; and

    (d) The analytical results include, at a minimum:

      (i) Percent of total solids, pH, ammonium nitrogen, nitrate nitrogen, total phosphorous, total potassium, total arsenic, total cadmium, total copper, total lead, total mercury, total molybdenum, total nickel, total selenium, total zinc, polychlorinated biphenyls (PCBs), and the dry weight concentration of total Kjeldahl nitrogen; and

      (ii) Any other sewage sludge constituent that the Department determines necessary to adequately assess the potential impact of the project on public health and the environment;

  (13) A label shall accompany the distributed sewage sludge, which:

    (a) Includes identification of the product as Class A sewage sludge or biosolids, sources of the sewage sludge, instructions for proper use with specific amounts and type of use (rate of application), warnings, and restrictions necessary for usage or storage;

    (b) Advises the person who is utilizing the product that the authorization to distribute the product does not relieve the person from civil or criminal liabilities or penalties for noncompliance with the Environment Article, Title 9, Annotated Code of Maryland, or any local, State, federal, or other state laws or regulations; and

    (c) Includes any specific restrictions, warnings, or cautionary statement that the Department requires to be included on the label;

  (14) A description of the distribution system to include an identification of the final utilization of the Class A sewage sludge;

  (15) Quality control monitoring plans;

  (16) Documentation that the proposed distribution and final utilization of the Class A sewage sludge will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department; and

  (17) Other information that may be requested by the Department.

B. The Department may reject an analysis of a sewage sludge sample submitted in accordance with §A(12) of this regulation and require retesting and resubmittal of results if the Department determines that the method of analysis is inaccurate, or for any other good cause.

C. Permit Application Fees.

  (1) A person shall pay the Department a nonrefundable Sewage Sludge Utilization Permit Application fee in accordance with the following schedule:

    (a) For a new permit application, $750; and

    (b) For a renewal permit application, $750.

  (2) For activities which involve transportation of the sewage sludge in combination with any other activities listed in the Sewage Sludge Utilization Permit Application, the Department will issue a single Sewage Sludge Utilization Permit to include all activities. For combined activities, only the application fee listed for transportation of the sewage sludge in Regulation .23C of this chapter shall be waived.

#### Regulation .34 Distribution Facility — Public and Local Government Participation Requirements for a Permit Application.

*COMAR 26.04.06.34*

A. To provide a county or a municipal corporation, if appropriate, with an opportunity to consult with the Department about the decision to issue, deny, or place restrictions on a Sewage Sludge Utilization Permit, the Department shall mail a copy of a new, modification, or renewal Sewage Sludge Utilization Permit Application to install, materially alter, or materially extend a Class A sewage sludge distribution facility to:

  (1) The chairman of the legislative body and any elected executive of the county and municipal corporation where the distribution facility is to be installed, materially altered or materially extended; and

  (2) The chairman of the legislative body and any elected executive of any other county within 1 mile from the location where the distribution facility is to be installed, materially altered or materially extended.

B. The Department shall comply with the requirements for public participation in the permitting process in Environment Article, Title 1, Subtitle 6, and §9-234.1, Annotated Code of Maryland.

#### Regulation .35 Distribution Facility — Record-Keeping and Reporting Requirements for a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.35*

A. The permittee shall generate a report containing the following information and maintain all documents used to generate the report for a period of 10 years:

  (1) The source, type, and quantity, including documentation of sewage sludge received at and distributed from the distribution facility;

  (2) The dates of transportation and distribution of Class A sewage sludge to and from the distribution facility;

  (3) The destinations and final utilization of the Class A sewage sludge;

  (4) The water quality monitoring results required by the Department;

  (5) Descriptions of problems encountered and their solutions;

  (6) Other related information regarding the distribution of Class A sewage sludge as required by the applicable Sewage Sludge Utilization Permit; and

  (7) Other information that may be requested by the Department.

B. The permittee shall submit to the Department three completed copies of the report required by §A of this regulation for each year the Sewage Sludge Utilization Permit is in effect. The permittee shall submit to the Department the report on a form provided by the Department and in accordance with a schedule established by the Department.

#### Regulation .36 Distribution Facility — Modifications, Material Alterations or Extensions.

*COMAR 26.04.06.36*

A. The Department may modify a Sewage Sludge Utilization Permit to include a new condition as may be required by a new law or regulation, to clarify permit conditions, or for other good cause.

B. The Department may modify a Sewage Sludge Utilization Permit or materially alter or extend a distribution facility upon request by the permittee if the following conditions are met:

  (1) The permittee submits to the Department six completed copies of the Sewage Sludge Utilization Permit application on a form provided by the Department, and all other required information and forms as determined by the Department, with the application including a description of the proposed modification, material alteration or extension, and an explanation as to why it is needed;

  (2) The permittee shall pay the Department a nonrefundable fee in accordance with the following schedule:

    (a) For a modification, $40; and

    (b) For a material alteration or extension, $130; and

  (3) The Department determines that the proposed modification, material alteration, or extension is in compliance with the applicable requirements of this chapter and will not cause an undue risk to the environment or public health, safety, or welfare.

C. The following are modifications to a Sewage Sludge Utilization Permit for a Class A sewage sludge distribution facility:

  (1) Modification to the source or type of Class A sewage sludge authorized for distribution from the distribution facility;

  (2) Modification to the distribution facility’s operation plan;

  (3) Modification to the distribution facility’s water quality monitoring plans;

  (4) Modification to the closure and post-closure plan;

  (5) Modification to the distribution facility’s days and hours of operation provided the days and hours of operation were not an issue of concern during the public hearing process;

  (6) The permittee’s name change;

  (7) Modifications to the approved label; or

  (8) Other modifications as determined by the Department.

D. If the Department considers a modification application complete and acceptable, the Department may modify the Sewage Sludge Utilization Permit.

E. The following are material alterations or extensions to a Class A sewage sludge distribution facility:

  (1) Materially altering or extending the size of the structures or buildings used to distribute Class A sewage sludge;

  (2) Change to the distribution facility’s days or hours of operation if the days and hours of operation were an issue of concern during the public hearing process; or

  (3) Other material alterations or extensions as determined by the Department.

F. If the Department considers an application for material alteration or extension complete and acceptable, the Department may process the application in accordance with the requirements under Regulation .34 of this chapter.

G. If the Department modifies a Sewage Sludge Utilization Permit or materially alters or extends a distribution facility, the Department shall send notice of the modification, material alteration or extension to the local health official and the local soil conservation district in the county in which the Sewage Sludge Utilization Permit is issued by the Department.

H. The Department may deny an application to modify a Sewage Sludge Utilization Permit or materially alter or extend a distribution facility if the permittee is not in compliance with the applicable requirements of this chapter or any of the terms or conditions of the Sewage Sludge Utilization Permit or for other good cause as determined by the Department.

#### Regulation .37 Agricultural Land.

*COMAR 26.04.06.37*

A. The Department may issue a Sewage Sludge Utilization Permit to apply sewage sludge on agricultural land if the following requirements are met:

  (1) The sewage sludge has been classified by the Department as Class B sewage sludge and meets the applicable vector attraction reduction requirements in 40 CFR §503.33;

  (2) The concentration of each constituent in the sewage sludge is less than or equal to the ceiling concentration for the constituent listed in Table 1 of Regulation .05B(1) of this chapter;

  (3) The sewage sludge meets one of the following criteria:

    (a) No constituent in the sewage sludge exceeds the cumulative constituent loading rate for the constituent listed in Table 2 of Regulation .05B(2) of this chapter; or

    (b) No constituent in the sewage sludge exceeds the constituent concentration for the constituent listed in Table 3 of Regulation .05B(3) of this chapter;

  (4) A nutrient management plan is prepared for the site by a certified and licensed nutrient management consultant or a certified operator in accordance with the requirements of COMAR 15.20.04, and is in compliance with COMAR 15.20.07 and 15.20.08; and

  (5) Expected crop yields submitted to the Department as part of the Sewage Sludge Utilization Permit Application are determined to be in accordance with the requirements in COMAR 15.20.08.

B. The Department may restrict or apply special provisions for the land application of sewage sludge on fields that are adjacent to or bordering homes, schools, places of worship, hospitals, legal boundaries of incorporated municipalities, or other locations of concern as determined by the Department.

C. Sewage sludge may not be applied on agricultural land unless:

  (1) The sewage sludge has been classified by the Department as Class A sewage sludge; or

  (2) The sewage sludge has been classified by the Department as Class B sewage sludge and the requirements of §D of this regulation are met.

D. Class B sewage sludge may be applied on agricultural land only if the following requirements are met:

  (1) The requirements of §A(1)—(5) of this regulation;

  (2) Requirements concerning minimum buffer distances, as follows:

    (a) Class B sewage sludge may not be applied closer than the minimum buffer distance to a feature of concern identified in Table 1 of §D(2)(b) of this regulation, unless the Department establishes an alternate minimum buffer distance in accordance with §D(2)(e) of this regulation.

    (b) Table 1 — Minimum Buffer Distances

    (c) Sewage sludge may be land applied even though soil survey results indicate that the depth to bedrock or the depth to the water table is less than 20 inches if it can be demonstrated that field conditions are in compliance with the 20-inch buffer distance requirements for these features of concern by:

      (i) Using a soil test pit or an auger boring for each applicable soil mapping unit; and

      (ii) Demonstrating compliance within 7 days before land application;

    (d) For agricultural land located within a critical area as identified by the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays, sewage sludge:

      (i) May not be land applied within 100 feet of the Mean High Water Line of tidal waters or the landward edge of tidal wetlands; and

      (ii) May only be subsurface injected or incorporated between 101 and 1,000 feet of the Mean High Water Line of tidal waters or the landward edge of tidal wetlands;

    (e) Except as otherwise prohibited by law, the Department may modify the minimum buffer distances established in §D(2)(b) of this regulation as follows:

      (i) The Department may increase or decrease the minimum buffer distance associated with any feature of concern identified in Table 1 of §D(2)(b) of this regulation;

      (ii) The Department may establish minimum buffer distances for features of concern not identified in Table 1 of §D(2)(b) of this regulation, such as particular categories of land use; and

      (iii) In modifying the minimum buffer distances, the Department may consider the sewage sludge application method, the application rate, adjacent land use, land slopes, vegetated filter strip, the type and condition of any surrounding bodies of water, and any other factor considered relevant by the Department;

  (3) Bulk sewage sludge may not be applied to a public contact site;

  (4) Requirements concerning slope, as follows:

    (a) Unless modified by the Department in accordance with §D(4)(b) of this regulation, the following requirements concerning slope shall be met:

      (i) The sewage sludge may not be applied on a slope that is greater than 15 percent;

      (ii) Liquid sewage sludge which is surface applied on a slope that is greater than 6 percent shall be applied in accordance with COMAR 15.20.08; and

      (iii) Liquid sewage sludge may be subsurface injected on a slope that is up to 15 percent; and

    (b) The limits of §D(4)(a) of this regulation may be modified by the Department, but only if the Department determines that sediment and erosion controls or other features at a site, or both, are sufficient to protect the public health and the environment;

  (5) Sewage sludge may not be applied when:

    (a) The soil is saturated;

    (b) The ground is flooded, ponded, frozen or covered with snow; or

    (c) Weather conditions prevent compliance with the requirement to incorporate the sewage sludge into the soil;

  (6) The timing of sewage sludge land application shall be in accordance with the requirements of COMAR 15.20.08;

  (7) Areas where sewage sludge is to be applied shall be clearly marked with stakes or other markers before the application of the sewage sludge;

  (8) Sites shall be contour plowed, if required by the Department;

  (9) At the time of land application of sewage sludge on a permitted privately owned site, if required by the Department, the permittee posts signs that meet the following requirements:

    (a) The location, size, content, and number of the signs are as specified by the Department;

    (b) The signs are legible, placed in conspicuous areas on the boundaries of the permitted fields, and visible from contiguous public roads and properties with occupied dwellings;

    (c) The locations of the signs and time period during which the signs are required to be posted are not in violation of any local or State laws or regulations;

    (d) The signs are composed of weather resistant materials and sturdily mounted so as to be capable of remaining in place for 30 days after completion of the land application of sewage sludge on the permitted site; and

    (e) The signs are maintained, promptly repaired, or replaced if they are removed or damaged so as to render any of the information illegible;

  (10) For a permitted publically owned site, the permittee is in compliance with sign requirements that will be determined by the Department based on site-specific information;

  (11) The sewage sludge shall be applied in a manner approved by the Department using conventional agricultural equipment, such as manure spreaders, spray equipment, or other applicators, or by commercial equipment specifically designed for sewage sludge application on agricultural land, with all conventional agricultural and commercial equipment used for agricultural land application required to be calibrated in accordance with the manufacturer’s recommendations before land application of the sewage sludge begins;

  (12) The sewage sludge applied shall be incorporated into the soil by the end of each working day unless incorporation is excepted by Section 1D of the Maryland Nutrient Management Manual incorporated by reference into COMAR 15.20.07.02;

  (13) When sewage sludge is applied to forage grasses, the grass shall be cropped or closely grazed immediately before sewage sludge land application;

  (14) Public access to land with a high potential for public exposure shall be restricted for 1 year after application of sewage sludge;

  (15) Public access to land with a low potential for public exposure shall be restricted for 30 days after application of sewage sludge;

  (16) Animals whose products are consumed by humans may not be allowed to graze on the land for 30 days after application of sewage sludge, and the growth of crops for direct human consumption is prohibited for 3 years after land application of sewage sludge;

  (17) Food crops harvested off sewage sludge land application sites shall meet the following requirements:

    (a) Food crops with harvested parts that touch the sewage sludge soil mixture and are totally above the land surface may not be harvested for 14 months after application of sewage sludge;

    (b) Food crops with harvested parts below the surface of the land may not be harvested for 20 months after application of sewage sludge when the sewage sludge remains on the land surface for four months or longer before incorporation in the soil;

    (c) Food crops with harvested parts below the surface of the land may not be harvested for 38 months after application of sewage sludge when the sewage sludge remains on the land surface for less than 4 months before incorporation into the soil;

    (d) Feed crops or fiber crops may not be harvested for 30 days after application of sewage sludge; and

    (e) Turf grown on land where sewage sludge is applied may not be harvested for 1 year after application of sewage sludge when the harvested turf is placed on either a lawn or land with a high potential for public exposure, unless otherwise specified by the Department; and

  (18) Trucks, tires and vehicle undercarriages shall be cleaned on the site to prevent drag-out of soil or sewage sludge onto public roads.

#### Regulation .38 Agricultural Land — Permit Application Requirements.

*COMAR 26.04.06.38*

A. A person shall submit to the Department a separate Sewage Sludge Utilization Permit Application for each site where sewage sludge is to be applied on agricultural land, subject to the following:

  (1) Adjacent properties owned and operated by separate persons shall be considered as separate sites; and

  (2) Nonadjacent parcels of land that are owned or operated by the same person, as evidenced by a farm plan or other documentation acceptable to the Department, may be considered a single site if the distance between the parcels is 3 miles or less.

B. A person shall submit to the Department seven completed copies of the Sewage Sludge Utilization Permit Application on a form provided by the Department. A person shall also submit a performance bond, liability insurance, or other form of security required under the provisions of Regulation .10 of this chapter.

C. The Sewage Sludge Utilization Permit Application to apply sewage sludge on agricultural land shall include seven completed copies of the following forms provided by the Department and signed and dated not more than 6 months before the receipt of the Sewage Sludge Utilization Permit Application by the Department:

  (1) An owner’s consent form completed and signed by the legal owners of the site where sewage sludge is to be applied;

  (2) A site information form completed and signed by the person applying for a permit and the farmer or operator of the site where sewage sludge is to be applied; and

  (3) A completed manganese advisory form signed by the person applying for the permit, the farmer or operator and the legal owners of the site where sewage sludge is to be applied if the site is located on the Coastal Plain and the sewage sludge to be applied is limed sewage sludge.

D. The Sewage Sludge Utilization Permit Application to apply sewage sludge on agricultural land shall include seven completed copies of the following information:

  (1) The sources and types of sewage sludge to be applied, including any treatment the sewage sludge has received, such as anaerobic digestion, aerobic digestion, lime stabilization, composting, or dewatering;

  (2) A current site specific topographic map with a minimum scale of 1 inch = 200 feet and a contour interval of not more than 5 feet showing the areal extent of the site, the property boundary lines, field boundaries, and the proximity of the site to major roads in the area and any roads on the site;

  (3) A current site plan that includes:

    (a) The location of property boundary lines and field boundaries;

    (b) The exact acreage where sewage sludge is to be applied;

    (c) The location of all buffer distances;

    (d) The location of any residences or buildings on site or within 1/2 mile of the site;

    (e) An inventory of any domestic, commercial, or municipal wells on site and within 1/2 mile of the property boundary lines, including water level for the wells if available;

    (f) The location of any on-site stream, spring, seep, pond, drainage ditch or other body of water;

    (g) The location of any on-site area with a slope of 15 percent or greater;

    (h) The location of any on-site bedrock outcropping;

    (i) The location of any on-site depression area;

    (j) The surrounding land uses;

    (k) Other features as determined by the Department; and

    (l) A legend identifying the key features on the site plan;

  (4) Unless the analytical results have been submitted to the Department in accordance with the requirements of Regulation .06 of this chapter, the results of a laboratory analysis of a representative composite sample of the sewage sludge that was obtained from the wastewater treatment plant that generated the sewage sludge not more than 6 months before the receipt of the Sewage Sludge Utilization Permit Application by the Department, subject to the following requirements:

    (a) The sample was obtained in accordance with the requirements of Regulation .06 of this chapter;

    (b) The analysis of the sample was performed by an independent laboratory or other laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department;

    (c) If requested by the Department, the results shall be accompanied by a description of the method or methods of analysis; and

    (d) The analytical results include, at a minimum:

      (i) Percent of total solids, pH, ammonium nitrogen, nitrate nitrogen, total phosphorous, total potassium, total arsenic, total cadmium, total copper, total lead, total mercury, total molybdenum, total nickel, total selenium, total zinc, polychlorinated biphenyls (PCBs), and the dry weight concentration of total Kjeldahl nitrogen;

      (ii) The dry weight concentration of iron if the project involves the application of sewage sludge on pasture land;

      (iii) The dry weight concentration of Calcium Carbonate (CaCO3) or equivalent if the sewage sludge to be applied is a lime stabilized or lime amended sewage sludge; and

      (iv) Any other sewage sludge constituent that the Department determines necessary to adequately assess the potential impact of the project on public health, safety, and the environment;

  (5) If required by the Department, the results of a laboratory analysis of a representative soil sample, which was obtained from each field not more than 6 months before the receipt of the Sewage Sludge Utilization Permit Application by the Department subject to the following:

    (a) All soil samples shall be collected from within the field that would receive sewage sludge in accordance with the requirements in COMAR 15.20.08;

    (b) Soil samples may not be collected from buffer distances, restricted areas, or other areas that are not subject to the land application of sewage sludge;

    (c) The analysis of the sample was performed by an independent laboratory or other laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department;

    (d) If requested by the Department, the results shall be accompanied by a description of the method or methods of analysis; and

    (e) The analytical results include, at a minimum:

      (i) pH, cation exchange capacity, and soil texture;

      (ii) If metal analysis has not been previously performed on the field, total cadmium, total copper, total lead, total nickel, total zinc, and total phosphorus; and

      (iii) Any other constituents in the soil that the Department determines necessary to adequately assess the potential impact of the project on public health, safety, and the environment;

  (6) A soil map and soil map units from the USDA-NRCS identifying the location of cation exchange capacity tests and pH testing of the soil;

  (7) A soil map and soil map units from the USDA-NRCS identifying the proposed location of one soil test pit or auger boring to a depth of at least 36 inches for each soil mapping unit present on the USDA-NRCS county soils map but not less than one soil test pit or auger boring every 5 acres to identify the texture of the soils encountered and the depth to groundwater at the time of application as required by the Department;

  (8) Calculations of the lime required to raise the soil pH level to 6.0 and to maintain it at a minimum level of 6.0 over the life of the Sewage Sludge Utilization Permit;

  (9) A tax map showing the property line, owner, acreage, and liber and folio numbers;

  (10) A USDA-NRCS county soil survey map or a portion thereof clearly identifying the sites of the proposed sewage sludge land application including a description of each soil map unit found on the site;

  (11) A detailed operation plan that includes, when applicable:

    (a) Procedures for sampling, record keeping, and reporting of the sewage sludge to be utilized;

    (b) Types of equipment to be used for collection, management, washdown, and other operations;

    (c) Days and hours of operation;

    (d) Methods and procedures to prevent or control odors and other potential nuisance conditions at the site;

    (e) Methods and procedures for utilizing the treated sewage sludge;

    (f) Contingency or emergency plans to manage equipment breakdown, spills, and other emergency events; and

    (g) Methods and procedures for restricting public access to the site;

  (12) A list of type of crops or cover species to be grown, which indicate the crop yields as required in Regulation .37A(5) of this chapter;

  (13) A nutrient management plan that:

    (a) Has been prepared by a certified and licensed nutrient management consultant or a certified operator in accordance with the requirements of COMAR 15.20.04; and

    (b) Is in compliance with COMAR 15.20.07 and 15.20.08; and

  (14) Other information that may be requested by the Department.

E. The Department may reject an analysis of sewage sludge or a soil sample submitted in accordance with §D(4) and (5) of this regulation and require retesting and resubmittal if the Department determines that the method of analysis is inaccurate, or for any other good cause.

F. Permit Application Fees.

  (1) A person shall pay the Department a nonrefundable Sewage Sludge Utilization Permit Application fee in accordance with the following schedule:

    (a) For a new permit application, $175; and

    (b) For a renewal permit application, $175.

  (2) For activities which involve transportation of sewage sludge in combination with any other activities listed in the Sewage Sludge Utilization Permit Application, the Department will issue a single Sewage Sludge Utilization Permit to include all activities. For combined activities, only the application fee listed for transportation of sewage sludge in Regulation .23C of this chapter shall be waived.

#### Regulation .39 Agricultural Land — Public and Local Government Participation Requirements for a Permit Application.

*COMAR 26.04.06.39*

A. To provide a county or a municipal corporation, if appropriate, with an opportunity to consult with the Department about the decision to issue, deny, or place restrictions on a Sewage Sludge Utilization Permit, the Department shall mail a copy of the application to apply sewage sludge on agricultural land to:

  (1) The chairman of the legislative body and any elected executive of the county and municipal corporation where the sewage sludge is to be applied;

  (2) The chairman of the legislative body and any elected executive of any other county within 1 mile of the site where sewage sludge is to be applied; and

  (3) The local health official.

B. Within 10 calendar days of receipt of the application, the chairman of the legislative body or the elected executive of the county or municipal corporation where the sewage sludge is to be applied on agricultural land may request that the Department conduct a public information meeting.

C. The Department will consider all written comments and suggestions received within 15 calendar days after the chairman of the legislative body or the elected executive of the county or municipal corporation where the sewage sludge is to be applied on agricultural land receives the application regarding the proposed project.

D. If the Department receives a request for a public information meeting in accordance with §B of this regulation, the Department shall conduct a public information meeting in the affected subdivision. The person applying for the Sewage Sludge Utilization Permit shall be notified and be given the opportunity to present information at the public information meeting.

E. The Department may consolidate public information meetings within a county for more than one Sewage Sludge Utilization Permit Application.

F. After the Department has established the date, location, and time for a public information meeting, the Department shall publish a notice of the receipt of the permit application and of the public information meeting, at least 14 calendar days before the public information meeting, in a newspaper of general circulation in the area that the Department determines may be directly affected by the project. The public notice shall briefly describe the proposed project and state the date, time, and location established by the Department for the public information meeting.

G. At least 7 calendar days before the date of the public information meeting, the person applying for the Sewage Sludge Utilization Permit shall provide copies, by certified mail or other means of delivery acceptable to the Department, of the Department’s notice for the public information meeting to owners of all real property within 1,000 feet of the boundaries of the site where the sewage sludge is to be applied on agricultural land.

H. The person applying for the Sewage Sludge Utilization Permit shall submit to the Department copies of the documentation of the public information meeting notices as proof of notification to all owners of real properties within 1,000 feet of the boundaries of the site where the sewage sludge is to be applied.

#### Regulation .40 Agricultural Land — Record-Keeping and Reporting Requirements for a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.40*

A. The permittee shall generate a report containing the following information and maintain all documents used to generate the report for a period of 5 years:

  (1) The source, type, and quantity, including documentation of sewage sludge received and applied on the agricultural land;

  (2) The dates of land application of sewage sludge;

  (3) The number and size of the fields where sewage sludge was applied on agricultural land;

  (4) Cumulative and annual constituent loading rates including plant-available nitrogen, P2O5, and K2O;

  (5) Descriptions of problems encountered and their solutions;

  (6) Other related information regarding the land application of sewage sludge as required by the applicable Sewage Sludge Utilization Permit; and

  (7) Other information that may be requested by the Department.

B. The permittee shall submit to the Department three completed copies of the report required by §A of this regulation for each year the Sewage Sludge Utilization Permit is in effect. The permittee shall submit to the Department the report on a form provided by the Department and in accordance with a schedule established by the Department.

C. Prior to land application of sewage sludge on the permitted site, the permittee shall provide the farmer and operator of the site where the sewage sludge is to be land applied with a copy of the nutrient management plan for the site for the year of application as required in Regulation .38D(13) of this chapter.

D. Within 30 days of land application of sewage sludge, the permittee shall provide the farmer or operator and the legal owner of the site where sewage sludge was applied with a copy of the report required by §B of this regulation and a site-specific map with a minimum scale of 1 inch = 200 feet showing the areal extent of the site and the exact acreage where sewage sludge was applied.

#### Regulation .41 Agricultural Land — Modifications of a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.41*

A. The Department may modify a Sewage Sludge Utilization Permit to include a new condition as may be required by a new law or regulation, to clarify permit conditions, or for other good cause.

B. The Department may modify a Sewage Sludge Utilization Permit upon request by the permittee if the following conditions are met:

  (1) The permittee submits to the Department four completed copies of the Sewage Sludge Utilization Permit modification application on a form provided by the Department, and all other required information and forms as determined by the Department, with the application including a description of the proposed modification and an explanation as to why the modification is needed;

  (2) The permittee pays the Department a nonrefundable Sewage Sludge Utilization Permit modification fee in accordance with the following schedule:

    (a) For a minor modification, $40; and

    (b) For a major modification, $130; and

  (3) The Department determines that the proposed modification is in compliance with the applicable requirements of this chapter and will not cause an undue risk to the environment or public health, safety, or welfare.

C. The following are minor modifications to a Sewage Sludge Utilization Permit for agricultural land application of sewage sludge:

  (1) Addition of sewage sludge from the same approved source that has received a different treatment than the approved sewage sludge;

  (2) Modification to the site’s operation plan;

  (3) Addition of a crop or cover crop;

  (4) Adjustment of approved maximum nitrogen per acre requirements for a different crop or cover crop;

  (5) The permittee’s name change; or

  (6) Other modification as determined by the Department.

D. The following are major modifications to a Sewage Sludge Utilization Permit for agricultural land application of sewage sludge:

  (1) Addition of a new sewage sludge source or type to be applied;

  (2) Increase in the size of the permitted acreage; or

  (3) Other modifications as determined by the Department.

E. If the Department considers a modification application complete and acceptable, the Department may modify the Sewage Sludge Utilization Permit.

F. If the Department modifies a Sewage Sludge Utilization Permit, the Department shall send notice of the modification to the local health official and the local soil conservation district in the county in which the Sewage Sludge Utilization Permit is issued by the Department.

G. The Department may deny a modification application if the permittee is not in compliance with the applicable requirements of this chapter or any of the terms or conditions of the Sewage Sludge Utilization Permit or for other good cause as determined by the Department.

#### Regulation .42 Marginal Land.

*COMAR 26.04.06.42*

A. The Department may issue a Sewage Sludge Utilization Permit to apply sewage sludge on a marginal land at rates up to 50 dry tons per acre if the following requirements are met:

  (1) The sewage sludge has been classified by the Department as Class B sewage sludge and meets the applicable vector attraction reduction requirements in 40 CFR §503.33;

  (2) The concentration of each constituent in the sewage sludge is less than or equal to the ceiling concentration for the constituent listed in Table 1 of Regulation .05B(1) of this chapter; and

  (3) The sewage sludge meets one of the following criteria:

    (a) No constituent in the sewage sludge exceeds the cumulative constituent loading rate for the constituent listed in Table 2 of Regulation .05B(2) of this chapter; or

    (b) No constituent in the sewage sludge exceeds the constituent concentration for the constituent listed in Table 3 of Regulation .05B(3) of this chapter.

B. Sewage sludge may not be applied on a marginal land unless:

  (1) The sewage sludge has been classified by the Department as Class A sewage sludge; or

  (2) The sewage sludge has been classified by the Department as Class B sewage sludge and the requirements of §C of this regulation are met.

C. Class B sewage sludge may be applied on a marginal land only if the following requirements are met:

  (1) The requirements of §A(1)—(3) of this regulation;

  (2) Bulk sewage sludge may not be applied to a public contact site;

  (3) The sewage sludge may not be applied within a vertical distance of 2 feet of the maximum expected high groundwater level;

  (4) Minimum buffer distances are maintained in accordance with the requirements in Regulation .37D(2) of this chapter;

  (5) Areas where sewage sludge is to be applied shall be clearly marked with stakes or other markers before the application of the sewage sludge;

  (6) The sewage sludge shall be spread evenly over the site using conventional earth moving equipment, agricultural equipment, or commercial equipment specifically designed for application of sewage sludge;

  (7) The sewage sludge applied shall be incorporated into the soil by the end of each working day;

  (8) A crop that is not grown for direct human consumption shall be planted after sewage sludge application during the next available planting season in accordance with a plan approved by the Department;

  (9) Application of sewage sludge shall cease when weather or site conditions or odors prevent compliance with an operation plan approved by the Department;

  (10) At the time of application of sewage sludge on a permitted privately owned site, if required to do so by the Department, the permittee posts signs that meet the following requirements:

    (a) The location, size, content, and number of the signs are as specified by the Department;

    (b) The signs are legible, placed in conspicuous areas on the boundaries of the permitted fields, and visible from contiguous public roads and properties with occupied dwellings;

    (c) The locations of the signs and time period during which the signs are required to be posted are not in violation of any local or State laws or regulations;

    (d) The signs are composed of weather resistant materials and sturdily mounted so as to be capable of remaining in place for 30 days after completion of the land application of sewage sludge on the permitted site; and

    (e) The signs are maintained, promptly repaired, or replaced if they are removed or damaged so as to render any of the information illegible;

  (11) For a permitted publically owned site, the permittee is in compliance with sign requirements that will be determined by the Department based on site-specific information;

  (12) Public access to land with a high potential for public exposure shall be restricted for 1 year after application of sewage sludge;

  (13) Public access to land with a low potential for public exposure shall be restricted for 30 days after application of sewage sludge;

  (14) Animals whose products are consumed by humans may not be allowed to graze on the land for 30 days after application of sewage sludge, and the growth of crops for direct human consumption is prohibited for 3 years after the application of sewage sludge;

  (15) Trucks, tires and vehicle undercarriages shall be cleaned on the site to prevent drag-out of sewage sludge or soil onto public roads; and

  (16) The Department may impose other restrictions on the application project necessary to minimize the risk to the environment or public health, safety, or welfare as may be determined by the Department.

D. The Department may issue a Sewage Sludge Utilization Permit to apply sewage sludge on a marginal land at rates greater than 50 dry tons per acre if the following conditions are met:

  (1) The requirements of §§A—C of this regulation are met;

  (2) The applicant demonstrates to the Department that the high application rate is reasonable due to site-specific conditions or sewage sludge characteristics;

  (3) The applicant submits a report detailing the potential environmental impacts of the project, subject to the following:

    (a) The report shall consider, at a minimum, the potential impacts of the project on soils, groundwater, surfacewater, adjacent properties, and future land use; and

    (b) The report shall contain the results of all on-site tests and laboratory reports necessary to assess the environmental impacts on the project; and

  (4) The Department determines that the requested application rate is reasonable based on the site specific conditions, the characteristics of the sewage sludge, and that the project will not cause an undue risk to the environment or public health, safety, or welfare.

#### Regulation .43 Marginal Land — Permit Application Requirements.

*COMAR 26.04.06.43*

A. A person shall submit to the Department a separate Sewage Sludge Utilization Permit Application for each site where sewage sludge is to be applied on a marginal land, subject to the following:

  (1) Adjacent properties owned and operated by separate persons shall be considered as separate sites; and

  (2) Nonadjacent parcels of land that are owned or operated by the same person, as evidenced by a farm plan or other documentation acceptable to the Department, may be considered a single site if the distance between the parcels is 3 miles or less.

B. A person shall submit to the Department six completed copies of the Sewage Sludge Utilization Permit Application on a form provided by the Department. A person shall also submit a performance bond, liability insurance, or other form of security required under the provisions of Regulation .10 of this chapter.

C. The Sewage Sludge Utilization Permit Application to apply sewage sludge on a marginal land shall include six completed copies of the owner’s consent form provided by the Department completed and signed by the legal owners of the site where sewage sludge is to be applied and dated not more than 6 months before the receipt of the Sewage Sludge Utilization Permit Application by the Department.

D. The Sewage Sludge Utilization Permit Application to apply sewage sludge on a marginal land shall include six completed copies of the following information:

  (1) The sources and types of sewage sludge to be applied, including any treatment the sewage sludge has received, such as anaerobic digestion, aerobic digestion, lime stabilization, composting, or dewatering;

  (2) A current site specific topographic map with a minimum scale of 1 inch = 200 feet and a contour interval of not more than 5 feet showing the areal extent of the site, the property boundary lines, fields boundaries, and the proximity of the site to major roads in the area and any roads on the site;

  (3) A current site plan that includes:

    (a) The location of property boundary lines and field boundaries;

    (b) The exact acreage where sewage sludge is to be applied;

    (c) The location of all buffer distances;

    (d) The location of any residences or buildings on site or within 1/2 mile of the site;

    (e) An inventory of any domestic, commercial, or municipal wells on site and within 1/2 mile of the property boundary lines, including water level for the wells if available;

    (f) The location of any on-site stream, spring, seep, pond, drainage ditch or other body of water;

    (g) The location of any on-site area with a slope of 15 percent or greater;

    (h) The location of any on-site bedrock outcropping;

    (i) The location of any on-site depression area;

    (j) The surrounding land uses;

    (k) The location of cation exchange capacity tests and pH testing of the soil;

    (l) The location of all soil tests, and the location of all soil borings or test pits on the site;

    (m) Other features as determined by the Department; and

    (n) A legend identifying the key features on the site plan;

  (4) Representative analysis of the pH of the soils;

  (5) A description of representative test borings or test pits on the site including a description of the texture of the soils encountered and the depth to the groundwater;

  (6) Unless the analytical results have been submitted to the Department in accordance with the requirements of Regulation .06 of this chapter, the most recent results of a laboratory analysis of a representative composite sample of the sewage sludge that was obtained from the wastewater treatment plant that generated the sewage sludge, subject to the following requirements:

    (a) The sample was obtained in accordance with the requirements of Regulation .06 of this chapter;

    (b) The analysis of the sample was performed by an independent laboratory or other laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department;

    (c) If requested by the Department, the results shall be accompanied by a description of the method or methods of analysis; and

    (d) The analytical results include, at a minimum:

      (i) Percent of total solids, pH, ammonium nitrogen, nitrate nitrogen, total phosphorous, total potassium, total arsenic, total cadmium, total copper, total lead, total mercury, total molybdenum, total nickel, total selenium, total zinc, polychlorinated biphenyls (PCBs), and the dry weight concentration of total Kjeldahl nitrogen; and

      (ii) Any other sewage sludge constituent that the Department determines necessary to adequately assess the potential impact of the project on public health and the environment;

  (7) A loading calculation per acre for the sewage sludge proposal;

  (8) Sediment and erosion control provisions approved by the appropriate approving authority;

  (9) The type of crop to be grown with a calculation of the amount of seed mixture to be used per acre, the proposed optimal soil pH for the type of crop to be grown, and the desired yield of the crop;

  (10) A tax map showing the property line, owner, acreage, and liber and folio numbers;

  (11) A detailed operation plan that includes, when applicable:

    (a) Procedures for sampling, record keeping, and reporting of the sewage sludge to be utilized;

    (b) Types of equipment to be used for collection, management, washdown, and other operations;

    (c) Days and hours of operation;

    (d) Methods and procedures to prevent or control odors and other potential nuisance conditions at the site;

    (e) Methods and procedures for utilizing the treated sewage sludge;

    (f) Contingency or emergency plans to manage equipment breakdown, spills, and other emergency events; and

    (g) Methods and procedures for restricting public access to the site;

  (12) Future use of the site; and

  (13) Other information that may be requested by the Department.

E. The Department may reject an analysis of a sewage sludge sample submitted in accordance with §D(6) of this regulation and require retesting and resubmittal of results if the Department determines that the method of analysis is inaccurate, or for any other good cause.

F. Permit Application Fees.

  (1) A person shall pay the Department a nonrefundable Sewage Sludge Utilization Permit Application fee in accordance with the following schedule:

    (a) For a Permit Application, $350; and

    (b) For a renewal permit application, $350.

  (2) For activities which involve transportation of sewage sludge in combination with any other activities listed in the Sewage Sludge Utilization Permit Application, the Department will issue a single Sewage Sludge Utilization Permit to include all activities. For combined activities, only the application fee listed for transportation of sewage sludge in Regulation .23C of this chapter shall be waived.

#### Regulation .44 Marginal Land — Public and Local Government Participation Requirements for a Permit Application.

*COMAR 26.04.06.44*

A. To provide a county or a municipal corporation, if appropriate, with an opportunity to consult with the Department about the decision to issue, deny, or place restrictions on a Sewage Sludge Utilization Permit, the Department shall:

  (1) Publish a notice of the receipt of the Sewage Sludge Utilization Permit Application in a local newspaper having a substantial circulation in the county where the sewage sludge is to be applied that contains the following information:

    (a) Name of the person applying for the permit;

    (b) A brief description of the project;

    (c) Sources of the sewage sludge;

    (d) Project type;

    (e) Location of the site;

    (f) A list of the persons within the local jurisdiction who have been sent copies of the application;

    (g) A statement of the right of the county or municipal corporation, if applicable, to request a public hearing within 15 calendar days after receipt of the application; and

    (h) Provisions for examination of the application by interested parties; and

  (2) Mail a copy of the application and the public notice published in accordance with §A(1) of this regulation to:

    (a) The chairman of the legislative body and any elected executive of the county and municipal corporation where the sewage sludge is to be applied;

    (b) The chairman of the legislative body and any elected executive of any other county within 1 mile where the sewage sludge is to be applied; and

    (c) The local health official.

B. Within 15 calendar days of receipt of the application and the public notice, the chairman of the legislative body or any elected executive of the county or municipal corporation where the sewage sludge is to be applied may request in writing that the Department conduct a public hearing.

C. If the Department receives a request for a public hearing in accordance with §B of this regulation, or if the Department determines that a public hearing would serve the public interest, the Department shall hold a public hearing in the affected subdivision where the sewage sludge is to be applied. The Department shall notify the person applying for the Sewage Sludge Utilization Permit and shall give the person the opportunity to present information at the public hearing.

D. After the Department has established the date, place, and time for a public hearing, the Department shall publish a notice of the public hearing in a local newspaper having a substantial circulation in the county where the sewage sludge is to be applied. The notice shall contain the following information:

  (1) A statement of the legal authority and jurisdiction under which the public hearing is to be held, and a reference to the particular statutes and regulations involved;

  (2) Name of the person applying for the permit;

  (3) A brief description of the project;

  (4) Sources of the sewage sludge;

  (5) Project type;

  (6) Location of the site;

  (7) The date, time, and place of the public hearing; and

  (8) Provisions for examination of the application by interested parties.

#### Regulation .45 Marginal Land — Record-Keeping and Reporting Requirements for a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.45*

A. The permittee shall generate a report containing the following information and maintain all documents used to generate the report for a period of 5 years:

  (1) The source, type, and quantity, including documentation of sewage sludge received and applied on the marginal land;

  (2) The dates of land application of sewage sludge;

  (3) The number and size of the areas where sewage sludge was applied on marginal land;

  (4) Cumulative and annual constituent loading rates;

  (5) Descriptions of problems encountered and their solutions;

  (6) Other related information regarding the land application of sewage sludge as required by the applicable Sewage Sludge Utilization Permit; and

  (7) Other information that may be requested by the Department.

B. The permittee shall submit to the Department three completed copies of the report required by §A of this regulation for each year the Sewage Sludge Utilization Permit is in effect. The permittee shall submit to the Department the report on a form provided by the Department and in accordance with a schedule established by the Department.

C. The permittee shall provide the farmers or operators and the legal owners of the site where sewage sludge was applied with a copy of the report required by §B of this regulation and a site specific map with a minimum scale of 1inch = 200 feet and a contour interval of not more than 5 feet showing the areal extent of the site and the exact acreage where sewage sludge was applied.

#### Regulation .46 Marginal Land — Modifications of a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.46*

A. The Department may modify a Sewage Sludge Utilization Permit to include a new condition as may be required by a new law or regulation, to clarify permit conditions, or for other good cause.

B. The Department may modify a Sewage Sludge Utilization Permit upon request by the permittee if the following conditions are met:

  (1) The permittee submits to the Department four completed copies of the Sewage Sludge Utilization Permit modification application on a form provided by the Department, and all other required information and forms as determined by the Department, with the application including a description of the proposed modification and an explanation as to why the modification is needed;

  (2) The permittee pays the Department a nonrefundable Sewage Sludge Utilization Permit modification fee in accordance with the following schedule:

    (a) For a minor modification, $40; and

    (b) For a major modification, $130; and

  (3) The Department determines that the proposed modification is in compliance with the applicable requirements of this chapter and will not cause an undue risk to the environment or public health, safety, or welfare.

C. The following are minor modifications to a Sewage Sludge Utilization Permit for a marginal land:

  (1) Addition of sewage sludge from the same approved source that has received a different treatment than the approved sewage sludge;

  (2) Modification to the site’s operation plan;

  (3) Modification to the type of crop to be grown;

  (4) The permittee’s name change; or

  (5) Other modifications as determined by the Department.

D. The following are major modifications to a Sewage Sludge Utilization Permit for a marginal land:

  (1) Addition of new sewage sludge source or type to be applied;

  (2) An increase in the size of the permitted acreage; or

  (3) Other modifications as determined by the Department.

E. If the Department considers a modification application complete and acceptable, the Department may modify the Sewage Sludge Utilization Permit.

F. If the Department modifies a Sewage Sludge Utilization Permit, the Department shall send notice of the modification to the local health official and the local soil conservation district in the county in which the Sewage Sludge Utilization Permit is issued by the Department.

G. The Department may deny a modification application if the permittee is not in compliance with the applicable requirements of this chapter or any of the terms or conditions of the Sewage Sludge Utilization Permit, or for other good cause as determined by the Department.

#### Regulation .47 Energy Generation or Incineration.

*COMAR 26.04.06.47*

A. The Department may issue a Sewage Sludge Utilization Permit to incinerate sewage sludge at a permitted waste- to- energy facility or an incinerator if:

  (1) The Refuse Disposal Permit holder for the waste-to-energy facility or incinerator submits to the Department a Sewage Sludge Utilization Permit Application for the energy generation or incineration at the permitted waste-to-energy facility or incinerator; and

  (2) The person applying for a permit demonstrates that the following conditions and requirements will be met:

    (a) The waste-to-energy facility or incinerator shall be designed, constructed, and operated to safely utilize sewage sludge in a manner that will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department;

    (b) The incineration of sewage sludge is to be conducted in accordance with the waste-to-energy facility’s or incinerator’s approved operating plan and specifications and will not violate any condition of the waste-to-energy facility’s or incinerator’s Refuse Disposal Permit;

    (c) The waste-to-energy facility or incinerator possesses adequate equipment on-site able to incinerate the sewage sludge;

    (d) The waste-to-energy facility or incinerator is in compliance with all applicable State laws, regulations and guidelines regarding air quality control in the State; and

    (e) The ash residue produced by the process will be disposed in an environmentally safe manner as approved by the Department.

B. The Department may deny a Sewage Sludge Utilization Permit Application for incineration of sewage sludge at a permitted waste-to-energy facility or an incinerator if the person applying for the permit is currently in, or has a history of, violation of a Refuse Disposal Permit or applicable State laws or regulations.

#### Regulation .48 Energy Generation or Incineration — Permit Application Requirements.

*COMAR 26.04.06.48*

A. A Refuse Disposal Permit holder seeking a Sewage Sludge Utilization Permit to incinerate sewage sludge shall:

  (1) Submit to the Department a separate Sewage Sludge Utilization Permit Application for each waste-to-energy facility or incinerator where sewage sludge is to be utilized;

  (2) Submit to the Department six completed copies of the Sewage Sludge Utilization Permit Application on a form provided by the Department;

  (3) Include, as part of the permit application, the information required in §B of this regulation; and

  (4) Submit to the Department a performance bond, liability insurance, or other form of security required under the provisions of Regulation .10 of this chapter.

B. A person seeking a Sewage Sludge Utilization Permit under §A of this regulation shall include in the permit application the following completed information:

  (1) A description of the source, type, and quantity of sewage sludge to be utilized at the waste-to-energy facility or incinerator, including any previous treatment the sewage sludge has received, such as anaerobic digestion, aerobic digestion, lime stabilization, composting, or dewatering;

  (2) A detailed operation plan that includes, when applicable:

    (a) Procedures for sampling, on-site record keeping, and reporting of the sewage sludge to be utilized;

    (b) Types of equipment to be used for collection, management, washdown, and other operations;

    (c) Days and hours of operation;

    (d) Methods and procedures to prevent or control odors and other potential nuisance conditions at the site;

    (e) Methods and procedures for utilizing sewage sludge;

    (f) Contingency or emergency plans to manage fires, equipment breakdown, spills, and other emergency events; and

    (g) Methods and procedures for restricting public access to the site;

  (3) A detailed description of the methods, processes, and monitoring procedures to be utilized at the waste-to-energy facility or incinerator;

  (4) Methods and procedures for storage and on-site management of processed and unprocessed sewage sludge received at the waste-to-energy facility or the incinerator and utilization of the ash generated by the waste-to-energy facility or the incinerator;

  (5) An air quality permit issued by the Department in accordance with the requirements in COMAR 26.11.02;

  (6) Unless the analytical results have been submitted to the Department in accordance with the requirements of Regulation .06 of this chapter, the most recent results of a laboratory analysis of a representative composite sample of the sewage sludge that was obtained from the wastewater treatment plant that generated the sewage sludge, subject to the following requirements:

    (a) The sample was obtained in accordance with the requirements of Regulation .06 of this chapter;

    (b) The analysis of the sample was performed by an independent laboratory or other laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department;

    (c) If requested by the Department, the results shall be accompanied by a description of the method or methods of analysis; and

    (d) The analytical results include, at a minimum:

      (i) Percent of total solids, pH, ammonium nitrogen, nitrate nitrogen, total phosphorous, total potassium, total arsenic, total cadmium, total copper, total lead, total mercury, total molybdenum, total nickel, total selenium, total zinc, polychlorinated biphenyls (PCBs), and the dry weight concentration of total Kjeldahl nitrogen; and

      (ii) Any other sewage sludge constituent that the Department determines necessary to adequately assess the potential impact of the project on public health and the environment; and

  (7) Other information that may be requested by the Department.

C. The Department may reject an analysis of a sewage sludge sample submitted in accordance with §B(6) of this regulation and require retesting and resubmittal of results if the Department determines that the method of analysis is inaccurate, or for any other good cause.

D. Permit Application Fees.

  (1) A person shall pay the Department a nonrefundable Sewage Sludge Utilization Permit Application fee in accordance with the following schedule:

    (a) For a new permit application, $750; and

    (b) For a renewal permit application, $750.

  (2) For activities which involve transportation of sewage sludge in combination with any other activities listed in the Sewage Sludge Utilization Permit Application, the Department will issue a single Sewage Sludge Utilization Permit to include all activities. For combined activities, only the application fee listed for transportation of sewage sludge in Regulation .23C of this chapter shall be waived.

#### Regulation .49 Energy Generation or Incineration — Public and Local Government Participation Requirements for a Permit Application.

*COMAR 26.04.06.49*

A. To provide a county or a municipal corporation, if appropriate, with an opportunity to consult with the Department about the decision to issue, deny, or place restrictions on a Sewage Sludge Utilization Permit to incinerate sewage sludge at a waste-to-energy facility or an incinerator, the Department shall mail a copy of the application to:

  (1) The chairman of the legislative body and any elected executive of the county and municipal corporation where the waste-to-energy facility or incinerator is located; and

  (2) The chairman of the legislative body and any elected executive of any other county within 1 mile of the site where the waste-to-energy facility or incinerator is located.

B. The Department will consider all written comments and suggestions received within 15 calendar days after the chairman of the legislative body or the elected executive of the county or municipal corporation where the waste-to-energy facility or incinerator is located receives the application regarding the proposed project.

#### Regulation .50 Energy Generation or Incineration — Record-Keeping and Reporting Requirements for a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.50*

A. The permittee shall generate a report containing the following information and maintain all documents used to generate the report for a period of 5 years:

  (1) The source, type, and quantity, including documentation of sewage sludge received and utilized at the waste-to-energy facility or incinerator;

  (2) The time periods during which the waste-to-energy facility or incinerator is inoperational;

  (3) The quantity, including documentation of unincinerated sewage sludge that has been transported from the waste-to-energy facility or incinerator;

  (4) The dates of transportation of unutilized sewage sludge from the waste-to-energy facility or incinerator;

  (5) The destinations and final utilization of unutilized sewage sludge;

  (6) The destinations and final utilization of the ash generated by the waste-to-energy facility or incinerator;

  (7) Descriptions of problems encountered and their solutions;

  (8) Other related information regarding the utilization of sewage sludge as required by the applicable Sewage Sludge Utilization Permit; and

  (9) Other information that may be requested by the Department.

B. The permittee shall submit to the Department three completed copies of the report required by §A of this regulation for each year the Sewage Sludge Utilization Permit is in effect. The permittee shall submit to the Department the report on a form provided by the Department and in accordance with a schedule established by the Department.

#### Regulation .51 Energy Generation or Incineration — Modifications of a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.51*

A. The Department may modify a Sewage Sludge Utilization Permit to include a new condition as may be required by a new law or regulation, to clarify permit conditions, or for other good cause.

B. The Department may modify a Sewage Sludge Utilization Permit upon request by the permittee if the following conditions are met:

  (1) The permittee submits to the Department four completed copies of the Sewage Sludge Utilization Permit modification application on a form provided by the Department, and all other required information and forms as determined by the Department. The application shall include a description of the proposed modification and an explanation as to why the modification is needed;

  (2) The permittee shall pay the Department a nonrefundable Sewage Sludge Utilization Permit modification fee in accordance with the following schedule:

    (a) For a minor modification, $40; and

    (b) For a major modification, $130; and

  (3) The Department determines that the proposed modification is in compliance with the applicable requirements of this chapter and will not cause an undue risk to the environment or public health, safety, or welfare.

C. The following are minor modifications to a Sewage Sludge Utilization Permit to incinerate sewage sludge at a waste-to-energy facility or an incinerator:

  (1) Modification to the waste-to-energy facility’s or incinerator’s operation plan;

  (2) The permittee’s name change; or

  (3) Other modifications as determined by the Department.

D. The following are major modifications to a Sewage Sludge Utilization Permit to incinerate sewage sludge at a waste-to-energy facility or an incinerator:

  (1) Modification to the source or type of the sewage sludge received at the waste-to-energy facility or the incinerator; or

  (2) Other modifications as determined by the Department.

E. If the Department considers a modification application complete and acceptable, the Department may modify the Sewage Sludge Utilization Permit.

F. If the Department modifies a Sewage Sludge Utilization Permit, the Department shall send notice of the modification to the local health official and the local soil conservation district in the county in which the Sewage Sludge Utilization Permit is issued by the Department.

G. The Department may deny a modification application if the permittee is not in compliance with the applicable requirements of this chapter or any of the terms or conditions of the Sewage Sludge Utilization Permit or for other good cause as determined by the Department.

#### Regulation .52 Marketing.

*COMAR 26.04.06.52*

A. The Department may issue a Sewage Sludge Utilization Permit to market in Maryland sewage sludge generated out-of-State if:

  (1) The sewage sludge has been classified by the Department as Class A sewage sludge;

  (2) The sewage sludge to be marketed will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department;

  (3) The sewage sludge does not contain free liquid, with the presence of free liquid determined by:

    (a) Application of Method 9095B (Paint Filter Liquids Test) as outlined in the most recent edition of the USEPA Publication SW-846 “Test Methods for Evaluating Solid Waste”, which is incorporated by reference in COMAR 26.13.01.05A(4); or

    (b) A comparable test approved by the Department;

  (4) The person seeking to market the sewage sludge:

    (a) Submits to the Department a written quality control monitoring plan that will ensure that the Class A sewage sludge to be marketed meets the Department's standards regarding the destruction of primary pathogenic organisms, reduction of vector attraction, and limitations for heavy metals and other constituents; and

    (b) Receives the Department’s approval for the quality control monitoring plan; and

  (5) The permit requires the permittee to implement the quality control monitoring plan as approved under §A(4)(b) of this regulation.

B. The Department may require additional conditions and management practices to market the Class A sewage sludge as it determines necessary.

#### Regulation .53 Marketing — Permit Application Requirements.

*COMAR 26.04.06.53*

A. A person seeking to market, in Maryland, sewage sludge generated out-of-State shall:

  (1) Submit to the Department six completed copies of the Sewage Sludge Utilization Permit Application on a form provided by the Department;

  (2) Include, as part of the permit application required by §A(1) of this regulation, the information specified in §B of this regulation; and

  (3) Submit to the Department a performance bond, liability insurance, or other form of security required under the provisions of Regulation .10 of this chapter.

B. A Sewage Sludge Utilization Permit Application submitted under §A of this regulation shall include the following completed information:

  (1) A description of the source, type, and quantity of sewage sludge to be marketed, including any previous treatment the Class A sewage sludge has received, such as anaerobic digestion, aerobic digestion, lime stabilization, composting, or dewatering;

  (2) Unless the analytical results have been submitted to the Department in accordance with the requirements of Regulation .06 of this chapter, the results of a laboratory analysis of a representative composite sample of the sewage sludge that was obtained from the wastewater treatment plant that generated the sewage sludge not more than 6 months before the receipt of the Sewage Sludge Utilization Permit Application by the Department, subject to the following requirements:

    (a) The sample was obtained in accordance with the requirements of Regulation .06 of this chapter;

    (b) The analysis of the sample was performed by an independent laboratory or other laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department;

    (c) If requested by the Department, the results shall be accompanied by a description of the method or methods of analysis; and

    (d) The analytical results include, at a minimum:

      (i) Percent of total solids, pH, ammonium nitrogen, nitrate nitrogen, total phosphorous, total potassium, total arsenic, total cadmium, total copper, total lead, total mercury, total molybdenum, total nickel, total selenium, total zinc, polychlorinated biphenyls (PCBs), and the dry weight concentration of total Kjeldahl nitrogen; and

      (ii) Any other sewage sludge constituent that the Department determines necessary to adequately assess the potential impact of the project on public health and the environment;

  (3) A detailed operation plan that includes, when applicable:

    (a) A label that shall accompany the marketed sewage sludge, which:

      (i) Includes identification of the product as Class A sewage sludge or biosolids, sources of the sewage sludge, instructions for proper use with specific amounts and type of use (rate of application), field stockpiling (staging) and storage requirements, odor control measures, warnings, and restrictions necessary for utilization;

      (ii) Advises the person who is utilizing the product that the authorization to market the product does not relieve the person from civil or criminal liabilities or penalties for noncompliance with the Environment Article, Title 9, Annotated Code of Maryland, or any local, State, federal, or other state laws or regulations; and

      (iii) Includes any specific restrictions, warnings, or cautionary statements that the Department requires to be included on the label;

    (b) Procedures for sampling, on-site record keeping, and reporting of the sewage sludge to be marketed;

    (c) Methods and procedures to prevent or control odors and other potential nuisance conditions from the sewage sludge to be marketed; and

    (d) A marketing plan and strategy for the sewage sludge with a description of the marketing system to include an identification of the final utilization of the Class A sewage sludge;

  (4) Quality control monitoring plans;

  (5) Documentation that the marketing and final utilization of the Class A sewage sludge will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department, and it will not cause or likely cause a discharge of constituents to the waters of the State;

  (6) Information on steps that will be taken to comply with any additional conditions and management practices to market the Class A sewage sludge required by the Department under Regulation .52B of this chapter; and

  (7) Other information that may be requested by the Department.

C. The Department may reject an analysis of a sewage sludge sample submitted in accordance with §A(2) of this regulation and require retesting and resubmittal if the Department determines that the method of analysis is inaccurate, or for any other good cause.

D. Permit Application Fees.

  (1) A person shall pay the Department a nonrefundable Sewage Sludge Utilization Permit Application fee in accordance with the following schedule:

    (a) For a new permit application, $750; and

    (b) For a renewal permit application, $750.

  (2) For activities which involve transportation of sewage sludge in combination with any other activities listed in the Sewage Sludge Utilization Permit Application, the Department will issue a single Sewage Sludge Utilization Permit to include all activities. For combined activities, only the application fee listed for transportation of sewage sludge in Regulation .23C of this chapter shall be waived.

#### Regulation .54 Marketing — Record-Keeping and Reporting Requirements for a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.54*

A. The permittee shall generate a report containing the following information and shall maintain all documents used to generate the report for a period of 5 years:

  (1) The source, type, and quantity, including documentation of Class A sewage sludge received and marketed;

  (2) The type of treatment the marketed Class A sewage sludge has received;

  (3) The dates of marketing of Class A sewage sludge;

  (4) The destination and final utilization of the Class A sewage sludge;

  (5) Descriptions of problems encountered and their solutions;

  (6) Other related information regarding the marketing of Class A sewage sludge as required by the applicable Sewage Sludge Utilization Permit; and

  (7) Other information that may be requested by the Department.

B. The permittee shall submit to the Department three completed copies of the report required by §A of this regulation for each year the Sewage Sludge Utilization Permit is in effect. The permittee shall submit to the Department the report on a form provided by the Department and in accordance with a schedule established by the Department.

#### Regulation .55 Marketing — Modifications of a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.55*

A. The Department may modify a Sewage Sludge Utilization Permit to include a new condition as may be required by a new law or regulation, to clarify permit conditions, or for other good cause.

B. The Department may modify a Sewage Sludge Utilization Permit upon request by the permittee if the following conditions are met:

  (1) The permittee submits to the Department four completed copies of the Sewage Sludge Utilization Permit modification application on a form provided by the Department, and all other required information and forms as determined by the Department, with the application including a description of the proposed modification and an explanation as to why the modification is needed;

  (2) The permittee pays the Department a nonrefundable Sewage Sludge Utilization Permit modification fee in accordance with the following schedule:

    (a) For a minor modification, $40; and

    (b) For a major modification, $130; and

  (3) The Department determines that the proposed modification is in compliance with the applicable requirements of this chapter and will not cause an undue risk to the environment or public health, safety, or welfare.

C. The following are minor modifications to a Sewage Sludge Utilization Permit for marketing of Class A sewage sludge:

  (1) Modification to the approved label;

  (2) The permittee’s name change; or

  (3) Other modifications as determined by the Department.

D. The following are major modifications to a Sewage Sludge Utilization Permit for marketing of Class A sewage sludge:

  (1) Modification to the source or type of Class A sewage sludge to be marketed; or

  (2) Other modifications as determined by the Department.

E. If the Department considers a modification application complete and acceptable, the Department may modify the Sewage Sludge Utilization Permit.

F. If the Department modifies a Sewage Sludge Utilization Permit, the Department shall send notice of the modification to the local health official and the local soil conservation district in the county in which the Sewage Sludge Utilization Permit is issued by the Department.

G. The Department may deny a modification application if the permittee is not in compliance with the applicable requirements of this chapter or any of the terms and conditions of the Sewage Sludge Utilization Permit or for other good cause as determined by the Department.

#### Regulation .56 Research Project.

*COMAR 26.04.06.56*

A. The Department may issue a Sewage Sludge Utilization permit to utilize sewage sludge as part of a research project.

B. A research project may be designed to improve current sewage sludge utilization methods, develop new methods, determine the environmental or health effects of sewage sludge utilization, or any other sewage sludge related research project approved by the Department.

C. A research project may include:

  (1) The application of sewage sludge at rates which exceed crop nitrogen or phosphorus requirements and the constituent concentration limitations specified in Regulation .37 of this chapter, on land specifically dedicated for research purposes;

  (2) The application of sewage sludge at rates which exceed crop nitrogen or phosphorus requirements and the constituent concentration limitations specified in Regulation .37 of this chapter, on agricultural land specifically dedicated for research purposes with prior approval from the Maryland Department of Agriculture;

  (3) The application of sewage sludge on a marginal land at rates greater than 50 dry tons specified in Regulation .42 of this chapter;

  (4) The utilization of unstabilized sewage sludge if appropriate precautions are taken to assure that viable pathogens do not enter groundwater, surfacewater, or in any way cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department; or

  (5) The growing of crops, such as vegetables and tobacco, if the purpose of the research is to determine the effect of sewage sludge on these crops, and the crops are not allowed to enter the human food chain, or in the case of tobacco, be used in any product.

#### Regulation .57 Research Project — Permit Application Requirements.

*COMAR 26.04.06.57*

A. A person who intends to utilize sewage sludge as part of a research project as provided in Regulation .56 of this chapter shall:

  (1) Submit to the Department a separate Sewage Sludge Utilization Permit Application for each site where a sewage sludge research project is to be located;

  (2) Submit to the Department six completed copies of the Sewage Sludge Utilization Permit Application on a form provided by the Department;

  (3) Include, as part of the Sewage Sludge Utilization Permit Application, the information required in §B of this regulation; and

  (4) Submit to the Department a performance bond, liability insurance, or other form of security required under the provisions of Regulation .10 of this chapter.

B. A Sewage Sludge Utilization Permit Application submitted under §A of this regulation shall include the following completed information:

  (1) A description of the proposed project;

  (2) A written authorization signed by the legal owners of the site where the project is to be located;

  (3) A current site plan designating the property boundary lines, the exact acreage of the site, existing and proposed project structures, the location of any wells on the site and within 1/2 mile of the site, any residences or buildings on site and within 1/2 mile of the site, the proximity of the site to major roads in the area and any roads on the site, and surrounding land uses;

  (4) Tax maps and liber and folio numbers for the parcels of land on which the project will be located and the names of the legal owners of the site;

  (5) A current site-specific topographic map with a minimum scale of 1 inch = 200 feet and a contour interval of not more than 5 feet showing the areal extent of the site, and the location of any stream, spring, or seep within 1/2 mile of the site;

  (6) A site-specific geologic and hydrogeologic report as required by the Department, including a hydrologic map showing the location of the 100-year flood plain, if applicable, and the location of all soil tests, soil borings and test pits on the site;

  (7) A description of the source, type, and quantity of sewage sludge to be utilized, including any previous treatment the sewage sludge has received, such as anaerobic digestion, aerobic digestion, lime stabilization, composting, or dewatering;

  (8) A detailed description of the utilization methods, processes, and monitoring procedures;

  (9) Detailed engineering plans and specifications for the project prepared, signed, and bearing the seal of a registered professional engineer;

  (10) A detailed operation plan that includes, when applicable:

    (a) Procedures for sampling, on-site record keeping, and reporting of the sewage sludge to be utilized;

    (b) Types of equipment to be used for collection, management, washdown, and other operations;

    (c) Days and hours of operation;

    (d) Methods and procedures to prevent or control odors and other potential nuisance conditions at the site;

    (e) Methods and procedures for utilizing the sewage sludge;

    (f) Contingency or emergency plans to manage fires, equipment breakdown, spills, and other emergency events; and

    (g) Methods and procedures for restricting public access to the site;

  (11) Quality control monitoring plans;

  (12) Information on protection of water resources, including:

    (a) A detailed discussion of the methods to be used for the protection of ground and surface waters of the State; and

    (b) If required by the Department, a proposed ground and surface water monitoring plan that meets the following requirements:

      (i) The plan shall include a system for routinely monitoring the quality of waters of the State at, surrounding, and beneath the site, including the location and type of monitoring stations, and the method of construction of monitoring wells; and

      (ii) The plan shall provide for monitoring wells to be installed by a State licensed well driller in accordance with COMAR 26.04.04;

  (13) An assessment of the potential environmental impact of the project;

  (14) A nutrient management plan prepared by a certified nutrient management consultant or a certified operator in accordance with the requirements of COMAR 15.20.04, and in compliance with COMAR 15.20.07 and 15.20.08;

  (15) Documentation that the proposed utilization of the sewage sludge will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department;

  (16) Unless the analytical results have been submitted to the Department in accordance with the requirements of Regulation .06 of this chapter, the most recent results of a laboratory analysis of a representative composite sample of the sewage sludge that was obtained from the wastewater treatment plant that generated the sewage sludge, subject to the following requirements:

    (a) The sample was obtained in accordance with the requirements of Regulation .06 of this chapter;

    (b) The analysis of the sample was performed by an independent laboratory or other laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department;

    (c) If requested by the Department, the results shall be accompanied by a description of the method or methods of analysis; and

    (d) The analytical results include, at a minimum:

      (i) Percent of total solids, pH, ammonium nitrogen, nitrate nitrogen, total phosphorous, total potassium, total arsenic, total cadmium, total copper, total lead, total mercury, total molybdenum, total nickel, total selenium, total zinc, polychlorinated biphenyls (PCBs), and the dry weight concentration of total Kjeldahl nitrogen; and

      (ii) Any other sewage sludge constituent that the Department determines necessary to adequately assess the potential impact of the project on public health and the environment; and

  (17) Other information that may be requested by the Department.

C. The Department may reject an analysis of a sewage sludge sample submitted in accordance with §B(16) of this regulation and require retesting and resubmittal of results if the Department determines that the method of analysis is inaccurate, or for any other good cause.

D. Permit Application Fees.

  (1) A person shall pay the Department a nonrefundable Sewage Sludge Utilization Permit Application fee in accordance with the following schedule:

    (a) For a new permit application, $25; and

    (b) For a renewal permit application, $25.

  (2) For activities which involve transportation of sewage sludge in combination with any other activities listed in the Sewage Sludge Utilization Permit Application, the Department will issue a single Sewage Sludge Utilization Permit to include all activities. For combined activities, only the application fee listed for transportation of sewage sludge in Regulation .23C of this chapter shall be waived.

#### Regulation .58 Research Project — Public and Local Government Participation Requirements for a Permit Application.

*COMAR 26.04.06.58*

A. To provide a county or a municipal corporation, if appropriate, with an opportunity to consult with the Department about the decision to issue, deny, or place restrictions on a Sewage Sludge Utilization Permit, the Department shall mail a copy of the application for a research project to utilize sewage sludge to:

  (1) The chairman of the legislative body and any elected executive of the county and municipal corporation where the research project is to be located;

  (2) The chairman of the legislative body and any elected executive of any other county within 1 mile of the site where the research project is to be located; and

  (3) The local health official if the research project includes the application of sewage sludge.

B. The Department will consider all written comments and suggestions received within 15 calendar days after the chairman of the legislative body or the elected executive of the county or municipal corporation where the research project to utilize sewage sludge is to be located receives the application regarding the proposed project.

#### Regulation .59 Research Project — Record-Keeping and Reporting Requirements for a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.59*

A. The permittee shall generate a report containing the following information and maintain all documents used to generate the report for a period of 5 years:

  (1) The source, type, and quantity, including documentation of sewage sludge received and utilized;

  (2) The results of the project;

  (3) The quantity, including documentation and final utilization of unutilized sewage sludge transported from the facility or site;

  (4) The dates of transportation of unutilized sewage sludge;

  (5) Descriptions of problems encountered and their solutions;

  (6) The time periods during which the project is inoperational;

  (7) Other related information regarding the project as required by the applicable Sewage Sludge Utilization Permit; and

  (8) Other information that may be requested by the Department.

B. The permittee shall submit to the Department three completed copies of the report required by §A of this regulation for each year the Sewage Sludge Utilization Permit is in effect. The permittee shall submit to the Department the report on a form provided by the Department and in accordance with a schedule established by the Department.

#### Regulation .60 Research Project — Modifications of a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.60*

A. The Department may modify a Sewage Sludge Utilization Permit to include a new condition as may be required by a new law or regulation, to clarify permit conditions, or for other good cause.

B. The Department may modify a Sewage Sludge Utilization Permit upon request by the permittee if the following conditions are met:

  (1) The permittee submits to the Department four completed copies of the Sewage Sludge Utilization Permit modification application on a form provided by the Department, and all other required information and forms as determined by the Department, with the application including a description of the proposed modification and an explanation as to why the modification is needed;

  (2) The permittee pays the Department a nonrefundable Sewage Sludge Utilization Permit modification fee in accordance with the following schedule:

    (a) For a minor modification, $40; and

    (b) For a major modification, $130; and

  (3) The Department determines that the proposed modification is in compliance with the applicable requirements of this chapter and will not cause an undue risk to the environment or public health, safety, or welfare.

C. The following are minor modifications to a Sewage Sludge Utilization Permit for a research project:

  (1) Modification to the project’s operation plan;

  (2) Modification to the project’s water quality monitoring plans;

  (3) Modification to the project’s odor control procedures;

  (4) Modification to the days or hours of operation;

  (5) The permittee’s name change; or

  (6) Other modifications as determined by the Department.

D. The following are major modifications to a Sewage Sludge Utilization Permit for a research project:

  (1) Modification to the source or type of the sewage sludge utilized;

  (2) Modification to the utilization method;

  (3) Modification to the engineering plans and specifications, if applicable; or

  (4) Other modifications as determined by the Department.

E. If the Department considers a modification application complete and acceptable, the Department may modify the Sewage Sludge Utilization Permit.

F. If the Department modifies a Sewage Sludge Utilization Permit, the Department shall send notice of the modification to the local health official and the local soil conservation district in the county in which the Sewage Sludge Permit is issued by the Department.

G. The Department may deny a modification application if the permittee is not in compliance with the applicable requirements of this chapter or any of the terms and conditions of the Sewage Sludge Utilization Permit or for other good cause as determined by the Department.

#### Regulation .61 Innovative Project.

*COMAR 26.04.06.61*

The Department may issue a Sewage Sludge Utilization Permit for an innovative project to utilize sewage sludge in deep rows, brickmaking, resource recovery projects, as fuel, and in other projects, if the sewage sludge is utilized in a manner that will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department.

#### Regulation .62 Innovative Project — Permit Application Requirements.

*COMAR 26.04.06.62*

A. A person who intends to use sewage sludge in an innovative project as described in Regulation .61 of this chapter shall:

  (1) Submit to the Department a separate Sewage Sludge Utilization Permit Application for each site where a sewage sludge innovative project is to be located;

  (2) Submit to the Department six completed copies of the Sewage Sludge Utilization Permit Application on a form provided by the Department;

  (3) Include, as part of the Sewage Sludge Utilization Permit Application required by §A(1) of this regulation, the information required by §B of this regulation; and

  (4) Submit to the Department a performance bond, liability insurance, or other form of security required under the provisions of Regulation .10 of this chapter.

B. The Sludge Utilization Permit Application submitted under §A of this regulation shall include the following completed information:

  (1) A description of the proposed project;

  (2) A written authorization signed by the legal owners of the site where the project is to be located;

  (3) A current site plan designating the property boundary lines, the exact acreage of the site, existing and proposed project structures, the location of any wells on the site and within 1/2 mile of the site, any residences or buildings on site and within 1/2 mile of the site, the proximity of the site to major roads in the area and any roads on the site, and surrounding land uses;

  (4) Tax maps and liber and folio numbers for the parcels of land on which the project will be located and the names of the legal owners of the site;

  (5) A current site-specific topographic map with a minimum scale of 1 inch = 200 feet and a contour interval of not more than 5 feet showing the areal extent of the site, and the location of any stream, spring, or seep within 1/2 mile of the site;

  (6) A site-specific geologic and hydrogeologic report as required by the Department, including a hydrologic map showing the location of the 100-year flood plain, if applicable, and the location of all soil tests, soil borings and test pits on the site;

  (7) A description of the source, type, and quantity of sewage sludge to be utilized, including any previous treatment the sewage sludge has received, such as anaerobic digestion, aerobic digestion, lime stabilization, composting, or dewatering;

  (8) A detailed description of the utilization methods, processes, and monitoring procedures;

  (9) Detailed engineering plans and specifications for the project prepared, signed, and bearing the seal of a registered professional engineer;

  (10) A detailed operation plan that includes, when applicable:

    (a) Procedures for sampling, on-site record keeping, and reporting of the sewage sludge to be utilized;

    (b) Types of equipment to be used for collection, management, washdown, and other operations;

    (c) Days and hours of operation;

    (d) Methods and procedures to prevent or control odors and other potential nuisance conditions at the site;

    (e) Methods and procedures for utilizing the sewage sludge;

    (f) Contingency or emergency plans to manage fires, equipment breakdown, spills, and other emergency events; and

    (g) Methods and procedures for restricting public access to the site;

  (11) Quality control monitoring plans;

  (12) Information on protection of water resources, including:

    (a) A detailed discussion of the methods to be used for the protection of ground and surface waters of the State; and

    (b) If required by the Department, a proposed ground and surface water monitoring plan that meets the following requirements:

      (i) The plan shall include a system for routinely monitoring the quality of waters of the State at, surrounding, and beneath the site, including the location and type of monitoring stations, and the method of construction of monitoring wells; and

      (ii) The plan shall provide for monitoring wells to be installed by a State licensed well driller in accordance with COMAR 26.04.04;

  (13) An assessment of the potential environmental impact of the project;

  (14) A nutrient management plan prepared by a certified nutrient management consultant or a certified operator in accordance with the requirements of COMAR 15.20.04, and in compliance with COMAR 15.20.07 and 15.20.08;

  (15) Documentation that the proposed utilization of the sewage sludge will not cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department;

  (16) Unless the analytical results have been submitted to the Department in accordance with the requirements of Regulation .06 of this chapter, the most recent results of a laboratory analysis of a representative composite sample of the sewage sludge that was obtained from the wastewater treatment plant that generated the sewage sludge, subject to the following requirements:

    (a) The sample was obtained in accordance with the requirements of Regulation .06 of this chapter;

    (b) The analysis of the sample was performed by an independent laboratory or other laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department;

    (c) If requested by the Department, the results shall be accompanied by a description of the method or methods of analysis; and

    (d) The analytical results include, at a minimum:

      (i) Percent of total solids, pH, ammonium nitrogen, nitrate nitrogen, total phosphorous, total potassium, total arsenic, total cadmium, total copper, total lead, total mercury, total molybdenum, total nickel, total selenium, total zinc, polychlorinated biphenyls (PCBs), and the dry weight concentration of total Kjeldahl nitrogen; and

      (ii) Any other sewage sludge constituent that the Department determines necessary to adequately assess the potential impact of the project on public health and the environment; and

  (17) Other information that may be requested by the Department.

C. The Department may reject an analysis of a sewage sludge sample submitted in accordance with §B(16) of this regulation and require retesting and resubmittal of results if the Department determines that the method of analysis is inaccurate, or for any other good cause.

D. Permit Application Fees.

  (1) A person shall pay the Department a nonrefundable Sewage Sludge Utilization Permit Application fee in accordance with the following schedule:

    (a) For a new permit application, $750; and

    (b) For a renewal permit application, $750.

  (2) For activities which involve transportation of sewage sludge in combination with any other activities listed in the Sewage Sludge Utilization Permit Application, the Department will issue a single Sewage Sludge Utilization Permit to include all activities. For combined activities, only the application fee listed for transportation of sewage sludge in Regulation .23C of this chapter shall be waived.

#### Regulation .63 Innovative Project — Public and Local Government Participation Requirements for a Permit Application.

*COMAR 26.04.06.63*

A. To provide a county or a municipal corporation, if appropriate, with an opportunity to consult with the Department about the decision to issue, deny, or place restrictions on a Sewage Sludge Utilization Permit, the Department shall mail a copy of the application for an innovative project to utilize sewage sludge to:

  (1) The chairman of the legislative body and any elected executive of the county and municipal corporation where the innovative project is to be located;

  (2) The chairman of the legislative body and any elected executive of any other county within 1 mile of the site where the innovative project is to be located; and

  (3) The local health official if the innovative project includes the application of sewage sludge.

B. The Department will consider all written comments and suggestions received within 15 calendar days after the chairman of the legislative body or the elected executive of the county or municipal corporation where the innovative project to utilize sewage sludge is to be located receives the application regarding the proposed project.

#### Regulation .64 Innovative Project — Record-Keeping and Reporting Requirements for a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.64*

A. The permittee shall generate a report containing the following information and maintain all documents used to generate the report for a period of 5 years:

  (1) The source, type, and quantity, including documentation of sewage sludge received and utilized;

  (2) The results of the project;

  (3) The quantity, including documentation and final utilization of unutilized sewage sludge transported from the facility or site;

  (4) The dates of transportation of unutilized sewage sludge;

  (5) Descriptions of problems encountered and their solutions;

  (6) The time periods during which the project is inoperational;

  (7) Other related information regarding the project as required by the applicable Sewage Sludge Utilization Permit; and

  (8) Other information that may be requested by the Department.

B. The permittee shall submit to the Department three completed copies of the report required by §A of this regulation for each year the Sewage Sludge Utilization Permit is in effect. The permittee shall submit to the Department the report on a form provided by the Department and in accordance with a schedule established by the Department.

#### Regulation .65 Innovative Project — Modifications of a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.65*

A. The Department may modify a Sewage Sludge Utilization Permit to include a new condition as may be required by a new law or regulation, to clarify permit conditions, or for other good cause.

B. The Department may modify a Sewage Sludge Utilization Permit upon request by the permittee if the following conditions are met:

  (1) The permittee submits to the Department four completed copies of the Sewage Sludge Utilization Permit modification application on a form provided by the Department, and all other required information and forms as determined by the Department. The application shall include a description of the proposed modification and an explanation as to why the modification is needed;

  (2) The permittee pays the Department a nonrefundable Sewage Sludge Utilization Permit modification fee in accordance with the following schedule:

    (a) For a minor modification, $40; and

    (b) For a major modification, $130; and

  (3) The Department determines that the proposed modification is in compliance with the applicable requirements of this chapter and will not cause an undue risk to the environment or public health, safety, or welfare.

C. The following are minor modifications to a Sewage Sludge Utilization Permit for an innovative project:

  (1) Modification to the project’s operation plan;

  (2) Modification to the project’s water quality monitoring plans;

  (3) Modification to the project’s odor control procedures;

  (4) Modification to the days or hours of operation;

  (5) The permittee’s name change; or

  (6) Other modifications as determined by the Department.

D. The following are major modifications to a Sewage Sludge Utilization Permit for an innovative project:

  (1) Modification to the source or type of the sewage sludge utilized;

  (2) Modification to the utilization method;

  (3) Modification to the engineering plans and specifications, if applicable; or

  (4) Other modifications as determined by the Department.

E. If the Department considers a modification application complete and acceptable, the Department may modify the Sewage Sludge Utilization Permit.

F. If the Department modifies a Sewage Sludge Utilization Permit, the Department shall send notice of the modification to the local health official and the local soil conservation district in the county in which the Sewage Sludge Permit is issued by the Department.

G. The Department may deny a modification application if the permittee is not in compliance with the applicable requirements of this chapter or any of the terms and conditions of the Sewage Sludge Utilization Permit or for other good cause as determined by the Department.

#### Regulation .66 Disposal or Alternative Utilization at a Municipal Landfill.

*COMAR 26.04.06.66*

A. The Department may issue a Sewage Sludge Utilization Permit for the disposal or alternative utilization of sewage sludge at a municipal landfill if:

  (1) The Refuse Disposal Permit holder for the municipal landfill submits to the Department a Sewage Sludge Utilization Permit Application for the disposal or alternative utilization of sewage sludge at the permitted municipal landfill;

  (2) The proposed sewage sludge disposal or alternative utilization is to be conducted in accordance with the municipal landfill’s approved operating plan and specifications and does not violate any condition of the municipal landfill’s Refuse Disposal Permit;

  (3) The municipal landfill possesses adequate equipment on-site able to dispose or alternatively utilize the sewage sludge;

  (4) The sewage sludge meets the following requirements with respect to free liquid:

    (a) Except as provided in §A(4)(b) of this regulation, sewage sludge accepted for disposal or alternative utilization may not contain free liquids;

    (b) If sewage sludge accepted for disposal or alternative utilization contains free liquid, the sewage sludge may be mixed with soil, sawdust, or both, and the resulting mixture may be disposed or alternatively utilized at the municipal landfill as specified in the Sewage Sludge Utilization Permit if the mixture is tested and does not contain free liquid; and

    (c) For the purposes of §A(4)(a) and (b) of this regulation, the presence of free liquid is determined by:

      (i) Application of Method 9095B (Paint Filter Liquids Test) as outlined in the most recent edition of the USEPA Publication SW-846 “Test Methods for Evaluating Solid Waste”, which is incorporated by reference in COMAR 26.13.01.05A(4); or

      (ii) A comparable test approved by the Department; and

  (5) When alternatively utilized, the sewage sludge shall meet the requirements for alternative cover material established by the Department.

B. The Department may deny a Sewage Sludge Utilization Permit Application for disposal or alternative utilization of sewage sludge at a permitted municipal landfill if the person applying for the permit is currently in, or has a history of, violation of its Refuse Disposal Permit or other applicable State laws or regulations.

#### Regulation .67 Disposal or Alternative Utilization at a Municipal Landfill — Permit Application Requirements.

*COMAR 26.04.06.67*

A. A Refuse Disposal Permit holder who intends to dispose or alternatively utilize sewage sludge shall:

  (1) Submit to the Department a separate Sewage Sludge Utilization Permit Application for each municipal landfill where sewage sludge is to be disposed or alternatively utilized;

  (2) Submit to the Department six completed copies of the Sewage Sludge Utilization Permit Application on a form provided by the Department;

  (3) Include, as part of the Sewage Sludge Utilization Permit Application, the information required by §B of this regulation; and

  (4) Submit to the Department a performance bond, liability insurance, or other form of security required under the provisions of Regulation .10 of this chapter.

B. A Sewage Sludge Utilization Permit Application submitted under §A of this regulation shall include the following completed information:

  (1) A description of the source, type, and quantity of sewage sludge to be disposed or alternatively utilized at the municipal landfill, including any previous treatment the sewage sludge has received, such as anaerobic digestion, aerobic digestion, lime stabilization, composting, or dewatering;

  (2) A detailed operation plan that includes, when applicable:

    (a) Procedures for sampling, on-site record keeping, and reporting of the sewage sludge to be disposed or alternatively utilized;

    (b) Types of equipment to be used for collection, management, washdown, and other operations;

    (c) Days and hours of operation;

    (d) Methods and procedures to prevent or control odors and other potential nuisance conditions at the site;

    (e) Methods and procedures for utilizing sewage sludge;

    (f) Contingency or emergency plans to manage fires, equipment breakdown, spills, and other emergency events;

    (g) Methods and procedures for restricting public access to the site;

    (h) Disposal or utilization options, such as daily cover, intermediate cover, or as a final cover material; and

    (i) All locations at the municipal landfill where the sewage sludge will be disposed or alternatively utilized;

  (3) Unless the analytical results have been submitted to the Department in accordance with the requirements of Regulation .06 of this chapter, the most recent results of a laboratory analysis of a representative composite sample of the sewage sludge that was obtained from the wastewater treatment plant that generated the sewage sludge, subject to the following requirements:

    (a) The sample was obtained in accordance with the requirements of Regulation .06 of this chapter;

    (b) The analysis of the sample was performed by an independent laboratory or other laboratory acceptable to the Department, using standards, procedures, and methods that are acceptable to the Department;

    (c) If requested by the Department, the results shall be accompanied by a description of the method or methods of analysis; and

    (d) The analytical results include, at a minimum:

      (i) Percent of total solids, pH, ammonium nitrogen, nitrate nitrogen, total phosphorous, total potassium, total arsenic, total cadmium, total copper, total lead, total mercury, total molybdenum, total nickel, total selenium, total zinc, polychlorinated biphenyls (PCBs), and the dry weight concentration of total Kjeldahl nitrogen; and

      (ii) Any other sewage sludge constituent that the Department determines necessary to adequately assess the potential impact of the project on public health and the environment; and

  (4) Other information that may be requested by the Department.

C. The Department may reject an analysis of a sewage sludge sample submitted in accordance with §B(3) of this regulation and require retesting and resubmittal of results if the Department determines that the method of analysis is inaccurate, or for any other good cause.

D. Permit Application Fees.

  (1) A person shall pay the Department a nonrefundable Sewage Sludge Utilization Permit Application fee in accordance with the following schedule:

    (a) For a new permit application, $350; and

    (b) For a renewal permit application, $350.

  (2) For activities which involve transportation of sewage sludge in combination with any other activities listed in the Sewage Sludge Utilization Permit Application, the Department will issue a single Sewage Sludge Utilization Permit to include all activities. For combined activities, only the application fee listed for transportation of sewage sludge in Regulation .23C of this chapter shall be waived.

#### Regulation .68 Disposal or Alternative Utilization at Municipal Landfill — Public and Local Government Participation Requirements for a Permit Application.

*COMAR 26.04.06.68*

A. To provide a county or a municipal corporation, if appropriate, with an opportunity to consult with the Department about the decision to issue, deny, or place restrictions on a Sewage Sludge Utilization Permit, the Department shall mail a copy of the application for disposal or alternative utilization of sewage sludge at a municipal landfill to:

  (1) The chairman of the legislative body and any elected executive of the county and municipal corporation where the sewage sludge is to be disposed or alternatively utilized at a municipal landfill; and

  (2) The chairman of the legislative body and any elected executive of any other county within 1 mile of the site where the sewage sludge is to be disposed or alternatively utilized at a municipal landfill.

B. The Department will consider all written comments and suggestions received within 15 calendar days after the chairman of the legislative body or the elected executive of the county or municipal corporation where the sewage sludge is to be disposed or alternatively utilized at a municipal landfill receives the application regarding the proposed project.

#### Regulation .69 Disposal or Alternative Utilization at a Municipal Landfill — Record-Keeping and Reporting Requirements for a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.69*

A. The permittee shall generate a report containing the following information and maintain all documents used to generate the report for a period of 5 years:

  (1) The source, type, and quantity, including documentation of sewage sludge that has been received and disposed of or utilized at the municipal landfill;

  (2) The type of treatment the disposed or alternatively utilized sewage sludge has received;

  (3) The dates of transportation of sewage sludge to the municipal landfill;

  (4) Descriptions of problems encountered and their solutions;

  (5) Other related information regarding the disposal or alternative utilization as required by the applicable Sewage Sludge Utilization Permit; and

  (6) Other information that may be requested by the Department.

B. The permittee shall submit to the Department three completed copies of the report required by §A of this regulation for each year the Sewage Sludge Utilization Permit is in effect. The permittee shall submit to the Department the report on a form provided by the Department and in accordance with a schedule established by the Department.

#### Regulation .70 Disposal or Alternative Utilization at Municipal Landfill — Modifications of a Sewage Sludge Utilization Permit.

*COMAR 26.04.06.70*

A. The Department may modify a Sewage Sludge Utilization Permit to include a new condition as may be required by a new law or regulation, to clarify permit conditions, or for other good cause.

B. The Department may modify a Sewage Sludge Utilization Permit upon request by the permittee if the following conditions are met:

  (1) The permittee submits to the Department four completed copies of the Sewage Sludge Utilization Permit modification application on a form provided by the Department, and all other required information and forms as determined by the Department, with the application including a description of the proposed modification and an explanation as to why the modification is needed;

  (2) The permittee pays the Department a nonrefundable Sewage Sludge Utilization Permit modification fee in accordance with the following schedule:

    (a) For a minor modification, $40; and

    (b) For a major modification, $130; and

  (3) The Department determines that the proposed modification is in compliance with the applicable requirements of this chapter and will not cause an undue risk to the environment or public health, safety, or welfare.

C. The following are minor modifications to a Sewage Sludge Utilization Permit for disposal or utilization at a municipal landfill:

  (1) Modification to the municipal landfill’s operation plan;

  (2) The permittee’s name change; or

  (3) Other modifications as determined by the Department.

D. The following are major modifications to a Sewage Sludge Utilization Permit for a disposal or utilization of sewage sludge at a municipal landfill:

  (1) Modification to the source or type of sewage sludge to be disposed or alternatively utilized at the municipal landfill;

  (2) Modification to the alternative utilization method; or

  (3) Other modifications as determined by the Department.

E. If the Department considers a modification application complete and acceptable, the Department may modify the Sewage Sludge Utilization Permit.

F. If the Department modifies a Sewage Sludge Utilization Permit, the Department shall send notice of the modification to the local health official and the local soil conservation district in the county in which the Sewage Sludge Utilization Permit is issued by the Department.

G. The Department may deny a modification application if the permittee is not in compliance with the applicable requirements of this chapter or any of the terms and conditions of the Sewage Sludge Utilization Permit or for other good cause as determined by the Department.

#### Regulation .71 Sewage Sludge Utilization Permit Term and Renewal.

*COMAR 26.04.06.71*

A. As a requirement for maintaining a Sewage Sludge Utilization Permit, the permittee shall:

  (1) Comply with the applicable State laws and regulations and with the terms and conditions of the Sewage Sludge Utilization Permit;

  (2) Maintain a performance bond, liability insurance, or other form of security as required in Regulation .10 of this chapter;

  (3) Allow authorized State and local health officials to conduct inspections as required in Regulation .04 of this chapter; and

  (4) Provide any other information that may be requested by the Department.

B. Except for a Sewage Sludge Utilization Permit to apply sewage sludge on an agricultural or marginal land or to conduct a research project, the Department may issue a Sewage Sludge Utilization Permit for a term not to exceed 10 years. For a Sewage Sludge Utilization Permit to apply sewage sludge on an agricultural or marginal land or to conduct a research project, the Department may issue a Sewage Sludge Utilization Permit for a term not to exceed 5 years.

C. Except for Sewage Sludge Utilization Permits for a sewage sludge storage or distribution facility, the Department may renew a Sewage Sludge Utilization Permit if:

  (1) The permittee is in compliance with the applicable State laws and regulations and all of the terms and conditions of the Sewage Sludge Utilization Permit;

  (2) The permittee submits to the Department two calendar weeks before the expiration date of the current Sewage Sludge Utilization Permit or in accordance with the time specified in the current Sewage Sludge Utilization Permit four completed copies of the Sewage Sludge Utilization Permit renewal application on a form provided by the Department, and all other required information and forms as determined by the Department;

  (3) The permittee pays the Department the required renewal application fee; and

  (4) The sewage sludge generator has paid the fee required in Regulation .08 of this chapter.

D. For Sewage Sludge Utilization Permits for a sewage sludge storage or distribution facility, the Department may renew a Sewage Sludge Utilization Permit if:

  (1) The permittee is in compliance with the applicable State laws and regulations and all of the terms and conditions of the Sewage Sludge Utilization Permit;

  (2) The permittee submits to the Department two calendar weeks before the expiration date of the current Sewage Sludge Utilization Permit or in accordance with the time specified in the current Sewage Sludge Utilization Permit six completed copies of the Sewage Sludge Utilization Permit renewal application on a form provided by the Department, and all other required information and forms as determined by the Department;

  (3) The permittee pays the Department the required renewal application fee; and

  (4) The sewage sludge generator has paid the fee required in Regulation .08 of this chapter.

E. To provide a county or a municipal corporation, if appropriate, with an opportunity to consult with the Department about the decision to issue, deny, or place restrictions on a Sewage Sludge Utilization Permit, the Department shall mail a copy of a renewal Sewage Sludge Utilization Permit Application to install, materially alter, or materially extend a sewage sludge storage or distribution facility to:

  (1) The chairman of the legislative body and any elected executive of the county and municipal corporation where the storage or distribution facility is to be installed, materially altered or materially extended; and

  (2) The chairman of the legislative body and any elected executive of any other county within 1 mile from the location where the storage or distribution facility is to be installed, materially altered or materially extended.

F. For the renewal of a Sewage Sludge Utilization Permit Application to install, materially alter, or materially extend a sewage sludge storage or distribution facility, the Department shall publish a notice of application received and a public hearing.  The Department shall comply with the requirements for public participation in the permitting process in Environment Article, Title 1, Subtitle 6, and §9-234.1, Annotated Code of Maryland.

G. If the Department considers a renewal application complete and acceptable, the Department may renew the Sewage Sludge Utilization Permit.

H. The Department may deny a renewal application if the permittee is not in compliance with the applicable State laws and regulations or any of the terms or conditions of the Sewage Sludge Utilization Permit that is subject to renewal.

#### Regulation .72 Transfer of a Sewage Sludge Utilization Permit or Ownership.

*COMAR 26.04.06.72*

A. Thirty days before any change in control or ownership of the permitted property, site, or facility, the permittee shall:

  (1) Provide the succeeding legal owners of the permitted property, site, or facility by certified mail, with a copy of:

    (a) The “Owner’s Consent Form” signed by the current owners of the permitted property, site, or facility; and

    (b) A copy of the Sewage Sludge Utilization Permit for the permitted property, site, or facility; and

  (2) Notify the succeeding legal owners of any outstanding permit noncompliance, and, at the same time, submit to the Department a copy of this notification.

B. Sewage Sludge Utilization Permits for sewage sludge treatment, composting, storage, or distribution facilities, application on agricultural or marginal land, energy generation or incineration, or innovative or research project are not transferable and are only valid for the permittee named in the Sewage Sludge Utilization Permit. In order for a different person to become the permittee for a Sewage Sludge Utilization Permit for these sewage sludge utilization activities, the new person shall first obtain a new Sewage Sludge Utilization Permit from the Department.

C. The Department may transfer to a new person a Sewage Sludge Utilization Permit for sewage sludge transportation, marketing, or disposal or alternative utilization project at a municipal landfill if:

  (1) The permittee submits to the Department a written request for the transfer that:

    (a) Indicates the reason for the requested transfer; and

    (b) Is signed by the permittee and the new person seeking to obtain the Sewage Sludge Utilization Permit;

  (2) The permittee submits to the Department a written agreement between the permittee and new person indicating the specific date of the proposed transfer of the Sewage Sludge Utilization Permit, and acknowledging responsibilities of the permittee and the new person for compliance with the terms and conditions of the Sewage Sludge Utilization Permit;

  (3) The new person submits to the Department the required performance bond, liability insurance, or other form of security required by provisions of Regulation .10 of this chapter;

  (4) The new person pays the Department a nonrefundable Sewage Sludge Utilization Permit transfer fee of $500; and

  (5) The permittee or the new person submits to the Department other information that may be requested by the Department.

D. If the Department considers the request for transfer complete and acceptable, the Department may transfer the Sewage Sludge Utilization Permit.

E. The Department may deny a request to transfer a Sewage Sludge Utilization Permit if:

  (1) The permittee is not in compliance with applicable State laws and regulations and all of the terms and conditions of the Sewage Sludge Utilization Permit that is subject to transfer;

  (2) The new person has violated:

    (a) Any law of the State or any other state concerning the utilization of sewage sludge; or

    (b) Any provision of the Environment Article, Annotated Code of Maryland or any regulation adopted under the Environment Article, Annotated Code of Maryland; or

  (3) For any other good cause as determined by the Department.

#### Regulation .73 Variance.

*COMAR 26.04.06.73*

A. A person who utilizes or proposes to utilize sewage sludge may apply to the Department for a variance from one or more of the provisions of this chapter. Variances may be sought for the Sewage Sludge Utilization Permit Application requirements, or the design, construction, operation, monitoring, record-keeping, or reporting requirements of these regulations. The Department may grant a variance if the person demonstrates to the satisfaction of the Department that the proposal conserves and protects public health, natural resources, and the environment of the State, and controls air, water, and land pollution to at least the same extent as would be obtained by compliance with the applicable requirements of this chapter.

B. A written request for variance submitted under §A of this regulation shall include the following information:

  (1) A written description of the variance requested;

  (2) The reasons for which the variance is requested, including the economic, technological, and environmental justification;

  (3) A nonrefundable $500 variance fee payable to the Department; and

  (4) Other information that the Department may require.

#### Regulation .74 Suspension, Revocation, or Modification by the Department.

*COMAR 26.04.06.74*

A. After written notification and an opportunity to request a hearing by the Department, the Department may suspend, revoke, or modify a Sewage Sludge Utilization Permit if the Department finds that:

  (1) False or inaccurate information was contained in:

    (a) The Sewage Sludge Utilization Permit Application;

    (b) The information and forms required as part of the Sewage Sludge Utilization Permit Application; or

    (c) Information required as part of the Sewage Sludge Utilization Permit;

  (2) As part of a regulated activity by a permittee, there is or has been a violation of:

    (a) The Environment Article, Annotated Code of Maryland;

    (b) Applicable requirements of this chapter; or

    (c) Any conditions in the Sewage Sludge Utilization Permit;

  (3) Substantial deviation from approved plans, specifications, or requirements has occurred as determined by the Department;

  (4) The Department, an authorized representative of the Department, or the local health official has been refused entry to the premises for the purpose of inspecting or sampling to ensure compliance with the terms and conditions of the Sewage Sludge Utilization Permit;

  (5) Conditions exist which are causing or may cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department;

  (6) The permittee has been negligent or incompetent in the utilization of sewage sludge;

  (7) The sewage sludge generator fee as required in Regulation .08 of this chapter has not been paid; or

  (8) Any other good cause exists for suspending, revoking, or modifying the Sewage Sludge Utilization Permit.

B. Immediate Suspension or Revocation.

  (1) Notwithstanding other provisions of this chapter or the terms and conditions of the Sewage Sludge Utilization Permit, the Department may immediately suspend or revoke a Sewage Sludge Utilization Permit if the Department determines there is an immediate and substantial threat to the environment, public health, safety, or welfare.

  (2) The Department shall deliver written notice of an immediate suspension or revocation of a Sewage Sludge Utilization Permit to the permittee which does the following:

    (a) Informs the permittee of the emergency suspension or revocation;

    (b) Cites the regulation or regulations with which the permittee has failed to comply that is the basis for the emergency suspension or revocation;

    (c) Specifies the corrective action to be taken by the permittee and the time period within which the action shall be taken; and

    (d) Notifies the permittee of the right to request a hearing.

  (3) The filing of a hearing request does not stay the revocation or suspension.

C. An opportunity shall be provided for a hearing if the permittee files a written request with the Department within 10 calendar days of receipt of the notice of suspension, revocation, or modification of a Sewage Sludge Utilization Permit.

D. A hearing provided for in this regulation shall be conducted by the Department at a designated time and place in accordance with the provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

E. Actions taken in accordance with this regulation do not preclude the Department from taking other administrative, civil, or criminal action for violations of State law, regulations, or terms or conditions of a Sewage Sludge Utilization Permit.

F. If the Department suspend or revokes a Sewage Sludge Utilization Permit, the Department shall send notice of the suspension or revocation to the local health official and the local soil conservation district in the county in which the Sewage Sludge Utilization Permit is issued by the Department.

#### Regulation .75 Delegation of Inspection, Monitoring, or Enforcement.

*COMAR 26.04.06.75*

A. A local health official or the local health official’s designee may seek delegation authority from the Department to inspect, monitor, or enforce the provisions of Sewage Sludge Utilization Permits issued for sewage sludge utilization activities in that local jurisdiction.

B. The Department may delegate the inspection, monitoring, or enforcement authority to a local health official if the Department determines that the local health department is capable of conducting the inspection, monitoring, or enforcement of the provisions of Sewage Sludge Utilization Permits issued for sewage sludge utilization activities in that local jurisdiction.

C. The local health official seeking new, modified, or renewed delegation authority from the Department for the inspection, monitoring, or enforcement of the provisions of Sewage Sludge Utilization Permits issued for sewage sludge utilization activities in that local jurisdiction, shall submit to the Department a written request for the delegation authority on or before January 1 immediately preceding the State fiscal year for which new or renewal delegation is sought.

D. The written request shall include a statement from the elected executive of the county or municipal corporation that is seeking delegation approving the request for the delegation authority.

E. The Department shall, in writing, grant or deny the delegation authority on or before May 1of the State fiscal year that immediately precedes the State fiscal year for which new or renewal delegation authority is sought.

F. The Department may not deny a requested delegation authority unless opportunity has been afforded to the appropriate local health official of the affected local jurisdiction to present arguments before the Department as to why delegation is appropriate.

G. If the Department determines that a local health official’s written request for delegation authority to inspect, monitor, or enforce the provisions of Sewage Sludge Utilization Permits issued for sewage sludge utilization activities in that local jurisdiction meets the applicable requirements of this regulation, the Department shall enter into a written delegation agreement with the local health official.

H. The Department shall establish the terms and conditions of the delegation agreement to comply with the requirements of this regulation.

I. The delegation agreement shall include terms and conditions to ensure oversight by the Department including evaluations and financial audits.

J. The Department may issue a delegation agreement for a term not to exceed 5 years.

K. Delegation shall be effective July 1 of the initial State fiscal year for which new or renewal delegation authority is sought, and shall end on June 30 of the year the delegation agreement expires.

L. The Department may provide the local health department with grants for the reasonable reimbursement of costs the local health department has incurred as provided in the delegation agreement in accordance with Environment Article, §9-320, Annotated Code of Maryland.

M. If the Department determines that a delegated local health department is not capable of conducting the inspection, monitoring, or enforcement of the provisions of the terms and conditions of the delegation agreement between the Department and the local health official, the Department may suspend or revoke the delegation authority after opportunity is afforded for the appropriate local health official of the affected local jurisdiction to present arguments before the Department.

### Chapter 07 — Solid Waste Management

**Authority:** Environment Article, §§9-204, 9-252, and 9-314, Annotated Code of Maryland

**Administrative History:** Effective date: July 25, 1980 (7:15 Md. R. 1423)

**Administrative History:** Regulation .04B amended effective June 21, 1982 (9:12 Md. R. 1224)

**Administrative History:** Chapter, Installation and Operation of Systems of Refuse Disposal for Public Use, repealed effective March 7, 1988 (15:5 Md. R. 618)

**Administrative History:** Regulations .01—.27, Solid Waste Management, adopted effective March 7, 1988 (15:5 Md. R. 618)

**Administrative History:** COMAR 10.17.11 recodified to COMAR 26.04.07

**Administrative History:** Regulation .02B amended effective September 22, 1997 (24:19 Md. R. 1342); December 1, 2008 (35:24 Md. R. 2080); June 18, 2018 (45:12 Md. R. 619)

**Administrative History:** Regulation .04C amended effective December 1, 2008 (35:24 Md. R. 2080)

**Administrative History:** Regulation .13B amended effective September 22, 1997 (24:19 Md. R. 1342)

**Administrative History:** Regulation .15 amended effective September 22, 1997 (24:19 Md. R. 1342)

**Administrative History:** Regulation .16 amended effective September 22, 1997 (24:19 Md. R. 1342)

**Administrative History:** Regulation .17 amended effective September 22, 1997 (24:19 Md. R. 1342)

**Administrative History:** Regulation .18 amended effective September 22, 1997 (24:19 Md. R. 1342)

#### Regulation .01 Scope.

*COMAR 26.04.07.01*

Except as otherwise specifically provided, these regulations apply to all persons engaged in the construction and operation of all solid waste acceptance facilities.

#### Regulation .02 Definitions.

*COMAR 26.04.07.02*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Agricultural waste” means domestic animal manure or residuals in liquid or solid form generated in the production of poultry, livestock, fur-bearing animals, and their products. The term “agricultural waste”:

    (a) Includes residuals generated in the production and harvesting but not subsequent processing of all agricultural horticultural, silvicultural, or aquacultural commodities;

    (b) Does not include residuals generated during land clearing exercises unless the cleared land is intended solely for agricultural purposes.

  (2) “Approving Authority” means the Secretary of the Environment or the Secretary's designee.

  (3) Ashes.

    (a) “Ashes” means the residue from the burning of wood, solid waste, coal, coke, and other combustible materials.

    (b) “Ashes” does not include:

      (i) Pozzolan as defined in Environment Article, §15-407, Annotated Code of Maryland, if the pozzolan is used in accordance with Environment Article, §15-407, Annotated Code of Maryland, and COMAR 26.04.10; or

      (ii) Coal combustion byproducts as defined in COMAR 26.04.10, if the coal combustion byproducts are used in accordance with COMAR 26.04.10.

  (4) “Composting” means the process in which organic solid waste is biologically decomposed under controlled conditions to yield a nuisance-free humus-like product.

  (5) “Controlled hazardous substance (CHS)” is as defined in COMAR 26.13.01.03B(26).

  (6) “County comprehensive solid waste management plan” means the same as “county plan” as defined in COMAR 26.03.03.01B(2).

  (7) “Department” means the Department of the Environment.

  (8) “Facility structures” means any buildings and sheds or utility or drainage lines on the facility.

  (9) “Final disposal” means the complete and ultimate disposal of solid waste.

  (10) “Ground water” is as defined in COMAR 26.08.01.01B(27).

  (11) “Incinerator” is as defined in COMAR 26.11.08.01B.

  (12) “Industrial waste” is defined in COMAR 26.08.01.01B(30).

  (13) “Infectious waste” means any waste that comes from a hospital, clinic, or laboratory and that is known or suspected to be contaminated with organisms capable of producing disease or infection in humans. Infectious waste includes:

    (a) Disposable equipment, instruments, and utensils;

    (b) Contaminated needles, scalpels, and razor blades;

    (c) Human tissue and organs that result from surgery, obstetrics, or autopsy;

    (d) Feces, urine, vomitus, and suctionings;

    (e) Live vaccines for human use;

    (f) Blood and blood products; and

    (g) Laboratory specimens, such as tissues, blood elements, excreta, and secretions.

  (14) “Intermediate disposal” means the preliminary or incomplete disposal of solid waste including, but not limited to, transfer station, incineration, or processing.

  (15) “Leachate” means liquid that has percolated through solid waste and has extracted dissolved or suspended material from it.

  (16) “Lower explosive limits” means the lowest percent by volume of a mixture of explosive gases which will propagate a flame in air at 25°C and atmospheric pressure.

  (17) “Monitoring well” means any hole made in the ground to examine ground water.

  (18) “Municipal landfill” means a solid waste acceptance facility permitted under these regulations that is designed, installed, and operated so that all types of waste generated by a community except waste specifically prohibited by these regulations or a permit issued under these regulations can be accepted.

  (19) “Open dump” means a land disposal site which is operated after the effective date of these regulations and is not designed or operated in accordance with the requirements for a sanitary landfill in these regulations.

  (20) “Overburden” means the material overlying a mineral deposit in its natural state.

  (21) “Person” means the federal government, any individual, corporation, company, association, society, firm, partnership, joint venture, joint stock company, governmental unit, or any political subdivision of this State or any agency or instrumentality of one.

  (22) Processed Debris.

    (a) “Processed debris” means acceptable demolition or construction debris as described in Regulation .13B(2) and (3) of this chapter containing more than one material that has been physically altered so that individual component materials may not be identified through visual inspection.

    (b) “Processed debris” includes shredded demolition or construction waste unless the shredded waste is of a single material which is readily identifiable by visual inspection.

    (c) “Processed debris” does not include construction or demolition debris crushed or compacted so that individual component materials are identifiable through visual inspection.

  (23) “Processing facility” means a combination of structures, machinery, or devices used to reduce or alter the volume, chemical, or physical characteristics of solid waste. For the purpose of these regulations, collection points serving rural residential areas are not considered to be processing facilities, provided that solid waste is not transferred from collection vehicles to another transportation unit. A generator who processes his or her own solid waste at the site of generation and disposes of the processed solid waste off the site of generation at a disposal site permitted by the Department is not considered to be a processing facility.

  (24) “Production well” means any hole made in the ground for purposes of extracting water from the ground for agricultural, commercial, domestic, or industrial uses.

  (25) “Refuse” is synonymous with solid waste.

  (26) “Resource recovery facility” means a processing facility at which component materials of solid waste are recovered for use as raw materials or energy sources.

  (27) “Sanitary landfill” means an engineered method of disposing of solid wastes on land in a manner that:

    (a) Minimizes public health and environmental hazards; and

    (b) Is designed, installed, and operated according to the provisions of these regulations.

  (28) “Solid waste” has the meaning stated in Environment Article, §9-101(j), Annotated Code of Maryland.

  (29) “Solid waste acceptance facility” means any landfill, incinerator, transfer station, or processing facility whose primary purpose is to dispose of, treat, or process solid waste.

  (30) “System of refuse disposal for public use” means the services, facilities, or properties used in connection with the intermediate or final disposal of any solid waste unless these activities are limited to waste generated by an individual, a single corporation or business, or are disposed of as authorized by a permit issued by the Department under Environment Article, §7-232, 9-224, or 9-323, Annotated Code of Maryland.

  (31) “Third-party checker” means an individual responsible for the checking of waste, unloaded at the working face of an unlined rubble landfill, for unacceptable debris and materials and for reporting to the Approving Authority results of the inspections conducted.

  (32) “Transfer station” means a place or facility where waste materials are taken from one collection vehicle (for example, compactor trucks) and placed in another transportation unit (for example, over-the-road tractor-trailers, railroad gondola cars, barges or ships) for movement to other solid waste acceptance facilities. For the purposes of these regulations, collection points serving rural residential areas are not considered to be transfer stations, provided that solid waste is not transferred from a collection vehicle to another transportation unit. The movement or consolidation of a single generator's solid waste at the site of generation may not be considered to be a transfer station.

#### Regulation .03 General Restrictions and Specifically Prohibited Acts.

*COMAR 26.04.07.03*

A. General Restrictions. The Department, in exercising its authority under these regulations with respect to the granting or renewal of permits or reviewing operations of a facility, shall consider all material required to be submitted under these regulations to evaluate whether any of the following factors is likely to occur or has occurred. A person may not engage in solid waste handling in a manner which will likely:

  (1) Create a nuisance;

  (2) Be conducive to insect and rodent infestation or the harboring of wild dogs or other animals;

  (3) Pollute the air;

  (4) Cause a discharge of pollutants to waters of this State unless otherwise permitted under Environment Article, §7-232 or 9-323, Annotated Code of Maryland;

  (5) Impair the quality of the environment; or

  (6) Create other hazards to the public health, safety, or comfort as may be determined by the Approving Authority.

B. Specific Prohibited Acts.

  (1) Operation of a System of Refuse Disposal for Public Use Without a Permit. A person may not:

    (a) Construct or operate a system of refuse disposal for public use without first obtaining a valid permit issued under these regulations, or a permit issued under Environment Article, §7-232 or 9-323, Annotated Code of Maryland;

    (b) Cause, suffer, allow, or permit the construction or operation of an unpermitted system of refuse disposal for public use on his or her property.

  (2) Operation of an Industrial Waste Acceptance Facility. A person who constructs or operates an industrial waste acceptance facility for private use is not required to obtain a permit, but shall comply with the regulations applicable to the construction, installation, and operation of solid waste acceptance facilities. Whenever the Department finds that a person has violated this regulation, the Department shall issue an order under Environment Article, §9-224, Annotated Code of Maryland. If the owner or operator elects to alter the method of waste disposal at his facility, he shall apply for a permit under Environment Article, §9-224, Annotated Code of Maryland, and submit the information required in Regulation .20A to the Department within 60 days.

  (3) Burning. Solid waste may not be burned at a solid waste acceptance facility except as permitted by the Approving Authority.

  (4) Operating an Open Dump. Solid waste may not be disposed of by any person in an open dump. A person may not cause, suffer, allow, or permit open dumping on his property.

  (5) Accepting Controlled Hazardous Substances. Waste regulated under COMAR 26.13.07 may not be accepted at a solid waste acceptance facility unless specifically authorized by a valid permit issued under COMAR 26.13.07.

  (6) Accepting Infectious Waste. Unless specifically authorized by the Approving Authority, infectious waste may not be accepted at any solid waste acceptance facility.

  (7) Scavenging or Salvaging. Scavenging or salvaging may not be conducted at any system of refuse disposal for public use except as specifically authorized by the Approving Authority. Scavenging or salvaging at a system for refuse disposal for public use is permitted provided that the following conditions are satisfied:

    (a) The operations manual for the site clearly describes the scavenging or salvaging process to be employed and the safety precautions to be followed;

    (b) Areas for scavenging or salvage are clearly designated and are separate from the working face of the fill; and

    (c) The Approving Authority determines that the scavenging or salvaging can be accomplished in a manner that does not endanger the public health or the environment.

  (8) Disposal of Liquid Wastes. Liquid wastes and wastes containing free liquids may only be disposed of at a solid waste acceptance facility that has been specifically authorized by the Department to handle those wastes. The presence of free liquids shall be determined by application of the free liquid test as specified in 47 FR 8311 (1982), which is incorporated by reference.

  (9) Explosive Gases. A facility may not be designed or operated in such a manner that the concentration of explosive gases generated by the facility exceeds 25 percent of the lower explosive limits for the gases in facility structures, excluding gas control or recovery system components, and the lower explosive limit for the gases at the property boundary.

#### Regulation .04 Sanitary Landfills — General.

*COMAR 26.04.07.04*

A. Permits Required. Unless excepted under the provisions of §C, a person may not construct or operate a sanitary landfill, or materially alter or extend one, without obtaining a permit from the Approving Authority before any work, including site preparation, is begun. This requirement applies to all the following types of sanitary landfills:

  (1) Municipal landfills, Regulations .05—.10 of this chapter;

  (2) Land clearing debris landfills, Regulations .11 and .12 of this chapter;

  (3) Rubble landfills, Regulations .13—.18 of this chapter; and

  (4) Industrial waste landfills, Regulations .19 and .20 of this chapter.

B. Renewal of Permits. Permits for municipal landfills issued under the Environment Article, §9-204, Annotated Code of Maryland, in accordance with the provisions of this regulation, are valid for a period of up to 5 years from the date of issue unless suspended or revoked by the Approving Authority. Permits are automatically renewed every 5 years upon written approval from the Approving Authority, provided that the permit holder is in compliance with Environment Article, §9-204, Annotated Code of Maryland.

C. Exceptions. Permits issued under these regulations are not required for the following:

  (1) Land disposal areas for solid waste generated from single-family residences within the property limits of these residences when this disposal is not in violation of State or local laws.

  (2) Land disposal areas which are not part of a system of refuse disposal for public use.

  (3) Land disposal of agricultural waste on agricultural land.

  (4) Land disposal of overburden resulting from mining operations.

  (5) Filling operations which consist solely of the importation of clean earthen fill containing rock, concrete, non-refractory brick, and asphalt created as a result of construction excavation activities, mining, or regrading projects provided that:

    (a) If warranted, a county grading permit is obtained; and

    (b) The filling, grading, and site stabilization is carried out in accordance with the provisions of Environment Article, Title 4, Subtitle 1, and COMAR 26.09.01.

  (6) Facilities or systems regulated by the Department under the State pretreatment program, hazardous waste management program, or other regulatory program under the Environment Article, Annotated Code of Maryland. These facilities are required to comply with those portions of the regulations dealing with the design, construction, and operation of industrial waste acceptance facilities.

  (7) The use of pozzolan, if the use is in accordance with Environment Article, §15-407, Annotated Code of Maryland, and COMAR 26.04.10.

  (8) The use of coal combustion byproducts, as defined in COMAR 26.04.10, if the use is in accordance with COMAR 26.04.10.

#### Regulation .05 Sanitary Landfills — Municipal Landfills — General.

*COMAR 26.04.07.05*

A. Sanitary landfills that are municipal landfills as defined in Regulation .02B(20) of this chapter, are required to satisfy the informational, design, and other requirements of this regulation.

B. Application. Written request for permits under the provisions of Regulation .04 shall be submitted to the Approving Authority using the application forms provided by the Approving Authority. The request shall briefly describe the nature of the proposal.

#### Regulation .06 Sanitary Landfills — Municipal Landfills — Phase I Report.

*COMAR 26.04.07.06*

A. Phase I Report Required. Twelve copies of a preliminary (Phase I) report shall be prepared and submitted along with the request for a permit.

B. Contents of Phase I Report. At a minimum, the Phase I report shall include a:

  (1) Completed and signed application form referenced in Regulation .05B of this chapter;

  (2) Current U.S.G.S. 7.5 minute quadrangle map with the proposed site outlined;

  (3) Current topographic map, which is an accurate depiction of the site at the time of application, at a scale not smaller than 1 inch equals 200 feet, which depicts the property boundaries, on-site buildings and structures, and pertinent surficial features including but not limited to:

    (a) Springs,

    (b) Seeps,

    (c) Streams,

    (d) Rock outcrops,

    (e) Sink holes,

    (f) Surface impoundments,

    (g) Water wells,

    (h) Forested areas, and

    (i) The location of any buried or overhead power transmission lines, utility pipelines, or storage tanks on the property;

  (4) Map which depicts the surrounding zoning and land use within 1/2 mile of the site boundaries;

  (5) Map showing the distribution of the soils at the site;

  (6) Narrative description of the soils at the site;

  (7) Map showing the geology at the site based on available data;

  (8) Narrative description of the geology at the site based on available data;

  (9) Description of the proposed activity including:

    (a) Type of facility;

    (b) Area served;

    (c) Capacity; and

    (d) Types of waste accepted.

C. Phase I Report Review.

  (1) Following receipt of the specified number of copies of the required information, the Department shall distribute one copy to each of the following:

    (a) Chief executive officer or the governing body, or both, of a county or municipality in which the activity is proposed;

    (b) Local operating agency responsible for solid waste management;

    (c) Local health official;

    (d) Secretary, Department of Natural Resources;

    (e) Director, Water Resources Administration;

    (f) Director, Maryland Geologic Survey;

    (g) U.S. Geological Survey;

    (h) Federal Aviation Administration;

    (i) Appropriate Soil Conservation District;

    (j) U.S. Army Corp of Engineers; and

    (k) State Highway Administration.

  (2) A person receiving a copy of the application and supporting information shall be invited to inspect the proposed site and requested to submit comments to the Department within 20 days of receipt of the report.

  (3) The Department shall set a date, time, and place for a joint site inspection meeting with interested agencies and the applicant.

  (4) When practicable, within 60 days of receipt of a complete Phase I report, the Department shall:

    (a) Review the Phase I report for completeness. The Department shall notify the applicant that the Phase I report is complete.

    (b) Make a determination with respect to the site. If the Department determines that the site is not suitable for the intended use, the Department shall deny the application. The applicant shall be notified in writing by the Approving Authority, informed of the basis for the denial, and the appeal process. Otherwise the Approving Authority shall advise the applicant in writing of any limitations which the preliminary investigation revealed concerning the use of the site, and of any general recommendations. The applicant shall be advised to proceed with the preparation of a geologic report.

  (5) If the Department is unable to complete the review within the established 60-day time schedule, the Department shall notify the applicant in writing within 30 days of receipt of the information and inform the applicant of the anticipated time required to complete the review.

#### Regulation .07 Sanitary Landfills — Municipal Landfills — Phase II Report.

*COMAR 26.04.07.07*

A. Phase II Report — Site Geology. The applicant shall prepare and submit to the Approving Authority ten copies of a geologic report, known as the Phase II report, describing the soils, geology, meteorology, and hydrology of the proposed site.

B. The report shall be developed and signed by a geologist or geotechnical engineer. The geologist shall possess at least a bachelor's degree from an accredited college or university in the field of geology or a related field of earth science. The geotechnical engineer shall possess at least a bachelor's degree in civil or environmental engineering from an accredited college or university with the major course of study in geotechnical engineering or related earth sciences, and shall be registered in Maryland as a professional engineer. The geologist or geotechnical engineer shall have at least 5 years of experience in performing hydrogeologic investigations.

C. The report shall include the following information in sufficient detail to permit a comprehensive review of the project:

  (1) An up-to-date site specific topographic map using a contour interval which is practical for that site. The following items shall be shown on the map:

    (a) Surface waters and natural drainage features;

    (b) 100-year flood plain;

    (c) Property lines;

    (d) On-site buildings and structures;

    (e) Forested and other vegetated areas; and

    (f) The location of any buried or overhead power transmission lines, utility pipelines, or storage tanks on the property.

  (2) A discussion of the geologic formations directly underlying and in close proximity to the site, the present and projected use of these formations as a source of ground water and minerals, and the hydrogeologic relationship between the formations.

  (3) A survey of all production wells within 1/2 mile of the site boundary. Each well shall be located on the topographic map and a table shall be developed which specifies all the available pertinent information such as well depth, screen type, productivity, materials encountered, and water level.

  (4) Ground water contour maps to show the occurrence and direction of ground water flow beneath the site superimposed on the current topographic map. Three separate ground water contour maps as specified below shall be constructed for each distinct water-bearing formation occurring within 50 feet of the anticipated lowest elevation of the refuse cell floor, using monthly ground water elevation data collected from piezometers on the site over a period of not less than 12 months, or derived using a hydrologic simulation or prediction technique approved by the Department. Three ground water contour maps shall be constructed from a set of:

    (a) Water elevations measured or predicted during the month that represents the most:

      (i) Elevated ground water condition,

      (ii) Depressed ground water condition; and

    (b) The highest observed or predicted ground water elevations.

  (5) Geologic cross sections in sufficient detail, orientation, and number to clearly identify subsurface conditions at the site.

  (6) A bedrock map, except in the coastal plain outside the fall zone, to show the contours of the bedrock surface beneath the site.

  (7) An isopachous map to show the minimum thickness of soil and other unconsolidated sediments above the elevation of ground water as determined in §C(4), or bedrock as determined in §C(6), of this regulation, whichever is the higher.

  (8) A discussion of the chemical quality of ground water in the aquifers beneath the site as determined in §C(2) of this regulation. The list of chemical parameters shall include pH, alkalinity, hardness, chloride, specific conductance, nitrate, chemical oxygen demand, arsenic, barium, cadmium, chromium, zinc, lead, mercury, the volatile priority pollutants, and any other pollutants specified by the Department.

  (9) A discussion of the potential for the vertical and horizontal movement of pollutants into the waters of this State.

  (10) The results of a fracture trace or aerial photographic lineament analysis (except in the coastal plain) which identifies the relationship between these features and the local ground water hydrology.

  (11) Test boring logs, well completion reports, piezometric measurements, chemical and physical soil/sediment analyses, and all accompanying geotechnical analyses. All laboratory and field methodologies and procedures shall be included.

  (12) A preliminary conceptual design of the proposed municipal landfill based on the geotechnical information gathered in §C(1)—(11) of this regulation. The landfill design shall satisfy the following minimum design standards:

    (a) A liner system that is designed, constructed, and installed to facilitate collection of leachate generated by the landfill to prevent migration of pollutants out of the landfill to the adjacent subsurface soil, ground water, or surface water. The liner may be constructed of natural earthen materials which are excavated from on the site or which are imported from another location. The liner may also be constructed of a synthetic or manufactured membrane material. The liner system shall be:

      (i) Constructed of materials that have sufficient strength and thickness to prevent failure due to pressure gradients, physical contact with the waste or leachate, climatic conditions, the stress of installation, and the stress of daily operation.

      (ii) A minimum of 1 foot of clay or other natural material having an in-place permeability of less than or equal to 1 × 10-7th centimeters/second, or one or more unreinforced synthetic membranes with a combined minimum thickness of 50 mil, or a single reinforced synthetic membrane with a minimum thickness of 30 mil, which has a permeability less than or equal to 1 × 10-10th centimeters/second, placed over a prepared subbase with a minimum thickness of 2 feet and a permeability less than or equal to 1 × 10-5th centimeters/second. The Approving Authority may authorize the installation of a liner system with specifications different than those listed in this subparagraph only upon a successful demonstration by the applicant that the alternate system is capable of collecting and managing the leachate generated at the site, and that the liner system provides an equivalent level of protection to public health and the environment.

      (iii) Placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, uplift, puncture, cutting or activities at the landfill.

      (iv) Installed to cover all surrounding earth likely to be in contact with the waste or leachate.

      (v) Installed with a minimum slope of 2 percent to facilitate movement of leachate towards the leachate collection system and prevent leachate ponding on the landfill floor.

    (b) The liner system shall be located entirely above the composite high water table as determined in §C(4)(b), of this regulation, and bedrock as determined in §C(6) of this regulation. A minimum buffer distance, including the thickness of the prepared subbase, shall be required between the bedrock elevation and the maximum expected ground water elevation, and the bottom of the liner system, as follows:

      (i) Except as specified in §C(12)(b)(ii), of this regulation, the minimum buffer distance shall be 3 feet.

      (ii) In Queen Anne's, Talbot, Caroline, Dorchester, Wicomico, Somerset, and Worcester Counties, the minimum buffer distance shall be 1.5 feet unless the Department determines from the available hydrogeological data that the site can provide an additional buffer. In these instances the Department shall set a minimum buffer between 1.5 and 3.0 feet.

    (c) A leachate collection and removal system, located immediately above the liner, that is designed, constructed, maintained, and operated to collect and remove leachate from the landfill. The leachate collection and removal system shall be:

      (i) Constructed of materials that are chemically resistant to the waste managed in the landfill and the leachate expected to be generated, and of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes, waste cover materials, and by any equipment used at the landfill;

      (ii) Designed and operated to function without clogging; and

      (iii) Designed and operated to ensure that the leachate depth over the liner does not exceed 30 centimeters (1 foot).

D. Phase II Plan Review.

  (1) Following receipt of the specified number of copies of the Phase II report, the Department shall distribute one copy to each of the following:

    (a) Secretary, Department of Natural Resources;

    (b) Director, Water Resources Administration;

    (c) Director, Maryland Geological Survey;

    (d) U.S. Geological Survey;

    (e) County Soil Conservation District;

    (f) Chief executive officer or the governing body, or both, of the county or municipality in which the activity is proposed;

    (g) Local health official; and

    (h) Local operating agency responsible for solid waste management.

  (2) A person receiving a copy of the Phase II report shall be requested by the Approving Authority to submit any comments to the Department within 30 days of receipt of the report.

  (3) The Approving Authority shall set a date, time, and place for a joint plan review meeting with interested agencies and the applicant.

  (4) When practicable, within 60 days following the meeting referenced in §D(3), of this regulation, the Approving Authority shall either deny the permit or determine if:

    (a) Sufficient information is available to proceed to the Phase III report; or

    (b) Revisions to the Phase II report are needed.

  (5) If the Department is unable to complete the review within the established 60-day time schedule, the Department shall notify the applicant in writing within 30 days of receipt of the information and inform the applicant of the anticipated time required to complete the review.

#### Regulation .08 Sanitary Landfills — Municipal Landfills — Phase III Report.

*COMAR 26.04.07.08*

A. Ten complete sets of plans and engineering reports, known as the Phase III report, covering the proposed project, prepared, signed, and bearing the seal of a registered professional engineer shall be submitted to the Approving Authority.

B. These plans and specifications shall include the following information in sufficient detail to permit a comprehensive review of the project:

  (1) A map which designates the property boundaries, the actual area to be used for filling, and all existing and proposed structures.

  (2) A description of any vehicle weighing facilities, any telephones or other communications equipment, any maintenance and equipment storage facilities, any employee safety and sanitary facilities, and any water supply and sewerage systems. Any proposed on-site water supply and sewerage systems shall be approved by the Approving Authority.

  (3) The location and type of all existing or proposed on-site roads.

  (4) A description of the types of solid waste which will be accepted, the types of solid waste which may not be accepted, and the area and population which will be served by the facility.

  (5) The anticipated quantities of solid waste which will be accepted and the calculations used to determine the useful life of the facility.

  (6) Proposed methods of collecting and reporting data on the quantities and types of solid waste received and for revising facility life expectancy projections.

  (7) The volume and type of available cover material, the calculated volume of earth needed for daily, intermediate, and final cover, the location of earth stockpiles, and provisions for saving topsoil for use as final cover.

  (8) Proposed means of controlling unauthorized access to the site.

  (9) Proposed operating procedures including:

    (a) Hours and days of operation;

    (b) Number and types of equipment to be used;

    (c) Number of employees and their duties;

    (d) Provisions for fire prevention and control;

    (e) Means of preventing public health hazards and nuisances from blowing paper, odors, rodents, vermin, noise, and dust; and

    (f) Proposed method of daily operation including wet weather operation.

  (10) The location and depth of solid waste cells and the sequence of filling.

  (11) Natural or artificial screening to be used.

  (12) Methods of controlling on-site drainage, drainage leaving the site, and drainage onto the site from adjoining areas. Erosion and sediment control provisions shall be approved by the appropriate approving agency and satisfy the requirements of Environment Article, Title 4, Subtitle 1, and COMAR 26.09.01.

  (13) Proposed methods and engineering specifications for the collection, management, and disposal of leachate generated at the facility. The calculations used to determine the anticipated quantities of leachate which will be generated shall be included.

  (14) A contingency plan for preventing or abating the pollution of the waters of this State. At a minimum, the contingency plan shall address the following items:

    (a) Emergency provisions of potable water to users whose supply may be affected by the landfill;

    (b) A spill containment and prevention plan for any leachate collected or stored at the site; and

    (c) Emergency telephone numbers and contact persons for fires, medical emergencies, spills of hazardous materials, or other emergency situation.

  (15) Proposed methods for controlling landfill gas.

  (16) Proposed methods for covering and stabilizing completed areas.

  (17) A system for routinely monitoring the quality of the waters of this State around and beneath the site, including the location and types of monitoring stations, and the methods of construction of monitoring wells. Wells shall be installed by a State licensed well driller in accordance with COMAR 26.04.04.

  (18) A statement that “Burning of solid waste is not allowed, except as permitted by the Department of the Environment.”

  (19) A schedule for implementing construction and implementation of the operation plans and engineering specifications once the refuse disposal permit has been issued.

  (20) A landfill closure and post-closure plan to be followed over a period of not less than 5 years after application of final cover.

  (21) The name, address, and telephone number of the person or agency responsible for the maintenance and operation of the site. Changes to this information shall be submitted to the Approving Authority once effected.

C. Other Requirements for Engineering Plans and Specifications.

  (1) Kinds of Plans. Plans shall be neatly and legibly drawn upon tracing cloth or other acceptable drafting medium so that copies may be obtained. Except when the originals are presented for preliminary judgment, the originals shall be kept by the party presenting the plans, and true copies, which may be white, blue, or black-line prints, offset prints, or photostats on a white background, shall be submitted to the Approving Authority. Plans may not be returned after submission unless revisions are necessary. When revisions are necessary the revisions shall be made on the original tracings and new prints submitted. Pencil, crayon, ink, typewritten or similar revisions, changes, or additions on prints, photostats, or other reproductions are not acceptable. Revisions or additions may not be made to prints previously or currently submitted to the Approving Authority. Plans specifically prepared for each installation shall be required.

  (2) Size of Plans. Drawings shall be 24 inches wide and 36 inches long.

  (3) Title of Plans. In the lower right-hand corner, or along the bottom border of each separate drawing, shall be placed a proper title containing the name of the county, municipality, company, institution, person, or persons for whom it is made, the name of the locality to which it refers, a proper description for a full understanding of the nature of the drawing, and the scale, date, and name of the engineer, architect, or surveyor preparing it. On each plan showing a locality or street layout, an arrow shall be placed, indicating the direction of North, and plans should be arranged, whenever practicable, so that North is toward the top or to the left of the sheet.

D. Phase III — Plan Review.

  (1) Following receipt of complete plans and specifications, the Approving Authority shall distribute a copy to each of the interested agencies and set a date, time, and place for a joint plan review meeting with the Approving Authority and the applicant.

  (2) When practicable, within 60 days following this meeting, the Approving Authority shall either deny the permit or determine if:

    (a) Sufficient information is available to schedule a public hearing on the request for a permit; or

    (b) Revisions to the plans and specifications are needed.

  (3) If the permit is denied, the applicant shall be informed of the basis for the denial and the procedures for appeal of this determination.

  (4) If the Department is unable to complete the review within the established 60-day time schedule, the Department shall notify the applicant in writing within 30 days of receipt of the information and inform the applicant of the anticipated time required to complete the review.

#### Regulation .09 Sanitary Landfills — Municipal Landfills — Other Requirements For Permits.

*COMAR 26.04.07.09*

A. Public Hearing. Before issuing a refuse disposal permit for a municipal landfill, the Department shall hold a public hearing on the permit application, as required by Environment Article, §9-209, Annotated Code of Maryland. At the time of the public hearing the applicant shall establish that the applicant has met all the provisions of Environment Article, §§9-204, 9-209, 9-210, and 9-211, Annotated Code of Maryland, and the regulations adopted under these statutes.

B. Deed Amendment. Before issuing a refuse disposal permit, the applicant shall submit proof that the deed pertaining to the site in question has been amended to stipulate, upon close-out of this operation, construction or excavation on this site may not begin without first obtaining written authorization from the Approving Authority.

C. Bond. Before issuance of the permit, the applicant shall provide proof of the bonding as required by Environment Article, §9-211(c), Annotated Code of Maryland.

D. Consistency with the County Solid Waste Management Plan. Before issuance of the permit the applicant shall provide:

  (1) A statement from the appropriate local governmental agency concerning the consistency of the proposed facility with the approved county comprehensive solid waste management plan. If the local government fails to provide a response within 60 days of receipt of a request for a statement, a copy of the certified letter to the county requesting a statement shall be deemed to satisfy this requirement.

  (2) Proof that the facility is consistent with the approved county comprehensive solid waste management plan.

E. Hydrogeologic Siting Criteria. As a general requirement, a landfill shall be located in a hydrologic setting which is compatible with land disposal of solid waste as determined by the Approving Authority. For sites which are deemed less suitable for landfill siting due to site specific features, the Approving Authority may impose more stringent design or operational constraints, or both, to compensate for the deficiencies. Compatibility criteria shall include, but are not limited to the following:

  (1) Hydraulic conductivity of the in-situ soils;

  (2) Thickness, quality and classification of the in-situ soils;

  (3) Depth to the water table and aquifer use within 1,000 feet of the landfill boundary;

  (4) Potential for subsurface migration of contaminants in rock fractures or highly permeable zones in bedrock or in in-situ soil overburden.

F. Additional Monitoring Requirements. If the Department determines that contamination of waters of this State has occurred or is liable to occur as a result of operation of the landfill, the Approving Authority may require the permit holder to periodically collect and analyze ground water or surface water at the permitted site and to submit the results to the Approving Authority. The Approving Authority may furthermore specify the following:

  (1) Number and location of the sampling stations;

  (2) Frequency of the analyses;

  (3) Sampling and analyses procedures;

  (4) Pollutants to be monitored; and

  (5) Reporting period.

#### Regulation .10 Sanitary Landfills — Municipal Landfills — Minimum Operating Procedures.

*COMAR 26.04.07.10*

A. Unloading. Solid waste unloading shall be restricted to the working face of the landfill in a manner that waste may be easily incorporated into the municipal landfill with the available equipment, except when containers or other special facilities are provided for the unloading of solid waste from passenger vehicles.

B. Spreading and Compaction. Solid waste shall be spread in uniform layers and compacted to its smallest practicable volume before application of cover material.

C. Solid Waste Lifts. A lift of solid waste may not exceed 8 feet in height except as specifically authorized by the Approving Authority.

D. Daily Cover Material. A uniform compacted layer of clean earth at least 6 inches in depth, or an approved cover material of a thickness specified by the Approving Authority, shall be placed over exposed solid waste by the end of each day's operation, or more frequently as may be determined by the Approving Authority. To meet approval, the cover material may not:

  (1) Contain free liquids, putrescibles, or toxic materials. Moisture which is present in the cover material solely as a result of precipitation is not free liquid.

  (2) Create a dust or odor problem.

  (3) Attract or harbor vectors.

  (4) Impede compaction with standard landfill equipment.

E. Intermediate Cover Material. Weather permitting, a uniform compacted layer of clean earth not less than 1 foot in depth shall be placed over each portion of a lift not later than 1 month following completion of that lift.

F. Final Cover Material. A uniform compacted layer of earthen material not less than 2 feet in depth shall be placed over the final lift not later than 90 days following completion of that final lift.

G. Grading and Drainage. The disposal site shall be graded and drained to:

  (1) Minimize runoff onto the fill area of the sanitary landfill;

  (2) Prevent erosion and ponding within the fill areas; and

  (3) Drain water from the surface of the sanitary landfill.

H. Continuity of Operation. All-weather access roads shall be provided to the disposal site, and provisions shall be made for prompt equipment repair or replacement when needed. Substitute equipment shall be obtained when breakdown or maintenance renders normal operating equipment inoperative for a period in excess of 24 hours.

I. Environmental Protection. The municipal landfill shall be operated to prevent air, land, or water pollution, public health hazards, or nuisances.

J. Personnel and Equipment. Adequate personnel and equipment shall be maintained at all times to insure proper operation and prompt attention to correct problems associated with the construction and maintenance of the municipal landfill.

K. Supervision. The disposal site shall be under the supervision of a responsible individual present at the disposal site at all times during the operation.

L. Engineering Plans and Operations Manuals. A set of approved plans and specifications and operations manuals shall be at the disposal site at all times during the operation.

M. Limited Access. Access to municipal landfills shall be controlled at all times, and entrances shall be adequately closed when the site is not in operation.

N. Litter Control. Scattering of solid wastes by wind shall be controlled by fencing or other barriers, and windblown wastes shall be collected as necessary to prevent nuisance conditions. Collected wastes shall be disposed of in the working face.

O. Fire Protection. Suitable measures to prevent and to control fires shall be provided.

P. Noise Control. Operations at the site shall be conducted in a manner that conforms to the applicable provisions of COMAR 26.02.03.

Q. Periodic Reports to Approving Authority. An annual written report shall be submitted to the Approving Authority concerning the status of the municipal landfill for each year the facility is in use. This report shall be submitted not later than 60 days following the date specified in the permit and shall include the:

  (1) Quantity of solid waste received each month during each of the preceding 12 months. Quantities shall be given in tons and in-place cubic yards.

  (2) Percentage of total capacity of the landfill used for emplacement of solid waste.

  (3) Projected date at which the landfill will reach capacity, and the premises upon which this determination is made.

R. Other Requirements. The Approving Authority may impose other requirements considered necessary.

#### Regulation .11 Sanitary Landfills — Land Clearing Debris Landfills — General.

*COMAR 26.04.07.11*

A. General. Sanitary landfills restricted to acceptance of land clearing debris as specified in this regulation are not required to satisfy the informational requirements and design specifications as specified in Regulations .05—.10. Instead, these facilities are required to satisfy the design and operational requirements of this regulation. Unless excluded under Regulation .04C, these landfills are subject to the permit requirements of Regulation .12 of this chapter.

B. Acceptable Wastes. A land clearing debris landfill is restricted to accepting the following waste materials from land clearing operations:

  (1) Earthen material such as clays, sands, gravels, and silts;

  (2) Topsoil;

  (3) Tree stumps;

  (4) Root mats;

  (5) Brush and limbs;

  (6) Logs;

  (7) Vegetations; and

  (8) Rock.

C. Minimum Operating Procedures.

  (1) Unloading. Solid waste unloading shall be restricted to the working face of the landfill in a manner that waste may be easily incorporated into the landfill with the necessary equipment.

  (2) Cover Material. A uniform compacted layer of clean earth at least 6 inches in depth, or an approved cover material of a thickness specified by the Approving Authority, shall be placed over all exposed biodegradable solid waste by the end of each third operating day, or as frequently as may be specified by the Approving Authority. An approved cover material may not:

    (a) Contain free liquids, putrescibles, or toxic materials. Moisture which is present in the cover material solely as a result of precipitation is not free liquid.

    (b) Create a dust or odor problem.

    (c) Attract or harbor vectors.

    (d) Impede compaction with standard landfill equipment.

  (3) Intermediate Cover Material. Weather permitting, a uniform compacted layer of clean earth not less than 1 foot in depth shall be placed over each portion of a lift not later than 1 month following completion of that lift.

  (4) Final Cover Material. A uniform compacted layer of earthen material not less than 2 feet in depth shall be placed over the final lift not later than 90 days following completion of that final lift.

  (5) Grading and Drainage. The disposal site shall be graded and drained to:

    (a) Minimize runoff onto the fill area of the landfill;

    (b) Prevent erosion and ponding within the fill areas; and

    (c) Drain water from the surface of the landfill.

  (6) Environmental Protection. The facility shall be operated in a manner that prevents health hazards and minimizes nuisances. Discharges to air or waters of the State shall be limited to discharges allowable under permits governing solid waste disposal, water pollution control, or air pollution control. Dust resulting from the operations shall be controlled at all times.

  (7) Personnel and Equipment. Adequate personnel and equipment shall be maintained at all times to insure proper operation and prompt attention to correct problems associated with the construction and maintenance of the landfill.

  (8) Supervision. The disposal site shall be under the supervision of a responsible individual present at the disposal site at all times during the operation.

  (9) Engineering Plans and Operations Manuals. A set of up-to-date plans and specifications, and operations manuals, shall be at the disposal site all times during the operation. The set of plans and specifications shall be approved by the Approving Authority if the disposal site is subject to the permit requirements under Regulation .04 of this chapter.

  (10) Limited Access. Access to the landfill shall be controlled at all times, and entrances shall be adequately closed when the site is not in operation.

  (11) Litter Control. Scattering of solid wastes by wind shall be controlled by fencing or other barriers. Windblown wastes shall be collected and disposed of in the working face as necessary to prevent nuisance conditions.

#### Regulation .12 Sanitary Landfills — Land Clearing Debris Landfills — Permit Requirements.

*COMAR 26.04.07.12*

A. Permit Application Requirements. To obtain a permit to construct or operate a land clearing debris landfill, an applicant shall submit eight copies of the following information:

  (1) A completed and signed application on a form provided by the Department.

  (2) A U.S.G.S. 7.5 minute quadrangle map with the proposed site outlined.

  (3) A topographic map which is an accurate depiction of the site at the time of the application, prepared to a scale not smaller than 1 inch equals 200 feet, which depicts the property boundaries, on site buildings and structures, and obvious surficial features including, but not limited to:

    (a) Springs;

    (b) Seeps;

    (c) Streams;

    (d) Rock outcrops;

    (e) Sink holes;

    (f) Surface impoundments;

    (g) Water wells;

    (h) 100-year flood plain;

    (i) Forested and other vegetated areas; and

    (j) The location of any buried or overhead power transmission lines, utility pipelines, or storage tanks on the property.

  (4) A discussion of the geologic formations directly underlying and in close proximity to the site which shall include a review of their effect on the factors set forth in Regulation .03A of this chapter.

  (5) A map depicting the planned final grades of the site after completion of landfilling activities.

  (6) A discussion of the projected future use of the landfilled area.

  (7) A description of the types of solid waste which will be accepted, and a discussion as to how unacceptable wastes which are delivered to the site will be segregated and handled before final disposal.

  (8) The anticipated quantities of solid waste which will be accepted and the calculations used to determine the useful life of the facility.

  (9) The volume and type of available cover material, the calculated volume of earth needed for daily, intermediate, and final cover, the location of earth stockpiles, and provisions for saving topsoil for use as top dressing.

  (10) Proposed means of controlling unauthorized access to the site.

  (11) Proposed operating procedures including:

    (a) Hours and days of operation;

    (b) Number and types of equipment to be used;

    (c) Number of employees and their duties;

    (d) Listing of qualifications that demonstrate employees can fulfill the duties submitted by the applicant as required in §A(11)(c) of this regulation;

    (e) Provisions for fire prevention and control;

    (f) Means of preventing public health hazards and nuisances from vermin, noise, dust, and odors; and

    (g) Proposed method of daily operation including wet weather operation.

  (12) The location and depth of solid waste cells and the sequence of filling.

  (13) Methods of controlling on-site drainage, drainage leaving the site, and drainage onto the site from adjoining areas. Erosion and sediment control provisions shall be approved by the local soil conservation district or the appropriate approving authority, and satisfy the requirements of Environment Article, Title 4, Subtitle 1, and COMAR 26.09.01.

  (14) Proposed methods for covering and stabilizing completed areas.

  (15) Other information considered necessary by the Department to evaluate the adequacy of a site.

B. Plan Review.

  (1) Following receipt of the specified number of copies of the required information, the Department shall distribute one copy to each of the persons or agencies specified in Regulation .06C(1)(a)—(g) and(i)—(k) of this chapter.

  (2) A person receiving a copy of the application and supporting information shall be requested by the Approving Authority to submit comments to the Approving Authority within 20 days of receipt of the application.

  (3) Following receipt of complete plans and specifications, the Approving Authority shall set a date, time, and place for a joint plan review meeting with interested agencies and the applicant.

  (4) When practicable, within 60 days following this meeting, the Approving Authority shall either deny the permit or determine if:

    (a) Sufficient information is available to schedule a public hearing on the request for a permit; or

    (b) Revisions to the plans and specifications are needed.

  (5) If the Department is unable to complete the review within the established 60-day time schedule, the Department shall notify the applicant in writing within 30 days of receipt of the information and inform the applicant of the anticipated time required to complete the review.

C. Public Hearing. Before issuing a refuse disposal permit for a sanitary landfill to accept land clearing debris, a public hearing shall be conducted in accordance with the provisions of Regulation .09A of this chapter.

D. Deed Amendment and Bonding Requirement. Before issuance of a permit for a sanitary landfill for land clearing debris, the applicant shall submit proof:

  (1) That the deed pertaining to the site in question has been amended to stipulate, upon close-out of this operation, that construction on this site may not begin without first obtaining written authorization from the Approving Authority.

  (2) Of the bonding as required by Environment Article, §9-211(c), Annotated Code of Maryland.

E. Consistency with the County Solid Waste Plan. Before issuance of the permit the applicant shall provide:

  (1) A statement from the appropriate local governmental agency concerning the consistency of the proposed facility with the approved county comprehensive solid waste management plan. If the local government fails to provide a response within 60 days of receipt of a request for a statement, a copy of the certified letter to the county requesting a statement shall be deemed to satisfy this requirement;

  (2) Proof that the facility is consistent with the approved county comprehensive solid waste management plant.

F. Periodic Reports to Approving Authority. An annual written report shall be submitted to the Approving Authority concerning the status of the landfill. This report shall be submitted not later than 60 days following the date specified in the permit and shall as a minimum include the:

  (1) Quantity of solid waste received per month during each of the preceding 12 months. Quantities shall be given in tons and in-place cubic yards.

  (2) Percentage of total capacity of the landfill used for emplacement of solid waste.

  (3) Projected date at which the landfill will reach capacity, and the premises upon which this determination is made.

G. Other Requirements. The Approving Authority may impose other requirements considered necessary to protect the public health and the environment, or to prevent nuisance conditions.

#### Regulation .13 Sanitary Landfills — Rubble Landfills — General.

*COMAR 26.04.07.13*

A. General. Sanitary landfills which accept only rubble (rubble landfills) are required to satisfy the design and operational requirements of Regulation .18. of this chapter, Unless excluded under Regulation .04C, of this chapter, these landfills are subject to the permit requirements of Regulations .14—.17 of this chapter.

B. Acceptable Wastes. The following types of waste may be accepted at rubble landfills unless specifically prohibited:

  (1) Land Clearing Debris. Land clearing debris as specified in Regulation .11B of this chapter.

  (2) Demolition Debris.

    (a) Acceptable demolition debris associated with the razing of buildings, roads, bridges, and other structures includes structural steel, concrete, bricks (excluding refractory type), lumber, plaster and plasterboard, insulation material, cement, shingles and roofing material, floor and wall tile, asphalt, pipes and wires, and other items physically attached to the structure, including appliances if they have been or will be compacted to their smallest practical volume.

    (b) Unacceptable demolition debris includes industrial waste or byproducts, any waste materials contained within a structure or on the grounds of the structure being demolished that are not physically part of the structure, or which are comprised of or contain materials that pose an undue risk to public health or the environment.

  (3) Construction Debris.

    (a) Acceptable construction debris is structural building materials including cement, concrete, bricks (excluding refractory type), lumber, plaster and plasterboard, insulation, shingles, floor, wall and ceiling tile, pipes, glass, wires, carpet, wallpaper, roofing, felt, or other structural fabrics. Paper or cardboard packaging, spacing, or building materials, provided that they do not exceed 10 percent by volume of the waste, may be accepted at the rubble landfill. Paint containers, caulk containers, or glaze containers are acceptable, provided that they are empty, and any residual material which is dried before acceptance at the rubble fill, and further provided that this waste category does not exceed 1 percent by volume of the waste accepted at the rubble landfill.

    (b) Unacceptable construction debris includes commercial, domestic, or industrial wastes or byproducts, paint, tar or tar containers, caulking compounds, glazing compounds, paint thinner or other solvents or their containers, creosote or other preservatives or their containers, tile, paneling, or carpet cement or other adhesives, and other solid waste which may contain an unacceptable waste or substance as may be determined by the approving authority to be unacceptable.

  (4) Tires. Scrap tires may be accepted at the facility and managed in accordance with the requirements of a scrap tire collection facility license issued under COMAR 26.04.08. Disposal of tires in a landfill is prohibited.

  (5) Asbestos Waste. Asbestos waste is acceptable provided that the material that is received is packaged and labeled as specified in COMAR 26.11.15.04, and is managed in the following manner:

    (a) Prior notification to the landfill supervisor is required;

    (b) The waste asbestos is unloaded carefully to prevent emission of fibers into the air;

    (c) The area used for burial of asbestos shall be restricted to the working face of the landfill, or a separate cell dedicated solely to asbestos disposal;

    (d) The waste shall be completely covered with earth or other refuse and may not be compacted or driven over until sufficient cover has been applied to prevent the release of asbestos fibers to the atmosphere during compaction or application of other cover material; and

    (e) Operators at the landfill shall wear respiratory protection approved by the National Institute for Occupational Safety and Health for protection against asbestos fibers, and protective clothing when considered necessary.

  (6) Household Appliances and White Goods. Household appliances and white goods are acceptable provided that any refrigerant is removed from the appliances before burial in the landfill and is managed in accordance with §608 of the Federal Clean Air Act (42 U.S.C. §7671g).

  (7) Processed Debris. Processed debris is acceptable only at a rubble landfill having a liner and leachate collection system constructed to the standards as specified in Regulation .16 of this chapter.

  (8) Other Waste Materials. Waste materials not specifically listed in this section may not be disposed of in a rubble landfill before receiving written approval of the Approving Authority.

#### Regulation .14 Sanitary Landfills — Rubble Landfills — Phase I.

*COMAR 26.04.07.14*

A. Permit Application. To obtain a permit required under Regulation .04 of this chapter to construct or operate a rubble landfill, an applicant shall submit 12 copies of a Phase I report which contains the informational requirements specified in Regulation .06B(1)—(9) of this chapter.

B. Phase I Site Inspection.

  (1) Following receipt of the specified number of copies of the required information, the Department shall distribute one copy to each of the persons specified in Regulation .06C(1)(a)—(g) and(i)—(k) of this chapter.

  (2) A person receiving a copy of the report shall be requested to submit comments to the Department within 20 days of receipt of the report.

  (3) The Department shall set a date, time, and place for a joint site inspection meeting with interested agencies and the applicant.

  (4) When practicable, within 60 days following the meeting in §B(3) of this regulation, the Approving Authority shall either deny the permit or determine if:

    (a) Sufficient information is available to proceed to the Phase II report;

    (b) Revisions to the Phase I report are needed.

  (5) If Department is unable to complete the review within the established 60-day time schedule, the Department shall notify the applicant in writing within 30 days of receipt of the information and inform the applicant of the anticipated time required to complete the review.

#### Regulation .15 Sanitary Landfills — Rubble Landfills — Phase II.

*COMAR 26.04.07.15*

A. Phase II Report—Site Geology. The applicant shall prepare and submit to the Approving Authority ten copies of a Phase II report describing the soils, geology, and hydrology of the proposed site. This report shall be developed and signed by a geologist who possesses at least a bachelor's degree from an accredited college or university in the field of geology or a related field of earth science. The Phase II report shall include the following information in sufficient detail to permit a comprehensive review of the project:

  (1) A topographic map which is an accurate depiction of the site at the time of the preparation of the Phase II Report using a contour interval which is practical for that site. The following items shall be shown on the map:

    (a) Surface waters and natural drainage features;

    (b) 100-year flood plain;

    (c) Property lines;

    (d) On-site buildings and structures;

    (e) Forested and other vegetated areas; and

    (f) The location of any buried or overhead power transmission lines, utility pipelines, or storage tanks on the property.

  (2) A discussion of the geologic formations directly underlying and in close proximity to the site, the present and projected use of these formations as a ground water source, and the hydrogeologic relationship between the formations.

  (3) A survey of all production wells within 1/2 mile of the site boundary. Each well shall be located on the current topographic map and a table shall be developed which specifies all the available pertinent information such as well depth, screen type, productivity, lithology penetrated, and water level.

  (4) A minimum of three separate ground water contour maps superimposed on the current topographic map to represent the occurrence and direction of ground water flow beneath the site for a period of time not less than 12 months in duration. The three separate ground water contour maps shall be constructed for each distinct water-bearing formation occurring within 50 feet of the anticipated lowest elevation of the refuse cell floor using monthly ground water elevation data collected from piezometers on or near the site, from available historical sources of ground water information, or using a hydrologic simulation or predictive technique approved by the Department. One ground water contour map shall be constructed from a set of:

    (a) Water elevations measured or predicted during the month that best represents:

      (i) An elevated ground water condition,

      (ii) A depressed ground water condition;

    (b) The highest observed or predicted water elevations.

  (5) Geologic cross sections in sufficient detail, orientation, and number to clearly identify subsurface conditions at the site.

  (6) A bedrock contour map (except in the coastal plain outside the fall zone) to show the elevation of the bedrock surface beneath the site.

  (7) An isopachous map to show the thickness of soil and other unconsolidated sediments above the elevation of ground water as determined in §A(4) of this regulation, or bedrock as determined in §A(6) of this regulation, whichever is higher.

  (8) A discussion of the chemical quality of ground water in the aquifers beneath the site as determined in §A(2) of this regulation. The list of chemical parameters shall include:

    (a) pH;

    (b) Alkalinity;

    (c) Hardness;

    (d) Chloride;

    (e) Specific conductance;

    (f) Nitrate;

    (g) Chemical oxygen demand;

    (h) Arsenic;

    (i) Barium;

    (j) Cadmium;

    (k) Chromium;

    (l) Zinc;

    (m) Lead;

    (n) Mercury;

    (o) Volatile priority pollutants;

    (p) Other pollutants specified by the Department.

  (9) A discussion of the potential for the vertical and horizontal movement of pollutants into the waters of the State.

  (10) The results of a fracture trace or aerial photographic lineament analysis (except in the coastal plain) which identifies the relationship between these features and the local ground water hydrology.

  (11) Test boring logs, well completion reports, piezometric measurements, chemical and physical soil/sediment analyses, and all accompanying geotechnical analyses. All laboratory and field methodologies and procedures shall be included.

  (12) A preliminary conceptual design of the proposed rubble landfill based on the geotechnical information gathered in §A(1)—(11) of this regulation.

B. Phase II—Plan Review.

  (1) Following receipt of the specified number of copies of the Phase II report, the Department shall distribute one copy to each of the following:

    (a) Secretary, Department of Natural Resources;

    (b) Director, Water Management Administration;

    (c) Director, Maryland Geological Survey;

    (d) U.S. Geological Survey;

    (e) County Soil Conservation District;

    (f) Chief executive officer or the governing body, or both, of the county or municipality in which the activity is proposed;

    (g) Local health official; and

    (h) Local operating agency responsible for solid waste management.

  (2) A person receiving a copy of the Phase II report shall be requested to submit any comments to the Department within 30 days of receipt of the report.

  (3) The Department shall set a date, time, and place for a joint plan review meeting with interested agencies and the applicant.

  (4) When practicable, within 60 days following this meeting, the Approving Authority shall either deny the permit or determine if:

    (a) Sufficient information is available to proceed to the Phase III report; or

    (b) Revisions to the Phase II report are needed.

  (5) If the Department is unable to complete the review within the established 60-day time schedule, the Department shall notify the applicant in writing within 30 days of receipt of the information and inform the applicant of the anticipated time required to complete the review.

#### Regulation .16 Sanitary Landfills — Rubble Landfills — Phase III.

*COMAR 26.04.07.16*

A. Phase III—Engineering Plans and Specifications. Ten complete sets of plans and engineering reports covering the proposed project, prepared, signed, and bearing the seal of a registered professional engineer shall be submitted to the Approving Authority. These plans and specifications shall include the following information in sufficient detail to permit a comprehensive review of the project:

  (1) A map which designates the property boundaries, the actual area to be used for filling, and existing and proposed structures and on-site roads.

  (2) A description of any vehicle weighing facilities, communications (telephones, radios), maintenance and equipment storage facilities, and water supply and sewerage systems. On-site water supply and sewerage systems shall be approved by the Approving Authority.

  (3) A description of the:

    (a) Types of solid waste:

      (i) To be accepted,

      (ii) Not to be accepted;

    (b) Area and population to be served by the facility.

  (4) The anticipated quantities of solid waste to be accepted and the calculations used to determine the useful life of the facility.

  (5) Proposed methods of collecting and reporting data on the quantities and types of solid waste received and for revising facility life expectancy projections.

  (6) The volume and type of available cover material, the calculated volume of earth needed for periodic, intermediate, and final cover, the location of earth stockpiles, and provisions for saving topsoil for use as final cover.

  (7) Proposed means of controlling unauthorized access to the site.

  (8) Proposed operating procedures including:

    (a) Hours and days of operation;

    (b) Number and types of equipment to be used;

    (c) Number of employees and their duties;

    (d) Provisions for fire prevention and control;

    (e) Means of preventing public health hazards and nuisances from blowing paper, odors, rodents, vermin, noise, and dust; and

    (f) Proposed method of daily operation including wet weather operation.

  (9) The location and depth of solid waste cells and the sequence of filling.

  (10) Natural or artificial screening to be used.

  (11) Methods of controlling on-site drainage, drainage leaving the site, and drainage onto the site from adjoining areas. Erosion and sediment control provisions shall be approved by the local soil conservation district and satisfy the requirements of Environment Article, Title 4, Subtitle 1, and COMAR 26.09.01.

  (12) A contingency plan for preventing or mitigating the pollution of the waters of this State.

  (13) Proposed methods for covering and stabilizing completed areas.

  (14) A system for monitoring the quality of the waters of the State around and beneath the site, including the location and types of monitoring stations, and the methods of construction of monitoring wells. Wells shall be installed by a State licensed well driller in accordance with COMAR 26.04.04.

  (15) If the Department determines that contamination of waters of the State has occurred or is liable to occur as a result of operation of the landfill, the Approving Authority may:

    (a) Require the permit holder to periodically collect and analyze ground water or surface waters at the permitted site and to submit the results to the Approving Authority;

    (b) Specify the number and location of the sampling stations, the frequency of the analyses, the sampling and analyses procedures, the pollutants to be monitored, and the reporting period.

  (16) A schedule for implementing construction and implementation of the operation plans and engineering specifications once the refuse disposal permit has been issued.

  (17) A landfill closure and post-closure plan to be followed over a period of not less than 5 years after application of final cover.

  (18) The name, address, and telephone number of the person or agency responsible for the maintenance and operation of the site. Changes to this information shall be submitted to the Approving Authority once effected.

  (19) An engineered design, as described in §C of this regulation, for a liner system and leachate collection system for the proposed rubble landfill based upon geotechnical information developed in Regulations .14 and .15 of this chapter.

  (20) A proposed method, engineering specifications, and plans for the collection, management, treatment, and disposal of leachate generated at the facility, including the calculations used to determine the estimated quantities of leachate to be generated, managed, stored, treated, and disposed.

B. Phase III—Plan Review. The plan review shall be conducted in accordance with the provisions of Regulation .08D of this chapter.

C. Liner and Leachate Collection System.

  (1) The design of the liner and leachate collection system shall comply with the minimum requirements of this section.

  (2) A liner system shall be designed, constructed, and installed to contain and facilitate the collection of leachate generated in the landfill in order to prevent the migration of pollutants out of the landfill to the adjacent subsurface soil, ground water, or surface water. A liner may be constructed of natural earthen materials excavated from the site or imported from another location. A liner may also be constructed of a synthetic or manufactured membrane material.

  (3) A liner system shall:

    (a) Be constructed of materials having sufficient strength and thickness to prevent failure from pressure gradients, physical contact with waste or leachate, climatic conditions, installation, or daily landfilling operation;

    (b) Include a liner constructed with a minimum thickness of 1 foot of clay or other natural material having an in-place permeability of less than or equal to 1 × 10-7 centimeters/second, or one or more unreinforced synthetic membranes with a combined minimum thickness of 50 mil or a single reinforced synthetic membrane with a minimum thickness of 30 mil which has a permeability less than or equal to 1 × 10-10 centimeters/second;

    (c) Include a liner installed over a prepared subbase, free of objects which could damage the liner material, with a minimum thickness of 2 feet and having a permeability less than or equal to 1 × 10-5 centimeters/second;

    (d) Be installed to cover all surrounding earth likely to be in contact with the waste or leachate; and

    (e) Be constructed with a minimum slope of 2 percent to facilitate the movement of leachate towards the leachate collection system and to prevent the ponding of leachate on the landfill floor.

  (4) Under §C(3)(c) of this regulation, the subbase shall be constructed to support the liner and be resistant to pressure gradients above and below the liner in order to prevent failure of the liner due to settlement, compression, uplift, puncturing, tearing, cutting, or landfilling operations.

  (5) Upon completion of the installation and testing, the liner and leachate collection system shall be covered with a minimum of 2 feet of sized gravel or other highly permeable material to provide for the free passage of leachate to the liner and to serve as a protective layer for the liner and leachate collection systems.

  (6) A liner system shall be located entirely above the composite high ground water elevation as determined in Regulation .15A(4) of this chapter, and the elevation of bedrock as determined in Regulation .15A(6) of this chapter. A minimum vertical buffer distance shall be required between the bedrock elevation or the maximum expected ground water elevation, whichever is higher, and the bottom of the liner system including the subbase as specified in this regulation, as follows:

    (a) Except as specified in §C(6)(b) of this regulation, the minimum vertical buffer distance shall be 3 feet;

    (b) In Queen Anne's, Talbot, Caroline, Dorchester, Wicomico, Somerset, and Worcester counties, the minimum vertical buffer distance shall be 1.5 feet unless otherwise specified by the Approving Authority, which shall establish a minimum vertical buffer distance of 1.5 to 3.0 feet.

  (7) An engineered leachate collection and removal system, located immediately above the liner, shall be designed, constructed, operated, and maintained to collect and remove leachate from the landfill. The leachate collection and removal system shall be:

    (a) Constructed of materials that are chemically resistant to the waste managed in the landfill and the leachate expected to be generated;

    (b) Of sufficient strength and thickness to prevent collapse or failure from loadings applied by overlying wastes, waste cover materials, and equipment used for landfilling operations;

    (c) Designed and operated to function without clogging;

    (d) Designed and operated to ensure that the depth of leachate over the liner does not exceed 30 centimeters (1 foot); and

    (e) Designed to operate solely by the force of gravity in all areas where the system will directly underlie solid waste.

#### Regulation .17 Sanitary Landfills — Rubble Landfills — Other Requirements.

*COMAR 26.04.07.17*

A. Public Hearing—Before issuing a permit for a sanitary landfill to accept rubble, a public hearing shall be conducted in accordance with the provisions of Regulation .09A of this chapter.

B. Before the Department issues a permit for a sanitary landfill to accept rubble, the applicant shall satisfy the provisions of Regulation .09B and C of this chapter and the requirements of Environment Article, §9-210, Annotated Code of Maryland, shall have been completed.

C. Reporting Requirements.

  (1) An annual written report shall be submitted by the permittee to the Approving Authority concerning the status of a sanitary landfill restricted to accepting rubble for each year the facility is in use. This report shall be submitted not later than 60 days following the date specified in the permit and shall include the:

    (a) Quantity of solid waste, stated in tons and in-place cubic yards, received per month for each month of the calendar year being reported;

    (b) Percentage of total capacity of the landfill used for emplacement of solid waste;

    (c) Projected date the landfill will reach capacity and the basis upon which the determination was made; and

    (d) Type and quantity of materials, given in tons for each type of material, recycled at the facility per month for each month of the calendar year being reported, if scavenging or processing of materials is authorized by the permit.

  (2) The permittee is required to periodically report to the Department, at a frequency established by the Approving Authority, the results of ground and surface water samples collected on the permitted site and the volumes and chemical characteristics of leachate or other contaminated liquid collected from the landfill.

D. Other Requirements.

  (1) New rubble landfills or waste cells of existing rubble landfills constructed after September 22, 1997, shall comply with the requirements in Regulation .16 of this chapter. This requirement shall be applicable to vertical expansion of existing landfilled areas filled before the referenced date.

  (2) Rubble landfills accepting waste before September 22, 1997, shall submit to the Approving Authority, within 120 days of the effective date, a schedule for the installation of a liner and leachate collection system to comply with the requirements of Regulation .16 of this chapter for the existing landfill. The schedule shall be subject to approval by the Approving Authority. Rubble landfills accepting waste as of the effective date of this regulation shall meet the requirements of the regulation by July 1, 2001, or cease operations and begin closure of the landfill.

  (3) Changes or modifications to approved plans or specifications required by the Department made to comply with the requirements of §D(1) and (2) of this regulation shall be submitted to the Approving Authority in accordance with a schedule approved by the Department.

  (4) The Department may impose other requirements considered necessary.

#### Regulation .18 Sanitary Landfills — Rubble Landfills — Minimum Operating Procedures.

*COMAR 26.04.07.18*

A. The provisions of §§B—U of this regulation are established as minimum operating procedures for sanitary landfills which accept only rubble, unless otherwise specified.

B. Protection of Liner and Leachate Collection System. A minimum of 4 feet of select waste containing no long pipes, boards, or other materials that could damage the liner or leachate collection system shall be placed over the protective layer before compaction to minimize the risk of damage to the liner and the leachate collection systems.

C. Unloading. Solid waste unloading shall be restricted to the working face of the landfill in a manner that waste may be easily incorporated into the rubble landfill with available equipment, except when containers or other special facilities are provided for the unloading of rubble waste from passenger vehicles.

D. Spreading and Compaction. Solid waste shall be spread in uniform layers and compacted to its smallest practical volume before application of cover material.

E. Solid Waste Lifts. A lift of solid waste may not exceed 8 feet in height except as specifically authorized by the Approving Authority.

F. Periodic Cover Material. A uniform compacted layer of clean earth at least 6 inches in depth, or an approved cover material of a thickness specified by the Approving Authority, shall be placed over all exposed rubble waste by the end of the third day's operation, or more frequently as may be determined by the Approving Authority. An approved cover material may not:

  (1) Contain free liquids, putrescibles, or toxic materials. Moisture present in the cover material solely as a result of precipitation is not free liquid.

  (2) Create a dust or odor problem.

  (3) Attract or harbor vectors.

  (4) Impede compaction with standard landfill equipment.

G. Intermediate Cover Material. Weather permitting, a uniform compacted layer of clean earth not less than 1 foot in depth shall be placed over each lift not later than 1 month following completion of that lift.

H. Final Cover Material. A uniform compacted layer of earthen material not less than 2 feet in depth shall be placed over the final lift not later than 90 days following completion of that lift.

I. Grading and Drainage. The disposal site shall be graded and drained to:

  (1) Minimize runoff onto the fill area of the rubble landfill;

  (2) Prevent erosion and ponding within the fill areas; and

  (3) Drain water from the surface of the rubble landfill.

J. Continuity of Operation. All-weather access roads shall be provided to the disposal site at public rubble fills.

K. Environmental Protection. The rubble landfill shall be operated to prevent air, land, or water pollution, public health hazards, or nuisances.

L. Personnel and Equipment. Adequate personnel and equipment shall be maintained at all times to insure proper operation and prompt attention to correct problems associated with the construction and maintenance of the rubble landfill. Provisions shall be made for prompt equipment repair or replacement when needed.

M. Supervision. The disposal site shall be under the supervision of a responsible individual present at the disposal site at all times during operation.

N. Engineering Plans and Operations Manual. A set of current plans and specifications and an operations manual shall be at the disposal site at all times during operation. For public facilities, these plans, specifications, and operations manuals shall be approved by the Approving Authority.

O. Limited Access. Access to rubble landfills shall be controlled at all times, and entrances shall be adequately secured when the site is not in operation.

P. Litter Control. Scattering of solid wastes by wind shall be controlled by fencing or other barriers and windblown wastes shall be collected and disposed of in the working face as necessary to prevent nuisance conditions.

Q. Fire Protection. Suitable measures to prevent and to control fires shall be provided.

R. Burning. There may be no burning of solid waste except as permitted by the Department or, when applicable, by the local approving authority.

S. Water and Sewage Systems. On-site water supply or sewage systems shall be approved by the Approving Authority.

T. Required Inspection of Waste.

  (1) The permittee is responsible for complying with this section, within 120 days of the effective date of the section, unless otherwise specified by the Approving Authority.

  (2) Waste unloaded at the working face of an unlined rubble landfill shall be inspected before burial for unacceptable wastes by a third-party checker in accordance with an inspection protocol approved by the Approving Authority.

  (3) Upon finding an unacceptable waste, the third-party checker shall report the incident to the Approving Authority by telephone within 1 working day and submit a written report to the Department detailing the incident within 5 calendar days. The written report at a minimum shall contain the date and time of detection, the type of material identified, the identity of the hauler of the waste load, the actions taken to remove the waste from the fill area, and how the waste was disposed of.

  (4) The unacceptable material identified by the third-party checker shall be removed from the fill area and properly contained and disposed of.

  (5) The permittee is responsible for any costs associated with the inspection requirements under this section.

U. Recycling. If authorized by the permit, the permittee may salvage for the purpose of recycling materials from the waste stream in accordance with Regulation .03B(7) of this chapter.

#### Regulation .19 Sanitary Landfills — Industrial Waste Landfills — General.

*COMAR 26.04.07.19*

A. General. Sanitary landfills which accept only nonhazardous industrial waste (industrial waste landfills) are required to satisfy the siting, design, and operational requirements of this regulation. Unless excluded under Regulation .04C of this chapter, these landfills are subject to the permit requirements of Regulation .20 of this chapter.

B. Acceptable Wastes. Industrial waste landfills are limited to accepting nonhazardous industrial solid wastes. The criteria for determining if a waste is a hazardous waste is contained in COMAR 26.13.02.

C. Design Requirements.

  (1) Industrial nonhazardous solid waste landfills shall be designed to prevent ground and surface water pollution. A discharge to surface waters other than uncontaminated storm water run-off shall be in accordance with a State and NPDES discharge permit issued by the Department under the Environment Article, §9-323, Annotated Code of Maryland, and COMAR 26.08.04.01.

  (2) Wastes which are to be landfilled may not result in pollution of ground water. Nonhazardous industrial solid waste may only be landfilled in a facility which possesses a functional liner and leachate collection system as specified in Regulation .07C(12) of this chapter, unless the Department specifically waives this requirement.

D. Minimum Site Criteria. Sites constructed after the effective date of these regulations that are used for the landfilling of nonhazardous industrial solid waste shall satisfy the following minimum site criteria:

  (1) The site shall be located outside of the 100-year flood plain, or shall be adequately flood protected to prevent inundation or loss of landfilled materials.

  (2) The site may not be located in tidal, nontidal, or upland wetlands.

  (3) The bottom elevation of the landfill cell floor shall comply with the ground water buffer distances as specified in Regulation .07C(12)(b) of this chapter.

  (4) The site shall be constructed in areas whose soils naturally retard potential for subsurface migration of contaminants away from the containment site. The site may not be constructed in an area of highly permeable zones in bedrock or soil overburden.

  (5) Due to the constituents of a particular industrial waste, the Department may require additional material testing to determine its suitability for landfilling.

E. Minimum Operating Procedures.

  (1) Unloading. Solid waste unloading shall be restricted to the working face of the landfill.

  (2) Solid waste shall be spread in uniform layers and compacted to its smallest practicable volume.

  (3) If considered appropriate by the Department, a uniform layer of clean earth at least 6 inches in depth, or an alternate cover material approved by the Department, shall be placed over exposed solid waste. The frequency of the cover application shall be specified by the Department.

  (4) If the landfill is developed in lifts, the Department shall specify maximum lift heights and intermediate cover requirements.

  (5) Final Cover. A uniform compacted layer of earthen material not less than 2 feet in depth shall be placed over the final lift of the filled landfill not later than 90 days following completion of fill activities.

  (6) Grading and Drainage. The disposal site shall be graded and drained

    (a) Minimize runoff onto the fill area of the landfill;

    (b) Prevent erosion and ponding within the fill areas; and

    (c) Drain water from the surface of the landfill.

  (7) Environmental Protection. The landfill shall be operated to prevent air, land, water pollution, public health hazards, or nuisances.

  (8) Personnel and Equipment. Adequate personnel and equipment shall be maintained at all times to insure proper operation and prompt attention to correct problems associated with the construction and maintenance of the landfill.

  (9) Supervision. The disposal site shall be under the supervision of a responsible individual present at the disposal site at all times during the operation of the disposal site.

  (10) Engineering Plans and Operations Manual. A set of approved plans and specifications and operations manuals shall be at the disposal site at all times during the operation of the disposal site.

  (11) Limited Access. Access to the landfill shall be controlled at all times, and entrances shall be adequately closed when the site is not in operation.

  (12) Litter Control. Scattering of solid wastes by wind shall be controlled by fencing or other barriers, and windblown wastes shall be collected and disposed of in the working face as necessary to prevent nuisance conditions.

#### Regulation .20 Sanitary Landfills — Industrial Landfills — Permit Requirements.

*COMAR 26.04.07.20*

A. Permit Application Requirements. When required to obtain a permit to construct or operate an industrial waste landfill, an applicant shall submit five copies of the following information:

  (1) A completed and signed application on a form provided by the Department.

  (2) A comprehensive physical and chemical description of the waste materials to be disposed of in the landfill.

  (3) A description, including flow diagrams, of the processes generating the wastes, including raw materials, intermediate by-products, final products, and waste streams.

  (4) A topographic map which is an accurate depiction of the site at the time the application is filed, prepared to a scale not smaller than 1 inch equals 200 feet, which depicts the property boundaries, on-site buildings and structures, and obvious surficial features, including but not limited to:

    (a) Springs and seeps;

    (b) Streams, whether intermittent or perennial;

    (c) Rock outcrops;

    (d) Sink holes;

    (e) Surface impoundments;

    (f) Wells;

    (g) 100-year flood plain;

    (h) Forested or other vegetated areas; and

    (i) The location of any buried or overhead power transmission lines, utility pipelines, or storage tanks on the property.

  (5) A discussion of the geologic formations directly underlying and in close proximity to the site.

  (6) A map or drawing depicting the final grades of the site after completion of landfilling activities.

  (7) A discussion of the projected future use of the landfilled area.

  (8) The volume and type of available cover material, if appropriate, for the material being landfilled.

  (9) Means of controlling access to the landfill.

  (10) Proposed operating procedures including:

    (a) Hours of operation;

    (b) Necessary equipment to handle wastes delivered to the site;

    (c) Contingency plans for fire or other emergencies; and

    (d) Procedures to be followed upon delivery of wastes.

  (11) Methods of controlling runoff or run-on to the site. Any erosion and sediment control provisions shall satisfy the requirements of Environment Article, Title 4, Subtitle 1, and COMAR 26.09.01.

  (12) Proposed methods of covering and stabilizing completed areas.

  (13) A description of the design features and systems intended to protect ground water from leachate which is generated by landfilled wastes.

  (14) If appropriate, a discussion as to how leachate will be collected, removed from the landfill, and ultimately disposed of.

  (15) Ground water elevation data from the area and a prediction of the maximum expected ground water elevation at the site of the landfill. An explanation shall be provided as to how the ground water elevation estimates were derived.

  (16) Geologic cross sections of the site in sufficient detail and orientation to clearly identify subsurface conditions.

  (17) Background ground water quality data for the following:

    (a) pH;

    (b) Alkalinity;

    (c) Hardness;

    (d) Chloride;

    (e) Specific conductance;

    (f) Nitrates;

    (g) Nickel;

    (h) Sulfates;

    (i) Copper;

    (j) Fluoride;

    (k) Arsenic;

    (l) Barium;

    (m) Cadmium;

    (n) Chromium;

    (o) Lead;

    (p) Zinc;

    (q) Chemical oxygen demand;

    (r) Mercury.

  (18) For a particular industrial waste landfill, the Department may specify additional parameters for background ground water analysis.

  (19) Test boring logs, well completion reports, piezometric measurements, chemical or physical soil analyses, or both, and accompanying geotechnical analyses.

  (20) A preliminary conceptual design of the proposed landfill.

  (21) Other information required by the Department.

B. Plan Review.

  (1) Following receipt of the specified number of copies of the required information, the Department shall forward one copy to the:

    (a) Chief executive officer or the governing body, or both, of the county or municipality in which the activity is proposed;

    (b) Local health official; and

    (c) Local agency responsible for solid waste management.

  (2) A person receiving a copy of the application and supporting information shall be requested to submit comments to the Department within 20 days of receipt of the application.

C. Public Meeting. The Department reserves the right to conduct a public informational meeting which shall be advertised once per week for 2 successive weeks in a newspaper of general circulation in the affected area. Copies of the notice shall be distributed in the same manner as the application.

D. Other Requirements.

  (1) Periodic Reports to Approving Authority. An annual written report shall be submitted to the Approving Authority concerning the status of the landfill. This report shall be submitted not later than 60 days following the date specified in the permit and shall at a minimum include the:

    (a) Quantity of solid waste received per month during each of the preceding 12 months. Quantities shall be given in tons and in-place cubic yards.

    (b) Percentage of total capacity of the landfill used for emplacement of solid waste.

    (c) Projected date at which the landfill will reach capacity, and the premises upon which this determination is made.

  (2) The Department may require the permit holder to periodically collect and analyze ground and surface water samples at the permitted site and to report the results to the Department. The Department may furthermore specify the:

    (a) Number and location of the sampling points;

    (b) Frequency of the analyses;

    (c) Analytical procedures;

    (d) Materials to be monitored;

    (e) Frequency of reporting.

  (3) The Approving Authority may impose other requirements considered necessary to protect the public health and the environment, or to prevent nuisance conditions.

#### Regulation .21 Sanitary Landfill — Closure.

*COMAR 26.04.07.21*

A. General. A landfill whose design capacity has been exhausted or which has been ordered by the Department to cease accepting wastes and to initiate closure activities after the effective date of this regulation shall close the landfill in accordance with the provisions of this regulation.

B. Closure Cap. The closure cap shall be designed to minimize infiltration into the landfill and shall be developed through an engineering analysis of the site. The closure cap may be constructed of natural materials found either on the site or imported from an off-site location. Elements of the closure cap may also be constructed of a synthetic or manufactured membrane material.

C. Closure Schedule. Unless the Department approves an alternate schedule for closure of a landfill, closure activities shall begin not later than 24 months from the date of completion of the final lift of the landfill, and shall be completed not later than 36 months from the date of completion of the final lift of the landfill.

D. Alternatives. The Department shall consider alternative proposals for landfill closure based upon an engineering analysis of the site. Proposals may involve surcharging the final cover to induce settlement, liquid addition, or other techniques intended to better stabilize the site before installation of the landfill cap.

E. Municipal Landfills. Municipal landfills shall install a closure cap which includes the following minimum design features:

  (1) A low permeability cap shall be emplaced over the final cover. The cap material may consist of synthetic material with a minimum thickness of 20 mil and a maximum permeability of 1 × 10-10th centimeters/second, or a minimum of 1 foot of clay or other natural fine-grained material having an in-place permeability less than or equal to 1 × 10-5th centimeters/second. The cap shall be installed with a minimum slope of 4 percent to facilitate drainage of percolate.

  (2) A drainage layer with a minimum thickness of 6 inches shall be emplaced immediately above the low permeability cap. Acceptable drainage layer material shall include clean sand or other natural coarse grained material with an in-place permeability greater than 1 × 10-3rd centimeters/second. The drainage layer shall be free of materials which may puncture or otherwise jeopardize the integrity of the low permeability cap. Commercially available filter fabrics, when used in conjunction with synthetic drainage blankets, may serve instead of the fine material, provided that the Department reviews and approves the selected materials and design configuration.

  (3) Final earthen cover shall be placed over the drainage layer. Minimum cover thickness shall be 2 feet. Minimum cover slope shall be 4 percent to facilitate surface drainage from the site. The cover material shall contain sufficient organic material and nutrients to sustain a vegetative cover over time. Topsoil, or topsoil created using sewage sludge, and less select soils as authorized by COMAR 26.04.06, shall constitute acceptable final cover.

  (4) Vegetative Stabilization. Within 30 days after the final earthen cover has been installed, the area shall be vegetatively stabilized using a perennial cover species as recommended by the county soil conservation district. Sufficient lime and commercial fertilizer, or sewage sludge as authorized by a permit issued under COMAR 26.04.06, shall be applied to the site to sustain vegetative growth. If the final cover is installed at a time which precludes seeding, the site shall be tacked and mulched in accordance with accepted sediment and erosion control specifications until the next available seeding window, at which time the site shall be vegetatively stabilized.

  (5) Gas Venting. The closure cap on the municipal landfill shall include provision for venting of any gases which may form during the landfill stabilization process. Gas shall be vented to the atmosphere or collected for flaring or reuse. The concentration of methane (CH4) may not exceed:

    (a) 25 percent of the lower explosive limit for the gases in facility structures, excluding gas control or recovery system components; and

    (b) The lower explosive limit for the gases at the property boundary.

F. Land Clearing Debris Landfills. Land clearing debris landfills as specified in Regulation .11 of this chapter, shall satisfy the following closure cap requirements:

  (1) Final earthen cover as specified in §E(3) of this regulation; and

  (2) Vegetative stabilization as specified in §E(4) of this regulation.

G. Rubble Landfills. Rubble landfills as specified in Regulation .13 of this chapter, shall satisfy the following closure cap requirements:

  (1) A low permeability cap as specified in §E(1) of this regulation;

  (2) A drainage layer as specified in §E(2) of this regulation;

  (3) Final earthen cover as specified in §E(3) of this regulation; and

  (4) Vegetative stabilization as specified in §E(4) of this regulation.

H. Industrial Waste Landfills. Industrial waste landfills as specified in Regulation .19 of this chapter, shall satisfy the following closure cap requirements:

  (1) A low permeability cap as specified in §E(1) of this regulation;

  (2) A drainage layer as specified in §E(2) of this regulation;

  (3) Final earthen cover as specified in §E(3) of this regulation; and

  (4) Vegetative stabilization as specified in §E(4) of this regulation.

#### Regulation .22 Sanitary Landfills — Post-Closure Monitoring and Maintenance.

*COMAR 26.04.07.22*

A. Landfills in Maryland shall be subject to post-closure monitoring and maintenance by the permittee as specified in this regulation, for a period of time not less than 5 years after the complete installation of the landfill cap. This time period may be extended by the Department if significant maintenance situations occur at the landfill during the 5-year period after closure.

B. Inspections. The closed landfill shall be inspected at least twice per year by the permit holder or the permit holder's authorized representative. The inspection shall include:

  (1) Observation of the cover at the landfill;

  (2) Notation of any drainage irregularities or signs of erosion of the cover;

  (3) Notation of any surface expressions of leachate at the landfill; and

  (4) Checking the status of the monitoring wells.

C. Maintenance. Irregularities or problems noted during the inspections shall be corrected within 30 days of their observance unless otherwise directed by the Department.

D. Reporting and Record Keeping. For permitted facilities the results of inspections shall be recorded and reported to the Department within 60 days of the inspection. For facilities not required to obtain a permit, the results of inspections shall be maintained for a period of 5 years following closure.

#### Regulation .23 Processing Facilities.

*COMAR 26.04.07.23*

A. Permits.

  (1) Permits Required. Unless excepted under the provisions of §A(2), of this regulation, a person may neither construct or operate a processing facility, nor materially alter or extend one, without obtaining a permit from the Approving Authority before any work, including site preparation, is begun.

  (2) Exceptions. Permits issued under this regulation are not required for processing facilities constructed and operated for private use located at schools, apartment houses, industries, hospitals, commercial establishments, individual residences, farms, and similar locations.

B. Application for Permit.

  (1) Requirement for Application. An application for a permit under the provisions of §A(1) of this regulation, shall be submitted to the Approving Authority. The application shall consist of a letter briefly describing the project for which approval is requested. If there is any reason for summary disapproval of the proposed project, the applicant shall be so notified in writing and advised on the proper appeal procedures. When practicable, within 60 days of receipt of a complete application, the applicant shall be:

    (a) Informed of any additional information which the Approving Authority may require; or

    (b) Advised to proceed with the preparation of engineering plans and specifications.

  (2) Engineering Plans and Specifications. Eight complete sets of plans and engineering reports covering the proposed project, prepared, signed, and bearing the seal of a registered professional engineer shall be submitted to the Approving Authority. The information contained in these plans and reports shall include:

    (a) A map showing the specific location land use and zoning within 1/4 mile of the boundaries of the proposed facility;

    (b) Drawings of buildings and other structures showing type of construction, layout, and dimensions for unloading, storage, and processing areas;

    (c) A site plan designating the property boundaries and existing and proposed structures and roads;

    (d) A descriptive statement of processes to be used;

    (e) A description of:

      (i) Major items of equipment including manufacturer, type, model, capacity, and number of units;

      (ii) Types and anticipated quantities of solid waste to be accepted;

      (iii) Types of solid waste not to be accepted;

      (iv) Areas of population to be served by the facility;

      (v) Measures to be taken to prevent or control ground or surface water pollution, explosions, and odors;

      (vi) Methods of treating and disposing of liquid waste resulting from the operation;

      (vii) Employee safety and sanitary facilities including the location of on-site sewage disposal systems;

    (f) An operational and maintenance manual which identifies the operation in detail, including:

      (i) Periodic cleaning and maintenance;

      (ii) The manner in which unacceptable wastes which may be delivered to the processing facility will be identified, segregated, and handled before final disposal; and

      (iii) Other contingency plans.

C. Application Review. The applications submitted shall be distributed as specified in Regulation .06C(1)(a)—(g), (j), and (k) of this chapter. A person receiving an application shall be asked to submit any comments within 30 days of receipt of the application.

D. General Requirements and Operating Procedures. The following are established as minimum requirements and operating procedures for a processing facility:

  (1) Buildings.

    (a) With the exception of the operations listed in §D(1)(b), of this regulation, processing activities involving the unloading, separation, reduction, or alteration shall be conducted in an enclosed building.

    (b) The following activities may be conducted outdoors in areas and in a manner approved by the Department:

      (i) Composting or co-composting;

      (ii) Separation or storage, or both, of white goods;

      (iii) Tire storage or processing; and

      (iv) Other activities authorized by the Approving Authority.

  (2) Location. Location of the facility shall be adjacent to access roads which are:

    (a) Paved or surfaced; and

    (b) Provided with a base capable of withstanding anticipated load limits.

  (3) Access Roads. An all-weather access road negotiable by loaded collection vehicles or other vehicle transportation shall be provided from the entrance gate of the facility to loading and unloading areas.

  (4) Environmental Protection. The facility shall be operated in a manner which prevents air, land, or water pollution, public health hazards, or nuisances. Dust resulting from the operation shall be controlled at all times. All solid waste shall be confined to the unloading area. Solid waste may not be stored or otherwise deposited adjacent to the facility except in approved containers.

  (5) Supervision. Operation and management shall be under the direct supervision and control of an individual qualified in operating procedures by training, education, or experience.

  (6) Operational Plan. The facility shall have a written emergency operational plan to provide for an alternative waste handling system when the facility is inoperative. This plan shall delineate the procedures to follow in case of equipment breakdown which may require stand-by equipment, extension of operating hours, or diversion of solid waste to other facilities.

  (7) Cleanliness and Sanitation.

    (a) Facilities shall be maintained in a clean and sanitary condition.

    (b) Plumbing shall be properly maintained and floors shall be well drained and free from standing water.

    (c) Sanitary facilities shall be provided for employees and shall be kept clean and in good repair.

    (d) Solid waste not actually being processed shall be confined to the unloading area.

    (e) Accumulations of solid waste shall be controlled in a manner as to minimize odors and nuisances and to prevent infestation by insects, rodents, or other vectors.

  (8) Fire Control. Appropriate on-site fire control equipment shall be provided, and additional fire-fighting equipment shall be made available in emergencies through prior arrangements with the local fire department.

  (9) Information Posted. A statement of the days and hours of operation shall be posted at the entrance of the facility, and access shall be limited to those times when authorized personnel are on duty.

  (10) Equipment. Macerators, hammer mills, and grinders shall be cleanable and shall be equipped with drains which connect to a sanitary sewer system or equivalent.

  (11) Tipping, Loading, and Unloading Areas. Waste tipping, loading, and unloading areas shall be constructed of impervious material which is readily cleanable. Drains shall be connected to a sanitary sewer system or other permitted treatment facility.

E. Requirements for Composting Plants. The following are additional requirements for composting plants:

  (1) Residue. The product resulting from composting operations and offered for sale or distribution shall be non-pathogenic, free of offensive odors, biologically and chemically stable, and free of injurious components or particles.

  (2) Cleanliness and Sanitation. Solid waste intended for composting shall be maintained in a condition free of insects, rodents, and offensive odors before, during, and after the composting operation. The plant shall be maintained in a clean and sanitary condition. Insects, rodents, or other vectors shall be controlled by appropriate measures.

F. Periodic Reports to Approving Authority.

  (1) An annual written report shall be submitted to the Approving Authority concerning the status of the processing facility for each year the facility is in use. This report shall be submitted as specified in the permit and shall include the:

    (a) Quantity of solid waste received per month during each of the preceding 12 months. Quantities shall be given in tons.

    (b) Quantities and disposition of processed material and residues from processing facilities.

  (2) The Approving Authority may impose other reporting requirements considered necessary.

G. Consistency with the County Solid Waste Management Plan. Before issuance of the permit the applicant shall provide:

  (1) A statement from the appropriate local government agency concerning the consistency of the proposed facility with the approved county comprehensive solid waste management plan. If the local government fails to provide a response within 60 days of receipt of a request for a statement, a copy of the certified letter to the county requesting a statement shall be deemed to satisfy this requirement.

  (2) Proof that the facility is consistent with the approved county comprehensive solid waste management plan.

#### Regulation .24 Transfer Stations.

*COMAR 26.04.07.24*

A. Permits Required. A person may neither construct nor operate a transfer station for public use, nor materially alter or extend one, without obtaining a permit from the Approving Authority before any work, including site preparation, is begun.

B. Application for Permit.

  (1) Requirement for Application. An application for a permit under the provisions of §A shall be submitted to the Approving Authority. The application shall consist of a letter briefly describing the project for which approval is requested. If there is any reason for summary disapproval of the proposed project, the applicant shall be notified in writing and advised of the proper procedures of appeal. When practicable, within 60 days of receipt of the complete application, the applicant shall be informed of any additional information which the Approving Authority may require, or advised to proceed with the preparation of engineering plans and specifications.

  (2) Engineering Plans and Specifications. Eight complete sets of plans and engineering reports covering the proposed project, prepared, signed, and bearing the seal of a registered professional engineer shall be submitted to the Approving Authority. The information contained in these plans and report shall include:

    (a) A map showing the specific location land use and zoning within 1/4 mile of the boundaries of the proposed facility;

    (b) Drawings of buildings and other structures showing type of construction, layout, and dimensions for unloading, storage, and processing areas;

    (c) A site plan designating the property boundaries and all existing and proposed structures and roads;

    (d) A descriptive statement of processes to be used;

    (e) A description of:

      (i) Major items of equipment, including manufacturer, type, model, capacity, and number of units;

      (ii) Types and anticipated quantities of solid waste to be accepted;

      (iii) Types of solid waste not to be accepted;

      (iv) Area and population to be served by the facility;

      (v) Measures to be taken to prevent or control odors, explosions, and ground or surface water pollution;

      (vi) Methods of treating or disposing of liquid waste resulting from the operation;

      (vii) Employee safety and sanitary facilities;

      (viii) Manner in which unacceptable wastes which may be delivered to the transfer station will be identified, segregated, and handled before final disposal;

    (f) An operations and maintenance manual which identifies the operation in detail, including periodic cleaning, maintenance, and all contingencies.

C. Application Review. An application received under this section shall be distributed as specified in Regulation .06C(1)(a)—(g), (j), and (k) of this chapter. A person receiving an application shall be requested to submit any comments within 30 days of receipt of the applications.

D. General Requirements and Operating Procedures.

  (1) General. The following are established as minimum requirements and operating procedures for transfer stations:

    (a) Buildings. Activities pertinent to the transferring of solid waste involving the use of hydraulic, pneumatic, or mechanical equipment shall be conducted in an enclosed building or other area approved by the Department.

    (b) Location. Location of the facility shall be adjacent to access roads which are:

      (i) Paved or surfaced; and

      (ii) Provided with a base capable of withstanding anticipated load limits.

    (c) Access Roads. An all-weather access road negotiable by loaded collection vehicles or other vehicles shall be provided from the entrance gate of the facility to loading and unloading areas.

    (d) Environmental Protection. The facility shall be operated in a manner that prevents health hazards and minimizes nuisances. Discharge to air or waters of the State shall be limited to those allowable under permits governing solid waste disposal, water pollution control, or air pollution control. Dust resulting from the operation shall be controlled at all times. Solid waste shall be confined to the unloading area. Solid waste may not be stored or otherwise deposited adjacent to the facility except in approved containers.

    (e) Supervision. Operation and management shall be under the direct supervision and control of individuals qualified in operating procedures by training, education, or experience.

    (f) Operational Plan. The facility shall have a written emergency operational plan to provide for an alternative waste handling system when the facility is inoperative. This plan shall delineate the procedures to follow in case of equipment breakdown which may require stand-by equipment, extension of operating hours, or diversion of solid waste to other facilities.

    (g) Cleanliness and Sanitation. Facilities shall be maintained in a clean and sanitary condition. The following conditions are required:

      (i) Plumbing shall be properly maintained.

      (ii) Floors shall be well drained and free from standing water.

      (iii) Sanitary facilities shall be provided for employees and shall be kept clean and in good repair.

      (iv) Solid waste may not remain at the transfer station at the end of the working day unless it is stored in leak-proof, fly and rodent-proof containers.

      (v) Special provisions shall be made for the transfer of bulky waste at the transfer station. Otherwise, this waste shall be excluded.

    (h) Fire Control. Appropriate on-site fire control equipment shall be provided, and additional fire-fighting equipment shall be made available in emergencies through prior arrangements with the local fire department.

    (i) Information Posted. A statement of the days and hours of operation shall be posted at the entrance to the facility and access shall be limited to those times when authorized personnel are on duty.

    (j) Truck Wheel Curbs. Truck wheel curbs shall be provided to prevent vehicles from backing into the refuse unloading pit or falling into the pit while unloading.

    (k) Tipping, Loading, and Unloading Areas. Waste tipping, loading, and unloading areas shall be constructed of impervious material which is readily cleanable. Drains shall be connected to a sanitary sewer system or any other permitted treatment facility.

  (2) Other Requirements.

    (a) Periodic Reports to Approving Authority. An annual written report shall be submitted to the Approving Authority concerning the status of the transfer station for each year the facility is in use. This report shall be submitted as specified in the permit and shall include the:

      (i) Quantity of solid waste received per month during each of the preceding 12 months. Quantities shall be given in tons or cubic yards.

      (ii) Quantities and destination of solid waste transferred.

    (b) The Approving Authority may impose other requirements considered necessary.

    (c) Consistency with the County Solid Waste Management Plan. Before issuance of the permit the applicant shall provide:

      (i) A statement from the appropriate local governmental agency concerning the consistency of the proposed facility with the approved county comprehensive solid waste management plan. If the local government fails to provide a response within 60 days of receipt of a request for a statement, a copy of the certified letter to the county requesting a statement shall be deemed to satisfy this requirement.

      (ii) Proof that the facility is consistent with the approved county comprehensive solid waste management plan.

#### Regulation .25 Incinerators.

*COMAR 26.04.07.25*

A. Permits.

  (1) Permits Required. Unless excepted under the provisions of §A(2), of this regulation, a person may neither construct or operate an incinerator for burning solid waste, nor materially alter or extend one, without obtaining a permit from the Approving Authority before any work, including site preparation, is begun.

  (2) Exceptions. Permits issued under this regulation are not required for the following:

    (a) Incinerators located at places such as schools, apartment houses, industries, hospitals, commercial establishments, individual residences, and farms, provided that the facility is not part of a system of refuse disposal for public use;

    (b) Incinerators that are permitted under Environment Article, §7-232, Annotated Code of Maryland.

B. Application for Permit. The applicant shall submit eight complete sets of plans and engineering reports covering the proposed project, prepared, signed, and bearing the seal of a registered professional engineer. The information contained in these plans and reports shall include:

  (1) A map showing the specific location, land use, and zoning within 1/4 mile of the boundaries of the proposed facility;

  (2) Drawings of buildings and other structures showing types of construction, layout, and dimensions for unloading, storage, and processing areas;

  (3) A site plan designating the property boundaries and all existing and proposed structures and roads;

  (4) A descriptive statement of processes to be used;

  (5) A description of:

    (a) Major items of equipment including manufacturer, type, model, capacity, and number of units;

    (b) Types and anticipated quantities of solid waste to be accepted;

    (c) Types of solid waste not to be accepted;

    (d) Area and population which will be served by the facility;

    (e) Measures to be taken to prevent or control odors, explosions, and ground or surface water pollution;

    (f) Methods of treating or disposing of liquid waste resulting from the operation;

    (g) Employee safety and sanitary facilities;

  (6) An operational and maintenance manual which identifies the operation in detail, including periodic cleaning and maintenance, and contingency plans;

  (7) A description of the manner in which unacceptable waste which may be delivered to the incinerator will be identified, segregated, and handled before final disposal;

  (8) A map depicting the topography of the site of the proposed incinerator;

  (9) Anticipated tonnage per day of solid waste to be accepted at the incinerator daily;

  (10) Location of storage areas for incinerator ash, precipitator waste, and other non-combustible waste generated by the incinerator;

  (11) Identification of a proposed disposal site for the ash generated by the facility;

  (12) Detailed engineering plans and specifications for the incinerator and related machinery.

C. Applications received under this section shall be distributed as specified in Regulation .06C(1)(a)—(f) of this chapter. Persons receiving applications shall be asked to submit any comments within 30 days of receipt of the application.

D. General Requirements and Operating Procedures. The following are established as minimum requirements and operating procedures for an incinerator:

  (1) Buildings. Activities involving the unloading, separation, reduction, or alteration of waste shall be conducted in an enclosed building.

  (2) Location. Location of the facility shall be adjacent to access roads which are:

    (a) Paved or surfaced; and

    (b) Provided with a base capable of withstanding anticipated load limits.

  (3) Access Roads. An all-weather road negotiable by loaded collection vehicles or other vehicles shall be provided from the entrance gate of the facility to loading and unloading areas.

  (4) Environmental Protection. The facility shall be operated in a manner which prevents health hazards and minimizes nuisances. Discharges to air or waters of the State shall be limited to those discharges allowable under permits governing solid waste disposal, water pollution control, or air pollution control. Dust resulting from the operation shall be controlled at all times. Solid waste shall be confined to the unloading area. Solid waste may not be stored or otherwise deposited adjacent to the incinerator. The Department may authorize the on-site storage of ash or residues for the incineration process provided that the Department concludes that the degree of combustion is sufficient to reduce the level of putrescible materials to levels that do not result in odor conditions, vector attraction, or other nuisance conditions. The Department shall require that storage be conducted in such a manner as to not constitute a potential for ground or surface water pollution.

  (5) Supervision. Operation and management shall be under the direct supervision and control of an individual qualified in operating procedures by training, education, or experience.

  (6) Operational Plan. The facility shall have a written emergency operational plan to provide for an alternative waste handling system when the facility is inoperative. This plan shall delineate the procedures to follow in case of equipment breakdown which may require standby equipment, extension of operating hours, or diversion of solid waste to other facilities.

  (7) Cleanliness and Sanitation.

    (a) Facilities shall be maintained in a clean and sanitary condition.

    (b) Plumbing shall be properly maintained and floors shall be well drained and free from standing water.

    (c) Sanitary facilities shall be provided for employees and shall be kept clean and in good repair.

    (d) Solid waste not actually being processed shall be confined to the unloading area which shall be maintained free of dust and nuisances.

    (e) Accumulations of solid waste shall be controlled in a manner as to minimize odors and prevent infestation by insects, rodents, or other vectors.

  (8) Fire Control. Appropriate on-site fire control equipment shall be provided, and additional fire-fighting equipment shall be made available in emergencies through prior arrangements with the local fire department.

  (9) Information Posted. A statement of the days and hours of operation shall be posted at the entrance of the facility and access shall be limited to those times when authorized personnel are on duty.

  (10) Tipping, Loading and Unloading Areas. Waste tipping, loading, and unloading areas shall be constructed of impervious material which is readily cleanable. Drains shall be connected to a sanitary sewer system or other permitted treatment facility.

E. Other Requirements.

  (1) Periodic Reports to Approving Authority. An annual written report shall be submitted to the Approving Authority concerning the status of the incinerator for each year the facility is in use. This report shall be submitted as specified in the permit and shall include:

    (a) The quantity of solid waste received per month during each of the preceding 12 months. Quantities shall be given in tons or cubic yards.

    (b) The quantities and descriptions of solid waste, ash, and non-acceptable waste transported off-site for disposal. Quantities shall be given in tons or cubic yards.

  (2) The Approving Authority may impose other requirements considered necessary.

F. Public Hearing. Before issuing a refuse disposal permit for an incinerator, a public hearing shall be conducted in accordance with the provisions of Regulation .05I(1) of this chapter.

G. Consistency with the County Solid Waste Management Plan. Before issuance of the permit the applicant shall provide:

  (1) A statement from the appropriate local governmental agency concerning the consistency of the proposed facility with the approved county comprehensive solid waste management plan. If the local government fails to provide a response within 60 days of receipt of a request for a statement, a copy of the certified letter to the county requesting a statement shall be deemed to satisfy this requirement.

  (2) Proof that the facility is consistent with the approved county comprehensive solid waste management plan.

#### Regulation .26 Variances.

*COMAR 26.04.07.26*

A. An owner, operator, or person proposing to construct or currently operating a solid waste acceptance facility may apply to the Approving Authority for a variance from one or more of the provisions of these regulations. Variance may be sought for design or operation and maintenance requirements, or both. The Approving Authority shall grant a variance when the design or method of operation proposed in the variance application has been shown by the applicant to the satisfaction of the Approving Authority to conserve and protect the public health, the natural resources, and environment of the State, and to control air, water, and land pollution to at least the same extent as would be obtained by compliance with the regulation.

B. Requests for variance shall supply information required by the Approving Authority, including:

  (1) The nature and location of the solid waste facility;

  (2) The reasons for which the variance is required, including the economic, technological, and environmental justification; and

  (3) Other relevant information the Approving Authority may require in order to make a determination regarding the application.

C. When practicable, within 60 days of receipt of sufficient information on which to base a decision concerning a variance request, the Approving Authority shall make a determination to either grant or deny the variance. If the variance request is denied, the applicant shall be informed in writing of the basis of the denial and the procedures for appeal of the determination.

#### Regulation .27 Enforcement Provisions.

*COMAR 26.04.07.27*

A. Suspension or Revocation of Permits.

  (1) Permits may be revoked or temporarily suspended by the Approving Authority for failure of the holder to comply with:

    (a) The requirements of these regulations;

    (b) The requirements of the permit; or

    (c) A corrective order issued by the Approving Authority.

  (2) After written notification of the violation by the Approving Authority which provides the permittee an opportunity for a hearing, and if no immediate or substantial hazard to the public health or the environment exists, the permit may be suspended if the permit holder has failed to correct any violation of these regulations or the requirements of the permit.

  (3) Unless the person served with an order suspending or revoking the permit makes a timely request for a hearing under §C of this regulation, the order is a final order.

  (4) Within 10 days after being served with an order suspending or revoking the permit, the person served may request in writing a hearing before the Department.

  (5) Whenever the Approving Authority finds conditions which, in the Approving Authority's judgment, constitute an immediate and substantial hazard to the public health or the environment, the Approving Authority may issue without warning, prior notification, or hearing, a written notice to the permit holder citing those conditions, specifying the remedial and corrective actions to be taken, and specifying the time period within which the action shall be taken. If necessary, the order shall state that the permit is immediately discontinued. Upon written petition to the Approving Authority within 10 days of notification, the permit holder shall be afforded a prompt hearing.

B. Reinstatement of Suspended Permits. A person whose permit has been temporarily suspended may make application at any time for a reinspection for the purpose of reinstatement of the permit. Within 10 days following receipt of a written request, including a statement signed by the applicant that the deficiencies which caused suspension of the permit have been corrected, the Approving Authority shall make a reinspection. If the applicant is complying with the requirements of these regulations, the permit shall be reinstated. In this case, a public hearing is not required.

C. Hearings. The Department shall give notice and hold hearings for violations of these regulations, permits, or corrective orders in accordance with the Administrative Procedure Act.

D. Inspections.

  (1) General. The Approving Authority shall inspect each solid waste acceptance facility permitted under these regulations, and shall make as many additional inspections and reinspections as are necessary for the enforcement of these regulations.

  (2) Right of Entry. An agent of the Approving Authority, after presenting proper identification, shall be allowed entry to all buildings, structures, and premises owned by a person supplying refuse disposal service, and upon private property for the purpose of collecting samples, records, information, and taking photographs to ascertain whether the regulations, orders, and permits of the Secretary of the Environment are obeyed.

### Chapter 08 — Storage, Collection, Transferring, Hauling, Recycling, and Processing of Scrap Tires

**Authority:** Environment Article, §§9-201, 9-228, 9-262, 9-268, 9-274, 9-275, 9-277, and 9-278, Annotated Code of Maryland

**Administrative History:** Effective date: July 6, 1992 (19:13 Md. R. 1204)

#### Regulation .01 Scope.

*COMAR 26.04.08.01*

Except as otherwise specifically provided, these regulations apply to all persons engaged in the storage, collection, transferring, hauling, recycling, or processing of scrap tires.

#### Regulation .02 Definitions.

*COMAR 26.04.08.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Approved facility” means a facility located in or outside of the State for collecting, recycling, or otherwise processing scrap tires that is approved or licensed by the Department in accordance with regulations adopted by the Department.

  (2) “Authorization” means the granting of approval or licensure by the Department to handle scrap tires.

  (3) “Clean-up” means the process of removing scrap tires to an authorized facility to alleviate a danger, nuisance, or environmental risk. The clean-up process includes any necessary remedial action or soil stabilization, or both.

  (4) “Closure” means the cessation of all activities at a scrap tire facility and the clean-up of all scrap tires.

  (5) “Comptroller” means the Comptroller of the Maryland State Treasury.

  (6) “Department” means the Maryland Department of the Environment.

  (7) “Financial assurance” means a performance bond, letter of credit, cash deposit, insurance policy, or other instrument of security acceptable to the Department.

  (8) “Fund” means the State Used Tire Clean-Up and Recycling Fund.

  (9) “General scrap tire collection facility” means a scrap tire collection facility where no more than 50 scrap tires are accumulated on site at any one time.

  (10) “Handle scrap tires” means to be engaged in hauling, transferring, storage, collection, recycling, or processing of scrap tires.

  (11) “Primary scrap tire collection facility” means a scrap tire collection facility where 1,501 scrap tires or more are accumulated on site at any one time.

  (12) “Product” means a finished commodity which is not intended for further processing or to be used as a raw material in a manufacturing process.

  (13) “Raw material” means a commodity intended for use in the direct manufacture of a product.

  (14) “Recycling” means any process in which materials that would otherwise become solid waste are collected, separated, or processed and returned to the marketplace in the form of raw materials or products.

  (15) “Resource recovery incinerator” means a resource recovery facility that combusts solid waste.

  (16) “Retread” means to apply a new tread to a used tire casing to upgrade a serviceable tire.

  (17) “Scrap tire” means any tire or part of it that no longer is suitable for its original intended purpose by virtue of wear, damage, or defect, excluding scrap tire parts for which there is a written agreement for the purchase or acceptance of the material only when, at the discretion of the Department, the exclusion is specifically given by the Department in writing.

  (18) “Scrap tire collection facility” means any location where scrap tires are:

    (a) Deposited by a consumer or a scrap tire hauler; and

    (b) Transferred to another scrap tire collection facility, scrap tire recycler, or any other authorized facility.

  (19) “Scrap tire facility” means an existing, planned, or proposed site that stores, collects, recycles, incinerates scrap tires to recover energy, or otherwise processes scrap tires.

  (20) “Scrap tire hauler” means a person who, as part of a commercial business, transports scrap tires in the State to or from a scrap tire facility.

  (21) “Scrap tire recycler” means a person who is approved and licensed by the Department to process scrap tires to a form of raw materials or products that may be returned to the marketplace.

  (22) “Scrap tire recycling system” means an organized method of controlling scrap tires from their generation through final disposition by recycling or processing established by the Maryland Environmental Service. This system includes scrap tire haulers, scrap tire collection facilities, scrap tire recyclers, and other approved facilities designated by the Service.

  (23) “Secondary scrap tire collection facility” means a scrap tire collection facility where 51—1,500 scrap tires are accumulated on site at any one time.

  (24) “Secretary” means the Secretary of the Environment.

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

  (26) “Solid waste acceptance facility” means any landfill, incinerator, transfer station, or processing facility whose primary purpose is to dispose of, treat, or process solid waste.

  (27) “State” means the State of Maryland.

  (28) “State Used Tire Clean-Up and Recycling Fund” means moneys made available under:

    (a) Loan authorizations;

    (b) Funds appropriated in the State budget;

    (c) Fees collected for the first sale of new tires in the State by tire dealers under Environment Article, Title 9, Subtitle 2, Annotated Code of Maryland;

    (d) Bond and security forfeitures collected under Environment Article, Title 9, Subtitle 2, Annotated Code of Maryland; or

    (e) Reimbursement of Departmental costs for remedial actions and clean-ups, including administrative, public information, and legal expenses from responsible parties.

  (29) Store Scrap Tires.

    (a) “Store scrap tires” means the accumulation of scrap tires in any form or configuration in excess of 15,000 cubic feet.

    (b) “Store scrap tires” does not include scrap tires collected in enclosed, metal, transport-worthy containers.

  (30) “Tire” means a continuous rubber material or similar natural or synthetic product which is pneumatically designed or intended to cover or encircle a wheel which is manufactured for use on a motorized vehicle, a vehicle transported or towed by a motorized vehicle, farm implement, or machinery which is similar to these vehicles, trailers, or farm implements.

  (31) “Tire-derived fuel” means whole or processed scrap tires used as a fuel or supplemental fuel.

  (32) “Used tire” means any tire removed from a piece of equipment or vehicle for the purpose of retreading or reuse for its original intended use. Adjustment tires being returned to the manufacturer are used tires until a determination on the adjustment is made.

#### Regulation .03 General Provisions and Specifically Prohibited Acts.

*COMAR 26.04.08.03*

A. General Provisions. A person may not haul, transfer, store, collect, recycle, or engage in other methods of processing of scrap tires in a manner which will likely:

  (1) Create a nuisance;

  (2) Be conducive to insect and rodent infestation;

  (3) Cause a discharge of any constituents derived from scrap tires into the air unless otherwise permitted by the Department;

  (4) Cause a discharge of any constituents derived from scrap tires into waters of this State unless otherwise permitted by the Department;

  (5) Impair the quality of the environment; or

  (6) Create other hazards to the public health, safety, or comfort as may be determined by the Department.

B. Scrap tire facilities, haulers, or recyclers may be publicly or privately owned and operated.

C. The Department may require the delivery of scrap tires in this State to one or more facilities designated by the Service as part of the scrap tire recycling system.

D. Specifically Prohibited Acts.

  (1) Scrap tires may not be disposed of in an open dump as prohibited by COMAR 26.04.07.03B(4).

  (2) Except as provided in §D(3) of this regulation, after January 1, 1994, scrap tires may not be disposed of in a landfill.

  (3) The Secretary may waive the requirements described in §D(2) of this regulation under such terms and conditions and for such periods as the Department considers appropriate if the Department determines that a scrap tire recycling system:

    (a) Does not exist; or

    (b) Has insufficient capacity to accommodate the quantity of scrap tires generated in the State.

  (4) A person may not store scrap tires in the State unless the person demonstrates to the satisfaction of the Department that, within 90 days of the time that the person stores the scrap tires, the scrap tires will be:

    (a) Returned to the marketplace;

    (b) Used as fuel in an approved resource recovery incinerator;

    (c) Used as a tire-derived fuel in an approved facility; or

    (d) Transferred to any facility within the scrap tire recycling system established by the Service.

  (5) A person may not incinerate scrap tires in any manner except in a facility permitted or approved by the Department.

  (6) A person may not incinerate tires except in:

    (a) An approved resource recovery incinerator that uses tires as a fuel substitute; or

    (b) An approved facility that uses scrap tires as a tire-derived fuel.

  (7) A facility that processes scrap tires for use as a fuel in an incinerator, boiler, or resource recovery facility or a facility that burns or incinerates scrap tires may not be approved or licensed unless the:

    (a) Applicant demonstrates to the Department's satisfaction that there is no reasonable and economically available opportunity to process the scrap tires and return them to the marketplace for reuse, with the applicant either demonstrating this through certification by the Service or by submitting to the Department an analysis of the capacity and tipping fees charged by facilities currently available in Maryland or those currently accepting scrap tires generated in Maryland; and

    (b) Burning or incineration meets all federal and State air quality standards.

  (8) If the Department elects to require the delivery of scrap tires generated in this State to facilities designated under §C of this regulation, a person may not transport scrap tires, and scrap tires may not be transported from any location in Maryland to any place other than the designated facilities.

#### Regulation .04 Scrap Tire Licenses.

*COMAR 26.04.08.04*

A. Scrap Tire Hauler License Requirements.

  (1) The requirements applicable to scrap tire haulers are as follows:

    (a) Beginning on July 1, 1992, a scrap tire hauler is required to have a license issued by the Department to transport scrap tires; and

    (b) Beginning on July 1, 1992, a licensed scrap tire hauler shall transport scrap tires in accordance with these regulations.

  (2) Those transporting not more than five scrap tires annually are exempt from the requirement to obtain a scrap tire hauler license.

B. Scrap Tire Collection Facility License Requirements.

  (1) The requirements applicable to scrap tire collection facilities are as follows:

    (a) Beginning on July 1, 1992, each scrap tire collection facility located in the State is required to have a license issued by the Department to:

      (i) Receive scrap tires from a consumer or a scrap tire hauler, and

      (ii) By means of a scrap tire hauler, transfer scrap tires to a scrap tire recycler, another scrap tire collection facility, or an approved facility;

    (b) Beginning on July 1, 1992, each scrap tire collection facility included in the scrap tire recycling system shall meet all zoning and land use requirements of the county or municipal corporation in which the scrap tire collection facility is to be located; and

    (c) The Department may waive any of the requirements of this section for a scrap tire collection facility that:

      (i) Was in existence on or before July 1, 1992, and

      (ii) Is under a closure schedule approved by the Department.

  (2) Beginning on July 1, 1992, a general scrap tire collection facility shall be considered licensed by the Department if:

    (a) A registration form is on file with the Department;

    (b) The scrap tire collection facility operates under the conditions specified in Regulation .10B(6) and (9)—(11) of this chapter; and

    (c) The scrap tire collection facility is operated in a manner that does not:

      (i) Create a nuisance;

      (ii) Contribute to insect and rodent infestation;

      (iii) Cause the discharge of any constituents derived from scrap tires into the air unless otherwise permitted by the Department;

      (iv) Cause a discharge of any constituents derived from scrap tires into waters of this State unless otherwise permitted by the Department;

      (v) Impair the quality of the environment;

      (vi) Create other hazards to the public health, safety, or comfort;

      (vii) Result in the transfer of scrap tires by means other than a scrap tire hauler; or

      (viii) Result in the transfer of scrap tires to any place other than a primary or secondary scrap tire collection facility, a scrap tire recycler, or an approved facility.

  (3) Beginning on July 1, 1992, a secondary scrap tire collection facility is required to have a license issued by the Department. All scrap tires received at the facility shall be transferred by means of a scrap tire hauler only to primary or secondary scrap tire collection facilities, a scrap tire recycler, or an approved facility.

  (4) Beginning on July 1, 1992, a primary scrap tire collection facility is required to have a license issued by the Department. All scrap tires received at the facility shall be transferred by means of a scrap tire hauler only to other primary scrap tire collection facilities, scrap tire recyclers, or an approved facility.

  (5) The owner of a primary or secondary scrap tire collection facility, that does not seek a scrap tire collection facility license or whose application for a license is denied, shall close the facility on or before July 1, 1992 in compliance with Regulation .19 of this chapter.

  (6) A retread facility that returns used tire casings to the customer of origin is not a scrap tire collection facility or a scrap tire recycler.

C. Scrap Tire Recycler License Requirements.

  (1) Beginning on July 1, 1992, each scrap tire recycler in the State is required to have a license issued by the Department to process scrap tires to a form of raw materials or products which may be returned to the marketplace.

  (2) The owner of a scrap tire recycling facility, that does not seek a scrap tire recycler license or whose application for a license is denied, shall close the facility on or before July 1, 1992 in compliance with Regulation .19 of this chapter.

#### Regulation .05 Scrap Tire Hauler License Application Procedures.

*COMAR 26.04.08.05*

A. Application Form. To apply for a scrap tire hauler license, a scrap tire hauler license application form shall be completed as set forth in §B of this regulation.

B. The Department shall develop and make available a scrap tire hauler license application form. The application shall contain, at least, the following information:

  (1) The name, mailing address, and telephone number of the applicant;

  (2) The number of vehicles that will be transporting scrap tires;

  (3) The vehicle registration plate number, vehicle identification number, and name of the registered vehicle owner for each vehicle used for transporting scrap tires;

  (4) A map showing the geographical area that will be served or a listing of zip code areas served;

  (5) The identification of all scrap tire facilities where the scrap tires are or will be collected, and the identification of the scrap tire facilities where the scrap tires will be delivered or transferred;

  (6) If applicable, certification of acceptance by the Service for inclusion in the scrap tire recycling system; and

  (7) Any other information specified by the Department at the time of application.

C. Submission. Applicants for a scrap tire hauler license shall submit a completed license application to the Department and shall retain a copy for their records.

#### Regulation .06 Departmental Review of Scrap Tire Hauler License Applications.

*COMAR 26.04.08.06*

A. Application Completion Criteria. Applications for a scrap tire hauler license are considered complete only if they are:

  (1) Submitted on application forms provided by the Department;

  (2) Accompanied by all required exhibits and supporting documents, as applicable; and

  (3) Completed in full and signed by the applicant.

B. Upon receipt of a completed application, the Department may deny the license if the:

  (1) Application contains a material misrepresentation or false information, or fails to fully disclose relevant facts; and

  (2) Applicant has not complied with these regulations, or other applicable statutes and regulations of the Department or other governmental agencies.

#### Regulation .07 Terms and Conditions of a Scrap Tire Hauler License.

*COMAR 26.04.08.07*

A. Term of License. A scrap tire hauler license shall be issued for a term of 5 years.

B. Conditions.

  (1) Unless specifically exempted by statute or regulation, a licensed scrap tire hauler shall meet the criteria in §B(2)—(7) of this regulation as a condition of the license.

  (2) A licensed scrap tire hauler shall operate in a manner consistent with the scrap tire hauler license and application.

  (3) A licensed scrap tire hauler shall comply with all applicable State and federal statutes and regulations.

  (4) A licensed scrap tire hauler shall display the scrap tire hauler identification number issued by the Department on all vehicles used to transport scrap tires. The identification number shall be displayed on the front driver and passenger side doors of each vehicle. Each character of this identification number shall be a minimum of 3 inches in height and legible at all times.

  (5) A licensed scrap tire hauler shall inform the Department within 30 days of any change in vehicles used, including vehicle rental, change in license plate number, or ownership of any vehicle identified in a scrap tire hauler license application. The Department shall be advised of any vehicle deleted from the fleet.

  (6) A licensed scrap tire hauler shall maintain records for a period of 3 years that track the scrap tires collected, transported, and deposited by the scrap tire hauler. These records shall be made available to the Department upon request within a reasonable amount of time for examination or duplication. The records shall include:

    (a) The total quantity in number or weight of scrap tires that are transported;

    (b) Where and from whom the scrap tires were collected, specifying the type and quantity in number or weight; and

    (c) Where the collected scrap tires were deposited, specifying the type and quantity in number or weight deposited at each location.

  (7) A licensed scrap tire hauler shall submit to the Department on February 1 and August 1 of each year a report containing the information described in this subsection for the preceding 6-month period of January—June and July—December. The report shall provide the following:

    (a) The hauler's name, mailing address, and identification number;

    (b) The period covered by the report;

    (c) The total quantity of scrap tires, including processed portions, reported by number or weight, that were transported during the period;

    (d) Where and from whom the scrap tires were collected, specifying the type and quantity by number or weight; and

    (e) Where the collected scrap tires were deposited, specifying the type and quantity by number or weight deposited at each location and the Maryland approval, license, or permit number for the location where the scrap tires were deposited, as applicable.

  (8) The reports submitted to the Department shall be on a form or in the format developed by the Department.

#### Regulation .08 License Application Procedures — Scrap Tire Collection Facilities/Scrap Tire Recyclers.

*COMAR 26.04.08.08*

A. General Application Form. An applicant for a scrap tire collection facility license or a scrap tire recycler license shall complete and submit an application form provided by the Department. The content requirements of the general portion of the application are set forth in §B of this regulation. Specific application information requirements according to the facility type as set forth in Regulation .12 of this chapter shall be submitted with the general application, as applicable.

B. General Application Content. The application shall contain the following information:

  (1) The name, facility location and mailing address, and telephone number of the owner or owners or resident agent of the facility;

  (2) The manner in which scrap tires shall be collected or stored at the facility;

  (3) The type and average quantity, by number or weight, of scrap tires projected to be on site at the facility at any given time;

  (4) The maximum quantity, by number or weight, and type of scrap tires that can be accepted at the facility on a daily basis;

  (5) The facility's ability to meet the technical and operational standards that apply to scrap tire storage set forth in Regulation .17 of this chapter, as applicable; and

  (6) If the scrap tire facility is designated for inclusion in the scrap tire recycling system, certification by the county or municipal corporation in which the facility is to be located that the facility meets all local zoning and land use requirements.

#### Regulation .09 Application Review — Scrap Tire Collection Facility/Scrap Tire Recycler Licenses.

*COMAR 26.04.08.09*

A. Application Completion Criteria. An application for a license as a scrap tire collection facility or a scrap tire recycler is considered complete only if it is:

  (1) Submitted on forms provided by the Department;

  (2) Accompanied by all required exhibits and supporting documents;

  (3) Accompanied by certification of acceptance by the Service if designated for inclusion in the scrap tire recycling system;

  (4) Completed in full and signed by the applicant; and

  (5) Submitted in the number of copies specified by the Department, as follows:

    (a) 13 copies for primary scrap tire collection facilities and scrap tire recyclers; and

    (b) One copy for all other scrap tire collection facilities unless otherwise specified by the Department at the time of application.

B. Application Review. The following shall be done after submission of a completed application for a primary scrap tire collection facility license or a scrap tire recycler license:

  (1) The Secretary shall require the applicant to give notice of the application in a regularly published newspaper of general circulation in the Maryland county or in Baltimore City where the proposed facility is to be located, within 30 days of the submittal, and shall be in a format and content acceptable to the Department, with the notice:

    (a) Stating the location of the facility and the type and quantity, by number or weight, of scrap tires intended for collection or handling at the facility; and

    (b) Advising persons of their right to comment to the Department on the application;

  (2) The applicant shall provide to the Department evidence of publication of the public notice;

  (3) The Department shall distribute one copy of the application and supporting information to each of the following:

    (a) Chief executive officer or the governing body, or both, of a county and municipality in which the activity is proposed;

    (b) Local governmental agency responsible for solid waste management;

    (c) Local health official;

    (d) Secretary of Natural Resources;

    (e) Director of the Water Resources Administration;

    (f) Director of the Maryland Geologic Survey;

    (g) Director of the Maryland Environmental Service;

    (h) U.S. Geologic Survey;

    (i) Appropriate soil conservation district or other appropriate approving authority as defined in COMAR 26.09.01;

    (j) U.S. Army Corps of Engineers;

    (k) State Highway Administration; and

    (l) State Fire Marshal;

  (4) A person receiving a copy of the application and supporting information shall be invited by the Department to inspect the proposed site and requested to submit comments to the Department within 30 days following receipt of the application;

  (5) The Department may conduct a public information meeting in the county where a proposed primary scrap tire collection facility or scrap tire recycler is to be located.

C. The Department may deny the scrap tire collection facility or scrap tire recycler license if:

  (1) The application contains a material misrepresentation or false information, or fails to fully disclose relevant facts;

  (2) The applicant has not complied with these regulations, or other applicable statutes or regulations of the Department or other governmental agencies; or

  (3) For facilities proposed as part of the scrap tire recycling system, there is no demonstrated need or legislated priority for the proposed new, modified, or expanded scrap tire facility as an integral part of the scrap tire recycling system as determined by the Service.

#### Regulation .10 Conditions for Scrap Tire Collection Facility/Scrap Tire Recycler Licenses.

*COMAR 26.04.08.10*

A. Term of License. A license for a primary and secondary scrap tire collection facility or scrap tire recycler shall be issued for a term of 5 years.

B. Conditions.

  (1) Unless specifically exempted by statute or regulation, a facility licensee shall meet the criteria in §B(2)—(10) of this regulation as a condition of the license.

  (2) The facility shall be operated in a manner consistent with the primary and secondary scrap tire collection facility or scrap tire recycler license and application.

  (3) The facility shall comply with all applicable State, local government, and federal statutes and regulations.

  (4) If the licensee discovers through any means, including notification by the Department, that noncompliance with a condition of the license has occurred, the licensee shall immediately take all necessary steps to eliminate the condition of noncompliance and to minimize the adverse impacts on public health, safety, welfare, or the environment.

  (5) If the licensee discovers that a noncompliance with a condition of the license has affected the public health, safety, welfare, or the environment, the licensee shall immediately notify the Department.

  (6) The licensee shall inform the Department in writing within 30 days following a business name change, change in ownership or form of business organization, or any other change that affects the license.

  (7) The licensee shall notify the Department within 1 week of the name and vehicle registration plate number of any nonlicensed person who attempts to deposit scrap tires at the licensee's facility after July 1, 1992, who is not exempt under Regulation .04A(2) of this chapter.

  (8) The licensee shall issue a written receipt to each scrap tire hauler upon receiving a load of scrap tires. The receipt shall specify the type and quantity, by number or weight, of scrap tires received.

  (9) The licensee shall maintain records on the quantity, by number or weight, of scrap tires entering and exiting the facility, including processed portions that are not raw materials, on the identity of the scrap tire haulers transporting the scrap tires, and on the origin of the scrap tires, so as to be able to fulfill the reporting requirements in §B(10) of this regulation. These records shall be maintained for a period of 3 years.

  (10) The licensee shall submit to the Department, by February 1 and August 1 each year, a report containing the information described in this subsection for the preceding 6-month period of January—June and July—December. The report shall include the following:

    (a) The facility name, address, and identification number;

    (b) The period covered by the report;

    (c) The total type and quantity, in number or weight, of scrap tires, including processed portions that are not raw materials, that were received at the facility;

    (d) The type and quantity, by number or weight, of scrap tires, raw materials, products, and waste residuals transferred from the facility;

    (e) The type and quantity of scrap tires remaining at the facility at the end of the reporting period;

    (f) For each hauler entering the facility, the hauler's name, identification number, and the type and quantity by number or weight of scrap tires transported by the hauler;

    (g) For all scrap tires transferred from the facility, the hauler's name, identification number, type and quantity, by number or weight, of scrap tires, and the destination of the scrap tires transported by each hauler, including scrap tires separated and removed for retreading; and

    (h) For primary scrap tire collection facilities and scrap tire recyclers, along with the February 1 submittal, an annual update of the closure plan, including a revised cost estimate for closure, as required in Regulations .18—.20 of this chapter.

  (11) The reports submitted to the Department shall be on a form or in the format developed by the Department.

#### Regulation .11 General Standards — Primary Scrap Tire Collection Facilities/Scrap Tire Recyclers.

*COMAR 26.04.08.11*

A. Location of Facility. A primary scrap tire collection facility or a scrap tire recycler may not be constructed or operated in a wetland, sinkhole, shoreland, ravine, 100-year floodplain, or any area where it may be subjected to immersion in water, unless authorized by the Department and the Department of Natural Resources.

B. Operation. A primary scrap tire collection facility or a scrap tire recycler shall operate in compliance with the following standards:

  (1) A routine operation involving the use of open flames, blowtorches, or highly flammable substances may not be conducted within 50 feet of a scrap tire pile;

  (2) All-weather approach and access roads to the facility shall be maintained passable for any vehicle at all times;

  (3) Access to the facility shall be strictly controlled at all times through the use of fences, gates, or other means of controlling entry;

  (4) The facility shall be under the supervision of a responsible individual present at all times that the facility is operating;

  (5) A sign shall be posted at the entrance of the facility stating the days and hours of operation;

  (6) If required by the Department, the facility shall be screened from public view by natural or artificial screening; and

  (7) The facility shall operate in compliance with any other operational requirement specified in the facility's license.

#### Regulation .12 Specific Requirements — Primary Scrap Tire Collection Facilities/Scrap Tire Recyclers.

*COMAR 26.04.08.12*

A. Additional Application Requirements. In addition to the information described in Regulation .08B of this chapter, the application for a primary scrap tire collection facility or scrap tire recycler license shall include the following information:

  (1) A description of facility operations, including a technical description of the methods and procedures used at the facility for processing scrap tires and the proposed hours of operation;

  (2) The current zoning designation and use of the land at the site of the facility and the land within a 1/4 mile radius of the facility;

  (3) Weight and use restrictions on the access roads that lead to the site;

  (4) An explanation of how the accumulation of scrap tires at the facility shall be managed as well as the storage capacity at the facility, designating drop boxes, containers, trailers, or other fully enclosed structures, as well as stockpiles;

  (5) A description of the types of vehicles that will deliver scrap tires to the facility;

  (6) A description of all on-site equipment that will be used for the placement, movement, and transportation of scrap tires;

  (7) A description of measures to be taken that meet the technical and operational standards for scrap tire storage specified in Regulation .17 of this chapter;

  (8) For a scrap tire recycler:

    (a) The maximum quantity, by number or weight, and type of raw material, product, and residuals from processing to be accumulated or stored on the site at any time;

    (b) The processing capacity of the facility, by number or weight, of scrap tires per hour;

    (c) The existing and proposed markets for the facility's tire-derived products or raw materials;

  (9) Topographic section and facility conceptual design maps that depict the following:

    (a) The map scale and directional orientation;

    (b) The scrap tire recycler facility location and the surrounding 1/4 mile area in detail including:

      (i) Wetlands, floodplains, shorelands, intermittent streams, and other surface waters;

      (ii) Legal boundaries and land ownership, including county and municipal boundaries, and easements and rights-of-way;

      (iii) The location of all wells; and

      (iv) Occupied dwellings;

    (c) The facility conceptual design map, which shall show:

      (i) The facility design and the location of all scrap tire collection and storage areas, and fire lanes;

      (ii) All existing and planned structures and buildings at the facility, including those used for scrap tire accumulation, storage, recycling, or processing operations;

      (iii) Loading and unloading areas;

      (iv) Access and internal all-weather roads;

      (v) Runoff control measures, ditches, and dikes;

      (vi) The location of the areas used for processing of scrap tires; and

      (vii) The total land area in square feet or acreage;

  (10) A plan for closing the facility in compliance with Regulations .18—.20 of this chapter;

  (11) For facilities participating in the scrap tire recycling system, a description of the financial assurance to be provided in accordance with Regulation .21 of this chapter;

  (12) For facilities participating in the scrap tire recycling system, a financial statement completed by a certified public accountant that describes the applicant's assets and liabilities to provide evidence of the financial ability to properly establish, operate, and maintain a primary scrap tire collection facility or a scrap tire recycling facility.

B. Conditions. A primary scrap tire collection facility and a scrap tire recycler shall meet the following additional specific conditions which require that a licensee shall:

  (1) For facilities participating in the scrap tire recycling system, maintain financial assurance to cover closure cost;

  (2) Have an up-to-date closure plan;

  (3) If applicable, have an up-to-date emergency preparedness manual;

  (4) If applicable, meet the technical and operational standards for scrap tire storage specified in Regulation .17 of this chapter; and

  (5) Comply with the applicable provisions of Environment Article, Title 2, Annotated Code of Maryland, and any regulations promulgated under it.

#### Regulation .13 Requirements for Approval of In-State Facilities.

*COMAR 26.04.08.13*

A. A substitute fuel/tire-derived fuel facility or solid waste acceptance facility shall be approved by the Department before accepting any scrap tires.

B. After the appropriate application required by Regulation .14 or .15 of this chapter is submitted to the Department, facility approval may be granted by a modification to a permit issued to the facility under other applicable State or federal statutes and regulations.

C. When the storage of scrap tires is planned, the applicant for a substitute fuel/tire-derived fuel or solid waste acceptance facility shall submit 13 copies of the application and supporting documents for distribution by the Department, for comment, to those agencies or individuals listed in Regulation .09B(3) of this chapter.

D. Until December 31, 1993, all permitted sanitary landfills in Maryland are approved facilities and may accept tires for disposal if the requirements specified in Regulation .10B of this chapter are met. To remain approved after this period, sanitary landfills shall apply for a renewal of their approval following the procedures in Regulations .15 and .23 of this chapter.

E. Approval shall be issued for a term of 5 years.

#### Regulation .14 Substitute Fuel/Tire Derived Fuel Facility Approval Requirements.

*COMAR 26.04.08.14*

A. Application Requirements. A person who wishes to use scrap tires as a substitute fuel in a resource recovery facility or in a facility that uses tires as a tire-derived fuel shall submit an application for approval to the Department. The application shall include the following information:

  (1) The information required by Regulations .08B and .12 of this chapter; and

  (2) The following additional information:

    (a) The rate at which the scrap tires will be incinerated;

    (b) Identification of the applicable State and federal air quality standards;

    (c) A plan for closing the facility in compliance with Regulations .18—.20 of this chapter;

    (d) Financial assurance as required by Regulation .21 of this chapter for facilities participating in the scrap tire recycling system;

    (e) For facilities participating in the scrap tire recycling system, a financial statement completed by a certified public accountant that describes the applicant's assets and liabilities to provide evidence of the financial ability to properly establish, operate, and maintain a substitute fuel facility or tire-derived fuel facility.

B. Conditions. Approved facilities shall comply with the requirements specified in Regulation .10B of this chapter.

#### Regulation .15 Solid Waste Acceptance Facility Approval Requirements.

*COMAR 26.04.08.15*

A. A solid waste acceptance facility seeking to become an approved scrap tire facility after December 31, 1993 shall possess a valid refuse disposal permit as set forth under COMAR 26.04.07.

B. Application. An applicant requesting approval of a solid waste acceptance facility as a scrap tire facility shall make application to the Department and, in addition to the information specified in Regulation .08B of this chapter, provide the following information:

  (1) Specification as to whether scrap tires will be disposed of within the facility, processed within the facility, or transferred to another authorized  facility; and

  (2) Identification of the authorized facility to which scrap tires will be transferred.

#### Regulation .16 Reserved.

*COMAR 26.04.08.16*

#### Regulation .17 Technical and Operational Standards to Store Scrap Tires.

*COMAR 26.04.08.17*

A. Designation of Scrap Tire Storage Areas. For those scrap tire facilities that will store scrap tires, a scrap tire storage area shall be used. Only scrap tires, including processed portions and raw material, may be stored in the designated scrap tire storage area. This area shall be maintained free of excessive vegetation or other flammable materials.

B. Scrap tires shall be stored indoors or outdoors under the specifications described in the “Standard for Storage of Rubber Tires”, NFPA 231D (1989 Edition), National Fire Protection Association (NFPA), Batterymarch Park, Quincy, Massachusetts, which is incorporated by reference. A copy of this publication shall be maintained at the facility.

C. NFPA Standards are superseded if they conflict with or are less stringent than:

  (1) Applicable State or local fire and zoning regulations or statutes; or

  (2) Provisions of these regulations.

D. The Department may impose additional requirements on a scrap tire facility that stores scrap tires, including adequate on-site fire control equipment, based on the unique characteristics of a site that may affect the facility's potential to endanger the public health and safety, or the environment.

E. A scrap tire facility that stores scrap tires shall be operated and maintained in a manner which controls mosquitoes and other insects or vermin to prevent public nuisances or health hazards.

F. The site shall be engineered and constructed to keep any liquid runoff from entering waters of the State in the event of a tire fire.

G. For those scrap tire facilities that store scrap tires, an up-to-date emergency preparedness manual shall be maintained at the facility at all times. This manual shall be submitted to the Department for approval at the time the facility applies for a license or otherwise seeks authorization. Once accepted, the manual becomes part of the authorization. This manual shall be updated if a change in the operations of the scrap tire facility occurs, or if the Department requests an update. This emergency preparedness manual shall, at a minimum, contain:

  (1) A list of names and telephone numbers of persons to contact in the event of a fire, flood, or other emergency involving the facility;

  (2) A list of emergency response equipment present at the facility or available for use at the facility, the location of the equipment, and how it should be used in the event of a fire or other emergency;

  (3) The procedures to be followed by facility personnel from discovery of an emergency until the situation is corrected, including the measures that shall be taken to minimize the occurrence, recurrence, or spread of fires, explosions, and releases;

  (4) The location of known water supplies, fire hydrants, dry chemical extinguishers, or other materials that may be used for fire fighting purposes;

  (5) Provision for reporting emergency situations to the Department without delay; and

  (6) Provision for familiarizing all employees with the requirements of the emergency preparedness manual.

H. An emergency preparedness manual may not be approved by the Department unless the applicant demonstrates that police and fire protection services are available for the facility.

#### Regulation .18 Facility Closure.

*COMAR 26.04.08.18*

A. Except for general scrap tire collection facilities, an authorized scrap tire facility shall cease to accept scrap tires and immediately close the scrap tire operations in compliance with any special closure conditions established in the authorization under these regulations, if the following occur:

  (1) Facility operations or the scrap tire portion of facility operations have been terminated;

  (2) The facility fails to maintain adequate financial assurance as required in these regulations;

  (3) The authorization issued by the Department for the facility expires and renewal of the authorization is denied by the Department;

  (4) The authorization issued by the Department for the facility is revoked; or

  (5) The facility receives a final order of the Department to cease operations.

B. Submission of Closure Plan. An applicant seeking authorization for a primary scrap tire collection facility, a scrap tire recycler, a substitute fuel/tire-derived fuel facility, or solid waste acceptance facility shall submit to the Department a closure plan with the authorization application.

C. Contents of Closure Plan. The closure plan shall include:

  (1) A description of the facility's operation, including the maximum inventory of scrap tires, including processed portions, and waste residuals that shall be on site at the facility at any one time during the operating life of the facility;

  (2) A cost estimate for closure as described in Regulation .20 of this chapter;

  (3) The manner in which all scrap tires and waste residuals shall be removed from the facility upon closure; and

  (4) A schedule for implementation of the applicable closure procedures described in Regulation .19 of this chapter, including the time period for completing the closure procedures.

#### Regulation .19 Closure Procedures.

*COMAR 26.04.08.19*

A. Closure Schedule. Unless otherwise described in a scrap tire facility closure plan accepted by the Department, closure procedures shall be completed within 90 days of cessation of facility operations, license revocation, license denial, or final order of the Department.

B. Closure Procedures. For closure, the scrap tire facility shall:

  (1) Close to public access;

  (2) Post a gate notice indicating to the public that the facility is closed and indicating that the Department may be contacted for information regarding alternative sites where scrap tires can be deposited;

  (3) 60 days before closure, notify the Department, local units of government, local land use authorities, and fire and health authorities of the closing of the facility;

  (4) Remove all solid wastes to a permitted solid waste acceptance facility;

  (5) Remove and transfer all scrap tires to a scrap tire collection facility, scrap tire recycler, or other approved facility, or return the scrap tires to the marketplace; and

  (6) Notify the Department when the closure activities are completed.

C. Certification of Closure. After receiving notification from the facility that the closure procedures have been completed in accordance with §B of this regulation, the Department shall inspect the facility site. If all procedures have been correctly completed, the Department shall verify that the facility has been closed in compliance with §B of this regulation.

#### Regulation .20 Cost Estimate for Closure.

*COMAR 26.04.08.20*

A. For each scrap tire facility, where a closure plan is required, an estimate shall be made of the costs for the transfer of the scrap tires to an authorized scrap tire facility or to the marketplace, and for the removal of all solid waste to a permitted solid waste acceptance facility, for the maximum amount of these materials that exist on the site at any time.

B. The estimate shall be done according to a work sheet developed by the Department and shall include the following:

  (1) Identification of and mileage to an authorized scrap tire facility or marketplace;

  (2) Number of vehicle trips required to remove all scrap tires and solid waste from the facility;

  (3) Cost per load to transport;

  (4) Cost to load;

  (5) Cost to deposit scrap tires at an authorized facility or marketplace and solid waste residuals at a permitted solid waste acceptance facility;

  (6) Cost to secure the site and restrict public access;

  (7) Administrative costs; and

  (8) Total closure cost estimate.

#### Regulation .21 Financial Assurance Required.

*COMAR 26.04.08.21*

A. Financial assurance for the closure of a primary scrap tire collection facility, a scrap tire recycler, or any approved facility, shall be established by obtaining one or more of the financial assurance mechanisms approved by the Department.

B. A deposit of cash, performance bond, letter of credit, insurance policy, or negotiable securities submitted under this regulation shall be filed with the Department and remain in effect until the Department certifies that the facility is closed in compliance with these regulations.

C. Amount. The amount of financial assurance to be provided for scrap tire facilities, described in §A of this regulation, shall be at least equal to 125 percent of the estimated closure cost.

D. For scrap tire facilities, described in §A of this regulation, in the scrap tire recycling system, authorization is contingent upon obtaining appropriate financial assurance.

E. Exemptions. Publicly owned or operated scrap tire facilities, described in §A of this regulation, are exempt from financial assurance provisions.

#### Regulation .22 Release of Obligation for Financial Assurance.

*COMAR 26.04.08.22*

When a facility described in Regulation .21A of this chapter has completed, to the satisfaction of the Department, all closure requirements in accordance with the closure plan and these regulations, the Department shall release the security filed or deposited under Regulation .21 of this chapter.

#### Regulation .23 Renewal of Expired Authorization.

*COMAR 26.04.08.23*

A. A written application for renewal of an existing license or approval shall be submitted 90 days before the expiration date of the authorization.

B. A person whose authorization has expired following submission to the Department of a timely and complete renewal application may continue to conduct the authorized activity until the Department takes final action on the application, if the Department determines that the:

  (1) Person is in compliance with the terms and conditions of the expired authorization; and

  (2) Department, through no fault of the person seeking approval, has not taken final action on the application on or before the expiration date of the authorization.

#### Regulation .24 Modification or Transfer of Authorization.

*COMAR 26.04.08.24*

A. Modification. The Department may modify any existing authorization if the modification is needed to reflect changes in State or federal statutes or regulations applicable to a scrap tire facility or hauler. This modification shall also be incorporated into a facility closure plan or emergency preparedness manual, and other documents as appropriate.

B. Transfer.

  (1) An existing authorization may be transferred to new owners if the conditions in §B(2) and (3) of this regulation are met.

  (2) Before any change in hauling company or facility ownership, a written request for transfer is submitted to and accepted by the Department. The request for transfer shall indicate the reason for the requested transfer, and shall be signed by those holding the authorization and those seeking to obtain it through transfer. The request shall also contain all information required in Regulations .05, .08, .12, .14, and .15 of this chapter, as applicable.

  (3) An existing authorization may be transferred to new owners if the Department finds that the proposed transfer of the authorization would not affect present or future compliance with these regulations.

#### Regulation .25 Enforcement Provisions.

*COMAR 26.04.08.25*

A. Suspension or Revocation of Authorization.

  (1) The Department may suspend, revoke, or modify any authorization if the Department finds that:

    (a) The application contained false or inaccurate information;

    (b) There has been a substantial deviation from:

      (i) The documents accepted by the Department as terms or conditions of authorization, or

      (ii) Any requirement established by the Department;

    (c) A representative of the Department has been refused entry to any area covered by the authorization for the purpose of inspecting the area to ensure compliance with the conditions of the authorization;

    (d) There is or has been a violation of the Environment Article, Annotated Code of Maryland, any regulation adopted under the Environment Article, or any condition of approval or licensure; or

    (e) There is any other good cause.

  (2) Unless the person served with an order suspending or revoking the authorization makes a timely request for a hearing, the order is a final order.

B. Reinstatement of Suspended Authorization. A person whose authorization has been temporarily suspended may make application at any time for a reinspection for the purpose of reinstatement of the authorization. Once a written request has been made to the Department, including a statement signed by the applicant that the deficiencies which caused suspension of the authorization have been corrected, the Department shall make a reinspection. If the applicant is complying with the requirements of the authorization and these regulations, the authorization shall be reinstated.

C. Inspections.

  (1) The Department may inspect each authorized scrap tire facility as often as monthly to enforce these regulations. Additionally, reinspections may be made to ascertain that violations have been corrected.

  (2) An agent of the Department, after presenting proper identification, shall be allowed entry to all buildings, structures, and premises used for the storage, collection, or processing of scrap tires, and upon any other property for the purpose of collecting samples, records, or information, and taking photographs to ascertain whether the facility is in compliance with the statutes, regulations, orders, and authorizations of the Department. The facility operator shall provide access to all records and documentation requested by the Department for review and duplication.

#### Regulation .26 Use of the State Used Tire Clean-up and Recycling Fund.

*COMAR 26.04.08.26*

A. Authorization. There is a State Used Tire Clean-up and Recycling Fund (the Fund) as established in Environment Article, §9-273, Annotated Code of Maryland.

B. Allocation of the Fund. The Department shall use the Fund in accordance with the provisions of Environment Article, §§9-275, 9-277, and 9-278, Annotated Code of Maryland.

C. Procedures for Allocation of the Fund for the Scrap Tire Recycling System.

  (1) The Service shall submit to the Department a request for financial assistance for:

    (a) Projects within the scrap tire recycling system to reduce, recover, and recycle scrap tires that are approved by the Department; and

    (b) Costs related to the implementation of scrap tire recycling systems including the cost of:

      (i) Preparation of a scrap tire recycling system under Environment Article, §9-228(e), Annotated Code of Maryland,

      (ii) Implementation of any program established by the Service as a part of a scrap tire recycling system, and

      (iii) Providing assistance in funding the establishment of a private or public scrap tire collection, processing, or recycling facility.

  (2) The Department shall accept expense estimates, cost justifications, and other information specified by the Department as a means of evaluating the  request for financial assistance.

#### Regulation .27 Application Procedures for the Award of Financial Assistance.

*COMAR 26.04.08.27*

A. Authorization. The Service, with the approval of the Department and the Board of Public Works, in accordance with these regulations, may award grants, loans, and loan guarantees to State agencies, local governments, and persons located or locating in Maryland for projects to reduce, recover, and recycle scrap tires generated in Maryland through the expansion or construction of scrap tire collection, processing, or recycling facilities.

B. Eligible Uses.

  (1) A loan or grant may be used for capital costs that:

    (a) Expand an existing scrap tire facility that utilizes scrap tires; or

    (b) Establish a new scrap tire facility or business which relates to the purposes outlined in Environment Article, §9-275(a)(2), Annotated Code of Maryland.

  (2) Capital costs may include:

    (a) Acquiring or constructing buildings and related appurtenances;

    (b) Land acquisition;

    (c) Equipment and machinery, including pollution control devices and systems or nuisance abatement devices and systems, or both;

    (d) Trucks or other vehicles;

    (e) Development of plans and specifications by professional engineering and architectural services, as long as these professionals are not shareholders, partners, or owners of the company or do not have an interest in the company.

  (3) Working capital and general operating expenses are not eligible costs under this program.

  (4) At the discretion of the Department and the Service, grants and loans may be awarded to include some or all of the following project costs:

    (a) Improvement of facilities or equipment to initiate or expand the use of scrap tires to make raw materials or products;

    (b) Test runs of manufacturing processes or asphalt application processes using scrap tires and other uses of scrap tires; and

    (c) Testing of products made from scrap tires.

C. Application Procedures.

  (1) An applicant shall submit to the Service all of the following:

    (a) An original and two complete copies of the application on a form provided by the State;

    (b) A detailed typewritten narrative description of the project;

    (c) A financial statement completed by a certified public accountant that describes the applicant's assets and liabilities;

    (d) A certification that the applicant is unable to obtain, on reasonable terms, sufficient credit to finance the applicant's actual needs without the loan or grant.

  (2) The Service, upon review of the applications, may recommend each application to the Department, listing its priority and amount, for approval of grants or loans. The dollar amount requested may not exceed the funding allocated for the items specified in §B of this regulation.

  (3) The Department shall review the recommended action made by the Service. If acceptable to the Department, the recommendation shall be brought before the Board of Public Works for approval.

D. Application Content.

  (1) The narrative description required under §C(1)(b) of this regulation shall include, at a minimum, the following:

    (a) Applicant's name and address;

    (b) For corporations and partnerships, the identification of officers and major shareholders and their extent of interest;

    (c) A description of the applicant's current business activities;

    (d) Types and quantities, by number or weight, of scrap tires to be transported, collected, processed, or recycled;

    (e) A description of the project's contribution to the recycling or other beneficial uses of scrap tires;

    (f) A description of the project's contribution to the State's solid waste management goals;

    (g) A description of the scope of the project as municipal, regional, or Statewide;

    (h) Certification of the facility's conformance to the county solid waste management plan and that it meets all applicable zoning and land use requirements;

    (i) Evidence of public participation and community support;

    (j) Status of the permit process for any State and local permits required by the project;

    (k) A detailed listing of assets to be purchased with the loan;

    (l) A detailed report of projected capital costs of the project that are being requested;

    (m) Plans and specifications for the project;

    (n) The schedule for construction or implementation of the project;

    (o) A description of the applicant's management system for construction and operation of the project;

    (p) A description of the bookkeeping and accounting system for expenditures for construction or implementation of the project, and repayment of the loan, when applicable; and

    (q) A feasibility study prepared by an independent agent.

  (2) The financial information required under §C(1)(c) of this regulation shall include the following:

    (a) Audited financial statements for the 3 most recent years;

    (b) The most recent quarterly financial statements;

    (c) 3 years of projections, including the following:

      (i) Balance sheets,

      (ii) Income statement,

      (iii) Statement of changes in cash flow, and

      (iv) Assumptions used in creating the projections;

    (d) A schedule of short-term notes payable;

    (e) A schedule of properties owned or mortgaged, or both, identifying the mortgage holder;

    (f) A schedule of long-term debt; and

    (g) An explanation of any contingent liabilities.

  (3) The Department may require, in its discretion, the following additional information:

    (a) Appraisals of real property and equipment;

    (b) Accounts receivable aging; and

    (c) Accounts payable aging.

#### Regulation .28 General Requirements and Priorities for Financial Assistance.

*COMAR 26.04.08.28*

A. General Requirements. Loans or grants obtained under Environment Article, §9-275(a)(2), Annotated Code of Maryland, shall be:

  (1) Subject to the approval of the Department and the Board of Public Works;

  (2) Made in accordance with policy and procedures of the Board of Public Works;

  (3) Serviced, monitored, and collected (loans) by the Service;

  (4) Issued for loans, at least, at the same rate of interest as the most recent State general obligation bond; and

  (5) Awarded for up to 50 percent of the eligible costs of the project.

B. The recipient shall execute an agreement with the Service to include all of the following:

  (1) Specification of:

    (a) The purpose of the loan or grant,

    (b) The amount of the loan or grant,

    (c) The term of the loan,

    (d) The interest rate for the loan, and

    (e) Any other conditions required by the Board of Public Works; and

  (2) The obligation of the award recipient to:

    (a) Construct, install, and operate the tire management project in a manner which ensures compliance with all applicable federal, State, and local laws and regulations,

    (b) Maintain the project for its expected useful life, and

    (c) Bind a successor in interest.

C. Requirements Specific to Loans. A loan awarded under this regulation shall be:

  (1) Repaid into the Fund;

  (2) Repaid within 30 years;

  (3) Executed with the manner of repayment described; and

  (4) Executed on loans over $2,500 with a granting to the State of a security interest specified by the Department in equipment, structures, or properties.

D. Award Criteria. The Department shall apply the following criteria to its evaluation of all applications for financial assistance, as appropriate:

  (1) Cost effectiveness of a proposed project;

  (2) Environmental or public health impacts caused by existing circumstances;

  (3) Problem prevention aspects of a proposed project;

  (4) Previous efforts expended to correct any existing problem;

  (5) Financial capacity of the applicant to operate the project;

  (6) Contribution of the proposed project toward meeting State and local solid waste plans and goals;

  (7) Provisions for monitoring and review of the project, and future financial performance;

  (8) Measures to assure accountability for all funds awarded under Environment Article, §9-275(a)(2), Annotated Code of Maryland;

  (9) Applicant's level of readiness in terms of organization, management, prior studies, and financing of a share of project cost; and

  (10) Contribution of the project toward the prevention or clean-up of scrap tire stockpiles in Maryland.

### Chapter 09 — Natural Wood Waste Recycling Facilities

**Authority:** Environment Article, §§9-1701 and 9-1708, Annotated Code of Maryland

**Administrative History:** Effective date: July 6, 1992 (19:13 Md. R. 1210)

**Administrative History:** Chapter revised effective April 5, 1999 (26:7 Md. R. 546)

#### Regulation .01 Scope.

*COMAR 26.04.09.01*

Except as otherwise provided, these regulations apply to those engaged in the construction and operation of natural wood waste recycling facilities.

#### Regulation .02 Definitions.

*COMAR 26.04.09.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Composting” means the process in which natural wood waste is aerobically decomposed under controlled conditions to yield a humus-like product.

  (2) “Department” means the Maryland Department of the Environment.

  (3) “Facility structures” means any buildings and sheds or utility or drainage lines on the facility.

  (4) Natural Wood Waste.

    (a) “Natural wood waste” means tree and other natural vegetative refuse.

    (b) “Natural wood waste” includes tree stumps, brush and limbs, root mats, logs, leaves, grass clippings, unadulterated wood wastes, and other natural vegetative materials.

  (5) Natural Wood Waste Recycling Facility.

    (a) “Natural wood waste recycling facility” means a facility where recycling services for natural wood waste are provided.

    (b) “Natural wood waste recycling facility” does not include a collection or processing facility operated by a:

      (i) Nonprofit or governmental organization located in the State; or

      (ii) Single individual or business that provides recycling services solely for its own employees or for its own recyclable materials generated on its own premises.

  (6) Processing.

    (a) “Processing” means any combination of steps or operations which:

      (i) Reduce or alter the volume of a natural wood waste; or

      (ii) Alter the chemical, biological, or physical characteristics of natural wood waste.

    (b) “Processing” includes composting and chipping of natural wood waste.

  (7) “Recyclable materials” means those materials that:

    (a) Would otherwise become solid waste for disposal in a refuse disposal system; and

    (b) May be collected, separated, or processed and returned to the marketplace in the form of raw materials or products.

  (8) “Recycling” means any process in which materials that would otherwise become solid waste are collected, separated, or processed and returned to the marketplace in the form of raw materials or products.

  (9) “Recycling services” means the services provided by those engaged in the business of recycling, including the collection, processing, storage, purchase, sale, or disposition of recyclable materials.

  (10) “Responsible party” means:

    (a) An owner or officer of a company;

    (b) A manager in charge of a principal business function; or

    (c) Any other person who performs similar policy or decision-making functions.

#### Regulation .03 General Restrictions and Specifically Prohibited Acts.

*COMAR 26.04.09.03*

A. General Restrictions. The Department, in exercising its authority under these regulations with respect to the granting or renewal of permits or reviewing operations of a facility or allowing continued operation under a general permit, shall consider all material required under these regulations to evaluate whether any of the following factors is likely to occur or has occurred. A person may not engage in natural wood waste recycling in a manner which will likely:

  (1) Create a nuisance;

  (2) Be conducive to insect and rodent infestation or the harboring of animals;

  (3) Cause a discharge of constituents derived from natural wood waste into the air unless otherwise permitted by the Department;

  (4) Cause a discharge of constituents derived from natural wood waste to waters of this State unless otherwise permitted by the Department;

  (5) Harm the environment; or

  (6) Create other hazards to the public health, safety, or comfort as may be determined by the Department.

B. Specific Prohibited Acts.

  (1) A person may not operate a natural wood waste recycling facility in this State except in accordance with the provisions of these regulations.

  (2) A natural wood waste recycling facility may accept only natural wood waste.

  (3) A person may not burn wood waste at a natural wood waste recycling facility except as permitted by the Department.

#### Regulation .04 Permits — General.

*COMAR 26.04.09.04*

A. Permits Required. Unless excepted under the provisions of §B of this regulation, a person:

  (1) May not operate a natural wood waste recycling facility in the State after July 1, 1992, without a permit issued by the Department under these regulations; and

  (2) Shall operate the facility:

    (a) Under the conditions of an individual permit issued by the Department; or

    (b) In accordance with the conditions of the general permit after the responsible party has:

      (i) Submitted a Notice of Intent (NOI) in accordance with Regulation .11 of this chapter, and

      (ii) Received a letter of acknowledgment from the Department.

B. Exception. A permit issued under these regulations is not required for a natural wood waste recycling facility when the operator is required to obtain a permit under Environment Article, §9-204, Annotated Code of Maryland.

#### Regulation .05 Application for Individual Permits.

*COMAR 26.04.09.05*

A. Requirements for Application.

  (1) An applicant for a natural wood waste recycling facility shall submit a permit application to the Department.

  (2) The application shall include:

    (a) A description of the project for which approval is requested, including how the requirements in Regulation .07 of this chapter shall be met;

    (b) A description of all other applicable permits required under local, State, or federal statutes;

    (c) A marketing plan and strategy for the product or products produced at the facility; and

    (d) Copies of plans and engineering reports as described in §B of this regulation.

  (3) If there is any reason for summary disapproval of the proposed project, the Department shall notify the applicant in writing and advise the applicant of the proper appeal procedures.

  (4) The applicant shall submit 11 complete sets of the application to the Department.

B. Plans and Specifications.

  (1) The applicant shall submit plans and engineering reports covering the proposed project to the Department as part of the application.

  (2) The information contained in these plans and reports shall include:

    (a) A map showing the specific location and land use within 1/2 mile of the boundaries of the proposed facility;

    (b) Drawings of on-site buildings and other facility structures showing type of construction, layout, and dimensions;

    (c) A topographic map of the site that identifies slopes greater than 25 percent, floodplains, wetlands, and aquifer recharge areas;

    (d) Drawings showing unloading, product storage, equipment storage, and processing areas;

    (e) A site plan designating the property boundaries, existing and proposed facility structures, and roads;

    (f) A descriptive statement of processes and technology to be used;

    (g) A description of the following:

      (i) Major items of equipment including manufacturer, type, model, capacity, and number of units,

      (ii) Types and anticipated quantities of natural wood waste to be accepted and processed daily,

      (iii) Types of natural wood waste that are not accepted,

      (iv) Means by which quantities of materials entering, processed, and leaving the facility are determined,

      (v) Geographic areas to be served by the facility,

      (vi) Measures that shall be taken to prevent or control ground or surface water pollution, explosions, odors, noise, dust, litter, vectors, and other nuisances,

      (vii) Methods of controlling runoff from unloading, storage, and processing areas,

      (viii) A description of soil types and depth,

      (ix) Employee safety and sanitary facilities including the location of on-site sewage disposal and water supply systems,

      (x) Number and types of employees, and

      (xi) Hours of operation;

    (h) An operations and maintenance manual which identifies the operation in detail, including:

      (i) Periodic cleaning and maintenance,

      (ii) The methods for handling unacceptable wastes delivered to the processing facility, including how they shall be identified, segregated, and handled before final disposal,

      (iii) Employee safety training requirements,

      (iv) Procedures for recording and reporting incidents of noncompliance with this chapter,

      (v) Methods used to prevent mud, soil, and debris from the facility from entering public roadways, and

      (vi) Other contingency plans;

    (i) An erosion and sediment control plan that meets the requirements of COMAR 26.09.01 and has been approved by the local soil conservation district or appropriate approving authority;

    (j) A grading permit as required by the local jurisdiction;

    (k) A description of site security and access control;

    (l) An approved and bonded stormwater management plan as required by the local jurisdiction; and

    (m) An emergency preparedness manual.

C. Term of License. A natural wood waste recycling facility license shall be issued for a term of 5 years.

#### Regulation .06 Application Review for Individual Permits.

*COMAR 26.04.09.06*

A. The Department shall distribute the applications submitted to each of the following:

  (1) The governing body, the county executive, or both, of a county or municipality in which the activity is proposed;

  (2) Local operating agency responsible for solid waste and recycling management;

  (3) Local health or environmental official;

  (4) Department of Natural Resources;

  (5) Appropriate soil conservation district;

  (6) U.S. Army Corps of Engineers;

  (7) State Highway Administration;

  (8) State Fire Marshal's Office; and

  (9) Local fire marshal.

B. The Department shall invite each person receiving a copy of the application and supporting information to inspect the proposed site and submit comments to the Department within 30 days of receipt of the report.

C. Application Review. After submission of a completed application for a natural wood waste recycling facility, the applicant shall:

  (1) Give notice of the application, within 30 days of the submittal, in a newspaper that publishes regularly and has a general circulation in the Maryland county where the proposed facility is to be located;

  (2) Ensure that the notice in §C(1) of this regulation:

    (a) Has the content and format acceptable to the Department,

    (b) States the location of the facility and the type and quantity of natural wood waste intended to be processed,

    (c) Advises persons of their right to comment to the Department on the application; and

  (3) Provide to the Department evidence of publication of the public notice required by this regulation.

#### Regulation .07 General Requirements and Operating Procedures.

*COMAR 26.04.09.07*

A. Buildings, Screens, or Buffers. In order to ensure compliance with Regulation .03A(1) of this chapter, the Department may require that the natural wood waste recycling facility conduct processing activities involving unloading, separation, reduction, or alteration in one or more of the following ways:

  (1) In an enclosed building;

  (2) Screened from adjoining properties; or

  (3) Buffered from adjoining properties at a distance determined by the Department.

B. Processing Conditions.

  (1) Processing areas shall be located at least 50 feet from any property line.

  (2) Markets for the raw material or products produced by the natural wood waste recycling facility shall be identified and available before processing.

  (3) Aerobic conditions shall be maintained and controlled during composting of vegetative materials.

C. Access Roads. A natural wood waste recycling facility shall have an all-weather access road negotiable by emergency vehicles, loaded delivery vehicles, or other vehicle transportation from the entrance gate of the facility to loading and unloading areas.

D. Environmental Protection. A natural wood waste recycling facility shall control dust resulting from the operation at all times. The facility shall confine all wood waste to approved unloading, processing, or storage areas at the facility.

E. Supervision. A natural wood waste recycling facility shall operate under the direct supervision and control of a responsible individual. The individual supervising shall be present at all times during the operation of the facility.

F. Emergency Preparedness Manual.

  (1) The facility shall have a written emergency preparedness manual that is:

    (a) Maintained at the facility at all times; and

    (b) Submitted to the Department with its natural wood waste recycling facility permit application or NOI to operate under the conditions of the general permit.

  (2) Once the manual is accepted by the Department, the manual becomes part of the permit.

  (3) The natural wood waste recycling facility shall update its emergency preparedness manual:

    (a) If a change in the operations of the natural wood waste recycling facility occurs;

    (b) If the Department requires a change; or

    (c) If the Department requests an update.

  (4) This emergency preparedness manual shall, at a minimum, contain:

    (a) A list of names and telephone numbers of the persons to contact in the event of a fire, flood, or other emergency involving the facility;

    (b) A list of emergency response equipment present at the facility or available for use at the facility, the location of the equipment, and how the equipment shall be used in the event of a fire or other emergency;

    (c) The procedures facility personnel shall follow from discovery of an emergency until the situation is corrected, including the measures to minimize the occurrence, recurrence, or spread of fires, explosions, and releases;

    (d) The location of known water supplies, fire hydrants, dry chemical extinguishers, or other materials that may be used for fire fighting purposes;

    (e) Provision for reporting emergency situations to the Department without delay; and

    (f) Provision for familiarizing all employees with the requirements of the emergency preparedness manual.

  (5) Any changes shall be reported in writing to the Department within 30 days of occurrence.

G. Cleanliness and Sanitation.

  (1) A natural wood waste recycling facility shall maintain clean and sanitary conditions on the site.

  (2) A natural wood waste recycling facility shall confine natural wood waste to designated storage areas when not being processed.

  (3) A natural wood waste recycling facility shall control accumulations of natural wood waste in a manner that minimizes odors and nuisances and prevents infestation by insects, rodents, or other vectors.

H. Fire Control. A natural wood waste recycling facility shall store natural wood wastes indoors or outdoors in accordance with the requirements of the State Fire Marshal's Office. The permittee shall provide appropriate on-site fire control equipment in addition to additional fire-fighting equipment made available through prior arrangements with the local fire department.

I. Information Posted. A natural wood waste recycling facility shall post a statement of the days and hours of operation at the entrance of the facility.

J. Personnel and Equipment. A natural wood waste recycling facility shall maintain adequate personnel and equipment on site at all times to ensure the proper operation and prompt attention to correct problems associated with the construction and maintenance of the facility.

K. Access Control. A natural wood waste recycling facility shall control access to the facility at all times and adequately close entrances when the site is not in operation.

#### Regulation .08 Periodic Reports to the Department.

*COMAR 26.04.09.08*

A. Annual Report. A natural wood waste recycling facility shall submit an annual report in writing to the Department concerning the status of the natural wood waste recycling facility for each year the facility is in use.

B. The facility shall submit the report in §A of this regulation by March 1 of each year for the preceding calendar year's data.

C. The facility shall submit all required data on the form or in the format provided by the Department, and shall include in the data at least the:

  (1) Quantity of natural wood waste received during each month of the preceding 12 months by volume and weight, indicating the county in which each quantity of material is generated;

  (2) Quantities of processed material and residues produced by the processing activities during each month of the preceding 12 months, by volume and weight; and

  (3) Quantities of processed material and residues removed from the facility during each month of the preceding 12 months, by volume and weight.

D. Other Reporting Requirements. The Department may impose other reporting requirements considered necessary.

#### Regulation .09 Variances.

*COMAR 26.04.09.09*

A. The owner, operator, or person proposing to construct or currently operating a natural wood waste recycling facility may apply to the Department for a variance from one or more of the provisions of these regulations.

B. A natural wood waste recycling facility may seek a variance for design or operation and maintenance requirements, or both;

C. The Department shall grant a variance when the design or method of operation proposed in the variance application shows, to the satisfaction of the Department, that the facility operations will conserve and protect the public health, natural resources, and environment of the State, and control air, water, and land pollution to at least the same extent as would be obtained by compliance with these regulations.

D. Requests for a variance shall supply the information required by the Department, including:

  (1) The nature and location of the natural wood waste recycling facility;

  (2) The reasons for which the variance is required, including the economic, technological, and environmental justification; and

  (3) Other relevant information the Department may require in order to make a determination regarding the application.

E. The Department shall make a determination to either grant or deny the variance. If the variance request is denied, the Department shall inform the applicant in writing of the basis of the denial and the procedures for appeal of the determination.

F. The provisions of the general permit are not subject to variance.

#### Regulation .10 Enforcement Provision.

*COMAR 26.04.09.10*

A. Suspension or Revocation of Permits.

  (1) The Department may issue an order or revoke or temporarily suspend an individual permit or authorization to operate under the general permit for failure of the holder or responsible party to comply with:

    (a) The requirements of these regulations;

    (b) The requirements of the permit;

    (c) A corrective order issued by the Department; or

    (d) The requirements of other applicable State laws and regulations.

  (2) After written notification of a violation by the Department which provides the permittee an opportunity for a hearing, and if no immediate or substantial hazard to the public health or the environment exists, the Department may suspend or revoke an individual permit or authorization to operate under the general permit if the permit holder or responsible party has failed to correct any violation of applicable law, this chapter, or the requirements of the permit.

  (3) Whenever the Department finds conditions which, in the Department's judgment, constitute an immediate and substantial hazard to the public health or the environment, the Department may issue a written notice to the permit holder or responsible party without warning, prior notification, or hearing. This notice shall:

    (a) Cite those conditions;

    (b) Specify the remedial and corrective actions to be taken;

    (c) Specify the time period within which the action shall be taken; and

    (d) If necessary, state that the permit or authorization to operate under the general permit is immediately discontinued.

  (4) Within 10 days after being served with an order suspending or revoking the permit or authorization to operate under the general permit, the person served may request in writing a hearing before the Department.

  (5) Unless the person who has been served with an order suspending or revoking a permit or authorization to operate under the general permit makes a timely request for a hearing under §A(4) of this regulation, the order is a final order.

B. Reinstatement of Suspended Permits or Authorization to Operate Under the General Permit. A person whose permit or authorization to operate under the general permit has been temporarily suspended may make application at any time for a reinspection for the purpose of reinstatement of the permit or authorization to operate under the general permit. Following receipt of a written request, including a statement signed by the permittee that the deficiencies which caused suspension have been corrected, the Department shall make a reinspection. If the permittee is complying with the requirements of the permit and these regulations, the Department shall reinstate the permit or authorization to operate under the general permit.

C. Inspections.

  (1) General. The Department shall inspect the natural wood waste recycling facilities permitted under this chapter, and shall make as many additional inspections and reinspections as are necessary for the enforcement of these regulations.

  (2) Right of Entry. A natural wood waste recycling facility shall allow an agent of the Department, after presenting proper identification, to enter the buildings, structures, and premises owned by a person supplying natural wood waste recycling services, and to enter private property for the purpose of collecting samples, records, and information, and taking photographs to ascertain whether the regulations, orders, and permits of the Secretary of the Environment are being obeyed.

#### Regulation .11 Notice of Intent (NOI) to Operate a Natural Wood Waste Recycling Facility Under a General Permit.

*COMAR 26.04.09.11*

A. Submission of a Notice of Intent signifies that the signatory party intends to be authorized to operate a natural wood waste recycling facility.

B. Becoming a permittee under the general permit obligates the person or business entity, or both the person and business entity, to comply with the terms and conditions of the general permit.

C. Coverage under the general permit does not affect the length of the original term under a previously issued individual permit.

D. The NOI shall be signed by a responsible party and shall be sent by certified mail.

E. A person signing an NOI shall certify that the facility is in compliance with the conditions of the general permit.

#### Regulation .12 General Permit to Operate a Natural Wood Waste Recycling Facility.

*COMAR 26.04.09.12*

A. A permittee may participate in the general permit for a maximum period of 5 years from the date of the letter of acknowledgment issued by the Department after receipt of the NOI.

B. A permittee or responsible party wishing to renew its participation in the general permit shall submit a Notice of Intent to renew the coverage under the general permit 14 days before the expiration of that 5-year period.

C. Effective Date of Coverage.

  (1) Authorization to operate a natural wood waste recycling facility is effective on the date the Department acknowledges receipt of the Notice of Intent.

  (2) Authorization expires 5 years after the date of the acknowledgment of receipt by the Department unless:

    (a) A renewal NOI is submitted 14 days before the expiration date; or

    (b) The permittee notifies the Department of its intent to cease operating before the expiration date of its participation in the general permit.

  (3) A permittee ceasing operations shall notify the Department of its intent to do so.

D. Transfer of Ownership.

  (1) Participation in the general permit:

    (a) Is not transferable; and

    (b) Authorizes only the signatory party to operate the permitted facility.

  (2) In the event of any change in control or ownership of the property, the permittee shall notify the succeeding owner by certified mail of the existence of the permit and of any outstanding permit noncompliance a minimum of 60 days before transfer.

  (3) A copy of the notification shall be forwarded simultaneously to the Department.

### Chapter 10 — Management of Coal Combustion Byproducts

**Authority:** Environment Article, §§1-404, 2-301, 9-252, 9-281—9-286, 9-289, 9-302, 9-313, 9-314, 15-503, 15-702, and 15-803, Annotated Code of Maryland; Ch. 480, Acts of 2009

**Administrative History:** Effective date: December 1, 2008 (35:24 Md. R. 2080)

**Administrative History:** Regulation .03B amended effective October 18, 2010 (37:21 Md. R. 1437)

**Administrative History:** Regulation .09 adopted as an emergency provision effective September 10, 2009 (36:21 Md. R. 1588); adopted permanently effective March 8, 2010 (37:5 Md. R 428)

**Administrative History:** Regulation .10 adopted as an emergency provision effective September 10, 2009 (36:21 Md. R. 1588); adopted permanently effective March 8, 2010 (37:5 Md. R 428)

#### Regulation .01 Scope.

*COMAR 26.04.10.01*

A. The purpose of this chapter is to provide for the regulation of coal combustion byproducts, and to establish certain requirements pertaining to the generation, storage, handling, processing, disposal, recycling, beneficial use, or other use of coal combustion byproducts, including the use of coal combustion byproducts in coal and noncoal mining operations.

B. Except as otherwise specifically provided, this chapter applies to persons engaged in the generation, storage, handling, processing, disposal, recycling, beneficial use, or other use of coal combustion byproducts.

C. Compliance with the provisions of this chapter does not relieve a person from the duty to comply with any other applicable federal, State, and local laws, regulations, and ordinances.

#### Regulation .02 Definitions.

*COMAR 26.04.10.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Air pollution” has the meaning stated in Environment Article, §2-101(b), Annotated Code of Maryland.

  (2) Beneficial Use.

    (a) “Beneficial use” means the use of coal combustion byproducts in a manufacturing process to make a product, or as a substitute for a raw material or commercial product, which, in either case, does not create an unreasonable risk to public health or the environment as determined by the Department.

    (b) “Beneficial use” does not include the use of coal combustion byproducts in a mining operation or in mine reclamation activities.

  (3) Coal Combustion Byproducts.

    (a) “Coal combustion byproducts” means the residue generated by or resulting from the burning of coal.

    (b) “Coal combustion byproducts” includes fly ash, bottom ash, boiler slag, pozzolan, and other solid residuals removed by air pollution control devices from the flue gas and combustion chambers of coal burning furnaces and boilers, including flue gas desulfurization sludge and other solid residuals recovered from flue gas by wet or dry methods.

  (4) “Coal combustion byproducts disposal facility” means a facility or site where coal combustion byproducts are or will be disposed of, and includes the entirety of any lot or parcel and all contiguous land and structures, other appurtenances, and improvements on the land, which are owned, leased, or used by, or under the control of, the owner or operator.

  (5) “Department” means the Department of the Environment.

  (6) “Discharge” has the meaning stated in Environment Article, §9-101, Annotated Code of Maryland.

  (7) “Disposal” means the discarding or abandonment of coal combustion byproducts so that they are not recycled or used, as determined by the Department.

  (8) “Dispose” means any action that results in a disposal.

  (9) Generator.

    (a) “Generator” means a person whose operations, activities, processes, or actions create coal combustion byproducts.

    (b) “Generator” does not include a person who only generates coal combustion byproducts by burning coal at a private residence.

  (10) “Leachate” means liquid that:

    (a) Has percolated through, has drained from, or has been generated by coal combustion byproducts; and

    (b) Has extracted dissolved material, miscible material, suspended material, or all of these from the coal combustion byproducts.

  (11) “Open dump” means a land disposal site which:

    (a) Is not designed or operated in accordance with the requirements for a sanitary landfill under COMAR 26.04.07; or

    (b) Is in violation of the Resource Conservation and Recovery Act, §4005, and 40 CFR §257.

  (12) “Open dumping” means any action that results in the creation of an open dump.

  (13) “Operator” means a person responsible for the overall operation of a facility, site, or storage system.

  (14) “Owner” means a person who owns all or part of a facility, site, or storage system.

  (15) “Person” means an individual, corporation, company, association, society, firm, partnership, joint venture, joint stock company, or other entity, or a federal, State, or local government or governmental unit, or any political subdivision of this State or any of its agencies or instrumentalities.

  (16) “Pozzolan” has the meaning stated in Environment Article, §15-407, Annotated Code of Maryland.

  (17) “Sludge” means any solid, semi-solid, or liquid waste generated by a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility, including sewage sludge but exclusive of the treated effluent from a wastewater treatment plant.

  (18) “Solid waste” means any garbage, refuse, sludge, or liquid from industrial, commercial, mining, or agricultural operations or from community activities, including coal combustion byproducts that are not recycled or used, as determined by the Department.

  (19) “Solid waste acceptance facility” has the meaning stated in COMAR 26.04.07.02.

  (20) “State” means the State of Maryland.

  (21) “Storage system” means a storage tank, silo, bunker, impoundment, or other containment structure used for the storage of coal combustion byproducts before their disposal, use, or transport.

  (22) “Surface impoundment” has the meaning stated in COMAR 26.10.02.04.

  (23) “Waters of this State” has the meaning stated in Environment Article, §9-101, Annotated Code of Maryland.

#### Regulation .03 General Restrictions and Specifically Prohibited Acts.

*COMAR 26.04.10.03*

A. General Restrictions. A person may not engage in the generation, storage, handling, processing, disposal, recycling, beneficial use, or other use of coal combustion byproducts in a manner that is likely to:

  (1) Create a nuisance;

  (2) Create air pollution;

  (3) Cause a discharge of pollutants to waters of this State except in accordance with a valid permit issued by the Department under Environment Article, §9-323, Annotated Code of Maryland;

  (4) Cause a violation of a ground water quality standard described in COMAR 26.08.02.09C;

  (5) Impair the quality of the environment; or

  (6) Create other hazards to the public health, safety, welfare, or comfort as may be determined by the Department.

B. Specific Prohibited Acts.

  (1) Operating an Open Dump. Except as provided in Regulation .04E of this chapter, a person may not:

    (a) Dispose of coal combustion byproducts in an open dump; or

    (b) Cause, suffer, allow, or permit open dumping of coal combustion byproducts on the person's property.

  (2) Accepting Controlled Hazardous Substances. A person may not accept a material that meets the definition of hazardous waste under COMAR 26.13.02 at a coal combustion byproducts disposal facility unless the facility is in compliance with the permit requirements of COMAR 26.13.07.01.

  (3) Air Pollution. A person may not engage in the disposal, storage, transportation, processing, handling, or use of coal combustion byproducts without taking reasonable precautions to prevent particulate matter from becoming airborne. These reasonable precautions shall include, when appropriate as determined by the Department, those precautions described in COMAR 26.11.06.03C and D.

  (4) Transportation. In addition to the requirements of §B(3) of this regulation, a person may not transport coal combustion byproducts without taking reasonable precautions to control fugitive air emissions relating to the transportation. These reasonable precautions shall include, at a minimum, the following:

    (a) Vehicles transporting coal combustion byproducts shall be fully enclosed, or fully enclosed on all sides and covered with a firmly secured canvas or other covering, so as to prevent any coal combustion byproducts from blowing off, falling off, or spilling out of the vehicle, or the coal combustion byproducts shall be handled and transported in sealed containers designed for transportation of powdery solids;

    (b) Before leaving a site where coal combustion byproducts are loaded or off-loaded, vehicles transporting coal combustion byproducts shall be rendered clean and free of excess material or debris that could blow off, fall off, or spill during transportation;

    (c) Coal combustion byproducts being loaded into or off-loaded from a vehicle shall be sufficiently moistened or otherwise conditioned or contained to prevent particulate coal combustion byproducts from becoming airborne or causing fugitive air emissions;

    (d) Following loading but prior to any transportation of coal combustion byproducts, the transporter shall inspect each vehicle that contains coal combustion byproducts to ensure that the requirements of §B(4) of this regulation are met;

    (e) A transporter of coal combustion byproducts shall maintain an inspection log for each vehicle that shall be maintained in the vehicle at all times during transport of coal combustion byproducts, and for 30 days thereafter that shall certify compliance with the standards in §B(4) of this regulation; and

    (f) An inspection log maintained by a transporter of coal combustion byproducts shall consist of an entry for each inspection of a vehicle that has been conducted by the transporter. An inspection entry shall consist of the following information:

      (i) The date the inspection occurred;

      (ii) The time of day the inspection occurred;

      (iii) The name of the person conducting the inspection;

      (iv) The condition of the vehicle and any corrective action required to ensure compliance with this subsection, for example, “truck cleaned and covered” for a vehicle that meets the requirements, or “cover OK, right side wheels hosed off again” for a vehicle that was properly covered but which required re-cleaning of wheels on the right side; and

      (v) The signature of the individual certifying compliance with §B(4) of this regulation.

#### Regulation .04 Disposal.

*COMAR 26.04.10.04*

A. Disposal. A person may not dispose of coal combustion byproducts except in accordance with the provisions of this regulation.

B. A person shall dispose of coal combustion byproducts only in a coal combustion byproducts disposal facility or a solid waste acceptance facility that has been authorized by the Department for the disposal of coal combustion byproducts.

C. On or after December 1, 2008, before a new coal combustion byproducts disposal facility may be constructed, a person shall apply for a permit for an industrial waste landfill under Environment Article, §9-204, Annotated Code of Maryland, and comply with the requirements for industrial waste landfills in COMAR 26.04.07 to the satisfaction of the Department, including but not limited to:

  (1) The general requirements in COMAR 26.04.07.19;

  (2) The permit requirements in COMAR 26.04.07.20;

  (3) The closure requirements in COMAR 26.04.07.21;

  (4) The post-closure monitoring and maintenance requirements in COMAR 26.04.07.22; and

  (5) Any other requirements the Department considers necessary to protect public health and the environment or to prevent nuisance conditions.

D. A new coal combustion byproducts disposal facility may not be constructed or operated on or after December 1, 2008 unless a permit for an industrial waste landfill has been issued by the Department authorizing the facility.

E. A coal combustion byproducts disposal facility that the Department has authorized for the disposal of coal combustion byproducts before December 1, 2008, may continue to operate under the Department's authorization, except that the Department reserves the right to modify an existing authorization to require additional controls or requirements as it considers necessary to protect public health and the environment or to prevent nuisance conditions.

F. An existing coal combustion byproducts disposal facility that intends or proposes to expand beyond its current authorization or operations shall notify the Department in writing. The Department may impose additional controls or requirements on the expansion of the facility as it considers necessary to protect public health and the environment or to prevent nuisance conditions, including, but not limited to, a requirement that the proposed expansion obtain a refuse disposal permit for a new industrial waste landfill or other solid waste acceptance facility as the Department considers appropriate, in accordance with applicable regulations.

#### Regulation .05 Storage.

*COMAR 26.04.10.05*

A. A person may not store coal combustion byproducts except in accordance with the provisions of this regulation.

B. A person may not store coal combustion byproducts directly on the surface of the ground or in an unlined surface impoundment, pit, pond, or lagoon without the authorization of the Department.

C. A person shall store coal combustion byproducts in a manner that prevents contact with waters of this State and that is designed either to minimize contact with precipitation or to collect leachate that may result from contact with precipitation.

D. A person may not use a storage system for coal combustion byproducts unless the storage system is:

  (1) Designed, constructed, and installed to contain coal combustion byproducts and contaminants in the coal combustion byproducts and prevent them from being released to the environment; and

  (2) Provided with a roof or other protections to prevent nuisance, air pollution, and unlawful discharges of contaminated stormwater or leachate to the waters of this State.

E. A person may not store coal combustion byproducts in an area likely to pollute the waters of this State.

F. Responsibility for the prompt control, containment, and removal of any released coal combustion byproducts or for placing coal combustion byproducts in a position likely to pollute the waters of this State shall be with the person responsible for the release, and with the owner and operator of the facility, site, or storage system where the release occurred. This responsibility shall continue until removal or clean up of any contamination or pollution from the release has been accomplished to the satisfaction of the Department.

G. The Department may impose specific requirements for the storage of coal combustion byproducts upon a determination that storage of coal combustion byproducts has caused or is likely to cause a discharge to the waters of the State, is a nuisance, or otherwise poses a threat to public health or the environment.

H. The owner and operator of a facility, site, or storage system shall ensure that:

  (1) A release of coal combustion byproducts during storage operations due to spilling or overflowing does not occur;

  (2) Adequate storage space is available to handle the volume of coal combustion byproducts generated and to be stored; and

  (3) Transfer, handling, and storage operations are performed in a manner that shall prevent, contain, and clean up spills of coal combustion byproducts.

#### Regulation .06 Mine Reclamation.

*COMAR 26.04.10.06*

A. A person may not use coal combustion byproducts in a mine reclamation activity or other mining operation, except in accordance with this chapter and §B or C of this regulation.

B. Active and Abandoned Coal Mines. Coal combustion byproducts may be used in a surface coal mining and reclamation operation and in an abandoned coal mine only in accordance with the provisions of COMAR 26.20, including but not limited to COMAR 26.20.24.08.

C. Noncoal Surface Mines. Coal combustion byproducts may be used in the reclamation of a noncoal surface mine only in accordance with COMAR 26.21.04.

#### Regulation .07 Variances.

*COMAR 26.04.10.07*

A. A person may apply to the Department for a variance from one or more of the provisions of this chapter.

B. The Department may grant a variance if the basis for the variance application is demonstrated to the satisfaction of the Department to:

  (1) Provide equal or greater protection to prevent a release or discharge of coal combustion byproducts to the environment as would be provided by compliance with the regulation for which a variance is requested;

  (2) Conserve and protect the public health, the natural resources, and the environment of the State; and

  (3) Control pollution to at least the same extent as would be obtained by compliance with the regulation for which a variance is requested.

C. A person applying for a variance shall supply the information required by the Department, including:

  (1) The nature and location of the site or sites at which the coal combustion byproducts will be generated, stored, handled, processed, recycled, disposed of, or used;

  (2) The reasons why the applicant requires the variance, including the technological and environmental justification; and

  (3) Other relevant information the Department may require in order to make a determination regarding the application for a variance.

D. When practicable, within 60 days of receipt of a complete application for a variance request as determined by the Department, the Department shall make a determination to either grant or deny the variance. If the request for a variance is denied, the Department shall inform the applicant in writing of the basis of the denial.

#### Regulation .08 Reporting.

*COMAR 26.04.10.08*

A. A generator of coal combustion byproducts shall maintain records of, and deliver to the Department by March 1 of each year an annual report that contains, the following:

  (1) The name, address, and telephone number of the generator of any coal combustion byproducts;

  (2) A description of the process that generates the coal combustion byproducts, including the type of coal or other raw material that generates the coal combustion byproducts;

  (3) The annual volume of coal combustion byproducts generated during the last 5 calendar years, including an identification of the different types of coal combustion byproducts generated and the volume of each type generated, except that after a generator has submitted its first annual report, which shall report the information in this subsection for the last 5 calendar years, subsequent annual reports need only provide the information in this subsection for the last calendar year;

  (4) Descriptions of any modeling or risk assessments, or both, conducted relating to the coal combustion byproducts or their use;

  (5) All laboratory reports of all chemical characterizations of the coal combustion byproducts;

  (6) Except as provided in §G of this regulation, a description of how the generator disposed of or used its coal combustion byproducts in the last 5 calendar years, identifying:

    (a) The types and volume of coal combustion byproducts disposed of or used, the location of disposal, mine reclamation and use sites, and the type and volume of coal combustion byproducts disposed of or used at each site; and

    (b) The different uses by type and volume of coal combustion byproducts;

  (7) A description of how the generator intends to dispose of or use its coal combustion byproducts in the next 5 years, identifying:

    (a) The types and volume of coal combustion byproducts intended to be disposed of or used, the location of intended disposal, mine reclamation and use sites, and the type and volume of coal combustion byproducts intended to be disposed of or used at each site; and

    (b) The different intended uses by type and volume of coal combustion byproducts.

B. An authorized official of the generator shall sign the annual report provided under §A of this regulation and certify as to the accuracy and completeness of the information contained in the annual report.

C. A generator shall maintain records of the names, addresses, and telephone numbers of the persons to whom the generator sold, transferred, or provided coal combustion byproducts for disposal, storage, use, or recycling; the type and volume of coal combustion byproducts provided to each person; and, if known, how each person disposed of, used, or recycled the coal combustion byproducts.

D. The generator shall maintain all records required by §§A and C of this regulation for a minimum of 5 years and shall make the records available to the Department upon request.

E. If changes in the raw materials or processes used by a generator result in the identification of new chemical constituents in the coal combustion byproducts, the generator shall submit a report to the Department, identifying the new chemical constituents and the change in raw materials or processes that resulted in the creation of the new chemical constituents.

F. Except as otherwise provided by law, the Department may publish on its website or elsewhere, or otherwise make available to the public, any information that it gathers from the annual reports or records provided under this regulation.

G. After a generator has submitted its first annual report, which shall report the information in §A(6) of this regulation for the last 5 calendar years, subsequent annual reports need only provide the information in §A(6) of this regulation for the last calendar year.

#### Regulation .09 Generator Fees.

*COMAR 26.04.10.09*

A. This regulation applies to generators of coal combustion byproducts.

B. Annual Generator's Fee.

  (1) Except as provided in §D(5) of this regulation, a generator of coal combustion byproducts shall pay the Department an annual generator's fee.

  (2) The annual generator's fee shall be determined by the Department on the basis of the total tons of coal combustion byproducts generated by a generator.

C. Fee Payment.

  (1) The Department shall submit a notice to a generator specifying the annual generator's fee that is due.

  (2) A generator shall pay the annual generator's fee to the Department within 30 days of the date of the notice sent to a generator by the Department.

  (3) If a generator fails to pay the annual generator's fee, the Department may deny or act to stop any current or future use, beneficial use, or disposal of coal combustion byproducts generated by the delinquent generator. The Department may take other appropriate action to collect fees and money owed under this regulation from delinquent generators.

D. Annual Generator Fee Schedule.

  (1) Base Fee. The initial base fee shall be $1.15 for each ton of coal combustion byproducts generated. The base fee may be adjusted by the Department on an annual basis as provided in Environment Article, §§9-283 and 9-284, Annotated Code of Maryland, for the next applicable fiscal year.

  (2) Base Fee Adjustment Factors. The base fee shall be adjusted depending on how the coal combustion byproducts are managed based on the appropriate adjustment factor in Table 1:

  (3) Calculation of Fee. The annual generator's fee shall be calculated by adding the results of the following formula for each Management Category in Table 1:

  (4) Adjustment of Fees.

    (a) Billing of the annual generator's fee shall be based on the generation of coal combustion byproducts by a generator that occurs on a calendar year schedule beginning on January 1 of each year, and be based on the annual report of a generator for the previous calendar year as required under Regulation .08 of this chapter.

    (b) Expenditures by the Department shall be calculated on a fiscal year basis, beginning on July 1 and ending on June 30 of the next calendar year.

    (c) Whenever the combination of unallocated funds remaining in the Coal Combustion Byproducts Management Fund and the projected revenue from the annual generator's fee exceed anticipated expenditures, the annual generator's base fee shall be adjusted so that the combination of unallocated funds and revenue from the annual generator's fee does not exceed the Department's anticipated expenditures.

    (d) Unallocated funds shall include all funds that are expected to be available for carryover into the next fiscal year after payment of all budgeted items and other anticipated expenses.

  (5) Exemptions.

    (a) A generator may not be required to pay the annual generator's fee for the following:

      (i) Coal combustion byproducts that are generated by a generator generating less than 10,000 tons of coal combustion byproducts per calendar year;

      (ii) Coal combustion byproducts that are used in accordance with applicable regulations in a surface coal mining and reclamation operation, in a deep mine, or in an abandoned coal mine; and

      (iii) Coal combustion byproducts that are used beneficially in the State.

    (b) The Department shall determine which uses reported by a generator are beneficial uses for the purpose of calculating the annual generator's fee.

    (c) The Department may request supplemental information from a generator concerning a claimed use of coal combustion byproducts to determine whether a specific claimed use should or should not be exempt from the annual generator's fee, and may investigate and make case-specific determinations concerning beneficial uses and other claimed uses at any time.

#### Regulation .10 Auditing.

*COMAR 26.04.10.10*

A. The Department may inspect and audit all records or files associated with the annual reports required under Regulation .08 of this chapter, and the calculation and payment of the annual generator's fee required under Regulation .09 of this chapter.

B. A generator shall maintain all records associated with the payment of the annual generator's fee for at least 3 years after payment.

C. If an audit reveals any amount of money was improperly withheld from the Department:

  (1) A generator shall remit that amount to the Department within 30 days of notification of the error by the Department;

  (2) A generator shall be liable for any expenses incurred by the Department in collecting money owed to the Department; and

  (3) A generator may be subject to other penalties as provided by law or regulation.

### Chapter 11 — Composting Facilities

**Authority:** Environment Article, §9-1725, Annotated Code of Maryland

**Administrative History:** Effective date: June 22, 2015 (42:12 Md. R. 763)

#### Regulation .01 Scope.

*COMAR 26.04.11.01*

A. Except as otherwise provided, this chapter applies to persons engaged in the construction and operation of composting facilities.

B. Facilities that compost only natural wood waste are subject to the requirements in COMAR 26.04.09.

C. Tier 3 composting facilities are subject to the requirements in:

  (1) COMAR 26.04.06, for facilities composting sewage sludge; or

  (2) COMAR 26.04.07, for facilities composting solid waste.

D. In addition to the Composting Facility Permit required in Regulation .05B or .06B of this chapter, composting facilities may be subject to permit requirements under:

  (1) COMAR 26.08.01—.04, relating to State and National Pollutant Discharge Elimination System (NPDES) discharge permits; and

  (2) COMAR 26.11.02, relating to air quality permits.

#### Regulation .02 Definitions.

*COMAR 26.04.11.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “24-hour, 25-year storm event” means the amount of precipitation, occurring over 24 hours, that has a probability of 1/25 of being met or exceeded during any 1-year period.

  (2) “Active composting” means the phase of composting prior to curing.

  (3) “All-weather pad” means a pad of sufficient construction, firmness, and grading so that composting equipment can manage the process during normal inclement weather, including expected rain, snow, and freezing temperatures.

  (4) “All-weather road” means a road of sufficient construction and firmness for vehicles and equipment to traverse during normal inclement weather, including expected rain, snow, and freezing temperatures.

  (5) “Animal mortality” means an animal carcass that is generated:

    (a) At a farm during the normal course of operations;

    (b) At another location and managed by State or local government as part of roadway or other maintenance activities; or

    (c) At a farm or other location and managed under an Emergency Exemption under Regulation .06 of this chapter.

  (6) “Carbon-rich” means having a carbon-to-nitrogen ratio of at least 60:1.

  (7) “Compost” means the product of composting in accordance with the standards established by the Secretary of Agriculture under Agriculture Article, §6–221, Annotated Code of Maryland.

  (8) “Compostable products” means containers, films, or food service items, such as a bowls, plates, cups, or cutlery, composed of materials such as:

    (a) Vegetable matter;

    (b) Paper;

    (c) Cardboard; and

    (d) Compostable plastics that are, within the length of time and process employed at the composting facility at which they are used, capable of biological decomposition to a degree that they result in marketable compost meeting the standards established by the Secretary of Agriculture under Agriculture Article, §6–221, Annotated Code of Maryland.

  (9) “Composting” means the controlled aerobic biological decomposition of organic waste material.

  (10) Composting facility.

    (a) “Composting facility” means a facility where composting takes place.

    (b) “Composting facility” does not include a facility that is required to obtain:

      (i) A Natural Wood Waste Recycling Facility Permit under COMAR 26.04.09;

      (ii) A Sewage Sludge Utilization Permit under COMAR 26.04.06; or

      (iii) A Refuse Disposal Permit under COMAR 26.04.07.

    (c) The exclusions in §B(10)(b) of this regulation apply only to the areas of a site for which one of the listed permits is required.

  (11) “Composting Facility Operations Plan” (CFOP) means the plan required by Regulation .09 of this chapter.

  (12) “Composting Facility Permit” means the permit required by Regulations .05 and .06 of this chapter.

  (13) Contact Water.

    (a) “Contact water” means liquid, including runoff from precipitation, that has been in contact with feedstocks or active composting material and runs off the feedstock receiving area, feedstock storage area, or active composting area.

    (b) “Contact water” includes liquid that has passed through or emerged from feedstocks or active composting material and contains soluble, suspended, or miscible materials removed from the piles.

  (14) “Covered” means covered with:

    (a) A synthetic, low-permeability cover or tarp designed to prevent precipitation from contacting the covered materials;

    (b) A roof with either walls or sufficient run-on control measures, such as berms, to prevent run-on from contacting the covered materials; or

    (c) An alternative approved by the Department.

  (15) Curing.

    (a) “Curing” means the phase of the composting process after:

      (i) Most of the readily metabolized material has been decomposed and stabilized; and

      (ii) The pathogen reduction requirements in Regulation .09 of this chapter have been met.

    (b) “Curing” includes periods in which the material is managed to increase maturity prior to use or distribution as compost.

  (16) “Department” means the Maryland Department of the Environment.

  (17) “Existing composting facility” means a composting facility that began operations on or before July 1, 2015.

  (18) Farm.

    (a) “Farm” means the site of a business or activity operated for the primary purpose of tilling, cropping, keeping, pasturing, or producing an agricultural product other than compost, including livestock, poultry, plants, trees, sod, food, feed, or fiber, by in-ground, out-of-ground, container, or other culture.

    (b) “Farm” does not include the site of a business or activity operated for the primary purpose of producing compost.

  (19) “Flood plain” means the flood plain of free-flowing waters determined by the Department on the basis of the 100-year flood frequency.

  (20) “Indoors” means within a structure that is entirely enclosed by walls and has a roof and low-permeability floor constructed of concrete, asphalt, or similar materials.

  (21) In Support of Composting.

    (a) “In support of composting” means used to conduct any phase of the composting process, including but not limited to feedstock receiving, feedstock preparation, active composting, curing, compost storage, composting equipment storage or maintenance, or storage of any solid waste or non-compostable materials.

    (b) “In support of composting” does not include:

      (i) Areas used to store mobile, general purpose farm equipment such as tractors and backhoes;

      (ii) Areas associated with the housing or movement of animals where manure may accumulate prior to composting; or

      (iii) Roads used for transport to the composting facility or between separate composting areas on a site.

  (22) Major Permit Modification.

    (a) “Major permit modification” means a significant and substantive change to an individual Composting Facility Permit.

    (b) “Major permit modification” includes:

      (i) A change in the facility tier;

      (ii) A significant increase in facility capacity, throughput, or compost produced per year;

      (iii) A change in ownership of the facility;

      (iv) A significant change to the size of the area used in support of composting; and

      (v) Any other significant change to the design or operation of the composting facility.

  (23) “Minor permit modification” means a change to an individual Composting Facility Permit that is not a major permit modification.

  (24) “Natural wood waste” has the meaning stated in COMAR 26.04.09.02.

  (25) “New composting facility” means a composting facility that began operations after July 1, 2015.

  (26) “Organic” means any natural biological substance of plant or animal origin that is capable of microbial degradation.

  (27) “Person” means an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation, or other entity.

  (28) “Physical contaminants” means non-compostable items including non-compostable plastic, glass, rubber, and metal.

  (29) “Run-on” means any rainwater or other liquid that drains over land onto any part of a composting facility.

  (30) “Seasonal high water table” means the highest water table as determined in the soil profile by the encountered indications of soil mottling or iron concretions or by measuring seasonal fluctuations of the water table in a water table well over a period acceptable to the Department.

  (31) Stormwater.

    (a) “Stormwater” means stormwater runoff, snow melt runoff, and surface runoff and drainage.

    (b) “Stormwater” does not include contact water.

  (32) “Stabilized compost” is defined in COMAR 15.18.04.01.

  (33) “Tier 1 Facility” means a composting facility that accepts only Type 1 feedstocks.

  (34) Tier 2 Facility.

    (a) “Tier 2 Facility” means a composting facility that accepts Type 2 feedstocks.

    (b) “Tier 2 Facility” includes a composting facility that accepts Type 1 feedstocks in addition to Type 2 feedstocks.

    (c) “Tier 2 Facility” does not include a composting facility that accepts Type 3 feedstocks.

  (35) “Tier 2 Small Facility” means a Tier 2 Facility that produces 10,000 cubic yards or less of compost per year.

  (36) “Tier 2 Large Facility” means a Tier 2 Facility that produces more than 10,000 cubic yards of compost per year.

  (37) “Tier 3 Facility” means a facility that accepts any Type 3 feedstocks, regardless of whether other feedstock Types are also accepted.

  (38) “Type 1 feedstock” means:

    (a) Yard waste, as defined in Environment Article, §9-1701, Annotated Code of Maryland; and

    (b) Other materials determined by the Department to pose a low level of risk from hazardous substances, human pathogens, and physical contaminants.

  (39) “Type 2 feedstock” means:

    (a) Source-separated organics from residential curbside or drop-off programs and non-residential sources, including but not limited to pre-consumer and post-consumer food scraps and non-recyclable paper;

    (b) Department-approved animal manure and bedding, with Department approval based on factors such as moisture content and pathogen risk;

    (c) Department-approved industrially produced food processing materials, including industrial poultry and seafood residuals;

    (d) Animal mortalities;

    (e) Manufactured organic materials such as waxed-corrugated cardboard, non-coated paper, and compostable products; and

    (f) Other materials that the Department determines pose a low level of risk from hazardous substances and a higher level of risk from physical contaminants and human pathogens, compared to Type 1 feedstocks.

  (40) “Type 3 feedstock” means:

    (a) Sewage sludge, as defined in COMAR 26.04.06.03;

    (b) Biosolids, as defined in COMAR 26.04.06.03;

    (c) Used diapers;

    (d) Mixed municipal solid waste; and

    (e) Any other feedstocks that are not Type 1 or Type 2 feedstocks and that the Department determines pose a low level of risk from hazardous substances and a higher level of risk from physical contaminants and human pathogens, compared to Type 1 and Type 2 feedstocks.

#### Regulation .03 Incorporation by Reference.

*COMAR 26.04.11.03*

In this chapter, the following documents are incorporated by reference:

A. 40 CFR §122.26(b)(14), as amended;

B. 40 CFR Part 503, Appendix B, §(B)(1), as amended, except wherever the words “sewage sludge” appear, substitute “materials being composted”; and

C. 40 CFR §503.33(b)(5), as amended, except wherever the words “sewage sludge” appear, substitute “materials being composted”.

#### Regulation .04 General Restrictions and Specifically Prohibited Acts.

*COMAR 26.04.11.04*

A. Applicability. This regulation applies to a composting facility, regardless of whether the composting facility is required to obtain a Composting Facility Permit under this chapter.

B. General Restrictions. A person shall not engage in composting in a manner which will likely:

  (1) Create a nuisance;

  (2) Be conducive to insect and rodent infestation or the harborage of animals;

  (3) Cause nuisance odors or other air pollution in violation of COMAR 26.11.06 or involve construction of a source of air pollution subject to a permit to construct or operation of a source of air pollution subject to a permit to operate unless permitted under COMAR 26.11.02;

  (4) Cause a discharge of pollutants derived from organic materials or solid waste to waters of this State unless otherwise permitted by the Department;

  (5) Harm the environment; or

  (6) Create other hazards to the public health, safety, or comfort as may be determined by the Department.

C. The Department, in exercising its authority under these regulations with respect to granting or renewing permits, reviewing operations of a composting facility, or allowing operation under a general permit, may consider any documentation required under these regulations to evaluate whether any of the conditions described in §B of this regulation is likely to occur or has occurred.

D. A person may not own, construct, or operate a composting facility in this State except in accordance with these regulations.

#### Regulation .05 Permits Required.

*COMAR 26.04.11.05*

A. Applicability.

  (1) This regulation applies to a composting facility that is not located at a farm.

  (2) Regulation .06 of this chapter establishes the permit requirements for a composting facility located at a farm.

B. Permits Required. Except as provided in §§C—E of this regulation and in Regulation .07 of this chapter, a person:

  (1) May not cause, suffer, allow, or permit the construction or operation of a composting facility in the State without a permit issued by the Department under this chapter; and

  (2) Shall construct and operate the composting facility:

    (a) In accordance with the conditions of an individual Composting Facility Permit issued by the Department; or

    (b) In accordance with the conditions of the general Composting Facility Permit after the responsible party has:

      (i) Submitted a Notice of Intent (NOI) and all required information in accordance with Regulation .11 of this chapter; and

      (ii) Received a letter of acknowledgment from the Department.

C. Exemptions. A Composting Facility Permit is not required for a composting facility that complies with the general restrictions in Regulation .04B of this chapter and:

  (1) Is located on a residential property and composts organic materials generated on the residential site, if the resulting compost is used on the residential site for personal, household, or family purposes;

  (2) Is managed by State or local government and composts animal mortalities as part of roadway or other maintenance activities; or

  (3) Is a Tier 1 or Tier 2 Facility that:

    (a) At all times, uses no more than 5,000 square feet of area in support of composting operations; and

    (b) Except where a smaller pile size is required by local law:

      (i) Maintains any raw feedstock storage piles at a height of 9 feet or less; and

      (ii) Maintains any active composting pile, curing, or finished compost piles at a height of 12 feet or less.

D. Tier 3 Facilities.

  (1) A person may not operate a Tier 3 Facility in the State without a permit issued by the Department under COMAR 26.04.06 or COMAR 26.04.07.

  (2) A Tier 3 Facility that operates under a permit issued under COMAR 26.04.06 or COMAR 26.04.07 is not required to obtain a Composting Facility Permit issued under this chapter.

E. Composting Facilities Located at Solid Waste Acceptance Facilities. A Tier 1 or Tier 2 composting facility that is located at a solid waste acceptance facility, as defined in COMAR 26.04.07.02, is not required to obtain a Composting Facility Permit if:

  (1) The composting facility operates under a refuse disposal permit issued under COMAR 26.04.07; and

  (2) The composting facility’s refuse disposal permit includes design and operational conditions specific to the composting activity.

#### Regulation .06 On-Farm Composting Facilities — Permits Required.

*COMAR 26.04.11.06*

A. Applicability.

  (1) This regulation applies to a composting facility located at a farm.

  (2) Regulation .05 of this chapter establishes the permit requirements for a composting facility that is not located at a farm.

B. Permits Required. Except for an on-farm composting facility that qualifies for an exemption under §§C—G of this regulation and except as provided in Regulation .07 of this chapter, a person:

  (1) May not cause, suffer, allow, or permit the operation of an on-farm composting facility in the State without a permit issued by the Department under this chapter; and

  (2) Shall construct and operate the composting facility:

    (a) In accordance with the conditions of an individual Composting Facility Permit issued by the Department; or

    (b) In accordance with the conditions of the general Composting Facility Permit after the responsible party has:

      (i) Submitted a Notice of Intent (NOI) and all required information in accordance with Regulation .11 of this chapter; and

      (ii) Received a letter of acknowledgment from the Department.

C. A Composting Facility Permit is not required for an on-farm composting facility, regardless of its size, if:

  (1) The composting facility complies with the general restrictions in Regulation .04B of this chapter;

  (2) The composting facility composts only organic materials generated on site or at another farm controlled by the same operator; and

  (3) The compost is used for personal, household, family, or agricultural purposes at the farm where the composting facility is located or at a farm controlled by the same operator.

D. A Composting Facility Permit is not required for an on-farm composting facility that uses no more than 40,000 square feet of area in support of composting operations if the composting facility:

  (1) Complies with the general restrictions in Regulation .04B of this chapter;

  (2) By no later than January 1, 2017 for an existing composting facility, or before commencement of operations for a new composting facility, is constructed and operated in accordance with:

    (a) A nutrient management plan, if required under COMAR 15.20.07; and

    (b) Either:

      (i) A soil conservation and water quality plan that describes the composting facility components and design, schedule for storage and utilization of the materials, system maintenance, and operational procedures to ensure that the requirements of Regulation .04B of this chapter are met; or

      (ii) An agricultural waste management system plan that describes the composting facility components and design, schedule for storage and utilization of the materials, system maintenance, and operational procedures to ensure that the requirements of Regulation .04B of this chapter are met; and

  (3) Composts only one or more of the following:

    (a) Organic materials generated on site or at another farm controlled by the same operator;

    (b) Animal manure and bedding, regardless of the place of generation; and

    (c) Type 1 feedstocks, regardless of the place of generation.

E. A Composting Facility Permit is not required for an on-farm composting facility that uses no more than 5,000 square feet of area in support of composting operations if the composting facility:

  (1) Is a Tier 1 or Tier 2 facility;

  (2) Complies with the general restrictions in Regulation .04B of this chapter; and

  (3) Except where a smaller pile size is required by local law:

    (a) Maintains any raw feedstock storage piles at a height of 9 feet or less; and

    (b) Maintains any active composting pile, curing, or finished compost piles at a height of 12 feet or less.

F. Emergency Exemption for Composting of Animal Mortalities. A Composting Facility Permit is not required for an on-farm composting facility that:

  (1) Complies with the general restrictions in Regulation .04B of this chapter;

  (2) Temporarily composts animal mortalities generated as a result of a non-routine, catastrophic die off; and

  (3) Operates under the approval of and as directed by Maryland Department of Agriculture, in consultation with the Department.

G. Tier 3 Facilities.

  (1) A person may not construct or operate a Tier 3 Facility in the State without a permit issued by the Department under COMAR 26.04.06 or COMAR 26.04.07.

  (2) A Tier 3 Facility that operates under a permit issued under COMAR 26.04.06 or COMAR 26.04.07 is not required to obtain a Composting Facility Permit issued under this chapter.

#### Regulation .07 Existing Composting Facilities.

*COMAR 26.04.11.07*

A. This regulation applies to composting facilities that began operations on or before July 1, 2015.

B. On or before September 1, 2015, an existing composting facility that is required to obtain a Composting Facility Permit under Regulations .05 or .06 of this chapter shall submit an Existing Facility Notification to the Department.

C. The Existing Facility Notification required under §B of this regulation shall be submitted on a form provided by the Department and shall include at least:

  (1) The name and location of the composting facility;

  (2) Days and hours of operation;

  (3) The name and contact information of the composting facility operator and the name of each operator certified by the Department of Agriculture under COMAR 15.18.04;

  (4) A brief description of the feedstocks currently accepted and their sources;

  (5) An estimate of the quantity of feedstocks accepted annually and the quantity of compost produced annually, in cubic yards;

  (6) The area, in square feet, that is used in support of composting operations; and

  (7) Whether the compost is distributed off site.

D. An existing composting facility that has submitted a complete and timely Existing Facility Notification as required under §B of this regulation is not subject to the requirements in Regulations .05, .06 and .08—.16 of this chapter until January 1, 2017, if the following conditions are met:

  (1) The composting facility accepts only feedstocks that it accepted as of July 1, 2015 and that were described in the Existing Facility Notification, except that the sources of feedstocks may change if the nature and type of the material is substantially the same;

  (2) The composting facility accepts materials in quantities not exceeding the annual quantity reported in the Existing Facility Notification; and

  (3) The composting facility does not engage in composting in a manner likely to cause any of the prohibited acts listed in Regulation .04B of this chapter.

E. Nothing in this regulation shall be construed to prohibit the Department from enforcing any other law, regulation, or permit applicable to the existing composting facility.

#### Regulation .08 Composting Facility Siting and Design Requirements.

*COMAR 26.04.11.08*

A. This regulation applies to composting facilities that are required to obtain a Composting Facility Permit under this chapter, and establishes conditions that the composting facility operator shall meet with respect to construction of the composting facility.

B. Siting Criteria.

  (1) Except where a greater setback is required by local, State, or federal law or regulations, feedstock receipt, feedstock storage, active composting, curing, and compost storage areas of a composting facility may not be located closer than:

    (a) 50 feet to the property line of a property not owned or controlled by the operator of the composting facility;

    (b) 300 feet to a dwelling not owned or operated by the operator of the composting facility;

    (c) 100 feet to a domestic well; and

    (d) 100 feet to a stream, lake, or other body of water except an impoundment for use in the composting process.

  (2) A composting facility shall be located in accordance with all applicable federal laws, regulations, or guidance related to the location of composting facilities at or near airports.

  (3) A composting facility may not be located in a flood plain, except as otherwise approved by the Department.

  (4) A composting facility shall be located and constructed in accordance with COMAR 26.23 and COMAR 26.24, relating to nontidal and tidal wetlands, respectively.

  (5) A composting facility may not be located in conflict with the Chesapeake Bay Critical Area Commission Criteria under COMAR 27.01 or any locally adopted Critical Area Plan.

C. Basic Design Criteria.

  (1) As required by Regulation .09 of this chapter, the CFOP shall clearly define:

    (a) The locations at the composting facility to be used for feedstock receiving and storage, active composting, curing, and compost storage; and

    (b) The maximum throughput and capacity of the composting facility.

  (2) No material shall be stored in excess of the capacity specified in the CFOP.

  (3) The composting facility shall be of sufficient size to allow processing of materials as necessary to avoid nuisance conditions and shall have adequate space for material stockpiles, windrows, or piles of manageable dimensions for maintaining aerobic conditions, curing piles, staging of finished compost, and equipment.

  (4) The maximum windrow or pile size and minimum windrow or pile spacing shall match the capability and requirements of the equipment used at the composting facility.

  (5) Access to the composting facility shall be limited to authorized entrances, which shall be secured from public access when the composting facility is not in operation.

  (6) The composting facility shall have a sign at its entrance that lists:

    (a) The name and address of the composting facility;

    (b) Days and hours of operation; and

    (c) Emergency contact information.

  (7) The composting facility shall have all-weather access roads.

  (8) Structures such as berms or ditches shall be used to prevent run-on to the feedstock receiving, feedstock storage, active composting, curing, and compost storage areas.

D. Distance to Groundwater.

  (1) The composting facility shall be constructed and located to comply with the following minimum vertical distances between the seasonal high water table and any surfaces used for feedstock receiving, feedstock storage, active composting, curing, or compost storage:

    (a) For a composting facility located outside the coastal plain province, as shown in COMAR 26.04.02.13, the minimum distance shall be 4 feet; and

    (b) For a composting facility located within the coastal plain province, as shown in COMAR 26.04.02.13, the minimum distance shall be as follows:

      (i) For a composting facility located in an area with an applicable groundwater protection report approved by the county health department under COMAR 26.04.02.04, the minimum distance shall be the distance specified in the report as the minimum soil treatment zone for an on-site sewage disposal system;

      (ii) For a composting facility located in an area where no approved groundwater protection report applies, the minimum distance shall be 4 feet;

      (iii) For a composting facility that will operate under the general Composting Facility Permit, the minimum distance shall be the distance specified in the general permit;

      (iv) The Department may set another distance if necessary to adequately protect groundwater, as determined by the Department and based on factors such as whether the composting facility is located in a wellhead protection area, the permeability of the buffer zone between the surface and groundwater, the proportion of rock in the buffer zone, whether the composting facility is located near a sole source aquifer, and any other relevant hydrogeologic factors; and

      (v) Notwithstanding §D(1)(b)(i)—(iv) of this regulation, the minimum distance shall in no case be less than 2 feet.

  (2) The Department may specify the method to be used for determining the distance to the seasonal high water table.

  (3) The Department may exempt an indoor composting facility from the requirement for distance to the seasonal high water table in §D(1) of this regulation.

E. Pad Requirements.

  (1) Slope of surfaces. All surfaces used for feedstock receiving, feedstock storage, active composting, curing, and compost storage shall be sloped between 1 and 6 percent, as determined by site conditions and as sufficient to prevent ponding, except for areas located indoors, which shall have slope sufficient to prevent ponding and facilitate cleaning.

  (2) Pad Requirements for Tier 1 Facilities. For Tier 1 Facilities, the surfaces used for feedstock receiving, feedstock storage, active composting, curing, and compost storage shall be composed of an all-weather pad.

  (3) Pad Requirements for Tier 2 Small Facilities.

    (a) For Tier 2 Small Facilities, the surfaces used for feedstock receiving, feedstock storage, curing, and compost storage shall be composed of an all-weather pad.

    (b) Surfaces used for active composting shall be composed of:

      (i) An all-weather pad with a 6-inch layer of carbon-rich substrate such as wood chips placed beneath each active composting pile or windrow, above the all-weather pad; or

      (ii) A low-permeability pad constructed in accordance with the requirements for Tier 2 Large Facilities in §E(4)(b) of this regulation, if the requirements for management of contact water in §F(2) or F(3) of this regulation are also met.

    (c) The 6-inch layer of carbon-rich substrate required under §E(3)(b)(i) of this regulation shall be placed under an active composting pile or windrow at the time it is initially formed, but the layer is not required to be replaced each time the pile is turned or consolidated.

  (4) Pad Requirements for Tier 2 Large Facilities.

    (a) For Tier 2 Large Facilities, surfaces used for curing and compost storage shall be composed of an all-weather pad.

    (b) Surfaces used for feedstock receipt, feedstock storage, and active composting shall be constructed of a low-permeability pad that meets the following requirements:

      (i) A pad constructed on the surface of the ground shall have a hydraulic conductivity of 1 x 10-5 cm/sec or less;

      (ii) A pad that is buried shall have a hydraulic conductivity of 1 x 10-6 cm/sec or less;

      (iii) A pad made of asphalt concrete or Portland cement concrete shall be designed to minimize the potential for cracking and allow equipment to operate without damage; and

      (iv) A pad made of compacted clay shall have a minimum thickness of 1 foot and shall be protected from desiccation and installed in a manner such that the integrity of the pad will not be impaired by the operation of heavy equipment used on the pad.

    (c) For Tier 2 Large Facilities in which the active composting piles are covered, the active composting area required to have a low-permeability pad under §E(4)(b) of this regulation is limited to the area directly underneath each covered pile and does not include the aisles between the covered piles.

F. Design Requirements for Management of Stormwater and Contact Water.

  (1) The composting facility shall be designed to manage any stormwater discharges associated with industrial activity, as defined in 40 CFR §122.26(b)(14), in accordance with:

    (a) The NPDES permit issued by the Department;

    (b) State and local stormwater requirements; and

    (c) State and local erosion and sediment control requirements.

  (2) Uncovered Tier 2 Large Facilities.

    (a) This subsection applies to Tier 2 Large Facilities in which the active composting piles are not covered.

    (b) The feedstock receiving, feedstock storage, and active composting areas shall direct contact water to a collection basin, tank, or other containment system before:

      (i) Reuse on feedstock storage or active composting piles in accordance with the CFOP and in a manner that prevents contamination of materials that have met the pathogen reduction requirements in Regulation .09B(10) of this chapter;

      (ii) Transport off site for treatment at a permitted facility; or

      (iii) Discharge under COMAR 26.08.01—.04.

    (c) The collection basin, tank, or other containment system used to collect contact water shall:

      (i) Be sized to handle at least a 24-hour, 25-year storm event;

      (ii) For a basin, have a synthetic or compacted clay liner with a hydraulic conductivity of 1 x 10-7 cm/sec or less;

      (iii) For a liner constructed of compacted clay, have a thickness of at least 1 foot; and

      (iv) For a tank or other containment system, be constructed of impermeable material.

  (3) Covered Tier 2 Large Facilities.

    (a) This subsection applies to Tier 2 Large Facilities in which active composting piles are covered.

    (b) The following are considered contact water at Covered Tier 2 Large Facilities and shall be collected and contained in accordance with the requirements of §F(3)(d) of this regulation:

      (i) Liquid that drains from the bottom of a covered pile; and

      (ii) Runoff from any uncovered feedstock receipt or feedstock storage areas.

    (c) The following are not considered contact water at Covered Tier 2 Large Facilities and are not subject to the collection and containment requirements of §F(3)(d) of this regulation:

      (i) Runoff from active composting areas that has contacted only covered piles, roofs, or empty aisles; and

      (ii) Runoff from any feedstock receipt and feedstock storage areas covered by a roof, if the runoff has contacted only the roof or empty aisles.

    (d) Contact water from Covered Tier 2 Large Facilities shall be collected and contained in a collection basin, tank, or other containment system before:

      (i) Reuse on feedstock storage or active composting piles in accordance with the CFOP and in a manner that prevents contamination of materials that have met the pathogen reduction requirements in Regulation .09B(10) of this chapter;

      (ii) Transport off site for treatment at a permitted facility; or

      (iii) Discharge under to COMAR 26.08.01—.04.

    (e) A collection basin, tank, or other containment system used to collect contact water shall:

      (i) Be sized to contain all contact water generated by the composting facility;

      (ii) For a basin, have a synthetic or compacted clay liner with a hydraulic conductivity of 1 x 10-7 cm/sec or less;

      (iii) For a liner constructed of compacted clay, have a thickness of at least 1 foot; and

      (iv) For a tank or other containment system, be constructed of impermeable material.

G. Monitoring Wells. The Department may require a composting facility to install monitoring wells and conduct groundwater monitoring if:

  (1) The composting facility is located in karst terrain;

  (2) The composting facility is located in a wellhead protection area; or

  (3) The Department otherwise considers monitoring necessary to adequately protect groundwater because of the particular characteristics of the site.

#### Regulation .09 Composting Facility Operating Requirements.

*COMAR 26.04.11.09*

A. This regulation:

  (1) Applies to composting facilities that are required to obtain a Composting Facility Permit under this chapter, and

  (2) Establishes requirements that the composting facility operator shall meet in operating a composting facility.

B. Basic Operating Requirements.

  (1) Composting Facility Operations Plan (CFOP).

    (a) A composting facility shall have and follow a Department-approved CFOP that contains:

      (i) A description of the operational procedures for the composting facility in order to comply with the requirements of this chapter;

      (ii) A description of the methods, equipment, and feedstocks to be used;

      (iii) A description of the movement of materials throughout the composting process, including a description of the locations to be used at the composting facility for receipt, active composting, curing, and storage phases.

      (iv) A maximum capacity and annual throughput for the composting facility;

      (v) A plan to prevent creation of nuisances, including nuisance odors and litter, and to respond to complaints;

      (vi) A plan to prevent harborage and infestation of vectors;

      (vii) A description of methods used to control contact water and stormwater;

      (viii) An emergency preparedness plan for responding to and minimizing the occurrence of fires and releases;

      (ix) A plan and procedure for monitoring temperature of each windrow or pile, including a procedure for demonstrating that the pathogen reduction requirements of §B(10) of this regulation are met;

      (x) A plan and procedure for monitoring moisture during composting;

      (xi) A plan for periodic inspection of the site by the facility operator or personnel, including inspection of the pad and any stormwater and contact water control measures;

      (xii) A plan for periodic cleaning and maintenance;

      (xiii) A description of the methods for handling unacceptable wastes delivered to the composting facility, including how they shall be identified, segregated, and handled before recycling or final disposal;

      (xiv) Employee safety training requirements;

      (xv) A description of procedures for recording and reporting incidents of noncompliance with this chapter;

      (xvi) Methods used to prevent mud, soil, and debris from the composting facility from entering public roadways and a procedure for cleaning roads if necessary;

      (xvii) A plan for disposal of product that does not meet quality or regulatory standards;

      (xviii) For Tier 2 Facilities, a plan for determining whether the product is stable, meets the pathogen reduction requirements of §B(10) of this regulation, and is suitable for placement in the curing or compost storage area; and

      (xix) A listing of the composting facility personnel that hold a composting operator certification issued by the Department of Agriculture under COMAR 15.18.04.03.

    (b) The composting facility operator shall review the CFOP internally at least once per year and update the CFOP when there is a change in Certified Operators, procedures, or feedstocks.

    (c) The composting facility operator shall ensure that a copy of the CFOP is available on site and shall make the CFOP available to the Department upon request.

  (2) The composting facility operator shall complete and document training in the basics of composting facility operations in accordance with COMAR 15.18.04.03.

  (3) The composting facility shall be maintained in a clean and sanitary condition, free of unsecured trash and non-compostable materials at the end of each operating day.

  (4) The composting facility operator shall ensure that a copy of the current Composting Facility Permit is on site at all times.

  (5) The composting facility, including the feedstock receipt, feedstock storage, active composting, curing, and compost storage areas, shall be maintained and repaired as needed.

  (6) The composting facility operator shall ensure that the composting facility is in compliance with all local rules, regulations, and ordinances.

  (7) Feedstocks shall be managed in a timeframe that prevents nuisance odors, unauthorized discharge of contact water, fire, and scavenging by vectors.

  (8) Compost may not be stored on site longer than 12 months, unless approved by the Department on a case-specific basis and addressed in the CFOP.

  (9) Non-compostable waste shall be removed or stored in a waste container or containment area, and then disposed at a permitted solid waste facility or recycled:

    (a) Within the timeframe provided in the approved CFOP;

    (b) As required by local regulating authority; and

    (c) Whenever the container is full.

  (10) Pathogen Reduction and Vector Attraction Reduction.

    (a) The material being composted shall undergo the composting Process to Further Reduce Pathogens under 40 CFR Part 503, Appendix B, §(B)(1); and

    (b) A Tier 2 facility shall implement a method to control vector attraction, including:

      (i) The Vector Attraction Reduction method in 40 CFR §503.33(b)(5); or

      (ii) An alternative method specified in the CFOP, which may include a time and temperature combination or other management control.

  (11) Any stormwater discharges associated with industrial activity, as defined in 40 CFR §122.26(b)(14), shall be managed in accordance with:

    (a) A NPDES permit issued by the Department;

    (b) State and local stormwater requirements; and

    (c) State and local erosion and sediment control requirements.

C. Additional Operating Requirements for Tier 2 Small Facilities.

  (1) Type 2 feedstocks with free liquid shall be promptly mixed with drier feedstocks, bulking material, or compost so that the liquid is absorbed and not allowed to flow from the compost piles or windrows.

  (2) By the end of each operating day, Type 2 feedstocks shall be processed into an active composting pile, transferred to leak-proof containment, or mixed with carbon-rich bulking material and covered in a manner that prevents nuisance odors and scavenging by vectors.

  (3) Except for covered piles, a 6-inch layer of compost or carbon-rich material shall be placed over active composting piles by the end of the operating day on which they are formed and again after each time the piles are turned.

D. Additional Operating Requirements for Tier 2 Large Facilities.

  (1) Any Type 2 feedstocks with free liquid shall be mixed with drier feedstocks, bulking material, or compost so that the liquid is promptly absorbed and not allowed to flow from the compost piles or windrows.

  (2) Free liquid that is not absorbed by drier feedstocks is contact water and shall be directed to a containment system and managed in accordance with §D(4) of this regulation.

  (3) By the end of each operating day, Type 2 feedstocks shall be processed into an active composting pile, transferred to leak-proof containment, or mixed with bulking material and covered in a manner that prevents nuisance odors and scavenging by vectors.

  (4) Contact water shall be collected and contained in a collection basin, tank, or other containment system designed in accordance with Regulation .08F of this chapter before:

    (a) Reuse on feedstock storage or active composting piles in accordance with the CFOP and in a manner that prevents contamination of materials that have met the pathogen reduction requirements of §B(10) of this regulation;

    (b) Transport off site for treatment at a permitted facility; or

    (c) Discharge under COMAR 26.08.01—.04.

#### Regulation .10 Application for Individual Permit and Permit Review.

*COMAR 26.04.11.10*

A. Requirements for Application.

  (1) An applicant for an individual Composting Facility Permit shall submit a permit application on a form provided by the Department.

  (2) An applicant for an individual Composting Facility Permit shall also apply for any air quality permits required under COMAR 26.11.02 and any discharge permits required under COMAR 26.04.02.09 and COMAR 26.08.04, including a permit for storm water discharges if required.

  (3) The application for an individual Composting Facility Permit shall include:

    (a) The name and address of the applicant;

    (b) The applicant’s Social Security Number, if the applicant is an individual, or the applicant’s federal tax identification number, if the applicant is not an individual;

    (c) A description of the composting facility for which the permit is requested, including an explanation of how the requirements of this chapter shall be met;

    (d) A listing of all other applicable permits required under local, State, or federal law and regulations, including permit numbers for those currently held;

    (e) A marketing plan and strategy for the compost produced at the composting facility;

    (f) Copies of plans and engineering reports as described in §B of this regulation; and

    (g) A description of any variances for which the applicant is applying at the time of application, in accordance with Regulation .14 of this chapter.

B. Engineering Plans and Specifications.

  (1) The applicant shall submit engineering plans and specifications for the composting facility to the Department as part of the application.

  (2) The information contained in these plans and specifications shall include:

    (a) A map showing the specific location of the composting facility and types of land uses, including any residential areas, schools, or other institutions located within 1/2 mile of the boundaries of the composting facility;

    (b) Drawings of on-site buildings and other composting facility structures, including any pads and contact water or stormwater containment systems, showing the type of construction, layout, and dimensions;

    (c) For facilities with any outdoor operations, including feedstock receipt or curing, a topographic map of the site that identifies slopes greater than 25 percent, floodplains, wetlands, streams, and aquifer recharge areas;

    (d) Drawings showing feedstock receipt and storage, compost storage, equipment storage, curing, and active composting areas;

    (e) A site plan designating the property boundaries, existing and proposed composting facility structures, and roads;

    (f) A descriptive statement of processes and technology to be used;

    (g) The distance to the seasonal high water table, demonstrating compliance with Regulation .08D of this chapter;

    (h) A description of the following:

      (i) Major items of equipment including manufacturer, type, model, capacity, and number of units;

      (ii) Types and anticipated quantities of feedstocks to be accepted and processed daily;

      (iii) Types of feedstocks that are not accepted;

      (iv) Means by which the quantities of materials entering the composting facility, processed at the composting facility, and leaving the composting facility are determined;

      (v) Geographic areas expected to be served by the composting facility;

      (vi) Measures that shall be taken to prevent or control ground or surface water pollution, fires, odors, noise, dust, litter, vectors, and other nuisances;

      (vii) Methods of controlling contact water and stormwater from the composting facility;

      (viii) Soil types and depths at the composting facility site;

      (ix) Employee safety and sanitary facilities including the location of on-site sewage disposal and water supply systems;

      (x) Number and positions of employees; and

      (xi) Hours of operation;

    (i) A copy of the CFOP required under Regulation .09 of this chapter;

    (j) If required, an erosion and sediment control plan that meets the requirements of COMAR 26.17.01 and has been approved by the local soil conservation district or appropriate approving authority;

    (k) A grading permit as required by the local jurisdiction;

    (l) A description of site security and access control; and

    (m) An approved and bonded stormwater management plan, if required by the local jurisdiction.

C. Term of License. A Composting Facility Permit shall be issued for a term of 5 years.

D. The Department shall distribute the applications submitted to the:

  (1) Governing body, the county executive, or both, of a county or municipality in which the activity is proposed;

  (2) Local operating agency responsible for solid waste and recycling management;

  (3) Local health or environmental official;

  (4) Department of Natural Resources;

  (5) Appropriate soil conservation district;

  (6) U.S. Army Corps of Engineers;

  (7) State Highway Administration;

  (8) State Fire Marshal’s Office; and

  (9) Local fire marshal.

E. The Department shall invite each person receiving a copy of the application under §D of this regulation to:

  (1) Inspect the site that is the subject of the application during a joint inspection scheduled by the Department; and

  (2) Submit comments to the Department within 30 calendar days of receipt of the application and supporting information.

F. Public Notice.

  (1) Upon an applicant’s submission of a completed application for an individual Composting Facility Permit, the Department shall publish a notice of the application on the Department’s website, including:

    (a) A statement of the location of the proposed facility and the type and quantity of feedstocks intended to be composted;

    (b) A statement that the Department shall allow 30 calendar days for public comment on the application before issuance of the permit;

    (c) The procedure and deadline for submitting comments on the application; and

    (d) Any other information related to the application that the Department considers relevant.

  (2) The Department shall publish notice of issuance of an individual Composting Facility Permit on the Department’s website.

G. Contested Case Hearing.

  (1) The applicant shall have an opportunity for a hearing on a denial of an individual Composting Facility Permit or any condition of an individual Composting Facility Permit, if the applicant files a written request with the Department within 10 calendar days of receipt of the notice of denial or issuance of the permit with conditions.

  (2) A hearing provided for in this regulation shall be conducted by the Department at a designated time and place in accordance with the provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

H. Permit Modification.

  (1) The Department may modify an individual Composting Facility Permit upon request by the permittee if all the following conditions are met:

    (a) The permittee is in compliance with this chapter and all the conditions of the permit;

    (b) The permittee submits to the Department a modification application, on a form provided by the Department, including:

      (i) A description of the proposed modification and an explanation of why the modification is needed;

      (ii) A revised version of any documentation listed in §B of this regulation that will change as a result of the modification, including a revised CFOP incorporating the proposed modifications; and

      (iii) Any other information requested by the Department to evaluate the proposed modification; and

    (c) The Department determines that the proposed modification is in compliance with this chapter and does not adversely affect the environment or public health.

  (2) An application for a major permit modification shall be subject to the notice and comment opportunities provided in §§D—F of this regulation, except that only provisions of the permit subject to modification shall be open for comment.

  (3) An application for a minor permit modification is not subject to the notice and comment opportunities provided in §§D—F of this regulation.

#### Regulation .11 General Permit to Operate a Composting Facility.

*COMAR 26.04.11.11*

A. Eligibility for the General Composting Facility Permit.

  (1) A person may construct and operate a Tier 1 or Tier 2 Facility under the general Composting Facility Permit issued under §H of this regulation if:

    (a) Either:

      (i) The operator of an existing composting facility for which a timely and complete Existing Facility Notification was filed under Regulation .07 of this chapter submits the documentation required under §§B—D of this regulation not later than January 1, 2017 and receives an acknowledgement from the Department under §G of this regulation; or

      (ii) The operator of a new composting facility submits the documentation required under §§B—D of this regulation and receives an acknowledgement from the Department under §G of this regulation before beginning operations; and

    (b) The composting facility is in compliance with:

      (i) The terms of the general permit; and

      (ii) All requirements of this chapter, without variances.

  (2) If an existing composting facility has not filed a complete and timely Existing Facility Notification under Regulation .07 of this chapter, a person may not operate the existing composting facility under the general Composting Facility Permit until the operator submits the documentation required under §§B—D of this regulation and receives an acknowledgement from the Department under §G of this regulation.

  (3) A proposed Tier 1 or 2 Facility that requests a variance from the requirements in this chapter or that would not comply with the terms of the general permit shall apply for an individual Composting Facility Permit under Regulation .10 of this chapter.

B. A person intending to construct or operate a composting facility under the general permit shall submit to the Department:

  (1) A Notice of Intent (NOI); and

  (2) A copy of the CFOP required by Regulation .09 of this chapter.

C. The NOI shall be signed by a responsible party and shall be sent by certified mail.

D. A person signing an NOI shall certify that the composting facility will operate in compliance with the conditions of the general permit.

E. Becoming a permittee under the general permit obligates the person to comply with the terms and conditions of the general permit.

F. Duration of the Permit. The general Composting Facility Permit shall have a term of 5 years and may be reissued with or without changes at the discretion of the Department.

G. Dates of Coverage Under the Permit.

  (1) Authorization to operate a composting facility under the general Composting Facility Permit is effective on the date the Department acknowledges receipt of a complete NOI and a complete CFOP.

  (2) Authorization under the general Composting Facility Permit ends when the earliest of the following events occurs:

    (a) The permit term expires, unless the permittee submits to the Department a request for continuing coverage under §G(3) of this regulation at least 60 calendar days before the permit expires;

    (b) The permittee permanently ceases operations after notifying the Department under §G(4) of this regulation;

    (c) A change in ownership or control of the composting facility occurs; or

    (d) The Department provides written notice to a permittee of suspension or revocation of the permittee’s coverage under the general Composting Facility Permit, in accordance with Regulation .16A of this chapter.

  (3) Request for Continuing Coverage.

    (a) The request for continuing coverage under §G(2)(a) of this regulation may be fulfilled by submission of a renewal NOI and current CFOP.

    (b) Once a request for continuing coverage has been filed, an expired general permit continues in force and effect until the general permit is reissued and any deadline for opportunity to register under the new permit is reached or the general permit is revoked or withdrawn.

  (4) A permittee who intends to permanently cease operations shall notify the Department of the permittee’s intent to do so and shall comply with the requirements in Regulation .13 of this chapter related to composting facility closure.

H. General Permit—Public Notice, Public Meeting and Issuance.

  (1) Before issuance or reissuance of the general Composting Facility Permit, the Department shall prepare a draft permit.

  (2) The Department shall publish a notice of the draft permit prepared under §H(1) of this regulation on the Department’s website, and include in the notice:

    (a) A copy of the draft permit;

    (b) A statement that the Department shall allow a minimum of 30 calendar days for public comment on the draft permit before the issuance or reissuance of the permit; and

    (c) The procedure and deadline for submitting comments on the draft permit.

  (3) The Department shall schedule a public meeting on the draft general Composting Facility Permit when a written request is made within 20 calendar days of the publication of the notice of draft permit.

  (4) The Department may, at its discretion, hold a public meeting on a draft general Composting Facility Permit if no request for a public meeting is received.

  (5) A public meeting may be cancelled if all persons who made timely written request for the meeting withdraw their requests.

  (6) If a public meeting is scheduled, the Department shall:

    (a) Publish a notice of the public meeting on the Department’s website a minimum of 30 calendar days prior to the meeting; and

    (b) Include in the notice:

      (i) The draft permit; and

      (ii) The date, time, and location of the meeting.

  (7) The Department shall:

    (a) Provide an opportunity at the public meeting for comments concerning the issuance of a general permit; and

    (b) Accept written comments on the proposal to issue a general permit for at least 5 calendar days after a public meeting.

  (8) The Department shall publish notice of issuance or reissuance of the general Composting Facility Permit on the Department’s website.

I. Transfer of Ownership.

  (1) Participation in the general permit:

    (a) Is not transferable; and

    (b) Authorizes only the signatory party to operate the permitted facility.

  (2) If there is a change in control or ownership of the property not caused by death of the permittee, the permittee shall:

    (a) Notify the succeeding owner by certified mail of:

      (i) The existence of the permit; and

      (ii) Any outstanding permit noncompliance; and

    (b) Make the notification required by §I(2)(a) of this regulation a minimum of 60 calendar days before the change in control or ownership; and

  (3) The permittee shall provide the Department with a copy of the notification required in §I(2) of this regulation at the same time that the notification is provided to the succeeding owner.

J. Submission of Revised NOI.

  (1) A permittee that is authorized under the general Composting Facility Permit shall submit a revised NOI a minimum of 60 calendar days before either of the following changes occurs:

    (a) A permitted Tier 1 Facility becomes a Tier 2 Facility by beginning to accept Type 2 feedstocks; or

    (b) A permitted Tier 2 Small Facility becomes a Tier 2 Large Facility by increasing production to greater than 10,000 cubic yards of compost per year.

  (2) The permittee shall submit with the revised NOI an updated CFOP required by Regulation .09B(1) of this chapter incorporating any proposed operational changes to be made in association with one of the events listed in §J(1) of this regulation.

  (3) Upon submission of a revised NOI under §J(1) of this regulation, the permittee shall comply with all requirements of this chapter and of the general Composting Facility Permit applicable to the new facility tier.

K. Contested Case Hearing.

  (1) An applicant shall have the opportunity for a hearing on a denial of authorization to operate under the general Composting Facility Permit, if the applicant files a written request with the Department within 10 calendar days of receipt of a notice of denial.

  (2) A hearing provided for in this regulation shall be conducted by the Department at a designated time and place in accordance with the provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

#### Regulation .12 Recordkeeping and Reporting.

*COMAR 26.04.11.12*

A. This regulation applies to composting facilities required to obtain a Composting Facility Permit.

B. Measurement for Recordkeeping and Reporting.

  (1) For the purpose of the composting facility records required in §C of this regulation, quantities may be measured in either volume or weight.

  (2) For the purpose of the annual report required in §D of this regulation, quantities shall be reported by:

    (a) Weight, for Tier 1 Facilities; and

    (b) Both weight and volume, for Tier 2 Facilities.

  (3) For the purpose of the annual report required in §D of this regulation, a facility may calculate approximate weight or volume using a method for converting volume to weight or weight to volume that is described in its annual report and is reasonably accurate, as determined by the Department.

C. Beginning on the date a composting facility is issued an individual Composting Facility Permit or begins operating under the general Composting Facility Permit, the composting facility shall keep records for a minimum of 5 years from the date of each record, in a form suitable for submission to or inspection by the Department, including:

  (1) Source, type, and quantity of feedstocks received, including the county in which each quantity was generated;

  (2) Quantity and type of feedstocks processed into compost;

  (3) Quantity and classification of compost produced using the product classifications specified by the Department of Agriculture in COMAR 15.18.04.05;

  (4) Quantity and classification of compost distributed;

  (5) Quantity of residues produced and removed from the composting facility;

  (6) The results of any analytical testing required by the Department of Agriculture under COMAR 15.18.04.04—.05 and .11;

  (7) Results of temperature monitoring that demonstrate compliance with the pathogen reduction requirements in Regulation .09B(10) of this chapter; and

  (8) Results of moisture monitoring conducted in accordance with the CFOP required by Regulation .09B(1) of this chapter.

D. Annual Report.

  (1) A composting facility shall submit an annual report on a form provided by the Department.

  (2) The composting facility shall submit the annual report by January 31 of each year for the preceding calendar year’s data.

  (3) The composting facility shall submit all required data on the form provided by the Department, and shall include, at a minimum, the following:

    (a) Quantity and type of feedstocks received during the preceding calendar year, indicating the county in which each quantity of material was generated;

    (b) Quantities of compost and residues produced by composting during the preceding calendar year; and

    (c) Quantities of compost and residues removed from the composting facility during the preceding calendar year.

E. Annual Submission of the CFOP. A composting facility shall submit to the Department a current version of the CFOP, updated in accordance with Regulation .09B(1)(b) of this chapter, by January 31 of each year with the annual report required in §D of this regulation.

F. The Department may impose other recordkeeping and reporting requirements considered necessary.

#### Regulation .13 Closure.

*COMAR 26.04.11.13*

A. A composting facility required to obtain a Composting Facility Permit under this chapter shall submit to the Department a notice of final closure within 270 calendar days after receipt of the final load of feedstocks.

B. Notice of final closure required under §A of this regulation shall include:

  (1) The date of final feedstock receipt; and

  (2) A site closure plan that provides for:

    (a) Management of all feedstock and active, curing, and finished compost and compost-blended products remaining on site;

    (b) Treatment or removal of contact water stored in containment structures or ponds;

    (c) Removal of compost within 12 months from the time it is finished; and

    (d) Removal of all other materials on site, including any solid wastes or feedstocks that are not being composted, within 12 months of receipt of the final load of feedstocks, unless the material is being used as part of site closure as described in the site closure plan.

C. A composting facility, other than one operated on a seasonal basis only, as specified in the CFOP, that does not receive material for 270 calendar days shall be deemed abandoned in violation of this regulation unless properly closed, and its permit shall be suspended.

#### Regulation .14 Variances.

*COMAR 26.04.11.14*

A. A person proposing to construct or currently operating a composting facility may make written application to the Department for a variance from one or more of the provisions in this chapter.

B. The Department shall grant a variance when the design or method of operation proposed in the variance application shows, to the satisfaction of the Department, that the composting facility operations will conserve and protect the public health, natural resources, and environment of the State, prevent nuisances, and control air, water, and land pollution to at least the same extent as would be obtained by compliance with these regulations.

C. A person requesting a variance shall submit the information required by the Department, including:

  (1) The nature and location of the composting facility;

  (2) The reasons the variance is requested, including the economic, technological, or environmental justification; and

  (3) Other relevant information the Department may require in order to make a determination regarding the requested variance.

D. The Department shall make a determination, in writing, to either grant or deny the requested variance. If the variance request is denied, the Department shall inform the applicant in writing of the basis for the denial and the procedures for appeal of the determination.

E. Contested Case Hearing.

  (1) An applicant shall have the opportunity for a hearing on a denial of a variance, if the applicant for the variance files a written request with the Department within 10 calendar days of receipt of the notice of denial.

  (2) A hearing provided for in this regulation shall be conducted by the Department at a designated time and place in accordance with the provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

F. The variance shall become effective when:

  (1) The Department has issued a written determination granting the requested variance;

  (2) The composting facility for which the variance is requested has been issued an individual Composting Facility Permit; and

  (3) The composting facility for which the variance is requested has obtained any other permits or approvals required by State, local, or federal law or regulation.

G. A person operating under or proposing to operate under the general Composting Facility Permit of Regulation .11 of this chapter may not obtain a variance.

H. The Department may rescind a variance if it finds that the facility has violated any of the general restrictions listed in Regulation .04B of this chapter as a result of operating according to the variance or for other good cause.

#### Regulation .15 Pilot and Research Projects.

*COMAR 26.04.11.15*

A. A person may apply for approval to conduct a pilot or research project at a composting facility permitted under this chapter if the project would require the composting facility to temporarily deviate from one or more provisions of this chapter, the general or individual Composting Facility Permit, or the Composting Facility Operations Plan submitted with the NOI or permit application.

B. Activities Eligible for Approval. To be eligible for pilot or research approval the project must be temporary and serve a pilot or research purpose, including to:

  (1) Plan for or assess the feasibility of establishing a Tier 2 Facility by accepting limited quantities of Type 2 feedstocks at a permitted Tier 1 Facility;

  (2) Perform academic research or conduct testing related to composting;

  (3) Address a one-time, seasonal, or temporary need for processing a specific material that the composting facility is not currently authorized to accept; or

  (4) Further any other valid pilot or research purpose, as determined by the Department.

C. Request for Approval.

  (1) A request for approval for a pilot or research project may be made at the time of application for the Composting Facility Permit or at any time during the term of the permit.

  (2) A person requesting pilot or research project approval shall submit the information required by the Department, including:

    (a) A description of the activity to be conducted, including the types and quantities of feedstocks to be used;

    (b) A statement identifying the provisions of this chapter, the Composting Facility Permit, or the CFOP from which the activity would require deviation;

    (c) The purpose of the proposed pilot or research project; and

    (d) The proposed length of time needed to conduct the activity.

D. The Department shall make a determination, in writing, to either grant or deny the requested approval. If the request is denied, the Department shall inform the applicant in writing of the basis for the denial and the procedures for appeal of the determination.

E. The Department may issue approval with conditions, including, but not limited, to additional monitoring, recordkeeping, and reporting requirements.

F. Contested Case Hearing.

  (1) An applicant shall have an opportunity for a hearing on a denial of approval or any condition of approval, if the applicant files a written request with the Department within 10 calendar days of receipt of the notice of denial or approval with conditions.

  (2) A hearing provided for in this regulation shall be conducted by the Department at a designated time and place in accordance with the provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

G. Duration of Approval.

  (1) Approval for pilot or research activities shall be limited in duration, as specified in the approval issued by the Department, with a maximum duration of 1 year.

  (2) The permittee may apply for extension of an approval for subsequent periods with a maximum duration of 1 year each.

  (3) The approval shall become effective when:

    (a) The Department has issued a written determination granting the request for approval;

    (b) The composting facility for which the approval is requested has been issued a Composting Facility Permit or is covered under the general Composting Facility Permit; and

    (c) The composting facility for which the approval is requested has obtained any other permits or approvals required by State, local, or federal law.

H. Effect of Approval.

  (1) The approval operates as a temporary variance from only those provisions of this chapter, the general or individual Composting Facility Permit, or the CFOP that are specified in the approval. The temporary variance does not affect the application of other local, State and federal laws.

  (2) The approval does not otherwise change the effect or term of the Composting Facility Permit.

I. The Department may rescind the approval if it finds that the composting facility has violated any of the general restrictions listed in Regulation .04B of this chapter or for other good cause.

#### Regulation .16 Enforcement.

*COMAR 26.04.11.16*

A. Suspension or Revocation of Permits.

  (1) After written notification and an opportunity to request a hearing by the Department, the Department may suspend, revoke, or modify a Composting Facility Permit or authorization to operate under the general Composting Facility Permit if the Department finds that:

    (a) False or inaccurate information was contained in:

      (i) The Composting Facility Permit application or NOI to operate under the general Composting Facility Permit;

      (ii) The information and forms, including the CFOP, required as part of the Composting Facility Permit application or NOI to operate under the general Composting Facility Permit; or

      (iii) Information required to be submitted to the Department under this chapter or the Composting Facility Permit;

    (b) As part of a regulated activity by a permittee, there is or has been a violation of:

      (i) The Environment Article, Annotated Code of Maryland;

      (ii) Applicable requirements of this chapter;

      (iii) Any condition of the Composting Facility Permit;

      (iv) Any condition of a State or NPDES discharge permit issued under COMAR 26.08.02.09 or COMAR 26.08.04; or

      (v) Any condition of an air quality permit issued under COMAR 26.11.02.

    (c) Substantial deviation from approved plans, specifications, or requirements, including the CFOP, has occurred, as determined by the Department;

    (d) The Department or an authorized representative of the Department has been refused entry to the premises for the purpose of inspecting or sampling to ensure compliance with the terms and conditions of the Composting Facility Permit;

    (e) Conditions exist which are causing or may cause an undue risk to the environment or public health, safety, or welfare as may be determined by the Department;

    (f) The permittee has been negligent or incompetent in operating the composting facility; or

    (g) Any other good cause exists for suspending, revoking, or modifying the Composting Facility permit or authorization under the general Composting Facility Permit.

  (2) Immediate Suspension or Revocation.

    (a) Notwithstanding other provisions of this chapter or the terms and conditions of the Composting Facility Permit, the Department may immediately suspend or revoke a Composting Facility Permit or authorization to operate under the general Composting Facility Permit if the Department determines there is an immediate and substantial threat to the environment, public health, safety, or welfare.

    (b) The Department shall deliver written notice of an immediate suspension or revocation of a Composting Facility Permit or authorization to operate under the general Composting Facility Permit to the permittee, which:

      (i) Informs the permittee of the emergency suspension or revocation;

      (ii) Cites the regulations with which the permittee has failed to comply that are the basis for suspension or revocation;

      (iii) Specifies the corrective action to be taken by the permittee and the time period within which the action shall be taken; and

      (iv) Notifies the permittee of the right to request a hearing.

    (c) The filing of a hearing request does not stay the revocation or suspension.

  (3) An opportunity shall be provided for a hearing if the permittee files a written request with the Department within 10 calendar days of receipt of the notice of suspension, revocation, or modification.

  (4) A hearing provided for in this regulation shall be conducted by the Department at a designated time and place in accordance with the provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

  (5) Actions taken in accordance with this regulation do not preclude the Department from taking other administrative, civil, or criminal action for violations of State law, regulations, or terms and conditions of the Composting Facility Permit.

  (6) Reinstatement of Suspended Permits or Authorization to Operate Under the General Permit. A person whose Composting Facility Permit or authorization to operate under the general Composting Facility Permit has been temporarily suspended may make application at any time for a reinspection for the purpose of reinstatement of the permit or authorization to operate under the general permit. Following receipt of a written request, including a statement signed by the permittee that the deficiencies which caused suspension have been corrected, the Department may make a reinspection. If the permittee is complying with the requirements of the permit and these regulations, the Department may reinstate the permit or authorization to operate under the general permit.

B. Inspections.

  (1) General. The Department may inspect the composting facilities permitted under this chapter, and may make as many additional inspections and reinspections as are necessary for the enforcement of these regulations.

  (2) Right of Entry. A composting facility shall allow an agent of the Department, after presenting proper identification and during normal operating hours of the composting facility, to enter the buildings, structures, and premises owned by a person supplying composting services, and to enter private property for the purpose of collecting samples, records, and information, and taking photographs to ascertain whether the regulations, orders, and permits of the Secretary of the Environment are being obeyed.

### Chapter 12 — On-Site Wastewater Property Transfer Inspection License

**Authority:** Environment Article, §9-217.2, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 adopted as an emergency provision effective August 24, 2022 (49:20 Md. R. 910); emergency provision extended to August 20, 2023 (50:7 Md. R. 297)

**Administrative History:** Regulations .01—.07 adopted effective August 21, 2023 (50:16 Md. R. 728)

**Administrative History:** Regulations .01 — .07 repealed as an emergency provision effective November 25, 2025 (52:26 Md. R. 1306)

### Chapter 13 — Food Residuals — Organics Recycling and Waste Diversion

**Authority:** Environment Article, §§1-101, 9-201, 9-1701, 9-1702, and 9-1724.1, Annotated Code of Maryland

**Administrative History:** Effective date:  December 26, 2022 (49:26 Md. R. 1080)

#### Regulation .01 Purpose.

*COMAR 26.04.13.01*

The purpose of this chapter is to establish certain requirements pertaining to the diversion of food residuals from final disposal in a refuse disposal system pursuant to Environment Article, §9-1724.1, Annotated Code of Maryland, including:

A. Clarifying the types of entities and individuals that meet the definition of “person”, for the purpose of complying with the food residuals diversion requirements;

B. Clarifying the types of materials that meet the definition of “food residuals”;

C. For a person required to divert food residuals from final disposal in a refuse disposal system, establishing:

  (1) The methods for determining the weight of food residuals generated by the person;

  (2) A schedule for complying with the food residuals diversion requirements;

  (3) The documentation to be maintained by a person required to divert food residuals from final disposal in a refuse disposal system; and

  (4) A requirement to submit a certain report annually to counties; and

D. Establishing application and approval procedures for waivers issued to persons otherwise required to divert food residuals from final disposal in a refuse disposal system.

#### Regulation .02 Definitions.

*COMAR 26.04.13.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Anaerobic digestion” means the controlled anaerobic biological decomposition of organic waste material to produce biogas and digestate.

  (2) “Animal mortality” means an animal carcass that is generated:

    (a) At a farm during the normal course of operations;

    (b) At another location and managed by State or local government as part of roadway or other maintenance activities; or

    (c) At a farm or other location and managed under an emergency exemption under COMAR 26.04.11.06.

  (3) “Compostable products” means containers, films, or food service items, such as bowls, plates, cups, or cutlery, composed of materials such as:

    (a) Vegetable matter;

    (b) Paper;

    (c) Cardboard; and

    (d) Compostable plastics that are, within the length of time and process employed at the composting facility at which they are used, capable of biological decomposition to a degree that they result in marketable compost meeting the standards established by the Secretary of Agriculture under Agriculture Article, §6–221, Annotated Code of Maryland.

  (4) “Composting” means the controlled aerobic biological decomposition of organic waste material.

  (5) “Final disposal” means the complete and ultimate disposal of solid waste.

  (6) Food Residuals.

    (a) “Food residuals” means material derived from the processing or discarding of food, including pre- and post-consumer vegetables, fruits, grains, dairy products, and meats.

    (b) “Food residuals” does not include:

      (i) Animal mortalities;

      (ii) Compostable products; or

      (iii) Wastewater that contains material derived from the processing or discarding of food.

  (7) “Generates” means creates material destined for management in a refuse disposal system if not otherwise diverted through reduction or recycling activities.

  (8) Organics Recycling.

    (a) “Organics recycling” means any process in which organic materials are collected, separated, or processed and returned to the marketplace in the form of raw materials or products.

    (b) “Organics recycling” includes anaerobic digestion and composting.

  (9) “Organics recycling facility” means a facility where organics recycling takes place.

  (10) Person.

    (a) “Person” means an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation, or other entity.

    (b) “Person” includes:

      (i) An individual facility owned or operated by a local school system;

      (ii) An individual public primary or secondary school;

      (iii) An individual nonpublic school;

      (iv) A supermarket, convenience store, mini-mart, or similar establishment;

      (v) A business cafeteria, school cafeteria, or institutional cafeteria;

      (vi) A cafeteria operated by or on behalf of the State or a local government;

      (vii) A manufacturer, processor, or similar establishment; and

      (viii) Any other entity listed under §B(10)(a) of this regulation that is not excluded under §B(10)(c) of this regulation.

    (c) “Person” does not include:

      (i) The aggregate of all school buildings and facilities in a local school system; or

      (ii) A restaurant establishment that accommodates the public and is equipped with a dining room with facilities for preparing and serving regular meals.

  (11) Recyclable Materials.

    (a) “Recyclable materials” means those materials that:

      (i) Would otherwise become solid waste for disposal in a refuse disposal system; and

      (ii) May be collected, separated, composted, or processed and returned to the marketplace in the form of raw materials or products.

    (b) “Recyclable materials” does not include incinerator ash.

  (12) “Recycling” means any process in which recyclable materials are collected, separated, or processed and returned to the marketplace in the form of raw materials or products.

  (13) “Refuse disposal system” includes:

    (a) An incinerator;

    (b) A transfer station;

    (c) A landfill system;

    (d) A landfill;

    (e) A solid waste processing facility; and

    (f) Any other solid waste acceptance facility.

#### Regulation .03 Food Residuals Diversion Requirement.

*COMAR 26.04.13.03*

A. General Provisions.

  (1) The Department may inspect a site or business owned or operated by a person suspected or known to be subject to this regulation and Regulation .04 of this chapter in accordance with Environment Article, §1-404(k), Annotated Code of Maryland.

  (2) A person subject to the food residuals diversion requirements under §B of this regulation may not divert food residuals from final disposal in a refuse disposal system in accordance with the regulation in a manner likely to:

    (a) Be conducive to insect and rodent infestation or the harborage of animals;

    (b) Cause nuisance odors or air pollution in violation of Environment Article, Title 2, Annotated Code of Maryland, or involve the construction of a source of air pollution subject to a permit to construct or the operation of a source of air pollution subject to a permit to operate unless permitted by the Department under Environment Article, Title 2, Annotated Code of Maryland;

    (c) Cause a discharge of pollutants to waters of this State unless permitted by the Department under Environment Article, §9-323, Annotated Code of Maryland;

    (d) Impair the quality of the environment; or

    (e) Create other hazards to the public health, safety, welfare, or comfort as may be determined by the Department.

B. Food Residuals Diversion Mandate.

  (1) Except as provided in a waiver issued by the Department under Regulation .04 of this chapter, a person shall divert their food residuals from final disposal in a refuse disposal system in accordance with this regulation if the person meets all of the following criteria:

    (a) The person generates:

      (i) On or after January 1, 2023, at least an average of 2 tons of food residuals each week that they are in operation and generating food residuals; or

      (ii) On or after January 1, 2024, at least an average of 1 ton of food residuals each week that they are in operation and generating food residuals; and

    (b) The person generates the food residuals at a location that is within a 30-mile radius of an organics recycling facility that:

      (i) Has the capacity to accept and process all of the person’s food residuals;

      (ii) Is willing to accept all of the person’s food residuals for recycling; and

      (iii) Is willing to enter into a contract to accept and process the person’s food residuals.

  (2) A person shall begin diverting their food residuals from final disposal in a refuse disposal system not later than 90 days after the person meets the criteria under §B(1) of this regulation.

C. Determining the Weight of Food Residuals Generated. For the purpose of determining if a person meets the food residuals generation thresholds specified under §B(1)(a) of this regulation:

  (1) A person shall calculate the amount of food residuals generated using a methodology provided by the Department and based on one of the following measurements:

    (a) An actual measurement of the weight of food residuals generated;

    (b) If the person does not have an actual measurement of the weight of food residuals generated, an estimate of weight based on volume using a volume-to-weight conversion factor that is acceptable to the Department; or

    (c) If the person does not have an actual measurement of the weight or volume of food residuals generated, an estimate of weight using a conversion factor appropriate for the type of food residuals generator that is acceptable to the Department; or

  (2) A person that owns or operates multiple facilities or buildings located at a single location or campus that have a common system or contract for waste management shall use the aggregate weight of the food residuals generated each week by all the facilities or buildings, calculated using one of the methods specified under §C(1) of this regulation.

D. Methods of Diversion. A person subject to the food residuals diversion requirements under §B of this regulation shall:

  (1) Separate food residuals from other solid wastes and non-compostable materials, including separating food residuals from any film or containers; and

  (2) Divert food residuals from final disposal in a refuse disposal system through any combination of the following methods:

    (a) Reducing the amount of food residuals generated by the person;

    (b) Donating servable food for human consumption, including the donation of food to a nonprofit corporation, organization, or association;

    (c) Managing the food residuals in an organics recycling system installed on-site in accordance with any applicable regulations adopted by the Secretary of the Environment;

    (d) Providing for the collection and transportation of the food residuals for agricultural use, including for use as animal feed; and

    (e) Providing for the collection and transportation of the food residuals for processing in an off-site organics recycling facility.

E. Documentation.

  (1) In order to administer and enforce the food residuals diversion requirements of this regulation, the Department may request that a person subject to the food residuals diversion requirements under §B of this regulation provide documentation of:

    (a) The actual or estimated weight of food residuals generated by the person each week;

    (b) Any correspondence between the person and an organics recycling facility located within a 30-mile radius of the person demonstrating the organics recycling facility’s willingness to accept all of the person’s food residuals or enter into a contract to accept and process all of the person’s food residuals;

    (c) Any correspondence from an organics recycling facility located within a 30-mile radius of the person that the organics recycling facility is unable or unwilling to enter a contract with a person and accept and process all of the person’s food residuals; and

    (d) Any other information the Department deems necessary.

  (2) If the Department requests that a person provide the documentation described under §E(1) of this regulation, the person shall submit the requested documentation to the Department not later than 30 days after the request, unless an alternative deadline is provided by the Department.

#### Regulation .04 Waiver from the Food Residuals Diversion Requirement.

*COMAR 26.04.13.04*

A. The Department may grant a waiver from the requirement to divert food residuals from final disposal in a refuse disposal system under Regulation .03 of this chapter if:

  (1) A person demonstrates, in accordance with §D(2) of this regulation, undue hardship for the following reasons:

    (a) The cost of diverting food residuals from a refuse disposal system is more than 10 percent more expensive than the cost of disposing the food residuals at a refuse disposal system; or

    (b) For other reasonable circumstances as determined by the Department; or

  (2) A person generates food residuals identified by a federal or State agency as having a biosecurity or food safety concern.

B. Waiver Conditions.

  (1) The Department may grant a waiver to a person for a period that is the shorter of the following:

    (a) A period established by the Department not to exceed 12 months;

    (b) If the waiver was granted for an undue hardship as described under §A(1) of this regulation, until an alternate organics recycling facility becomes available that is:

      (i) Located within a 30-mile radius of the person subject to the waiver;

      (ii) Capable of accepting and processing all of the person’s food residuals; and

      (iii) Willing to enter into a contract to accept and process the person’s food residuals; or

    (c) A period that ends upon the date of a notification that the Department had revoked a previously approved waiver.

  (2) There is no limit to the number of times the Department may grant a person a waiver.

C. The application requirements established under §D of this regulation do not apply to a waiver requested by, or granted to, a person that generates food residuals identified by a federal or State agency as having a biosecurity or food safety concern.

D. Application Procedures for Undue Hardship Waiver Requests.

  (1) A person shall submit a written waiver request to the Department electronically, in a format required by the Department.

  (2) A person shall include in a waiver request:

    (a) A description of the basis for the waiver request;

    (b) If the waiver request is based on undue hardship due to diversion costs as described under §A(1)(a) of this regulation:

      (i) A list of all off-site organics recycling facilities located within a 30-mile radius of the person and a quote or other supporting documentation provided by each off-site organics recycling facility on the list detailing the cost to accept and process all of the person’s food residuals;

      (ii) If owned or operated by an entity that is separate from one of the off-site organics recycling facilities described under §D(2)(b)(i) of this regulation, a quote or other supporting documentation provided by one or more recyclable materials haulers detailing the cost to collect and haul the person’s food residuals to an off-site organics recycling facility;

      (iii) A quote or other supporting documentation provided by one or more refuse disposal systems detailing the cost to accept all of the person’s food residuals for final disposal; and

      (iv) If owned or operated by an entity that is separate from the refuse disposal systems described under §D(2)(b)(iii) of this regulation, a quote or other supporting documentation provided by one or more solid waste haulers detailing the cost to collect and haul the food residuals to a refuse disposal system;

    (c) Any other information considered necessary or required by the Department; and

    (d) A certification that the information provided is true and correct to the knowledge of the person signing the waiver request.

  (3) Reapplication for a Waiver.

    (a) A person granted a waiver shall reapply for a waiver:

      (i) At least 60 days before the end of the period for the current waiver term, or whenever an alternate organics recycling facility becomes available that meets the criteria in §B(1)(b) of this regulation, whichever occurs sooner; and

      (ii) In accordance with the application procedures established under §D(1) and (2) of this regulation.

    (b) If the waiver request is based on undue hardship due to diversion costs as described under §A(1)(a) of this regulation, a person shall include in the waiver request up-to-date versions of the documents listed under §D(2)(b) of this regulation, which shall be obtained by the person not earlier than 30 days before the waiver request is submitted to the Department.

E. Conditions for Approval, Denial, or Revocation of a Waiver.

  (1) Notification of the Department’s Decision.

    (a) The Department shall notify a person in writing of the Department’s decision to approve or deny a waiver request or to revoke a waiver previously approved by the Department.

    (b) In a notification that a waiver request has been approved, the Department shall state the term of the waiver period.

  (2) The Department may deny a waiver request or revoke a previously approved waiver if the Department determines:

    (a) A violation of a requirement of this regulation, Regulation .03 of this chapter, or Environment Article, §9-1724.1, Annotated Code of Maryland, has occurred;

    (b) False or inaccurate information or data was provided in an application for a waiver request; or

    (c) Any other good cause exists for denying a waiver request or revoking an approved waiver.

#### Regulation .05 Reporting.

*COMAR 26.04.13.05*

On or before March 1, 2024, and each March 1 thereafter, a person subject to the food residuals diversion requirements under Regulation .03 of this chapter shall submit a report:

A. On the person’s solid waste and recyclable materials management activities during the preceding calendar year to each county where the solid waste and recyclable materials were generated;

B. In a format required by the Department; and

C. That includes all of the following information:

  (1) The total amount, by weight, of solid waste generated;

  (2) The total amount and types, by weight, of recyclable materials generated;

  (3) The total amount, by weight, of solid waste disposed;

  (4) The name and location of each refuse disposal system that accepted the solid waste for disposal;

  (5) The total amount and types, by weight, of recyclable materials diverted from disposal;

  (6) The name and location of each recycling facility that accepted the recyclable materials for recycling; and

  (7) Any other information required by the Department.

### Chapter 14 — Packaging and Paper Products—Producer Responsibility

**Authority:** Environment Article, §§
                9-1702,
                9-1707,
                9-2501—
                9-2512, Annotated Code of Maryland

**Administrative History:** Effective date: May 25, 2026 (53:10 Md. R. 455)

#### Regulation .01 Purpose.

*COMAR 26.04.14.01*

The purpose and scope of this chapter is to establish certain requirements pertaining to producer responsibility plans for producers of covered materials and to establish certain requirements pertaining to the implementation of the program pursuant to Environment Article, §§
                9-2501—
                9-2512, Annotated Code of Maryland, including:

A. Clarifying:

  (1) The types of entities and individuals that meet the definition of producer;

  (2) Covered materials, and exempt and excluded packaging and paper products;

  (3) Covered services and covered entities;

  (4) The timeline for implementation; and

B. Establishing:

  (1) Categories of covered materials for registration;

  (2) Registration requirements for producers and Producer Responsibility Organizations (PRO);

  (3) Minimum requirements for Alternative Collection Programs;

  (4) Record keeping, reporting and production of records for producers and PROs;

  (5) Advisory Council membership and voting requirements.

#### Regulation .02 Definitions.

*COMAR 26.04.14.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Advisory council” means producer responsibility advisory council established to provide advice and make recommendations regarding establishing and implementing a producer responsibility program in the State for covered materials, including advice on drafting, amending, and implementing producer responsibility plans.

  (2) “Alternative Collection Program” means the collection of a specific covered material category that is not generally collected through curbside services.

  (3) Beverage Container.

    (a) “Beverage container” means a prepackaged beverage container:

      (i) Made of any material including glass, plastic, metal, paper, or multimaterials;

      (ii) In any form, including a bottle, can, carton, or pouch; and

      (iii) The volume of which is not more than 5 liters.

    (b) “Beverage container” does not include a prepackaged beverage container that is covered under a beverage container deposit program in the State that is legislatively mandated.

  (4) “Bioplastic” means processed starches or other materials that would be considered a plastic-like or organic material that includes but is not limited to polylactic acid (PLA), polyhydroxyalkanoate (PHA), and polyhydroxybutyrate (PHB).

  (5) “Brand owner” means a person that owns or licenses a brand or that otherwise has rights to market a product under the brand whether or not the brand’s trademark is registered.

  (6) Bound Book.

    (a) “Bound book” means printed paper permanently assembled and protected by a cover, such as a hardcover or paperback and affixed using adhesives or thread.

    (b) “Bound book” excludes magazines.

  (7) “Composting” has the meaning stated in
                    Environment Article, §9-1701, Annotated Code of Maryland.

  (8) “Composting facility” has the meaning stated in
                    Environment Article, §9-1701, Annotated Code of Maryland.

  (9) “Compostable” or “compostable products” means packaging or paper products that meet the definition of compostable products as defined in
                    COMAR 26.04.11.02.

  (10) Covered Entity.

    (a) “Covered entity” means a person or location that receives covered services for covered materials in accordance with
                      Environment Article, Title 9, Subtitle 25, Annotated Code of Maryland,

    (b) “Covered entity” includes:

      (i) A single-family residence;

      (ii) A multi-family residence;

      (iii) A public or non-public kindergarten, elementary, or secondary school, and its campus;

      (iv) A childcare center as defined in the
                        Education Article, §9.5-401, Annotated Code of Maryland;

      (v) A public building owned or operated by the state or a local government, including leased and rented properties that a state or local government operates;

      (vi) Parcels of land owned, operated, or leased by the State or a local government including parks, State and local highways, and areas associated with open space for the public as identified in local zoning; and

      (vii) An industrial, commercial, or institutional building that source separates paper products for recycling and those paper products do not meet the definition of packaging.

    (c) “Covered entity” may exclude the portions of a building that are not owned, leased or rented by either the State or a local government, as approved by the Department.

  (11) Covered Materials.

    (a) “Covered materials” means packaging and paper products sold, offered for sale, imported, or distributed in the State.

    (b) “Covered materials” does not include exempt or excluded materials as defined in this chapter.

  (12) “Covered material type” means a singular and specific type of covered material, such as paper, plastic, metal, or glass, that:

    (a) Can be categorized based on distinguishing chemical or physical properties, including properties that allow the material type to be aggregated into a discrete commodity category for purposes of reuse, recycling, or composting; and

    (b) Is based on similar uses in the form of a product or package.

  (13) Covered Services.

    (a) “Covered services” means:

      (i) Collecting, transferring, transporting, sorting, processing (including the cleaning of covered materials to ensure recovery in the form of recycling, reuse, or refill), recovering, preparing, or otherwise managing covered materials for purpose of waste reduction, reuse, recycling or composting; and

      (ii) Public education and outreach activities related to the activities described in
                        §B(13)(a)(i) of this regulation.

    (b) “Covered services” includes:

      (i) Litter cleanups where covered materials are collected, sorted, transported and processed for recycling; and

      (ii) Reuse and refill services.

    (c) “Covered services” does not include disposal of covered materials.

  (14) “De minimi

    (a) Introduced less than one ton of covered material into the State; or

    (b) Earned global gross revenues of less than $2,000,000.

  (15) “Environmental impact” means the impact of a covered material on human health and the environment, beginning with the extraction and processing of the raw materials that compose the covered materials through the manufacturing, distribution, use, recovery for reuse, recycling or composting, and final disposal of the covered material.

  (16) “Exempt material” means a material, or any portion of a material that is:

    (a) Primary packaging for infant formula, as defined in 21 U.S.C. § 321(z);

    (b) Primary packaging for medical food, as defined in 21 U.S.C. § 360ee(b)(3);

    (c) Primary packaging for a fortified oral nutritional supplement, or food which is formulated to be consumed or administered enterally for individuals who are unable to consume nutrition orally, used by individuals who require supplemental or sole source nutrition to meet nutritional or special dietary needs directly related to cancer, kidney disease, diabetes, malnutrition, or failure to thrive conditions, as defined by the International Classification of Diseases, Tenth Revision;

    (d) Primary packaging for a product regulated as a drug or medical device by the U.S. Food and Drug Administration, including associated components and consumable medical equipment;

    (e) Primary packaging for medical equipment or a product used in medical settings that is regulated by the U.S. Food and Drug Administration, including associated components and consumable medical equipment;

    (f) Primary packaging for drugs, biological products, parasiticides, medical devices, or in vitro diagnostics that are used to treat, or that are administered to, animals and are regulated by the U.S. Food and Drug Administration under the federal Food, Drug, and Cosmetic Act or by the U.S. Department of Agriculture under the federal Virus–Serum–Toxin Act;

    (g) Primary packaging for products regulated by the U.S. Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act;

    (h) Primary packaging used to contain liquefied petroleum gas and designed to be refilled;

    (i) Newsprint subject to
                      Environment Article § 9–1707, Annotated Code of Maryland;

    (j) A paper product used for a magazine’s print publication that has a circulation of less than 95,000 and that primarily includes content derived from primary sources related to news and current events;

    (k) Primary packaging used to contain hazardous or flammable products regulated under the 2012 federal Occupational Safety and Health Administration Hazard Communication Standard that prevent the packaging from being waste reduced or made reusable, recyclable, or compostable, as determined by the Department;

    (l) Primary packaging for products subject to the Paint Stewardship Program under Environment Article, Title 9, Subtitle 17, Part V, Annotated Code of Maryland;

    (m) Material that a producer distributes to another producer that meets the definition of packaging, and is subsequently used to contain a product that is distributed to an industrial, commercial, or institutional business or entity, and is not introduced to a person other than the industrial, commercial, or institutional business or entity that first received the product; or

    (n) Packaging used for the long–term protection or storage of a product that has a lifespan of not less than 5 years, as determined by the Department.

  (17) “Individual Producer Responsibility Plan (IPP)” means a plan developed by a producer who chooses to assume responsibility for submitting a Producer Responsibility Plan individually instead of through a Producer Responsibility Organization (PRO).

  (18) “Local government” means:

    (a) A county; or

    (b) A municipality.

  (19) Long-term Packaging.

    (a) “Long-term packaging” means packaging fabricated from paper, plastic, metal, glass, or multimaterial that;

      (i) Has a mechanism to reseal and encase the product and is not designed for single use closure; and

      (ii) The product within the long-term packaging has a lifespan of not less than 5 years as determined by the Department.

    (b) “Long-term packaging” does not mean packaging for consumables, or products that diminish in quantity or degrade with use.

    (c) “Long-term packaging” does not mean packaging that would diminish or degrade within 5 years.

  (20) Multimaterial.

    (a) “Multimaterial” means:

      (i) Objects, processes or systems that incorporate two or more distinct and heterogeneous materials;

      (ii) Materials that are integrated within a single component, allowing for combinations of characteristics within a single part;

      (iii) Multiple layers that are not able to be separated by the consumer or mechanically separated; or

      (iv) Paper products that have integrated non-fiber components including embossed or impregnated materials.

    (b) “Multimaterial” does not mean minor coatings, inks, or adhesives applied for printing, labeling, or surface protection, unless those components materially affect the recyclability or compostability of the product, as determined by the Department.

  (21) Packaging.

    (a) “Packaging” means a material, a substance, or an object that is used to protect, contain, transport, serve, or facilitate the delivery of a product that is sold or supplied with the product to the consumer for personal, noncommercial use and that is sold, offered for sale, imported, or distributed in the State.

    (b) “Packaging” includes:

      (i) Primary, secondary, and tertiary packaging intended for the consumer market;

      (ii) Service packaging designed and intended to be filled at the point of sale, including: carry–out bags; bulk goods bags; take–out and home delivery food service packaging;

      (iii) Beverage containers; and

      (iv) Labels affixed to packaging or products.

    (c) “Packaging” does not include packaging that is sold as a product that is empty at the time of sale.

  (22) Paper Products.

    (a) “Paper products” means products made primarily from wood pulp or other cellulosic fibers.

    (b) “Paper products” includes paper products offered for sale, imported, or distributed in the State and sold or supplied for use within the residential, industrial, commercial, and institutional sectors.

    (c) “Paper products” does not include:

      (i) Bound books;

      (ii) Products that are not accepted by materials recycling facilities or composting facilities because of the unsafe or unsanitary nature of the products; or

      (iii) Paper products that also meet the definition of packaging in this regulation.

  (23) “Person” means an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation, or other entity.

  (24) “Primary packaging” means packaging that is most closely containing the product, including packaging that is most closely containing the food or beverage.

  (25) Producer.

    (a) “Producer” means a person that is responsible for compliance with a producer responsibility plan under
                      Environment Article, Title 9, Subtitle 25, Annotated Code of Maryland, in order of who is first obligated if the material is sold or distributed in the State, as qualified by:

      (i) For packaging, §§B(25)(b), (c), (d), and (g) of this regulation; and

      (ii) For paper products, §B(25)(e) and (f) of this regulation.

    (b) “Producer” includes, for items sold in or with packaging at a physical retail location in the State:

      (i) The manufacturer of an item that is sold in or with packaging under the brand of the item manufacturer or is sold in packaging without brand identification;

      (ii) If there is no person described in
                        §B(25)(b)(i) of this regulation, the person that is licensed to manufacture and sell or offer for sale to consumers in the State an item with packaging under the brand or trademark of another manufacturer or person;

      (iii) If there is no person described in §§B(25)(b)(i) and (ii) of this regulation, the brand owner of the item;

      (iv) If there is no person described in §§B(25)(b)(i)—(iii) of this regulation within the United States, the person that imports the product into the United States for use in a commercial enterprise that sells, offers for sale, or distributes the item in the State; or

      (v) If there is no person described in §§B(25)(b)(i)—(iv) of this regulation, the person that first distributes the item in or into the State.

    (c) “Producer” includes, for items sold or distributed in packaging in or into the State via e–commerce, remote sale, or online distribution:

      (i) For packaging used directly to protect or contain the item, the producer of the packaging is a producer under
                        §B(25)(a)(i) of this regulation; and

      (ii) For packaging used to ship the item to a consumer, the producer of the packaging is the person that packages the item to be shipped to the consumer.

    (d) “Producer” includes, for packaging that is not described in§§B(25)(b) and (c) of this regulation, the producer of the packaging is the person that first distributes the item in or into the State.

    (e) “Producer” includes, for paper products that are magazines, catalogs, telephone directories, or similar publications, the producer is the publisher.

    (f) “Producer” includes, for a paper product not described in
                      §B(25)(e) of this regulation:

      (i) If the paper product is sold under the manufacturer’s own brand, the producer is the person that manufactures the paper product;

      (ii) If there is no person described in
                        §B(25)(f)(i) of this regulation, the producer is the person that is the owner or licensee of a brand or trademark under which the paper product is used in a commercial enterprise, sold, offered for sale, or distributed in the State, whether or not the trademark is registered in the State;

      (iii) If there is no person described in §§B(25)(f)(i) and (ii) of this regulation, the producer is the brand owner of the paper product; or

      (iv) If there is no person described in §§B(25)(f)(i)—(iii) of this regulation within the United States, the producer is the person that imports the paper product into the United States for use in a commercial enterprise that sells, offers for sale, or distributes the paper product in the State.

    (g) For a producer identified in §§B(25)(b), (c), and (d) of this regulation that is a business operated wholly or in part as a franchise, the producer of the packaging is the franchisor if the franchisor has franchisees that have a commercial presence in the State, including operation in the State.

    (h) “Producer” does not include a State, or federal agency, a political subdivision, or other governmental unit;

    (i) “Producer” does not include a registered 501(c)(3) charitable organization or 501(c)(4) social welfare organization

    (j) “Producer” does not include a “de minimis producer”.

    (k) “Producer” does not include a mill that uses any virgin wood fiber in the products it produces.

    (l) “Producer” does not include a paper mill that produces container board derived from 100 percent postconsumer recycled content and non-postconsumer recycled content;

    (m) “Producer” does not include an entity that owns or operates a restaurant, food cart, or similar establishment that:

      (i) Is headquartered in the State;

      (ii) Primarily sells to members of the public food that is generally intended to be consumed immediately and without the need for further preparation, either on or off the premises; and

      (iii) Is not a producer of food serviceware.

    (n) “Producer” does not include an entity that owns or operates a single retail sales establishment that:

      (i) Has no online sales; and

      (ii) Is not supplied or operated as part of a franchise or a chain;

    (o) “Producer” does not include an entity that:

      (i) Is licensed under Alcoholic Beverages and Cannabis Article, Title 2, Annotated Code of Maryland; and

      (ii) Generated less than $10,000,000 in gross revenue during the immediately preceding calendar year.

    (p) “Producer” does not include a producer under §§B(25) (a)—(g) of this regulation that has executed an agreement with another entity, under which the other entity has agreed to assume responsibility by written certification under a producer responsibility program for any packaging materials attributable to the first entity.

  (26) “Producer Responsibility Organization (PRO)” means a nonprofit organization that is:

    (a) Exempt from taxation under §501(c)(3) of the Internal Revenue Code; and

    (b) Created by a group of producers to implement a producer responsibility plan in accordance with the
                      Environment Article, §9-2505, Annotated Code of Maryland; and

    (c) Approved by the Department to implement an approved Producer Responsibility Plan on behalf of producers of covered materials.

  (27) “Producer Responsibility Plan” means a covered materials producer responsibility plan submitted to the Department by an individual producer through an IPP, or submitted by a PRO as defined in the
                    Environment Article, §9-2505, Annotated Code of Maryland.

  (28) Recycling.

    (a) “Recycling” means the process of collecting, sorting, cleansing, treating, and constituting materials that would otherwise be disposed of and returning them to or maintaining them with the economic mainstream in the form of recovered material for new, reused, or reconstituted products that meet the quality standards necessary to be used in the marketplace.

    (b) “Recycling” does not include:

      (i) Landfilling;

      (ii) Combustion;

      (iii) Incineration;

      (iv) Energy generation;

      (v) Fuel production; or

      (vi) Alternative daily cover or other forms of use or disposal within the footprint of a landfill.

  (29) “Recycled covered material” means covered material that is sent to a responsible end market.

  (30) “Recycling rate” means the amount of recyclable covered material, in aggregate or by individual covered material type, recycled in a calendar year divided by the total amount of recyclable covered materials sold or distributed into the State by the relevant unit of measurement.

  (31) “Refill” means the continued use of a covered material by a consumer through a system that is:

    (a) Intentionally designed and marketed for repeated filling of a covered material to reduce demand for new production of the covered material;

    (b) Supported by adequate logistics and infrastructure to provide convenient access for consumers; and

    (c) Compliant with applicable federal, State, and local statutes, rules, ordinances, and other laws governing health and safety.

  (32) “Responsible end market” means a material market in which the recycling and recovery of materials or the disposal of contaminants is conducted in a way that:

    (a) Benefits the environment; and

    (b) Minimizes risks to public health and worker health and safety.

  (33) “Return rate” means the amount of reusable covered material, in aggregate or by individual covered materials type, collected for reuse by a producer or service provider in a calendar year, divided by the total amount of reusable covered materials sold or distributed into the State by the relevant unit of measurement.

  (34) “Reusable” means being capable of reuse.

  (35) “Reuse” means the return of a covered material to the marketplace and the continued use of the covered material by a producer or service provider when the covered material is:

    (a) Intentionally designed and marketed to be used multiple times for its original intended purpose without a change in form;

    (b) Designed for durability and maintenance to extend its useful life and reduce demand for new production of the covered material;

    (c) Supported by adequate logistics and infrastructure at a retail location, by a service provider, or on behalf of or by a producer, that provides convenient access for consumers; and

    (d) Compliant with applicable federal, State, and local statutes, rules, ordinances, and other laws governing health and safety.

  (36) “Reuse rate” means the share of units of a reusable covered material sold or distributed into the State in a calendar year that are demonstrated and deemed reusable in accordance with an approved producer responsibility plan.

  (37) Service Provider.

    (a) “Service provider” means an entity that provides covered services for covered materials.

    (b) “Service provider” includes:

      (i) A local government that provides, contracts for, or otherwise arranges with another party to provide covered services for covered materials within its jurisdiction regardless of whether the local government provided, contracted for, or otherwise arranged for similar services before the approval of the applicable producer responsibility plan.

      (ii) A private entity that is not contracted with a local government that provides covered services for covered materials, such as through a subscription model.

  (38) “Secondary packaging” means any packaging intended to bundle, sell in bulk, brand, or display the product or that is not primary packaging or tertiary packaging.

  (39) “Small format” means covered materials:

    (a) With two or more sides measuring 2 inches or less; or

    (b) A diameter of 2 inches or less at its widest point.

  (40) “Tertiary packaging” means packaging intended to protect or facilitate the delivery of the product during transportation.

#### Regulation .03 Covered Materials.

*COMAR 26.04.14.03*

A. Covered materials includes all packaging and paper products that meet the definition of covered materials in this chapter.

B. Covered packaging includes:

  (1) Primary, secondary, and tertiary packaging intended for the consumer market except those that are exempt or excluded materials as defined in this chapter;

  (2) Components and elements that are supplemental, auxiliary, or subordinate and integrated into packaging, including:

    (a) Those components and elements that are directly attached to a product; and

      (i) Are part of the packaging design functionally or aesthetically;

      (ii) Facilitate the packaging function; or

      (iii) facilitate the delivery including through identification of the product; and

    (b) Materials used to affix packaging components to one another;

  (3) Service packaging designed and intended to be filled at the point of sale, including:

    (a) Carry-out bags;

    (b) Bulk good bags; and

    (c) Take-out and home delivery food service packaging;

  (4) Any food serviceware not included in
                    §B(3) of this regulation;

  (5) Beverage containers;

  (6) Labels affixed to packaging or products;

  (7) Materials used to fill in space between a product and other packaging components, or between packaging components;

  (8) Packaging that meets the definition of “compostable”, as defined in this chapter, including:

    (a) Packaging that meets labeling requirements in Environment Article, §§
                      9-2102 and
                      9-2104, Annotated Code of Maryland or other standards as approved by the Department; or

    (b) Packaging that is a singular organic material with no processing, additives or changes to molecular structure, demonstrated to the Department and subsequently approved by the Department;

  (9) Multimaterial packaging;

  (10) Packaging for reuse or refill, as defined in this chapter; and

  (11) Packaging that is at any point intended to reach a consumer.

C. Covered paper products include:

  (1) Paper products offered for sale, imported, or distributed in the State and sold or supplied for use within the residential, industrial, commercial, and institutional sectors;

  (2) Multimaterial products that are at least majority paper by volume; and

  (3) Food serviceware that meets the definition of paper product.

#### Regulation .04 Categories of Covered Materials for Registration.

*COMAR 26.04.14.04*

A. Applicability. Covered materials must be identified on the registration form submitted annually by an individual producer or a PRO. All covered materials must be reported under one of the following categories, in sequential order as listed in
                  §B of this regulation. If a material meets the definition of small format, it must be identified in the associated small format category for that material where applicable. If a material is reported into a category marked with a “*”, the covered material must be identified on the registration form.

B. Covered Material Categories.

  (1) Certified Compostable Organics:

    (a) Rigid plastic packaging that meets the compostable labeling requirements enumerated in Environment Article, §§
                      9-2102—
                      9-2104, Annotated Code of Maryland;

    (b) Flexible plastic packaging that meets the compostable labeling requirements enumerated in Environment Article, §§
                      9-2102—
                      9-2104, Annotated Code of Maryland;

    (c) Plastic and Polymer Coated Substrates that meet the compostable labeling requirements enumerated in Environment Article, §§
                      9-2102—
                      9-2104, Annotated Code of Maryland; and

    (d) Paper food service packaging that meets a labeling standard approved by the Department.

  (2) Paper:

    (a) Small format paper;

    (b) Newsprint, including newspaper, that does not meet the definition of “exempt material”, as defined in
                      Environment Article, §9-2501, Annotated Code of Maryland;

    (c) Magazines, catalogs, and directories that do not meet the definition of “exempt material”, as defined in
                      Environment Article, §9-2501, Annotated Code of Maryland;

    (d) Paper for general use;

    (e) *Other printed materials not identified in §B(2)(a)—(d) of this regulation;

    (f) Uncoated corrugated cardboard;

    (g) Coated corrugated cardboard;

    (h) Kraft paper;

    (i) Uncoated paperboard;

    (j) Coated paperboard;

    (k) Molded fiber all forms;

    (l) Aseptic cartons;

    (m) Gable-top cartons;

    (n) *Other paper laminates not identified in §B(2)(a)—(m) of this regulation; and

    (o) *Other paper not identified in §B(2)(a)—(n) of this regulation.

  (3) Small Format Plastic.

  (4) Rigid Plastic:

    (a) Polyethylene terephthalate (PET) or resin identification code (RIC) #1: Non-pigmented or non-colorant-containing bottles, jugs, and jars;

    (b) PET or RIC #1: Pigmented or colorant-containing bottles, jugs, and jars;

    (c) PET or RIC #1: Non-pigmented or non-colorant-containing other rigid containers, cups, lids, plates, trays, and tubs not identified in
                      §B(4)(a) of this regulation;

    (d) PET or RIC #1: Pigmented or colorant-containing other rigid containers, cups, lids, plates, trays, and tubs not identified in
                      §B(4)(b) of this regulation;

    (e) *PET or RIC #1: Other rigid items not identified in §§B(4)(a)—(d) of this regulation;

    (f) High-density polyethylene (HDPE) or RIC #2: non-pigmented or non-colorant-containing bottles, jugs, and jars;

    (g) HDPE or RIC #2: Pigmented or colorant-containing bottles, jugs, and jars;

    (h) HDPE or RIC #2: Pails, buckets, and tubs;

    (i) HDPE or RIC #2: Squeeze tubes;

    (j) *HDPE or RIC #2: Other rigid items not identified in §B(4)(f)—(i) of this regulation;

    (k) Polyvinyl chloride (PVC) or RIC #3: Rigid items;

    (l) Low-density polyethylene (LDPE) or RIC #4: Bottles, jugs, and jars;

    (m) *LDPE or RIC #4: Other rigid items not identified in
                      §B(4)(l) of this regulation;

    (n) Polypropylene (PP) or RIC #5: Bottles, jugs, and jars;

    (o) PP or RIC #5: Other containers, cups, lids, plates, trays, and tubs not identified in
                      §B(4)(n) of this regulation;

    (p) PP or RIC #5: Squeeze tubes;

    (q) *PP or RIC #5: Other rigid items not identified in §B(4)(n) or (o) of this regulation;

    (r) Polystyrene (PS) or RIC #6: Expanded or foamed hinged containers, plates, cups, tubs, trays, and other foamed containers;

    (s) PS or RIC #6: Other expanded or foamed packaging not identified in
                      §B(4)(r) of this regulation;

    (t) PS or RIC #6: Rigid, non-expanded packaging;

    (u) RIC #1 through #7: Nursery Containers;

    (v) Bioplastics that are not labeled as compostable or home compostable, in accordance with
                      Environment Article, §9-2102 or 9-2104, Annotated Code of Maryland; and

    (w) *Mixed rigid plastic or other rigid plastic not identified in §B(4)(a)—(v) of this regulation.

  (5) Flexible Plastic:

    (a) HDPE or RIC #2, or LDPE or RIC #4: Flexible and film items;

    (b) PP or RIC #5: Flexible and film items; and

    (c) *Plastic laminates and other flexible plastic packaging not identified in §B(5)(a) or (b) of this regulation.

  (6) Metal:

    (a) Steel aerosol containers;

    (b) Steel containers not identified in
                      §B(6)(a) of this regulation;

    (c) Other forms of steel not identified in §B(6)(a) or (b) of this regulation;

    (d) Aluminum aerosol containers;

    (e) Aluminum foil and molded containers;

    (f) Aluminum containers not identified in §B(6)(d) or (e) of this regulation;

    (g) Other forms of aluminum not identified in §§B(6)(d) —(f) of this regulation;

    (h) Small format metal;

    (i) Pressurized cylinders that do not meet the definition of “exempt material,” as defined in
                      Environment Article, §9-2501, Annotated Code of Maryland; and

    (j) *Other metal packaging not identified in §§B(6)(a)—(i) of this regulation.

  (7) Glass:

    (a) Non-pigmented or non-colorant-containing glass bottles, jars, and other containers;

    (b) Pigmented or colorant-containing glass bottles, jars, and other containers; and

    (c) *Ceramic, porcelain, acrylic and other glass-like material not identified in §B(7)(a) or (b) of this regulation.

  (8) Wood and Other Organics:

    (a) *Untreated and uncoated wood or other untreated and uncoated organic packaging that is not a plastic or bioplastic and is not identified in
                      §B(1) of this regulation; and

    (b) *Treated or coated wood or other treated or coated organic packaging that is not a plastic or bioplastic and is not identified in
                      §B(1) of this regulation.

#### Regulation .05 Exempt and Excluded Materials.

*COMAR 26.04.14.05*

A. The packaging and paper products identified in §§B and C of this regulation are exempt or excluded in this chapter.

B. Packaging.

  (1) Statutorily-exempt Materials. The following materials are exempt from the definition of a covered material, as specified in
                    Environment Article, §9-2501, Annotated Code of Maryland:

    (a) Primary packaging for infant formula, as defined in 21 U.S.C. § 321(Z);

    (b) Primary packaging for medical food, as defined in 21 U.S.C. § 360EE(B)(3);

    (c) Primary packaging for a fortified oral nutritional supplement, or food which is formulated to be consumed or administered enterally for individuals who are unable to consume nutrition orally, used by individuals who require supplemental or sole source nutrition to meet nutritional or special dietary needs directly related to the following conditions as defined by the International Classification of Diseases, Tenth Revision:

      (i) Cancer;

      (ii) Chronic kidney disease;

      (iii) Diabetes;

      (iv) Malnutrition; or

      (v) Failure to thrive;

    (d) Primary packaging for a product regulated as a drug or medical device by the U.S. Food and Drug Administration, including associated components and consumable medical equipment;

    (e) Primary packaging for medical equipment or a product used in medical settings that is regulated by the U.S. Food and Drug Administration, including associated components and consumable medical equipment;

    (f) Primary packaging for drugs, biological products, parasiticides, medical devices, or in vitro diagnostics that are used to treat, or that are administered to, animals and are regulated by:

      (i) The U.S. Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act; or

      (ii) The U.S. Department of Agriculture under the Federal Virus–Serum–Toxin Act;

    (g) Primary packaging for products regulated by the U.S. Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act;

    (h) Primary packaging used to contain liquefied petroleum gas and designed to be refilled;

    (i) Primary packaging used to contain hazardous or flammable products regulated under the 2012 Federal Occupational Safety and Health Administration Hazard Communication Standard that prevent the packaging from being waste reduced or made reusable, recyclable, or compostable, as determined by the department;

    (j) Primary packaging for products subject to the paint stewardship program under Environment Article, Title 9, Subtitle 17, Part V, Annotated Code of Maryland;

    (k) Material that a producer distributes to another producer that is:

      (i) Subsequently used to contain a product, and the product is distributed to a commercial business or entity; and

      (ii) Packaging material that is not introduced to a person other than the commercial or business entity that first received the product; or

    (l) Primary packaging used for the long–term protection or storage of a product that has a lifespan of not less than 5 years, as determined by the Department;

  (2) Beverage containers covered under a legislatively-mandated beverage container deposit return program in the State; and

  (3) Packaging that is designed to be ingested.

C. Paper Products. The following paper products are exempt from the definition of a covered material:

  (1) Statutorily exempt material including:

    (a) Newsprint subject to
                      Environment Article, §9–1707, Annotated Code of Maryland; and

    (b) A paper product used for a magazine’s print publication that has a circulation of less than 95,000 and that primarily includes content derived from primary sources related to news and current events;

  (2) Bound books as defined in this chapter; and

  (3) Products that are not accepted by materials recycling facilities or composting facilities because of the unsafe or unsanitary nature of the products.

#### Regulation .06 Producers.

*COMAR 26.04.14.06*

A. In this chapter, producers of covered materials are obligated to:

  (1) Pay fees in accordance with this chapter and either:

    (a) Join and provide information required per an approved Producer Responsibility Plan established and maintained by a PRO;

    (b) Have an IPP approved by the Department; or

    (c) Have both an approved IPP by the Department for a specific covered material and join the PRO Producer Responsibility Plan for any other covered materials;

  (2) Register with the Department or their PRO in accordance with this chapter;

  (3) Report to the Department or their PRO as defined in this chapter;

  (4) Retain records in accordance with this chapter; and

  (5) Meet all timeline requirements or be subject to enforcement provisions as defined in this chapter.

B. Notification and Reporting.

  (1) For producers with an IPP on file with the Department, any changes due to either termination, acquisition, or merger, shall  be reported by the producer on letterhead to the Department within 30 days of such activity.

  (2) For producers who are members of a PRO, any changes due to either termination, acquisition or merger, shall be reported by the producer to their PRO as detailed in the approved plan.

  (3) Required reporting shall be provided on a pro-rated basis for the producer if terminated, acquired, or merged under the original producer on file.

C. Restrictions.

#### Regulation .07 Registration Requirements and Associated Fees.

*COMAR 26.04.14.07*

A. Registration Requirements.

  (1) Beginning July 1, 2026, and each year thereafter, by no later than June 30:

    (a) A PRO, as approved by the Department, shall file a registration form with the Department including:

      (i) A list of the producers participating in their PRO;

      (ii) A list of the brands of each producer participating in their PRO;

      (iii) A list of covered materials, by category as described in this chapter, of each producer participating in their PRO, by weight distributed into the State during the previous calendar year;

      (iv) The name, address, contact information of a person responsible for ensuring the PRO’s and member producers’ compliance with
                        Environment Article, §9-2505, Annotated Code of Maryland and this chapter; and

      (v) An annual registration fee described in this regulation; and

    (b) For producers who are seeking to be approved through an IPP and not through a PRO, shall file a registration form with the Department including:

      (i) A list of the brands of the producer;

      (ii) A list of covered materials of the producer, by category as described in this chapter, by weight distributed into the State during the previous calendar year;

      (iii) The name, address, and contact information of a person responsible for ensuring the compliance with the IPP; and

      (iv) An annual registration fee defined in this chapter.

  (2) Producers who are members of and participate in a PRO must annually provide to their PRO by a date identified in their Producer Responsibility Plan or a method approved by the Department:

    (a) A list of brands of the producer;

    (b) A list of covered materials of the producer, by category as described in this chapter, by weight distributed into the State during the previous calendar year;

    (c) Name, address and contact information of a person responsible for compliance for the producer; and

    (d) An annual registration fee defined in this chapter.

B. Registration Form.

  (1) For a PRO, annual registration shall be submitted electronically on a form provided by or approved by the Department, by no later than the date provided in
                    Regulation .10A of this chapter.

  (2) For producers that are participating under an IPP, annual registration shall be submitted electronically on a form provided by or approved by the Department, by no later than the date provided in
                    Regulation .10A of this chapter.

  (3) Registration forms shall include, for the purposes of identification, the information described in
                    §A of this regulation.

  (4) Registration shall also include necessary registration fees as described in this regulation.

  (5) PROs, as approved by the Department, may require additional information of producers to be registered with their organization, to support the requirements in this chapter.

C. Fees Associated with Registration.

  (1) Annual Registration Fees. In an amount sufficient to cover:

    (a) In each year, the cost of record keeping under
                      Environment Article, §9-2505, Annotated Code of Maryland, not to exceed $1,000;

    (b) In each year, the costs of developing and updating the list required under
                      Environment Article § 9-2508, Annotated Code of Maryland;

    (c) As necessary, the costs of developing and implementing regulations in accordance with
                      Environment Article, §9-2511, Annotated Code of Maryland.

      (i) For the fee due on July 1, 2026, the fee shall cover the estimated costs incurred by the Department from June 1, 2025 to June 30, 2026 and the Department's estimated costs for this activity in the State’s fiscal year 2026, and

      (ii) For each subsequent fee, the fee shall cover the anticipated costs as provided by the Department for the upcoming State’s fiscal year.

    (d) In 2028 and each thereafter, the costs of registering service providers under
                      Environment Article, §9-2507, Annotated Code of Maryland.

  (2) Restrictions. Annual registration fees charged by a PRO to their member producers collectively may not, across all member producers, exceed the cost of fees paid by their PRO to the Department for registration as defined in this chapter.

  (3) Fees may not be prorated due to termination, acquisition, or merger.

D. Delayed Registration and Reporting.

  (1) Entities who meet the definition of producer and failed to register according to
                    §A of this regulation may be:

    (a) Provided a letter of corrective action by the Department that describes back payment and penalties for registration and reporting requirements; and

    (b) Subject to penalties and enforcement provisions described in this chapter.

  (2) If a PRO is aware of a producer that is likely subject to these regulations, that has failed to register or report data to the PRO, the PRO shall:

    (a) Make the Department aware in writing of those producers on a quarterly basis;

    (b) Provide to the Department the contact information and missing data or fees the producer has not supplied or paid on a quarterly basis; and

    (c) Make all reasonable attempts to get producers to register and report applicable data.

  (3) The letter of corrective action will provide a date to submit this information to the Department.

#### Regulation .08 Alternative Collection Program.

*COMAR 26.04.14.08*

A. On or after July 1, 2026, a PRO, producer or group of producers may develop and operate an alternative collection program to collect and manage a specific type or types of covered material that is designed for alternative collection that is sold, offered for sale, or distributed for sale in or into the State by the producer or the group of producers.

B. An alternative collection program or programs for a specific type or types of covered materials must be provided under an approved producer responsibility plan.

C. An alternative collection program shall improve and provide a dedicated collection program for the applicable covered material, and may only be established for the purpose of recycling, composting, or reuse.

D. Submittals to the Department for an Alternative Collection Program must also include an amount sufficient to cover any costs associated with analyzing the program by the Department at the time of submission. A prorated amount will be provided to the applicant by the Department.

E. Minimum requirements for Department approval of Alternative Collection Programs include the following:

  (1) Self-certification that the final destination is for recycling and is going to a responsible end market, as defined in this chapter;

  (2) Self-certification shall be reported for the previous calendar year to the Department or a PRO annually;

  (3) Meeting the following convenience standards:

    (a) Provide year-round, convenient, statewide collection opportunities, including at least one drop-off collection site located in each of the 23 counties and Baltimore City;

    (b) At least 50 percent of the weight of the covered material sold or distributed in Maryland in the previous calendar year must be collected and managed according to the requirements of this regulation;

    (c) Geographically, at least 90 percent of the residents of the State shall have a collection site within a 15-mile radius;

    (d) Collection sites that count toward
                      §E(3)(c) of this regulation shall be provided year round; and

    (e) Unless otherwise approved by the Department one additional collection site shall be established for every 50,000 residents; or

    (f) Another convenience standard approved by the Department;

  (4) Compensation shall be provided for alternative collection program siting for any program operations, including training, education and educational materials specific to that site, transportation, equipment, and reporting, with contractual approval between all parties;

  (5) Program coordination shall be provided that includes:

    (a) Education and outreach;

    (b) Signage and messaging;

    (c) Collection;

    (d) Transportation; and

    (e) Reporting;

  (6) A list of collection sites shall be provided that may include special events, private sites, curbside, mail back and backhauling provided to the Department; and

  (7) Other requirements as identified by the Department during review of the alternative collection program application.

F. An Alternative Collection Program shall submit evidence that minimum requirements have been met to the Department concurrently with annual registration.

G. Producers operating an alternative collection system are required to meet all producer requirements not explicitly exempted in this regulation including, but not limited to:

  (1) Joining a PRO and submitting all information required in this chapter for the PRO’s registration, producer responsibility plan, and annual reporting; or

  (2) Registering as an individual producer with the Department, submitting an IPP, and submitting an annual report as required in this chapter.

H. Reduced Fees Associated with Producer Responsibility Program Plans.

  (1) Alternative Collection Programs are eligible for reduced fees associated with producer responsibility plans when they meet the minimum requirements outlined in this regulation.

  (2) After initial approval of reduced fees associated with producer responsibility program plans by the Department, failure to meet any of the requirements will result in a revocation of reduced fees, and the involved producers will be required to pay obligated standard fees. The producers will also be subject to applicable penalties.

  (3) Reduced fees associated with producer responsibility program plans does not allow for reduced registration and applicable oversight fees.

#### Regulation .09 Record Keeping, Reporting, and Production of Records.

*COMAR 26.04.14.09*

A. Producers, PROs, and any person administering an IPP approved by the Department must preserve all books and records in accordance with State and federal laws.

B. All documents and records necessary to ensure compliance must be maintained for a minimum period of 5 years.

C. Availability for Department Review.

  (1) Documents and records must be available within 15 business days or the specified timeline provided by the Department, whichever is later.

  (2) Documents may include records related to the calculation and payment of producer responsibility dues, recycling rates, collection rates, postconsumer recycled content rates, and any other materials necessary for the Department to determine compliance with an approved plan and the requirements of
                    Environment Article, §9-2505, Annotated Code of Maryland.

D. Producers.

  (1) A producer must make available all documents and records related to the calculation and payment of producer responsibility dues, recycling rates, collection rates, postconsumer recycled content rates, and any other materials necessary for the Department to determine compliance.

  (2) A producer that is a member of a PRO must report the data necessary to meet its reporting obligations to the PRO. A producer may use prorated national data if state-specific data is not available or feasible to generate upon approval from the Department.

  (3) A producer who is not a member of a PRO, must report the necessary data described in this chapter, and may use prorated national data if state-specific data is not available or feasible to generate upon approval from the Department.

  (4) Exemptions. Should the producer identify they are exempt or excluded from specific covered materials, they must provide supporting documents and records to explain the exemption to the Department for approval and shall be available to a PRO if approved.

E. Financial Records and Audits.

  (1) The Department may request, at any time, an audit of the financial records of a PRO or a producer that has an approved IPP.

  (2) The producer or a PRO may be evaluated by an independent financial auditor, as designated by the Department, to ensure that the costs of implementing the plan are covered. The PRO or producer, depending on the evaluation assessed, shall provide the Department with at least three bids from independent financial auditors for the Department to choose from.

  (3) Audits will be financed by the producer or PRO based on approval by the Department.

F. Financial, production, or sales data reported to the Department by a producer or PRO shall be kept confidential by the Department and may not be subject to personal inspection nor public information requests. For producers who report financial, production, or sales data to a PRO, those individual data shall be kept confidential and may not be disclosed, except to the Department if requested.

G. Other Reporting Requirements. The Department may impose other reporting requirements considered necessary. These requirements will be provided to the producer or a PRO, and will need to be addressed in any plan revisions or approvals.

#### Regulation .10 Timeline.

*COMAR 26.04.14.10*

A. Annual Registration.

  (1) Beginning July 1, 2026, and each year thereafter, the PRO approved under
                    Environment Article, §9-2502(a), Annotated Code of Maryland shall file a registration form with the Department and pay an annual registration fee, as outlined within this chapter.

  (2) Beginning July 1, 2026, and each year thereafter, producers who do not intend to join an approved PRO shall file a registration form with the Department and pay an annual registration fee, as outlined within this chapter.

B. Beginning October 29, 2028 or by a later date identified by the Department, a producer may not sell, offer for sale, distribute, or import for sale or distribution covered materials for use in the State unless they have a Department approved responsibility plan on file with the Department.

C. By July 1, 2028 or by a later date identified by the Department, producers who do not intend to join a PRO must submit their IPPs to the Department.

#### Regulation .11 Enforcement Provision.

*COMAR 26.04.14.11*

A. The Department may take enforcement action for failure to comply with:

  (1) The requirements of this chapter; or

  (2) Any order issued under
                    Environment Article, §9-2505, Annotated Code of Maryland.

B. Penalties.

  (1) A producer or PRO that violates
                    Environment Article, §9-2505, Annotated Code of Maryland or this chapter is subject to:

    (a) For a first violation, an administrative penalty of $5,000;

    (b) For a second violation, an administrative penalty of $10,000; and

    (c) For a third or subsequent violation, a civil penalty of $20,000.

  (2) A penalty may not be imposed on a producer or PRO under this regulation unless:

    (a) The Department first issues a written notice of violation to the producer or PRO; and

    (b) The violation is not corrected within 60 days after receipt of written notice.

  (3) After the 60-day period specified under B(2) of this regulation, each day that the violation continues is a separate violation.

  (4) Any penalties collected by the Department under this regulation shall be paid into the State Recycling Trust Fund established under
                    Environment Article, §9-1707, Annotated Code of Maryland

#### Regulation .12 Producer Responsibility Advisory Council.

*COMAR 26.04.14.12*

A. In this chapter, the Producer Responsibility Advisory Council (Council) is to provide advice and make recommendations regarding implementation of a producer responsibility program in the State for covered materials.

B. The Council consists of up to no more than 25 and no less than 15 members, representing a broad range of interested stakeholders. The number of members in the Council may change in size provided through approval by the Secretary of the Department with a public notice of 30 days.

C. The Council stakeholders shall include, at a minimum:

  (1) Representatives from the following industries or entities in the State:

    (a) Local government agencies responsible for recycling programs;

    (b) Recyclables and compostable materials collectors from both the public and private sectors;

    (c) Recycling processors from both the public and private sectors;

    (d) Organics recycling processors;

    (e) Producers from the consumer goods sector;

    (f) Retail and small businesses; and

    (g) Material-oriented trade groups;

  (2) Representatives of at least two nonprofit organizations in the State with missions related to reducing waste;

  (3) At least one representative of an environmental advocacy organization;

  (4) At least one representative of an advocacy organization that advocates on behalf of overburdened or underserved communities, as defined in
                    Environment Article, §1–701, Annotated Code of Maryland;

  (5) At least two members of the public who reside in the State;

  (6) A representative of a PRO approved by the Department;

  (7) The Director of the Department’s Land and Materials Administration, or the Director’s designee.

D. Member Service.

  (1) A member is considered an individual person that is selected by the stakeholder to represent their material industry group, materials management group, environmental advocacy group, or a producer responsibility organization. A member of the public is a member that is not a part of any stakeholder group.

  (2) Appointments to the Council are for 4 years, excluding the Department and the PRO unless there are multiple approved PROs in the State.

  (3) If an appointed member vacancy occurs due to a member's resignation, death, or departure from elective office, that vacancy may be filled by a new representative from the same organization, with Department approval. The term of the representative assuming membership fulfills only the remaining term length of the original member appointment.

  (4) Members may be appointed to additional terms at the discretion of the Department.

    (a) The Department may reappoint members to an additional 2-year term.

    (b) Members may not serve a contiguous service of 6 years.

    (c) A vacancy occurring by reason of removal, resignation, death, or departure from elective office shall be filled for the balance of the vacating member's term using the same method by which the original appointment was made.

    (d) If a member departs from the organization in which they represent and if such departure occurs before their term of appointment or reappointment to the Council would otherwise expire, the Department may permit the member to complete the term in another vacant position on the Council, as determined by the Department.

  (5) The Department, after written notice, may terminate the service of a member if, in the judgment of the Department, such removal is in the public interest, or if the member or their organization:

    (a) No longer meets the requirements under which elected or appointed;

    (b) Fails or is unable to participate regularly in committee work; or

    (c) Has violated any State, federal, or local laws or regulations.

E. Participation.

  (1) Members must attend at least 66 percent of regular meetings annually. Any member who does not attend the required number of meetings may be removed from the Council by the Department.

  (2) Members may designate an alternate member-advisor to attend meetings. Alternative member-advisor information shall be provided to the Department 24 hours prior to regular meetings.

  (3) Alternative member-advisors may not attend in place of approved members for more than 33 percent of regular meetings annually.

F. Quorum and Voting Requirements.

  (1) A majority of voting members of the Council must be present to constitute an official meeting of the Council and to establish a quorum to vote. If a majority of voting members are not present, the Council may still convene, but may not establish a quorum for voting.

  (2) Agreement of a majority of voting members of the Council members present at a meeting is required for a formal recommendation made by the Council.

  (3) Differentiation of Votes.

    (a) The three different types of votes are:

      (i) Yay;

      (ii) Nay; or

      (iii) Abstain.

    (b) For an abstaining vote, if the Council member is present at the meeting but does not cast a vote, it is assumed that the members vote is to abstain.

  (4) Stakeholders listed in §§C(6) and (7) of this regulation are non-voting members of the Council.

G. Application and Criteria for Additions to the Council.

  (1) Application for membership to the Council. Applications shall be submitted to the Department for their approval in a form provided by the Department.

  (2) Criteria:

    (a) Must represent a stakeholder sector that is not already represented on the Council and that is impacted by this chapter;

    (b) Increase evenness of representation between material industry groups, materials management groups, environmental advocacy groups, or the general public; or

    (c) Other requirements as determined by the Department.

  (3) Final approvals or additions to the Council will be at the discretion of the Department.

## Subtitle 05 — Board of Well Drillers

### Chapter 01 — General Regulations

**Authority:** Environment Article, §13-101 et seq., Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.12 effective March 19, 1975 (2:6 Md. R. 434)

**Administrative History:** Regulation .01B—D amended effective June 11, 1975 (2:13 Md. R. 929)

**Administrative History:** Regulation .08 adopted effective June 11, 1975 (2:13 Md. R. 929) (Original Regulations .08—.12 renumbered as .09—.13)

**Administrative History:** Regulation .10G adopted effective June 11, 1975 (2:13 Md. R. 929)

**Administrative History:** Annotation: This chapter was transferred from COMAR 08.12.01 pursuant to Executive Order 01.01.1980.04, effective July 1, 1980 (7:13 Md. R. 1277)

**Administrative History:** Chapter repealed effective December 20, 1982 (9:25 Md. R. 2485)

**Administrative History:** Regulations .01—.21 adopted effective December 20, 1982 (9:25 Md. R. 2485)

**Administrative History:** Regulations .01C-1 and .10-1 adopted, and .02A and .10B amended effective June 6, 1983 (10:11 Md. R. 975)

**Administrative History:** Regulation .01C-1—U recodified to .01D—V

**Administrative History:** Regulation .10A amended effective March 10, 1986 (13:5 Md. R. 546)

**Administrative History:** Regulations .10C-1—.21 recodified to .11—.22

**Administrative History:** Regulation .12 adopted effective March 10, 1986 (13:5 Md. R. 546)

**Administrative History:** Chapter recodified from COMAR 10.49.01 to COMAR 26.05.01

**Administrative History:** Regulations .01—.22 repealed effective December 24, 1990 (17:25 Md. R. 2910)

**Administrative History:** Regulations .01—.10 adopted effective December 24, 1990 (17:25 Md. R. 2910)

#### Regulation .01 Definitions.

*COMAR 26.05.01.01*

A. For the purpose of this subtitle, the following definitions apply.

B. Terms Defined.

  (1) “Apprentice” means a person licensed by the Board to work under the direction and control of a principal licensee for the specific purpose of training to practice well drilling.

  (2) “Approved training” means courses of study or programs of instruction in the practice of well drilling and related subjects that are approved by the Board in accordance with the requirements of this subtitle.

  (3) “Board” means the State Board of Well Drillers.

  (4) “Clock hour” or “credit hour” means the amount of time, usually 1 hour per 50 minutes of instruction, that is accredited by the Board or the institution sponsoring the approved training.

  (5) “General” means that category of well driller license which authorizes the practice of well drilling in all categories of the well driller license.

  (6) “Geotechnical” means that category of well driller license which authorizes the practice of well drilling, limited to wells constructed for the purpose of sampling, measuring, or test pumping for scientific, engineering, or regulatory purposes, including wells constructed specifically for the removal of contaminants from an aquifer, but excluding water supply test wells.

  (7) “Gross negligence” means an action or inaction by a licensee or an applicant for a license that is significantly deficient from the action or inaction expected by the profession or that category of the profession in the same circumstances. Gross negligence is determined by the Board on a case-by-case basis.

  (8) “Helper” means a person who assists a licensee, but does not practice well drilling.

  (9) “Inactive status” means the status assigned to a license by the Board to indicate that the licensee may not practice well drilling until the licensee has met the requirements of COMAR 26.05.02.06D(2).

  (10) “Incompetency” means an action or inaction by a licensee or an applicant for a license which demonstrates a general lack of knowledge or ability to practice well drilling in the class and category for which the person is licensed. Incompetency is determined by the Board on a case-by-case basis.

  (11) “Journeyman well driller” means a person licensed by the Board to practice well drilling in a particular category under the general supervision of a master well driller of the same category or of the general category.

  (12) “License” means, unless the context requires otherwise, a license issued by the Board under this subtitle to practice well drilling.

  (13) “Licensee” means a person licensed by the Board under this subtitle.

  (14) “License renewal period” means the 24-month period immediately preceding the June 1 expiration date of the license.

  (15) “Master well driller” means a person licensed by the Board to practice well drilling, without restriction, in a particular category.

  (16) “Misconduct” means a willful or intentional action or inaction by a licensee or an applicant for a license that is deficient from the action or inaction expected by the profession or that category of the profession under the same circumstances. Misconduct is determined by the Board on a case-by-case basis.

  (17) “Practice well drilling” includes engaging in any of the following activities for profit:

    (a) Making, altering, repairing, or sealing a well; or

    (b) Installing, altering, repairing, or disconnecting well system equipment.

  (18) “Principal licensee” means a person licensed by the Board as a master well driller, water conditioner installer, or pump installer.

  (19) “Pump”, “water pump”, or “pumping equipment” means equipment or related materials used to withdraw or otherwise obtain water from a well.

  (20) “Repair” means on-site work on an existing well involving redrilling, deepening, changing casing and screen depths, rescreening, chemical cleaning, redeveloping, removing and reinstalling pumps, repairing well system equipment, and related work.

  (21) “Selection” means the actual selection of well system equipment to be installed in or at a particular well.

  (22) “Water conditioner installer” means a person licensed by the Board to practice well drilling, restricted to the selection, installation, and repair of water conditioning equipment.

  (23) “Water conditioning equipment” means equipment or related materials used to change the chemical, physical, or bacteriological characteristics of water obtained from a well.

  (24) “Water pump installer” means a person licensed by the Board to practice well drilling, restricted to the selection, installation, and repair of pumps and related equipment, and the testing for well yield.

  (25) “Water supply” means that category of well driller license which authorizes the practice of well drilling, limited to wells constructed for the purpose of obtaining a water supply, including wells drilled for the purpose of installing a heat pump.

  (26) “Well” means a hole made in the ground to:

    (a) Explore for ground water;

    (b) Obtain or monitor ground water;

    (c) Inject water into any underground formation from which water may be produced; or

    (d) Transfer heat to or from the ground or ground water, if the hole:

      (i) Extends more than 20 feet below the surface of the ground, and

      (ii) Is not a well for obtaining geothermal resources under Natural Resources Article, §8-8A-01, Annotated Code of Maryland.

  (27) “Well rig operator” means a person licensed by the Board to practice well drilling, restricted to the location and excavation of wells, installation of casing, grout, screens, pumps, and development and testing of wells.

  (28) “Well system equipment” means equipment that is necessary to draw or purify water from a well, including casing, grout, screen, water tank, water pump, or water conditioning equipment.

#### Regulation .02 Prohibitions.

*COMAR 26.05.01.02*

A. Except as provided in §B of this regulation, a person may not practice well drilling or represent to the public that the person is authorized to practice well drilling in this State unless that person is licensed by the Board.

B. Exceptions.

  (1) An individual authorized to provide plumbing services as a master plumber in the State may install or repair a water pump, a water tank, or water conditioning equipment without a license from the Board.

  (2) An individual employed by an agency of the federal government or this State may practice well drilling while performing the duties of that employment.

#### Regulation .03 Licensure.

*COMAR 26.05.01.03*

A. An applicant shall be licensed by the Board if the applicant:

  (1) Files an application for a license on the form required by the Board;

  (2) Qualifies for examination for the license sought as provided in Regulation .04, below;

  (3) Has received a passing score or a waiver on the required examination;

  (4) Provides the Board, when applicable, with acceptable evidence that the bonding and liability insurance requirements of COMAR 26.05.02.05 have been or will be satisfied; and

  (5) Pays the required license fee.

B. An applicant who has satisfied all of the requirements of §A of this regulation shall be newly licensed by the Board in the general category of the same class well driller license, if the applicant is licensed in the:

  (1) Geotechnical category of the journeyman or master class well driller license and has passed the examination for the water supply category; or

  (2) Water supply category of the journeyman or master class well driller license and has passed the examination for the geotechnical category.

#### Regulation .04 Qualification for Examination.

*COMAR 26.05.01.04*

A. Experience Required for Initial Licenses. Before an applicant may be examined in a particular class and category of license, the applicant shall have acquired the experience in Column A of this regulation. If the applicant has practiced well drilling in accordance with all laws and regulations in a state that does not have comparable license classes or categories, the applicant shall have acquired the experience listed in Column B of this regulation as established to the satisfaction of the Board.

B. In addition to satisfying the experience requirements of §A, of this regulation, an applicant for licensure in the general or geotechnical category of the journeyman or master class well driller license shall provide to the Board acceptable proof of valid individual certification for hazardous waste or monitoring site operations required by the Occupational Safety and Health Administration.

C. At the discretion of the Board, specific education in hydrogeology, well technology, water pump technology, or water conditioning technology, as appropriate for the class or category, or both, of license applied for, may be substituted for up to 2 years experience.

D. Unlicensed experience in violation of the requirements of the laws or regulations, or both, of any state does not qualify as experience for an examination.

#### Regulation .05 Apprentices and Well Rig Operators — Additional Requirements.

*COMAR 26.05.01.05*

A. An applicant for an apprentice license shall have a sponsor who is licensed by the Board and who meets the qualifications set forth in §B of this regulation.

B. The sponsor of an applicant for an apprenticeship shall:

  (1) Be licensed as a principal licensee in a category of license, the scope of which equals or exceeds that of the apprentice license sought;

  (2) Be actively engaged in the practice of well drilling;

  (3) Agree to supervise the apprentice throughout the term of the apprenticeship;

  (4) Either employ the apprentice that he or she sponsors or work with the apprentice for a common employer; and

  (5) Submit progress reports on a form provided by the Board upon request, but not less frequency than semiannually.

C. Age Requirements. An applicant for an apprentice license shall be at least 18 years old, except for applicants who are 16 or 17 years old and who are:

  (1) Registered by the Bureau of Apprenticeship and Training of the U.S. Department of Labor;

  (2) Registered by the Maryland Apprenticeship and Training Council, Division of Labor and Industry; or

  (3) Employed under a written apprenticeship agreement that has been determined by the U.S. Secretary of Labor and the Maryland Division of Labor and Industry to conform substantially with the federal and State standards.

D. Term of Apprenticeship.

  (1) The maximum term of apprenticeship is 60 months or 10,000 hours of on-the-job training.

  (2) Failure to qualify and become licensed in a license class other than the apprentice class within 6 months after completion of the 5-year term results in:

    (a) For an apprentice pump installer or apprentice water conditioner installer, automatic expiration of the apprentice license; or

    (b) For an apprentice well driller, automatic conversion of the apprentice license to a well rig operator license.

E. Extension of Term. For good cause shown, the Board may extend the term of apprenticeship for up to 6 months or 1,000 hours. An apprentice who wishes to apply for an extension shall do so at least 1 month before the termination of apprenticeship, on a form provided by the Board for that purpose.

F. Loss of sponsorship results in automatic termination of the apprentice license. The Board may, however, approve the transfer of sponsorship to another principal licensee acceptable to the Board.

G. Conditions on Apprentices and Well Rig Operators.

  (1) Except as provided in §G(2), of this regulation, an apprentice or well rig operator may practice well drilling only under the general supervision and responsibility of a principal licensee.

  (2) An apprentice or well rig operator may perform, under the responsibility of a principal licensee, all operations within the scope of the license issued to the apprentice or well rig operator if he or she can maintain contact with the principal licensee by on-site telephone, two-way radio, or radiotelephone.

  (3) As part of the apprenticeship, the Board may require an apprentice to complete certain tasks that are necessary for an apprentice of that category, and may observe the completion of those tasks.

#### Regulation .06 Duration of Licenses.

*COMAR 26.05.01.06*

Except for temporary licenses, all licenses issued by the Board expire on June 1 of each odd-numbered year. Temporary licenses expire as shown on the license. Any change of name, address, or employment from that which appears on the current license of any licensee shall be reported to the Board, in writing, within 30 days of the change, Otherwise the license is void.

#### Regulation .07 Recategorization of Well Driller Licenses.

*COMAR 26.05.01.07*

A. Master Well Drillers.

  (1) A master well driller licensed by the Board on July 1, 1990, may not practice well drilling after June 30, 1993, unless he or she has obtained a new master class license in one of the three categories of well driller licenses.

  (2) The Board may waive any examination requirement under this subtitle for any master well driller licensed by the Board on July 1, 1990 who seeks to obtain a new master class license in one of the three categories of well driller licenses, and who provides to the Board satisfactory evidence that he or she has:

    (a) For the geotechnical category, installed geotechnical wells during the past 7 years and obtained national certification as a monitoring well driller or completed a 40-hour training program dealing with hazardous waste or monitoring site operations required by the Occupational Safety and Health Administration;

    (b) For the water supply category, installed 20 water supply wells during the past 7 years and acquired 10 of 20 hours of continuing education required under COMAR 26.05.03 in water conditioning and water pump technology; or

    (c) For the general category, fulfilled the requirements of §A(2)(a) and (b), of this regulation.

B. Journeyman Well Drillers.

  (1) A journeyman well driller licensed by the Board on July 1, 1990, may not practice well drilling after June 30, 1991, unless he or she has obtained a new journeyman or master class license in one of the three categories of well driller licenses.

  (2) Until July 1, 1991, the Board may waive any examination requirement under this subtitle for any journeyman well driller licensed by the Board on July 1, 1990 who seeks to obtain a new journeyman class license in one of the three categories of well driller licenses, and who provides to the Board satisfactory evidence that he or she has:

    (a) For the geotechnical category, installed geotechnical wells during the past 7 years and obtained national certification as a monitoring well driller or completed a 40-hour training program dealing with hazardous waste or monitoring site operations required by the Occupational Safety and Health Administration;

    (b) For the water supply category, installed 20 water supply wells during the past 7 years and acquired 10 of 20 hours of continuing education required under COMAR 26.05.03 in water conditioning and water pump technology; or

    (c) For the general category, fulfilled the requirements of §B(2)(a) and (b), of this regulation.

C. Apprentice Well Drillers. A person licensed by the Board on July 1, 1990 as an:

  (1) Apprentice class A well driller shall automatically be issued a new apprentice class well driller license;

  (2) Apprentice class B well driller may not practice well drilling after June 30, 1991, unless he or she has obtained a new apprentice class license under this subtitle.

#### Regulation .08 Identification of Licensee.

*COMAR 26.05.01.08*

The Board will provide each licensee with a card that identifies the licensee, the class or category of license, or both, and license number. The licensee shall possess a valid and current card whenever practicing well drilling, and shall exhibit it on demand to authorized officials.

#### Regulation .09 Certain Permits Also Necessary.

*COMAR 26.05.01.09*

A. It is the responsibility of all persons authorized by the Board to practice well drilling to ensure that all required permits and certifications are valid and exist before and during all work performed to construct or modify a well.

B. A license under this chapter does not authorize a licensee to construct any well for which the following permits have not been obtained, if required:

  (1) A permit to drill a well from the Department of the Environment under Environment Article, §9-1306, Annotated Code of Maryland, and COMAR 26.04.04; and

  (2) A water appropriation or use permit from the Department of Natural Resources under Natural Resources Article, §8-802, Annotated Code of Maryland, and COMAR 08.05.02.

#### Regulation .10 Requirement for Show Rooms, Offices, Shops, Vehicles, and Equipment.

*COMAR 26.05.01.10*

A. Each person who represents himself or herself to the public as a person authorized to practice well drilling by advertising, telephone directory listing, business card, stationery, or any other exhibit, shall display the license in a conspicuous place at the licensee's principal place of business.

B. A well drilling rig or service vehicle used in the practice of well drilling by a company that employs one or more licensees shall be marked to display the name of the company, business location, and license number of the principal licensee. Weatherproof decals or magnetic signs meeting these requirements are acceptable, subject to the provisions of §C, of this regulation.

C. The markings in §B, of this regulation, shall be legible and plainly visible on each side of the vehicle or equipment. Letters and numerals shall be at least 1-1/2 inches high and in a color that contrasts with the vehicle or equipment.

### Chapter 02 — Issuance, Renewal, and Reinstatement of Licenses

**Authority:** Environment Article, §§13-101 et seq., and 13-207, Annotated Code of Maryland

**Administrative History:** Effective date: December 24, 1990 (17:25 Md. R. 2910)

**Administrative History:** Regulation .10B amended effective June 20, 1994 (21:12 Md. R. 1063); November 1, 2010 (37:22 Md. R. 1555); August 29, 2016 (43:17 Md. R. 959)

#### Regulation .01 Application Procedure.

*COMAR 26.05.02.01*

A. Form. An application for a license issued by the Board shall be made on the form provided by the Board.

B. Documentation. An applicant for a license may be required to submit directly to the Board whatever evidence the Board deems necessary to establish professional qualifications and experience.

C. Fee.

  (1) The application shall be accompanied by the application fee.

  (2) The application fee is not refundable or transferrable.

D. Notarization. The application form shall be notarized before submission to the Board.

#### Regulation .02 Incomplete Application.

*COMAR 26.05.02.02*

A. An application is not complete until all required application documents, including the fee and supporting documentation, have been received by the Board.

B. The Board's Executive Director may return an application to the applicant with a statement of the reason for rejection if the Executive Director determines that the application does not contain:

  (1) The name, address, and age of the applicant;

  (2) The name and address of the applicant's employer;

  (3) The education and experience qualifications of the applicant;

  (4) Notarization; or

  (5) The application fee.

C. The Board shall withhold final consideration of the application until the application is complete. If all requested supporting documents are not received within 90 days of receipt of the application, the Board shall notify the applicant of the missing documents.

D. Applications for license shall be held for 1 year from the date of initial receipt, after which the application will be terminated and the application fee forfeited.

#### Regulation .03 Action on an Application.

*COMAR 26.05.02.03*

A. Except as provided in Regulation .02, of this chapter, the Board shall review all applications within 60 days of receipt of the completed application.

B. Action on an application includes one of the following:

  (1) Return of the application if the Board determines that it is incomplete;

  (2) Approval of the applicant for examination at the appropriate class or category, or both, as determined by the Board; or

  (3) Denial of the application for a license.

C. Notification. The Board shall give written notification to an applicant of any action taken by the Board on the applicant's application.

D. Denial of Application for License.

  (1) The Board may deny an application if the Board determines that the applicant has:

    (a) Failed to demonstrate that the applicant is eligible for examination under COMAR 26.05.01.04; or

    (b) Committed any act that would be a basis for disciplinary action under COMAR 26.05.04.01.

  (2) The Board shall notify an applicant of the basis for the denial by first-class mail.

E. Reconsideration and Appeal of Application Denial.

  (1) An applicant may appeal the denial of the application under §D, of this regulation, by notifying the Board in writing by certified mail within 30 days of receipt of the Board's decision.

  (2) In the case of a denial under §D(1)(a), of this regulation, an applicant may appeal the denial of the Board in writing by certified mail within 30 days of receipt of the Board's decision by:

    (a) Submitting new or additional evidence to clarify or amplify the applicant's qualifications; or

    (b) Requesting an informal meeting with the Board.

  (3) In the case of a denial under §D(1)(b), of this regulation, the applicant may appeal the denial by requesting a hearing in accordance with the procedures outlined in COMAR 26.05.04.

#### Regulation .04 Examination.

*COMAR 26.05.02.04*

A. The Board shall notify the applicant of the applicant's eligibility to take an examination at least 30 days before the next scheduled examination.

B. An eligible applicant shall sit for the written examination on the date on which the examination is scheduled, unless the applicant has:

  (1) Received the prior approval of the Board to postpone examination of the applicant until a future specified exam date;

  (2) Received the prior approval of the Board to be tested orally in whole or in part upon a showing of the existence of exceptional circumstances, for example, the applicant suffers from dyslexia or other reading disability; or

  (3) Satisfied the requirements for licensure by reciprocity as set forth in Regulation .09 of this chapter.

C. Frequency.

  (1) The Board shall offer a written examination at least three times a year.

  (2) The times and places within the State for the written examination shall be announced by the Board.

D. Location. The written examination shall be given in a convenient location and shall be administered and proctored by a representative of the Board.

E. Purpose. Examinations shall test an applicant's technical knowledge and the applicant's knowledge of applicable Maryland laws and regulations concerning the construction of wells or the installation of well system equipment, or both.

F. Passing Score. An individual shall attain a score of at least 70 percent to pass the Board's examination.

G. Notification.

  (1) The Board, within 45 days after the examination, shall inform the applicant in writing as to whether the applicant has passed the examination.

  (2) Within 90 days of receipt of the notification in §G(1), of this regulation, any applicant who has passed the examination shall satisfy all remaining licensure requirements as set forth in COMAR 26.05.01.03.

H. Reexamination.

  (1) Except as provided in §H(2), of this regulation, an individual who fails the examination or fails to appear for two consecutive examinations may reapply for examination by paying the application fee.

  (2) An individual who fails any Board examination two consecutive times may be required to satisfy any of the following requirements before reexamination:

    (a) Appear in person before the Board; or

    (b) Obtain additional training.

#### Regulation .05 Bond and Liability Insurance Requirements.

*COMAR 26.05.02.05*

A. Amount of Bond and Insurance. Before a person may be licensed by the Board, that person shall demonstrate to the satisfaction of the Board that all practice of well drilling to be done by the person will be covered by a performance bond and contractor's liability insurance as set forth below:

  (1) Master well driller:

    (a) Bond -------------------------------- $5,000 aggregate;

    (b) Liability Insurance:

      (i) Bodily Injury ----------------------- $100,000 each person, $300,000 each occurrence,

      (ii) Property Damage -------------------- $50,000 each occurrence,$50,000 aggregate.

  (2) Journeyman Well Drillers, Well Rig Operators, and Apprentices. Bond and liability insurance is not required. All practice of well drilling done by these licensees shall be covered by the bond of the principal licensee and the liability insurance of the principal licensee or the principal licensee's employer.

  (3) Water pump installers and water conditioner installers:

    (a) Bond -------------------------------- $2,000 aggregate;

    (b) Liability Insurance:

      (i) Bodily Injury ----------------------- $100,000 each person, $300,000 each occurrence,

      (ii) Property Damage -------------------- $50,000 each occurrence, $50,000 aggregate.

B. Form of Bond and Liability Insurance.

  (1) The initial bond shall be completed on a form provided by the Board.

  (2) Before the Board approves the continuance of a bond or contractor's liability insurance, the applicant shall demonstrate that the form of the bond and insurance is acceptable to the Board.

  (3) Subject to approval by the Board, liability insurance may be obtained in the name of the company that employs or will employ licensees on particular jobs.

C. Claims Against Bond. A claim against a bond is made to the corporate issuer of the bond, and not to the Board.

D. Period of Liability. The period of liability of a bond is 2 years after the submission of the last accepted well completion report. If there is an outstanding claim, the bond may not be released until the claim is resolved and the 2-year period has passed.

E. Effect of Cancellation or Other Loss of Bond or Liability Insurance. Subject to the provisions of the Administrative Procedure Act, the Board shall suspend the license of any licensee if the licensee becomes unbonded or uninsured. A licensee who has a bond or liability insurance cancelled or otherwise becomes unbonded or uninsured shall immediately notify the Board of this event. Upon request by the Board, the licensee shall return the suspended license to the Board. A suspended license that is returned to the Board under this section will be reactivated and returned to the licensee only if the licensee demonstrates to the satisfaction of the Board that the bonding and insurance requirements of §A, of this regulation, have been satisfied.

F. Prohibition. A licensee may not practice well drilling or exercise any of the privileges associated with having a license unless the licensee is covered by a valid surety bond and contractor's liability insurance as set forth in §A, of this regulation.

#### Regulation .06 Renewal of Licenses.

*COMAR 26.05.02.06*

A. Renewal.

  (1) A license may be renewed for a 2-year period by the Board if the licensee has:

    (a) Submitted an application for renewal within 60 days before the expiration date of the license;

    (b) Paid the required renewal fee;

    (c) Completed the necessary approved training as required by COMAR 26.05.03 and submitted proof of training; and

    (d) Submitted evidence of bonding and liability insurance as required by Regulation .05 of this chapter.

  (2) Except as provided in §C(1), of this regulation, the Board may deny the application to renew a license if the applicant:

    (a) Has failed to satisfy any of the requirements of §A(1), of this regulation; or

    (b) Is the holder of a temporary license.

B. Notification.

  (1) The Board shall notify the licensee of the need to renew the license not later than 60 days before expiration.

  (2) Failure to notify the licensee does not relieve the licensee of the licensee's obligation to renew the license, nor does it affect the expiration of the license.

C. Late Renewal.

  (1) An applicant may apply for late renewal within 30 days following the expiration date of the license by:

    (a) Submitting a completed renewal application within the 30-day period;

    (b) Satisfying the renewal requirements under §A(1)(b)—(d), of this regulation; and

    (c) Paying the late renewal fee to the Board.

  (2) Failure to comply with the requirements of §C(1), of this regulation, results in the automatic termination of the license. The former licensee shall then comply with the current requirements for either reinstating an expired license or obtaining a new license under this subtitle.

D. Inactive Status.

  (1) A licensee may place or continue his or her license on an inactive status for a 2-year period, if the licensee has:

    (a) Submitted an application for inactive status within 60 days before the expiration date of the license; and

    (b) Paid the required inactive status fee.

  (2) Before the Board reactivates the license of an inactive-status licensee, that licensee shall satisfy the renewal requirements of §A(1)(b)—(d), of this regulation.

#### Regulation .07 Replacement of License.

*COMAR 26.05.02.07*

A licensee may obtain a duplicate license to replace a license that has been lost, destroyed, or mutilated if the licensee:

A. Makes a written, notarized request to the Board, stating the reason for the request; and

B. Pays the license replacement fee to the Board.

#### Regulation .08 Reinstatement of Expired Licenses.

*COMAR 26.05.02.08*

An applicant for reinstatement of a license which has been expired for more than 3 consecutive years is subject to examination before being issued a new license. Otherwise, if a former licensee for any reason applies to the Board for reinstatement, the Board shall reinstate the license if the licensee:

A. Submits an application for reinstatement on the form required by the Board within 3 years after the license expired;

B. Fulfills all renewal requirements in effect at the time of application for reinstatement;

C. Pays all past due or lapsed renewal fees to the Board; and

D. Pays the reinstatement fee to the Board.

#### Regulation .09 Reciprocity.

*COMAR 26.05.02.09*

A. The Board may waive the examination under Regulation .04, of this chapter, for an applicant who:

  (1) Files an application for a license on the form required by the Board;

  (2) Is licensed in an equivalent class or category, or both, of license in a state with which the Board has made a reciprocal agreement as provided in §B, of this regulation;

  (3) Provides adequate evidence that the applicant:

    (a) Meets the experience requirements in COMAR 26.05.01.04,

    (b) Passed an examination, in the licensing state or any other state, that is substantially similar to the Board's examination;

  (4) Has paid the application fee and the licensure fee as specified in Regulation .10, of this chapter; and

  (5) Has provided the Board, when applicable, with acceptable evidence that the bonding and liability insurance requirements have been satisfied.

B. The Board may make a reciprocal agreement with any other state to waive the examination requirement for an applicant who is equivalently licensed in that state, provided that, under the agreement, the other state waives the examination requirement for licensees of this State to a similar extent, and applicants from the reciprocal state satisfy the requirements of §A of this regulation.

#### Regulation .10 Payment of Fees.

*COMAR 26.05.02.10*

A. Payment of all fees under this subtitle shall be in the form of a personal check, cashier's check, or money order made payable to the “Maryland State Board of Well Drillers”.

B. The following fees are established by the Board for items and services provided under this subtitle:

  (1) Application fee $75;

  (2) License fee:

  (3) Late renewal fee	— $200;

  (4) Inactive status fee — $50;

  (5) Reinstatement fee — $400;

  (6) License or card replacement fee — $50;

  (7) Name or address change — No fee;

  (8) Roster — $75.

### Chapter 03 — Approved Training

**Authority:** Environment Article, §13-101 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: December 24, 1990 (17:25 Md. R. 2910)

#### Regulation .01 Scope.

*COMAR 26.05.03.01*

These regulations describe the continuing education requirements for licensees.

#### Regulation .02 General.

*COMAR 26.05.03.02*

A. In order to renew a license, the licensee shall submit to the Board satisfactory proof of the completion during the license renewal period of at least 20 clock or credit hours of approved training. Ten of the 20 credit hours of approved training shall be directly related to the category of the license that the individual holds. Each licensee holding two or more licenses issued by the Board may fulfill the continuing education requirements for renewal of all licenses by obtaining a total of 20 hours of approved training.

B. Exemptions. The requirements of §A, of this regulation, may be waived for any of the following:

  (1) A licensee was issued an initial license during the last 9 months of the license renewal period;

  (2) A licensee holds an apprentice license; or

  (3) Other just cause shown.

#### Regulation .03 Approval of Training.

*COMAR 26.05.03.03*

A. Board-approved training shall be designed to improve, advance, or extend the licensee's professional skill and knowledge relating to the practice of well drilling. Accreditation of continuing education programs by the Board is based solely upon the content of the programs.

B. Board-approved training in the practice of well drilling may consist of participation in any of the following, provided there is satisfactory proof of completion acceptable to the Board:

  (1) College-level or postgraduate course work given by an accredited college or university;

  (2) Courses, seminars, workshops, or lectures;

  (3) Extension studies and correspondence courses;

  (4) In-service training;

  (5) Papers published in professional journals and requiring peer review;

  (6) Instruction of approved training courses; or

  (7) Lectures and scheduled courses at national or regional meetings of the National Water Well Association.

C. Assignment of Credit.

  (1) For courses for which continuing education units (C.E.U.'s) have been assigned, one C.E.U. is equivalent to 10 clock or credit hours of approved training.

  (2) Credits shall be approved in not less than 1/2 hour increments.

  (3) Credits shall be approved on an hour-for-hour basis for attendance at an approved training program.

  (4) Credits are approved on a 2-for-1 hour basis for the instructor of an approved training program.

  (5) One credit hour is approved for each day of attendance at the Annual National Water Well Association Convention.

  (6) One credit hour is approved for each day of attendance at a regional convention sponsored by the National Water Well Association.

  (7) One-half credit hour is approved for attendance at a State association meeting, seminar, or convention.

  (8) Credits are approved on a credit hour-for-credit hour basis for a course, seminar, or workshop approved by the National Water Well Association for continuing education.

D. Procedure for Approval of Courses.

  (1) Courses submitted for Board approval shall be on a form provided by the Board and shall include the following:

    (a) Description of subject matter;

    (b) Length of course or courses, in hours;

    (c) Name of instructor;

    (d) Date;

    (e) Time; and

    (f) Location.

  (2) A change in subject matter, length, or instructor requires resubmittal and approval of the Board.

  (3) Courses conducted by water well-drilling contractors shall have the prior approval of the Board.

E. Recording Credits.

  (1) Approved training obtained within the appropriate license renewal period shall be credited as provided in §C, of this regulation.

  (2) Licensees shall submit a record of attendance for each course on forms provided by the Board.

  (3) The Board may designate an alternative method for recording credits, when appropriate.

  (4) The Board shall maintain a:

    (a) Cumulative record of continuing education credits for each licensee;

    (b) Current list, called the Approved Training Log, of all training approved by the Board.

  (5) The Board shall notify each licensee of accumulated continuing education credits not later than 45 days before the license expiration date. Failure of the Board to provide notification does not relieve the licensee of the obligation to comply with the requirements for license renewal.

#### Regulation .04 Proof of Training.

*COMAR 26.05.03.04*

A. The licensee is responsible for the submission of proof of all approved training to the Board. Inability to substantiate credit hours submitted is grounds for disallowance of the credits in question.

B. Proof of training consists of:

  (1) Official transcripts from the educational institution;

  (2) A certificate or other documentation signed by the instructor or sponsor of the training, attesting to the satisfactory completion of the training; or

  (3) Other documentation determined by the Board to be adequate, in light of the nature of the training, to establish that training was actually received by the applicant.

### Chapter 04 — Basis for Disciplinary Action

**Authority:** Environment Article, §13-101 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: December 24, 1990 (17:25 Md. R. 2910)

#### Regulation .01 Denials, Reprimands, Suspension, and Revocation.

*COMAR 26.05.04.01*

A. Mandatory Action. Subject to the hearing provisions of Environment Article, §13-311, Annotated Code of Maryland, the Board shall suspend or revoke a license if the licensee:

  (1) Fraudulently or deceptively obtains or attempts to obtain a license for the licensee or for another;

  (2) Fraudulently or deceptively uses a license; or

  (3) Is guilty of gross negligence, incompetence, or misconduct while practicing well drilling.

B. Denial. Subject to the hearing provisions of Environment Article, §13-311, Annotated Code of Maryland, the Board may deny a license to any applicant on any of the grounds specified in §A, of this regulation.

C. Discretionary Action. Subject to the hearing provisions of Environment Article, §13-311, Annotated Code of Maryland, the Board may deny a license to any applicant, reprimand a licensee, or suspend or revoke a license if the Board finds that the applicant or licensee has:

  (1) Violated any law, rule, or regulation that applies to practicing well drilling; or

  (2) Been disciplined by a licensing or disciplinary authority of any other state or county, or been convicted or disciplined by a court of any state or county, for an act that would be grounds for disciplinary action under this chapter.

#### Regulation .02 Complaints.

*COMAR 26.05.04.02*

A. A person may file a complaint with the Board alleging that a licensee or an applicant for a license has violated the provisions of this chapter. Complaints should be in writing and state in detail those facts related to the alleged violation. On receipt of a written complaint or on its own motion, the Board shall cause an investigation to be conducted of each allegation of an act prohibited by this chapter to determine whether formal action will be taken against the licensee or applicant. A person who filed a complaint shall be informed of the action taken or to be taken.

B. The Board does not normally investigate complaints or take any action against a licensee or applicant for alleged actions that occurred 3 or more years before the date the complaint is received by the Board. In unusual circumstances, such as in cases involving allegations of fraud, the Board may investigate and take action against a licensee for actions that occurred more than 3 years before a complaint is received by the Board.

#### Regulation .03 Procedures for Disciplinary Action.

*COMAR 26.05.04.03*

A. Right to Hearing.

  (1) Before taking any action pursuant to Regulation .01 of this chapter, the Board shall give the licensee against whom the action is contemplated an opportunity for a hearing before the Board.

  (2) Notice.

    (a) The hearing notice shall be served personally or sent by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, to the last known address of the licensee at least 30 days before the hearing.

    (b) The notice shall:

      (i) State the time, place, and nature of the hearing;

      (ii) State the authority of the agency to hold the hearing;

      (iii) Cite the specific section of each statute and regulation, including a procedural regulation, that is pertinent;

      (iv) State concisely and simply the facts that are asserted, or if the facts cannot be stated in detail when the notice is given, the issues that are involved; and

      (v) State the time, date, and place of any prehearing conference.

    (c) If, after due notice is given pursuant to §A(2)(a), of this regulation, the licensee against whom the action is contemplated fails or refuses to appear, the Board may hear and determine the matter.

B. Prehearing Conference.

  (1) At the discretion of the Board or at the request of a party, the Board may set a prehearing conference to be held at least 1 week in advance of the scheduled hearing.

  (2) At the prehearing conference, the parties shall be prepared to:

    (a) Designate the witness they expect to call;

    (b) Disclose the physical evidence they will present at the hearing;

    (c) Reach agreement on undisputed matters; and

    (d) Discuss settlement possibilities.

C. Hearing Procedures.

  (1) The licensee may be represented by counsel at the hearing.

  (2) Hearings shall be held before a quorum of the Board.

  (3) The chairman, or in the chairman's absence the chairman's designee, shall:

    (a) Conduct the hearing;

    (b) Determine the order in which the case is to be presented;

    (c) Rule on the advisability of evidence;

    (d) Adjourn;

    (e) Recess the hearing from time to time; and

    (f) Call any person to testify as the chairman or any member of the Board deems appropriate.

  (4) Members of the Board may examine any witness.

  (5) The Board's counsel has all the rights as counsel to a party.

  (6) The rules of evidence in all hearings under these regulations are set forth in State Government Article, §10-208 and 10-209, Annotated Code of Maryland.

D. Briefs.

  (1) A party may, and on request of the Board shall, submit briefs of the issues of fact and law involved in the hearing.

  (2) The briefs shall be filed in the form, with the number of copies, and at the time the presiding officer designates.

E. Decision and Order.

  (1) Each decision and order rendered by the Board shall be in writing and accompanied by findings of fact and conclusion of law.

  (2) Findings of fact consist of a concise statement of the conclusion upon each contested issue of fact.

  (3) A copy of the decision and order and accompanying findings and conclusions shall be delivered or mailed promptly to each party or the party's attorney of record.

F. Rehearing.

  (1) A party aggrieved by the decision and order rendered in a particular case may apply for rehearing for good cause shown within 10 days after notification of the decision and order. The determination of whether good cause for a rehearing has been shown is in the Board's sole discretion, subject to the provision of §G, of this regulation.

  (2) Unless otherwise ordered, neither the rehearing nor the application for rehearing stay the enforcement of the order or excuse the persons affected by it for failure to comply with its terms.

G. Judicial Review. A party aggrieved by the final decision in a contested case, whether the party has applied for a rehearing, is entitled to judicial review in accordance with State Government Article, §10-215, Annotated Code of Maryland.

## Subtitle 06 — Waterworks and Waste Systems Operators

### Chapter 01 — General Regulations

**Authority:** Environment Article, Title 12, Annotated Code of Maryland

**Administrative History:** Effective date: July 1, 1969

**Administrative History:** Amended effective November 10, 1970

**Administrative History:** Regulations .01—.13 repealed effective May 7, 1984 (11:9 Md. R. 795)

**Administrative History:** Regulations .01—.16 adopted effective May 7, 1984 (11:9 Md. R. 795)

**Administrative History:** Regulation .06B amended effective October 6, 1986 (13:20 Md. R. 2211)

**Administrative History:** Tables codified as Regulation .17

**Administrative History:** Chapter recodified from COMAR 10.17.06 to COMAR 26.06.01

**Administrative History:** Regulation .06B amended effective October 16, 1989 (16:20 Md. R. 2184)

**Administrative History:** Chapter revised as an emergency provision effective March 29, 1991 (18:8 Md. R. 861) (Emergency provisions are temporary and not printed in COMAR)

**Administrative History:** Chapter revised effective May 13, 1991 (18:9 Md. R. 1011)

**Administrative History:** Chapter revised effective January 1, 1995 (21:25 Md. R. 2110)

**Administrative History:** Regulation .01B amended effective February 1, 2001 (28:1 Md. R. 27); October 1, 2014 (41:13 Md. R. 753)

**Administrative History:** Regulation .02C amended effective October 1, 2014 (41:13 Md. R. 753)

**Administrative History:** Regulation .02D adopted effective October 1, 2014 (41:13 Md. R. 753)

**Administrative History:** Regulation .03D amended effective February 1, 2001 (28:1 Md. R. 27)

**Administrative History:** Regulation .05B amended effective February 1, 2001 (28:1 Md. R. 27); October 1, 2014 (41:13 Md. R. 753)

**Administrative History:** Regulation .06 amended effective August 25, 1997 (24:17 Md. R. 1218); February 1, 2001 (28:1 Md. R. 27); October 1, 2014 (41:13 Md. R. 753)

**Administrative History:** Regulation .07 amended effective October 1, 2014 (41:13 Md. R. 753); August 29, 2016 (43:17 Md. R. 959)

**Administrative History:** Regulation .07D, E amended effective February 1, 2001 (28:1 Md. R. 27)

**Administrative History:** Regulation .08 amended effective August 25, 1997 (24:17 Md. R. 1218)

**Administrative History:** Regulation .08A amended effective October 1, 2014 (41:13 Md. R. 753)

**Administrative History:** Regulation .08D adopted effective February 1, 2001 (28:1 Md. R. 27)

**Administrative History:** Regulation .09A amended effective October 1, 2014 (41:13 Md. R. 753)

**Administrative History:** Regulation .09C amended effective August 25, 1997 (24:17 Md. R. 1218)

**Administrative History:** Regulation .10A amended effective February 1, 2001 (28:1 Md. R. 27); October 1, 2014 (41:13 Md. R. 753)

**Administrative History:** Regulation .10C amended effective October 1, 2014 (41:13 Md. R. 753)

**Administrative History:** Regulation .12 amended effective February 1, 2001 (28:1 Md. R. 27); October 1, 2014 (41:13 Md. R. 753)

**Administrative History:** Regulation .12A amended effective August 25, 1997 (24:17 Md. R. 1218)

**Administrative History:** Regulation .13 amended effective February 1, 2001 (28:1 Md. R. 27)

**Administrative History:** Regulation .13D, F amended effective October 1, 2014 (41:13 Md. R. 753)

**Administrative History:** Regulation .13G amended effective April 10, 2006 (33:7 Md. R. 675)

**Administrative History:** Regulation .16 amended effective August 25, 1997 (24:17 Md. R. 1218); February 1, 2001 (28:1 Md. R. 27); April 10, 2006 (33:7 Md. R. 675); October 1, 2014 (41:13 Md. R. 753)

#### Regulation .01 Definitions.

*COMAR 26.06.01.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Board” means the State Board of Waterworks and Waste Systems Operators.

  (2) “Categorical industrial users” means industrial users subject to pollutant discharge limits promulgated by the Environmental Protection Agency in accordance with §307 of the Clean Water Act that regulates process wastewater.

  (3) Certificate.

    (a) “Certificate” means a certificate of certification as an operator or superintendent, issued by the Board.

    (b) “Certificate” includes:

      (i) An operator certificate, as limited by Regulation .06C of this chapter;

      (ii) A superintendent certificate, as limited by Regulation .06F of this chapter;

      (iii) A temporary certificate, as limited by Regulation .06B of this chapter;

      (iv) A grandparented certificate, as limited by Regulation .06D of this chapter; and

      (v) A certification renewal card.

  (4) “Certified operator” means an operator who has a current operator certificate issued by the Board.

  (5) “Certified superintendent” means a superintendent who has a current superintendent certificate issued by the Board.

  (6) “Department” means the Department of the Environment.

  (7) “Direction” means supervision provided by:

    (a) A certified operator located on-site;

    (b) A set of site-specific standard operating procedures approved by the Maryland Department of the Environment with a certified operator available on call; or

    (c) Direct on-site control.

  (8) “Industrial wastewater works” means a facility used to collect, store, pump, treat, or discharge any waste substance that results from:

    (a) A manufacturing process;

    (b) A business process; or

    (c) The development of natural resources.

  (9) Operator.

    (a) “Operator” means an individual who participates in the operation of:

      (i) A waterworks, including the control of the flow, processing, or distribution of water;

      (ii) A wastewater works, including the collection, control of flow, processing, or discharge of wastewater and effluent; or

      (iii) An industrial wastewater works, including collection, control of flow, processing, or discharge of industrial wastewater and effluent.

    (b) “Operator” does not include a superintendent.

  (10) “Operator-in-training” means an individual who has not satisfied the experience, education, and examination requirements that are necessary to receive Operator certification from the Board, and holds a temporary certificate from the Board.

  (11) Package Activated Sludge Plant.

    (a) “Package activated sludge plant” means a wastewater treatment plant that is determined by the Department to have the following characteristics:

      (i) Employs an activated sludge process;

      (ii) Its major components are prefabricated at the factory and transported to the site; and

      (iii) It is designed with an emphasis on automated operation to minimize on-site supervision required.

    (b) Package activated sludge plants shall be designated by the Department on a case-by-case basis.

  (12) “Pretreatment plant” means an industrial wastewater works discharging to a wastewater works.

  (13) “Responsible charge” means responsibility for the operation and supervision of all or any part of a waterworks, wastewater works, or industrial wastewater works.

  (14) “Secretary” means the Secretary of the Environment.

  (15) “Significant industrial users” means:

    (a) All categorical industrial users subject to categorical pretreatment standards;

    (b) Noncategorical industrial users with 25,000 gallons per day or more discharge of process wastewater to the publicly owned wastewater treatment plant;

    (c) Noncategorical industrial users which make up 5 percent or more of the dry weather hydraulic or organic capacity of the publicly owned wastewater treatment plant; or

    (d) Any industrial user with a reasonable potential to adversely affect the operation of a publicly owned wastewater treatment plant or violating any pretreatment standard or requirement.

  (16) “Superintendent” means an individual who is designated by any employing or appointing person, county, municipality, sanitary district, or this State as the individual in responsible charge of a waterworks, wastewater works, or industrial wastewater works.

  (17) “Training, Review, and Evaluation Committee” means the committee that is established by the Board to receive, review, and evaluate each application for training approval.

  (18) “Wastewater collection system” means that portion of a wastewater works that collects, stores, or pumps any liquid or waterborne waste.

  (19) “Wastewater treatment plant” means that portion of a wastewater works that receives, treats, and discharges any liquid or waterborne waste.

  (20) Wastewater Works.

    (a) “Wastewater works” means a facility used to collect, store, pump, treat, or discharge any liquid or waterborne waste.

    (b) “Wastewater works” does not include:

      (i) A facility that is used only by a private residence;

      (ii) A facility that uses a septic tank or subsoil absorption; or

      (iii) An industrial wastewater works.

  (21) “Water distribution system” means that portion of the waterworks that receives, stores, pumps, and distributes water for human consumption.

  (22) “Water treatment plant” means that portion of the waterworks that collects and treats water for human consumption.

  (23) “Waterworks” means a facility used to collect, store, pump, treat, or distribute water for human consumption. “Waterworks” does not include a facility that is used only by a private residence.

  (24) “Works” means a specific waterworks, wastewater works, or industrial wastewater works.

#### Regulation .02 Board Organization.

*COMAR 26.06.01.02*

A. Function. The Board, in accordance with these regulations, shall:

  (1) Review and approve all applications for certification and certification renewal;

  (2) Interview applicants for certification in specific cases, when referred by the secretary of the Board;

  (3) Prepare and give examinations to qualified applicants for certification;

  (4) Hear appeals concerning certification requirements;

  (5) Determine the subject, scope, form, and passing score for examinations;

  (6) Investigate all reports of fraud or deception in the obtaining or use of a certificate issued by the Board;

  (7) Investigate all reports of unsatisfactory performance in the operation or supervision of a waterworks, wastewater works, or industrial wastewater works;

  (8) Take disciplinary action, including the reprimand of a certificate holder or suspension or revocation of a certificate; and

  (9) Recommend regulations for promulgation by the Secretary.

B. Meetings. The Board shall meet at least annually, at the times and places that it determines.

C. Communication with the Board. All communications with the Board shall be directed to the secretary of the Board of Waterworks and Waste Systems Operators, 1800 Washington Boulevard, Baltimore, Maryland 21230.

D. Payment of Fee. All fees shall be directed to the Maryland Department of the Environment, Board of Waterworks and Waste Systems Operators, as specified by the Board.

#### Regulation .03 Classification of Facilities.

*COMAR 26.06.01.03*

A. Industrial Wastewater Works.

  (1) Industrial wastewater works are classified into the seven classes set out in Table 1 of Regulation .16 of this chapter.

  (2) Unless the Department determines that a reasonable potential exists to adversely affect the quality of the receiving body of water or the environment, the following categories are not industrial wastewater works as defined in Environment Article, §12-101(h), Annotated Code of Maryland:

    (a) Petroleum storage and distribution facilities;

    (b) Seafood processors;

    (c) Vehicle washing facilities;

    (d) Vehicle maintenance facilities;

    (e) Sand and gravel facilities;

    (f) Stone quarries;

    (g) Industries dechlorinating supply water as their only treatment;

    (h) Industries discharging only stormwater runoff; and

    (i) Industries performing tank or pipe hydrostatic testing.

  (3) The Department may require classification of any individual works within the categories identified under §A(2)(a)—(i) of this regulation.

  (4) Classification of the pretreatment plants will be required only for significant industrial users.

B. Wastewater Treatment Plants. Wastewater treatment plants are classified into the eight classes set out in Table 2 of Regulation .16 of this chapter.

C. Wastewater Collection Systems.

  (1) Wastewater collection systems are classified into the following two classes:

    (a) Class 1—Wastewater collection systems with gravity flow;

    (b) Class 2—Wastewater collection systems with gravity and pumped or vacuum flow.

  (2) A wastewater collection system is not classified as a separate entity if it is under the operation and supervision of certified wastewater treatment plant personnel.

D. Water Treatment Plants. Water treatment plants are classified into the six classes set out in Table 3 of Regulation .16 of this chapter.

E. Water Distribution Systems.

  (1) Water distribution systems are classified as one class, Water Distribution (WD).

  (2) A water distribution system is not classified as a separate entity if it is under the operation and supervision of certified water treatment plant personnel.

#### Regulation .04 Classification, Authority, and Requirements of Operators and Superintendents.

*COMAR 26.06.01.04*

A. Industrial Wastewater Works Operators and Superintendents.

  (1) The classification of industrial wastewater works operators and superintendents is determined by the classification of industrial wastewater works.

  (2) Classification, authority, and certification requirements of the industrial wastewater works operators and superintendents are set out in Table 4 of Regulation .16 of this chapter.

B. Wastewater Treatment Plant Operators and Superintendents.

  (1) The classification of wastewater treatment plant operators and superintendents is determined by the classification of wastewater treatment plants.

  (2) Classification, authority, and requirements of the wastewater treatment plant operators and superintendents are set out in Table 5 of Regulation .16 of this chapter.

C. Wastewater Collection Systems Operators and Superintendents.

  (1) The classification of wastewater collection systems operators and superintendents is determined by the classification of the wastewater collection systems.

  (2) Classification, authority, and requirements of the wastewater collection systems operators and superintendents are set out in Table 6 of Regulation .16 of this chapter.

D. Water Treatment Plant Operators and Superintendents.

  (1) The classification of water treatment plant operators and superintendents is determined by the classification of water treatment plants.

  (2) Classification, authority, and requirements of the water treatment plant operators and superintendents are set out in Table 7 of Regulation .16 of this chapter.

E. Water Distribution Systems Operators and Superintendents.

  (1) Water distribution systems operators and superintendents are classified under one class, Water Distribution (WD).

  (2) Minimum education and experience requirements for water distribution systems operators and superintendents are:

    (a) Successful completion of high school or high school equivalency; and

    (b) One year experience in water distribution.

#### Regulation .05 Certification.

*COMAR 26.06.01.05*

A. General.

  (1) An individual may not practice as an operator or superintendent in a works unless that individual has been certified by the Board in the appropriate classification.

  (2) Unless the Department determines that a reasonable potential exists to adversely affect the quality of the receiving body of water or the environment, operators or superintendents working in the following categories need not be certified under this regulation:

    (a) Petroleum storage and distribution facilities;

    (b) Seafood processors;

    (c) Vehicle washing facilities;

    (d) Vehicle maintenance facilities;

    (e) Sand and gravel facilities;

    (f) Stone quarries;

    (g) Industries dechlorinating supply water as their only treatment;

    (h) Industries discharging only stormwater runoff; and

    (i) Industries performing tank or pipe hydrostatic testing.

  (3) The Department may require certification of operators and superintendents working in the industrial wastewater works of any individual facility within the categories identified under §A(2)(a)—(i) of this regulation.

  (4) Certification of operators and superintendents working in pretreatment plants may be required only for those plants that are significant industrial users.

B. Individuals Who Shall Have an Operator or Grandparented Certificate.

  (1) Wastewater Treatment Plant and Water Treatment Plant. Individuals who are responsible for one or more of the following tasks shall be certified as water treatment plant or wastewater treatment plant operators:

    (a) Makes decisions regarding the control of flow, and processing of raw and treated drinking water, wastewater, or sludge, or makes the adjustments that control flow or processing of raw or treated drinking water, wastewater, or sludge;

    (b) Observes variations in operating conditions, and interprets meter and gauge readings and test results to determine processing requirements for treatment of drinking water, wastewater, or sludge; or

    (c) In the absence of the superintendent or operator in responsible charge, makes operating decisions based on the superintendent's or operator in responsible charge’s directives or on standard operating procedures.

  (2) Wastewater Collection System and Water Distribution System. Individuals who are responsible for one or more of the following tasks shall be certified as wastewater collection system or water distribution system operators:

    (a) Determines remedial action in emergencies;

    (b) In the absence of the superintendent or operator in responsible charge, makes operating decisions based on the superintendent's or operator in responsible charge’s directives or on standard operating procedures; or

    (c) Makes the adjustments that control flow of treated drinking water or wastewater, unless directed by an operator in responsible charge or superintendent who is available on-site when the adjustment is made.

  (3) Industrial Wastewater Works and Pretreatment Plants. An individual who is responsible for one or both of the following tasks shall be certified as an industrial wastewater works operator:

    (a) Makes decisions on operation procedures;

    (b) Trains and directs employees to maintain equipment operating procedures.

C. Individuals Who Shall Have a Superintendent Certificate. Individuals appointed to the following positions by an employing or appointing person, county, municipality, sanitary district, or this State shall be certified as superintendents:

  (1) Superintendent of the works; or

  (2) Assistant superintendent of the works.

D. Employment of Certified Personnel. A person, county, municipality, sanitary district, or this State may not operate a works unless all operators and superintendents as provided in this regulation are certified by the Board.

#### Regulation .06 Types of Certificates and Certification Requirements.

*COMAR 26.06.01.06*

A. The Board shall issue a certificate only for a class of works at which the applicant is employed or is awaiting specific employment. If the applicant is not employed or awaiting specific employment in the class of works under review, the Board may not issue a certificate.

B. Temporary Certificates and Certification.

  (1) The Board shall issue a temporary certificate to an applicant who:

    (a) Is employed by a waterworks, wastewater works, or industrial wastewater works in Maryland, and is awaiting specific assignment to duties in the job functions defined in Regulation .05 of this chapter;

    (b) Applies for certification; and

    (c) Pays a certification fee in accordance with Regulation .07 of this chapter.

  (2) The temporary certificate holder shall work only under the direction of a holder of a superintendent or operator certificate.

  (3) The Board may not issue a temporary certificate to an applicant if the certificate applied for would replace a temporary certificate that could be renewed.

  (4) A temporary certificate holder will be identified as an Operator-in-Training.

C. Operator Certificates and Certification.

  (1) The Board shall issue an operator certificate to an applicant who:

    (a) Is employed or is awaiting specific employment, in the job functions defined in Regulation .05B of this chapter, at a waterworks, wastewater works, or industrial wastewater works that is regulated under Environment Article, Annotated Code of Maryland;

    (b) Meets the education and experience requirements established in Regulations .04 and .16 of this chapter;

    (c) Passes an appropriate examination given by the Board; and

    (d) Pays a certification fee in accordance with Regulation .07 of this chapter.

  (2) Experience as an operator in Maryland that was obtained in the certification class for which operator certification has been requested is fully creditable toward the experience requirements established in Regulations .04 and .16 of this chapter if the experience:

    (a) Was obtained under a valid certificate from the Board; or

    (b) Occurred before March 29, 1991.

  (3) The following experience may be credited toward the experience requirements established in Regulations .04 and .16 of this chapter, as determined by the Board:

    (a) Experience as an operator in Maryland that was obtained in a certification class other than the one for which operator certification has been requested, if the experience:

      (i) Was obtained under a valid certificate from the Board, or

      (ii) Occurred before March 29, 1991;

    (b) Experience as an operator that was obtained in another state, in the armed forces of the United States, or at other federal facilities; or

    (c) Related experience that was not as an operator.

  (4) The approval by the Board of experience credit under §C(3)(b) or (c) of this regulation is based upon the following information in writing from the applicant:

    (a) A description of the unit processes for which the applicant seeks experience credit;

    (b) A description of the applicant's specific job duties for which the applicant seeks experience credit; and

    (c) Verification from the applicant's present employer or previous employer, or both, of the information provided in §C(4)(a) and (b) of this regulation.

  (5) The approval of experience credit under §C(3)(a)(i) of this regulation for a person who holds multiple certificates will be determined by the Board. The following information will be considered:

    (a) Experience as a water, wastewater, or industrial wastewater operator that is earned under a valid certificate may be credited hour-for-hour toward the experience requirement for an operator certificate;

    (b) Whether the applicant has passed the appropriate examination for the certification that is under review; and

    (c) Whether a minimum of 1,800 hours or 1 year of experience was earned in the highest class of each certificate category for which a temporary certificate is held.

  (6) The minimum experience requirements for operator certification for individuals whose applications for temporary or operator certification were received by the Board before the effective date of this regulation shall be:

    (a) For wastewater collection class 1, 1 year or 1,800 hours, whichever occurs first;

    (b) For wastewater collection class 2 and industrial class 6, 2 years or 3,600 hours, whichever occurs first;

    (c) For industrial class 5, wastewater classes 4, 5, S, and A, and water class 4, 3 years or 5,400 hours, whichever occurs first; and

    (d) For all other classes, the requirements set forth in Regulation .16 of this chapter.

  (7) Except as provided in §C(3)(a)—(c) of this regulation, the minimum requirements for operator certification shall be as set forth in Regulations .04 and .16 of this chapter.

  (8) As set forth in Tables 4, 5, and 7 of Regulation .16 of this chapter, the holder of a valid operator certificate may be authorized to operate more than one class of works or system.

D. Grandparented Certificates and Certification.

  (1) The Board shall issue a grandparented certificate to any applicant who:

    (a) Meets the education and experience requirements in accordance with Regulation .04 of this chapter;

    (b) Is employed as an operator in the waterworks for a public water system:

      (i) As defined in COMAR 26.04.01; and

      (ii) Not covered by this chapter before February 5, 2001, as determined by the Approving Authority;

    (c) Applies for certification; and

    (d) Pays a certification fee in accordance with Regulation .07 of this chapter.

  (2) A grandparented certificate shall be site-specific, and expire immediately upon termination of employment at the waterworks identified in the certificate.

  (3) If the classification of the plant or distribution system changes to a higher level, the grandparented certificate is no longer valid.

  (4) All grandparented certificates shall be applied for by February 5, 2003.

E. Superintendent Certificates and Certification.

  (1) The Board shall issue a superintendent certificate for a specific works to an applicant who:

    (a) Has a valid operator certificate from the Board for the classification in which the applicant is employed as set out in Regulations .04 and .16 this chapter;

    (b) Meets the education requirements set out in Regulations .04 and .16 of this chapter;

    (c) Meets the experience requirements set out in Regulations .04 and .16 of this chapter and §E(2) of this regulation;

    (d) Is appointed by the employing or appointing person, county, municipality, sanitary district, or this State; and

    (e) Pays a certification fee in accordance with Regulation .07 of this chapter.

  (2) The following experience may be credited toward the experience requirements for superintendent certification:

    (a) Experience gained with an operator certificate from the Board in the class of facility for which superintendent certification has been requested; and

    (b) Other experience as determined by the Board, including:

      (i) Experience in responsible charge of a facility as defined in Regulation .01B(12) of this chapter, and

      (ii) Other management experience acceptable to the Board.

  (3) Requests for crediting of experience under §E(2)(b) of this regulation shall include:

    (a) A written description of the applicant's specific job duties and responsibilities; and

    (b) Written verification from the applicant's present employer or previous employer, or both, of the information provided in §E(3)(a) of this regulation.

F. Education Substituted for Experience.

  (1) Education may be substituted for a portion of the experience requirements set out in Regulations .04 and .16 of this chapter.

  (2) The following are eligible for education substitution:

    (a) College course work in science or engineering at the rate of 30 semester credit hours of course work for a year of experience; and

    (b) Other job-related courses or training as determined by the Board.

  (3) The substitution of education for experience is limited as follows:

    (a) Only education completed beyond the minimum educational requirements specified in Regulations .04 and .16 of this chapter may be substituted for experience;

    (b) The substitution of college course work in science or engineering for experience is specified in Regulation .16 of this chapter;

    (c) The substitution of education for experience may not exceed a total of 1 year; and

    (d) Each request to substitute education for experience shall be supported by an official transcript sent directly to the Board from the applicant's college or university, or by other documentation acceptable to the Board.

G. Experience Substituted for Education. When applicable, experience may be substituted for the education requirements set out in Regulations .04 and .16 of this chapter. Substitution of experience for education shall be limited as follows:

  (1) One year of experience may be substituted for 1 year of college;

  (2) One year of experience beyond the minimum experience requirement may be substituted for education.

H. Certificate. Each certificate shall:

  (1) Indicate the classification the operator or temporary certificate holder is authorized to operate as set out in Tables 4—7 of Regulation .16 of this chapter;

  (2) Indicate the works that the superintendent certificate holder is authorized to superintend;

  (3) Indicate the certification number and the date of issuance;

  (4) Bear the seal of the Board; and

  (5) In the case of superintendent and operator certificates, be signed by the chairman and the secretary of the Board.

#### Regulation .07 Payment of Fees.

*COMAR 26.06.01.07*

A. Payment of all fees under this chapter shall be made payable to the “Board of Waterworks and Waste Systems Operators”.

B. Payment of fees shall accompany the completed application form for examination, or certificate issuance or renewal.

C. All fees are nonrefundable.

D. Except as provided in §F of this regulation, the following fees are established by the Board for items and services provided under this chapter:

E. The renewal fee paid by an individual shall be based upon the types and categories of certificates held by that individual. The renewal fee for a 3-year period shall be $50 per certification category and type.

F. The maximum fee for the renewal of all certificates held by an individual shall be $100 if the certificates are renewed at the same time. This does not include any late renewal fees, reinstatement fee, computer-based examination fees charged by the testing facility, or examination fees that may be applicable. The maximum late renewal fee assessed for an operator with multiple certificates shall be $100.

G. Applicants who are utilizing the services of computer-based examination sites shall:

  (1) Pay the examination fee to the Board that is specified in §D of this regulation; and

  (2) Pay the site-specific fee that is required by the approved examination location.

#### Regulation .08 Duration of All Certificates.

*COMAR 26.06.01.08*

A. Except as provided in §B of this regulation, superintendent, operator, temporary, and grandparented certificates are valid for 3 years from the date of issuance.

B. The initial superintendent certificate issued to an individual in any category is valid for 1 year and shall be renewed by the Board for 3 years once the certificate holder has satisfactorily completed the superintendent certification training program approved by the Board.

C. A certificate is invalid after the expiration date of the current certificate if not renewed in accordance with the requirements of Regulation .12 of this chapter.

D. A certificate holder may request to consolidate multiple certificate renewal dates if all renewal requirements for the certificates have been met. Certificates may be valid for less than 3 years in this event.

#### Regulation .09 Application Procedures.

*COMAR 26.06.01.09*

A. An application to the Board for certification or examination shall be:

  (1) Addressed to the secretary of the Board of Waterworks and Waste Systems Operators;

  (2) Made on forms provided by the Board;

  (3) Completed fully and signed by the applicant; and

  (4) Accompanied by the fee specified by Regulation .07 of this chapter.

B. In addition to satisfying the requirements of §A of this regulation, each application for certification shall be:

  (1) Attested by the employing or appointing authority of the works where the applicant is employed; and

  (2) Accompanied by verification that the applicant meets the education and experience requirements set forth in Regulations .04 and .16 of this chapter.

C. In addition to satisfying the requirements of §A of this regulation, each application for examination shall be postmarked, or delivered to the Board, at least 21 days before the examination for which application is made.

#### Regulation .10 Examination for Certification.

*COMAR 26.06.01.10*

A. The Board shall permit an applicant to take the examination for certification only after the Board has determined that the applicant has:

  (1) Any type of valid certification as set forth in Regulation .06 of this chapter; or

  (2) Submitted an application to renew a temporary certificate late.

B. Scope of Examinations. Examinations shall be based on the need-to-know criteria for each specific classification determined by the Board.

C. Passing Score for Examinations. The passing score for examinations is a minimum of 69.5 percent.

D. Schedule and Frequency of Examinations. Examinations shall be held at least twice yearly. Exact dates, times, and locations of the examinations shall be set by the Board.

E. Notification. Each applicant approved for an examination by the Board shall be:

  (1) Notified in writing at least 14 days before the examination of the time and place of the examination; and

  (2) Required to show some form of positive identification before taking the examination.

F. If the exam is passed, a certificate may not be issued until all requirements are met as set out in Regulations .06 and .09 of this chapter.

#### Regulation .11 Reciprocity.

*COMAR 26.06.01.11*

A. General. The Board may grant operator certification to out-of-State applicants without examination, if the applicant:

  (1) Submits an application that provides evidence of educational and experience qualifications which satisfies Regulations .04 and .16 of this chapter;

  (2) Possesses a valid certificate from the Association of Boards of Certification, or from another state which administers examinations that are substantially equivalent to the examinations in Maryland;

  (3) Is employed or awaiting specific employment pending certification in Maryland;

  (4) Pays an application fee as specified in Regulation .07 of this chapter; and

  (5) Upon approval of the application for reciprocity, pays a certification fee as specified by Regulation .07 of this chapter.

B. Procedure.

  (1) Operators. Applicants for operator certification by reciprocity shall submit information in writing on forms provided by the Board. The application shall be verified by the present employer in Maryland and accompanied by proof of requirements set out in Regulations .04 and .16 of this chapter.

  (2) Superintendents. Superintendent certification may not be granted by way of reciprocity. Upon certification as an operator by reciprocity, persons shall follow superintendent certification requirements set out in these regulations.

#### Regulation .12 Requirements for Renewal of All Certificates.

*COMAR 26.06.01.12*

A. Except as provided in Regulation .08 of this chapter, the Board shall renew an operator, grandparented, or superintendent certificate if the certificate holder:

  (1) Meets the applicable training requirements set out in Regulation .13 of this chapter;

  (2) Pays a renewal fee in accordance with Regulation .07 of this chapter;

  (3) Submits the application for renewal and payment of the renewal fee to the Board before the current certificate expires; and

  (4) Meets the applicable training requirements set out in Regulation .13 of this chapter;

B. Temporary Certificate.

  (1) The Board may renew a temporary certificate if the certificate holder:

    (a) Complies with §A of this regulation; and

    (b) Has taken an examination for operator certification during the 3-year period which ends with the expiration date of the certificate.

  (2) The examination taken under §B(1)(b) of this regulation shall have been for the classification of works for which renewal has been requested.

C. Late Renewal Procedures.

  (1) Holders of expired operator, grandparented, or superintendent certificates shall:

    (a) Meet the requirements of §A(1) of this regulation;

    (b) Pay the renewal fee and a late renewal fee to the Board in accordance with Regulation .07 of this chapter not later than 90 days after the expiration date of the certificate; and

    (c) Submit to the Board a completed application and the fees due.

  (2) Holders of expired temporary certificates shall submit a completed application to the Board which includes:

    (a) The renewal fee and the late renewal fee in accordance with Regulation .07 of this chapter; and

    (b) Verification that since the certificate was issued or last renewed, the applicant has:

      (i) Taken the Board-approved examination for the same certification class that is being renewed; and

      (ii) Met the applicable training requirements set out in Regulation .13 of this chapter.

  (3) Those who fail to comply with §C(1) of this regulation may:

    (a) Apply to the Board for reinstatement in accordance with §D of this regulation; or

    (b) Comply with Regulations .09 and .10 of this chapter.

D. Reinstatement.

  (1) Limitations.

    (a) A request for reinstatement shall be submitted to the Board within 2 years after the expiration date of the operator certificate that is to be reinstated.

    (b) Temporary, grandparented, and superintendent certificates may not be reinstated.

    (c) The Board may not grant a request for reinstatement that is received after the 2-year period following the expiration of the operator certificate. The operator shall apply for a temporary certificate, and complete the requirements for operator certification in accordance with Regulation .06C of this chapter.

  (2) To qualify for reinstatement of an expired operator certificate, an individual shall:

    (a) Submit a written request for reinstatement on a form provided by the Board;

    (b) Provide evidence that the individual has satisfied the training requirements in Regulation .13 of this chapter for the last renewal period covered by the expired certificate, and has completed additional training in accordance with §D(3) of this regulation; and

    (c) Pay a reinstatement fee in accordance with Regulation .07 of this chapter.

  (3) The additional training that must be completed before submitting a request for reinstatement shall be:

    (a) For reinstatement up to 1 year following the expiration date of the operator certificate, 1/3 of the training units specified by Table 8 in Regulation .16 of this chapter for the class of operator certificate that is to be reinstated;

    (b) For reinstatement from 1 to 2 years following the expiration date of the operator's certificate, 2/3 of the training units specified by Table 8 in Regulation .16 of this chapter for the class of operator certificate that is to be reinstated.

#### Regulation .13 Training.

*COMAR 26.06.01.13*

A. Training Requirements for Certification Renewal. In order to be eligible for certification renewal, operators and superintendents shall demonstrate completion of the training requirements set out in Table 8 of Regulation .16 of this chapter.

B. Except as provided in §C of this regulation, training used to renew a certificate under Regulation .12 of this chapter shall be completed during the 3-year period that precedes the expiration date of the certificate.

C. Training used to renew a certificate late may be taken either during the 3-year period that preceded the expiration date of the certificate or during the late renewal period.

D. Training Approval. The Board, in conjunction with the Department and based on a review of the recommendations of the Training, Review, and Evaluation Committee, if applicable, will approve courses for purposes of satisfying the training requirements in §A, based on the following factors:

  (1) Course objectives;

  (2) Course outline;

  (3) Training material;

  (4) Instructor credentials; and

  (5) Student evaluation methods and criteria.

E. Type of Training. Any of the following types of training may be approved:

  (1) Academic courses;

  (2) On-the-job training;

  (3) Home-study courses;

  (4) Laboratory practice;

  (5) Technical part of operator or superintendent meetings; and

  (6) Providing instructions.

F. Assignment of Units for Approved Training.

  (1) The Board in conjunction with the Department will assign one training unit to approved training courses for each hour of instruction.

  (2) Instructors shall earn units at the rate of 1.5 times for each hour of instruction given.

G. Training Used for Certification Renewal.

  (1) Training that is to be used to satisfy the requirements for certificate renewal must have been approved by the Board for the class of certificate that is to be renewed.

  (2) A certificate holder may not use the units from an approved training course more than once per renewal period to satisfy the requirements for certification renewal.

  (3) If the Board has approved a training course for both operators and superintendents, a certificate holder may apply the units from that course toward the renewal of either an operator or a superintendent certificate renewal, but not both.

  (4) Process related training means a class or training event where at least 50 percent of the material presented concerns the processes listed in Tables 1, 2, and 3 of Regulation .16 of this chapter.

H. The Board may direct operators or superintendents to participate in specific training as determined necessary.

#### Regulation .14 Reconsideration.

*COMAR 26.06.01.14*

A. If the Board denies an application to issue or renew a certificate, for reasons other than those set forth in Regulation .15A of this chapter, the Board shall notify the applicant, in writing, of:

  (1) The reason, or reasons, for the denial; and

  (2) The applicant's right to request reconsideration.

B. An applicant may request reconsideration of a denied application by:

  (1) Submitting new or additional information to the Board; or

  (2) Requesting an informal meeting with the Board.

C. Requests for reconsideration under §B of this regulation shall be based upon one or more of the following grounds:

  (1) Clerical errors in the minutes, decisions, or other parts of the record related to the denial;

  (2) Mistake of fact or law by the Board; or

  (3) Newly discovered or additional evidence that the applicant could not have discovered by due diligence in time to be considered as part of the initial denial.

D. Requests for reconsideration shall be submitted to the Board in writing by certified mail within 30 days of receipt of the denial under §A of this regulation.

#### Regulation .15 Denials, Reprimands, Suspensions, and Revocations.

*COMAR 26.06.01.15*

A. Grounds for Board Action.

  (1) Denials. Subject to the hearing provisions of §B of this regulation, the Board may deny certification, limited certification, or temporary certification to any applicant if the applicant fraudulently or deceptively:

    (a) Obtains or attempts to obtain a certificate, limited certificate, or temporary certificate for the applicant or for another person; or

    (b) Uses a certificate, limited certificate, or temporary certificate.

  (2) Reprimands, Suspensions, and Revocations. Subject to the hearing provisions of §B of this regulation, the Board may reprimand any certificate holder, or suspend or revoke a certification for either of the following:

    (a) If the certificate holder fraudulently or deceptively:

      (i) Obtains or attempts to obtain a certificate, limited certificate, or temporary certificate for the applicant or for another,

      (ii) Uses a certificate, limited certificate, or temporary certificate;

    (b) Other reasonable cause, such as:

      (i) Professional incompetency;

      (ii) Falsification of records;

      (iii) Failure to submit required self-monitoring documents;

      (iv) Negligence in operation and maintenance of the works.

B. Right to a Hearing.

  (1) Before the Board revokes or suspends a certificate or reprimands a certificate holder, it shall:

    (a) Notify the certificate holder in writing by certified mail to his last known address that it is considering action for reasons stated in the notice;

    (b) Request the certificate holder to appear at a hearing of the Board of Waterworks and Waste Systems Operators at a designated time and place to show cause why the certificate should not be revoked or suspended or the certificate holder reprimanded.

  (2) The form of the notice and the hearing shall conform to the provisions of the Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

C. Ex Parte Hearing. If, after due notice, the individual against whom the action is contemplated fails or refuses to appear, the Board, nevertheless, may hear and determine the matter.

D. Effect of Adverse Finding by the Board.

  (1) If, after the hearing by the Board, the certificate is revoked or suspended, the certificate holder shall:

    (a) Cease his or her activities as a certified operator or superintendent; and

    (b) Return the certificate to the Board.

  (2) Until the notice of revocation or suspension is delivered to the last known address of the certificate holder, the certificate remains valid.

  (3) Voluntary surrender by the certificate holder of his certificate will constitute a waiver of the hearing before the Board.

  (4) Suspensions of certificates may not exceed 1 year or suspensions shall terminate when the certificate holder complies with all conditions stipulated by the Board at the time of suspension, whichever is later.

  (5) After the expiration of 1 year following revocation of a certificate, the person previously holding the certificate may apply for a new certificate subject to a new examination and review by the Board.

E. Judicial Review.

  (1) A person aggrieved by a final decision of the Board under §D may take a direct judicial appeal.

  (2) The appeal shall be made as provided for judicial review of final decisions in the Administrative Procedure Act.

#### Regulation .16 Tables.

*COMAR 26.06.01.16*

Table 1 CLASSIFICATION OF INDUSTRIAL WASTEWATER WORKS
          
          
            Class of Plants
            Type of Treatment Systems
            Typical Processes Included in the System
          
        
        
          
            1
            Basic Treatment
            Petroleum base oil separators, liquid cooling, and pH control.
          
          
            2
            Physical Treatment
            Sedimentation, screening, pH control, solids removal.
          
          
            3
            Land Treatment
            Primary treatment, sedimentation, solids removal, pumping and land treatment.
          
          
            4
            Biological Lagoons
            Aerobic or anaerobic waste stabilization lagoons, disinfection, and chemical addition.
          
          
            5
            Activated Sludge
            Primary treatment, sedimentation, activated sludge, and sludge handling.
          
          
            6
            Physical Chemical Treatment
            Reduction of chemical and toxic substances including but not limited to cyanide and chromium, acid-alkali neutralization, coagulation, and flocculation.
          
          
            7
            Site Specific
            Plants not covered under the first six types of treatment yet covered under these regulations.

Table 2 CLASSIFICATION OF WASTEWATER TREATMENT PLANTS
          
          
            Class of Plants
            Types of Treatment Systems
            Typical Processes Included in the System
          
        
        
          
            1
            Lagoons
            Aerated or nonaerated lagoons, filtration, disinfection, and land or wetland treatment.
          
          
            2
            Physical/Biological
            Primary treatment, sand filter, land or wetland treatment, and disinfection.
          
          
            3
            Package Activated Sludge Plants
            Screening, activated sludge, sedimentation, filtration, disinfection, chemical addition, sludge handling, pumping and land or wetland treatment.
          
          
            4
            Trickling Filters Rotating Biological Contractors (RBC)
            Preliminary treatment, primary treatment, sedimentation, activated sludge, oxidation ditches, filtration, chemical addition, disinfection, sludge handling, and pumping.
          
          
            5
            Activated Sludge
            Preliminary treatment, primary treatment, sedimentation, activated sludge, oxidation ditches, filtration, chemical addition, disinfection, sludge handling, and pumping.
          
          
            6
            Site Specific
            Other alternative technology systems not covered under this classification system which may include groundwater discharge systems such as spray irrigation systems, and drip dispersal systems.
          
          
            S*
            Solids Handling
            Chemical conditioning, sludge thickening, sludge digestion, thermal treatment, chlorine treatment, filtration, dewatering, composting, land application.
          
          
            A**
            Advanced Wastewater Treatment
            Filtration, activated carbon adsorption, nitrification, denitrification, phosphorus removal, ammonia stripping, chemical feeding and conditioning, coagulation and flocculation.
          
        
        
          
            *Class S will only be required when the specific works is limited to solids handling.
          
          
            **Class A is used in conjunction with other classes.

Table 3CLASSIFICATION OF WATER TREATMENT PLANTS
          
          
            Class of Plants
            Type of Treatment Systems
            Typical Processes Included in the System
          
        
        
          
            1
            Disinfection
            Chlorination.
          
          
            2
            Chemical Treatment
            Chlorination, pH control, and fluoridation.
          
          
            3
            Simple Iron Removal
            Chlorination, pH control, fluoridation, filtration, and iron removal utilizing ion exchange or contact oxidation processes.
          
          
            4
            Complete Treatment
            Chlorination, pH control, fluoridation, aeration, coagulation, sedimentation, filtration, and complex iron removal.
          
          
            5
            Site Specific
            Site specific - any alternative technology plant not covered under the classification system.
          
          
            G
            No chemical treatment
            Well, storage tanks, UV disinfection

Table 4 INDUSTRIAL WASTEWATER WORKS
          
          
            0+
            B
            C
            DOperators
            ESuperintendents
          
          
            Class of Plants
            Class of Operators and Superintendents
            Authorized to Operate or Supervise Plants (Class)
          
          
            1Education Requirements
            2Maximum Education Substitution
            3Experience Requirements
            4Maximum Experience Substitution
            1Education Requirements
            2Maximum Education Substitution
            3Experience Requirements
            4Maximum Experience Substitution
          
        
        
          
            1
            1
            1
            Completion of High School OR High School Equivalency
            NONE
            250 hours or 6 months1
            NONE
            Completion of High School OR High School Equivalency
            NONE
            NONE
            NONE
          
          
            2
            2
            2
          
          
            3
            3
            2 and 3
          
          
            4
            4
            2 and 4
            500 hours or 1 year1
          
          
            5
            5
            1,2,3,4, and 5
            5400 hours or 3 years7
            1800 hours or 1 year3
            2 years college4
            2 years5
            3600 hours or 2 years6
            1800 hours or 1 year3
          
          
            6
            6
            1,2, and 6
            3600 hours or 2 years7
            1 year college4
            1 year5
            1800 hours or 1 year6
          
          
            7
            7
            7
            AS DETERMINED BY THE BOARD
          
          
            Notes:
          
          
            1 Whichever is longer, years of experience is based on 1 hour/day operation.
          
          
            2 Whichever is longer, years of experience is based on 2 hours/day operation.
          
          
            3 One year of college course work in science or engineering leading toward a degree, for 1 year experience.
          
          
            4 In science, engineering, or management leading toward a degree.
          
          
            5 One year experience for 1 year college.
          
          
            6 Experience obtained as provided in Regulation .06E of this chapter.
          
          
            7 Whichever is longer (for applications received by the Board before the effective date of these regulations, see Regulation .06 of this chapter).

Table 5 WASTEWATER TREATMENT PLANTS
          
        
        
          
            A
            B
            C
            DOperators
            ESuperintendents
          
          
            Class of Plants
            Class of Operators
            Authorized to Operate or Supervise Plants (Class)
          
          
            1
            2
            3
            4
            1
            2
            3
            4
          
          
            Education Requirements
            Maximum Education Substitution
            Experience Requirements
            Maximum Experience Substitution
            Education Requirements
            Maximum Education Substitution
            Experience Requirements
            Maximum Experience Substitution
          
          
            1
            1
            1
            Completion of High School OR High School Equivalency
            NONE
            500 hoursor1 year1
            NONE
            Completion of High School OR High School Equivalency
            NONE
            NONE
            NONE
          
          
            2
            2
            1 and 2
          
          
            3
            3
            1,2, and 3
            1800 hours or 2 years2
            1800 hours or 1 year2
            900 hours or1 year2, 6
            900 hours or1 year2
          
          
            4
            4
            1,2, 4, and C2
            5400 hours or3 years9
            2 years college4
            2 years5
            3600 hours or 2 years6
            1800 hours or 1 year3
          
          
            5
            5
            1,2,3, 5, and C2
          
          
            6
            6
            6
            AS DETERMINED BY THE BOARD
          
          
            S7
            S7
            S7
            Completion of High School OR High School Equivalency
            NONE
            5400 hours or 3 years9
            1800 hours or 1 year3
            2 years college4
            2 years5
            3600 hours or 2 years6
            1800 hours or1 year3
          
          
            A8
            A8
            A8
          
          
            Notes:
          
          
            1 Whichever is longer, years of experience is based on 2 hours/day operation.
          
          
            2 Whichever is longer, years of experience is based on 3.5 hours/day operation.
          
          
            3 One year of college course work in science or engineering leading toward a degree, for 1 year experience.
          
          
            4 In science, engineering, or management leading toward a degree.
          
          
            5 One year experience for 1 year college.
          
          
            6 Experience obtained as provided in Regulation .06E of this chapter.
          
          
            7 Is limited to solids handling.
          
          
            8 Class A is used in conjunction with other classes.
          
          
            9 Whichever is longer.

Table 6 WASTEWATER COLLECTION SYSTEMS
          
        
        
          
            A
            B
            C
            DOperators
            ESuperintendents
          
          
            Class of Plants
            Class of Operators and Superintendents
            Authorized to Operate or Supervise Plants (Class)
          
          
            1Education Requirements
            2Maximum Education Substitution
            3Experience Requirements
            4Maximum Experience Substitution
            1Education Requirements
            2Maximum Education Substitution
            3Experience Requirements
            4Maximum Experience Substitution
          
          
            1
            1
            1
            Completion of High School OR High School Equivalency
            NONE
            1800 hours or 1 year3
            NONE
            Completion of High School OR High School Equivalency
            NONE
            NONE
            NONE
          
          
            2
            2
            2
            3600 hours or 2 years3
            1800 hours or 1 year1
            1800 hours or 1 year2
          
          
            Notes:
          
          
            1 One year of college course work in science or engineering leading toward a degree, for 1 year experience.
          
          
            2 Experience obtained as provided in Regulation .06E of this chapter.
          
          
            3 Whichever is longer (for application received by the Board before the effective date of these regulations, see Regulation .06 of this chapter).

Table 7 WATER TREATMENT PLANTS AND DISTRIBUTION SYSTEMS
          
        
        
          
            A
            B
            C
            DOperators
            ESuperintendents
          
          
            Class of Plants
            Class of Operators and Superintendents
            Authorized to Operate or Supervise Plants (Class)
          
          
            1Education Requirements
            2Maximum Education Substitution
            3Experience Requirements
            4Maximum Experience Substitution
            1Education Requirements
            2Maximum Education Substitution
            3Experience Requirements
            4Maximum Experience Substitution
          
          
            D
            D
            None
            Completion of High School OR High School Equivalency
            NONE
            500 hours or1 year1
            NONE
            Completion of High School OR High School Equivalency
            NONE
            
            NONE
          
          
            1
            1
            D, G, and 1
            NONE
          
          
            2
            2
            D, G, 1, and 2
            500 hours or 1 year1,6
          
          
            3
            3
            D, G, 1, 2, and 3
            1800 hours or2 years2
            900 hours or 1 year2,3
            1 year college4
            1 year5
            900 hoursor1 year2,6
            900 hours or1 year3
          
          
            4
            4
            D, G, 1, 2, 3, and 4
            5400 hours or 3 years7
            1800 hours or 1 year3
            2 years college4
            2 years5
            3600 hours or 2 years6
            1800 hours or 1 year3
          
          
            5
            5
            5
            AS DETERMINED BY THE BOARD
          
          
            G
            G
            G
            AS DETERMINED BY THE BOARD
          
          
            Notes:
          
          
            1 Whichever is longer, years of experience is based on 2 hours/day operation.
          
          
            2 Whichever is longer, years of experience is based on a 3.5 hours/day operation.
          
          
            3 One year of college course work in science or engineering leading toward a degree, for 1 year of experience.
          
          
            4 In science, engineering, or management leading toward a degree.
          
          
            5 One year experience for 1 year college.
          
          
            6 Experience obtained as provided in Regulation .06E of this chapter.
          
          
            7 Whichever is longer (for applications received by the Board before the effective date of these regulations, see Regulation .06 of this chapter).

Table 8 TRAINING REQUIREMENTS FOR OPERATORS AND SUPERINTENDENTS CERTIFICATE RENEWAL FOR 3-YEAR RENEWAL PERIOD
          
        
        
          
            Class
            INDUSTRIALWASTEWATERWORKS
            WASTEWATERTREATMENTPLANTS
            WASTEWATER COLLECTIONSYSTEMS
            WATER TREATMENT PLANTS
            WATER DISTRIBUTIONSYSTEMS
          
          
            Operators(4)
            Super-intendents(3)
            Temporary(4)
            Operators(4)
            Super-intendents(3)
            Temporary(4)
            Operators(4)
            Super-intendents(3)
            Temporary(4)
            Operators(4)
            Super-intendents(3)
            Grandparented,  andTemporary(4)
            Operators(4)
            Super-intendents(3)
            Grandparented,  andTemporary(4)
          
          
            UNITS(2)
            UNITS(2)
            UNITS(2)
            UNITS(2)
            UNITS(2)
          
          
            1
            0
            0
            0
            16
            7
            24
            16
            7
            24
            16
            7
            24
            16
            7
            24
          
          
            2
            0
            0
            0
            16
            7
            24
            16
            7
            24
            16
            7
            24
            
            
            
          
          
            3
            16
            7
            24
            30
            7
            45
            
            
            
            30
            7
            45
            
            
            
          
          
            4
            16
            7
            24
            30
            7
            45
            
            
            
            30
            7
            45
            
            
            
          
          
            5
            30
            7
            45
            30
            7
            45
            
            
            
            
              (1)
            
            
            
            
            
            
          
          
            6
            16
            7
            24
            
              (1)
            
            
            
              (1)
            
            
            
            
            
            
            
            
            
            
          
          
            7
            
              (1)
            
            
            
              (1)
            
            
            
            
            
            
            
            
            
            
            
            
            
          
          
            S
            
            
            
            
            
            
            
            
            
            
            
            
            
            
            
          
          
            A
            
            
            
            16
            7
            24
            
            
            
            
            
            
            
            
            
          
          
            G
            
            
            
            
            
            
            
            
            
            7
            7
            7
            
            
            
          
          
            Notes:
          
          
            1 For site-specific operator classifications, training units to be determined by the Board on a case-by-case basis.
          
          
            2 For operators that hold multiple certificates, units of training may be applied to multiple classifications if the training is approved as defined in Regulation .13.
          
          
            3 For superintendents, training units approved by the Board for superintendents are required in addition to their operator's training.
          
          
            4 Effective January 1, 2006, for all operator categories, except Water Class 1, Water Class 2, Water Class G, Water Distribution, and Wastewater Collection, a minimum of 50 percent of the training units submitted for issuance or renewal of a certificate shall be process related.

## Subtitle 07 — Board of Environmental Sanitarians

### Chapter 01 — General Regulations

**Authority:** Environment Article, §§11-101, 11-205, 11-305, 11-307, 11-309, 11-314, and 11-315, Annotated Code of Maryland

**Administrative History:** Effective date: September 8, 1986 (13:18 Md. R. 2021)

**Administrative History:** Chapter recodified from COMAR 10.55.01 to COMAR 26.07.01

**Administrative History:** Regulation .01B amended effective October 15, 1990 (17:20 Md. R. 2431)

**Administrative History:** Regulation .05 amended effective October 15, 1990 (17:20 Md. R. 2431)

**Administrative History:** Regulation .06 repealed and new Regulation .06 adopted effective October 15, 1990 (17:20 Md. R. 2431)

**Administrative History:** Regulation .07 amended effective October 15, 1990 (17:20 Md. R. 2431)

**Administrative History:** Regulations .01—.07 repealed and new Regulations .01—.05 adopted effective January 1, 1997 (23:26 Md. R. 1861)

**Administrative History:** Regulation .01B amended effective December 15, 1997 (24:25 Md. R. 1719); June 19, 2006 (33:12 Md. R. 998)

#### Regulation .01 Definitions.

*COMAR 26.07.01.01*

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Accredited college or university” means an educational institution in the United States which has been accredited by an accrediting organization or agency that is recognized by the Commission on the Recognition of Post-Secondary Accreditation.

  (2) “Approved experience” means experience which classifies as practice as an environmental sanitarian.

  (2-1) “Approved training” means courses of study or programs of instruction in an area of environmental health sciences and related subjects designed to improve, advance, or extend professional skill and knowledge relating to the practice of an environmental sanitarian and that are approved by the Board in accordance with the requirements of this subtitle.

  (3) “Board” means the State Board of Environmental Sanitarians.

  (4) “Certificate” means any of the following certificates issued by the Board:

    (a) A certificate of eligibility for obtaining employment;

    (b) A sanitarian-in-training certificate; and

    (c) A certificate of eligibility for supervised training.

  (5) Environmental Health Sponsor.

    (a) “Environmental health sponsor” means an individual who is responsible for overseeing the implementation and progress of an applicant's sanitarian-in-training program.

    (b) “Environmental health sponsor” includes:

      (i) A registered environmental sanitarian;

      (ii) An environmental professional or administrator not required to be registered by the Board under Environment Article, §11-301(b), Annotated Code of Maryland; or

      (iii) A supervisor acceptable to the Board.

  (6) “Gross negligence” means action or inaction by a registered environmental sanitarian or applicant for a license that is significantly deficient from the action or inaction expected by the profession under the same circumstances.

  (7) “Hours of approved training” means the value given by the Board for participation in continuing education or experience.

  (8) “Incompetence” means an action or inaction by a registered environmental sanitarian or applicant for a license which demonstrates a general lack of knowledge or ability to practice as an environmental sanitarian.

  (9) “Internship” means a sanitarian-in-training program that:

    (a) Consists of 3 months of approved experience; and

    (b) Has been completed by an individual who has graduated from an accredited college or university with a master's degree in public or environmental health.

  (10) “License” means a license issued by the Board to practice as an environmental sanitarian.

  (11) “License renewal period” means the 24-month period immediately preceding the expiration date of the license.

  (12) Major Component Of Employment.

    (a) “Major component of employment” means a job duty or responsibility that:

      (i) An individual may be reasonably expected to perform;

      (ii) Is identified and listed separately on a position description form such as a Maryland State form MS-22; and

      (iii) Entails significant decision-making responsibility and authority in the process of securing compliance with federal, State, or local health and environmental laws and regulations specifically relating to the control of the public health aspects of the environment.

    (b) “Major component of employment” does not include a job duty or responsibility identified as “miscellaneous” or “other duties as assigned”.

  (13) “Misconduct” means an action or inaction by a registered environmental sanitarian or applicant for a license that is deficient from the action or inaction expected by the profession under the same circumstances.

  (14) “Paraprofessional personnel, aides, and technicians” means individuals who:

    (a) Perform routine duties at the direction of and under the supervision of registered environmental sanitarians or other professionals; and

    (b) Do not exercise any independent decision making with respect to compliance with public health laws and regulations.

  (15) “Party” means a person or agency named or admitted as a party, or properly seeking and entitled to the right to be admitted as a party, in formal hearings. A person or agency may be admitted as a party for limited purposes.

  (16) “Practice as an environmental sanitarian” means, as a major component of employment, to apply academic principles, methods, and procedures of the environmental, physical, biological, and health sciences to the inspections and investigations necessary to collect and analyze data and to make decisions necessary to secure compliance with federal, State, and local health and environmental laws and regulations specifically relating to control of the public health aspects of the environment including:

    (a) The manufacture, preparation, handling, distribution, or sale of food and milk;

    (b) Water supply and treatment;

    (c) Wastewater treatment and disposal;

    (d) Solid waste management and disposal;

    (e) Vector control;

    (f) Insect and rodent control;

    (g) Air quality;

    (h) Noise control;

    (i) Product safety;

    (j) Recreational sanitation; and

    (k) Institutional and residential sanitation.

  (17) “Registered environmental sanitarian” means an individual who is licensed by the Board to practice as an environmental sanitarian.

  (18) “Sample” means a portion of a biological, physical, or environmental system removed from the existing entity for the purpose of being submitted to a laboratory for analysis.

  (19) “Sanitarian-in-training” means an individual who meets the educational qualifications set forth in Regulation .03B of this chapter.

  (20) “Sanitarian-in-training program” means a program which provides a sanitarian-in-training with approved experience under the supervision of an environmental health sponsor.

  (21) Seasonal Employee.

    (a) “Seasonal employee” means an individual who is employed to practice as an environmental sanitarian under a sanitarian-in-training certificate who:

      (i) Performs the duties of a sanitarian-in-training on a seasonal basis; and

      (ii) Is employed for a length of time, not to exceed 5 consecutive months, pursuant to a contract of employment.

    (b) A “seasonal employee” is not required to complete the total months of experience in a sanitarian-in-training program as a full-time employee under Regulation .03B of this chapter on a consecutive monthly basis.

#### Regulation .02 Prohibitions.

*COMAR 26.07.01.02*

A. An individual may not practice as an environmental sanitarian in the State unless the individual:

  (1) Is licensed by the Board; or

  (2) Is employed under a valid sanitarian-in-training certificate or a certificate of eligibility for supervised training issued by the Board.

B. An individual may not practice as an environmental sanitarian under a sanitarian-in-training certificate for more than a total of 3 years, unless approved by the Board in accordance with COMAR 26.07.02.05D(3).

#### Regulation .03 Licensing and Examination.

*COMAR 26.07.01.03*

A. The Board shall license an applicant if the applicant:

  (1) Qualifies for examination as provided in §B of this regulation;

  (2) Takes and passes the examination;

  (3) Has not committed an act which, under COMAR 26.07.04.01, would subject the applicant to disciplinary action by the Board; and

  (4) Pays the necessary fees.

B. An applicant is eligible to take the examination if the applicant has satisfied one of the following combinations of education and experience:

  (1) Combination 1:

    (a) Graduated from an accredited college or university with a baccalaureate degree in environmental science or environmental health, and

    (b) Obtained 12 months of experience in a sanitarian-in-training program approved by the Board;

  (2) Combination 2:

    (a) Graduated from an accredited college or university with a baccalaureate degree in the physical, biological or environmental sciences including:

      (i) A minimum of 60 semester credits or the equivalent quarter credits of physical, biological, and environmental sciences acceptable to the Board, which includes at least one laboratory course in two of the following fields: chemistry, physics, and biology, and

      (ii) A course in mathematics; and

    (b) Obtained 12 months of experience in a sanitarian-in-training program approved by the Board;

  (3) Combination 3:

    (a) Graduated from an accredited college or university with a baccalaureate degree that includes:

      (i) 30 semester credits or the equivalent in quarter credits in the physical, biological, and environmental sciences acceptable to the Board, which includes at least one laboratory course in two of the following fields: chemistry, physics, and biology, and

      (ii) A course in mathematics; and

    (b) Obtained 24 months of experience in a sanitarian-in-training program approved by the Board; or

  (4) Combination 4:

    (a) Graduated from an accredited college or university with a master's degree in public or environmental health science that includes:

      (i) 30 semester credits or 45 quarter credits of physical, biological, or environmental sciences acceptable to the Board, which includes at least one laboratory course in two of the following fields: biology, chemistry, and physics, and

      (ii) A course in mathematics; and

    (b) Completed an internship.

#### Regulation .04 Waivers.

*COMAR 26.07.01.04*

A. The Board may waive the examination requirement under Regulation .03 of this chapter if the applicant:

  (1) Is a Diplomate of the American Academy of Sanitarians, or has received an equivalent recognition from a credentialing body which is acceptable to the Board;

  (2) Is licensed to practice as an environmental sanitarian in a state with which the Board has made a reciprocal agreement as described in §C of this regulation; or

  (3) Provides evidence that the applicant has satisfied the education and experience requirements set forth in Regulation .03 of this chapter, and has passed an examination in another state that is substantially equivalent to the Board's examination.

B. An applicant who satisfies §A of this regulation shall pay to the Board the application and license fees established by COMAR 26.07.02.09 before receiving a license.

C. The Board may make a reciprocal agreement with any other state to waive the examination requirement for an applicant who is licensed to practice as an environmental sanitarian in that state, if, under the agreement:

  (1) The other state waives the examination requirement for licensed environmental sanitarians of Maryland to a similar extent; and

  (2) Applicants from the reciprocal state satisfy the provisions of §A of this regulation.

#### Regulation .05 Sanitarian-In-Training Program.

*COMAR 26.07.01.05*

A. The purpose of a sanitarian-in-training program shall be to prepare the sanitarian-in-training to:

  (1) Perform in a competent manner assigned job duties and responsibilities which constitute practice as an environmental sanitarian; and

  (2) Demonstrate proficiency in all areas of environmental health on a written examination administered by the Board.

B. At a minimum, a sanitarian-in-training program shall:

  (1) Provide the sanitarian-in-training with approved experience that is in accordance with §D of this regulation and which includes the following:

    (a) Conducting inspections and investigations,

    (b) Collecting and analyzing data,

    (c) Making decisions necessary to secure compliance with federal, State, and local laws and regulations that relate to control of the public health aspects of the environment, and

    (d) Reviewing and approving plans for compliance or process changes;

  (2) Provide the sanitarian-in-training with an opportunity for formal education and training in the study areas identified by the Board under §E of this regulation; and

  (3) Be approved by the Board.

C. The environmental health sponsor of a Board-approved sanitarian-in-training program shall certify in writing to the Board each major component of employment of the sanitarian-in-training.

D. Experience Requirements.

  (1) Only approved experience obtained under the direction of the environmental health sponsor shall be credited toward the experience requirements of a sanitarian-in-training program.

  (2) The amount of approved experience required for each sanitarian-in-training program shall be in accordance with Regulation .03B of this chapter.

  (3) The Board may approve, as part of an internship program, experience that was obtained to satisfy the degree requirements of an academic institution.

  (4) Approved experience shall be credited to a sanitarian-in-training program as follows:

    (a) 12 months of experience shall equal 12 calendar months of full-time employment of at least 40 hours per week; and

    (b) Experience gained at rates other than those in §D(4)(a) of this regulation shall be credited on a prorated basis.

  (5) Except as provided in §D(3) of this regulation, approved experience does not include:

    (a) Experience obtained to satisfy the degree requirements of an academic institution;

    (b) Experience gained at the rate of less than 2 months per calendar year; or

    (c) Experience obtained during a time period in which the sanitarian-in-training's job performance has been rated as unsatisfactory in writing by that individual's supervisor.

E. Training and Education.

  (1) The Board shall identify each of the study areas on the license examination and the approximate number of questions that the examination contains for each area.

  (2) The Board shall, upon request, classify approved training into the study areas identified under §E(1) of this regulation.

### Chapter 02 — Licensing Procedures and Fees

**Authority:** Environment Article, §§11-101, 11-205, 11-305, 11-307, 11-309, 11-314, and 11-315, Annotated Code of Maryland

**Administrative History:** Effective date: September 8, 1986 (13:18 Md. R. 2021)

**Administrative History:** Chapter recodified from COMAR 10.55.02 to COMAR 26.07.02

**Administrative History:** Regulation .01B amended effective October 15, 1990 (17:20 Md. R. 2431)

**Administrative History:** Regulation .02E amended effective October 15, 1990 (17:20 Md. R. 2431)

**Administrative History:** Regulation .03D amended effective October 15, 1990 (17:20 Md. R. 2431)

**Administrative History:** Regulation .04C and D amended effective October 15, 1990 (17:20 Md. R. 2431)

**Administrative History:** Regulation .10 amended effective October 15, 1990 (17:20 Md. R. 2431)

**Administrative History:** Regulations .01—.10 repealed and new Regulations .01—.09 adopted effective January 1, 1997 (23:26 Md. R. 1861)

**Administrative History:** Regulation .05D adopted effective June 19, 2006 (33:12 Md. R. 998)

#### Regulation .01 Application Procedure.

*COMAR 26.07.02.01*

A. A person applying for a license or certificate of eligibility shall:

  (1) Submit the appropriate application in writing on a form provided by the Board;

  (2) Pay the application fee established by Regulation .09 of this chapter;

  (3) Have official transcripts of all baccalaureate and post-baccalaureate studies submitted in accordance with §B of this regulation; and

  (4) Have verification of previous experience, if applicable, submitted in accordance with §C of this regulation.

B. Transcripts.

  (1) Official transcripts of all baccalaureate and post-baccalaureate studies shall be submitted directly to the Board from the appropriate educational institutions.

  (2) If official transcripts are not available, the Board may accept other evidence certifying successful completion of course work considered equivalent by the Board.

  (3) A graduate of an educational institution that is not an accredited college or university shall provide written documentation from an evaluation service, or other source acceptable to the Board, which:

    (a) States that the institution's program of study is substantially equivalent to that of accredited colleges or universities; and

    (b) Shows that the course work completed by the applicant satisfies the requirements of COMAR 26.07.01.03B.

C. An applicant for a license who claims experience as an environmental sanitarian shall have three reference letters submitted directly to the Board from the applicant's current or former employers or supervisors describing the nature and duration of the applicant's experience.

#### Regulation .02 Incomplete Application.

*COMAR 26.07.02.02*

A. The Board may not take any action on an incomplete application.

B. An application is not complete until all required material, including the fee and supporting documentation, has been received by the Board.

C. An incomplete application shall be held for 1 year from the date of initial receipt, after which the application is invalid.

#### Regulation .03 Action on an Application.

*COMAR 26.07.02.03*

A. Notification to Applicant. Following its review of the application, the Board shall notify the applicant in writing that the applicant:

  (1) Qualifies for a license under COMAR 26.07.01.03 or .04;

  (2) Qualifies for examination or a certificate of eligibility under COMAR 26.07.01.03;

  (3) Does not qualify to receive a license or a certificate of eligibility, or to take the examination, for one or more of the reasons set forth in §C of this regulation; or

  (4) Shall provide the Board with additional information before the Board can complete its review of the application.

B. Payment of License Fee.

  (1) Following notification of license approval, the applicant shall pay to the Board the licensing fee established in Regulation .09 of this chapter.

  (2) The license may not be issued until the fee is paid to the Board.

C. Denial of an Application.

  (1) The Board shall deny an application if the Board determines that the applicant:

    (a) Has failed to demonstrate that the applicant qualifies for licensure, examination, or issuance of a certificate in accordance with §A(1) or (2) of this regulation; or

    (b) Has committed any act which, under COMAR 26.07.04.01, would subject the licensee to disciplinary action by the Board.

  (2) If the Board denies an application, the Board shall:

    (a) Notify the applicant by certified mail of the reasons for denial;

    (b) Advise the applicant of the procedures for reconsideration under §D of this regulation if the application was denied under §C(1)(a) of this regulation; and

    (c) Follow the procedures set forth in COMAR 26.07.04 if the application was denied under §C(1)(b) of this regulation.

D. Reconsideration.

  (1) If the Board denies an application for licensure under Regulation .03C(1)(a) of this chapter, or denies an application to renew a license under Regulation .06 of this chapter, the applicant may request reconsideration of the denial by submitting new or additional information to the Board.

  (2) Requests for reconsideration under §D(1) of this regulation shall be based upon one or more of the following grounds:

    (a) Clerical errors in the minutes, decisions, or other parts of the record related to the denial;

    (b) Mistake of fact or law by the Board;

    (c) Irregularity in the administrative proceedings related to, or in the consideration of, the application;

    (d) Newly discovered or additional evidence that the applicant could not have discovered by due diligence in time to be considered as part of the initial denial.

  (3) Requests for reconsideration shall be submitted to the Board in writing by certified mail within 30 days of receipt of the denial under §C of this regulation.

#### Regulation .04 Examination.

*COMAR 26.07.02.04*

A. The Board shall offer written examinations at least three times a year.

B. The examination shall be standardized and prepared by a recognized examination service.

C. The passing score for the examination is 70 percent.

D. An applicant who has not previously taken the written examination is permitted to sit for an examination if the applicant has:

  (1) Met the education and experience requirements set forth in COMAR 26.07.01.03;

  (2) Submitted an application for examination to the Board at least 21 days before the examination date; and

  (3) Paid an examination fee as established by Regulation .09E of this chapter.

E. Except as provided in §F of this regulation, an applicant who fails the examination may apply for reexamination if the applicant submits an application in accordance with §D(2) and (3) of this regulation.

F. An applicant who has failed the examination three times is not permitted to sit for reexamination unless the applicant has:

  (1) Completed additional training in accordance with a plan approved by the Board; and

  (2) Submitted an application for examination in accordance with §D(2) and (3) of this regulation.

#### Regulation .05 Certificates.

*COMAR 26.07.02.05*

A. Certificate of Eligibility for Obtaining Employment.

  (1) The Board shall issue a certificate of eligibility for obtaining employment to an applicant who:

    (a) Meets the educational requirements set forth in COMAR 26.07.01.03;

    (b) Has submitted an application in accordance with Regulation .01 of this chapter;

    (c) Is not currently practicing as an environmental sanitarian in Maryland; and

    (d) Has not previously completed a sanitarian-in-training program under a sanitarian-in-training certificate or a certificate of eligibility for supervised training from the Board.

  (2) The certificate of eligibility for obtaining employment shall expire 12 months after the issuance date, and may be renewed at 12-month increments if the certificate holder:

    (a) Submits a request for renewal on a form provided by the Board; and

    (b) Forwards the form to the Board together with the renewal fee established by Regulation .09 of this chapter.

B. Sanitarian-In-Training Certificates.

  (1) The Board shall issue a sanitarian-in-training certificate to an applicant who has been employed to practice as an environmental sanitarian under a certificate of eligibility for obtaining employment issued by the Board, if the applicant:

    (a) Has returned a completed certificate of eligibility for obtaining employment to the Board;

    (b) Is participating in a sanitarian-in-training program approved by the Board.

  (2) The sanitarian-in-training certificate shall expire 36 months after its effective date unless the expiration date has been extended in writing by the Board in accordance with §D(3) of this regulation.

C. Active Certificates of Eligibility for Supervised Training.

  (1) The Board shall replace a certificate of eligibility for supervised training with a sanitarian-in-training certificate if:

    (a) The certificate of eligibility for supervised training expires after the effective date of these regulations; and

    (b) The certificate holder is employed to practice as an environmental sanitarian.

  (2) A sanitarian-in-training certificate issued under §C(1) of this regulation expires 36 months after the date that the certificate holder began the period of supervised training.

D. Expired Certificates of Eligibility for Supervised Training.

  (1) The Board shall issue a sanitarian-in-training certificate to an individual who holds a certificate of eligibility for supervised training that expired before the effective date of these regulations if the certificate holder:

    (a) Is employed to practice as an environmental sanitarian; and

    (b) Applies to the Board on a form supplied by the Board.

  (2) A sanitarian-in-training certificate issued under §D(1) of this regulation expires 12 months after its issuance date.

  (3) Upon a written request from the holder of a sanitarian-in-training certificate, the Board may extend a sanitarian-in-training certificate for up to 6 months due to physical incapacitation of the sanitarian-in-training or for other reasons acceptable to the Board.

  (4) If the holder of a sanitarian-in-training certificate is employed on a seasonal basis, the Board, upon written request from the holder of the sanitarian-in-training certificate, may extend the certificate for the number of months necessary to complete the sanitarian-in-training program under COMAR 26.07.01.05.

#### Regulation .06 Renewal of Licenses.

*COMAR 26.07.02.06*

A. Conditions for License Renewal.

  (1) The Board shall renew a license for a 2-year period if the licensee has:

    (a) Submitted an application for renewal to the Board before the expiration date of the license;

    (b) Paid the renewal fee established by Regulation .09 of this chapter;

    (c) Submitted satisfactory proof to the Board that the licensee has completed at least 20 clock hours of Board-approved training obtained during the 2-year period before the license expiration date; and

    (d) Not committed any act which, under COMAR 26.07.04.01, would subject the licensee to disciplinary action by the Board.

  (2) The Board may deny the application to renew a license if the applicant has failed to satisfy the requirements of §A(1) of this regulation.

B. Renewal Notification.

  (1) Before the expiration of a license, the Board shall notify the licensee of the need to renew the license.

  (2) The failure of a licensee to receive a renewal notice does not relieve the licensee of the obligation to renew the license and does not affect the expiration of the license.

C. Late Renewal. A license holder may apply for late renewal of a license by submitting the following to the Board within 30 days after the expiration date of the license:

  (1) A written request for renewal on a form provided by the Board;

  (2) Documentation that the applicant has satisfied the training requirement set forth in §A of this regulation; and

  (3) Payment of the license renewal fee and the late renewal fee established by Regulation .09 of this chapter.

#### Regulation .07 Duplicate License.

*COMAR 26.07.02.07*

A licensee may obtain a duplicate license to replace a license that has been lost, destroyed, or mutilated if the licensee:

A. Makes a written request to the Board that states the reason for requesting a duplicate license; and

B. Pays to the Board the duplicate license fee established by Regulation .09 of this chapter.

#### Regulation .08 Reinstatement.

*COMAR 26.07.02.08*

The Board shall reinstate the license of an environmental sanitarian who has failed to renew the license for any reason, if the environmental sanitarian:

A. Applies for reinstatement;

B. Demonstrates that the environmental sanitarian has completed at least 10 clock hours of Board-approved training for each year since the individual's license was last renewed;

C. Pays to the Board:

  (1) All lapsed renewal fees, and

  (2) The reinstatement fee established by Regulation .09 of this chapter; and

D. Has not committed any act which, under COMAR 26.07.04.01, would subject the applicant to disciplinary action by the Board.

#### Regulation .09 Payment of Fees.

*COMAR 26.07.02.09*

A. Payment of fees under this regulation shall be in the form of a personal check, cashier's check, or money order, made payable to the Board of Environmental Sanitarians.

B. Fees shall accompany the completed application form for certificate issuance, examination, license issuance, license renewal, late license renewal, or license reinstatement.

C. All fees are nonrefundable.

D. The examination fee is the cost as established by the examination service.

E. The following fees apply:

  (1) Application for license or certificate of eligibility for obtaining employment ... $50;

  (2) 12-month renewal of certificate of eligibility for obtaining employment ... $25;

  (3) Application for licensure by reciprocity ... $50;

  (4) License approval and issuance ... $50;

  (5) Biennial license renewal ... $100;

  (6) Late renewal of biennial license (in addition to required license renewal fee) ... $50;

  (7) Reinstatement of license (in addition to required license renewal fee) ... $100;

  (8) Returned check charge (plus bank charges) ... $25;

  (9) Replacement of license ... $25;

  (10) Examination score verification ... $25;

  (11) Copy of roster of current license holders ... $25.

### Chapter 03 — Approved Training

**Authority:** Environment Article, §§11-101, 11-205, 11-305, 11-307, 11-309, 11-314, and 11-315, Annotated Code of Maryland

**Administrative History:** Effective date: September 8, 1986 (13:18 Md. R. 2021)

**Administrative History:** Chapter recodified from COMAR 10.55.03 to COMAR 26.07.03

**Administrative History:** Regulation .03 amended effective October 15, 1990 (17:20 Md. R. 2431)

**Administrative History:** Regulations .01 and .02 repealed and Regulations .03 and .04 recodified to Regulations .01 and .02 effective January 1, 1997 (23:26 Md. R. 1861)

#### Regulation .01 Approval of Training.

*COMAR 26.07.03.01*

A. Board-approved training shall be designed to improve, advance, or extend professional skill and knowledge relating to the practice of an environmental sanitarian.

B. For courses for which continuing education units (CEUs) have been assigned, one CEU is equivalent to 10 clock or classroom hours of approved training.

C. Board-approved training may consist of participation in any of the following:

  (1) College-level or post-graduate course work given by an accredited college or university;

  (2) Courses, seminars, workshops, or lectures;

  (3) Extension studies and correspondence courses, if there is satisfactory proof of completion, acceptable to the Board;

  (4) In-service training, if there is satisfactory proof of completion;

  (5) Papers published in professional journals and requiring peer review;

  (6) Instruction of approved training courses, with up to 10 hours in approved training courses per renewal period accepted.

D. Approved Training Log. The Board will maintain a current list of all training that has been approved by the Board and that listing is to be called the Approved Training Log.

E. Assignment of Credit.

  (1) The Board will determine the hours of approved training as follows:

    (a) For courses given in educational institutions, 1 hour of approved training is equivalent to 1 hour of classroom training;

    (b) Credit hours for training such as correspondence courses and extension studies and papers shall be determined by the Board on a case-by-case basis.

  (2) Approved training obtained within the appropriate license renewal period shall be credited.

  (3) Credit shall be received for other training approved by the Board on a case-by-case basis.

F. Procedures. The sponsor of a training course or licensee may request of the Board approval of training on a form provided by the Board.

#### Regulation .02 Proof of Training.

*COMAR 26.07.03.02*

A. Each registered environmental sanitarian shall be responsible for the submission of proof of all approved training to the Board.

B. Proof of training consists of:

  (1) Official transcripts from the educational institution;

  (2) A certificate or other documentation signed by the instructor or sponsor of the training, attesting to the satisfactory completion of the training;

  (3) Other documentation determined by the Board to be adequate, in light of the nature of the training, to establish that training was actually received by the applicant.

### Chapter 04 — Basis for Disciplinary Action

**Authority:** Environment Article, §§11-314 and 11-315, Annotated Code of Maryland

**Administrative History:** Effective date: September 8, 1986 (13:18 Md. R. 2021)

**Administrative History:** Chapter recodified from COMAR 10.55.04 to COMAR 26.07.04

#### Regulation .01 Denials, Reprimands, Suspensions, and Revocation.

*COMAR 26.07.04.01*

Subject to the hearing provision of Environment Article, §11-315, Annotated Code of Maryland, the Board, on the affirmative vote of a majority of its full authorized membership, may deny any applicant licensure, reprimand any licensee, or suspend or revoke a license, if the applicant or licensee:

A. Fraudulently or deceptively obtains or attempts to obtain a license for the applicant or licensee or for another;

B. Fraudulently or deceptively uses a license;

C. Knowingly violates a provision of Environment Article, Title 11, Annotated Code of Maryland or a regulation under this subtitle;

D. Commits any gross negligence, incompetence or misconduct while performing the duties of an environmental sanitarian;

E. Is convicted of or pleads guilty to or nolo contendere to a felony or to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to the conviction or plea set aside;

F. Provides professional services while:

  (1) Under the influence of alcohol, or

  (2) Using any narcotic or controlled dangerous substance, as defined in the Criminal Law Article, Annotated Code of Maryland, or other drug that is in excess of therapeutic amounts or without valid medical indication;

G. Is disciplined by a licensing or disciplinary authority of any other state or country or convicted or disciplined by a court of any state or country of an act that would be grounds for disciplinary action under the Board's disciplinary statutes;

H. Willfully makes or files a false report or record, while performing the duties of an environmental sanitarian;

I. Willfully fails to file or record a report as required by law, willfully impedes or obstructs the filing or recording or induces another to fail to file or record the report;

J. Submits a false statement to collect a fee;

K. Promotes the sale of land, devices, appliances, or goods provided for a person in such a manner as to exploit the person for financial gain of the registered environmental sanitarian;

L. Willfully alters a sample, or any test procedure to cause the results upon analysis to represent a false finding;

M. Violates any rule or regulation adopted by the Board;

N. Uses or promotes or causes the use of misleading, deceiving, untruthful advertising matter, promotional literature, or testimonial; or

O. Is professionally, physically, or mentally incompetent.

#### Regulation .02 Hearing Procedures.

*COMAR 26.07.04.02*

A. Notice of Hearing.

  (1) All interested parties shall be afforded an opportunity to be present at formal hearings.

  (2) Written notice of the hearing shall be sent by the Secretary of the Board to all interested parties at least 30 days before the hearing. The notice shall state the date, time and place of the hearing and shall also state the issues or charges involved in the proceeding.

  (3) If by reason of the nature of the proceeding, the issues cannot be fully stated in advance of the hearing , or if subsequent amendment of the issues is necessary, they shall be fully stated as soon as practicable.

B. Pre-hearing Conferences. The Board may set pre-hearing conferences as it considers appropriate.

C. Parties and Representation. All parties shall have the right to be accompanied, represented, and advised by counsel.

D. Records and Transcript.

  (1) The Board shall prepare an official record, which shall include all pleadings, testimony, exhibits, and other memoranda or material filed in the proceeding.

  (2) Unless waived by all parties, a stenographic record of the proceedings shall be made at the expense of the Board.

  (3) This record need not be transcribed unless requested by a party or by the Board. The cost of typewritten transcripts of a proceeding, or part of a proceeding, shall be paid by the party requesting the transcript.

E. Presiding Officer Duties.

  (1) Hearings shall be held before a quorum of the Board.

  (2) The Chairman, or in the Chairman's absence a member designated by the Chairman, shall be the presiding officer, and shall have complete charge of the hearing, permit the examination of witnesses, admit evidence, rule on the admissibility of evidence, and adjourn or recess the hearing from time to time.

F. Order of Procedure. The order in which the parties shall present their case shall be determined by the presiding officer.

G. Examination of Witnesses and Introduction of Evidence.

  (1) The rules of evidence in all hearings under these regulations are set forth in State Government Article, §10-208, Annotated Code of Maryland.

  (2) A party may submit evidence, examine and cross-examine witnesses, and file objections, exceptions, and motions.

  (3) When a party is represented by counsel, all submission of evidence, examination and cross-examination of witnesses, and filing of objections, exceptions, and motions shall be done and presented solely by the counsel.

  (4) The presiding officer:

    (a) May examine a witness called by another party; and

    (b) May call as a witness a person in attendance at the hearing.

  (5) A member of the Board may examine a witness called by another party.

H. Briefs.

  (1) A party may submit briefs of the issues of fact and law involved in the hearing.

  (2) The briefs shall be filed in the form, with the number of copies, and at the time that the presiding officer designates.

I. Request for Office of the Attorney General Counsel.

  (1) The presiding officer may request the Office of the Attorney General to participate in a hearing as counsel for the Board.

  (2) The counsel shall have all of the rights as counsel for a party with regard to the:

    (a) Submission of evidence;

    (b) Examination and cross-examination of witnesses; and

    (c) Filing of objections, exceptions, and motions.

J. Decision and Order.

  (1) Each decision and order rendered by the Board shall be in writing and shall be accompanied by findings of fact and conclusions of law.

  (2) Findings of fact shall consist of a concise statement of the conclusions upon each contested issue of fact.

  (3) A copy of the decision and order and accompanying findings and conclusions shall be delivered or mailed promptly to each party or the attorney of record.

K. Re-Hearing.

  (1) A party aggrieved by the decision and order rendered in the particular case may apply for re-hearing within 10 days after notification of the decision and order.

  (2) Action on the application shall lie in the discretion of the Board.

  (3) Unless otherwise ordered, neither the re-hearing nor the application for rehearing shall stay the enforcement of the order or excuse the persons affected by it for failure to comply with its terms.

  (4) The Board may on re-hearing consider facts not presented in the original hearing, including facts arising after the date of the original hearing, and may by new order abrogate, change, or modify their original order.

### Chapter 05 — Code of Ethics

**Authority:** Environment Article, §11-312, Annotated Code of Maryland

**Administrative History:** Effective date: December 8, 2005 (32:24 Md. R. 1906)

#### Regulation .01 Ethical Conduct.

*COMAR 26.07.05.01*

An applicant for a license as an environmental sanitarian or a licensee shall:

A. Protect and promote the health and safety of the public and the environment through the advancement of public and environmental health; and

B. Promote environmental health and the related professions through experience and continuing education training.

#### Regulation .02 Unethical Conduct.

*COMAR 26.07.05.02*

It is unethical for an applicant for a license as an environmental sanitarian or a licensee to:

A. Engage in conduct prohibited by Environment Article, §11-312(b), Annotated Code of Maryland, or COMAR 26.07.04.01;

B. Where applicable, engage in conduct prohibited by State Public Ethics Law, State Government Article, §§15-501—15-509, Annotated Code of Maryland;

C. Where applicable, engage in conduct prohibited by a county or municipal ethics law adopted pursuant to State Government Article, Title 15, Subtitle 8, Annotated Code of Maryland;

D. Refuse a professional service based on race, creed, color, or national origin;

E. Willfully disregard any observed, known, or continued violation of any federal, State, or local law or regulation regarding public or environmental health;

F. Falsify or misrepresent any qualifications or information required to be set forth in any application for licensure or other submission to the board required under Environmental Article, Title 11, Annotated Code of Maryland;

G. Knowingly become involved in an actual or perceived conflict of interest unless:

  (1) The conflict can be legally waived; and

  (2) Waiver is obtained in writing from all affected parties;

H. If a conflict of interest arises, fail to disclose the conflict of interest to all affected parties;

I. Accept gifts or gratuities in exchange for preferential regulatory treatment;

J. Offer gifts or gratuities to a regulatory authority with expectation of preferential regulatory treatment; and

K. Disclose confidences or other proprietary information.

## Subtitle 08 — Water Pollution

### Chapter 01 — General

**Authority:** Environment Article, §§9-313—9-316, 9-319, 9-320, 9-325, 9-327, and 9-328, Annotated Code of Maryland

**Administrative History:** Effective date: September 1, 1974 (1:1 Md. R. 33)

**Administrative History:** Annotation: Regulations .01—.06 and .08—.13 were transferred from the Department of Natural Resources (COMAR 08.05.04) pursuant to Executive Order 01.01.1980.04, effective July 1, 1980 (7:13 Md. R. 1277)

**Administrative History:** Annotation: COMAR 10.50.01 cited in Harcum v. Department of Health and Mental Hygiene, Circuit Court for Wicomico County, Docket No. CG 2/42 (March 18, 1985)

**Administrative History:** Annotation: COMAR 10.50.01.08H cited in Citizens for Rewastico Creek v. Commissioners of Hebron, 67 Md. App. 466 (1986)

**Administrative History:** Annotation: COMAR 10.50.01.01 and .11 recodified to COMAR 26.08.01.01 and .02, respectively.

**Administrative History:** Regulation .01 amended effective August 3, 1981 (8:15 Md. R. 1308)

**Administrative History:** Regulation .01A amended effective January 28, 1985 (12:2 Md. R. 141)

**Administrative History:** Regulation .01B amended effective December 5, 1974 (1:6 Md. R. 278); April 21, 1978 (5:8 Md. R. 593); May 24, 1982 (9:10 Md. R. 1022); June 6, 1983 (10:11 Md. R. 976); December 19, 1983 (10:25 Md. R. 2269); January 28, 1985 (12:2 Md. R. 141); August 26, 1985 (12:17 Md. R. 1706); February 19, 1990 (17:3 Md. R. 301); April 16, 1990 (17:7 Md. R. 854); June 7, 1993 (20:11 Md. R. 917); January 2, 1995 (21:26 Md. R. 2195); November 6, 1995 (22:22 Md. R. 1670); August 29, 2005 (32:17 Md. R. 1440); January 12, 2009 (36:1 Md. R. 24); April 19, 2010 (37:8 Md. R. 619); April 28, 2014 (41:8 Md. R. 474); November 23, 2015 (42:23 Md. R. 1435)

**Administrative History:** Regulation .02 amended effective April 21, 1978 (5:8 Md. R. 593); July 11, 1980 (7:14 Md. R. 1348); June 18, 2018 (45:12 Md. R. 619)

#### Regulation .01 Definitions.

*COMAR 26.08.01.01*

A. General.

  (1) The following definitions describe the meaning of terms used in the water quality and water pollution control regulations of the Department of the Environment (COMAR 26.08.01—26.08.04).

  (2) The terms “discharge”, “discharge permit”, “disposal system”, “effluent limitation”, “industrial user”, “national pollutant discharge elimination system”, “person”, “pollutant”, “pollution”, “publicly owned treatment works”, and “waters of this State” are defined in the Environment Article, §§1-101, 9-101, and 9-301, Annotated Code of Maryland. The definitions for these terms are provided below as a convenience, but persons affected by the Department's water quality and water pollution control regulations should be aware that these definitions are subject to amendment by the General Assembly.

B. Terms Defined.

  (1) “Acute toxicity” means the capacity or potential of a substance to cause the onset of deleterious effects in living organisms over a short-term exposure as determined by the Department.

  (2) “Administrative order” means a written notification issued by the Department under State law and regulations, and requiring correction of a water pollution condition or compliance with provisions of pertinent law and regulations.

  (3) “Advanced waste treatment” means treatment of wastes or wastewaters to:

    (a) Reduce the level of specific constituents which are not sufficiently controlled by best available technology (BAT) for industrial discharges or by secondary treatment for municipal discharges; or

    (b) Reduce organic oxygen demand beyond the level attainable by BAT or secondary treatment to comply with waste load allocations in water quality limited waters.

  (4) “Affiliate” means a person who wholly or partially owns a controlling interest in, controls, or operates the applicant, or who is wholly or partially owned, controlled, or operated by the applicant.

  (5) “Alternate effluent limitations” means all effluent limitations or standards of performance for the control of the thermal component of any discharges which are established under the Environment Article, Title 9, Subtitle 3, Annotated Code of Maryland, and COMAR 26.08.03.03.

  (5-1) “Animal feeding operation (AFO)” means a feedlot or facility where:

    (a) Non-aquatic animals are confined, fed, and maintained for at least 45 days in any 12-month period; and

    (b) Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.

  (5-2) Animal Waste.

    (a) “Animal waste” means liquid or solid waste, or both, from animal feeding, milking, holding, or other animal operations.

    (b) “Animal waste” includes manure, poultry litter, offal, and process wastewater generated by an AFO.

  (6) “Aquifer” means any formation of soil, sand, rock, gravel, limestone, sandstone, or other material, or any crevice from which underground water is or may be produced.

  (7) “Average ebb tidal excursion” means the average velocity (feet/second) of the ebb tide passing through the cross section of the receiving waters at the point of discharge, multiplied by the duration of the tide (slack before ebb to slack before flood). The average velocity shall be determined from measurement of transect velocities at three neap tides with low fresh water input and three spring tides with high fresh water input.

  (8) “Balanced indigenous community” means a biotic community typically characterized by diversity, the capacity to sustain itself through cyclic seasonal changes, presence of necessary food chain species, and by a lack of domination by pollution-tolerant species. This community may include historically non-native species introduced in connection with a program of wildlife management and species whose presence or abundance results from substantial, irreversible environmental modifications. Normally, however, this community does not include species whose presence or abundance is attributable to:

    (a) The introduction of pollutants that will be eliminated by compliance by all sources with effluent limitations; and

    (b) Alternate effluent limitations imposed under COMAR 26.08.03.03.

  (9) “Base flow” means the discharge entering stream channels from ground water or other delayed sources; that is, stream flow periods not affected by recent rainfall.

  (9-1) “Benthos” means a group of organisms, often invertebrates that live in or on the bottom in aquatic habitats.

  (10) “Best available technology (BAT)” means, for discharges from industrial facilities, the best existing wastewater treatment technology economically achievable within an industrial category. BAT is equivalent to the EPA effluent limitation guidelines in the Federal Act for best available technology economically achievable and best conventional pollutant control technology (BCT). For discharges from all sewage treatment facilities, BAT means the secondary treatment levels specified by the Department in discharge permits.

  (11) “Biocide residual” means the level remaining in an effluent of a chemical substance added as part of the treatment process for the purpose of controlling bacteria, fungi, algae, or other microorganisms. This term includes chlorine and ozone.

  (11-1) “Chesapeake Bay” means all tidally-influenced waters within the Chesapeake Bay watershed.

  (11-2) “Chesapeake Bay program segment” means a segment or segments of the Chesapeake Bay mainstem or its tidal tributaries the boundaries of which are defined by a set of georeferenced points.

  (11-3) “Chlorophyll a” means one of three green pigments in plant cells, used as a measure of productivity in aquatic environments. Elevated levels of nutrients are usually reflected in corresponding elevations in chlorophyll a.

  (12) “Chronic toxicity” means the capacity or potential of a substance to cause deleterious effects in living organisms over a long-term exposure as determined by the Department.

  (12-1) “Coal remining” means a coal mining operation which begins after January 2, 1995 at a site on which coal mining was conducted before August 3, 1977, the effective date of the federal Surface Mining Control and Reclamation Act of 1977.

  (13) “Coliform organisms” means all of the aerobic and facultative anaerobic, gram-negative, non-spore-forming, rod-shaped bacteria that ferment lactose broth with gas formation within 48 hours at 35°C.

  (13-1) “Comprehensive nutrient management plan (CNMP)” means a nutrient management and conservation plan that is developed in accordance with the Natural Resources Conservation Service (NRCS) planning policy and meets NRCS technical standards.

  (13-2) “Concentrated animal feeding operation (CAFO)” means:

    (a) A medium AFO or large AFO, based upon the size categories established in Table 1 of COMAR 26.08.03.09A, that discharges or proposes to discharge, as defined by the Federal Act, to surface waters of this State;

    (b) A small AFO designated a CAFO by the Department in accordance with COMAR 26.08.03.09B; or

    (c) An AFO designated as a CAFO by the Regional Administrator (RA) of the EPA in accordance with the Federal Act.

  (14) “Control” means the possession of the power to direct or cause the direction of the management policies of a person.

  (15) “Criteria” means elements of State water quality standards expressed as constituent concentrations, levels, or narrative statements representing a quality of water that supports a particular use.

  (16) “Critical periods” means that time of the year during which sensitive life stages or densities of representative important species (RIS) are present in the plant intake or receiving waters.

  (17) “Department” means the Department of the Environment.

  (18) “Design stream flow” means the minimum 7 consecutive day average stream discharge having a recurrence interval of 10 years.

  (19) “Designated use” means those uses specified in the State's water quality standards for each water body or segment whether or not the uses are being attained.

  (20) “Discharge” means:

    (a) The addition, introduction, leaking, spilling, or emitting of any pollutant to waters of this State; or

    (b) The placing of a pollutant in a location where the pollutant is likely to pollute.

  (21) “Discharge permit” means a permit issued by the Department for the discharge of any pollutant or combination of pollutants into the waters of this State.

  (22) “Disposal system” means a system for disposing of wastes by surface, above surface, or underground methods. Disposal system includes a treatment works and a disposal well.

  (22-1) “Dissolved oxygen” means gaseous oxygen that is dissolved in the water.

  (23) “Effluent” means the outflow of treated or untreated waste from an industrial process, holding tank, pond, sewer, or other point source into the waters of this State.

  (24) “Effluent limitation” means any restriction or prohibition that:

    (a) Is established under federal law or a law of this State;

    (b) Specifies quantities, rates or concentrations of chemical, physical, biological, or other constituents that are discharged into the waters of this State;

    (c) Includes:

      (i) Parameters for the discharge of toxic and nontoxic substances, and

      (ii) Standards of performance for new sources.

  (25) “Effluent limited waters” means waters of this State which the Department has identified as those in which BAT for industrial discharges and secondary treatment for sewage discharges is sufficiently stringent to maintain applicable water quality standards.

  (26) “Emergency conditions” means those circumstances resulting from a permittee's actions, or lack of actions, which the Department determines constitute a present or imminent danger to the public health, welfare, or the environment.

  (27) “Entrainment” means the incorporation of organisms into the cooling water flow.

  (28) “EPA” means the United States Environmental Protection Agency, or its successor.

  (28-1) “Epifauna” means organisms that live upon aquatic substrates.

  (29) “Estuary” means a semi-enclosed coastal body of water having a free connection with the open sea and within which the seawater is measurably diluted with fresh water deriving from land drainage.

  (30) “Eutrophication” or “eutrophic” means:

    (a) The excessive enrichment of the waters of this State by the discharge to or addition of nutrients; or

    (b) The degradation of water quality or undesirable ecological changes as indicated by excessive rooted or dispersed plant growth, loss of water clarity, or nuisance conditions.

  (31) “Existing use” means those uses actually attained in the water body after November 27, 1975, whether or not the uses are included in the water quality standards.

  (32) “Fecal coliform” means the portion of the coliform bacteria group which is present in the gut or the feces of warm-blooded animals. It generally includes organisms which are capable of producing gas from lactose broth in a suitable culture medium within 24 hours at 44.5° +=/-0.5°C.

  (33) “Federal Act” means the Federal Water Pollution Control Act (33 U.S.C. §1251 et seq.), its amendments, and all regulations and rules adopted under the Act.

  (34) “Fish” means any of numerous cold-blooded aquatic vertebrates of the Superclass Pisces, characteristically having fins, gills and a streamlined body. Fish includes:

    (a) Any of the Class Osteichthyes having a bony skeleton;

    (b) Any of the Class Chondrichthyes, having a cartilaginous skeleton (sharks, rays, and skates); and

    (c) Any of the Class Agnatha which lack jaws (lampreys and hagfishes).

  (35) “General permit” is a discharge permit issued to a class of dischargers.

  (36) “Ground water” means underground water in a zone of saturation.

  (36-1) “Hydrodemolition” means a concrete removal technique which utilizes high-pressure water to remove deteriorated and sound concrete as well as asphalt and grout.

  (37) “Impingement” means the blocking of larger organisms by a structure in the cooling water intake system.

  (38) “Includes” or “including” means includes or including by way of illustration and not by way of limitation.

  (39) “Industrial user” means:

    (a) A person who is engaged in manufacturing, fabricating, or assembling goods; or

    (b) A member of any class of significant producers of pollutants identified under regulations adopted by:

      (i) The Department, or

      (ii) The Administrator of the United States Environmental Protection Agency.

  (40) “Industrial waste” means any liquid, gaseous, solid, or other waste substance, or combination thereof, resulting from:

    (a) Any process of industry, manufacturing, trade or business; or

    (b) The development of any natural resource, including agriculture.

  (40-1) “Infauna” means organisms that live within the sediment in aquatic substrates.

  (41) “Interference” means:

    (a) An inhibition or disruption of a POTW, its treatment processes or operations, or its sludge generation processes or utilization which causes a violation of any requirement of the POTW's discharge permit or which prevents sewage sludge utilization by the POTW in accordance with the following statutory provisions and regulations or permits issued under them:

      (i) Section 405 of the Clean Water Act;

      (ii) The Solid Waste Disposal Act (SWDA) (including Title II, more commonly referred to as the Resource Conservation and Recovery Act (RCRA) and any State regulations contained in any State sludge management plan prepared pursuant to Subtitle D of the SWDA);

      (iii) The Clean Air Act; and

      (iv) The Toxic Substances Control Act.

    (b) Damage to sewer systems and threats to POTW worker and public health, safety, and comfort.

  (42) “Intermittent stream” means a stream that does not have flowing surface water during dry periods of the year, but may have groundwater-based surface flow at other times.

  (42-1) “Maryland animal feeding operation (MAFO)” means an AFO that is not a CAFO and is:

    (a) A large AFO according to Table 1 of COMAR 26.08.03.09A; or

    (b) A medium AFO according to Table 1 of COMAR 26.08.03.09A, designated a MAFO in accordance with COMAR 26.08.03.09C(2).

  (43) “Material balance” means an inventory accounting system for determining quantities of materials on hand, used in process, converted to product, lost to the environment, or contained in waste matter generated, stored, discharged, or otherwise processed.

  (43-1) “Mean low water” means the average of all the low water heights observed over the National Tidal Datum Epoch.

  (43-2) “Mesohaline” means tidal waters with salinities from 5 to less than 18 parts per thousand.

  (43-3) “Minimum level” means the lowest concentration of a substance as determined by the Department that generally can be quantified within specified limits of interlaboratory precision and accuracy under routine laboratory operating conditions in the matrix of concern.

  (44) “Mixing zone” means an area contiguous to a discharge where surface water quality or ground water quality does not have to meet:

    (a) All water quality criteria; or

    (b) All requirements otherwise applicable to the natural water.

  (45) “National Pollutant Discharge Elimination System (NPDES)” means the national system for issuing permits as designated by the Federal Act.

  (46) “National pretreatment requirements” means any general pretreatment regulation established by EPA in accordance with the Federal Act.

  (47) “National pretreatment standard” means a pollutant discharge limit that:

    (a) Applies to industrial users of publicly owned treatment works; and

    (b) Is promulgated by EPA under the Federal Act.

  (48) “NPDES application” means the current revised EPA standard national forms for applying for an NPDES permit.

  (49) “NPDES permit” means the permit issued under the Federal Act.

  (50) “Natural” or “naturally occurring”, when used to describe water quality, means:

    (a) Those water quality values which exist unaffected by, or unaffected as a consequence of, any water use;

    (b) Those water quality values which exist unaffected by the discharge, or direct or indirect deposit, of any solid, liquid, or gaseous substance; or

    (c) Any other water quality values which represent conditions which the Department by its regulations defines as natural. For the purposes of this definition, the following conditions shall be considered as natural:

      (i) Infestations of water milfoil, myriophyllum spicatum,

      (ii) Infestations of water chestnut, trapa natans,

      (iii) The presence of sea lettuce, ulva lactuca, and

      (iv) The presence of sea nettles, aurelia sp.

  (51) “Natural trout waters” means waters capable of supporting self-sustaining trout populations, including propagation, and their associated food organisms.

  (52) “New source” means any source, the construction of which is commenced after the publication by the EPA of proposed regulations prescribing a standard of performance which will be applicable to the source if the standard is promulgated.

  (53) “Nontidal water” means water not subject to regular and periodic tidal action (generally freshwater).

  (53-1) “Nutrient management plan (NMP)” means a plan written by a nutrient management planner certified by the Maryland Department of Agriculture (MDA) that meets all requirements of COMAR 15.20.07 and 15.20.08 and any other requirements specified by the Department in a discharge permit issued pursuant to this subtitle.

  (53-2) Offal.

    (a) “Offal” means the refuse from slaughtered or salvageable dead animals, crustaceans, or any other animal form.

    (b) “Offal” includes heads, feet, viscera, hair, blood, feathers, bones, scales, or oils.

  (54) “Oil” means any of a number of unctuous combustible substances which are liquid at ambient temperature and atmospheric pressure, or easily liquefiable on warming and soluble in ether, and which include fuel oil, gasoline, kerosene, lubricating oil, other petroleum products, oil bearing sludge, oil refuse, oil mixed with ballast or bilge water, and oil mixed with wastes.

  (54-1) “Oligohaline” means tidal waters with salinities from 0.5 to less than 5 parts per thousand.

  (55) “Operator” means that person or those persons with responsibility for the management and performance of each facility.

  (55-1) “Opportunistic species” means an organism that tolerates or thrives in a disturbed environment, or both, and has a competitive edge in some situations.

  (56) “Other aquatic life” means all organisms, other than fish, which grow in, live in, or frequent water.

  (57) “Other waste” means garbage, refuse, wood, sawdust, shavings, bark, sand, lime, cinders, ashes, offal, oil, tar, dyestuffs, acids, chemicals, and all discarded substances other than sewage or industrial waste.

  (58) “Pass through” means discharge of pollutants through the POTW into waters of the State in quantities or concentrations which cause a violation of any requirement of the POTW's discharge permit.

  (58-1) “Percent-light-through-water (PLW)” means the amount of light reaching just above the canopy of underwater bay grasses, expressed as a fraction of the light at the water surface.

  (59) “Permeability of an aquifer” means the volume of water at the prevailing kinematic viscosity that will move in unit time under a unit hydraulic gradient through a unit area measured at right angle to the direction of flow.

  (60) “Permit” means written authorization issued by the Department under pertinent law and regulations and describing required performance for specific activities and operations.

  (61) “Permittee” means the person holding a permit issued by the Department.

  (62) “Person” means an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind, and any partnership, firm, association, corporation or other entity. Person includes the federal government, this State, any county, municipal corporation, or other political subdivision of this State or any of their units.

  (63) “Person in charge” means the person designated by an operator or permittee as the one with direct supervisory responsibility for an activity or operation at a facility.

  (64) “Point of discharge” means that location in or adjacent to a body of water at which any liquid, solid, or gaseous substances are discharged or deposited.

  (65) “Point source” means any discernible, confined and discrete conveyance, including any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, large animal feeding operation, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are, or may be, discharged.

  (66) “Pollutant” means:

    (a) Any waste or wastewater that is discharged from:

      (i) Any publicly owned treatment works, or

      (ii) An industrial source; or

    (b) Any other liquid, gaseous, solid, or other substances which will pollute any waters of this State.

  (67) “Pollution” means any contamination or other alteration of the physical, chemical, or biological properties of any waters of this State, including a change in temperature, taste, color, turbidity, or odor of the waters or the discharge or deposit of any organic matter, harmful organism, or liquid, gaseous, solid, radioactive, or other substance into any waters of this State that will render the waters harmful, or detrimental, to:

    (a) Public health, safety, or welfare;

    (b) Domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses;

    (c) Livestock, wild animals, birds; or

    (d) Fish or other aquatic life.

  (67-1) “Polyhaline” means tidal waters with salinities from 18 to 30 parts per thousand. These areas are typically in the lower portion of an estuary, where the ocean and estuary meet.

  (67-2) “Preexisting discharge” means any discharge which existed at the time of application for a coal remining discharge permit.

  (68) “Pretreatment” means a reduction in the amount of pollutants, the elimination of pollutants, or the alteration of the nature of pollutant properties in a wastewater before discharging to or otherwise introducing pollutants into a POTW.

  (69) “Pretreatment requirements” means any:

    (a) Federal pretreatment requirements and federal pretreatment standards;

    (b) Pretreatment regulations developed in accordance with Environment Article, §9-319(a), Annotated Code of Maryland;

    (c) Pretreatment requirements listed within the delegation document issued by the Department approving a pretreatment program developed by owners of a POTW;

    (d) Pretreatment requirements developed by owners of POTWs in accordance with approved pretreatment programs; or

    (e) Pretreatment requirements established in a permit or agreement between a POTW and an industrial user issued in accordance with an approved pretreatment program.

  (70) “Propagation” means the continuance of species by generation of successive production in the natural environment, as opposed to the maintenance of species by artificial culture and stocking.

  (71) “Publicly owned treatment works (POTW)” means a facility that is:

    (a) Owned by this State or a political subdivision, municipal corporation, or other public entity; and

    (b) Used for the treatment of pollutants.

  (72) “Public water supply” means any water of this State with the designated use of public water supply and which is suitable for human consumption when treated to meet the requirements of COMAR 26.04.01.

  (72-1) “Pycnocline” means the portion of the water column where density changes rapidly because of salinity, temperature, or both. In an estuary the pycnocline is the zone separating deep, cooler, more saline waters from the less saline, warmer, surface waters. The upper and lower boundaries of a pycnocline are defined by a change in density per unit of depth. The upper pycnocline is the shallowest occurrence of a density gradient of 0.1 kg/m4 or greater and the lower pycnocline depth is the deepest occurrence of a density gradient of 0.2 kg/m4.

  (73) “Receiving water” means the surface waters of this State into which waters or wastewaters are or may be discharged.

  (74) “Recreational trout waters” means cold or warm waters capable of holding or supporting adult trout for put-and-take fishing, usually seasonal.

  (75) “Refuse Act” means §13 of the River and Harbor Act of March 3, 1899.

  (76) “Refuse Act application” means the application for a permit under the Refuse Act.

  (77) “Refuse Act permit” means any permit issued under the Refuse Act.

  (78) “Regular or periodic tidal action” means the rise and fall of the sea produced by the gravitational attraction of the sun and moon unaffected by wind or any other circumstances.

  (78-1) “Remined area” means only that area of any coal remining operation on which coal mining was conducted before August 3, 1977.

  (78-2) “Restoration variance” means a temporary exception to the water quality standards allowing nonattainment of designated uses granted in situations where no enforcement action will be taken if the nonattainment is due to the existence of one or more of the justifications in 40 CFR §131.10(g). Restoration variances will be reviewed every 3 years at a minimum as required by the Clean Water Act and EPA regulations.

  (79) “Schedule of compliance” means a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with effluent limitations or water quality standards as specified by an order or permit requirement of the Department.

  (79-1) “Secchi disk” means a device for measuring water clarity that consists of a circular weighted disk painted in flat black and white in alternating quarters that is suspended on an incremented rope or line.

  (79-2) “Secchi depth” means the depth at which a Secchi disk is just visible when viewed vertically from a shaded perspective. The measure is taken by lowering the device to a depth below which it can be seen and then raising it until it is just visible.

  (80) “Secondary treatment” means the treatment of sewage to produce effluent equal to or better than the following quality:

    (a) Five-day biochemical oxygen demand:

      (i) 30 milligrams/liter—average for a 30-day period,

      (ii) 45 milligrams/liter—average for a 7-day period;

    (b) Total suspended solids:

      (i) 30 milligrams/liter—average for a 30-day period,

      (ii) 45 milligrams/liter—average for a 7-day period;

    (c) Bacterial control: As required to meet water quality standards.

  (81) “Sewage” means the water-carried domestic waste from residences, buildings, industrial establishments, or other places.

  (81-1) Sewerage System.

    (a) “Sewerage system” means:

      (i) The channels used or intended to be used to collect and dispose of sewage; and

      (ii) A structure or appurtenance used or intended to be used to collect or prepare sewage for discharge into a treatment works or the waters of the State.

    (b) “Sewerage system” includes a sewer of any size.

    (c) “Sewerage system” does not include the plumbing system inside a building served by the sewerage system.

  (82) “Shellfish harvesting waters” means waters that are actual or potential areas for the harvesting of shellfish including oysters, softshell clams, and brackish water clams.

  (83) “Sludge” means the settleable solids that are:

    (a) Naturally present in waters and wastewaters; or

    (b) Derived from nonsettleable matter by chemical coagulation and precipitation or by biological flocculation and precipitation.

  (83-1) “Soil conservation and water quality plan (conservation plan)” means a plan that is developed by a soil conservation district, MDA, a Natural Resources Conservation Service (NRCS) planner, or a technical service provider certified by the NRCS that addresses the following minimum elements:

    (a) Storage for animal manure and litter, including any need for additional storage or manure transfer;

    (b) Stabilized surfaces in heavy use areas;

    (c) Diversion of storm water away from the production area;

    (d) Maintenance of vegetation around the production area;

    (e) Construction and maintenance of filter strip or strips or water control structures between the production area and surface water; and

    (f) Mortality management.

  (84) “Source” means any building, structure, facility, or installation from which there is, or may be, a discharge of pollutants.

  (85) “Spill (spilling)” means any loss of control or release of oil or other hazardous substance that moves or is capable of moving into the aquatic environment.

  (86) “Standard of performance” means a standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives as established by the State or the Environmental Protection Agency.

  (87) “State” means the State of Maryland.

  (88) “Stream flow” means the nontidal water movement that occurs in a natural channel.

  (89) “Sub-basin” means one of the 20 watershed areas delineated by the Department and comprising, in sum total, the surface waters of the State.

  (89-1) “Submerged aquatic vegetation (SAV; underwater bay grass)” means rooted vascular plants that generally grow beneath the water surface, but may have leaves that extend to, and grow on, the surface of the water.

  (89-2) “Subpycnocline” means waters that occur below the lower level of the pycnocline.

  (90) “Surface waters” means all waters of this State which are not ground waters.

  (91) “Thermal barrier” means a pattern of artificially created temperature change and distribution.

  (91-1) “Tidal fresh” means tidal waters with salinities from 0 to less than 0.5 parts per thousand.

  (92) “Tidal water” means water subject to regular or periodic tidal action.

  (93) “Toxic substance” means any liquid, gaseous, or solid substance in a concentration which, when applied to, discharged to, or deposited in the waters of this State, may, in the judgment of the Department, exert a detrimental effect on humans or on the propagation, cultivation, or conservation of terrestrial or aquatic life.

  (94) “Transmissivity of an aquifer” means the rate at which water of the prevailing kinematic viscosity is transmitted through a unit width of the aquifer under a unit hydraulic gradient.

  (95) “Treatment works” means any plant or other works used for the purpose of treating, or stabilizing, wastes.

  (95-1) “Use Class” means the combination of waterbody type (e.g. non-tidal) and designated uses given to each waterbody.

  (96) “Vessel” means every watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on the waters of this State.

  (97) “Waste load allocation” means the identification and allotment by the Department of quantities of residual wastes which may be discharged from point sources. This allotment shall include:

    (a) Limits on the quantities of wastes which may be discharged;

    (b) Consideration of seasonal variations;

    (c) A margin of safety; and

    (d) The contribution of non-point sources.

  (98) “Waste” means industrial waste and all other liquid, gaseous, solid, or other substances which will pollute any waters of this State.

  (99) “Wastewater” means any:

    (a) Liquid waste substance derived from industrial, commercial, municipal, residential, agricultural, recreational, or other operations or establishments; and

    (b) Other liquid waste substance containing liquid, gaseous, or solid matter and having characteristics which will pollute any waters of the State.

  (100) “Water” means the liquid substance which is derived from a ground water source, a surface source, or any combination of these sources, and which will be discharged, without change in quality, into the waters of this State, with the exception of storm water runoff.

  (100-1) “Water clarity” means a relative measure of the ability of water to transmit light, expressed as a percentage of light penetrating the water in terms of expected Secchi depth for the defined waterbody.

  (100-2) “Water quality criteria” means the numeric threshold or narrative description of a water quality parameter that would be expected to support and protect a particular designated use.

  (101) “Water quality limited waters” means shellfish waters and other waters of this State for which BAT for industrial discharges and secondary treatment for sewage discharges is not sufficiently stringent to maintain applicable water quality standards.

  (102) “Watercourse” means a specific body or channel of water which is part of the waters of this State.

  (103) “Waters of this State” includes:

    (a) Both surface and underground waters within the boundaries of this State subject to its jurisdiction, including that part of the Atlantic Ocean within the boundaries of this State, the Chesapeake Bay and its tributaries, and all ponds, lake, rivers, streams, tidal and nontidal wetlands, public ditches, tax ditches, and public drainage systems within this State, other those designed and used to collect, convey, or dispose of sanitary sewage;

    (b) The flood plain of free-flowing waters determined by the Department of Natural Resources on the basis of the 100-year flood frequency.

#### Regulation .02 Principles of Water Pollution Control.

*COMAR 26.08.01.02*

A. General. In the exercise of its responsibilities to improve, conserve, and manage the quality of the waters of the State, the Department recognizes and shall utilize the general principles set forth in this regulation for decision making and action.

B. Sampling and Analysis.

  (1) Samples shall be collected, and preserved as necessary, using procedures and precautions as specified in “Guidelines Establishing Test Procedures for Analysis of Pollutants” (40 CFR 136) as amended.

  (2) Collections shall be make by trained personnel in such manner and place, and of such type, number, and frequency as to assure that samples:

    (a) Are representative of prevailing conditions; and

    (b) Will accurately reflect, upon analysis, the effect of any discharges to the waters of the State.

  (3) Analysis shall be performed according to procedures and precautions described in the above-mentioned “Guidelines Establishing Test Procedures for Analysis of Pollutants”.

C. Waste Load Allocation.

  (1) If the Department determines that compliance with the established water quality standards or nutrient control requirements cannot be achieved through the application of best practicable control technology currently available for all industrial discharges and secondary treatment for all sewage discharges within a specific river segment or water region, the Department shall impose additional restrictions in a State Discharge Permit which designate for each point source maximum quantities of wastes which may be discharged to those receiving waters.

  (2) In making the necessary allocations and determinations, the Department shall consider the relative contributions of all sources, existing and planned, including non-point sources, required control for point sources, and the potential of control for non-point sources.

D. Best Practicable Control Technology Currently Available. The State shall require the use of best practicable control technology currently available, to achieve a level of water pollution control which produces the least impact on the environment. This technology includes procedures, practices, facilities, equipment, instrumentation, and supplies for which:

  (1) Technical and economic feasibility is established to the satisfaction of the Department; and

  (2) Conditions and requirements for use have been established by the administrator of the Environmental Protection Agency in accordance with regulations promulgated pursuant to the Federal Water Pollution Control Act, as amended, Title 33, U.S.C.

E. Public Participation.

  (1) Although primary responsibility for water quality decision making is vested by law in public agencies at the various levels of government, active public involvement throughout the intergovernmental decision-making process shall be encouraged and utilized to accomplish the objectives of State and federal laws and regulations.

  (2) The Department shall made a maximum effort to seek out and involve the interested public both at the preliminary stage and throughout the process of development of regulations, plans, and other program actions.

  (3) Public meetings and citizen information and education programs on water quality shall be encouraged and assisted as a legitimate and necessary function of federal and State administration of pertinent laws and regulations.

  (4) The major objectives of public participation include greater responsiveness of governmental actions to public concerns and priorities, and improved popular understanding and support of often complex and difficult official programs and actions.

### Chapter 02 — Water Quality

**Authority:** Environment Article, §§9-303.1, 9-313 — 9-316, 9-319, 9-320 — 9-325, 9-327, and 9-328, Annotated Code of Maryland

**Administrative History:** Effective date: September 1, 1974 (1:1 Md. R. 33)

**Administrative History:** COMAR 10.50.01.02, .04, and .03 recodified to COMAR 26.08.02.01, .03, and.04, respectively

**Administrative History:** Stream Segment Classification Tables codified as Regulation .02

**Administrative History:** Regulation .01 amended effective April 21, 1978 (5:8 Md. R. 593); July 11, 1980 (7:14 Md. R. 1348); December 3, 1984 (11:24 Md. R. 2070)

**Administrative History:** Regulation .01D amended effective May 24, 1982 (9:10 Md. R. 1022)

**Administrative History:** Regulation .01I amended effective June 6, 1983 (10:11 Md. R. 976); December 19, 1983 (10:25 Md. R. 2269)

**Administrative History:** Regulation .03 amended effective August 3, 1981 (8:15 Md. R. 1308)

**Administrative History:** Regulation .03A and D amended effective December 19, 1983 (10:25 Md. R. 2269)

**Administrative History:** Regulation .04B—E amended effective July 28, 1978 (5:15 Md. R. 1187)

**Administrative History:** Regulation .04 repealed effective July 11, 1980 (7:14 Md. R. 1348)

**Administrative History:** Regulation .04 adopted effective November 18, 1985 (12:23 Md. R. 2220)

**Administrative History:** Chapter revised effective June 27, 1988 (15:13 Md. R. 1556)

**Administrative History:** Regulation .02B amended effective May 1, 1989 (16:8 Md. R. 911); October 30, 1989 (16:21 Md. R. 2263)

**Administrative History:** Regulation .05A amended effective May 1, 1989 (16:8 Md. R. 911)

**Administrative History:** Regulation .07A amended effective May 1, 1989 (16:8 Md. R. 911)

**Administrative History:** Regulation .07G amended effective October 30, 1989 (16:21 Md. R. 2263)

**Administrative History:** Regulation .08A amended effective May 1, 1989 (16:8 Md. R. 911)

**Administrative History:** Regulation .08O amended effective October 30, 1989 (16:21 Md. R. 2263)

**Administrative History:** Regulation .08Q amended effective May 1, 1989 (16:8 Md. R. 911)

**Administrative History:** Regulation .09D amended effective October 30, 1989 (16:21 Md. R. 2263)

**Administrative History:** Regulation .10E amended effective February 19, 1990 (17:3 Md. R. 303)

**Administrative History:** Regulation .11B amended effective February 19, 1990 (17:3 Md. R. 303)

**Administrative History:** Regulation .12 adopted effective February 19, 1990 (17:3 Md. R. 303)

**Administrative History:** Regulation .13 adopted effective February 19, 1990 (17:3 Md. R. 303)

**Administrative History:** Chapter revised effective April 16, 1990 (17:7 Md. R. 854)

**Administrative History:** Regulation .01B amended effective April 26, 2001 (28:2 Md. R. 101); April 28, 2014 (41:8 Md. R. 474)

**Administrative History:** Regulation .02A amended effective April 26, 2001 (28:2 Md. R. 101)

**Administrative History:** Regulation .02B amended effective August 29, 2005 (32:17 Md. R. 1440); April 19, 2010 (37:8 Md. R. 619); April 28, 2014 (41:8 Md. R. 474)

**Administrative History:** Regulation .02-1 adopted effective August 29, 2005 (32:17 Md. R. 1440)

**Administrative History:** Regulation .02-1A amended effective April 28, 2014 (41:8 Md. R. 474)

**Administrative History:** Regulation .02-1F, G amended effective October 31, 2022 (49:22 Md. R. 980)

**Administrative History:** Regulation .03A amended effective January 2, 1995 (21:26 Md. R. 2195)

**Administrative History:** Regulation .03B amended effective June 7, 1993 (20:11 Md. R. 917); July 5, 2004 (31:13 Md. R. 995)

**Administrative History:** Regulation .03-1B amended effective April 9, 2018 (45:7 Md. R. 347)

**Administrative History:** Regulation .03-2 amended effective January 7, 1991 (17:26 Md. R. 2978); June 7, 1993 (20:11 Md. R. 917); March 25, 1996 (23:6 Md. R. 477); April 26, 2001 (28:2 Md. R. 101); April 19, 2010 (37:8 Md. R. 619)

**Administrative History:** Regulation .03-2C amended effective July 5, 2004 (31:13 Md. R. 995)

**Administrative History:** Regulation .03-2D, F amended effective February 5, 2024 (51:2 Md. R. 77)

**Administrative History:** Regulation .03-2G amended effective July 19, 2004 (31:14 Md. R. 1080); November 29, 2010 (37:24 Md. R. 1660); April 28, 2014 (41:8 Md. R. 474); October 31, 2022 (49:22 Md. R. 980); February 5, 2024 (51:2 Md. R. 77)

**Administrative History:** Regulation .03-2H, I amended effective April 28, 2014 (41:8 Md. R. 474); October 31, 2022 (49:22 Md. R. 980)

**Administrative History:** Regulation .03-2I amended effective February 5, 2024 (51:2 Md. R. 77)

**Administrative History:** Regulation .03-3 amended effective July 5, 2004 (31:13 Md. R. 995); August 29, 2005 (32:17 Md. R. 1440); April 28, 2014 (41:8 Md. R. 474)

**Administrative History:** Regulation .03-3A amended effective April 9, 2018 (45:7 Md. R. 347)

**Administrative History:** Regulation .03-3C amended effective April 19, 2010 (37:8 Md. R. 619); November 29, 2010 (37:24 Md. R. 1660); April 2, 2012 (39:6 Md. R. 410); October 31, 2022 (49:22 Md. R. 980)

**Administrative History:** Regulation .03-3E amended effective October 28, 1991 (18:21 Md. R. 2311)

**Administrative History:** Regulation .03-3H adopted effective April 19, 2010 (37:8 Md. R. 619)

**Administrative History:** Regulation .03-4 adopted effective July 19, 2004 (31:14 Md. R. 1081)

**Administrative History:** Regulation .04 amended effective April 26, 2001 (28:2 Md. R. 101); October 31, 2022 (49:22 Md. R. 980)

**Administrative History:** Regulation .04A amended effective April 28, 2014 (41:8 Md. R. 474)

**Administrative History:** Regulation .04C amended effective January 7, 1991 (17:26 Md. R. 2978)

**Administrative History:** Regulation .04-1 repealed and new Regulation .04-1 adopted effective October 31, 2022 (49:22 Md. R. 980)

**Administrative History:** Regulation .04-1 adopted effective February 5, 2001 (28:2 Md. R. 104)

**Administrative History:** Regulation .04-1 recodified to be Regulation .04-2 and new Regulation .04-1 adopted effective July 19, 2004 (31:14 Md. R. 1081)

**Administrative History:** Regulation .04-1D amended effective November 29, 2010 (37:24 Md. R. 1660)

**Administrative History:** Regulation .04-1O amended effective November 29, 2010 (37:24 Md. R. 1660); April 28, 2014 (41:8 Md. R. 474); April 9, 2018 (45:7 Md. R. 347)

**Administrative History:** Regulation .04-2 repealed and new Regulation .04-2 adopted effective October 31, 2022 (49:22 Md. R. 980)

**Administrative History:** Regulation .04-3 adopted effective October 31, 2022 (49:22 Md. R. 980)

**Administrative History:** Regulation .05 amended effective June 7, 1993 (20:11 Md. R. 917)

**Administrative History:** Regulation .05A amended effective July 5, 2004 (31:13 Md. R. 995)

**Administrative History:** Regulation .05B recodified to Regulation .05-1 effective June 7, 1993 (20:11 Md. R. 917)

**Administrative History:** Regulation .05D amended effective January 17, 1994 (21:1 Md. R. 34)

**Administrative History:** Regulation .05-1 amended effective November 29, 2010 (37:24 Md. R. 1660)

**Administrative History:** Regulation .07 amended effective August 29, 2005 (32:17 Md. R. 1441)

**Administrative History:** Regulation .07E amended effective April 28, 2014 (41:8 Md. R. 474)

**Administrative History:** Regulation .07E repealed effective October 31, 2022 (49:22 Md. R. 980)

**Administrative History:** Regulation .07F, G repealed effective April 28, 2014 (41:8 Md. R. 474)

**Administrative History:** Regulation .08 repealed and new Regulation .08 adopted effective August 29, 2005 (32:17 Md. R. 1442)

**Administrative History:** Regulation .08 amended effective April 19, 2010 (37:8 Md. R. 619); April 28, 2014 (41:8 Md. R. 474); April 9, 2018 (45:7 Md. R. 347); October 31, 2022 (49:22 Md. R. 980)

**Administrative History:** Regulation .08H and J amended effective April 13, 1992 (19:7 Md. R. 747)

**Administrative History:** Regulation .08J amended effective January 17, 1994 (21:1 Md. R. 34); October 24, 1994 (21:21 Md. R. 1815); May 22, 1995 (22:10 Md. R. 708); July 5, 2004 (31:13 Md. R. 995)

**Administrative History:** Regulation .08L amended effective November 29, 2010 (37:24 Md. R. 1660)

**Administrative History:** Regulation .08N amended effective October 28, 1991 (18:21 Md. R. 2311); January 17, 1994 (21:1 Md. R. 34); October 24, 1994 (21:21 Md. R. 1815)

**Administrative History:** Regulation .08O amended effective January 17, 1994 (21:1 Md. R. 34); May 22, 1995 (22:10 Md. R. 708)

**Administrative History:** Regulation .08Q amended effective January 17, 1994 (21:1 Md. R. 34); May 22, 1995 (22:10 Md. R. 708)

**Administrative History:** Regulation .09A amended effective October 20, 1997 (24:21 Md. R. 1453); December 22, 2014 (41:25 Md. R. 1486)

**Administrative History:** Regulation .09D amended effective January 19, 2004 (31:1 Md. R. 32); May 3, 2010 (37:9 Md. R. 673)

**Administrative History:** Regulation .10B amended effective February 5, 2001 (28:2 Md. R. 104)

**Administrative History:** Regulation .11B amended effective April 28, 2014 (41:8 Md. R. 474)

#### Regulation .01 Surface Water Quality Protection.

*COMAR 26.08.02.01*

A. Purpose. To protect surface water quality, this State shall adopt water quality standards to:

  (1) Protect public health or welfare;

  (2) Enhance the quality of water;

  (3) Protect aquatic resources; and

  (4) Serve the purposes of the Federal Act.

B. Water Quality Standards.

  (1) The surface water quality standards consist of three parts:

    (a) Designated uses of the waters of this State;

    (b) Water quality criteria to protect the designated uses; and

    (c) Antidegradation Policy.

  (2) Water quality standards shall provide water quality for the designated uses of:

    (a) Water contact recreation;

    (b) Fishing;

    (c) Propagation of fish, other aquatic life, and wildlife; and

    (d) Agricultural and industrial water supply.

  (3) Waters of this State shall be protected for the basic designated uses in Regulation .02A.

  (4) Water quality standards shall consider the use and value of public water supplies.

  (5) Regulations .02—.08 of this chapter implement this State's water quality standards by:

    (a) Defining and establishing specific designated uses for the surface waters of this State;

    (b) Assigning a designated use to all surface waters;

    (c) Establishing water quality criteria for each designated use;

    (d) Defining this State's antidegradation policy;

    (e) Defining this State's criteria for mixing zones; and

    (f) Defining other water quality protective policies.

#### Regulation .02 Designated Uses.

*COMAR 26.08.02.02*

A. General.

  (1) The determination of the designated use of a water body shall include consideration of the following factors:

    (a) Existing conditions; and

    (b) Potential uses which may be made possible by anticipated improvements in water quality.

  (2) The actual uses of surface water are not limited to those designated in this chapter. Any reasonable and lawful use is permitted provided that the surface water quality is not adversely affected by the use.

B. Specific Designated Use Classes.

  (1) Class I: Water Contact Recreation, and Protection of Nontidal Warmwater Aquatic Life. This class designation includes waters that are suitable for:

    (a) Water contact sports;

    (b) Play and leisure time activities where individuals may come in direct contact with the surface water;

    (c) Fishing;

    (d) The growth and propagation of fish (other than trout), other aquatic life, and wildlife;

    (e) Agricultural water supply; and

    (f) Industrial water supply.

  (2) Class I-P: Water Contact Recreation, Protection of Aquatic Life, and Public Water Supply. This class designation includes:

    (a) All uses identified for Class I; and

    (b) Use as a public water supply.

  (3) Class II: Support of Estuarine and Marine Aquatic Life and Shellfish Harvesting. This class designation includes all applicable uses identified for Class I in:

    (a) All tidally influenced waters of the Chesapeake Bay and tributaries, the Coastal Bays, and the Atlantic Ocean to the 3-nautical-mile boundary; and

    (b) Tidally influenced waters that are or have the potential for:

      (i) Shellfish propagation and storage, or harvest for marketing purposes; and

      (ii) Actual or potential areas for the harvesting of oysters, soft-shell clams, hard-shell clams, and brackish water clams.

  (4) Class II-P: Tidal Fresh Water Estuary. This class designation includes:

    (a) All uses identified for Class II waters; and

    (b) Use as a public water supply.

  (5) Class III: Nontidal Cold Water. This class designation includes all uses identified for Class I and waters which have the potential for or are suitable for the growth and propagation of self-sustaining trout populations and other coldwater obligate species including, but not limited to the stoneflies tallaperla and sweltsa.

  (6) Class III-P: Nontidal Cold Water and Public Water Supply. This class designation includes:

    (a) All uses identified for Class III waters; and

    (b) Use as a public water supply.

  (7) Class IV: Recreational Trout Waters. This class designation includes all uses identified for Class I in cold or warm waters that have the potential for or are:

    (a) Capable of holding or supporting adult trout for put-and-take fishing; and

    (b) Managed as a special fishery by periodic stocking and seasonal catching.

  (8) Class IV-P: Recreational Trout Waters and Public Water Supply. This class designation includes:

    (a) All uses identified for Class IV waters; and

    (b) Use as a public water supply.

#### Regulation .02-1 Support of Estuarine and Marine Aquatic Life and Shellfish Harvesting.

*COMAR 26.08.02.02-1*

A. Class II includes the subcategories of designated uses described in this section.

B. Shellfish Harvesting. This subcategory includes waters where there are:

  (1) Actual or potential areas for the harvesting of oysters, soft-shell clams, hard-shell clams, or brackish water clams; or

  (2) Actual or potential areas suitable for the propagation or storage of oysters, hard-shell clams, soft-shell clams, and brackish water clams for marketing purposes, except areas excluded by the Department.

C. Seasonal Migratory Fish Spawning and Nursery Subcategory. This subcategory includes waters of the Chesapeake Bay and its tidal tributaries that have the potential for or are supporting the survival, growth, and propagation of balanced indigenous populations of ecologically, recreationally, and commercially important anadromous, semi-anadromous and tidal-fresh resident fish species inhabiting spawning and nursery grounds from February 1 through May 31.

D. Seasonal Shallow-Water Submerged Aquatic Vegetation Subcategory. This subcategory includes:

  (1) Tidal fresh waters of the Chesapeake Bay and its tidal tributaries that have the potential for or are supporting the survival, growth, and propagation of rooted, underwater bay grasses in tidally influenced waters from April 1 through October 1; and

  (2) Low salinity (oligohaline and mesohaline) waters of the Chesapeake Bay and its tidal tributaries that have the potential for or are supporting the survival, growth, and propagation of rooted, underwater bay grasses in tidally influenced waters from April 1 through October 1.

E. Open-Water Fish and Shellfish Subcategory.

  (1) This subcategory includes waters of the Chesapeake Bay and its tidal tributaries that have the potential for or are supporting the survival, growth, and propagation of balanced, indigenous populations of ecologically, recreationally, and commercially important fish and shellfish species inhabiting open-water habitats.

  (2) This subcategory applies from June 1 to September 30 in tidally influenced waters from the shoreline to the adjacent shoreline (and from the shoreline to the opposite shoreline), and from the surface to the measured boundary of the pycnocline, if the pycnocline prevents oxygen replenishment, otherwise the subcategory is applied from the surface to the bottom.

  (3) If a pycnocline exists but other physical circulation patterns, such as the inflow of oxygen-rich oceanic bottom waters, provide oxygen replenishment to the deep waters, the open-water fish and shellfish designated use extends to the bottom.

  (4) From October 1 through May 31, the boundaries of the open-water designated use include all tidally influenced waters from the shoreline measured from the shoreline to the adjacent or opposite shoreline and down to the bottom.

F. Seasonal Deep-Water Fish and Shellfish Subcategory. This subcategory includes waters of the Chesapeake Bay and its tidal tributaries that have the potential for or are supporting the survival, growth, and propagation of balanced, indigenous populations of important fish and shellfish species inhabiting deep-water habitats as described as follows:

  (1) One of the following applies:

    (a) From June 1 through September 30 in tidally influenced waters located between the measured depths of the upper and lower boundaries of the pycnocline, where a pycnocline is present and presents a barrier to oxygen replenishment; or

    (b) From June 1 through September 30 from the upper boundary of the pycnocline down to the sediment/water interface at the bottom, where a lower boundary of the pycnocline cannot be calculated due to the depth of the water column; and

  (2) From October 1 to May 31, the open water fish and shellfish subcategory designated use applies.

G. Seasonal Deep-Channel Refuge Use.

  (1) This subcategory includes waters of the Chesapeake Bay and its tidal tributaries that have the potential for or are supporting the survival of balanced, indigenous populations of ecologically important benthic infaunal and epifaunal worms and clams, which provide food for bottom-feeding fish and crabs.

  (2) This subcategory applies from June 1 through September 30 in tidally influenced waters located below the measured lower boundary of the pycnocline to the bottom where a measured pycnocline is present and presents a barrier to oxygen replenishment.

  (3) From October 1 to May 31, the open water fish and shellfish subcategory designated use applies.

#### Regulation .03 Surface Water Quality Criteria.

*COMAR 26.08.02.03*

A. Applicability.

  (1) Surface water quality criteria shall apply:

    (a) In fresh water streams and rivers:

      (i) For toxic substances, under the conditions stipulated in Regulations .03-2A and .05A, and

      (ii) Under design stream flow for all other substances;

    (b) In tidal waters:

      (i) For toxic substances, under the conditions stipulated in Regulations .03-2A and .05A, and

      (ii) Under average tidal conditions during design stream flows for all other substances;

    (c) Outside of any mixing zones which may be designated by the Department.

  (2) If the natural water quality of a stream segment is not consistent with the criteria established for the stream then:

    (a) The natural conditions do not constitute a violation of the water quality standards; and

    (b) The water quality to be maintained and achieved is not required to be substantially different from that which would occur naturally.

  (3) When coal remining permits are issued under §301 of the Federal Water Pollution Control Act (33 U.S.C. §1311), a variance to the specific water quality criteria for pH, iron, and manganese in the State's water quality standards may be given at the discretion of the Department for the duration of the remining activity. This variance may not be given if there is no demonstrated potential for improved water quality from the remining operation and if degradation of existing in-stream conditions is likely to occur.

B. General Water Quality Criteria. The waters of this State may not be polluted by:

  (1) Substances attributable to sewage, industrial waste, or other waste that will settle to form sludge deposits that:

    (a) Are unsightly, putrescent, or odorous, and create a nuisance, or

    (b) Interfere directly or indirectly with designated uses;

  (2) Any material, including floating debris, oil, grease, scum, sludge, and other floating materials attributable to sewage, industrial waste, or other waste in amounts sufficient to:

    (a) Be unsightly;

    (b) Produce taste or odor;

    (c) Change the existing color to produce objectionable color for aesthetic purposes;

    (d) Create a nuisance; or

    (e) Interfere directly or indirectly with designated uses;

  (3) High temperature or corrosive substances attributable to sewage, industrial waste, or other waste in concentrations or combinations which:

    (a) Interfere directly or indirectly with designated uses, or

    (b) Are harmful to human, animal, plant, or aquatic life;

  (4) Acute toxicity from any discharge outside the mixing zone established under Regulation .05 of this chapter for the application of acute criteria for protection of aquatic life; and

  (5) Toxic substances attributable to sewage, industrial wastes, or other wastes in concentrations outside designated mixing zones, which:

    (a) Interfere directly or indirectly with designated uses, or

    (b) Are harmful to human, plant, or aquatic life.

#### Regulation .03-1 Toxic Substance Water Quality Criteria for Surface Waters.

*COMAR 26.08.02.03-1*

A. General.

  (1) Numerical toxic substance criteria for ambient surface waters are established to protect human health or aquatic life.

  (2) Four types of numerical toxic substance criteria shall be adopted. The purpose of these criteria is to protect:

    (a) Human health through ingestion of public water supplies;

    (b) The wholesomeness of fish for human consumption;

    (c) Fresh, estuarine, and salt water aquatic life from acute toxicity impacts; and

    (d) Fresh, estuarine, and salt water aquatic life from chronic toxicity impacts.

B. Fresh Water, Estuarine, and Salt Water Boundaries.

  (1) For any toxic substance for which no estuarine criteria appear in Regulation .03-2G, Table 1, the salt water criteria apply in estuarine waters.

  (2) Fresh water and estuarine or salt water boundaries begin at specific points for the purpose of applying the numerical toxic substance criteria for aquatic life protection. These points are:

    (a) The stream segment and all tributaries which confluence with the stream segment upstream from the boundaries specified in §B(3) of this regulation are assumed to be fresh water.

    (b) Except for Sub-Basin 02-13-01—Coastal Area, the stream segment and all tributaries which confluence with the stream segment downstream from the boundaries specified in §B(3) of this regulation are assumed to be estuarine water.

    (c) In Sub-Basin 02-13-01—Coastal Area, the stream segment and all tributaries which confluence with the stream segment downstream from the boundaries specified in §B(3) of this regulation are assumed to be salt water.

    (d) Tributary headwaters. Since the headwaters of some tributaries to stream segments designated as estuarine or salt water may be fresh, the Department may:

      (i) Require the discharger to provide site specific salinity measurements or accept site specific salinity measurements provided voluntarily by the applicant; and

      (ii) Review the information provided in §B(2)(d)(i) of this regulation, and determine that the area is more appropriately designated as fresh water.

  (3) For the purpose of applying numerical toxic substance criteria, the following are designated as the boundaries between fresh waters and estuarine or salt waters:

    (a) Lower Susquehanna River Area (Sub-Basin 02-12-02)—All waters are fresh waters.

    (b) Coastal Area (Sub-Basin 02-13-01) boundaries are:

      (i) Bishopville Prong—State boat ramp at Daye Road;

      (ii) Birch Branch—Route 113;

      (iii) Middle Branch—Route 113;

      (iv) Church Branch—Route 113;

      (v) Turville Creek—Route 589;

      (vi) Ayer Creek—Route 376;

      (vii) Newport Creek—Hayes Landing Road; and

      (viii) Poplartown Creek—Beaverdam Creek Road.

    (c) Pocomoke River Area (Sub-Basin 02-13-02) boundaries are:

      (i) Pocomoke River—A line connecting the mouth of Bullbegger Creek and the east entrance of Fair Hill Channel; and

      (ii) Manokin River—Sharps Point.

    (d) Nanticoke River Area (Sub-Basin 02-13-03) boundaries are:

      (i) Nanticoke River—A line connecting Newfoundland Point and Hat Crown Point (includes Marshyhope Creek);

      (ii) Wicomico River—A line connecting Pine Beach and Holland Point;

      (iii) Blackwater River—Mouth at Snake Island; and

      (iv) Transquaking River—Mouth at Fishing Bay.

    (e) Choptank River Area (Sub-Basin 02-13-04) boundary is a line connecting Bow Knee Point and Wrights Wharf.

    (f) Chester River Area (Sub-Basin 02-13-05) boundaries are:

      (i) Chester River—A line connecting Piney Grove and Primrose Point;

      (ii) Grays Inn Creek—A line crossing the creek at Cherry Tree Point;

      (iii) Herringtown Creek—All waters are fresh;

      (iv) West Fork Langford Creek—A line crossing creek at Fox Point;

      (v) East Fork Langford Creek—A line connecting Piney Point and Longmarsh Point;

      (vi) Philip Creek—All waters are fresh;

      (vii) Reed Creek—Tilghmans Neck Road;

      (viii) Corsica Creek—A line crossing the creek at Jacobs Nose;

      (ix) Emory Creek—All waters are estuarine water; and

      (x) All tributaries to the Chester River upstream from Deep Point.

    (g) Elk River Area (Sub-Basin 02-13-06)—All waters are fresh water.

    (h) Bush River Area (Sub-Basin 02-13-07)—All waters are fresh water.

    (i) Gunpowder River Area (Sub-Basin 02-13-08)—All waters are fresh water.

    (j) Patapsco River Area (Sub-Basin 02-13-09) boundaries are:

      (i) Patapsco River—A line connecting Lazaretto Point and the southern terminus of the Baltimore Harbor Tunnel; and

      (ii) Back River—a line connecting Rocky Point and Cuckhold Point.

    (k) West Chesapeake Bay Area (Sub-Basin 02-13-09) boundaries are:

      (i) Severn River—Bridge on State Highway 3;

      (ii) All tributaries to the Severn River upstream from MD Route 648;

      (iii) Magothy River—A line connecting Henderson Point and Pea Patch Point;

      (iv) All tributaries to the Magothy River are fresh water; and

      (v) South River—A line drawn due north from Beards Point.

    (l) Patuxent River Area (Sub-Basin 02-13-11) boundary is a line connecting Chalk Point and God's Grace Point.

    (m) Lower Potomac River Area (Sub-Basin 02-14-01) boundaries are:

      (i) Potomac River—A line connecting Upper Cedar Point and Chotank Creek; and

      (ii) All Maryland tributaries of the Potomac River upstream from St. Catherine Island are fresh water.

    (n) Washington Metropolitan Area (Sub-Basin 02-14-02)—All waters are fresh water.

    (o) Middle Potomac River Area (Sub-Basin 02-14-03)—All waters are fresh water.

    (p) Upper Potomac River Area (Sub-Basin 02-14-05)—All waters are fresh water.

    (q) North Branch Potomac River Area (Sub-Basin 02-14-10)—All waters are fresh water.

    (r) Youghiogheny River Area (Sub-Basin 05-02-02)—All waters are fresh water.

    (s) Conewago Creek Area (Sub-Basin 02-05-03)—All waters are fresh water.

    (t) Chesapeake Bay Proper (Sub-Basin 02-13-99) boundary is a line connecting Booby Point (39.284206 north latitude, -76.381400 west longitude) with Handy's Point (39.291944 north latitude, -76.181388 west longitude).

#### Regulation .03-2 Numerical Criteria for Toxic Substances in Surface Waters.

*COMAR 26.08.02.03-2*

A. Numerical toxic substance criteria shall be applied:

  (1) In intermittent streams, at the end of the discharge pipe; and

  (2) In all other water bodies, at the edge of the mixing zones determined in accordance with Regulation .05C—E of this chapter.

B. Acceptable laboratory methods for the detection and measurement of toxic substances shall be specified by the Department.

C. Site-specific numerical toxic substance criteria may be developed on a site-specific basis. A person who wishes to develop a site-specific numerical toxic substance criterion shall:

  (1) Do so in accordance with a scientifically defensible methodology approved by the Department; and

  (2) Notify the Department of their intent not later than the time specified in COMAR 26.08.04.01-1.

D. The toxicity of certain substances in Tables 1 and 6 of §G of this regulation is increased or decreased by hardness or pH. For these toxic substances:

  (1) The Department may:

    (a) Require the discharger to provide site-specific measurements; or

    (b) Recalculate the aquatic life criteria based on available water quality data.

  (2) The permittee may voluntarily provide site-specific information for the recalculation of the criteria. It is within the Department's discretion to determine the weight given this information.

  (3) After reviewing the information provided in §D(1) or (2), the Department shall determine if one or more of these criteria should be modified at a particular location.

  (4) For calculation of site-specific copper criteria, a discharger may use the Biotic Ligand Model in accordance with “Aquatic Life Ambient Freshwater Quality Criteria-Copper 2007 Revision (EPA-822-R-07-001, February 2007)” which is incorporated by reference.

E. In those cases where numerical toxic substance criteria for aquatic life protection and protection of human health both apply, the most restrictive of the criteria shall be used.

F. Acute and chronic numeric toxic substance criteria for fresh, estuarine, and salt water aquatic life protection and for human health protection are shown in Tables 1—6 of §G. For the instream application of the acute and chronic criteria for the protection of aquatic life in Tables 1—6 of §G of this regulation:

  (1) The metals shall be measured as dissolved metal or as biologically available equivalence and may be translated to total recoverable measurements for waste load allocation to derive discharge permit limits using the procedures for the biological translator or chemical translator described in COMAR 26.08.04;

  (2) The organic substances shall be measured directly or as biologically available equivalence and may be translated for waste load allocation to derive discharge permit limits using the procedures for the biological translator described in COMAR 26.08.04; and

  (3) Cyanide shall be measured as either free cyanide or cyanide amenable to chlorination.

G. Tables of Ambient Water Quality Criteria.

  (1) Table 1. Toxic Substances Criteria for Ambient Surface Waters — Inorganic Substances.

  (2) Table 2. Coefficients Used to Adjust Applicable Numerical Toxic Substance Fresh Water Aquatic Life Criteria. *

  (3) Table 3. Conversion Factors Used to Adjust Applicable Numerical Toxic Substance Fresh Water Aquatic Life Criteria.

  (4) Table 4. Toxic Substances for Ambient Water Quality Criteria — Organic Compounds.

  (5) Table 5. Toxic Substances for Ambient Water Quality Criteria-Polycyclic Aromatic Hydrocarbons and Phthalates.

  (6) Table 6. Toxic Substances for Ambient Water Quality Criteria — Pesticides and Chlorinated Compounds.

1 Refer to §D of this regulation.

H. Acute Numeric Toxic Substance Criteria for Ammonia for the Protection of Fresh Water Aquatic Life.

  (1) The use of Tables 3 and 4 requires documentation acceptable to the Department of the absence of freshwater mussels using the methods outlined in the document “Procedures for Applying the Mussel-Absent Ammonia Criteria to Maryland Surface Waters”, which is incorporated by reference.

  (2) Presence of Salmonid Fish. In Class III, III-P, IV, and IV-P waters, the concentration of total ammonia (in milligrams of nitrogen per liter) may not exceed the acute criterion listed in Table 1.

  (3) Absence of Salmonid Fish. In Class I and I-P waters, the concentration of total ammonia (in milligrams of nitrogen per liter) may not exceed the acute criterion listed in Table 2.

  (4) Presence of Salmonid Fish and Absence of Freshwater Mussels. In Class III, III-P, IV, and IV-P waters, the concentration of total ammonia (in milligrams of nitrogen per liter) may not exceed the acute criterion listed in Table 3.

  (5) Absence of Salmonid Fish and Absence of Freshwater Mussels. In Class I and I-P waters, the concentration of total ammonia (in milligrams of nitrogen per liter) may not exceed the acute criterion listed in Table 4.

  (6) Table 1. Acute Water Quality Criteria for Freshwater Aquatic Life for Ammonia Where Salmonids May Be Present (milligrams of nitrogen per liter) 1.

  (7) Table 2. Acute Water Quality Criteria for Freshwater Aquatic Life for Ammonia Where Salmonids Are Absent (milligrams of nitrogen per liter) 1.

  (8) Table 3. Acute Water Quality Criteria for Freshwater Aquatic Life for Ammonia Where Salmonids May Be Present and Freshwater Mussels Are Absent (milligrams of nitrogen per liter) 1.

  (9) Table 4. Acute Water Quality Criteria for Freshwater Aquatic Life for Ammonia Where Salmonids Are Absent and Freshwater Mussels Are Absent (milligrams of nitrogen per liter) 1.

I. Chronic Numeric Toxic Substance Criteria for Ammonia, Expressed as a 30-day Average, for the Protection of Fresh Water Aquatic Life.

  (1) Averaging Period. The concentration of total ammonia nitrogen (in milligrams of nitrogen per liter) expressed as a 30-day average may not exceed the chronic criterion listed in Tables 1, 2 or 3.

  (2) The use of Table 3 requires documentation acceptable to the Department of the absence of fish early life stages.

  (3) The use of Table 2 or 3 requires documentation acceptable to the Department of the absence of freshwater mussels using the methods outlined in the document Procedures for Applying Mussel-Absent Ammonia Criteria to Maryland Surface Waters.

  (4) In addition, the highest 4-day average within the 30-day period may not exceed 2½ times the chronic criterion.

  (5) Table 1. Chronic Ammonia Criteria for Waters Where Freshwater Fish Early Life Stages May Be Present (milligrams of nitrogen per liter). 1

  (6) Table 2. Chronic Ammonia Criteria for Waters Where Freshwater Fish Early Life Stages Are Present and Freshwater mussels are absent (milligrams of nitrogen per liter). 1

  (7) Table 3. Chronic Ammonia Criteria for Waters Where Freshwater Fish Early Life Stages Are Absent and Freshwater Mussels Are Absent (milligrams of nitrogen per liter). 1

J. Saltwater and Estuarine Acute Criteria for Ammonia. Acute numeric toxic substance criteria for ammonia to protect marine and estuarine life are shown in Table 1. In estuarine and saltwaters, the concentration of total ammonia (in milligrams/liter) may not exceed the acute criterion listed in Table 1. Milligrams per liter total ammonia in saltwater (Table 1) may be converted to milligrams of ammonia nitrogen per liter (as used in §§H and I of this regulation) by multiplying the criteria values in Table 1 by 14/17 (or 0.82353) to result in total ammonia nitrogen.

K. Saltwater and Estuarine Chronic Criteria for Ammonia.

  (1) Chronic numeric toxic substance criteria for ammonia to protect marine and estuarine life are shown in Table 1.

  (2) Averaging Period. The concentration of total ammonia (in milligrams/liter) expressed as a 30-day average may not exceed the chronic criterion listed in Table 1.

  (3) Milligrams per liter total ammonia in saltwater (Table 1) may be converted to milligrams of ammonia nitrogen per liter (as used in §§H and I of this regulation) by multiplying the criteria values in Table 1 by 14/17 (or 0.82353) to result in total ammonia nitrogen.

Table 1 Chronic Water Quality Criteria for Saltwater Aquatic Life (milligrams/liter total ammonia).

#### Regulation .03-3 Water Quality Criteria Specific to Designated Uses.

*COMAR 26.08.02.03-3*

A. Criteria for Class I Waters — Water Contact Recreation and Protection of Nontidal Warmwater Aquatic Life.

  (1) Bacteriological.

    (a) Table 1. Bacteria Indicator Criteria Magnitudes

    (b) The geometric mean of samples taken over a 90 day period shall not exceed the steady state geometric mean values for the given indicator.

    (c) 10 percent of samples taken over a 90 day period shall not exceed the statistical threshold value.

    (d) When a sanitary survey and an epidemiological study approved by the Department disclose no significant health hazard, the criteria in Table 1 do not apply.

  (2) Dissolved Oxygen. The dissolved oxygen concentration may not be less than 5 milligrams/liter at any time.

  (3) Temperature.

    (a) The maximum temperature outside the mixing zone determined in accordance with Regulation .05 of this chapter or COMAR 26.08.03.03—.05 may not exceed 90°F (32°C) or the ambient temperature of the surface waters, whichever is greater.

    (b) A thermal barrier that adversely affects aquatic life may not be established.

    (c) Ambient temperature is the water temperature that is not impacted by a point source discharge.

    (d) Ambient temperature shall be measured in areas of the stream representative of typical or average conditions of the stream segment in question.

    (e) The Department may determine specific temperature measurement methods, times, and locations.

  (4) pH. Normal pH values may not be less than 6.5 or greater than 8.5.

  (5) Turbidity.

    (a) Turbidity may not exceed levels detrimental to aquatic life.

    (b) Turbidity in the surface water resulting from any discharge may not exceed 150 units at any time or 50 units as a monthly average. Units shall be measured in Nephelometer Turbidity Units.

  (6) Color. Color in the surface water may not exceed 75 units as a monthly average. Units shall be measured in Platinum Cobalt Units.

  (7) Toxic Substance Criteria. All toxic substance criteria to protect:

    (a) Fresh water aquatic organisms apply in waters designated as fresh water in Regulation .03-1B;

    (b) Estuarine or salt water aquatic organisms apply in waters designated as estuarine or salt waters as specified in Regulation .03-1B; and

    (c) The wholesomeness of fish for human consumption apply in fresh, estuarine, and salt waters.

B. Criteria for Subcategory Class I-P Waters — Water Contact Recreation, Protection of Nontidal Warmwater Aquatic Life and Public Water Supply. The following criteria apply:

  (1) The criteria for Class I waters in §A(1)—(6); and

  (2) Toxic Substance Criteria. All toxic substance criteria:

    (a) For protection of fresh water aquatic organisms apply; and

    (b) To protect public water supplies and the wholesomeness of fish for human consumption apply.

C. Criteria for Class II Waters — Support of Estuarine and Marine Aquatic Life and Shellfish Harvesting.

  (1) Bacteriological Criteria. These criteria are the same as for Class I, criteria for protection of recreational use, except, in Shellfish Harvest Waters, the following criteria also apply. In Shellfish Harvest waters, there may not be any pathogenic or harmful organisms in sufficient quantities to constitute a public health hazard in the use of waters for shellfish harvesting. A public health hazard for the consumption of raw shellfish will be presumed:

    (a) If the most probable number (MPN) of fecal coliform organisms exceeds a median concentration of 14 MPN per 100 milliliters;

    (b) If more than 10 percent of samples taken exceed 43 MPN per 100 milliliters for a 5-tube decimal dilution test or 49 per 100 milliliters for a 3-tube decimal dilution test; or

    (c) Except when a sanitary survey approved by the Department of the Environment discloses no significant health hazard, §C(1)(a) and (b) do not apply and a public health hazard from the consumption of shellfish will not be presumed.

  (2) Classification of Class II Waters for Harvesting.

    (a) Approved classification means that the median fecal coliform MPN of at least 30 water sample results taken over a 3-year period to incorporate inter-annual variability does not exceed 14 per 100 milliliters; and:

      (i) In areas affected by point source discharges, not more than 10 percent of the samples exceed an MPN of 43 per 100 milliliters for a five tube decimal dilution test or 49 MPN per 100 milliliters for a three tube decimal dilution test; or

      (ii) In other areas, the 90th percentile of water sample results does not exceed an MPN of 43 per 100 milliliters for a five tube decimal dilution test or 49 MPN per 100 milliliters for a three tube decimal dilution test.

    (b) Conditionally approved classification means that the Department has determined that under certain conditions an area is restricted, but when not restricted, meets the conditions for the approved classification.

    (c) Restricted classification means that the median fecal coliform MPN of at least 30 water sample results taken over a 3-year period does not exceed 88 per 100 milliliters or that the Department has determined that a public health hazard exists; and:

      (i) In areas affected by point source discharges, not more than 10 percent of the samples exceed an MPN of 260 per 100 milliliters for a five tube decimal dilution test or 300 MPN per 100 milliliters for a three tube decimal dilution test; or

      (ii) In other areas, the 90th percentile of water sample results does not exceed an MPN of 260 per 100 milliliters for a five tube decimal dilution test or 300 MPN per 100 milliliter for a three tube decimal dilution test.

    (d) Prohibited classification means that the fecal coliform values exceed those required for the restricted classification or is an area designated by the Department as a closed safety zone adjacent to a sewage treatment facility outfall or is an area closed due to a known pollution source.

  (3) Temperature — same as Class I waters.

  (4) pH — same as Class I waters.

  (5) Turbidity — same as Class I waters.

  (6) Color — same as Class I waters.

  (7) Toxic Substance Criteria. All toxic substance criteria to protect:

    (a) Estuarine or salt water aquatic organisms apply in accordance with the requirements of Regulation .03-1B; and

    (b) The wholesomeness of fish for human consumption apply.

  (8) Dissolved Oxygen Criteria for Class II Waters.

    (a) This criteria is the same as for Class I waters, except for the Chesapeake Bay mainstem and associated tidal tributary subcategories.

    (b) Seasonal and Migratory Fish Spawning and Nursery Subcategory. The dissolved oxygen concentrations in areas designated as migratory spawning and nursery seasonal use shall be:

      (i) Greater than or equal to 6 milligrams/liter for a 7-day averaging period from February 1 through May 31 (salinity less than or equal to 0.5 parts per thousand);

      (ii) Greater than or equal to 5 milligrams/liter as an instantaneous minimum from February 1 through May 31; and

      (iii) Applicable to the open-water fish and shellfish subcategory criteria from June 1 to January 31.

    (c) The seasonal shallow-water submerged aquatic vegetation subcategory is the same as for the open-water fish and shellfish subcategory year-round.

    (d) Open-Water Fish and Shellfish Subcategory. The dissolved oxygen concentrations in areas designated as open-water fish and shellfish subcategory shall be:

      (i) Greater than or equal to 5.5 milligrams/liter for a 30-day averaging period year-round in tidal fresh waters (salinity less than or equal to 0.5 parts per thousand);

      (ii) Greater than or equal to 5 milligrams/liter for a 30-day averaging period year-round (salinity greater than 0.5 parts per thousand);

      (iii) Greater than or equal to 4.0 milligrams/liter for a 7-day averaging period year-round;

      (iv) Greater than or equal to 3.2 milligrams/liter as an instantaneous minimum year-round;

      (v) For protection of the endangered shortnose sturgeon, greater than or equal to 4.3 milligrams/liter as an instantaneous minimum at water column temperatures greater than 29°C (77°F); and

      (vi) For the Upper Pocomoke River Tidal Fresh (POCTF) and the Maryland portion of the Middle Pocomoke River Oligohaline (POCOH), greater than or equal to 4.0 milligrams/liter for a 30-day averaging period year-round.

    (e) Seasonal Deep-Water Fish and Shellfish Subcategory. The dissolved oxygen concentrations in areas designated as seasonal deep-water fish and shellfish subcategory shall be:

      (i) Greater than or equal to 3.0 milligrams/liter for a 30-day averaging period from June 1 through September 30;

      (ii) Greater than or equal to 2.3 milligrams/liter for a 1-day averaging period from June 1 through September 30;

      (iii) Greater than or equal to 1.7 milligrams/liter as an instantaneous minimum from June 1 through September 30;

      (iv) The open-water fish and shellfish subcategory criteria apply from October 1 to May 31; and

      (v) For the dissolved oxygen criteria restoration variance for Chesapeake Bay Mainstem Segment 4 mesohaline (CB4MH) seasonal deep-water fish and shellfish subcategory, not lower for dissolved oxygen in segment CB4MH than the stated criteria for the seasonal deep-water seasonal fish and shellfish use for more than 5 percent spatially and temporally (in combination), from June 1 to September 30.

    (f) Seasonal Deep-Channel Refuge Subcategory. The dissolved oxygen concentrations in areas designated as deep-channel seasonal refuge use shall be:

      (i) Greater than or equal to 1.0 milligrams/liter as an instantaneous minimum from June 1 through September 30 except for Chesapeake Bay segments subject to variances;

      (ii) For dissolved oxygen criteria restoration variance for Chesapeake Bay Mainstem Segment 4 mesohaline (CB4MH) deep-channel refuge subcategory, not lower for dissolved oxygen in segment CB4MH than the stated criteria for the seasonal deep-channel refuge for more than 6 percent spatially or temporally (in combination), from June 1 to September 30;

      (iii) For the dissolved oxygen criteria restoration variance for Eastern Bay Mesohaline (EASMH) seasonal deep-channel refuge subcategory, not lower for dissolved oxygen in segment EASMH than the stated criteria for the seasonal deep-channel refuge use for more than 2 percent spatially and temporally (in combination), from June 1 to September 30; and

      (iv) The same as for the open-water fish and shellfish subcategory from October 1 to May 31.

    (g) Implementation of the Dissolved Oxygen Water Quality Standard. The attainment of the dissolved oxygen criteria that apply to the Chesapeake Bay and tidally influenced tributary waters shall be determined using the guidelines established in the U.S. Environmental Protection Agency publications “Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and its Tidal Tributaries (EPA 903-R-03-002), Chapter III”; “Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and its Tidal Tributaries — 2004 Addendum (EPA 903-R-04-005), Chapter V”; “Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and its Tidal Tributaries — 2007 Addendum (EPA 903-R-07-003), Chapter IV”; “Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries — 2008 Technical Support for Criteria Assessment Protocols Addendum (EPA 903-R-08-001), Chapter III”; “Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries — 2010 Technical Support for Criteria Assessment Protocols Addendum (EPA 903-R-10-002), Chapters II and III”; and “Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries — 2017 Technical Addendum (EPA 903-R-17-002), Chapters II and III”; which are incorporated by reference.

    (h) Restoration Variance. The percentage of allowable exceedance for restoration variances is based on water quality modeling and incorporates the best available data and assumptions. The restoration variances are temporary, and will be reviewed at a minimum every three years, as required by the Clean Water Act and EPA regulations. The variances may be modified based on new data or assumptions incorporated into the water quality model.

  (9) Water Clarity Criteria for Seasonal Shallow-Water Submerged Aquatic Vegetation Subcategory.

    (a) Water Clarity Criteria Measurement. A Bay segment has attained the shallow water designated use if:

      (i) Submerged aquatic vegetation (SAV) acreage meets or exceeds the SAV acreage restoration goal in Table 3 of this regulation;

      (ii) The shallow-water acreage that meets or exceeds the water clarity criterion expressed in Secchi depth equivalence from Table 2 of this regulation at the segment specific application depth specified in Regulation .08 of this chapter (excluding SAV no grow zones) is 2.5 times greater than the SAV Acreage Restoration Goal from Table 3 of this regulation; or

      (iii) A combination of the actual SAV acreage attained and meeting the applicable water clarity criteria in an additional, unvegetated shallow water surface area equals 2.5 times the remaining SAV acreage necessary to meet the segment's restoration goal.

    (a-1) If none of §C(9)(a)(i), (ii), or (iii) applies, the segment has not attained the water clarity designated use.

    (b) Table 2. Numerical Water Clarity Criteria (in Secchi Depth Equivalents) for General Application to Shallow Water Aquatic Vegetation Bay Grass Designated Use (Application Depths Given in 0.5 Meter Attainment Intervals1).

    (c) Table 3. SAV Acreage Restoration Goals.

    (d) SAV No Grow Zones. Certain Chesapeake Bay segments contain areas designated as shallow water use that are not suitable for growth of submerged aquatic vegetation due to natural conditions and permanent physical alterations. Tables V-1 and Figures V-1 to V-12 in the 2004 U.S. Environmental Protection Agency publication “Technical Support Document for Identification of Chesapeake Bay Designated Uses and Attainability — 2004 Addendum (EPA 903-R-04-006)”, which is incorporated by reference, indicate the SAV No Grow Zones. The segments Upper Choptank River (CHOTF), Upper Nanticoke River (NANTF), Upper Pocomoke River (POCTF), and Middle Pocomoke River Oligohaline (POCOH) are entirely SAV no grow zones, therefore, the shallow-water designated use does not apply to these segments.

    (e) Implementation. The attainment of the water clarity criteria that apply to the seasonal shallow-water submerged aquatic vegetation use subcategory in the Chesapeake Bay and tidally influenced tributary waters will be determined using the guidelines documented within the U.S. Environmental Protection Agency publications “Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and its Tidal Tributaries (EPA 903-R-03-002)”, “Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and its Tidal Tributaries — 2004 Addendum (EPA 903-R-04-005)”, “Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and it Tidal Tributaries — 2007 Addendum (EPA 903-R-07-003)”, “Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries — 2008 Technical Support for Criteria Assessment Protocols Addendum (EPA 903-R-08-001)”, “Technical Support Document for Identification of Chesapeake Bay Designated Uses and Attainability (EPA 903-R-03-004)”, and “Technical Support Document for Identification of Chesapeake Bay Designated Uses and Attainability — 2004 Addendum (EPA 903-R-04-006)” which are incorporated by reference.

  (10) Chlorophyll a. Concentrations of chlorophyll a in free-floating microscopic aquatic plants (algae) may not exceed levels that result in ecologically undesirable consequences that would render tidal waters unsuitable for designated uses.

  (11) Compliance Schedules for Protection of Downstream Uses in Tidal Waters.

    (a) The compliance schedule provisions of COMAR 26.08.04.02C are applicable to discharge permits issued to existing dischargers which contain new or revised effluent limitations based on water quality standards contained in §C(8) and (9) of this regulation.

    (b) An upstream state issuing discharge permits to existing dischargers which contain new or revised effluent limitations based on the water quality standards contained in §C(8) and (9) of this regulation may apply the compliance schedule provisions of COMAR 26.08.04.02C.

C-1. Criteria for Class II-P Waters—Support of Estuarine and Marine Aquatic Life and Shellfish Harvesting and Public Water Supplies. The following criteria apply:

  (1) The criteria for Class II waters in §C(1)—(8), (9)(a)—(c), (10), and (11); and

  (2) All toxic substance criteria:

    (a) For protection of fresh water and freshwater-adapted estuarine aquatic organisms apply; and

    (b) To protect public water supplies and the wholesomeness of fish and shellfish for human consumption.

D. Criteria for Class III Waters — Nontidal Cold Water.

  (1) Bacteriological —

  (2) Dissolved Oxygen. The dissolved oxygen concentration may not be less than 5 milligrams/liter at any time, with a minimum daily average of not less than 6 milligrams/liter.

  (3) Temperature.

    (a) The maximum temperature outside the mixing zone determined in accordance with Regulation .05 of this chapter or COMAR 26.08.03.03—.05 may not exceed 68°F (20°C) or the ambient temperature of the surface waters, whichever is greater.

    (b) Ambient temperature — Same as Class I.

    (c) A thermal barrier that adversely affects salmonid fish may not be established.

    (d) It is the policy of the State that riparian forest buffer adjacent to Class III waters shall be retained whenever possible to maintain the temperatures essential to meeting this criterion.

  (4) pH — same as Class I waters.

  (5) Turbidity — same as Class I waters.

  (6) Color — Same as Class I-P waters.

  (7) Total Residual Chlorine (TRC). Except as provided in COMAR 26.08.03.06, the Department may not issue a permit allowing the use of chlorine or chlorine-containing compounds in the treatment of wastewaters discharging to Class III and Class III-P waters.

  (8) Toxic Substance Criteria. All toxic substance criteria to protect:

    (a) Fresh water aquatic organisms apply; and

    (b) The wholesomeness of fish for human consumption apply.

E. Criteria for Class III-P Waters — Nontidal Cold Water and Public Water Supplies.

  (1) Exception. Authorized operation of the Little Seneca Creek Dam means that all operational activities permitted are met under the conditions of a dam operating permit issued by the Department of Natural Resources under Natural Resources Article, §§8-801—8-814, Annotated Code of Maryland, and COMAR 08.05.03. Injury resulting from the authorized operation of Little Seneca Creek Dam to the Class III natural trout fishery recognized in the stream use designation assigned to Little Seneca Creek in Regulation .08 of this chapter is not considered a violation of this chapter.

  (2) The following criteria apply:

    (a) The criteria for Class III waters in §D(1)—(7); and

    (b) All toxic substance criteria to protect:

      (i) Fresh water aquatic organisms; and

      (ii) Public water supplies and the wholesomeness of fish for human consumption.

F. Criteria for Class IV Waters — Recreational Trout Waters.

  (1) Bacteriological — same as Class I waters.

  (2) Dissolved oxygen — same as Class I waters.

  (3) Temperature.

    (a) The maximum temperature outside the mixing zone determined in accordance with Regulation .05 of this chapter or COMAR 26.08.03.03—.05 may not exceed 75°F (23.9°C) or the ambient temperature of the surface waters, whichever is greater.

    (b) Ambient temperature — Same as Class I.

    (c) A thermal barrier that adversely affects salmonid fish may not be established.

    (d) It is the policy of the State that riparian forest buffer adjacent to Class IV waters shall be retained whenever possible to maintain the temperatures essential to meeting this criterion.

  (4) pH — same as Class I waters.

  (5) Turbidity — same as Class I waters.

  (6) Color — same as for Class I waters.

  (7) Toxic Substance Criteria. All toxic substance criteria to protect:

    (a) Fresh water aquatic organisms apply; and

    (b) The wholesomeness of fish for human consumption apply.

G. Criteria for Class IV-P Waters — Recreational Trout Waters and Public Water Supplies. The following criteria apply:

  (1) The criteria for Class IV waters in §F(1)—(6); and

  (2) Toxic Substance Criteria. All toxic substance criteria to protect:

    (a) Fresh water aquatic organisms, and

    (b) Public water supplies and the wholesomeness of fish for human consumption.

H. Criteria for Public Water Supply Reservoirs. The following criteria apply in freshwater reservoirs designated Class I-P, III-P or IV-P:

  (1) The arithmetic mean of a representative number of samples of chlorophyll a concentrations, measured during the growing season (May 1 to September 30) as a 30-day moving average may not exceed 10 micrograms per liter; and

  (2) The 90th-percentile of measurements taken during the growing season may not exceed 30 micrograms per liter.

#### Regulation .03-4 Biological Water Quality Criteria.

*COMAR 26.08.02.03-4*

A. Quantitative assessments of biological communities in streams (biological criteria) may be used separately or in conjunction with the chemical and physical criteria promulgated in this chapter to assess whether water quality is consistent with the purposes and uses in Regulations .01 and .02 of this chapter.

B. The results of the quantitative assessments of biological communities shall be used for purposes of water quality assessment, including, but not limited to, those assessments required by §§303(d) and 305(b) of the federal Clean Water Act (33 U.S.C. §§1313(d) and 1315(b)).

C. These assessments shall use documented methods that have been subject to technical review, produce consistent and repeatable results, and are objectively interpretable.

D. In using biological criteria to determine whether aquatic life uses are being met, the Department shall allow for the uncertainty and natural variability in environmental monitoring results by using established quantitative and statistical methodologies to establish the appropriate level of uncertainty for these determinations.

E. The Department shall determine whether the application and interpretation of the assessment method are appropriate. In those instances where the Department determines the assessment method is not appropriate, it will provide its justification for that determination.

#### Regulation .04 Antidegradation Policy.

*COMAR 26.08.02.04*

A. Waters of this State shall be protected and maintained for existing uses and the basic uses of water contact recreation, fishing, protection of aquatic life and wildlife, and agricultural and industrial water supply as identified in the Use Class designations.

B. Consistent with the Federal Act, existing uses and the level of water quality necessary to protect existing uses for any water body shall be maintained.

C. Certain waters of this State possess an existing quality that is better than the water quality standards established for them. The quality of these waters shall be maintained unless:

  (1) The Department determines a change in quality is justifiable as a result of necessary economic or social development; and

  (2) The change will not diminish uses made of, or presently existing, in these waters.

D. To accomplish the objective of maintaining existing water quality:

  (1) New and existing point sources shall achieve the highest applicable statutory and regulatory effluent requirements; and

  (2) Nonpoint sources shall achieve all cost effective and reasonable best management practices for nonpoint source control.

E. The Department shall ensure that existing uses are maintained and protected and support changes to designated uses and associated criteria in any circumstances where the designated use and criteria do not reflect and protect uses that are being attained. Changes in designated uses and associated criteria to less stringent uses and criteria may only be undertaken when:

  (1) The designated use is not attainable because of natural causes;

  (2) The designated use is not attainable because of irretrievable man-induced conditions; or

  (3) Controls more stringent than the effluent limitations and national performance standards mandated by the Federal Act, and required by the Department, would result in substantial and widespread economic and social impact.

F. The Department shall provide public notice and opportunity for a public hearing on the proposed change before:

  (1) Permitting a change in high quality waters; or

  (2) Changing the stream use designation.

G. Water which does not meet the standards established for it shall be improved to meet the standards.

H. Maryland’s Antidegradation Procedure Flow Chart.

#### Regulation .04-1 Antidegradation Policy Implementation Procedures: Tier I Level of Protection — Existing Uses and Designated Uses.

*COMAR 26.08.02.04-1*

A. All waters of the State shall receive Tier I protection which requires the protection and maintenance of existing uses and designated uses.

B. Protections. Waters that have demonstrated an existing use that is not protected by the water quality criteria specified for the current designated use for this water body shall be protected so as to maintain the existing use and the water quality necessary to protect the existing use.

C. Implementation of the Tier I level of Protection for Cold Water Existing Uses. The determination and protection of cold water existing uses in Maryland will be implemented according to the “Cold Water Existing Use Determinations: Policy and Procedures (Maryland Department of the Environment, May 12, 2021)”, which is incorporated by reference.

D. Compilation and Maintenance of the List of Waters with Existing Uses. The Department shall compile and maintain, on its website, a public list of the waters with an existing use that is not protected by the currently designated use and associated water quality criteria.

#### Regulation .04-2 Antidegradation Policy Implementation Procedures: Tier II Level of Protection — High Quality Waters.

*COMAR 26.08.02.04-2*

A. In Maryland, the term “Tier II water” is defined as a water body with water quality that measures significantly better than that required by water quality standards to support its designated uses. A Tier II watershed is defined as the area of land that contributes runoff to a Tier II waterbody and any discharges to streams upstream of and including the Tier II waterbody. Significantly better is evaluated statistically to demonstrate at least a 90 percent certainty that the mean of the available data is better than the applicable standard (for example, the criterion is outside the outer bound of the 90 percent confidence interval). Water quality is considered significantly better and waters may be listed as Tier II, if the exclusion under §D of this regulation does not apply and if:

  (a) Measured water quality characteristics for which numeric criteria have been promulgated are significantly better than the water quality criteria specified in Regulations .03—.03-3 of this chapter; or

  (b) Maryland Biological Stream Survey assessment data indicate that both fish and benthic values of the index of biological integrity are 4.00 or greater.

B. Compilation and Maintenance of the List of High Quality Tier II Waters. The Department shall compile and maintain a public list of the Tier II waters. That list is contained in §N of this regulation. All readily available information may be considered to determine a listing. Tier II listings shall be made only for those specific characteristics for which monitoring data indicates the water body exceeds numeric water quality criteria or thresholds established under the narrative standards for biocriteria. The Department shall consider information available from the categories listed under §§A and D of this regulation.

C. Designation for Specific Water Quality Measures. Where a water body is designated a Tier II water based on a specific water quality measure, potential impacts to only that specific characteristic shall be subject to Tier II review. For example, where a water body is designated Tier II because of high dissolved oxygen, only potential impacts to dissolved oxygen are subject to Tier II review.

D. Waters That May Not Be Listed as Tier II. Water bodies included in the List of Impaired Waters (303(d) List) are not Tier II waters for the impairing substance.

E. Antidegradation Review — General. An antidegradation review of updated, new, or proposed amendments to Water and Sewerage Plans (County Plans), wetlands and waterways permits, water quality certifications, or discharge permits in a Tier II watershed is required to assure consistency with antidegradation requirements. An applicant for proposed amendments to County Plans, a wetlands and waterways permit, water quality certification, or discharge permits in a Tier II watershed that will result in a new, or an increased, permitted annual discharge of pollutants or a potential impact to water quality shall evaluate alternatives to eliminate or reduce discharges or impacts. If impacts are unavoidable (as defined in §H of this regulation), an applicant shall prepare and document a social and economic justification. The Department shall determine, through the public processes for each of these permits or authorizations, whether these activities can be justified.

F. Need for Tier II Antidegradation Review.

  (1) Permits and Authorizations. Before submitting an application for a new or major modification of an existing discharge permit or Notice of Intent for authorization under a general permit, wetlands and waterways permit, or water quality certification, the discharger or applicant shall determine whether the receiving water body is in a Tier II watershed by consulting the list of Tier II waters.

  (2) County Plans. As part of its continuing planning process, the Department shall review proposed updates or amendments to County Plans for any new or major modifications to discharges to a Tier II watershed. If a proposed update or amendment to a County Plan results in a new discharge or a major modification of an existing discharge to a Tier II watershed, the applicant shall perform a Tier II antidegradation review and:

    (a) State final action letters for updated County Plans or proposed amendments to the County Plan, such as changes to water or sewerage service areas, shall, at a minimum, include notification that portions of the updated Plan or amendments to service areas may impact Tier II watersheds; and

    (b) For updates or amendments to the County Plans that require discharge permits that grant new discharges or an increase or modification to an existing discharge, the County shall be notified that the applicant for the permit will be required to complete an antidegradation review.

  (3) Exemptions. The requirement to perform a Tier II antidegradation review does not apply to individual discharges of treated sanitary wastewater of less than 5,000 gallons per day if all of the existing and designated uses continue to be met.

G. Tier II Antidegradation Review.

  (1) If a Tier II antidegradation review is required, the applicant shall provide an analysis of reasonable alternatives that do not require direct discharge or a potential water quality impact to a Tier II watershed. The analysis shall include cost data and estimates to determine the cost effectiveness and feasibility of the alternatives.

  (2) If the analysis in §G(1) of this regulation shows that the alternatives are cost effective and feasible, the alternative is required as a condition of the permit, authorization, or amendment to the County Plan.

  (3) If the analysis in §G(1) of this regulation shows that the alternatives are not cost effective and feasible, the applicant shall provide the Department with plans to configure or structure the discharge or other regulated activities that may cause a potential water quality impact so as to minimize the use of the assimilative capacity of the water body.  The assimilative capacity of the water body is the difference between the water quality at the time the water body was designated as Tier II, the baseline, and the water quality criterion.

  (4) An applicant shall update an antidegradation review when applying for a new or major modification to an existing permit or authorization.

H. Potential Determinations Resulting from Antidegradation Reviews.

  (1) If there is a cost-effective alternative to direct discharge or water quality impacts, the applicant shall implement the alternative and it shall be a condition of the permit or authorization.

  (2) If there is no cost-effective alternative to direct discharge or water quality impacts, but there is potential for further minimization of the use of assimilative capacity, the applicant shall revise the initial application to further minimize the use of assimilative capacity, and it shall be a condition of the permit or authorization.  If the minimization of the use of assimilative capacity is adequate, then no social and economic justification (SEJ) is required.

  (3) If there is no cost-effective alternative to direct discharge or water quality impacts, minimization of the use of assimilative capacity is not adequate, and the SEJ does not justify the water quality impact, the permit application or authorization shall be denied.

  (4) If there is no cost-effective alternative to direct discharge or water quality impacts, all reasonable efforts have been made to minimize the use of assimilative capacity, and the SEJ is adequate and justifies the discharge or water quality impacts, the discharge permit shall be granted subject to other applicable requirements.

I. Social and Economic Justification (SEJ).

  (1) An SEJ shall be submitted if:

    (a) No cost-effective alternative to the discharge or water quality impacts is available; or

    (b) The cumulative degradation resulting from nonpoint source pollution and any other permitted discharges would diminish water quality.

  (2) To allow for natural variability, water quality shall be considered diminished only if the assimilative capacity as defined in §G(3) of this regulation is cumulatively reduced by more than 25 percent from the baseline water quality of either benthic or fish IBI value used to make the Tier II stream designation identified in §N of this regulation.

J. Demonstrating Social and Economic Justification for an Impact to Tier II Waters.

  (1) In order to promote compact development, maintain habitat and open lands, and minimize water impacts in undeveloped areas, the requirement for social and economic justification is met if all of the following demonstrations are made:

    (a) The watershed affecting the Tier II water is located in a priority funding area as defined in State Finance and Procurement Article, §5-7B-02, Annotated Code of Maryland;

    (b) The Department determines, in consultation with the Maryland Department of Planning, that the local jurisdiction in which the watershed affecting Tier II waters are located is using, to the extent reasonably practical, innovative development approaches to minimize impacts to water quality from development;

    (c) Physical development after the date of the Tier II listing is necessary to accommodate the projected growth within the watershed, and use of innovative development approaches are maximized to the extent reasonably practicable to encourage redevelopment, reuse, and infill development; and

    (d) If the Department of Planning's growth projections for the watershed affecting the Tier II waters demonstrate that additional physical development of undeveloped land is required to accommodate the projected growth and that development is consistent with the applicable county master plan.

  (2) The approaches described in §J(1)(b) of this regulation include, but are not limited to, innovative stormwater management and sediment and erosion control design practices, green building design techniques, nutrient removal technology for septic systems, innovative technologies designed to reduce point source discharges of pollutants, uniform building codes designed to remove impediments to rehabilitation projects, model infill development guidelines designed by the Maryland Department of Planning, and transit-oriented development.

K. Components of the Social and Economic Justification.

  (1) Components of the SEJ may vary depending on factors including, but not limited to, the extent and duration of the impact from the proposed discharge or regulated activity and the existing uses of the water body.

  (2) The economic analyses shall include impacts that result from treatment beyond the costs to meet technology-based or water quality-based requirements.

  (3) The economic analysis shall address the cost of maintaining high water quality in Tier II waters and the economic benefit of maintaining Tier II waters.

  (4) The economic analysis shall determine whether the costs of the pollution controls needed to maintain the Tier II water would limit growth or development in the watershed including the Tier II water.

L. Department Responsibilities.

  (1) The Department shall determine whether the SEJ is adequate and demonstrates that the costs of water pollution controls are reasonable and would not limit development or growth and, if not, shall determine whether lowering of the water quality is unavoidable for necessary development or growth to take place in the watershed.

  (2) The Department shall determine whether the SEJ demonstrates that the impact to water quality is necessary for development or growth to take place in the watershed. Evaluation of the SEJ shall consider the relative magnitude of costs and benefits of development, recognizing the difficulty in quantifying benefits, and the extent to which denial of the amendment, permit, or authorization would substantially impact future development within the watershed.

  (3) When the Department proposes to issue a tentative determination to either issue or deny the permit application, the notice of tentative determination shall state that these waters are designated as Tier II and, if applicable, that a social and economic justification is available for review.

  (4) Existing in-stream water uses and the level of water quality necessary to protect existing uses shall be maintained and protected.

  (5) All required point and nonpoint source controls under State statutes and regulations shall be achieved.

M. Public Participation.

  (1) Public participation for a permit to discharge to a Tier II watershed is the same as that required for any permit subject to the Administrative Procedure Act or the requirements of Environment Article, Title 1, Subtitle 6, Annotated Code of Maryland.

  (2) If an SEJ is not required, the public notice shall reflect the Tier II status of the waterbody and note that an SEJ is not required and note the justification.

  (3) If an SEJ is required, the public notice shall reflect the Tier II status of the waterbody and note that an SEJ is required, and the Department shall make the SEJ available for review.

N. List of Tier II Waters Based on Maryland Biological Stream Survey (fish and benthic macroinvertebrate) Index Scores.

#### Regulation .04-3 Antidegradation Policy Implementation Procedures: Tier III Level of Protection — Outstanding National Resource Waters.

*COMAR 26.08.02.04-3*

A. Scope. There are many tools available to protect special resources including the Smart Growth Initiative, Rural Legacy Program, local comprehensive plans, Program Open Space, and others that work through the private sector and nongovernment organizations. This regulation applies the Tier III Outstanding National Resource Waters (ONRW) designation only where the most stringent protection is necessary and appropriate to protect and maintain existing exceptional resources. Where high quality waters constitute an outstanding national resource, such as waters of national and State parks and wildlife refuges, and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected.

B. Definitions.

  (1) Exceptional Biological Resources.

    (a) “Exceptional biological resources” means ecologically significant aquatic or wetland habitat that is:

      (i) Distinctive because of its unique or very rare combination of natural species and communities; and

      (ii) Dependent on maintaining high or pristine water quality or special conditions of existing water quality, such as a bog, which can best be assured protection by no new or increased discharge.

    (b) “Exceptional biological resources” includes, if appropriate:

      (i) Wholly aquatic threatened or endangered species as defined in Natural Resources Article, §10-2A-01, Annotated Code of Maryland;

      (ii) Wholly aquatic species in need of conservation identified in COMAR 08.03.08.09; or

      (iii) Wetlands of special concern as defined in COMAR 26.23.06.

  (2) “Protected Area” means a permanently protected area such as:

    (a) Wildlife refuges or similar habitat protection areas which include but are not limited to wildlife management areas, national parks, State parks, and management areas;

    (b) Areas under permanent conservation easement or rural legacy status as determined in consultation with the Rural Legacy Board, Natural Resources Article, §5-9A-03, Annotated Code of Maryland, or easement holder to assure that the location meets the intent and needs of the ONRW designation as determined by the Department of the Environment; or

    (c) Areas under some other demonstrated protection, by which the Department may be assured that there will be no changes in land use which could result in nonpoint source runoff posing a direct or indirect threat to the biological values proposed in the nomination.

C. Eligible Nominations.

  (1) Required Components. The nominating group or individual shall provide:

    (a) Evidence of the presence of exceptional biological resources or exceptional recreational resources dependent on such biological resources;

    (b) Scientific information and analysis concerning existing water quality in the body of water, including a demonstration that the water quality is typical of the nominated body of water;

    (c) Specific boundaries of the nominated waters and upstream watershed, and a statement whether the nominated body of water and upstream watershed are fully within a protected area except as provided in §F of this regulation; and

    (d) Demonstration that an attempt has been made to notify all impacted riparian landowners of the nomination by delivering or mailing notice of proposed nomination to the riparian landowner.

  (2) A mailed notice shall request “Restricted Delivery” and show to whom it was delivered and the date and address of delivery.

  (3) Additional Information That May Be Required. The Department may require the nominee to submit an economic analysis to address community economic and social concerns.

  (4) Assessment. Before proposing the ONRW designation for a body of water, the Department will analyze the information in the nomination package for completeness and confirmation that the body of water achieves and meets the conditions of the ONRW designation.

D. Requirements for an ONRW.

  (1) The area nominated for ONRW designation shall be an exceptional biological resource or exceptional recreational resource dependent on exceptional biological resources.

  (2) The exceptional biological resource shall be dependent on maintaining high or pristine water quality or special conditions of existing water quality, such as a bog, which can best be assured protection by no new or increased discharge.

  (3) To be designated an Outstanding National Resource Water, the area shall be wholly within a permanently protected area.

  (4) If the area nominated for ONRW designation has high water quality but does not have exceptional biological resources, it will be protected against degradation under Regulation .04 of this chapter.

E. Protection for Upstream Areas that Feed the ONRW Water Body. In determining whether to designate a body of water as ONRW, the Department may consider whether the watershed upstream of the proposed ONRW area has protections in place that are consistent with the maintenance and protection of biological resources in the ONRW segment. These protections can include, but are not limited to:

  (1) A county comprehensive plan or other plan that designates the upstream watershed as a “no growth area”; or

  (2) An easement or other legal instrument that protects and maintains the existing land use.

F. Endangered Species. If a nomination is based on a federally threatened or endangered wholly aquatic species, the Department may, but is not required to, designate a water body as an ONRW without requiring protected status. Although the presence of an endangered species may be an indication of a special biological resource, the primary protection for endangered species is provided by the Maryland Nongame and Endangered Species Conservation Act, Natural Resources Article, Title 10, Subtitle 2A, Annotated Code of Maryland, and the Federal Endangered Species Act. If an ONRW is approved for a body of water that is not in a protected status, any regulated activities in the watershed which would adversely impact the aquatic threatened or endangered species population, or impair the habitat required by the species, will require the maximum practical application of best management practices and implementation of antidegradation policies by the Department. The implementation requirements set forth in §I of this regulation also apply.

G. Designation of an Area as an ONRW.

  (1) The Department may designate an area as an ONRW if:

    (a) All provisions of the Administrative Procedure Act, State Government Article, Title 10, Subtitle 1, Annotated Code of Maryland, have been met;

    (b) The application is complete and all requirements have been met; and

    (c) Written permission for the designation has been received from the landowner or landowners within the proposed area for ONRW.

  (2) Notice to property owners shall be based on property and tax records in the affected jurisdictions.

H. Public Involvement. The Department shall provide public notice and opportunity for a public informational hearing on the proposed designation of an ONRW before that designation is made. Local jurisdictions shall have 60 days after notification of the nomination to comment on the consistency of the nomination with the locality's comprehensive plan.

I. Implementation.

  (1) A wastewater or industrial discharge NPDES permit that would allow a new discharge or an increase in an individual discharge may be issued within an ONRW only if there is mitigation or offsets elsewhere in the ONRW segment that result in no net increase in any substance which might impact or impair the ONRW values for which the body of water was nominated.

  (2) A water quality certification may permit an impact only if:

    (a) The water quality necessary to maintain and protect the exceptional biological resource is maintained; and

    (b) There is mitigation or restoration elsewhere in the ONRW water segment.

  (3) Sources of pollution may be allowed by the Department for temporary degradation if, after a minimal period of time (weeks to months), the waters are returned or restored to conditions equal to or better than those existing just before the temporary source of pollution.

  (4) After a public informational hearing, the Secretary may make exceptions to §I(1), (2), and (3) of this regulation to protect critical public health and safety concerns.

#### Regulation .05 Surface Water Mixing Zones.

*COMAR 26.08.02.05*

A. General.

  (1) Effluents may be mixed with surface waters in the mixing zone.

  (2) Effluents may not be treated in the mixing zone.

  (3) Lethality to passing organisms may not occur in any mixing zone.

  (4) Surface waters outside the mixing zones shall meet the water quality criteria for that particular body of water.

  (5) Mixing zones may be designated by the Department provided that the following requirements are met outside the mixing zones:

    (a) There shall be no interference with biological communities or populations of indigenous species to a degree which is damaging to the aquatic life or ecosystem;

    (b) There shall be no diminishing of other legitimate beneficial uses;

    (c) Mixing zones may not form barriers to the migratory routes of aquatic life;

    (d) Mixing zones shall be designated and located to protect surface waters and shallow water shoreline areas;

    (e) The general water quality criteria set out in Regulation .03B(1)—(3) of this chapter apply within the mixing zones.

  (6) Complete mixing within the mixing zone shall be assumed for toxic substance discharges to streams, rivers, and estuaries unless site-specific information indicates that another mixing pattern is more appropriate.

  (7) Stream flows other than the design flow values set forth in §§B—E of this regulation may be used, at the Department's discretion, on a case-by-case basis for mixing zones associated with noncontinuous discharges.

  (8) Toxic pollutants shall be treated as conservative substances when calculating instream waste concentrations. The assumption of conservatism may be waived based on pollutant-specific and site-specific information.

  (9) Unless a later time is stipulated by the Department, the discharger shall submit to the Department, at the time of permit application, the mixing zone technique preferred for each of its discharges, and actual mixing zone calculations together with supporting documentation.

  (10) A mixing zone may not cause a significant human health risk, considering likely pathways of human exposure.

  (11) Except when the applicant can demonstrate to the satisfaction of the Department that adverse aquatic life or human health effect does not occur, overlapping mixing zones are not permitted. Demonstration may include chemical monitoring, ambient toxicity testing, or examination of benthic communities or fish tissue.

  (12) A mixing zone may not be granted in water body segments with documented occurrences of any endangered or threatened species listed under §4 of the federal Endangered Species Act, if that discharge would likely have an adverse effect on those species.

B. Mixing Zones for Conventional Pollutants. The following requirements apply to the calculation of the regulatory mixing zones for conventional pollutants as identified in the Federal Act:

  (1) Except for thermal mixing zones established in accordance with COMAR  26.08.03.03—.05 and toxic substance mixing zones established in accordance with §§C—E of this regulation, any mixing zone may not exceed the following maximum limits:

    (a) In freshwater streams and rivers, a mixing zone width may not exceed 1/3 of the width of the surface water body;

    (b) In lakes, the combined area of all mixing zones may not exceed 10 percent of the lake surface area; and

    (c) In estuarine areas, the maximum cross-sectional area of the mixing zone may not exceed 10 percent of the cross-sectional area of the receiving water body; and

  (2) The flows used shall be:

    (a) For freshwater streams and rivers, the design stream flow; and

    (b) For estuaries and the open ocean, determined from:

      (i) Specific data, when available, for the mean water level and average tidal velocity and, where appropriate, the design stream flow,

      (ii) Specific data on waste dispersion or dilution, when available for a specific discharge, or

      (iii) Dispersion or dilution studies required at the Department's discretion.

C. Application of Toxic Substance Acute Criteria for the Protection of Aquatic Life.

  (1) In intermittent streams, the acute criterion shall be applied at the end of the discharge pipe.

  (2) In other water bodies, achievement of the acute criterion to protect aquatic life shall be provided:

    (a) Within a very short distance from the outfall using:

      (i) A high velocity discharge with an initial velocity of 3 meters per second or more, and

      (ii) A mixing zone limited to 50 times the discharge length scale in any direction, where the discharge length scale is defined as the square root of the cross-sectional area of any discharge outlet;

    (b) Without a high velocity discharge, within a short distance from the outfall using the most restrictive of the following conditions:

      (i) Meeting the acute toxicity criterion within 10 percent of the distance from the edge of the outfall structure in any direction to the edge of the mixing zone used for application of toxic substance chronic criteria,

      (ii) Meeting the acute toxicity criterion within a distance of 50 times the discharge length scale in any direction, when the discharge length is defined as the square root of the cross-sectional area of any discharge outlet, or

      (iii) Meeting the acute toxicity criterion within a distance of five times the local water depth in any horizontal direction from the discharge outlet, where appropriate; or

    (c) By demonstration or calculation that a drifting organism may not be exposed to a 1-hour average concentration exceeding the acute aquatic life criterion.

  (3) For the application of the acute criteria, any mixing zone may not exceed the following maximum limits:

    (a) In freshwater streams and rivers, a width equal to 1/3 the width of the surface water body;

    (b) In lakes, for all discharges combined, 5 percent of the lake surface area; and

    (c) In estuarine areas, a cross-sectional area equal to 5 percent of the cross-sectional area of the receiving water body.

  (4) The flows used shall be:

    (a) For freshwater streams and rivers, the design stream flow; and

    (b) For estuaries and the open ocean, determined from:

      (i) Specific data, when available, for the mean low water and minimum daily average 1-hour tidal velocity and, when appropriate, the design stream flow,

      (ii) Specific data on waste dispersion or dilution, when available for a specific discharge, or

      (iii) Dispersion or dilution studies required at the Department's discretion.

D. Application of Toxic Substance Chronic Criteria for the Protection of Aquatic Life.

  (1) Any mixing zone may not exceed the following:

    (a) In freshwater streams and rivers, a mixing zone width may not exceed 1/3 of the width of the surface water body;

    (b) In lakes, the combined area of all mixing zones may not exceed 10 percent of the lake surface area; and

    (c) In estuarine areas, the maximum cross-sectional area of the mixing zone may not exceed 10 percent of the cross-sectional area of the receiving water body.

  (2) The flows used shall be:

    (a) For freshwater streams and rivers, the 30Q5 value; and

    (b) For estuaries and the open ocean, determined from:

      (i) Specific data, when available, for the mean water level and average tidal velocity and, when appropriate, the 30Q5 stream flow,

      (ii) Specific data on waste dispersion or dilution, when available for a specific discharge, or

      (iii) Dispersion or dilution studies required at the Department's discretion.

E. Application of Toxic Substance Criteria for the Protection of Human Health. The flow used to determine impacts to human health shall be the mean annual flow value.

#### Regulation .05-1 Intermittent Streams.

*COMAR 26.08.02.05-1*

A. New wastewater discharges to intermittent streams are not permitted after the effective date of this regulation except to resolve existing on-site sewage disposal failures when other alternatives are not available.

B. Effluent limitations for discharge to intermittent streams may not be less stringent than:

  (1) The minimum national effluent guidelines established under the Federal Act;

  (2) Those levels necessary to maintain the water quality standards of the intermittent stream and of downstream segments;

  (3) Those levels necessary to protect the biological community of the intermittent stream; or

  (4) Those levels necessary to protect public health.

#### Regulation .06 Review and Revision.

*COMAR 26.08.02.06*

A. Procedure. Under State law and §303(c) of the Federal Act, the Department shall review and revise its water quality standards as appropriate. Changes shall be transmitted to the EPA.

B. Hearing Transcripts. Transcripts of public hearings on proposed standards revisions shall be available for public inspection in the main office of the Department. Transcripts shall be furnished to the EPA upon request.

#### Regulation .07 Surface Water Use Designation.

*COMAR 26.08.02.07*

A. All surface waters of this State shall be protected for water contact recreation, fishing, and protection of aquatic life and wildlife.

B. For interstate waters, these classifications apply only to those waters within this State.

C. A stream segment is a distinct portion of a sub-basin.

D. If the stream segment limits are specified as beginning at a specific point, streams terminating downstream of this point are not included in the same segment. For example, “Deer Creek and all tributaries above Eden Mill Dam” does not include Little Deer Creek.

#### Regulation .08 Stream Segment Designations and Existing Uses.

*COMAR 26.08.02.08*

A. General.

  (1) All geographic coordinates provided within this regulation are expressed in decimal degrees latitude and longitude using the North American Datum of 1983. In this regulation, Maryland's waters are organized by sub-basin. For most Class I, I-P, III, III-P, IV, or IV-P waters, the limits indicate the most downstream boundary point or line for the segment. In some cases, an upstream point and a downstream point are provided to describe those uses that may apply only to a limited segment of a water body. In tidal areas, the segments are defined by polygons defined by three or more points as numbered and expressed in narrative format in column four and defined by latitude and longitude point locations in columns two and three. Any waterbody not specifically listed in the table is a Class I water.

  (2) Tidal Segmentation Rationale. Water quality standards for the Chesapeake Bay and its tidal tributaries will be assessed on a “Bay Segment” scale. The segmentation is based on decisions made by the Chesapeake Bay Program in 1998 and 2003, and documented in Chesapeake Bay Program Analytical Segmentation Scheme Revisions, Decisions, and Rationales: 1983-2003 (EPA 903-R-04-008) as adjusted by the Chesapeake Bay Program after cussions with the affected State jurisdictions.

  (3) Tidal Segment Boundaries. When using latitude and longitude to delineate Chesapeake Bay tidal segments, the limits are narrative descriptions that delineate the base points of reference. Chesapeake Bay tidal segments generally follow the shoreline contour at mean low water, and include all major bays, creeks, and branches present within the narrative limits of a given segment. The origin of latitudes and longitudes used for the Chesapeake Bay and its tidal tributaries is NAD83.

  (4) Application of Chesapeake Bay Segmentation Scheme. The tidal boundaries set forth in this regulation are defined for water quality standards purposes within the Department only, and are not applicable to other agency regulations identified for other purposes.

  (5) No Grow Zones. Submerged Aquatic Vegetation (SAV) “No-Grow” Zones (NGZ) are present in some shallow water designated use segments. The SAV “No Grow Zones” are identified in Technical Support Document for Identification of Chesapeake Bay Designated Uses and Attainability-2004 Addendum (EPA 903-R-04-006), Figures V-1 to V-12, which is incorporated by reference. The no grow zones shall be excluded from the assessment of the shallow water designated use.

  (6) Existing Uses. Several of the sub-basins in this regulation contain stream segments that support existing uses that require different water quality than the designated use. These existing uses have been determined in accordance with Regulation .04-1 of this chapter. The existing uses for these stream segments are described both in terms of the existing uses supported (e.g., naturalized reproducing brown trout population) and the water quality currently known to sustain them. For determining effluent limits, closure periods, and other regulatory protection measures, these existing uses and the water quality necessary to maintain them must be protected consistent with Regulation .04-1 of this chapter. These existing uses are maintained and can be accessed on the Department’s website.

B. Sub-Basin 02-12-02: Lower Susquehanna River Area.

C. Sub-Basin 02-13-01: Coastal Area.

D. Sub-Basin 02-13-02: Pocomoke River Area.

E. Sub-Basin 02-13-03: Nanticoke River Area.

F. Sub-Basin 02-13-04: Choptank River Area.

G. Sub-Basin 02-13-05: Chester River Area.

H. Sub-Basin 02-13-06: Elk River Area.

I. Sub-Basin 02-13-07: Bush River Area.

J. Sub-Basin 02-13-08: Gunpowder River Area.

K. Sub-Basin 02-13-09: Patapsco River Area.

L. Sub-Basin 02-13-10: West Chesapeake Bay Area.

M. Sub-Basin 02-13-11: Patuxent River Area.

N. Sub-Basin 02-14-01: Lower Potomac River Area.

O. Sub-Basin 02-14-02: Washington Metropolitan Area.

P. Sub-Basin 02-14-03: Middle Potomac River Area.

Q. Sub-Basin 02-14-05: Upper Potomac River Area.

R. Sub-Basin 02-14-10: North Branch Potomac River Area.

S. Sub-Basin 05-02-02: Youghiogheny River Area.

T. Sub-Basin 02-05-03: Conewago Creek.

U. Sub-Basin 02-13-99: Chesapeake Bay (Mainstem).

#### Regulation .09 Ground Water Quality Standards.

*COMAR 26.08.02.09*

A. Discharge Approval Required.

  (1) Any discharge or disposal of waters or wastewaters into the underground waters of the State requires the approval of the Department. The approval, if granted, will contain limitations and requirements deemed necessary by the Department to protect the public health and welfare and to prevent pollution of ground and surface waters.

  (2) A separate State discharge permit is required for:

    (a) Wastewater effluents disposed of by means of spray or other land treatment or application systems;

    (b) Ground water recharge systems;

    (c) Discharge of leachate from a landfill to surface or ground waters except as specified in §A(3)(a); and

    (d) Other subsurface disposal systems not specifically exempted in this regulation.

  (3) A separate State discharge permit is not required for:

    (a) Landfills designed to achieve natural attenuation of leachate and permitted under Environment Article, §9-204 or 9-224, unless there is a discharge of leachate to surface waters of the State;

    (b) Subsurface sewage disposal systems using soil absorption and permitted by the Department under Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland, and COMAR 26.04.02;

    (c) Sewage sludge composting or disposal operations permitted by the Department under Environment Article, Title 9, Subtitle 2, Part III, Annotated Code of Maryland, unless there is a direct discharge of wastewater to surface waters of the State; and

    (d) Other subsurface disposal systems permitted by the Department under the provisions of COMAR 26.08.04.08.

  (4) An Underground Injection Permit issued under COMAR 26.08.07 also constitutes a discharge permit under this regulation.

  (5) The land application of food processing wastewater is exempt from the requirement to obtain a State discharge permit if the wastewater meets the Maryland Department of Agriculture (MDA) State Chemist Office requirements for registration as a soil conditioner, subject to the following conditions and exceptions:

    (a) MDA notifies the Department that a determination has been made that the wastewater meets the requirements for registration as a soil conditioner. If the Department has not responded within 45 days of the notification, the determination made by MDA shall be considered accepted and the applicant shall be exempt from obtaining a State discharge permit. If the Department verifies or rejects MDA’s State Chemist determination within 45 days of the notification, the Department may still require a State discharge permit.

    (b) The applicant continues to perform any necessary actions to ensure that the wastewater meets the requirements for registration as a soil conditioner, and complies with the COMAR 15.20.04—15.20.08, which includes the applicant’s obligation to obtain and comply with a Nutrient Management Plan governing the application of the wastewater.

    (c) Department representatives upon presentation of credentials are allowed at reasonable times to enter premises to inspect any wastewater collection, treatment, land application records and practices, and food processing operation records.

    (d) An application for renewal of the exemption set forth herein must be submitted to MDA within 5 years of the exemption date from obtaining a State discharge permit. The requirements of this subsection apply for the renewal process.

    (e) The Department may deny the permit exemption during the 45 day period or at any time choose to revoke a permit exemption provided under this section.

(Agency note: A separate State discharge permit is a discharge permit issued to an individual discharger or point source. A general permit is a State discharge permit issued to a class of dischargers pursuant to COMAR 26.08.04.08.)

B. Aquifer Types Identified. For the purpose of controlling the pollution of the ground waters of the State, the Department of the Environment has identified three aquifer types and has established standards for ground water quality, as follows:

  (1) Type I aquifer means an aquifer having a transmissivity greater than 1,000 gallons/day/foot and a permeability greater than 100 gallons/day/square foot. In addition, the total dissolved solids concentration for natural water in each aquifer shall be less than 500 milligrams/liter.

  (2) Type II aquifer means an aquifer having either:

    (a) A transmissivity greater than 10,000 gallons/day/foot, a permeability greater than 100 gallons/day/square foot and natural water with a total dissolved solids concentration of between 500 and 6,000 milligrams/liter; or

    (b) A transmissivity between 1,000 and 10,000 gallons/day/foot, a permeability greater than 100 gallons/day/square foot and natural water with a total dissolved solids concentration of between 500 and 1,500 milligrams/liter.

  (3) Type III aquifer means all aquifers other than Type I and Type II aquifers.

C. Discharge Quality Criteria. The following criteria apply outside of designated mixing zones (for the purpose of this section, the term “mixing zone” means an area or volume established by the Department for the mixing of ambient ground water with waters or wastewaters, or both, discharged as authorized by the Department):

  (1) For Type I Aquifers. The characteristics or constituents of waters may not exceed primary or secondary standards for drinking water as adopted by the Department of the Environment in COMAR 26.04.01.

  (2) For Type II Aquifers. The characteristics or constituents of waters after treatment by commercially available home water treatment or softening systems may not exceed primary or secondary standards for drinking water, except for total dissolved solids, as adopted by the Department of the Environment in COMAR 26.04.01 and §B(2) of this regulation.

  (3) For Type III Aquifers. The characteristics or constituents of waters shall be such that they do not meet Type I or Type II quality criteria.

D. Guidelines for Discharge to Ground Waters.

  (1) Land disposal of municipal wastewater or wastewater with similar characteristics shall follow the Department of the Environment's “Guidelines for Land Application/Reuse of Treated Municipal Wastewaters” MDE-WMA-001-04/10, which is incorporated by reference.

  (2) Discharges to a ground water aquifer of specific classification may not result in pollution of an aquifer possessing higher quality criteria.

  (3) Discharges to ground water may not result in degradation of ground waters below the criteria established in §C, outside a mixing zone specified in a State discharge permit, general permit, or other permit issued by the Department of the Environment.

  (4) Dischargers or potential dischargers to ground waters may be required to monitor ground or surface waters, or both, in a manner and frequency and at locations specified by the Department of the Environment and to periodically submit the results of these activities.

  (5) As provided in COMAR 26.13.05.18, the underground injection of hazardous wastes is prohibited.

#### Regulation .10 Water Quality Certification.

*COMAR 26.08.02.10*

A. General.

  (1) The Federal Act prohibits the issuance of a federal permit or license to conduct any activity which may result in any discharge to navigable waters unless the applicant provides a certification from this State that the activity does not violate State water quality standards or limitations. This regulation establishes the procedures under which this certification will be issued.

  (2) Discharges permitted by the Department under the National Pollutant Discharge Elimination System are certified by the Department.

B. Application for a Water Quality Certification.

  (1) An applicant for certification shall submit to the Department an application which includes:

    (a) Name and address of the applicant.

    (b) A description of the facility or activity.

    (c) A description of any discharge which may result from the conduct of any activity including:

      (i) Biological, chemical, thermal or other characteristics of the potential discharge; and

      (ii) The location or locations at which any discharge may enter navigable waters.

    (d) A description, if applicable, of the function and operation of any equipment or facilities to treat any discharge and the degree of treatment to be attained.

    (e) The date on which the activity will begin or end, if known, and the date or dates on which any discharge may occur.

    (f) A description, if applicable, of the methods proposed or employed to monitor the quality and characteristics of any discharge.

    (g) Any other information the Department determines is necessary for evaluation of the impact of the activity on water quality. This may include quantitative analysis to demonstrate that the proposed activity may not violate State water quality standards.

  (2) Discharges to Outstanding National Resource Waters (ONRW) will be certified only if:

    (a) There is minimal adverse environmental impact;

    (b) The discharges will not impair the water quality necessary to maintain the exceptional biological resource of the ONRW; and

    (c) All practical actions have been taken to avoid impacts.

  (3) By agreement with either federal or State agencies in order to facilitate the certification process, the Department may develop a joint application for a federal license or permit and State water quality certification.

C. Public Notice.

  (1) The Department shall provide public notice of each application for certification.

  (2) The public notice shall:

    (a) Give a brief description of the proposed activity;

    (b) Provide instructions for submission of written comments; and

    (c) Specify the expiration date for the opportunity to comment.

  (3) The public notice may be given by:

    (a) Joint notice with the federal permitting agency;

    (b) Joint notice with other State agencies; or

    (c) Selected mailings to State, county, or municipal authorities and other parties known to be interested in the matter.

D. Determination of Need for Public Hearing. The Department may hold a public hearing before issuing any water quality certification if:

  (1) The Department determines the activity requiring certification is of broad, general interest; or

  (2) The application for certification generated substantial public interest as indicated by written comments concerning water quality issues.

E. Issuance of Certification.

  (1) Certification Issuance. If the Department determines the proposed activities will not cause a violation of applicable State water quality standards, the Department shall issue the water quality certification.

  (2) Applicant Responsibilities.

    (a) Issuance of water quality certification does not relieve the applicant of his responsibility to comply at all times with federal and State law.

    (b) The applicant shall:

      (i) Obtain the State water quality certification before the conduct of any activity requiring the federal permit;

      (ii) Comply with all conditions of the State water quality certification to assure achievement of State water quality standards.

  (3) Emergency Procedures. The Department:

    (a) May issue an emergency water quality certification in those cases when the Department determines that an unacceptable threat to human life, water quality, or aquatic resources may occur or in those cases when a severe loss of property may result before a certification can be issued in accordance with procedures specified in §C of this regulation;

    (b) Shall issue a notice stating its action and the reasons for the action in accordance with the requirements of §C of this regulation, not later than 10 days following the issuance of the emergency certification;

    (c) Shall incorporate in the emergency certification all standards and criteria normally applied to the specific type of project authorized by the emergency certification.

F. Procedures for Public Hearing.

  (1) Notice of Public Hearing. The notice of public hearing shall:

    (a) Include a brief description of the project;

    (b) Include information concerning the date, time, and location of the public hearing;

    (c) Include a brief description of the nature of the written comments received; and

    (d) Be published in the Maryland Register at least 45 days before the hearing.

  (2) Public Hearing.

    (a) An interested person shall be given an opportunity to present evidence for or against the granting of water quality certification at the public hearing.

    (b) Written comments shall be received by the Department by the date of the public hearing, unless the comment period is specifically extended at the hearing.

  (3) Final Determination. After the closing date for receipt of written comments and after any public hearing the Department shall:

    (a) Consider the testimony and other information presented;

    (b) Prepare a written decision; and

    (c) Publish the decision in the Maryland Register.

  (4) Appeal of Final Decision.

    (a) A person aggrieved by the Department's decision concerning a water quality certification may appeal the decision of the Department. The appeal shall:

      (i) Be filed within 30 days of the publication of the final decision with the hearing office; and

      (ii) Specify, in writing, the reason why the final determination should be reconsidered.

    (b) A further appeal shall be in accordance with the applicable provisions of State Government Article, §10-201 et seq., Annotated Code of Maryland.

G. General Certification.

  (1) The Department may issue a general water quality certification for a class of activities requiring any federal license or permit.

  (2) A general certification shall authorize all activities that meet the class description.

  (3) In unique circumstances not considered in the issuance of the general certification, the Department may require issuance of an individual water quality certification for an activity that could be regulated under a general certification.

H. General Certification Issuance and Renewal.

  (1) If the Department determines to adopt a general certification for a specific class of activities, the Department shall prepare a fact sheet:

    (a) Describing the class of activities to be included; and

    (b) Outlining the proposed conditions and limitations of the general certification.

  (2) Notice of Intent to Adopt General Certification.

    (a) The Department shall prepare a public notice which includes:

      (i) A brief description of the general and special conditions which are proposed to be included in the general certification.

      (ii) Provisions for examination by interested parties of the draft permit and other information related to the preliminary determination made by the Department.

      (iii) A request for written comments concerning the general permit and a statement that a public hearing may be held if significant written public comment concerning the application is received by the Department.

      (iv) Instructions for submission of written comments.

      (v) The deadline specified for the submission of written comments. The deadline shall be at least 30 days from the date of publication of notice in the Maryland Register.

    (b) The Department shall publish the notice in the Maryland Register. A copy of the notice shall be sent to:

      (i) Local health officers;

      (ii) Other interested State and local agencies; and

      (iii) Any person requesting to be notified.

  (3) Public Hearings.

    (a) A public hearing shall be held and a notice of the public hearing shall be prepared and distributed if:

      (i) There is significant public comment concerning the tentative determination to issue a general certification; or

      (ii) The Department determines that a public hearing is necessary.

    (b) The notice of public hearing shall be prepared and published in accordance with §F of this regulation.

    (c) The public hearing shall be conducted in accordance with the procedure outlined in §F of this regulation.

  (4) Appeal of Final Decision. A person aggrieved by the Department's decision concerning a general water quality certification may appeal the decision of the Department. The appeal shall be in accordance with §F(4) of this regulation.

I. Applicant's Responsibility. General certification of any activity does not relieve the applicant of his responsibility to comply at all times with federal and State laws.

#### Regulation .11 General Water Quality Certifications.

*COMAR 26.08.02.11*

A. General Water Quality Certification (GWQC) for Marsh Creation Projects.

  (1) Scope of Activity.

    (a) Definition. Marsh creation projects are defined as the vegetative stabilization of tidal shorelines and nontidal stream banks that are subject to erosion.

    (b) Exception. The projects certified by this GWQC do not include marshes created for storm water management purposes.

    (c) Marsh Creation. The creation of marshes includes the following activities:

      (i) The placement of fill material such as earth or sand;

      (ii) The construction of stone containment structures;

      (iii) The grading of banks; and

      (iv) The planting of Spartina alterniflora, Spartina patens, or other species acceptable to the Department.

  (2) Certification. A federally permitted marsh creation project which meets the conditions of this GWQC is authorized under §401 of the Clean Water Act (33 U.S.C. 1341 (1987)), provided that other applicable federal, State, and local laws and regulations are satisfied.

  (3) Design Specifications.

    (a) The stabilization activity shall be determined to be necessary for the prevention of erosion on tidal shorelines or nontidal stream banks.

    (b) The placement of fill material authorized by this GWQC shall be limited to less than an average of 2 cubic yards of material per running foot placed within waters of the State.

    (c) The project is a single and complete project.

    (d) The applicant, in planning the project, shall comply with seasonal limitations applied to the construction phase for the protection of important aquatic species.

  (4) Construction Specifications.

    (a) Material may not be placed in excess of the minimum needed for erosion protection. All temporary fills shall be removed in their entirety on or before the completion of construction.

    (b) Material may not be placed in any location or in any manner so as to impair surface or subsurface water flow into or out of any wetland area.

    (c) Placement of fill material in existing vegetated wetlands shall be minimized to the greatest extent possible.

    (d) Only clean material free of waste metal products, organic material, unsightly debris, toxic substances in toxic amounts, or any other deleterious substance shall be placed. The fill material to be placed shall include clean earth fill, sand, and stone only.

    (e) Discharges in spawning areas during spawning seasons of important aquatic species shall be avoided.

    (f) Placement of fill material may not restrict or impede the movement of aquatic species indigenous to the waters or cause the relocation of the water.

    (g) Placement of fill material into breeding areas for migratory waterfowl shall be avoided.

    (h) Heavy equipment working in wetlands shall be placed on mats, or suitably designed to prevent damage to the wetlands.

  (5) Applicant's Responsibility.

    (a) This GWQC does not relieve the applicant of the responsibility for obtaining any other approvals, licenses, or permits in accordance with federal and State laws or regulations, or local ordinances.

    (b) This GWQC does not authorize the beginning of any proposed work in the absence of necessary approvals, licenses, or permits.

    (c) The applicant is required to comply with all conditions of this general certification.

  (6) Right of Inspection.

    (a) Reliance on this GWQC by the applicant or his agent constitutes permission to inspect at any time the operations and records for any project conducted under the authority of this GWQC.

    (b) Failure to comply with the conditions of this GWQC shall constitute reason for suspension or revocation of the applicant's use of this GWQC.

    (c) Legal proceedings may be instituted against the alleged violator in accordance with Health-General Article, §2-207, and State Government Article, §§10-201 et seq., Annotated Code of Maryland.

B. General Water Quality Certification (GWQC) for the Installation of Utility Lines.

  (1) Scope of Activity.

    (a) Definition. Utility lines are defined as any pipe, cable, or wire for the conveyance of public water or public sewer, natural gas, or the transmission of electrical, radio, or telecommunications service.

    (b) Exceptions.

      (i) Utility lines do not include intake and outfall structures or any pipe and pipeline used to transport any gaseous, liquid, or slurry substance except as associated with natural gas, water, and sewage lines.

      (ii) Blasting, as a construction method, is not authorized by this GWQC.

      (iii) Installation of gas pipe lines larger than 12 inches in diameter is not authorized by this GWQC.

    (c) Installation. The installation of utility lines includes the following activities:

      (i) The trenching, jetting, jackhammering, or plowing of wetlands or waterways;

      (ii) The laying of a pipe, cable, or wire;

      (iii) The backfilling of the excavated trench containing the pipe, cable, or wire;

      (iv) The placement of riprap; and

      (v) The vegetative stabilization of wetland areas which have been disturbed.

  (2) Certification. A federally permitted utility line installation which meets the conditions of this GWQC is authorized under §401 of the Clean Water Act (33 U.S.C. 1341 (1987)), provided that other applicable federal, State and local laws and regulations are satisfied.

  (3) Design Specifications.

    (a) The applicant, in planning the project, shall comply with seasonal limitations applied to the construction phase for the protection of important aquatic species.

    (b) The post-construction bottom contours of waters and elevations of wetlands shall be the same as original contours and elevations.

    (c) Disturbances of wetlands and waterways shall be avoided or minimized through the use of other practical alternatives such as designing the utility line in a proposed or existing roadway or using an existing right-of-way.

  (4) Construction Specifications.

    (a) Excess material shall be removed to an upland disposal area identified on the plan submitted for approval.

    (b) Temporary fill materials shall be removed in their entirety on or before the completion of construction.

    (c) Material may not be placed in any location or in any manner so as to impair surface or subsurface water flow into or out of any wetland area.

    (d) If backfill material is obtained from sources other than the originally excavated material, it shall be clean material, free of waste metal products, organic material, unsightly debris, toxic substances in toxic amounts, or any other deleterious substance.

    (e) Permanent work may not:

      (i) Restrict or impede the movement of aquatic species indigenous to the waters;

      (ii) Restrict or impede the passage of normal or expected high flows;

      (iii) Cause the relocation of the water; or

      (iv) Cause the impoundment of water.

    (f) To protect important aquatic species, in-stream work is prohibited as determined by the use designation of the stream, as follows:

      (i) Class I and Class I-P Waters. In-stream work may not be conducted during the period March 1 through June 15, inclusive, during any year.

      (ii) Class II Waters. In-stream work may not be conducted during the period June 1 through September 30 or December 16 through March 14, inclusive, during any year.

      (iii) Class III and Class III-P Waters. In-stream work may not be conducted during the period October 1 through April 30, inclusive, during any year.

      (iv) Class IV and Class IV-P Waters. In-stream work may not be conducted during the period March 1 through May 31, inclusive, during any year.

    (g) Disturbances in breeding areas for migratory waterfowl shall be avoided.

    (h) Heavy equipment working in wetlands shall be placed on mats or suitably designed to prevent damage to the wetland.

    (i) The applicant shall obtain and comply with a State or locally approved sediment control plan. The following apply:

      (i) This plan shall be on site during all phases of construction;

      (ii) Sediment bearing waters may not be discharged to the receiving waterway except as provided in the approved sediment control plan;

      (iii) Discharges of sediment bearing water may not cause violations of the applicable State water quality standards.

  (5) Applicant's Responsibility.

    (a) This GWQC does not relieve the applicant of the responsibility for obtaining any other approvals, licenses, or permits in accordance with federal and State law or regulation, or local ordinance.

    (b) This GWQC does not authorize the beginning of any proposed work in the absence of necessary approvals, licenses, or permits.

    (c) The applicant is required to comply with all conditions of the GWQC.

    (d) The applicant is required to maintain all utility installations constructed under the authority of this GWQC. All utility maintenance is subject to the conditions of this GWQC.

  (6) Right of Inspection.

    (a) Reliance on this GWQC by the applicant or his agent constitutes permission to inspect at any time the operations and records for any project conducted under the authority of this GWQC.

    (b) Failure to comply with the conditions of this GWQC shall constitute reason for suspension or revocation of the applicant's use of this GWQC.

    (c) Legal proceedings may be instituted against the alleged violator in accordance with Health-General Article, §2-207, and State Government Article, §§10-201 et seq., Annotated Code of Maryland.

#### Regulation .12 General Water Quality Certification (GWQC) for the Construction of Bulkheads.

*COMAR 26.08.02.12*

A. Scope of Activity.

  (1) Definition. “Bulkheads” means the structural stabilization of tidal and nontidal shorelines that are subject to erosion.

  (2) Exceptions.

    (a) Bulkheads authorized by this GWQC do not include structures which allow passage of a discharge pipe of any kind, such as storm water outfalls and those outfalls regulated under State discharge permits.

    (b) Riprap revetments are not authorized by this GWQC.

  (3) Bulkhead Construction. The construction of bulkheads includes the following activities:

    (a) Driving of piles;

    (b) Placement of a timber, aluminum, or steel vertical shoreline erosion control structure;

    (c) Placement of a gabion wall;

    (d) Placement of backfill behind the structure; and

    (e) Placement of riprap at the channelward toe of the structure.

B. Certification. A federally permitted bulkhead project which meets the conditions of the GWQC is authorized under §401 of the Federal Act provided that other applicable federal, State, and local laws and regulations are satisfied.

C. Design Specifications.

  (1) The stabilization activity shall be necessary for the prevention of erosion on tidal shorelines or nontidal stream banks.

  (2) The placement of fill material authorized by this GWQC shall be limited to an average of 1 cubic yard of material per running foot placed within waters of the State.

  (3) The project shall be a single and complete project.

  (4) The project shall be limited to 500 feet in length.

D. Construction Specifications.

  (1) The vertical structure shall be constructed in its entirety before the discharge of backfill material.

  (2) Material may not be placed in excess of the minimum needed for erosion protection.

  (3) Excess material shall be removed to an upland site identified on the plan submitted for the federal permit.

  (4) Temporary fills shall be removed in their entirety on or before the completion of construction.

  (5) Material may not be placed in any location or in any manner so as to impair surface or subsurface water flow into or out of any wetland area.

  (6) Placement of fill material in existing vegetated wetlands shall be minimized to the greatest extent possible. Bulkheads shall be placed landward of existing marsh vegetation. An area which contains more than 10 percent vegetated wetlands may not be filled.

  (7) Where the vertical structure is inundated by 2 feet or greater depths of water at the mean high water tide, stone riprap shall be placed at the toe of the structure to protect the structure from wave and tide action and to prevent the disturbance and transport of sediment to waters of the State, which may occur as a result of the scouring actions of wave and tide. Gabion walls are exempted from this requirement.

  (8) Only clean material free of waste metal products, organic material, unsightly debris, toxic material, or any other deleterious substance shall be placed as backfill.

  (9) The applicant shall obtain and comply with a State or locally approved sediment control plan when disturbing or placing greater than 100 cubic yards of earth or backfill.

  (10) Work in the waterway in spawning areas during spawning seasons of important aquatic species is prohibited.

  (11) Placement of fill material may not restrict or impede the movement of aquatic species indigenous to the waters, or cause the relocation of the waters.

  (12) Disturbances in breeding areas for migratory waterfowl shall be avoided.

  (13) Heavy equipment working in wetlands shall be placed on mats, or suitably designed to prevent damage to the wetlands.

E. Applicant's Responsibility.

  (1) This GWQC does not:

    (a) Relieve the applicant of the responsibility for obtaining any other approvals, licenses, or permits in accordance with federal and State laws or regulation, or local ordinances;

    (b) Authorize the beginning of any proposed work in the absence of necessary approvals, licenses, or permits.

  (2) The applicant shall comply with all conditions of this general certification.

F. Right of Inspection and Department Enforcement.

  (1) Reliance on this GWQC by the applicant or the applicant's agent constitutes permission to the Department to inspect at any time the operations and records for any project constructed under the authority of this GWQC.

  (2) An activity is authorized by the GWQC as long as compliance with the conditions of the GWQC is maintained. Upon failure to comply with the conditions of this GWQC, the applicant is required to apply for an individual water quality certification.

  (3) Legal proceedings may be instituted against an alleged violator in accordance with the provisions of the Environment Article and State Government Article, Annotated Code of Maryland.

#### Regulation .13 General Water Quality Certification (GWQC) for the Placement of Riprap for Shore Protection.

*COMAR 26.08.02.13*

A. Scope of Activity.

  (1) Definition. Riprap revetments are defined as:

    (a) A facing of loose stone, brick, or masonry placed for the purpose of stabilizing tidal and nontidal shorelines that are subject to erosion; and

    (b) Being constructed with materials of suitable size and weight to prevent their transport into the waterway.

  (2) Exceptions.

    (a) Riprap revetments authorized by the GWQC do not include structures which allow passage of a discharge pipe of any kind, such as storm water outfalls and those outfalls regulated under State discharge permits.

    (b) Materials authorized for placement may not include asphalt, waste metal products, organic materials, unsightly debris, toxic material, or any other deleterious substance.

    (c) Revetments may not be constructed to create fastland.

  (3) Construction of Revetments. The construction of revetments includes the following activities:

    (a) Excavation;

    (b) Placement of filter cloth or other base;

    (c) Stabilization of disturbed slopes by seeding or planting;

    (d) Placement of loose or broken stone;

    (e) Placement of aggregate or concrete mix;

    (f) Placement of concrete and block;

    (g) Pouring of concrete; and

    (h) Placement of backfill.

B. Certification. A federally permitted placement of riprap which meets the conditions of the GWQC is authorized under §401 of the Federal Act, provided that other applicable federal, State, and local laws and regulations are satisfied.

C. Design Specifications.

  (1) The stabilization activity shall be necessary for the prevention of erosion on tidal or nontidal shorelines.

  (2) The placement of fill material authorized by the GWQC shall be limited to the minimum needed for erosion protection.

  (3) The project shall be a single and complete project.

D. Construction Specifications.

  (1) Material may not be placed in excess of the minimum needed for erosion protection.

  (2) Excess material shall be removed to an upland site identified on the plan submitted for the federal permit.

  (3) Temporary fills shall be removed in their entirety on or before the completion of construction.

  (4) Material may not be placed in any location or in any manner so as to impair surface water flow into or out of any wetland area.

  (5) Placement of fill material in existing vegetated wetlands shall be minimized to the greatest extent possible. Riprap revetments shall be placed landward of existing marsh vegetation. An area which contains more than 10 percent vegetated wetlands may not be filled.

  (6) The maximum slope of riprap revetments may not exceed 2:1.

  (7) The maximum encroachment of riprap revetments may not extend more than 10 feet channelward of the mean high water shoreline.

  (8) Riprap revetments shall be constructed on a base of filter cloth.

  (9) The applicant shall obtain and comply with a State or locally approved sediment control plan when disturbing or placing greater than 100 cubic yards of earth or backfill.

  (10) Work in the waterway in spawning areas during spawning seasons of important aquatic species is prohibited.

  (11) Placement of fill material may not restrict or impede the movement of aquatic species indigenous to the waters or cause the relocation of the waters.

  (12) Disturbances in breeding areas for migratory waterfowl shall be avoided.

  (13) Heavy equipment working in wetlands shall be placed on mats, or suitably designed to prevent damage to the wetlands.

E. Applicant's Responsibility.

  (1) This GWQC does not relieve the applicant of the responsibility for obtaining any other approvals, licenses, or permits in accordance with federal and State laws or regulation, or local ordinances.

  (2) This GWQC does not authorize the beginning of any proposed work in the absence of necessary approvals, licenses, or permits.

  (3) The applicant shall comply with all conditions of this general certification.

F. Right of Inspection and Department Enforcement.

  (1) Reliance on this GWQC by the applicant or the applicant's agent constitutes permission to the Department to inspect at any time the operations and records for any project constructed under the authority of this GWQC.

  (2) An activity is authorized by the GWQC as long as compliance with the conditions of the GWQC is maintained. Upon failure to comply with the conditions of this GWQC, the applicant is required to apply for an individual water quality certification.

  (3) Legal proceedings may be instituted against the alleged violator in accordance with the provisions of the Environment Article and State Government Article, Annotated Code of Maryland.

### Chapter 03 — Discharge Limitations

**Authority:** Environment Article, §§9-313—9-316, 9-319, 9-320—9-325, and 9-328, Annotated Code of Maryland

**Administrative History:** Effective date: September 1, 1974 (1:1 Md. R. 33)

**Administrative History:** COMAR 10.50.01.05, .06, and .13 recodified to COMAR 26.08.03.01, .02, and .03, respectively

**Administrative History:** Regulation .01 amended effective November 5, 1984 (11:22 Md. R. 1899)

**Administrative History:** Regulation .02 amended effective November 5, 1984 (11:22 Md. R. 1899)

**Administrative History:** Regulation .02C amended effective May 18, 1979 (6:10 Md. R. 841)

**Administrative History:** Regulation .03 adopted effective May 19, 1978 (5:10 Md. R. 777)

**Administrative History:** Chapter revised effective June 27, 1988 (15:13 Md. R. 1556)

**Administrative History:** Regulation .01 amended affective May 27, 2002 (29:10 Md. R. 827)

**Administrative History:** Regulation .01A amended affective September 28, 2015 (42:19 Md. R. 1229)

**Administrative History:** Regulation .01B amended affective April 16, 1990 (17:7 Md. R. 854); May 17, 2021 (48:10 Md. R. 402); May 30, 2022 (49:11 Md. R. 610)

**Administrative History:** Regulation .02 amended effective April 16, 1990 (17:7 Md. R. 854)

**Administrative History:** Regulation .02D adopted effective April 23, 2018 (45:8 Md. R. 422)

**Administrative History:** Regulations .03—.05 repealed and new Regulations .03—.05 adopted effective February 19, 1990 (17:3 Md. R. 301)

**Administrative History:** Regulation .03C amended affective July 5, 2004 (31:13 Md. R. 995)

**Administrative History:** Regulation .06 adopted effective May 1, 1989 (16:8 Md. R. 911)

**Administrative History:** Regulation .06 amended effective November 6, 1995 (22:22 Md. R. 1670)

**Administrative History:** Regulation .06B, C amended effective April 16, 1990 (17:7 Md. R. 854)

**Administrative History:** Regulation .06D amended effective March 25, 1996 (23:6 Md. R. 477)

**Administrative History:** Regulation .07 adopted effective April 16, 1990 (17:7 Md. R. 854)

**Administrative History:** Regulation .07 amended effective June 7, 1993 (20:11 Md. R. 917)

**Administrative History:** Regulation .08 adopted effective January 2, 1995 (21:26 Md. R. 2195)

**Administrative History:** Regulation .08 amended effective June 29, 1998 (25:13 Md. R. 996)

**Administrative History:** Regulation .09 adopted effective January 12, 2009 (36:1 Md. R. 24)

**Administrative History:** Regulation .09F repealed effective June 18, 2018 (45:12 Md. R. 619)

#### Regulation .01 Effluent Limitations.

*COMAR 26.08.03.01*

A. Prohibited Discharges. The following discharges to the waters of this State are prohibited:

  (1) The discharge of any wastes or waste waters regardless of volume unless:

    (a) Authorized by a discharge permit, or

    (b) Subject to control or modification required by a schedule of compliance established by this State;

  (2) The discharge of any pollutant in toxic amounts including:

    (a) Substances which accumulate to toxic amounts during the expected life of organisms in the surface water, or

    (b) Substances which produce deleterious behavioral effects on the organisms;

  (3) The discharge of any radiological, chemical, or biological warfare agent;

  (4) The discharge of any high level radioactive waste;

  (5) Any discharge which would substantially impair anchorage and navigation;

  (6) Any discharge to which the Administrator of the Environmental Protection Agency has objected in writing under the Federal Act;

  (7) Any discharge which is in conflict with a plan approved by this State;

  (8) The discharge of sewage from vessels while moored, berthed, or docked in waters of this State except through a federally and State-approved marine sanitation device;

  (9) The discharge of sewage or other wastes from vessels to the waters of Deep Creek Lake in Garrett County, Maryland; and

  (10) The discharge of sewage from vessels to the waters of this State, designated as restricted zones. These zones shall be designated:

    (a) Wherever greater environmental protection and enhancement is required, and

    (b) According to the procedures outlined in the Federal Act.

B. The following areas of the waters of the State are designated as no discharge zones, where the discharge of sewage from marine sanitation devices located on vessels is prohibited:

  (1) The Herring Bay no discharge zone which encompasses all tidal waters of Herring Bay and its tributaries westerly of a line beginning at a point at or near Holland Point defined by Lat. 38°43'34.9" N., Long 76°31'37.3" W., then running approximately 352° (true) to a point at or near Crab Pile A defined by Lat. 38°46'33.0" N., Long. 76°32'10.1" W., then running approximately 354° (true) to a point at or near the north shore of Parker Creek defined by Lat. 38°46'39.1" N., Long. 76°32'10.8" W.

  (2) The Northern Coastal Bays no discharge zone which encompasses all the tidal waters of Ocean City Inlet, Sinepuxent Bay, Isle of Wight Bay, Assawoman Bay, and their tributaries, upstream (West) of a line beginning at a point at or near the east end of the north Ocean City Inlet jetty, defined by Lat. 38°19'27.0" N., Long. 75° 05' 5.5" W., then running approximately 248° (true) to a point at or near the east end of the south Ocean City Inlet jetty, defined by Lat. 38°19'20.7" N., Long. 75°05'24.8" W., and north of a line across the north end of Sinepuxent Bay beginning at a point at or near the southeast entrance of the Ocean City commercial fish harbor (Swordfish Basin) defined by Lat. 38°19'37.0" N., Long. 75°06'6.0" W., then running approximately 110° (true) to a point at or near the shore at the northwest tip of Assateague Island defined by Lat. 38°19'32.0" N., Long. 75°05'49.0" W., and south of the Maryland-Delaware line beginning at a point at or near the east side of Assawoman Bay defined by Lat. 38°27'4.5" N., Long. 75°04'11.2" W., then running approximately 270° (true) to a point at or near the west side of Assawoman Bay defined by Lat. 38°27'4.4" N., Long. 75°05'09.3" W.

  (3) The Chester River no discharge zone, which encompasses all the tidal waters of the Chester River and its tributaries. The delineation will begin at 39°08'54.48? N., 76°16'37.11" W. and extend down to 39°02'23.56" N., 76°18'8.89" W. From there it will continue east throughout any navigable waters, including all tributaries and bays. Included within this zone are Lankford Bay, Corsica River, Southeast Creek, and many smaller tributaries.

  (4) The waters of Anne Arundel County in 13 enumerated rivers, coves, and embayments as described in the following table:

  (5) The provisions in §B(4) of this regulation are effective for all vessels on July 1, 2022, with the exception of United States Coast Guard Inspected Passenger Vessels as defined in 46 CFR Chapter I , Subchapter T, Small Passenger Vessels (Under 100 Gross Tons), for which this regulation will become effective on July 1, 2025.

C. Controlled Discharges.

  (1) Discharge Permitted. The discharge of waters, wastes, or wastewaters to the waters of this State is permitted if:

    (a) The discharge does not contravene the surface water quality standards established by this State to protect legitimate beneficial water uses;

    (b) The discharge complies with the discharge permit requirements for:

      (i) Effluent limitations,

      (ii) Schedules of compliance, and

      (iii) The use of the best available technology;

    (c) The discharge is authorized by a discharge permit subject to conditions and restrictions imposed in the permit; or

    (d) The discharge is:

      (i) Dredge spoil resulting from an effluent returning to the waters of this State from an approved dredge spoils disposal area,

      (ii) Material excavated from the sediments underlying surface waters and placed in another part of the water, or

      (iii) Material placed in suspension in the water as part of a dredging or construction project authorized by the Department.

  (2) Best Available Technology.

    (a) Before establishing effluent limitations for any point source, the Department shall give careful consideration to necessary and practicable effluent limitations to achieve compliance with surface water quality standards (COMAR 26.08.02.01—.08) or ground water quality standards (COMAR 26.08.02.09). This consideration shall include:

      (i) Information provided as part of the discharge permit application;

      (ii) Information available from discharge permit monitoring reports; and

      (iii) Any other information provided by the applicant or required by the Department.

    (b) Best available technology shall be required as the minimum for all permitted discharges. If it is determined that compliance with the established water quality standards will not be achieved through BAT, additional treatment shall be:

      (i) Required; and

      (ii) Based on waste load allocation.

  (3) Nutrient Control. This State recognizes that certain surface waters of this State are eutrophic or are approaching eutrophic conditions. All discharges to these surface waters shall be treated as necessary to reduce eutrophic effects. This State shall require that wastewaters containing nutrients which cause or contribute to eutrophication be:

    (a) Given advanced waste treatment before discharge;

    (b) Disposed of by spray irrigation on land; or

    (c) Disposed of by other practicable procedures which will avoid direct discharge to surface waters.

  (4) Use of Material Balance.

    (a) The Department may require that the operator of the facility involved conduct a material balance with the accuracy and precision necessary to account for environmentally significant losses of material in any instance when:

      (i) Pollution of the waters of this State is likely to occur as a result of discharge or loss of toxic substances; or

      (ii) The Department determines the need for materials control to prevent water pollution.

    (b) If a material balance is required, the Department shall review and approve:

      (i) The procedure to be used;

      (ii) The frequency of the determinations;

      (iii) The units of measurements;

      (iv) The methods of calculations, management, and record; and

      (v) Any other specific requirements considered necessary.

    (c) Information developed by the operator of a facility as a consequence of making a material balance shall be made available to the Department of the Environment on demand.

#### Regulation .02 Use of Toxic Substances for Aquatic Life Management Purposes.

*COMAR 26.08.03.02*

A. Scope. Any person who adds toxic substances to the waters of this State for aquatic life management purposes shall be governed by this regulation.

B. Restrictions on Use.

  (1) Toxic substances may not be applied to, discharged to, or deposited in the waters of this State in any way unless:

    (a) The application, discharge, or deposit meets all of the requirements imposed by this regulation; and

    (b) Approval is given in accordance with this regulation.

  (2) The mixing, handling, or transfer of toxic substances or the washing of or cleaning operations for toxic substance containers or equipment may not result in any way in:

    (a) Application to the waters of this State;

    (b) Discharge to the waters of this State;

    (c) Deposition in the waters of this State.

  (3) Wastes and wastewaters from the washing of toxic substance containers or equipment may not be discharged to or permitted to flow into:

    (a) Subsurface drainage or disposal systems;

    (b) Municipal sanitary sewerage systems; or

    (c) Storm water drainage systems.

  (4) The toxic substances used shall be adequately controlled and sufficiently selective so as not to adversely affect:

    (a) Desirable species of aquatic life in the designated areas to be treated; or

    (b) Any aquatic life outside the designated area to be treated.

C. Procedure for Obtaining Approval.

  (1) Permits for the use of toxic substances in the waters of this State shall be requested from the Department at least 30 days before the initiation of every aquatic life management project employing the application, discharge, or deposit of toxic substances.

  (2) Application for permit shall include the following information for each project:

    (a) The purpose of the project;

    (b) A description and maps or drawings of the area involved;

    (c) A description of the watershed upstream and downstream from the project, or the tidal area around the project;

    (d) A description of the toxic substance to be used;

    (e) A description of the method of application;

    (f) Name, title, and address of the person in charge of the project;

    (g) A description of safeguards to be used;

    (h) The approximate dates of the project operation;

    (i) A statement outlining methods to be used in the cleanup of the area following the application, discharge, or deposit of the toxic substances; and

    (j) Any other information the Department of the Environment requires for the proper evaluation of the project.

  (3) The Department of the Environment may authorize the Chairman of the Soil Conservation District, or his designee approved by the Department to issue an emergency permit for use of toxic substances for aquatic life management purposes. These emergency permits shall only be issued in accordance with the following guidelines:

    (a) An emergency permit shall only be issued when, in the opinion of the Soil Conservation District (SCD) representative, a situation exists which requires rapid or immediate attention to prevent:

      (i) Degradation of water quality; or

      (ii) Development of a situation requiring more extensive treatment at a later date.

    (b) Emergency permits shall:

      (i) Be restricted to a maximum of two applications of a toxic substance; and

      (ii) Only authorize use of copper sulfate, cutrine or diquat, unless specific written authorization is received from the Department.

    (c) An emergency permit form provided by the Department shall be used for issuance of emergency permits. A copy of the executed permit shall then be forwarded to the Department.

    (d) Emergency permits may only be issued during the time period from May 1 to September 30.

    (e) Emergency permits may not be issued if the pond or body of water is tributary to a public water supply, or tributary to shellfish waters.

D. A person who discharges toxic substances to waters of the State is not required to obtain a permit under this regulation if the person is covered under a discharge permit issued under COMAR 26.08.01—.04 that incorporates the requirements of §§B and C(1) and (2) of this regulation.

#### Regulation .03 Water Quality Impact Assessment for Thermal Discharges.

*COMAR 26.08.03.03*

A. Purpose. This regulation specifies procedures for compliance with Maryland water quality standards for thermal discharges and describes the factors, criteria, and standards for the establishment of alternate thermal effluent limitations under the Federal Act, §316(a), in permits issued under the Environment Article, Title 9, Subtitle 3, Annotated Code of Maryland, and this chapter.

B. Definition. For purposes of this regulation only, “significant” means having a statistically measurable effect beyond the mixing zone.

C. Control of Thermal Discharges.

  (1) The mixing zone for thermal discharges shall be 50 feet radially from the point of discharge.

  (2) The Department may establish a mixing zone of different size or shape on a case-by-case basis.

  (3) Thermal discharges shall be controlled so that the:

    (a) Temperature outside the applicable mixing zone meets the applicable water quality criteria specified in COMAR 26.08.02.03-3; or

    (b) Discharges comply with the thermal mixing zone criteria in §D of this regulation.

  (4) Request for Alternate Thermal Effluent Limitations.

    (a) Dischargers who are unable to meet the requirements of either §C(3)(a) or (b) of this regulation may request alternate thermal effluent limitations as provided in §E of this regulation.

    (b) A new request for alternate thermal effluent limitations shall be made within 180 days of notification by the Department that the discharger's thermal discharge cannot assure protection of a balanced indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is made. This request shall include a completed demonstration or a study plan for a demonstration to show compliance with §E of this regulation.

    (c) A request for renewal of alternate thermal effluent limitations shall be made at the same time that the application for the renewal of the existing State discharge permit is made. This request for the renewal of existing alternate thermal effluent limitations shall include a summary of the basis for granting the alternate thermal effluent limitations and subsequent data, if any, to show that the thermal discharge effluent limitations are more stringent than necessary to protect a balanced indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is made. In addition, the application shall provide any other pertinent information which the Department requests within 60 days after receipt of the permit application.

  (5) Alternate effluent limitations are approved only for the term of a specific State discharge permit. When renewing that State discharge permit, the discharger shall be prepared to demonstrate that continuation of the alternate effluent limitations is appropriate.

D. Thermal Mixing Zone Criteria.

  (1) Requirements for Discharges to Tidal Waters.

    (a) The 24-hour average of the maximum radial dimension measured from the point of discharge to the boundary of the full capacity 2°C above ambient isotherm (measured during the critical periods) may not exceed 1/2 of the average ebb tidal excursion.

    (b) The 24-hour average full capacity 2°C above ambient thermal barrier (measured during the critical periods) may not exceed 50 percent of the accessible cross section of the receiving water body. Both cross sections shall be taken in the same plane.

    (c) The 24-hour average area of the bottom touched by waters heated 2°C or more above ambient at full capacity (measured during the critical periods) may not exceed 5 percent of the bottom beneath the average ebb tidal excursion multiplied by the width of the receiving water body.

  (2) Requirements for Discharges to Nontidal Waters.

    (a) The distance downstream from the point of discharge to the 24-hour average 2°C above ambient isotherm at full capacity may not exceed the distance traveled in 6 hours by the receiving stream. Both distances shall be measured during the critical periods.

    (b) The 24-hour average full capacity 2°C above ambient thermal barrier (measured during the critical periods) may not exceed 50 percent of the accessible cross section of the receiving body. Both cross sections shall be taken in the same plane.

    (c) The area of the bottom touched by waters heated 2°C or more above ambient at full capacity may not exceed 5 percent of the stream bottom passed over by the stream flowing for 6 hours. Both areas shall be measured during the critical periods.

E. Establishment of Alternate Effluent Limitations.

  (1) Thermal discharge effluent limitations or standards established in permits may be less stringent than those required by applicable standards and limitations if the discharger demonstrates to the satisfaction of the Department that the effluent limitations or standards are more stringent than necessary to assure the protection and propagation of a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is made. This demonstration shall show that the alternate effluent limitation desired by the discharger, considering the cumulative impact of its thermal discharge together with all other significant impacts on the species affected, including impingement and entrainment impacts, will assure the protection and propagation of a balanced indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made.

  (2) In determining whether the protection and propagation of the affected species will be assured, the Department may consider any information contained or referenced in any applicable thermal water quality criteria and thermal water quality information published by the Environmental Protection Agency under the Federal Act, §304(a), or any other information considered relevant by the Department. The demonstration shall include evidence for the lack of the following factors:

    (a) A significant increase in abundance or distribution of any species considered to be nuisance species by the Department of the Environment;

    (b) A significant change in biological productivity;

    (c) A significant elimination or impairment of economic and recreational resources; and

    (d) A significant reduction in the successful completion of the life cycle of representative important species (RIS).

  (3) Existing dischargers may base their demonstration upon the absence of prior appreciable harm instead of predictive studies. Demonstrations shall show that:

    (a) Appreciable harm has not resulted from the thermal component of the discharge, taking into account the interaction of the thermal component with other pollutants and the additive effect of other thermal sources, to a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge has been made; or

    (b) Despite the occurrence of the previous harm, the desired alternate effluent limitations, or appropriate modifications of them, will nevertheless assure the protection and propagation of a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is made.

  (4) In determining whether prior appreciable harm has occurred, the Department shall consider the length of time in which the applicant has been discharging and the nature of the discharge.

  (5) If a discharger fails to demonstrate that existing facilities, or alternate effluent limitations together with all other impacts, will assure the protection and propagation of a balanced indigenous population of shellfish, fish, other aquatic life, or wildlife in and on the receiving water, then the discharger shall make changes in facility processes or operations, or both, sufficient to assure the protection and propagation of a balanced indigenous population of shellfish, fish, other aquatic life, or wildlife in and on the receiving water.

#### Regulation .04 Representative Important Species.

*COMAR 26.08.03.04*

Representative important species (RIS) are those species selected by the applicant and approved by the Department that exhibit one or more of the following characteristics:

A. Species that are sensitive to adverse harm from operations of the facility (for example, heat-sensitive species);

B. Species that use the local area as spawning or nursery grounds, or both, including those species that migrate past the facility to spawn;

C. Species of commercial or recreational value, or both;

D. Species that are habitat formers and are critical to the functioning of the local ecosystem;

E. Species that are important links in the local food web;

F. Rare, threatened, or endangered species;

G. Potential nuisance organisms likely to be enhanced by plant operations.

#### Regulation .05 Cooling Water Intake Structures.

*COMAR 26.08.03.05*

A. The location, design, construction, and capacity of cooling water intake structures shall reflect the best technology available (BTA) for minimizing adverse environmental impact.

B. The determination of BTA for minimizing adverse environmental impact shall consider the effect of:

  (1) Impingement loss as determined in §D of this regulation; and

  (2) Entrainment loss as determined in §E of this regulation.

C. Unless otherwise directed by the Department, cooling water intake structures withdrawing less than 10,000,000 gallons per day from surface waters are excluded from the requirements of this regulation if the volume of water is less than 20 percent of the:

  (1) Design stream flow for nontidal waters; or

  (2) Annual average net flow past the point of discharge which is available for dilution for tidal waters.

D. Determination of Impingement Loss.

  (1) The value of the impingement species destroyed by the intake structure shall be determined by estimating the number of each species destroyed and multiplying by the values listed in COMAR 08.02.09.01. These factors shall be weighted by multiplying by the following adjustment factor:

    (a) Recreational only ---------------------------------- 1.0;

    (b) Commercial and recreational -------------------- 1.0;

    (c) Commercial only ---------------------------------- 1.0;

    (d) Commercial, recreational, and forage ---------- 0.8;

    (e) Commercial and forage --------------------------- 0.75;

    (f) Recreational and forage --------------------------- 0.75;

    (g) Forage ------------------------------------------   --- 0.75.

  (2) Dischargers shall install and operate functional modifications to mitigate impingement loss, provided that the additional cost of installation of modifications to intake structures and of operation modifications over a 5-year period does not exceed 5 times the estimated annual value of impingement loss. These approved modifications shall be defined as BTA under §B(1) of this regulation.

E. Determination of Entrainment Loss.

  (1) Definition. For purposes of this regulation only, “significant” means having a statistically measurable effect beyond the mixing zone.

  (2) The discharger shall determine the extent of cooling water entrainment loss on a spawning or nursery area of consequence for RIS as defined in Regulation .04 of this chapter.

  (3) If entrainment loss results in significant adverse environmental impact, the discharger shall install and operate functional modifications to mitigate entrainment loss. These approved modifications shall be defined as BTA under §B(2) of this regulation.

#### Regulation .06 Chlorine Discharges.

*COMAR 26.08.03.06*

A. Biocide Residual Levels. Biocide residual levels shall be controlled in the effluents discharged to all surface waters of this State.

B. Use Designations III and III-P.

  (1) Except as provided in §B(2) of this regulation, the Department may not issue a permit allowing the use of chlorine or chlorine-containing compounds in the treatment of wastewaters discharging to Use III and Use III-P waters.

  (2) Chlorine or chlorine-containing compounds may be used in the treatment of wastewaters discharged to Use III and Use III-P waters if the treatment includes dechlorination to a level set by the Department, and if the sewage treatment facility:

    (a) Discharges an amount of treated sewage that is less than 1 percent of the 7-day, 10-year low flow of the receiving stream; or

    (b) Was in existence on July 1, 1981, is owned or operated by a local subdivision, is required to convert from the use of chlorination to another system in order to be permitted under this regulation, and matching federal funds are not available to make the conversion.

  (3) When an effluent discharged to a Use III or Use III-P water contains chlorine or chlorine-containing compounds which did not originate in the treatment of wastewater, the Department shall require dechlorination, where appropriate, to a level established under §D of this regulation.

C. All Other Water Use Designations. A person may not discharge any chlorine or chlorine products into Use I, I-P, II, IV, or IV-P waters of this State in excess of the limits set forth below:

  (1) For steam electric power stations using once-through cooling water from plants with total rated generating capacity of 25 or more megawatts, the limit shall be 0.2 milligram/liter daily maximum of total residual chlorine as determined using the amperometric titration method;

  (2) For steam electric power stations using once-through cooling water from plants with total rated generating capacity of less than 25 megawatts, the limit shall be 0.2 milligram/liter monthly average and 0.5 milligram/liter daily maximum of free available chlorine as determined using the amperometric titration method;

  (3) The limit for cooling tower blowdown from steam electric generating plants shall be 0.2 milligram/liter monthly average and 0.5 milligram/liter daily maximum of free available chlorine as determined using the amperometric titration method;

  (4) For any other discharge category for which the EPA has published effluent limitation guidelines, the limit shall be the limits specified in the published guidelines;

  (5) For all other dischargers, including sewage treatment works, the limit shall be the nondetectable level.

D. Nondetectable Level. The nondetectable level shall be less than 0.1 milligram/liter as determined using either the DPD titrimetric or colorimetric method or an alternative method approved by the Department.

E. Natural Constituents. The Department may make an exception to the requirements of this regulation if the chlorine or chlorine products are natural constituents of the intake water.

F. Dechlorination. Dechlorination may be accomplished by:

  (1) Chemical addition;

  (2) Absorption onto activated carbon;

  (3) Control of discharge rates or holding of the effluent so that chlorine residuals are reduced to the nondetectable level; or

  (4) Any other method approved in advance by the Department.

#### Regulation .07 Control of the Discharge of Toxic Substances to Surface Waters.

*COMAR 26.08.03.07*

A. General.

  (1) The Department shall adopt toxic substance criteria for any substance that the Department determines could reasonably be expected to interfere with designated uses.

  (2) If a discharge of a toxic substance not identified in COMAR 26.08.02 occurs, the Department may:

    (a) Adopt a water quality criterion for the toxic substance in accordance with the emergency regulation procedure under State Government Article, Annotated Code of Maryland;

    (b) Ban the discharge of the toxic substance under the general authorities in Environment Article, Title 9, Annotated Code of Maryland;

    (c) Modify any existing discharge permit to include a limitation for the toxic substance, or deny any new discharge permit until the Department determines the effect of the discharge;

    (d) Require biomonitoring and chemical testing by any discharger to demonstrate the impact of a toxic substance in the surface water; or

    (e) Take any other action permitted by applicable law.

  (3) Compliance with permit limits based on toxic substance criteria shall be determined through application of a standard method accepted by the Department for the measurement of the toxic substance.

B. Effluent Limitation Modification for Toxic Substances.

  (1) The Department may, upon written application from the applicant for a discharge permit, grant a temporary modification from one or more effluent limitations based on water quality criteria for toxic substances.

  (2) A temporary modification may be granted for a period up to 3 years.

  (3) In order to receive any temporary modification of a water quality based effluent limit, an applicant shall identify and employ all reasonable alternatives to reduce or eliminate toxicity in the discharge, including process changes, materials substitution, improved operation and maintenance, recycling, and pollution prevention activities.

  (4) At the time of application for a temporary modification, the applicant shall provide to the Department all the necessary supporting data and information. If the Department needs additional information, the applicant shall bear the burden of generating that information.

  (5) An application for a temporary modification shall identify the specific effluent limitation in the NPDES permit for which a temporary modification is sought, and shall demonstrate that at least one of the following factors is met:

    (a) Naturally occurring pollutant concentrations prevent the attainment of the use;

    (b) Natural, ephemeral, intermittent, or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State water conservation requirements to enable uses to be met;

    (c) Human-caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied, or would cause more environmental damage to correct than to leave in place;

    (d) Dams, diversions, or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate these modifications in a way that would result in the attainment of the use;

    (e) Physical conditions related to the natural features of the water body, such as the lack of proper substrate, cover, flow, depth, pools, riffles, and similar conditions unrelated to water quality, preclude attainment of aquatic life protection uses; or

    (f) Controls more stringent than those required by §§301(b) and 306 of the Federal Act would result in substantial and widespread economic and social impact.

  (6) A temporary modification may be renewed for one or more periods up to 3 years each, upon written application and demonstration that the applicant meets the requirements for a temporary modification at the time of renewal.

  (7) Opportunity for public participation shall be provided in accordance with the NPDES permitting process as described in COMAR 26.08.04.

C. Criteria for Toxic Substances. The criteria for toxic substances in ambient water are found in COMAR 26.08.02.03—.03-3.

D. Applicability to Dischargers.

  (1) Dischargers Required to Conduct Monitoring for Toxic Substances. The Department shall require any permittee who has a discharge that falls into one of the following categories to perform biological or chemical monitoring for toxic substances:

    (a) A POTW with a pretreatment program established in accordance with COMAR 26.08.08;

    (b) An industrial discharger or POTW treatment plant with a wastewater flow greater than or equal to 1,000,000 gallons per day;

    (c) A discharger whose discharge has demonstrated actual or potential toxicity; or

    (d) A discharger whose discharge the Department has reason to believe may cause toxicity as determined by an evaluation of manufacturing processes, indirect discharges, treatment processes, effluent or receiving water data, or other relevant information.

  (2) NPDES Permit Monitoring Requirements.

    (a) A discharger identified in §D(1) of this regulation shall have requirements for toxic substance monitoring included in its permit at the time of permit issuance or reissuance.

    (b) Modifications to these requirements may be allowed on a case-by-case basis if the:

      (i) Specific conditions of the discharge suggest that a full scale toxics monitoring program is not necessary; or

      (ii) Characteristics of the receiving water indicate that a full scale toxics monitoring program is not needed.

    (c) Data submitted under any previous toxic substance monitoring program may be used to satisfy these requirements if the data is indicative of the current process and treatment conditions.

    (d) Any toxic substance monitoring, including test protocols, shall be approved by the Department before initiation of the testing. All data generated shall be within the quality assurance and quality control specifications of the test protocol.

    (e) Measurements below the minimum level may be reported as BML (below minimum level).

    (f) If the Department determines through the monitoring described in §D(1) of this regulation, that a discharge causes or has the potential to cause the discharge of toxic substances or an impact on surface waters, the Department may modify the discharge permit to require the discharger to collect data to verify or rule out the existence of an impact from a toxic substance.

E. Technology-Based Whole Effluent Toxicity Testing Requirements.

  (1) Purpose. Acute and chronic biotoxicity testing of effluents is used by the Department to assess the potential for acute and chronic toxicity in wastewater discharges.

  (2) Permittee Responsibility. A finding of no toxicity in the effluent does not relieve the permittee from the obligation to provide best available treatment technology or to comply with water quality standards for conventional and toxic substances.

  (3) Testing Required. The Department shall require biotoxicity testing in all new or renewed discharge permits for permittees identified in §D of this regulation.

  (4) Acute Whole Effluent Toxicity.

    (a) For the purpose of this subsection, an effluent is acutely toxic when the LC50 value resulting from the first 48 hours of a valid acute or chronic toxicity test is less than or equal to 100 percent effluent. LC50 means the effluent concentration at which 50 percent of the organisms die or are immobilized during the test.

    (b) Each test shall be conducted using at least two species, one vertebrate and one invertebrate, as specified by the Department. Each test shall be conducted in accordance with the procedures specified by the Department.

    (c) Unless otherwise specified in an existing permit, if the results for the first 48 hours of any two consecutive valid acute or chronic toxicity tests conducted within any 12-month period show acute toxicity under §E(4)(a) of this regulation, the permittee shall repeat the test within 30 days to confirm the finding of acute toxicity.

    (d) One toxicity test shall be differentiated from another by the date on which the effluent was sampled, not by the number of species tested.

    (e) If acute toxicity is confirmed, the permittee shall:

      (i) Eliminate the source of toxicity through operational changes; or

      (ii) Perform a toxicity reduction evaluation as specified within a defined compliance schedule.

    (f) If the permittee repeats toxicity testing under §E(4)(c) of this regulation and the results for the first 48 hours of the repeat test do not show acute toxicity, the Department will require the permittee to repeat toxicity testing as specified in the permit.

  (5) De Minimus Discharges. For categories, other than those identified in §D(1) of this regulation, of similar discharges that individually or cumulatively will have a de minimus impact on water quality, the Department may permit testing of representative discharges instead of requiring each permittee to test its effluent for whole effluent toxicity. In these circumstances, the Department shall impose conditions on the permittees relieved of the burden of whole effluent toxicity testing, to ensure that their effluents remain similar to those of the tested permittees.

#### Regulation .08 Remining.

*COMAR 26.08.03.08*

A. Purpose. This regulation establishes the criteria under which the Department shall determine:

  (1) That an application for a coal remining NPDES permit has the potential to improve water quality as required under §301 of the Federal Water Pollution Control Act (33 U.S.C. §1311);

  (2) If an applicant for an NPDES permit to discharge pollutants from coal remining qualifies for a variance from the State water quality standards; and

  (3) The appropriate effluent limitations for pH, iron, and manganese and other requirements in any NPDES permit issued for coal remining at a specific site.

B. Application for NPDES Coal Remining Permit.

  (1) Application Requirements. The applicant shall comply with all permit application requirements as set forth in COMAR 26.08.04.

  (2) Required Documentation. The applicant shall:

    (a) Submit documentation from the Bureau of Mines that the proposed coal remining operation will be located on a remined area;

    (b) Certify that the proposed coal remining operation will be confined to the remined area;

    (c) Submit the application for a remining permit from the Bureau of Mines;

    (d) Describe the hydrologic balance for the proposed coal remining operation, including results of a detailed water quality and quantity monitoring program conducted in accordance with §B(4) of this regulation;

    (e) Submit plans, cross sections, and schematic drawings describing the techniques for handling acid-forming materials to reduce the discharge of acidity, iron, and manganese;

    (f) Submit a description and an explanation of the range of abatement levels that probably can be achieved, costs, and each step proposed to reduce the discharge of acidity, iron, and manganese;

    (g) Submit a description of the spoil-handling practices necessary to reduce the discharge of acidity, iron, and manganese;

    (h) Submit a detailed topographic map of the proposed coal remining operation, including the locations of the preexisting and proposed discharges; and

    (i) Continue the water quality and quantity monitoring program described in §B(4) of this regulation on a quarterly basis, and submit the results to the Department on a quarterly basis until the Department makes a final permit decision.

  (3) When any of the information required in §B(2)(d)—(h) of this regulation is contained in the information included as part of §B(2)(c), the applicant does not need to provide separate documentation.

  (4) Baseline Sampling Data.

    (a) The baseline sampling data is derived by sampling and analysis of all preexisting discharges from the coal remining area and in-stream water quality upstream and downstream of the proposed coal remining site. The data shall be collected in a detailed water quality and quantity monitoring program which includes the requirements listed below and has been approved by the Department.

    (b) Sampling points should be established at convenient locations as near to the source as possible. Sampling points shall be established through an on-site visit by the Maryland Department of the Environment permit writer and the applicant. In the event of disagreement concerning the location of the sample site, the final decision shall be made by the Department.

    (c) When flows from preexisting multiple effluent discharges converge at convenient sampling points, composite sampling and analysis may be appropriate.

    (d) Each sample shall be measured for flow (million gallons/day) and analyzed for the best professional judgement (BPJ) parameters of acidity (milligrams/liter), iron (milligrams/liter) and manganese (milligrams/liter). Iron and manganese concentrations shall be in terms of total metal concentrations.

    (e) In addition to the BPJ parameters discussed above, the baseline sampling and analysis data shall include an analysis for parameters including pH, total suspended solids (milligrams/liter), alkalinity (milligrams/liter), specific conductance (millemhos/centimeter), and sulfates (milligrams/liter) for surface water.

    (f) Sampling shall occur, at a minimum, over a 12-month period, with samples being taken monthly at regular intervals (for example, every first Monday, or the 15th of each month) from both the effluent discharge and in-stream sampling sites. The 12 sampling and analysis events shall constitute the minimum baseline sampling data.

  (5) Common Treatment Facilities.

    (a) If the applicant proposes to use common facilities to manage stormwater and remining flows, the applicant shall include in the applicant's application:

      (i) The location of each common facility;

      (ii) The source and volume of each discharge entering the common facility; and

      (iii) Any other information the Department may require.

    (b) The applicant may not use a common facility to manage remining and stormwater flows without the written consent of the Department.

C. Issuance of NPDES Coal Remining Permit.

  (1) Prohibitions. The Department may not issue an NPDES permit for a coal remining activity unless:

    (a) The applicant has applied for a coal remining permit from the Bureau of Mines;

    (b) The coal remining operation is located on a site on which coal mining was conducted before August 3, 1977;

    (c) The applicant demonstrates to the satisfaction of the Department that the mining and reclamation procedures proposed for the site of the coal remining operation have the potential to improve water quality in the preexisting discharges based on a hydrologic reclamation plan and a probable hydrologic consequences statement;

    (d) The Department determines, based on the proposed hydrologic reclamation plan, that the coal remining activity is not likely to cause discharges of pH, iron, or manganese which exceed the levels established as the baseline loading in the preexisting discharges at the site before the coal remining operation began; and

    (e) The information provided in the application is adequate for the Department to make an informed final permit decision.

  (2) Best Professional Judgement (BPJ) Limits for pH, Iron, and Manganese. When the Department issues an NPDES permit to discharge pollutants from a coal remining operation based upon the variance to State water quality standards described under COMAR 26.08.02, the water quality-based effluent limitations for pH, iron, and manganese shall be established on a case-by-case basis. Compliance with those effluent limitations constitutes compliance with those water quality criteria for pH, iron, and manganese set forth in COMAR 26.08.02.

  (3) Best Professional Judgement Limits (BPJ) Derivation. The modified effluent limits shall be derived through a BPJ methodology developed by the Department.

  (4) Permit Release Limit. This limit is derived by calculating the cumulative loading rate in tons/year of acidity, iron, and manganese from each concentration value and flow rate in the baseline data for the entire coal remining site. The cumulative loading rates for each parameter are summed and divided by the number of samples analyzed. This number is multiplied by 365 to establish the annual cumulative baseline loading rate for each parameter.

D. Monitoring.

  (1) Monitoring at the coal remining operation may be discontinued after the sampling required by §B(4) of this regulation is completed. The monitoring shall begin again, in accordance with the NPDES coal remining permit, upon initiation of remining operations.

  (2) During the coal remining operation, monitoring of the parameters established in §B(4)(d) of this regulation shall be conducted at least quarterly for the ambient in-stream stations.

  (3) During the coal remining operation, monitoring for all effluent discharges shall be conducted at least monthly for pH, iron, manganese, acidity, and total suspended solids.

  (4) The permittee shall submit the compliance monitoring data to the Department at least quarterly in the manner and form required by the Department.

E. Newly Discovered Discharges. An applicant with an existing coal remining operation seeking an NPDES permit modification from the Department under COMAR 26.08.04 to accommodate a newly discovered discharge shall demonstrate to the satisfaction of the Department that the applicant:

  (1) Discovered discharges within the proposed coal remining area after the applicant's NPDES permit was issued; and

  (2) Has not caused or contributed to the discharges.

F. Final Monitoring.

  (1) Upon completion of the coal remining activity and before release from permit obligations, the permittee shall:

    (a) Demonstrate that the annual cumulative baseline loading set forth in the NPDES permit has not been exceeded, and that the water quality discharged from the site has been improved; and

    (b) Compile the water quality information into a final report which shall analyze the data and document any changes in water quality in the stream.

  (2) The demonstration required in §F(1)(a) of this regulation shall be based on 1 year of monthly sampling and analyses of untreated discharge collected in the second year following the completion of reclamation and revegetation, and shall be calculated in accordance with §C(4) of this regulation.

  (3) Failure to demonstrate that the water quality from the site has improved shall constitute a violation requiring corrective action.

#### Regulation .09 Animal Feeding Operations.

*COMAR 26.08.03.09*

A. Animal Feeding Operation Size Categories.

  (1) A large, medium, or small AFO is an AFO housing the number of animals or with the total house capacity identified in the column labeled large, medium, or small, respectively, in Table 1.

  (2) The number of animals or, for dry manure chicken operations, house capacity shall be based on:

    (a) The total at the site; or

    (b) For adjacent sites involving any common ownership or operation, the combined total of all sites where the production, manure management, or storage operations are collectively owned or managed.

  (3) Table 1. Small, Medium, and Large AFO Size Categories.

B. Concentrated Animal Feeding Operations.

  (1) For AFOs that are defined or designated as CAFOs under the federal regulations, at 40 CFR 122.23, as amended, the requirements of the federal regulations applicable to concentrated animal feeding operations at 40 CFR Parts 122 and 412, as amended, are incorporated by reference with the following changes:

    (a) The terms “Director” and “State Director” mean the Secretary of the Environment or the Secretary of the Environment's designee;

    (b) The size threshold for defining a large dry manure chicken (other than laying hens) AFO is 125,000 chickens or a total house capacity of greater than or equal to 100,000 square feet;

    (c) An AFO that is a large or medium CAFO under federal regulations is also subject to the permit requirements for a CAFO under Maryland regulations only if it discharges or proposes to discharge;

    (d) An AFO that is a large CAFO under federal regulations that does not discharge or propose to discharge is subject to the requirements for a MAFO under the Maryland regulations.

  (2) The Department may designate a small AFO as a CAFO after a site inspection, if:

    (a) Animal waste comes into contact with surface water; or

    (b) Animals come into contact with surface water and the AFO is not using best management practices designed and approved by the soil conservation district (SCD) to limit animal access to surface water.

  (3) A CAFO shall obtain permit coverage under the general discharge permit issued by the Department under COMAR 26.08.04.09N unless the Department, in its discretion, notifies the discharger that a separate discharge permit is required.

C. Maryland Animal Feeding Operations.

  (1) A MAFO shall obtain permit coverage under the general discharge permit issued by the Department under COMAR 26.08.04.09N, unless the Department, in its discretion, notifies the discharger that a separate discharge permit is required.

  (2) The Department may designate as a MAFO a small or medium AFO if the Department determines that the type or location of animal waste storage or animal access to surface water is likely to cause a discharge of pollutants to ground or surface waters of this State.

  (3) A permitted MAFO upon closure of the facility shall maintain permit coverage until all animals and animal waste that were present while the operation was a MAFO are removed from the site.

  (4) The deadline for a MAFO to submit an application for an individual permit or an NOI for a general discharge permit shall be in accordance with the schedules for NOIs specified in the general permit for AFOs issued under COMAR 26.08.04.09N.

  (5) Effluent Limitations for MAFOs.

    (a) MAFO permits shall at a minimum include requirements and schedules for development, submission to the Department, and implementation of a complete and current NMP and conservation plan.

    (b) The terms of the NMP shall be consistent with the terms of the conservation plan and, together with the conservation plan, shall:

      (i) Take into account all animal waste from the management of animals or their manure and associated waste nutrients; and

      (ii) Ensure that appropriate manure management measures are used to store, stockpile, and handle manure and animal waste to minimize the potential for nutrient loss or runoff.

    (c) Except for storm water that comes into contact with animal waste that is land applied in accordance with a NMP, discharge of animal waste to surface waters of this State is prohibited.

  (6) A facility's status as a MAFO does not require, and the permit authorization for a MAFO does not confer, NPDES discharge permit authorization under the Federal Act.

D. The Department may require an AFO owned or operated outside of Maryland to obtain a discharge permit if all or a significant part of its operation, whether waste storage, waste application, or confinement of animals, is conducted in Maryland.

E. An AFO, regardless of size, that utilizes a spray irrigation system for wastewater application shall be regulated under either a general or individual discharge permit.

### Chapter 04 — Permits

**Authority:** Environment Article, §§1-601—1-606, 9-313, 9-315, 9-323—9-328, and 9-330, Annotated Code of Maryland

**Administrative History:** Effective date: September 1, 1974 (1:1 Md. R. 33)

**Administrative History:** COMAR 10.50.01.08, .09, .12, and .14 recodified to COMAR 26.08.04.01, .02, .03, and .04, respectively

**Administrative History:** COMAR 10.50.01.08J-1 recodified to COMAR 26.08.08.01—.04

**Administrative History:** Regulation .01B, N amended effective August 3, 1981 (8:15 Md. R. 1308)

**Administrative History:** Regulation .01E amended effective June 6, 1983 (10:11 Md. R. 976)

**Administrative History:** Regulation .01G amended effective July 27, 1987 (14:15 Md. R. 1660)

**Administrative History:** Regulation .01J amended effective May 24, 1982 (9:10 Md. R. 1022); December 19, 1983 (10:25 Md. R. 2269); June 17, 1985 (12:12 Md. R. 1165); August 26, 1985 (12:17 Md. R. 1706)

**Administrative History:** Regulation .01M amended effective June 17, 1985 (12:12 Md. R. 1166)

**Administrative History:** Regulation .01N adopted effective March 9, 1979 (6:5 Md. R. 444)

**Administrative History:** Regulation .02 adopted effective December 7, 1981 (8:24 Md. R. 1935)

**Administrative History:** Regulation .03A amended effective December 19, 1983 (10:25 Md. R. 2269)

**Administrative History:** Regulation .04 adopted effective February 25, 1985 (12:4 Md. R. 360)

**Administrative History:** Chapter revised effective June 27, 1988 (15:13 Md. R. 1556)

**Administrative History:** Regulation .01 amended effective April 15, 1991 (18:7 Md. R. 775)

**Administrative History:** Regulation .01 amended and recodified to Regulations .01—.01-3 effective November 6, 1995 (22:22 Md. R. 1670)

**Administrative History:** Regulation .01B amended effective September 27, 1993 (20:19 Md. R. 1473); January 12, 2009 (36:1 Md. R. 24); December 22, 2014 (41:25 Md. R. 1486); September 28, 2015 (42:19 Md. R. 1229)

**Administrative History:** Regulation .01G amended effective June 7, 1993 (20:11 Md. R. 917)

**Administrative History:** Regulation .01-1E amended effective March 25, 1996 (23:6 Md. R. 477)

**Administrative History:** Regulation .01-3A, C amended effective March 25, 1996 (23:6 Md. R. 477)

**Administrative History:** Regulation .02 amended effective April 16, 1990 (17:7 Md. R. 854); April 15, 1991 (18:7 Md. R. 775); June 7, 1993 (20:11 Md. R. 917); November 6, 1995 (22:22 Md. R. 1670)

**Administrative History:** Regulations .02-1—.02-4 adopted effective June 7, 1993 (20:11 Md. R. 917)

**Administrative History:** Regulation .02-1C amended effective April 28, 2014 (41:8 Md. R. 474)

**Administrative History:** Regulation .02-3 amended effective November 6, 1995 (22:22 Md. R. 1670)

**Administrative History:** Regulation .02-3C amended effective July 5, 2004 (31:13 Md. R. 995)

**Administrative History:** Regulation .03 amended effective April 16, 1990 (17:7 Md. R. 854); November 6, 1995 (22:22 Md. R. 1670)

**Administrative History:** Regulation .03C amended effective June 7, 1993 (20:11 Md. R. 917)

**Administrative History:** Regulation .04 amended effective November 6, 1995 (22:22 Md. R. 1670)

**Administrative History:** Regulation .04C amended effective May 1, 1989 (16:8 Md. R. 911); April 16, 1990 (17:7 Md. R. 854); April 28, 2014 (41:8 Md. R. 474)

**Administrative History:** Regulation .06 amended effective November 6, 1995 (22:22 Md. R. 1670)

**Administrative History:** Regulation .06A amended effective April 15, 1991 (18:7 Md. R. 775)

**Administrative History:** Regulation .07 amended effective April 15, 1991 (18:7 Md. R. 775)

**Administrative History:** Regulation .08 amended effective November 6, 1995 (22:22 Md. R. 1670); March 25, 1996 (23:6 Md. R. 477)

**Administrative History:** Regulation .08B amended effective April 15, 1991 (18:7 Md. R. 775)

**Administrative History:** Regulation .08C, D amended effective September 27, 1993 (20:19 Md. R. 1473)

**Administrative History:** Regulation .09 amended effective September 27, 1993 (20:19 Md. R. 1473)

**Administrative History:** Regulation .09H adopted effective October 24, 1994 (21:21 Md. R. 1815)

**Administrative History:** Regulation .09I—K adopted effective July 31, 1995 (22:15 Md. R. 1122)

**Administrative History:** Regulation .09J amended effective November 23, 2015 (42:23 Md. R. 1435)

**Administrative History:** Regulation .09K amended effective September 29, 2014 (41:19 Md. R. 1082)

**Administrative History:** Regulation .09L—N adopted effective December 16, 1996 (23:25 Md. R. 1786)

**Administrative History:** Regulation .09N amended effective January 12, 2009 (36:1 Md. R. 24)

**Administrative History:** Regulation .09O, P adopted effective April 7, 1997 (24:8 Md. R. 617)

**Administrative History:** Regulation .09-1 adopted effective September 27, 1993 (20:19 Md. R. 1473)

**Administrative History:** Regulation .09-1A, C amended and K adopted effective April 7, 1997 (24:8 Md. R. 617)

**Administrative History:** Regulation .09-1B amended effective October 24, 1994 (21:21 Md. R. 1815); July 31, 1995 (22:15 Md. R. 1122)

**Administrative History:** Regulation .09-1C amended effective February 14, 1994 (21:3 Md. R. 197); October 20, 1997 (24:21 Md. R. 1453)

**Administrative History:** Regulation .09-1C amended as an emergency provision effective March 1, 2003 (30:6 Md. R. 417); amended permanently effective June 23, 2003 (30:12 Md. R. 792)

**Administrative History:** Regulation .09-1D adopted effective October 24, 1994 (21:21 Md. R. 1815)

**Administrative History:** Regulation .09-1D amended effective February 21, 2000 (27:3 Md. R. 327)

**Administrative History:** Regulation .09-1E—G amended effective August 21, 2000 (27:16 Md. R. 1526)

**Administrative History:** Regulation .09-1G amended effective September 29, 2014 (41:19 Md. R. 1082)

**Administrative History:** Regulation .09-1H—J adopted effective December 16, 1996 (23:25 Md. R. 1786)

**Administrative History:** Regulation .09-1J amended effective January 12, 2009 (36:1 Md. R. 24)

**Administrative History:** Regulation .09-1K amended effective December 21, 2015 (42:25 Md. R. 1547)

**Administrative History:** Regulation .10 amended and recodified to Regulations .10 and .10-1 effective November 6, 1995 (22:22 Md. R. 1670)

**Administrative History:** Regulation .10C amended effective April 15, 1991 (18:7 Md. R. 775)

**Administrative History:** Regulation .11A amended effective July 9, 1990 (17:13 Md. R. 1614); June 7, 1993 (20:11 Md. R. 917)

**Administrative History:** Regulation .11B amended effective April 17, 1989 (16:7 Md. R. 813); June 21, 1993 (20:12 Md. R. 997)

**Administrative History:** Regulation .11C amended effective April 15, 1991 (18:7 Md. R. 775); June 7, 1993 (20:11 Md. R. 917); June 21, 1993 (20:12 Md. R. 997)

**Administrative History:** Regulation .11E adopted effective October 20, 1997 (24:21 Md. R. 1453)

#### Regulation .01 Discharge Permits Required.

*COMAR 26.08.04.01*

A. Issuance of Discharge Permits. The Department shall issue State discharge permits or NPDES permits in accordance with provisions and conditions of COMAR 26.08.01—26.08.04 and 26.08.08, to satisfy the regulatory requirements of the National Pollutant Discharge Elimination System (NPDES), established under the Federal Act.

B. Activities for Which Discharge Permits Are Required. A person may not commit any of the following acts except as authorized by a discharge permit issued by the Department:

  (1) Except as provided in COMAR 26.08.02.09A(3) and Regulation .08 of this chapter, discharge into the waters of this State any waste or wastewater regardless of volume.

  (2) Construct, install, modify, extend, alter, or operate any system for the disposal of waste or wastewater into the waters of the State, or a system which may result in a discharge into these waters, regardless of quality or volume, with the exception of storm water runoff that is not regulated under the Federal Act.

  (3) Increase or otherwise modify in volume, temperature, or concentration, any existing waste or wastewater in excess of the discharges authorized by any existing discharge permit. To the extent that the modification is in excess of limits specified in a discharge permit, the permittee shall report the change to the Department within 1 week of the commencement of the modification. This report shall include information on what, how, and why modifications were made and whether they will be temporary or permanent.

  (4) Construct, install, or operate any industrial, commercial, or other establishment or any extension or modification or addition to them, including the construction or use of any new discharge outlet, the construction, installation, or operation of which would cause an increase in the discharge of waste or wastewater into the waters of the State or otherwise alter the physical, chemical, or biological properties of any waters of the State in any manner not lawfully authorized.

#### Regulation .01-1 Discharge Permit Application.

*COMAR 26.08.04.01-1*

A. Application Required.

  (1) Persons engaged or planning to engage in activities requiring a discharge permit shall file a complete application:

    (a) Not less than 180 days in advance of the date on which the discharge permit is desired to commence the activities; and

    (b) In sufficient time before the commencement of activities to ensure compliance with provisions of appropriate State and federal laws and regulations.

  (2) Permittees holding an active discharge permit shall file an updated application not less than 180 days in advance of the expiration date on that discharge permit.

  (3) Permittees no longer engaging in activities requiring a discharge permit shall notify the Department of the change in status of their facility within 30 days of ceasing the actions requiring a discharge permit.

B. Requirements.

  (1) Applications shall be made on the appropriate State discharge or NPDES application forms.

  (2) The following information shall be submitted with the completed application:

    (a) Name of any affiliate;

    (b) Permit numbers for any State discharge or NPDES permits presently held by the applicant or his affiliate;

    (c) Identification of administrative complaints or orders, if any, against the operation of the applicant or his affiliate; and

    (d) The location of all sites involved in the storage of solid or liquid waste and the ultimate disposal sites of solid or liquid waste from any treatment system.

  (3) If the discharge is from a new facility, preliminary plans and specifications, sufficiently adequate in scope and form to enable the Department to evaluate the proposed facility, shall be submitted with the application.

  (4) The Department may require that an applicant for a discharge permit provide additional reports, specifications, plans, or other information on the existing or proposed pollution control program, including a material balance if considered necessary.

  (5) Required Signatures. The application for a State discharge or NPDES permit shall be signed by a responsible official, as follows:

    (a) For a corporation, by a responsible corporate officer such as:

      (i) A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation; or

      (ii) The manager of one or more manufacturing, production, or operating facilities employing more than 250 individuals or having gross annual sales or expenditures exceeding $25 million, in second-quarter 1980 dollars, if authority to sign documents has been assigned or delegated to the manager according to corporate procedures;

    (b) For a partnership or sole proprietorship, by a general partner or the proprietor, respectively;

    (c) For a municipal, State, or other public agency, by either a principal executive officer, ranking elected official, or other duly authorized employee; or

    (d) For a federal agency, by a principal executive officer that includes:

      (i) The chief executive officer of the agency, or

      (ii) A senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency such as a regional administrator of the EPA.

C. Application Fee. Each application shall be accompanied by a fee in the amount established by the Department in Regulation .11 of this chapter. The Department shall inform the applicant of the applicable fee which shall be paid by check or money order, made payable to the Department.

D. Receipt of Application. Upon receipt of an application, the Department shall:

  (1) Notify the applicant that:

    (a) The application has been received;

    (b) The applicant is responsible for the cost of the public notice required under the provisions of this chapter and for transcripts from any informational meetings or public hearings;

    (c) The applicant or the applicant's representative may be required to attend all public informational meetings and public hearings;

    (d) Failure to pay the costs of public notification or failure to attend the public informational meetings or public hearings may result in the Department not approving the applicant's permit; and

  (2) Publish according to §E of this regulation a notice of application that includes the following:

    (a) The name of the applicant;

    (b) The type of permit applied for;

    (c) The type of proposed discharge;

    (d) The volume of the proposed discharge;

    (e) The location of the proposed discharge;

    (f) A statement that persons may review and copy the application or related material and the procedure for doing so;

    (g) A statement that the Department shall hold an informational meeting, if a person makes a written request within 10 working days of the publication of the notice, and the procedure for requesting an informational meeting; and

    (h) Other information the Department determines is necessary for adequate public notification.

E. Public Notice and Access to Information and Confidential Information.

  (1) The applicant shall pay the cost of all public notice required by this chapter.

  (2) When this chapter requires publication of public notice, the Department shall publish or shall require the applicant to publish the notice at least once a week for 2 consecutive weeks in a daily or weekly newspaper of general circulation in the geographical area in which the proposed discharge is to be located.

  (3) The Department may post or require the applicant to post the notice at the site of the proposed discharge or at public facilities in the geographical area of the proposed discharge.

  (4) The Department shall maintain lists of persons, government agencies, and other concerned groups to which notice is sent concerning discharge permits.

  (5) The Department shall provide notice of an informational meeting or a public hearing by mail to each person requesting the meeting or hearing or to the person's authorized representatives.

  (6) The Department shall ensure that any State discharge or NPDES permit application and its supporting information, including any public comment concerning the application, shall be available to the public for inspection and copying.

  (7) The Department shall provide facilities for the inspection of the State discharge or NPDES permit application and its supporting information and ensure that State employees respond to requests for inspection promptly without undue requirements or restrictions. The Department shall either:

    (a) Ensure that a machine or device for the copying of papers and documents is available for a reasonable fee; or

    (b) Otherwise provide for, or coordinate with, copying facilities or services so that requests for copies of nonconfidential documents may be responded to promptly.

  (8) Protection of Information.

    (a) Except for effluent data, the Department shall protect any information contained in an NPDES application, or other records, reports, or plans, as confidential upon a showing by a person that the information, if made public, would divulge methods or processes entitled to protection as the person's trade secrets.

    (b) If the information being considered for confidential treatment is contained in an NPDES application, the Department shall forward this information to the EPA for concurrence in any determination of confidentiality.

    (c) If the EPA determines that some or all of the information being considered for confidential treatment does not merit this protection, and communicates to the Department that it is the EPA decision not to concur in the withholding of the information, the Department shall:

      (i) Notify the applicant of EPA's decision; and

      (ii) After ascertaining that the applicant has exhausted or waived the EPA appeal process concerning confidentiality of business information, make available to the public, upon request, that information determined not to constitute trade secrets.

  (9) Any information accorded confidential status, whether or not contained in an NPDES application, shall be disclosed, upon request, to an authorized EPA representative, who shall maintain the disclosed information as confidential.

#### Regulation .01-2 Discharge Permit Application Processing.

*COMAR 26.08.04.01-2*

A. Informational Meetings.

  (1) Upon written request by a person within 10 working days of the publication of a notice of application for a discharge permit, the Department shall hold an informational meeting to discuss the application.

  (2) The Department also may hold an informational meeting or meetings at the Department's discretion.

  (3) The informational meeting may be cancelled if all persons who made timely written requests withdraw their requests before the meeting.

  (4) The Department may require the applicant to attend all informational meetings and present information concerning the application.

  (5) If an informational meeting is required, the Department shall publish or require the applicant to publish notice of the informational meeting, unless the notice of application contained a notice of the informational meeting. This notice shall:

    (a) Conform to the requirements of Regulation .01-1E of this chapter; and

    (b) Contain:

      (i) The information required under Regulation .01D of this chapter,

      (ii) The date, time, and location of the informational meeting, and

      (iii) Other information the Department determines to be necessary for adequate public notice.

  (6) When the notice of the informational meeting also contains a notice of public hearing, the first notice of public hearing shall be given at least 30 days before the hearing.

B. Tentative Determination.

  (1) Preparation of Tentative Determination and Fact Sheet.

    (a) After the Department receives the discharge permit application, the Department shall prepare a tentative determination, which shall include:

      (i) The name of the applicant;

      (ii) A proposal to issue or not issue the permit;

      (iii) The type, volume, and location of the proposed discharge;

      (iv) Proposed permit limitations and conditions;

      (v) A brief explanation of the Department's tentative decision;

      (vi) If applicable, a proposed schedule of compliance;

      (vii) A brief summary, if appropriate, concerning the development of a site-specific criterion, use of a biological or chemical translator for derivation of permit limits, or a temporary permit modification; and

      (viii) Other information the Department considers necessary.

    (b) When the tentative determination is to issue a discharge permit, the tentative determination shall include a draft permit, which shall be available to the public for inspection and copying.

    (c) The Department shall prepare a fact sheet as required by the Federal Act for all proposed permits for major facilities.

  (2) Publication of Notice of Tentative Determination.

    (a) The Department shall publish or require the applicant to publish the notice of tentative determination according to Regulation .01-1E of this chapter.

    (b) The notice of tentative determination shall include:

      (i) The information in §B(1)(a) of this regulation;

      (ii) The procedures for a person to review and copy the tentative determination, draft permit, or related material;

      (iii) A statement allowing 30 days for public comment to the notice of tentative determination before the issuance of the final determination and the procedures for offering public comment;

      (iv) A statement that the Department shall hold a public hearing when a written request for a public hearing is made within 20 days of the publication of the notice of tentative determination and the procedure for making a written request for a public hearing; and

      (v) Other information the Department considers necessary to ensure adequate public notice.

    (c) When the notice of tentative determination also includes a notice of public hearing, the first notice of public hearing shall be given at least 30 days before the hearing.

  (3) Mailing List for the Notice of Tentative Determination and Fact Sheet.

    (a) The notice of tentative determination shall be mailed to any other state whose waters may be affected by the issuance of a permit, so that the affected state may submit written comments to the Department and to the EPA.

    (b) The notice of tentative determination and, if prepared, a fact sheet, shall be mailed, unless waived, to the appropriate district engineer of the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service.

    (c) Upon written request by a person, the Department shall add the name of that person to a mailing list to receive a copy of the notice of tentative determination and fact sheet, if prepared, for a specific NPDES permit application.

  (4) Obligation of Discharger to Notify Department. A person who desires to apply for a site-specific criterion, biological translator, or chemical translator shall notify the Department before the later of the end of the comment period established:

    (a) In the notice of tentative determination; or

    (b) For the public hearing.

  (5) Public Hearing.

    (a) The Department shall schedule a public hearing on the tentative determination when a written request for a public hearing is made within 20 calendar days of the publication of the notice of tentative determination.

    (b) The Department may schedule a public hearing on a State discharge or NPDES permit at the Department's discretion.

    (c) The public hearing may be cancelled if all persons who made timely written requests withdraw the requests before the hearing.

    (d) The applicant, if requested by the Department, shall provide information concerning the application.

    (e) If the Department requires the applicant to attend the public hearing, failure of the applicant to attend the hearing and present information may result in the Department not issuing the permit.

    (f) A person shall be given an opportunity to present information at the public hearing concerning the tentative determination.

    (g) The Department shall accept written comments for 5 calendar days after the date of the public hearing.

    (h) The applicant shall be responsible for the cost of preparing and obtaining a transcript of public hearings.

  (6) Notice of Public Hearing.

    (a) If a public hearing is scheduled, a notice of the hearing shall be published according to Regulation .01-1E of this chapter. The first notice shall give a minimum of 30 days notice before the hearing.

    (b) The notice of public hearing shall include:

      (i) The name of the applicant;

      (ii) The type of discharge permit to be discussed at the public hearing, including the volume of the proposed discharge;

      (iii) The location of the proposed discharge;

      (iv) A brief description of the proposed permit conditions and limitations, proposed schedule of compliance, and any proposed special conditions including procedures for obtaining access to or copies of the tentative determination;

      (v) Information concerning the date, time, and location of the public hearing; and

      (vi) Other information the Department determines to be necessary for adequate public notification.

    (c) The Department shall provide the applicant with a copy of the notice of public hearing.

#### Regulation .01-3 Discharge Permit Issuance and Contested Case Hearings.

*COMAR 26.08.04.01-3*

A. Final Determination.

  (1) If the Department is not required to prepare a final determination, the tentative determination shall be a final decision by the Department and a permit may be issued.

  (2) The Department shall prepare a final determination if:

    (a) Written comments adverse to the tentative determination are received by the Department within 30 days after publication of the notice of tentative determination;

    (b) Comments adverse to the tentative determination were received in writing at, or within 5 days after, a public hearing held according to Regulation .01-2B(5) of this chapter;

    (c) Comments adverse to the tentative determination were received orally at the public hearing conducted under this section and the Department prepared a transcript of the comments made at the hearing; or

    (d) The final determination is substantively different from the tentative determination and all persons who may be aggrieved by the final determination have not waived, in writing, their right to request a contested case hearing.

  (3) Those persons, including applicants, who believe any condition of a draft permit is inappropriate or that the Department's tentative determination is inappropriate, shall raise all reasonably ascertainable issues and submit all reasonably available arguments and documents supporting their position by the close of the public comment period, including any public hearing, as established by this chapter.

  (4) Supporting materials which are submitted shall be included in full and may not be incorporated by reference, unless they are already part of the administrative record in the same proceeding, or consist of State or federal statutes and regulations, EPA documents of general applicability, or other generally available reference materials.

  (5) Those offering comments shall make supporting materials not already included in the administrative record available by submitting a complete copy of all supporting materials at the time they submit their comments, or, if this submission is not practical, as determined solely by the Department, comments shall identify the location of the supporting materials.

  (6) The final determination shall include:

    (a) The name of the applicant;

    (b) The type of discharge;

    (c) The location of the discharge;

    (d) The volume of the discharge;

    (e) A statement of the Department's final determination and a brief explanation of the Department's decision;

    (f) The permit limitations and conditions; and

    (g) A schedule of compliance, if applicable.

  (7) The final determination shall be available to the public for inspection and copying according to Regulation .01-1E of this chapter.

B. Notice of Final Determination.

  (1) When the Department is required to prepare a final determination under §A of this regulation, a notice of final determination shall be published according to Regulation .01-1E of this chapter.

  (2) The notice of final determination shall be published in the same newspapers as the notice of hearing.

  (3) The notice of final determination shall include:

    (a) The information contained in the final determination required by §A(3)(a)—(e) of this regulation, and any limitations, change in permit conditions, or schedule of compliance;

    (b) A statement that the notice of final determination is available for inspection and copying;

    (c) The procedure for inspection and copying of the final determination;

    (d) A statement that a person may request a contested case hearing to appeal a final determination if the person makes factual allegations with sufficient particularity to demonstrate that the person is aggrieved by the final determination and the final determination is:

      (i) Legally inconsistent with any provisions of law applicable to the final determination being challenged, or

      (ii) Based upon an incorrect determination of a relevant and material fact;

    (e) A statement that a person requesting a contested case hearing shall submit a written request for adjudication within 15 days after publication of the notice of final determination;

    (f) The procedure for requesting a contested case hearing; and

    (g) Other information the Department determines to be necessary for adequate public notification.

C. Request for Contested Case Hearing.

  (1) A person may not request a contested case hearing based on, or in a contested case hearing may not challenge, a facility's compliance with zoning and land use requirements or conformity with a county plan issued under Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland. This regulation does not prevent a party from contesting the compliance of the facility with zoning and land use or county plan requirements in any proceeding brought in accordance with or under any applicable local laws.

  (2) A person requesting a contested case hearing to appeal a final determination shall:

    (a) Submit a written request in the manner specified in the notice of final determination within 15 days after publication of the notice of final determination; and

    (b) Provide documentation that the requirements of §A of this regulation were met.

  (3) A request for a contested case hearing shall include:

    (a) The name, address, and telephone number of the person filing the request; (b) The particular factual allegations which demonstrate that the:

      (i) Person is aggrieved by the final determination, and

      (ii) Final determination is legally inconsistent with any provisions of law applicable to the final determination being challenged or is based on an incorrect determination of a relevant and material fact.

  (4) The request for a contested case hearing shall be processed and the hearing conducted in accordance with the provisions of State Government Article, Title 10, Subtitle 2, and Environment Article, Title 1, Subtitle 6, Annotated Code of Maryland.

#### Regulation .02 Requirements for the Issuance and Reissuance of Discharge Permits.

*COMAR 26.08.04.02*

A. General. The Department shall issue or reissue a discharge permit upon a determination that:

  (1) The discharge or proposed discharge specified in the application is or will be in compliance with all applicable requirements of:

    (a) Effluent limitations,

    (b) Surface and ground water quality standards,

    (c) The Federal Act,

    (d) State law or regulation,

    (e) Best available technology, and

    (f) Federal effluent guidelines;

  (2) The discharge or proposed discharge from publicly owned treatment works (POTW) or other sewage treatment works, and the sewerage systems, including the pumping stations, which serve the POTW or other treatment works, are in compliance with:

    (a) The continuing planning process required under §303(e) of the Federal Act; and

    (b) The approved county water and sewerage plan adopted under Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland;

  (3) The provisions of existing discharge permits, as issued, and any outstanding administrative orders affecting the applicant or his affiliate have been or are being complied with by the applicant and his affiliate;

  (4) Industrial waste treatment works, publicly owned treatment works, or other sewage treatment works are operated and maintained by a certified operator under the provisions of Environment Article, Title 12, Annotated Code of Maryland, and applicable regulations; and

  (5) The requirements of Regulations .01, .01-1, and .01-2 of this chapter have been met.

B. Conformance with Federal Act. In the absence of formally promulgated effluent standards and limitations under the Federal Act, the Department shall apply, in the terms and conditions of issued discharge permits, effluent limitations to achieve the purpose of the Federal Act.

C. Compliance Schedule.

  (1) The Department may impose a compliance schedule as a condition of a permit for existing discharges which do not comply with permit conditions, effluent limits, or water quality standards.

  (2) When a compliance schedule is imposed, the Department shall:

    (a) Require the permittee to achieve compliance within:

      (i) Applicable periods established in effluent limitations or water quality standards, or

      (ii) In the absence of any legally applicable schedule of compliance, the shortest reasonable time consistent with the requirements of the Federal Act and State law or regulation;

    (b) Set for each compliance schedule that is longer than 9 months, interim dates of 9 months or less for:

      (i) Compliance with interim requirements, or

      (ii) Submission of reports of progress toward completion of the interim requirements;

    (c) Require the permittee to provide written notice of the permittee's compliance or noncompliance with the interim or final requirements within 14 days following each interim or final compliance date;

    (d) Prepare and report to the EPA on the last day of February, May, August, and November, a list of all instances occurring in the quarter before the report where the permittee failed to:

      (i) Comply with an interim or final requirement, or

      (ii) Notify the Department of compliance or noncompliance with each interim or final requirement; and

    (e) Make available to the public for inspection and copying, the quarterly lists reporting failure to comply with compliance schedules.

  (3) The compliance schedule may be modified according to Regulation .10D of this chapter.

#### Regulation .02-1 Discharge Permit Limits.

*COMAR 26.08.04.02-1*

A. General.

  (1) Each discharge permit, unless inappropriate, shall specify average and maximum daily quantitative limits, in terms of weight, for the discharge of pollutants in the authorized discharge.

  (2) Other discharge limits, such as minimum, average, or maximum concentration limits, may be imposed.

  (3) If a schedule of compliance is included as a discharge permit condition, quantitative limits shall be set for the interim period as well as for the period following the final compliance date.

B. Net Credits. The discharge permit limits for the discharge of noncontact cooling water shall be based on the water quality standard unless the discharger applies to have the permit limits based on the concentration in the intake water. A discharger may make this application if:

  (1) The intake water is the receiving water;

  (2) The pollutant concentration in the intake water exceeds the water quality standard;

  (3) Except for the additional provisions of a compliance schedule for corrosion and erosion in §C of this regulation, the discharger demonstrates to the Department's satisfaction, using a statistically rigorous demonstration, that no significant difference exists, at the edge of the appropriate mixing zone, between the intake concentration or loading and the effluent concentration or loading of the pollutant which exceeds the water quality standard; and

  (4) The discharger demonstrates to the Department's satisfaction that no other activity, condition, method of operation, or materials used or produced at the facility which results in the introduction of wastewater into the facility's discharge (including entrainment of pollutants previously discharged or disposed of by the facility), significantly contributes to the exceedance of surface water quality standards.

C. Corrosion and Erosion.

  (1) Reasonable Potential. A discharger will not be found to cause, have the reasonable potential to cause, or contribute to an exceedance of a numerical water quality standard for a pollutant caused by normal corrosion and erosion from a facility’s water distribution piping and appurtenances or associated with intake water from a municipal drinking water supply, if:

    (a) The facility is an existing facility as of the effective date of this section;

    (b) The permitted dry-weather discharge from the facility consists of a combination of drinking fountain drainage, fire protection system drainage, and interior atmosphere control equipment drainage;

    (c) The total annual estimated dry-weight mass loading for the pollutant of concern of the permitted dry-weather discharge from the facility does not exceed 5 pounds;

    (d) The annual average effluent concentration of the permitted dry-weather discharge at the facility does not exceed the ambient concentration of the pollutant of concern in the facility's receiving water body; and

    (e) The discharger’s receiving water body for the discharge is not a Class III or Class III-P water.

  (2) Compliance Schedule for Noncontact Cooling Water Discharges.

    (a) For purposes of this section, normal corrosion and erosion shall be determined through site-specific calculations that are performed in accordance with scientifically defensible methodology approved by the Department and are based, where appropriate, on annual average intake concentrations.

    (b) In establishing discharge permit limits on the basis of either water quality standards or intake water pollutant concentrations, the Department may grant a credit for normal corrosion and erosion associated with the discharging facility's noncontact cooling water condenser tubes, if the discharger:

      (i) Demonstrates that, in the absence of the pollutant corroded and eroded from the facility's piping and appurtenances or noncontact cooling water condenser tubes, the discharger would not exceed the otherwise applicable permit limit;

      (ii) Demonstrates that the normal corrosion and erosion associated with the intake water used by the facility for noncontact cooling water is sufficient to cause an exceedance of the otherwise applicable permit limit; and

      (iii) Has entered into a consent order requiring that, within 5 years after the promulgation of this regulation or the permit expiration date at the time of promulgation, whichever is later, sufficient noncontact cooling water condenser tubes or other piping and appurtenances for noncontact cooling water will be modified, replaced, or repaired, to consist of noneroding and noncorroding materials, until the need for the corrosion/erosion credit is eliminated.

    (c) The Department may reduce or deny the credit if any other activity, condition, method of operation, or material used or produced at the facility results in the increase of the erosion and corrosion-based pollutant in the facility's discharge (including entrainment of a pollutant previously discharged or disposed of by the facility) and significantly contributes to the exceedance of the water quality standard for that pollutant in the receiving water.

D. Mixing Zones.

  (1) When any effluent meets water quality criteria at the end of the discharge pipe, the Department may not require the discharger to submit mixing zone calculations.

  (2) When mixing zones are used to establish discharge permit limits, the discharger, at the time of application for permit issuance or renewal, or at a later time stipulated by the Department, shall select the mixing zone technique appropriate for each discharge and submit actual mixing zone calculations. All calculations and supporting studies should be based on established criteria and protocols or otherwise performed in accordance with scientifically defensible methodology approved by the Department. Supporting documentation may include one or more of the following:

    (a) Tracer studies;

    (b) Receiving water and discharge flow measurements;

    (c) Surface water bathymetry;

    (d) Diffuser design and performance data; and

    (e) Effluent modeling results.

  (3) When a mixing zone has been previously used to establish permit limits, the Department may, in its discretion, waive the requirement for full mixing zone development if the discharger demonstrates that:

    (a) Discharge conditions have not changed; and

    (b) No surface water impacts attributable to the facility have been identified.

#### Regulation .02-2 Minimum Levels for Discharge Permit Limits.

*COMAR 26.08.04.02-2*

Some permit limits expressed as concentrations of specific chemicals may be below the minimum levels for those chemicals. For these permit limits, the level of compliance shall be the minimum level.

#### Regulation .02-3 Discharge Permit Limits Based on Biological Translator.

*COMAR 26.08.04.02-3*

A. General. Biologically available equivalence addresses the potential for an effluent constituent, present primarily in the particulate or relatively non-bioavailable form, to become transformed by mixing with the receiving water to a bioavailable form. The biological translator utilizes the relationship between effluent-receiving water toxicity testing results and the laboratory standard dilution water toxicity data to relate an instream aquatic life criterion to the impact of a specific effluent. This ratio provides discharge-specific information concerning the assimilative capacity of the surface water for a specific pollutant when contained in a particular discharge.

B. Discharge Requirements for Use of the Biological Translator.

  (1) Before the use of a biological translator in a waste load allocation to determine specific discharge permit limits, a discharger shall demonstrate:

    (a) For acute aquatic life criteria, a history of repeated whole effluent toxicity testing at four consecutive quarterly intervals where the effluent, upon allowance for confirmation tests on failures, consistently exhibits an LC50 greater than 100 percent;

    (b) For chronic aquatic life criteria, a history of repeated whole effluent toxicity testing at four consecutive quarterly intervals where the effluent, upon allowance for confirmation tests on failures, consistently exhibits an IC25 greater than the instream waste concentration at the edge of the chronic mixing zone; and

    (c) Achievement of best available technology with satisfactory operation and maintenance.

  (2) The discharger shall continue to demonstrate, as appropriate, through whole effluent toxicity testing at quarterly intervals, as required by the discharge permit:

    (a) An LC50 which, upon allowance for confirmation tests for failures, consistently exceeds 100 percent; or

    (b) An IC25 which, upon allowance for confirmation tests for failures, consistently exceeds the instream waste concentration at the edge of the chronic mixing zone.

  (3) To have the Department continue using a biological translator to derive permit limits, a discharger shall repeat the process of data collection and effects ratio calculation each time the permit is renewed or changed to assure that all factors influencing the effluent-receiving water effects ratio remain the same.

  (4) The discharger shall demonstrate that no new BAT is available at each permit renewal.

  (5) The discharger shall provide all the necessary data to support the biological translator to the satisfaction of the Department.

C. Procedure.

  (1) Notification. A discharger who wants permit limits developed using the biological translator shall notify the Department in writing in accordance with Regulation .01-2B of this chapter. This notification shall include:

    (a) The substance or substances for which biologically available equivalence limits are to be developed;

    (b) The data demonstrating that the preconditions specified in §B of this regulation have been met; and

    (c) The proposed methodology for deriving the biological translator, including sampling times and locations, effluent dilutions, species to be tested, and laboratory quality assurance/quality control procedures.

  (2) Time for Completion of Studies. A discharger, having notified the Department as required by §C(1) of this regulation, shall complete all studies supporting use of the biological translator and apply to the Department for approval of the biological translator within 12 months after this notification.

  (3) Application. An application for the biological translator shall include the:

    (a) Substance or substances for which biologically available equivalence limits are to be developed;

    (b) Most recent data collected to satisfy the preconditions in §B of this regulation; and

    (c) Data supporting the biological translator.

  (4) Development of the Biological Translator. The biological translator shall be developed in accordance with “Guidelines for the Use of a Biological Translator in Wasteload Allocations”, (MDE-WMA-003, March 16, 1992), which is incorporated by reference, and current EPA sampling and testing procedures listed in the 1994 Interim Guidance on Determination and Use of Water-Effect Ratios for Metals (EPA-823-B-94-001) or the 2001 Streamlined Water-Effect Ratio Procedure for Discharges of Copper (EPA-822-R-01-005), which are incorporated by reference.

  (5) Time for Department Action on Application. The Department shall complete its review and either approve or deny use of the biological translator within 6 months after receipt of the application.

  (6) Use of the Biological Translator. When the Department has completed its review and determined that the supporting data are satisfactory, the Department shall use the resulting ratio with the appropriate water quality criterion to obtain a revised value for use in the derivation of a permit limit.

  (7) Unsatisfactory Biological Translator. If the Department determines that the data supporting the biological translator are unsatisfactory, the Department may not use the resulting ratio. The discharger shall be required by the Department to revise the application or select an alternative approach for establishing permit limits.

  (8) Public Participation. Those permit limits developed using the biological translator shall be included in the draft NPDES permit and in the public participation process for permit review.

#### Regulation .02-4 Discharge Permit Limits Based on Chemical Translator.

*COMAR 26.08.04.02-4*

A. General.

  (1) The chemical translator is a mechanism for establishing the relationship between the dissolved concentration used in determining compliance with the instream aquatic life water quality criteria for metals and the measurement required for permit limits and waste load allocation.

  (2) The chemical translator may not be used to establish discharge permit limits if the discharger has completed studies, under Regulation .02-3 of this chapter, which support the use of the biological translator.

B. Discharge Requirements for Use of the Chemical Translator.

  (1) Before the use of a chemical translator in a waste load allocation to determine specific discharge permit limits, a discharger shall demonstrate:

    (a) For acute aquatic life criteria, a history of repeated whole effluent toxicity testing at four consecutive quarterly intervals where the effluent, upon allowance for confirmation tests of failures, consistently exhibits an LC50 greater than 100 percent;

    (b) For chronic aquatic life criteria, a history of repeated whole effluent toxicity testing at four consecutive quarterly intervals where the effluent, upon allowance for confirmation tests on failures, consistently exhibits an IC25 greater than the instream waste concentration at the edge of the chronic mixing zone; and

    (c) Achievement of best available technology with satisfactory operation and maintenance.

  (2) The discharger shall continue to demonstrate, as appropriate, through whole effluent toxicity testing at quarterly intervals throughout the period of the permit:

    (a) An LC50 which, upon allowance for confirmation tests for failures, consistently exceeds 100 percent; or

    (b) An IC25 which, upon allowance for confirmation tests for failures, consistently exceeds the instream waste concentration at the edge of the chronic mixing zone.

  (3) To have the Department continue using a chemical translator to derive permit limits, a discharger shall repeat the process of data collection and calculation each time the permit is renewed or changed to assure that all factors influencing the chemical translator remain the same.

  (4) The discharger shall demonstrate that no new BAT is available at each permit renewal.

  (5) The discharger shall provide all the necessary data to support the chemical translator to the satisfaction of the Department.

C. Procedure.

  (1) Notification. A discharger who wants permit limits developed using the chemical translator shall notify the Department in writing in accordance with Regulation .01-2B(4) of this chapter. This notification shall include:

    (a) The metal or metals for which chemical translator limits are to be developed;

    (b) The data demonstrating that the preconditions in §B of this regulation have been met; and

    (c) The proposed methodology for deriving the chemical translator, including sampling times and locations, analytical methods, and all quality assurance/quality control procedures.

  (2) Time For Completion of Studies. A discharger, having notified the Department as required by §C(1) of this regulation, shall complete all necessary studies supporting the use of the chemical translator and apply to the Department for approval of the chemical translator within 12 months of this notification.

  (3) Application. An application for the chemical translator shall include the:

    (a) Substance or substances for which the chemical translator limits are to be developed;

    (b) Most recent data collected to satisfy the preconditions in §B of this regulation; and

    (c) Data supporting the chemical translator developed permit limits.

  (4) Development of Chemical Translator. The chemical translator is a ratio designed to estimate concentrations of total recoverable metal from a water quality criterion applied as dissolved metal. This ratio shall be developed using one of the following methods:

    (a) The discharger demonstrates, to the satisfaction of the Department, the ratio between dissolved and total recoverable metal concentrations through the collection and evaluation of appropriate field data; or

    (b) For fresh receiving waters only, the discharger uses the following ratio of total recoverable (CT) to dissolved (C) metal concentrations:

      (i) Kp is the linear partition coefficient in the units Kg-1);

      (ii) [ss] is the concentration of suspended solids in the units mg/L; and

      (iii) Kp = Kpo [ss] a, where the values for Kpo and a are given in the following table:

  (5) Time for Department Action on Application. The Department shall complete its review and either approve or deny use of the chemical translator within 6 months of receipt of the application.

  (6) Use of the Chemical Translator. When the Department has completed its review and determined that the supporting data are satisfactory, the Department shall use the resulting ratio with the appropriate water quality criterion to obtain a revised value for use in the derivation of a permit limit.

  (7) Unsatisfactory Chemical Translator. If the Department determines that the data are unsatisfactory, the Department may not use the resulting ratio supporting the chemical translator. The discharger shall be required by the Department to revise the application or select an alternative approach for establishing permit limits.

  (8) Public Participation. Permit limits developed using the chemical translator shall be included in the draft NPDES permit and in the public participation process for permit review.

#### Regulation .03 Monitoring, Recording, and Reporting for Discharge Permits.

*COMAR 26.08.04.03*

A. Monitoring.

  (1) A discharge authorized by a discharge permit shall be subject to any monitoring requirements the Department deems necessary, including:

    (a) The installation, use, and maintenance of monitoring equipment or methods; and

    (b) When appropriate, biological monitoring methods.

  (2) Each permit shall specify the sampling and analysis requirements, including the frequency and type of sampling and analysis.

  (3) Each permittee shall submit the name and address of the laboratory performing analyses within 30 days of the issuance of the State discharge or NPDES permit. If the permittee changes laboratories during the operating permit, the Department shall be notified within 30 days in writing.

B. Record Keeping.

  (1) The permittee shall retain for a minimum of 3 years any records of monitoring activities and results including all:

    (a) Raw data and original strip chart recordings;

    (b) Calibration and maintenance records; and

    (c) Reports.

  (2) This period of retention shall be extended during the course of unresolved litigation regarding the discharge of pollutants, or when requested by the Department.

  (3) All records of monitoring shall include for all samples:

    (a) The date, exact place, time, and method of sampling;

    (b) The dates of analyses;

    (c) Who performed the analyses;

    (d) The analytical techniques and methods used; and

    (e) The results of the analyses.

C. Reporting.

  (1) The permittee shall submit the monitoring results to the Department on the proper discharge monitoring report form.

  (2) The report shall be submitted in the time frame required by each permit.

  (3) The reporting period may not be less than once per year.

  (4) Measurements below the minimum level may be reported as BML (below minimum level).

#### Regulation .04 Sewage Treatment Works.

*COMAR 26.08.04.04*

A. The person holding the permit for publicly owned treatment works or other sewage treatment works shall provide the Department with a notice concerning:

  (1) The introduction of pollutants into these treatment works from any discharge of industrial waste for which a State discharge permit would be required if the discharge were made directly to the waters of the State; or

  (2) Any substantial change in volume, character, or concentration of pollutants from any discharge of industrial waste being introduced into the treatment facilities.

B. The notice shall include the following:

  (1) The quantity and quality of the discharge; and

  (2) The anticipated impact of the discharge on the quantity and quality of the permittee's discharge.

C. Level of Required Treatment.

  (1) Secondary Treatment. Secondary treatment shall be required as a minimum for sewage treatment works discharging into any waters of the State.

  (2) Special Treatment Requirements for Discharge to Shellfish Harvesting Waters.

    (a) Treatment sufficient to afford protection for shellfish harvesting waters shall be required for all sewage treatment works discharging into Class II waters.

    (b) This treatment may require a higher level of secondary treatment or advanced waste treatment.

    (c) These treatment works shall incorporate a bypass control system, including a minimum 24-hour emergency holding facility, and shall provide for biocide residual control.

  (3) Advanced Waste Treatment Required. Advanced waste treatment as determined by waste load allocation shall be required for all sewage treatment works with a design capacity exceeding 1 million gallons per day and discharging into water quality limited waters. Advanced waste treatment may also be required for smaller sewage treatment works where the Department determines that this level of treatment is necessary.

  (4) Special Advanced Wastewater Treatment Requirements. An effluent limitation of 2 milligrams/liter total phosphorus shall be required for all facilities discharging more than:

    (a) 0.5 million gallons per day to the Chesapeake Bay and its tributaries above the Baltimore Harbor; and

    (b) 10 million gallons per day in the vicinity of Baltimore Harbor to the Bay Bridge.

#### Regulation .05 Reserved.

*COMAR 26.08.04.05*

#### Regulation .06 Term and Approval of Discharge Permit.

*COMAR 26.08.04.06*

A. Term of Permit.

  (1) The term of each discharge permit shall be for a maximum of 5 years, unless the permit is previously amended, suspended, or revoked.

  (2) Each discharge permit shall specify the expiration date.

  (3) If a timely and complete reapplication has been submitted and the Department, through no fault of the permittee, is unable to issue a new permit, the terms and conditions of the existing discharge permit shall continue and remain fully effective and enforceable.

B. Permittee Responsibility for Continuing Pollution Control. The issuance of a discharge permit by the Department does not relieve the permittee from the continuing responsibility for:

  (1) The successful treatment and disposal of wastewater and other waste; and

  (2) Compliance with applicable provisions of State and federal law and regulations.

#### Regulation .07 Administration of Federal NPDES Program by the State.

*COMAR 26.08.04.07*

A. The Department shall administer the National Pollutant Discharge Elimination System (NPDES) program as part of its own discharge permit system.

B. This administration shall be in accordance with:

  (1) Environment Article, Title 9, Annotated Code of Maryland;

  (2) This chapter; and

  (3) The Federal Act.

#### Regulation .08 General Discharge Permit Program.

*COMAR 26.08.04.08*

A. Purpose.

  (1) General permits are discharge permits issued to classes of discharges.

  (2) The Department intends to regulate certain classes of discharges through the issuance of general permits.

  (3) All discharges within the described class are permitted, subject to the specific conditions contained in the general permit.

  (4) Only those classes of discharges considered appropriate by the Department for regulation by this mechanism will be covered by a general permit.

  (5) All other dischargers are subject to the requirements of a separate discharge permit issued under Regulations .01 — .07 of this chapter and COMAR 26.08.08.

B. Classes of Discharges Eligible for Regulation under General Permits.

  (1) For the purpose of this section, the term “landfill” includes sanitary landfills as defined in COMAR 26.04.07 as well as any land containment or land disposal facility for industrial, commercial, or residential solid waste, whether publicly or privately owned or operated, or both.

  (2) The following classes of discharges may be regulated through the General Permit Program:

    (a) Storm water discharges;

    (b) Landfills or sludge-handling facilities designed to achieve natural attenuation of leachate, with no discharge to surface waters other than storm water runoff regulated under §B(2)(a) of this regulation;

    (c) Individual on-lot domestic waste subsurface disposal systems permitted by the Department under Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland, and COMAR 26.04.02;

    (d) Municipal separate storm sewers;

    (e) Ground water heat pumps discharging to waters of this State;

    (f) Other categories of discharges as established under this regulation.

C. Permit Provisions. The Department shall prepare a draft permit for each specific class of dischargers under consideration for regulation according to the General Permit Program. The draft permit shall contain those general and special conditions and, if appropriate, monitoring and reporting requirements considered necessary by the Department to protect public health and the environment.

D. Permit Coverage. Unless specifically indicated otherwise, a general permit issued under this regulation shall authorize all discharges satisfying the class description. The Department, at its discretion, may notify a discharger and require issuance of a separate State discharge permit under Regulations .01—.07 of this chapter and COMAR 26.08.08.

E. Permit Duration. A general permit issued under this regulation shall be valid for a period not to exceed 5 years, and shall be renewed at the discretion of the Department according to §§G—K of this regulation.

F. Discharges Authorized Under a General Permit. The requirements of §§G—J of this regulation do not apply to the discharges authorized under a general permit, only to the issuance of the general permit itself.

G. Draft Permits and Tentative Determinations.

  (1) The Department shall prepare a draft permit and a tentative determination for a specific class of dischargers to be regulated under the General Permit Program.

  (2) A fact sheet shall also be prepared describing the class of dischargers to be regulated, outlining the proposed permit conditions and limitations, and specifying the procedures for a person to review and copy the tentative determination, draft permit, and related materials.

  (3) The tentative determination shall include:

    (a) A statement that the Department proposes to issue a general permit for a certain class of discharges;

    (b) The procedures for a person to review and copy the tentative determination, draft permit, or related material;

    (c) A brief explanation of the Department's tentative decision;

    (d) Proposed permit limitations and conditions; and

    (e) If applicable, a proposed schedule of compliance.

  (4) Public Notice of Tentative Determination.

    (a) The Department shall publish a public notice of the Department's tentative determination in the Maryland Register and according to Regulation .01-1E of this chapter.

    (b) The notice of tentative determination shall include:

      (i) The information required in §G(2) of this regulation;

      (ii) A statement that the Department shall allow 30 days for public comment to the tentative determination before the issuance of the final determination and the procedure for submitting comments;

      (iii) A statement that the Department shall hold a public hearing when a written request for a public hearing is made by a person within 20 days of the publication of the notice of tentative determination and the procedure for making a written request for a public hearing; and

      (iv) Other information the Department determines to be necessary for adequate public notification.

    (c) If the notice of tentative determination also includes a notice of public hearing, the notice of public hearing shall be given at least 30 days before the hearing.

H. Public Hearings.

  (1) The Department shall schedule a public hearing on the tentative determination when a written request for a public hearing is made within 20 calendar days of the publication of the notice of tentative determination.

  (2) The Department, at its own discretion, may hold:

    (a) An informational meeting or meetings; or

    (b) A public hearing or hearings.

  (3) The public hearing may be cancelled if all persons who made timely written request for such a meeting withdraw their requests.

  (4) If a public hearing is required, the Department shall:

    (a) Publish a notice of the hearing according to Regulation .01-1E of this chapter, and the first notice shall give a minimum of 30 days notice before the hearing; and

    (b) Publish a notice of the public hearing that includes:

      (i) The information required under §G(2) of this regulation,

      (ii) The date, time, and location of the public hearing, and

      (iii) Other information the Department determines to be necessary for adequate public notification.

  (5) The Department shall:

    (a) Give a person who attends a public hearing an opportunity to make comments concerning the issuance of a general permit; and

    (b) Accept written comments on the proposal to issue a general permit for at least 5 days after a public hearing.

I. Final Determinations for General Permits.

  (1) If the Department is not required to prepare a final determination, the tentative determination shall be a final decision by the Department and a permit may be issued.

  (2) The Department shall prepare a final determination if:

    (a) Written comments adverse to the tentative determination were received by the Department within 30 days after publication of the notice of tentative determination;

    (b) Comments adverse to the tentative determination were received in writing at, or within 5 days after, a public hearing held under the provisions of §H of this regulation;

    (c) Comments adverse to the tentative determination were received orally at the public hearing conducted under this section and the Department prepared a transcript of the comments made at the hearing; or

    (d) The final determination is substantively different from the tentative determination and persons who may be aggrieved by the final determination have not waived, in writing, their right to request a contested case hearing.

  (3) Those persons, including applicants, who believe any condition of a draft permit is inappropriate or that the Department's tentative determination is inappropriate, shall raise all reasonably ascertainable issues and submit all reasonably available arguments and documents supporting their position by the close of the public comment period, including any public hearing, as established by this chapter.

  (4) Supporting materials which are submitted shall be included in full and may not be incorporated by reference, unless they are already part of the administrative record in the same proceeding, or consist of State or federal statutes and regulations, EPA documents of general applicability, or other generally available reference materials.

  (5) Those offering comments shall make supporting materials not already included in the administrative record available by submitting a complete copy of all supporting materials at the time they submit their comments or, if this submission is not practical, as determined solely by the Department, comments shall identify the location of the supporting materials.

  (6) The final determination shall include the following:

    (a) A description of the type of discharges to be included in the general permit;

    (b) A statement of the Department's final determination and a brief explanation of the Department's decision;

    (c) The permit limitations;

    (d) The general and special permit conditions; and

    (e) A schedule of compliance, if applicable.

  (7) The final determination shall be available to the public for inspection and copying according to Regulation .01-1E of this chapter.

J. Notice of Final Determination.

  (1) When the Department is required to prepare a final determination under §I of this regulation, a notice of final determination shall be published according to Regulation .01-1E of this chapter.

  (2) The notice of final determination shall include:

    (a) The information required under §I(3)(a)—(b) of this regulation, including any change in permit limitations, conditions, or schedule of compliance;

    (b) A statement that the notice of final determination is available for inspection and copying;

    (c) The procedure for inspecting and copying the final determination;

    (d) A statement that a person may request a contested case hearing to appeal a final determination if the person makes factual allegations with sufficient particularity to demonstrate that the person is aggrieved by the final determination and the final determination is:

      (i) Legally inconsistent with any provisions of law applicable to the final determination being challenged, or

      (ii) Based upon an incorrect determination of a relevant and material fact;

    (e) A statement that a person requesting a contested case hearing shall submit a written request for adjudication within 15 days after the publication of the notice of final determination;

    (f) The procedure for requesting a contested case hearing; and

    (g) Other information the Department determines to be necessary for adequate public notification.

K. Request for Contested Case Hearings for General Permits.

  (1) A person may not request a contested case hearing on an individual discharge covered under a general permit adopted under the provisions of this chapter.

  (2) A person requesting a contested case hearing to appeal the final determination of the Department to issue a general permit shall:

    (a) Submit a written request in the manner specified in the notice of final determination within 15 days after publication of the notice of final determination; and

    (b) Provide documentation that the requirements of §I of this regulation were met.

  (3) Requests for a contested case hearing shall include:

    (a) The name, address, and telephone number of the person filing the request; (b) The particular factual allegations which demonstrate that the person is aggrieved by the final determination and the final determination is:

      (i) Legally inconsistent with any provisions of law applicable to the final determination being challenged; or

      (ii) Based on an incorrect determination of a relevant and material fact.

  (4) The Department shall process requests for contested case hearings according to State Government Article, Title 10, and Environment Article, Title 1, Annotated Code of Maryland.

#### Regulation .09 General Discharge Permits.

*COMAR 26.08.04.09*

A. General Discharge Permit for Stormwater Discharge Associated with Construction Activity.

  (1) Exception. Construction activity excluded under the Federal Act and regulated under COMAR 26.09.02 is not covered under this general permit.

  (2) Activities Covered. Activities covered under this general permit are new and existing stormwater discharges that are composed in whole or in part of discharges associated with construction activity as regulated under the Federal Act and Environment Article, Title 4, Subtitles 1 and 2, Annotated Code of Maryland.

  (3) Need for Additional Permits. Stormwater discharges which result from the completed construction authorized under this regulation may require additional authorization under other general permit regulations or an individual permit.

  (4) Application. Before the initiation of an activity covered under this permit, an applicant shall make application to the Department, including the payment of any fees.

  (5) Specific Requirements. A permittee shall comply with requirements to obtain approval for:

    (a) Erosion and sediment control plans required under Environment Article, Title 4, Subtitle 1, Annotated Code of Maryland; and

    (b) Stormwater management plans required under Environment Article, Title 4, Subtitle 2, Annotated Code of Maryland.

B. General Discharge Permit for StormWater Discharges Associated with Industrial Activity.

  (1) Exceptions. The following activities are not regulated under this general permit:

    (a) Industrial stormwater discharges with federal effluent guideline limitations;

    (b) Stormwater discharges associated with industrial activity from inactive mining or inactive oil and gas operations occurring on federal lands; and

    (c) Stormwater discharges for which the:

      (i) NPDES permit has expired, has been terminated, or has been denied; or

      (ii) Department requires an individual permit or a different general permit.

  (2) Activities Covered. Existing stormwater discharges that are comprised in whole or in part of stormwater runoff associated with industrial activity are covered.

  (3) Application. After the effective date of this regulation, an applicant shall make application to the Department, including the payment of any fees, for any existing or new discharge.

  (4) Specific Requirements. Stormwater discharge associated with industrial activity shall comply at all times with the provisions of:

    (a) Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland;

    (b) Environment Article, Title 9, Subtitle 3, Annotated Code of Maryland; and

    (c) The Federal Act.

C. General Permits for Municipal Separate Storm Sewer Systems.

  (1) Definitions. “Municipal separate storm sewer systems” means systems that convey stormwater runoff from municipalities as defined in the Federal Act or as designated by the Department in accordance with the Federal Act.

  (2) Required Permits. The Department shall promulgate general permits as necessary to meet the requirements of the Federal Act, including permits for:

    (a) Municipal separate storm sewer systems required to be permitted under the Federal Act; and

    (b) Those systems designated by the Department in accordance with the Federal Act.

D. Specific Requirements for Landfills Designed for Natural Attenuation of Leachate with No Discharge to Surface Waters other than Stormwater Run-off.

  (1) Landfills designed to achieve natural attenuation of leachate shall be designed, constructed, and operated in accordance with the specific provisions included in a permit issued by the Department pursuant to Environment Article, §9-204, Annotated Code of Maryland.

  (2) Stormwater control systems at landfills are regulated through the general permit provisions specified in Regulation .08C(1) of this chapter.

E. Specific Requirements for Subsurface Sewage Disposal Systems.

  (1) Subsurface sewage disposal systems shall include, but are not limited to, septic systems or aerated septic systems with appurtenant seepage pits or trenches, seepage pits, mound systems, or other disposal systems approved by the Department.

  (2) The systems shall be designed, installed, and maintained in accordance with the specific conditions included in the permit issued pursuant to Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland, and COMAR 26.04.02.

F. Ground Water Heat Pumps.

  (1) Persons operating or planning to install a ground water heat pump not authorized by a separate State discharge permit shall, upon request of the Department, provide information concerning the system as installed or planned to be installed. The information shall include a map or sketch of the site, indicating the location of the source well, the discharge point or well, the well permit number or numbers, and, if appropriate, the name of the receiving streams. This information may be submitted to the Department through the local county health department.

  (2) All permittees shall obtain a ground water appropriation permit from the Water Resources Administration and shall comply with all terms and conditions of that permit.

  (3) All permittees shall obtain a well construction permit from the Department or, if appropriate, the responsible county agency.

G. Grading or Filling Activities Not Otherwise Regulated by the Department. If applicable, permittees shall obtain a permit or license issued pursuant to the Natural Resources Article, §§8-803, 9-202, or 9-306, Annotated Code of Maryland.

H. General Discharge Permit for Surface Coal Mines and Related Facilities.

  (1) Exceptions. The following discharges are not covered under this general permit:

    (a) Discharges of toxic substances which exceed State water quality criteria for toxic substances;

    (b) Discharges which elevate temperature in Use III, Use III-P, Use IV, and Use IV-P streams;

    (c) Discharges of acid mine drainage from mine reclamation areas;

    (d) Discharges from coal mines commingled with other sources of wastewater, particularly wastes from underground mines; and

    (e) Discharges from underground coal mines.

  (2) Eligible Discharges. This permit covers all new and existing discharges of stormwater runoff and ground water seepage to surface waters of this State from:

    (a) Surface coal mines, including active mining areas, access roads, coal storage, and loading areas (tipples);

    (b) Independent coal storage and loading areas (tipples);

    (c) Coal preparation plants; and

    (d) Reclamation areas.

I. General Discharge Permit for Seafood Processors.

  (1) Exceptions. A discharge permit is not required for outdoor crab shedding operations.

  (2) Eligible Discharges. This permit covers the following new and existing discharges:

    (a) Wastewater from blue crab, oyster, and fish processing operations such as cleaning, preparing, and packing;

    (b) Auxiliary discharges, which are limited to noncontact cooling water, ice machine drainage, steam or cooling coil condensate, and inside crab shedding tray overflow; and

    (c) Stormwater runoff from processing or material handling.

J. General Discharge Permit for Mineral Mines, Quarries, Borrow Pits, and Concrete and Asphalt Plants.

  (1) Exceptions. This permit may not cover the following discharges:

    (a) Discharges from coal mines and associated facilities as regulated under 40 CFR 434; and

    (b) Discharges from industrial sand facilities that utilize HF flotation as regulated by 40 CFR §436.40.

  (2) Eligible Discharges. This permit covers all new and existing discharges of:

    (a) Infiltrated ground water pumped from mines to surface waters;

    (b) Wastewater from material processing to surface or ground waters;

    (c) Stormwater runoff to surface waters from mine sites (facilities classified within Standard Industrial Classifications 10 and 14), concrete plants (facilities classified within Standard Industrial Classification 32), and asphalt plants (facilities classified within Standard Industrial Classification 29);

    (d) Stormwater runoff to surface waters from industrial activities co-located or appurtenant to a permitted activity specified in §J(2)(c) of this regulation;

    (e) Wastewater from washing mixer trucks and concrete mixing equipment to surface or ground waters;

    (f) Miscellaneous wastewater from spillage at ready-mix plants to surface or ground waters; and

    (g) Wastewater from hydrodemolition to ground waters.

K. General Discharge Permit for Dewatering, Hydrostatic Testing, and Groundwater Remediation.

  (1) Exceptions. This permit may not cover the following discharges:

    (a) Discharges of any type from oil terminals;

    (b) Tank bottom wastewater discharges to ground waters of the State;

    (c) Wastewater from the washing of chemical and petroleum storage tanks, pipes, and pipelines; and

    (d) Wastewater discharges to ground water that, before treatment, contain concentrations of benzene, lead, or other substances in excess of toxicity characteristic leaching procedure (TCLP) concentrations as defined in COMAR 26.13.02.14.

  (2) Eligible Discharges. This general permit covers all new and existing discharges of:

    (a) Treated tank bottom wastewater from storage tanks used only for gasoline, kerosene, fuel oil, no. 6 oil, or aviation fuel to surface waters;

    (b) Wastewater from the flushing or hydrostatic testing of pipes, pipelines, or tanks, or wastewater from pipeline infiltration;

    (c) Water in excess of 10,000 gallons per day as a monthly average from the overflow, flushing, or dewatering of reservoirs, tanks, or pipelines used for the storage or delivery of untreated water;

    (d) Wastewater from cleaning or dewatering of vessels or structures used to store or convey potable water;

    (e) Stormwater discharges from storage tank containment structures;

    (f) Emergency discharges of potable water;

    (g) Extracted water from an aquifer test;

    (h) Wastewater from construction dewatering;

    (i) Foundation drainage which has been treated for any contaminants; and

    (j) Air stripping, activated carbon adsorption, or equivalently treated wastewater from groundwater remediation sites not covered by the General Discharge Permit of Treated Ground Water From Oil Contaminated Ground Water Sources to Surface or Ground Waters of the State.

L. General Discharge Permit for Swimming Pools and Spas.

  (1) Exceptions. This permit does not cover sanitary wastewater discharges associated with swimming pool and spa operations.

  (2) Eligible Discharges. This permit covers discharges of filter backwash, cleaning water, overflow, and drainage from lowering or emptying a public or private pool or spa to surface or ground water.

M. General Discharge Permit for Marinas.

  (1) Exceptions. This permit does not cover the following discharges:

    (a) Stormwater discharges that have shown, or may be reasonably expected to contribute to, a violation of a water quality standard;

    (b) Stormwater discharges for which the Department requires an individual permit or an alternative general permit; and

    (c) Sanitary wastewater discharges.

  (2) Eligible Discharges.

    (a) This permit covers the following discharges from marinas and boat maintenance facilities:

      (i) Stormwater runoff to surface waters from areas involved in boat maintenance including boat rehabilitation, mechanical repairs, painting, and fueling, and boat or equipment cleaning operations;

      (ii) Wastewater discharges to surface or ground waters from washing of boats and boat equipment; and

      (iii) Noncontact cooling water discharges such as from ice machines, refrigeration units, and other machinery to surface waters.

    (b) The discharge of 10,000 gallons per day or less of noncontact cooling water to ground water does not require a permit.

N. General Discharge Permit for Animal Feeding Operations.

  (1) Exceptions.

    (a) In locations or circumstances in which the Department concludes in its sole discretion that this general discharge permit does not adequately protect State waters, the Department may require a person otherwise eligible for this permit to apply for and obtain an individual discharge permit.

    (b) Large duck CAFOs with liquid manure handling systems are not eligible for coverage under this general permit.

  (2) Eligible Discharges. This permit covers:

    (a) Discharges from a CAFO;

    (b) Discharges from a MAFO; and

    (c) Discharges from an AFO that utilizes a spray irrigation system for application of liquid wastewater to the soil surface.

  (3) Public Process for CAFOs and MAFOs.

    (a) A NOI submitted by an AFO is subject to the public participation process described in this subsection.

    (b) “Plan” or “required plan” in this section means a CNMP, NMP, or conservation plan.

    (c) Notwithstanding Regulation .01-1E of this chapter, publication of public notices or public notification required by this regulation may be accomplished by posting on the Department's web site at www.mde.state.md.us.

    (d) The Department shall notify the public upon receipt of a NOI or a required plan by posting relevant information, including but not limited to facility name, location, size, type of operation, and date and type of document received, on the Department's web site.

    (e) The Department may require an applicant to place a copy of the NOI and required plans in the main branch of the public library, in the county in which the AFO is located, for the duration of any related public comment period.

    (f) The Department shall make available for review and copying an applicant's NOI and required plans in accordance with Regulation .01-1E(6) and (7) of this chapter.

    (g) The Department shall review the NOI and required plans and, based upon this review, determine whether they satisfy the requirements of the general permit.

    (h) When additional information is necessary to complete the NOI or to clarify, modify, or supplement previously submitted material, the Department may request that information from the permit applicant.

    (i) If the Department determines that the plans satisfy the requirements of the general permit, the Department shall prepare a preliminary approval identifying the terms of the plans that satisfy the general permit requirements.

    (j) The Department shall publish public notice of a preliminary approval of the required plans in accordance with §N(3)(c) of this regulation. The notice shall provide for a period of 30 days for public comment and shall specify how to review and copy the preliminary approval, NOI, and the required plans. For a CAFO, the notice shall also specify the procedure for making a written request for a public hearing regarding the preliminary approval of the terms of the required plans.

    (k) Public Hearing.

      (i) The Department shall schedule a public hearing on the preliminary approval for a CAFO when a written request for a public hearing is made within 20 days of the publication of notice of the preliminary approval.

      (ii) The Department may, at its discretion, schedule a public hearing on the preliminary approval for a MAFO or a CAFO.

      (iii) A public hearing regarding the Department's preliminary approval of the required plans shall follow the same procedures as those applicable to public hearings on tentative determinations set forth in Regulation .01-2B(5) and (6) of this chapter.

    (l) Final Approval of Required Plans.

      (i) The Department shall prepare and provide notice of its final approval of the required plans following the same procedures as those applicable to final determinations set forth in Regulations .01-3A and B of this chapter.

      (ii) Notwithstanding Regulation .08K(1) of this chapter, a person aggrieved by the Department's final approval of the required plans may request a contested case hearing.

      (iii) The form and content of a request for a contested case hearing shall be consistent with Regulation .08K(2) and (3) of this chapter. A contested case hearing conducted under this paragraph shall be limited to contesting the terms of the approved plans.

      (iv) When the Department grants final permit coverage to an AFO, the terms of the plans, as revised by the Department, are enforceable under the terms and conditions of the general permit.

      (v) The Department shall notify the AFO owner or operator of the terms and conditions of the plans that are approved by the Department and enforceable under the permit.

    (m) A MAFO that has submitted a complete NOI and all required plans may operate under the terms of the general permit pending the outcome of the public participation process and any contested case hearing, unless the Department determines that an unacceptable threat to public health, water quality, or aquatic resources may occur.

    (n) Revisions to Approved Plans. The Department shall follow the public participation procedures of this subsection when an AFO proposes a revision to its approved plans that is significant, as determined by the Department, or for a CAFO as specified under the Federal Act.

    (o) Interested Persons.

      (i) The Department shall maintain a list of persons who have requested direct notification of an NOI and related plan submittals, either for a specific AFO or for a geographic location or area.

      (ii) Upon receipt of a complete NOI or a corresponding required plan, the Department shall notify the interested persons either by electronic mail or U.S. mail that a document of potential interest has been received and that additional details may be available on the MDE web site.

      (iii) The Department shall provide a copy of the public notice of the preliminary approval in §N(3)(i) of this regulation to interested persons and provide them access to a copy of the preliminary approval via electronic mail or U.S. mail or through providing a link to the Department's web site.

      (iv) The Department shall also provide a copy of the notice of the preliminary approval to the persons identified in Regulation .01-2B(3)(a) and (b) of this chapter.

    (p) Requests for confidential treatment of information shall be handled according to Regulation .01-1E(8) of this chapter.

    (q) This subsection does not affect the authority and discretion of the Department to require an individual permit.

O. StormWater and Hydrostatic Test Water from Oil Terminals.

  (1) Exceptions. This permit does not cover discharges:

    (a) Of industrial process wastewater from oil terminals or hydrostatic test water from non-oil terminals; or

    (b) From oil terminals with a total aggregate tank capacity of at least 5 million gallons of oil which have marine or pipeline transfer capabilities.

  (2) Eligible Discharges. This permit covers all new and existing discharges of stormwater from storage tank dike and loading rack areas and hydrostatic test water from oil terminals to surface or ground waters of the State.

P. Treated Ground Water from Oil-Contaminated Ground Water Sources.

  (1) Exceptions. This permit does not cover discharges of treated ground water contaminated with other volatile organic compounds or hazardous material (such as, but not limited to, TCE, TCA, DCE) other than oil.

  (2) Eligible Discharges. This permit covers all new and existing discharges of treated ground water from oil-contaminated ground water sources which discharge to surface or ground waters of the State.

#### Regulation .09-1 Fees for General Discharge Permits.

*COMAR 26.08.04.09-1*

A. Applicability.

  (1) Intent. The Department may charge nonrefundable fees for certain general discharge permits as specified in this regulation.

  (2) Exemptions. Discharges associated with the following dischargers are exempt from this regulation:

    (a) Publicly owned treatment works;

    (b) Other treatment works which treat only sewage; and

    (c) Facilities or persons culturing or raising aquatic organisms in enclosed systems discharging less than 1,000,000 gallons per day.

B. General.

  (1) Fees are based on the anticipated cost of program activities related to management of discharge to the waters of this State.

  (2) Persons engaging in an activity covered under a general permit for which a fee or fees are charged shall submit a notice of intent (NOI) form requesting inclusion under the general permit, accompanied by the appropriate fees, before the initiation of the activity.

  (3) The required fees shall be submitted with the Department's approved notice of intent (NOI) forms.

  (4) The Department may refuse to complete processing on any NOI if the applicant fails or refuses to pay the application fee.

  (5) When the Department questions a fee as submitted by the applicant, the Department shall notify the applicant in writing and a meeting shall be scheduled, if necessary, to resolve the dispute.

  (6) Fees collected by the Department under this regulation shall be paid into the Clean Water Fund. The fees shall be used for activities that are related to the management of discharge to the waters of this State.

  (7) The Department may require the retroactive payment of a general permit fee if the general permit becomes effective before the adoption of a regulation supporting this fee, if the fee was specified in the general permit at the time of general permit issuance.

C. Fees for General Storm Water Discharge Permits.

  (1) Storm Water Associated with Industrial Activity.

    (a) The permit fee for storm water discharges associated with industrial activity shall be either a one-time payment of $550 or an annual payment of $120. The $550 fee shall be submitted with the NOI. The alternative $120 annual payment shall be submitted with the NOI and annually by July 1 of each year.

    (b) Facilities which began operating after September 29, 1995, and were registered under the original general permit for storm water associated with industrial activity will be credited $100 for each full calendar year they did not operate between January, 1993, and December, 1996.

    (c) The fee for facilities which begin operating after October 1, 1997, shall be prorated on a monthly basis.

  (2) The application fees for storm water discharges associated with construction activity are as follows:

D. Fee for Surface Coal Mine and Related Facilities Discharge.

  (1) Annual Permit Fee.

  (2) The annual permit fee is based on the total flow volume of effluent discharged from the facility, as determined by the storm water runoff volume calculation in §D(3) of this regulation.

  (3) Calculation of Storm Water Runoff Volume. Storm water runoff volume is determined by the following method:

    (a) Annual storm water runoff volume (gallons/day) = Annual rainfall (feet) × drainage area (square feet) × 7.48 × 0.15;

    (b) Average storm water runoff volume (gallons/day) = Annual storm water runoff volume divided by 365.

  (4) Alternative Storm Water Calculation. As an alternative to the method in §D(3) of this regulation, the permittee may submit a report to the Department which contains calculations of the average daily storm water runoff from the permitted facility. The Department shall make the final decision in determining the acceptability of the alternative method.

E. Fee for Discharges from Seafood Processors. Permit Fee.

  (1) The permittee shall pay an annual permit fee. The first annual fee payment shall be submitted to the Department with the NOI form.

  (2) The permit fee is based on the total volume of effluent discharged from the facility. The fees are:

  (3) The Department will bill the permittee annually, and the fee shall be paid each year by the anniversary date of the permit.

F. Fees for Discharges from Mineral Mines, Quarries, Borrow Pits, and Concrete and Asphalt Plants.

  (1) Exemptions. Mineral mines, quarries, and borrow pits which discharge mining wastewater, process generated wastewater, and storm water to ground water only are exempt from the permit fee.

  (2) Permit Fee.

    (a) The permittee shall pay an annual permit fee. The first annual fee payment shall be submitted to the Department with the NOI form.

    (b) The permit fee is based on the total volume of effluent discharged from the facility. The fees are:

    (c) The Department will bill the permittee annually, and the fee shall be paid each year by the anniversary date of the permit.

G. Fees for Discharges from Dewatering, Hydrostatic Testing, and Groundwater Remediation.

  (1) Exemptions. Discharges from tanks, pipes, and other liquid containment structures associated with drinking water supplies are exempt from the permit fee.

  (2) Permit Fee.

    (a) The permittee shall pay a permit fee with the NOI form and each additional year the permit is held.

    (b) The discharge permit fee is based on the total volume of effluent discharged from the facility. The permit fees for the first and subsequent years are:

    (c) The Department will bill the permittee annually, and the fee shall be paid each year by the anniversary date of the permit.

H. Fee for Discharges from Swimming Pools and Spas; Notice of Intent (NOI) Fee. Persons seeking coverage under this general permit shall submit an NOI together with a fee of $100 for each facility. A fee is not required with the NOI submission for the registration of pools owned by municipalities, counties, or the State. Owners of pools or spas serving individual residences are not required to submit an NOI or pay a fee.

I. Fee for Discharges from Marinas; NOI Fee.

  (1) Persons seeking coverage under this general permit shall submit an NOI together with the following fee depending upon the number of slips available at the marina:

  (2) Facilities already registered under 92-GP-0001 shall pay the lesser of the above fee or a fee of $350 before September, 1997, to register for this permit.

J. Fee for Discharges from Concentrated Animal Feeding Operations.

  (1) A CAFO shall pay an annual permit fee. The first annual fee payment shall be submitted to the Department with the NOI form. The Department will bill the permittee annually, and the fee shall be paid annually not later than the anniversary of the effective date of the permit. The following permit fees shall be collected based on the size category of the facility defined in Table 1 under Regulation 26.08.03.09A(3):

  (2) If the Department questions the fee submitted by the permittee, the Department shall follow the procedure in §B(5) of this regulation.

K. Storm Water and Hydrostatic Test Water from an Oil Terminal and Treated Ground Water NOI Fees.

#### Regulation .10 Permit Review and Modification.

*COMAR 26.08.04.10*

A. General.

  (1) The Department may review or modify any State discharge permit or other written authorization describing required performance for specific activities and operations under the procedures set forth in this regulation.

  (2) When a permit is modified, only the conditions subject to modification are reopened.

B. Permit Review. The Department of the Environment may review any permit which it has issued in order to determine whether the:

  (1) Conditions of the permit have been complied with; and

  (2) Permit should properly be modified, suspended, or revoked.

C. Minor Modification of Permits.

  (1) The Department may modify a permit to make minor modifications in the permitted activity.

  (2) A minor modification requested by a permittee shall be in writing.

  (3) Minor modifications may only:

    (a) Correct typographical errors;

    (b) Require more frequent monitoring or reporting by the permittee;

    (c) Change an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement;

    (d) Allow for a change in ownership or operational control of a facility when the Department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittees has been submitted to the Department;

    (e) Change the construction schedule for a discharger which is a new source if the change does not affect the discharger's obligation to have all pollution control equipment installed and in operation before discharge;

    (f) Delete a point source outfall when the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits; or

    (g) Incorporate conditions of a pretreatment program that has been approved in accordance with COMAR 26.08.08.

D. Major Permit Modification Request by Permittee.

  (1) A permittee may request modification of the permit by submitting a written request to the Department.

  (2) Upon receipt, the Department shall review the request and promptly notify the permittee of its decision.

  (3) If the Department decides to grant the permittee's request, permit modifications shall be processed by the Department according to Regulations .01—.02-4 of this chapter.

  (4) The Department of the Environment, upon written request of the applicant, may revise or modify a schedule of compliance without a hearing if:

    (a) It determines good and valid cause exists for the revision or modification, such as an act of God, materials shortage, or other event over which the permittee has no control; and

    (b) Within 30 days following receipt of notice from the Department, the Administrator of the EPA, or his designated representative, does not object in writing.

#### Regulation .10-1 Permit Suspension and Revocation.

*COMAR 26.08.04.10-1*

A. Action on Permit Violation.

  (1) Under conditions other than emergency, if the Department determines that there has been a violation of any term or condition of a permit, the Department shall serve a written complaint upon the permittee specifying the nature of the violation. Subsequent to, or concurrent with, service of the complaint, the Department may exercise one of the following options, under the provisions of Environment Article, §9-335, Annotated Code of Maryland:

    (a) Issue an order requiring necessary corrective action to be taken within the time prescribed in its order. A person named in the order may request in writing a hearing before the Department not later than 10 days after the date the order is served, in which case a hearing shall be scheduled within 10 days from receipt of the request. A decision shall be rendered within 10 days from the date of the hearing.

    (b) Require the alleged violator to file a written report regarding the alleged violation.

    (c) Require the alleged violator to appear before the Department at a time and place the Department specifies to answer the charge outlined in the complaint.

    (d) Require the alleged violator to file a written report regarding the alleged violation and appear before the Department at a time and place the Department specifies to answer the charges outlined in the complaint.

  (2) Every order the Department issues under this regulation shall be served on the person affected according to Environment Article, §9-336, Annotated Code of Maryland. The order shall become effective immediately according to the order's terms upon service.

  (3) If the Department exercises the option provided by §A(1)(b) of this regulation, the alleged violator may request in writing a hearing before the Department not later than 10 days after the date that notice of the requirement of the written report is served.

  (4) The appearance of the alleged violator before the Department under the options provided by §A(1)(c) or (d) of this regulation constitutes an administrative hearing and the party has the right of any party in a contested case provided in State Government Article, Title 10, and Environment Article, Title 1, Annotated Code of Maryland.

  (5) If the Department exercises any of the options provided by §A(1)(a), (c), or (d) of this regulation, the Department shall notify the permittee of the consequences of not attending the hearing or, in the case of option §A(1)(b), not filing the written report.

  (6) If the Department exercises the option provided by §A(1)(b), (c), or (d) of this regulation, it may not issue an order requiring corrective action to be taken as a result of the alleged violation before expiration of the time set for filing any report and holding any hearing required under these sections. After that, the Department may issue an order requiring necessary corrective action be taken within the time prescribed in the order. A person is not entitled to a hearing before the Department as a result of this order.

  (7) Notice of a hearing or of a requirement that a written report be filed shall be served on the alleged violator under Environment Article, §§9-335 — 9-337, Annotated Code of Maryland, not less than 10 days before the time set for the hearing or filing of a report.

  (8) Requests for hearings shall be processed and the hearings conducted according to State Government Article, Title 10, and Environment Article, Title 1, Annotated Code of Maryland, and the requirements of this chapter.

B. Administrative Action With Regard to Permit. If the permittee fails to comply with the requirements of an administrative order under §A(1) of this regulation, a permit may be modified or suspended. Modification or suspension of a permit shall be effective without stay upon receipt by the permittee of appropriate notice. Upon written request for a hearing by the permittee in accordance with the procedure specified in §A(3) of this regulation, a hearing shall be held, but the administrative action may not be stayed pending the hearing.

C. Emergency Action.

  (1) The Department may summarily modify or suspend a permit when the Department finds that the protection of public health, safety, or welfare requires immediate emergency action.

  (2) The emergency modification or suspension of a permit shall be effective without stay upon receipt by the permittee of appropriate notice.

  (3) The Department shall notify the permittee in writing that the permit has been modified or suspended for emergency reasons. The notice shall include:

    (a) The finding of necessity for suspension or modification;

    (b) The reasons that support the findings;

    (c) A statement that the permittee has the right to a hearing concerning the Department's action;

    (d) A statement that the permittee has 10 days to request a hearing;

    (e) The procedure for requesting a contested case hearing;

    (f) The consequences of not requesting or not attending a hearing; and

    (g) A statement that the permit suspension or modification is effective without stay upon receipt by the permittee.

D. Permit Revocation.

  (1) A permit may be revoked after notice to the permittee and opportunity for a hearing, if the Department determines that any of the following have occurred:

    (a) The permittee has failed to comply with the requirements of an administrative action according to §A, B, or C of this regulation;

    (b) False or inaccurate information was contained in the application for the permit;

    (c) Conditions or requirements of the permit have been or are about to be violated;

    (d) Substantial deviation from plans, specifications, or requirements has occurred;

    (e) The permittee has failed to permit an authorized representative of the Department upon presentation of proper credentials to:

      (i) Enter at any reasonable time upon permittee's premise where a point source is located, pertinent operations are conducted, or records are required to be kept under terms and conditions of the permit;

      (ii) Have access to and copy any records required to be kept under terms and conditions of the permit;

      (iii) Inspect facilities to ensure compliance with the conditions of the permit;

      (iv) Inspect any monitoring equipment or method required in the permit; or

      (v) Sample any discharge or pollutants;

    (f) Change in conditions exists requiring temporary or permanent reduction or elimination of the permitted operation or discharge;

    (g) Any State or federal water quality stream standard or effluent standard has been or is threatened to be violated; or

    (h) Any other good cause exists for revoking the discharge permit.

  (2) The permittee has the right to a hearing concerning the revocation of the permit upon a request in writing not later than 10 days after the date on which the revocation notice is served. The Department shall schedule a hearing within 10 days from receipt of the request and give a decision within 10 days from the date of the hearing.

E. The hearings in §§B, C, and D of this regulation shall be conducted according to State Government Article, Title 10, and Environment Article, Title 1, Annotated Code of Maryland.

#### Regulation .11 Discharge Permit Fees.

*COMAR 26.08.04.11*

A. General Requirements.

  (1) Fees collected by the Department under this regulation shall be paid into the Maryland Clean Water Fund. The fees shall be used for activities that are related to identifying, monitoring, and regulating the proper discharge of effluent into waters of the State including program development of these activities.

  (2) Persons or facilities holding or obtaining State discharge permits, except for those in categories listed below, shall pay both an annual permit fee and an application fee, including any additional cost as required in §C(10) of this regulation:

    (a) Publicly owned treatment works;

    (b) Other treatment works which treat only sewage;

    (c) Persons covered under a general permit as described in Regulations .08 and .09 of this chapter; or

    (d) Facilities or persons culturing or raising aquatic organisms in enclosed systems discharging less than 1 million gallons per day.

  (3) Both permit fees and application fees are based on the total flow of all effluents discharged from a facility except for:

    (a) Uncontaminated stormwater runoff; and

    (b) Thermal discharge flows which have previously been evaluated by the Department in accordance with COMAR 26.08.03.03C(2).

B. Permit Fees.

  (1) The permit fee is based on the anticipated:

    (a) Cost of monitoring and regulating the permitted facility; and

    (b) Needs for program development activities related to management of discharge of pollution to waters of this State.

  (2) The permit fee is based on the total flow volume of effluent discharged from the facility. The fees are as follows:

  (3) The Department will calculate permit fees annually and will bill the permittee. The permit fees shall be paid within 30 days of receipt of the bill, unless the permittee questions the calculations or assumptions, or both, used to arrive at the fee. In which case, the Department shall be notified in writing within 15 days of receipt of the bill, and a meeting shall be scheduled, if necessary, within 10 days to resolve the dispute.

  (4) Permit fees shall be paid by July 1 of each year to cover the expenses of the ensuing fiscal year. Fees for those permits which will be in effect for less than the full fiscal year shall be prorated for the number of months of the fiscal year during which the permit is in effect.

  (5) The Department may refuse to issue or renew a discharge permit or may revoke a discharge permit if the applicant fails or refuses to pay the permit fee.

C. Application Fees.

  (1) An application fee shall be paid for:

    (a) An application for a new discharge permit;

    (b) An application to renew a discharge permit; or

    (c) A request to modify a discharge permit if the modification is considered significant by the Department.

  (2) The application fee is based on the cost of the permit procedure.

  (3) The minimum application fee is $50.

  (4) The application fee is calculated by the following formula: Application fee = volume fee x industry factor x water use factor.

  (5) Volume Fees.

    (a) Volume fees are determined as follows:

    (b) Volume fees for permit modifications are based only on the discharge volume associated with those operations affected by the modification.

  (6) Industry Factors.

    (a) The industry factors are determined as follows:

    (b) Facilities which wash cars, trucks, or other vehicles are not considered to be primary industries for the purposes of §C(6).

  (7) Water Use Factor.

    (a) The water use factor is determined as follows:

    (b) When a facility has more than one type of water use, the highest of the applicable water use factors should be used.

  (8) The Department will calculate the application fee upon receipt of an application for a new permit, permit renewal, or permit modification and will bill the applicant. The application fee shall be paid within 30 days of receipt of the bill, unless the permittee questions the calculations or assumptions, or both, used to arrive at the fee. In which case, the Department shall be notified in writing within 15 days of receipt of the bill, and a meeting shall be scheduled, if necessary, within 10 days to resolve the dispute.

  (9) The Department may refuse to complete processing on any new or renewed permit or on any permit modification if the applicant fails or refuses to pay the application fee.

  (10) In addition to the application fee calculated in accordance with §C(4) of this regulation, the Department shall assess the applicant for any cost associated with evaluating or reviewing mixing zone studies, variance petitions, site-specific criteria studies, chemical or biological translator studies, or any other studies submitted as part of an application to determine discharge permit requirements. For the purposes of this assessment:

    (a) The minimum fee for each component (for example, mixing zone, variance, etc.) will be established at $5,000; and

    (b) The Department shall:

      (i) Obtain and provide to the applicant an estimate for any additional costs incurred as part of the evaluation or review,

      (ii) Obtain the applicant's concurrence, and

      (iii) Bill the applicant before the beginning of the evaluation or review.

D. Calculation of Stormwater Runoff Volume. Stormwater runoff volume shall be determined by the following method:

  (1) Annual stormwater runoff volume = Annual rainfall (feet) x drainage area (square feet) x 7.48 x runoff coefficient;

  (2) Average stormwater runoff volume = Annual stormwater runoff volume divided by 365;

  (3) As an alternative to this method, the permittee may submit a report to the Department which contains calculations of the average daily stormwater runoff from the permitted facility.

E. For storm water discharges eligible for coverage under Regulation .09 of this chapter, the portion of the permit fee calculated in Regulation .11 of this chapter may not exceed $100 per year.

### Chapter 05 — Certification of State Water Quality Laboratories

**Authority:** Environment Article, Title 9, Subtitle 10, Annotated Code of Maryland

**Administrative History:** Effective date: November 21, 1983 (10:23 Md. R. 2063)

**Administrative History:** Chapter recodified from COMAR 10.10.04 to COMAR 26.08.05

**Administrative History:** Regulations .01—.16 repealed and new Regulations .01—.18 adopted effective July 21, 2014 (41:14 Md. R. 800)

#### Regulation .01 Scope.

*COMAR 26.08.05.01*

The purpose of these regulations is to provide a procedure by which the Department of the Environment may certify that water quality laboratories are capable of performing in an acceptable manner microbiological, chemical, physical, and radiochemical analyses on water samples from public water supplies. Since owners of public water supplies are required through various State and federal programs to monitor the quality of drinking water in their systems, it is necessary to have available water quality laboratories that produce data recognized as valid by the enforcement agencies. These regulations establish standards of operation for these water quality laboratories.

#### Regulation .02 Incorporation by Reference.

*COMAR 26.08.05.02*

A. In this chapter, the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) Code of Federal Regulations (CFR) — 40 CFR 141 (July 1, 2013):

    (a) Record Maintenance (40 CFR §141.33) revised July 1, 2010;

    (b) Lead and Copper Rule (40 CFR §§141.80 — 141.91) revised July 1, 2010; and

    (c) Reporting Requirements (40 CFR §141.31).

  (2) Manual for the Certification of Laboratories Analyzing Drinking Water (EPA 815-R-05-004, January 2005) and Supplement 1 to the Fifth Edition of the Manual for the Certification of Laboratories Analyzing Drinking Water (EPA 815-F-08-006, June 2008).

#### Regulation .03 Definitions.

*COMAR 26.08.05.03*

A. “Analyst” means a person responsible for performing tests and reporting analytical results.

B. “Certification Authority” means the Secretary or the Secretary’s designee who has signature authority for all certification decisions.

C. “Certification officers” means the Department personnel who have the responsibility of certifying water quality laboratories under their purview.

D. “Denial” means a refusal of certification for a specific method or the analysis of specific parameters, or refusal of initial certification for a water quality laboratory.

E. “Department” means the Department of the Environment.

F. “Director” means director of a laboratory.

G. “Laboratory” means a water quality laboratory.

H. “Laboratory quality assurance” means an integrated system of management activities involving planning, quality control, quality assessment, reporting, and quality improvement to ensure that laboratory results meet defined standards of quality with a stated level of confidence.

I. “NELAP” means the National Environmental Laboratory Accreditation Program, a program operated by TNI to provide certification for environmental laboratories.

J. “Person” means an individual, corporation, company, association, partnership, state, county, municipal corporation, federal agency, special taxing area, or any other entity.

K. “Provisionally certified” means a certification status for a laboratory that has deficiencies but demonstrates its ability to consistently produce valid data within the acceptance limits specified in the National Public Drinking Water Regulation (NPDWR), and within the policy required by their certification authority.

L. “Quality Assurance Manual” means a document that describes the water quality laboratory’s Quality Assurance Program, which includes the organizational structure, policies, and procedures for training, sampling, reporting, corrective action, ethics, preventative maintenance, pollution control, and disposal.

M. “Quality assurance officer” means the laboratory personnel responsible for keeping the laboratory’s Quality Assurance Manual updated, and ensuring that the quality assurance practices are implemented.

N. “Revocation” means a cancellation of a valid laboratory certification or for a specific approved drinking water method.

O. “Secretary” means the Secretary of the Department of the Environment.

P. “TNI” means The NELAC Institute. The institute is a nonprofit organization for the development of standards for the accreditation of laboratories and the evaluation and approval of accreditation bodies.

Q. “Water quality laboratory” means a facility that examines public drinking water for the purpose of identifying or measuring microbiological, chemical, physical, or radiochemistry parameters to determine its compliance with, or produces laboratory data for enforcement of, the federal Safe Drinking Water Act or State standards or public drinking water.

R. “Water quality laboratory supervisor” means a person who directs the day-to-day activities of a water quality laboratory and is responsible for assuring the quality of laboratory results.

#### Regulation .04 Certification for a Water Quality Laboratory.

*COMAR 26.08.05.04*

A. A water quality laboratory shall obtain a certification from the Department before the water quality laboratory may analyze compliance samples in this State.

B. The Department shall certify a water quality laboratory that meets the requirements of this chapter and Environment Article, Title 9, Subtitle 10, Annotated Code of Maryland.

C. Laboratory Certificate.

  (1) The Department shall identify in the certificate the parameters and test methods for which the water quality laboratory is certified.

  (2) The water quality laboratory shall conspicuously display its certificate in a location visible to the public at the laboratory.

  (3) The Department may approve, deny, or classify as provisional parameters and test methods requested for certification by the water quality laboratory.

D. Water quality laboratories shall obtain a USEPA identification number from the Office of Ground Water and Drinking Water Technical Support Center.

E. A laboratory shall analyze a minimum of one drinking water compliance sample per year to be eligible for certification or recertification as a water quality laboratory.

F. Certificates are nontransferable between water quality laboratories, laboratory locations, or water quality laboratory supervisors.

G. Only a water quality laboratory certified pursuant to these regulations may be called a certified water quality laboratory, and a water quality laboratory may not represent to the public by title, description of services, methods or procedure, or otherwise make any statement, written or oral, intended or likely to mislead the public with respect to its certification status.

H. The Department may not approve the initial certification for a parameter or test method for an in-State laboratory until the Department has inspected the laboratory. An on-site evaluation will be performed in accordance with Regulation .08 of this chapter.

#### Regulation .05 General Requirements for a Certified Water Quality Laboratory.

*COMAR 26.08.05.05*

A. Quality Assurance Manual — Minimum Criteria.

  (1) Space Requirements. Each certified water quality laboratory shall have adequate space, facilities, and equipment to provide test results with accuracy, precision, and safety.

  (2) Use of Approved Procedures. All certified water quality laboratories shall use analytical procedures approved by the Certification Authority or the U.S. Environmental Protection Agency.

  (3) Collection and Preservation Procedures.

    (a) A water quality laboratory shall collect and preserve water samples in accordance with procedures approved by the U.S. Environmental Protection Agency for the analysis of drinking water samples as incorporated by reference in Regulation .02 of this chapter, and “Standard Methods for the Examination of Water and Wastewater” as approved by U.S. Environmental Protection Agency, American Public Health Association, National Technical Information Service, or other approved agency.

    (b) A water quality laboratory shall identify and describe its sample collection procedures in its Quality Assurance Manual.

    (c) Water samples collected for the purpose of compliance with these regulations shall be collected by an individual approved by the Department.

    (d) A water quality laboratory that is certified shall accept only samples that are properly labeled, and for which there is assurance that the samples have been collected, preserved, processed, stored, and transported in such a manner as to assure the identity and the stability of the sample with respect to the requested tests or analyses, or if the stability of the sample has not been assured, the water quality laboratory shall refuse the sample.

    (e) A supervisor of a certified water quality laboratory shall implement and document sample rejection policies and procedures for each sample that is not suitable for analysis.

  (4) Reporting of Laboratory Results.

    (a) A water quality laboratory report of analytical results shall be signed by the water quality laboratory supervisor or the supervisor’s designee.

    (b) Internal water quality laboratory records shall identify the person actually performing the analyses and the Maryland Laboratory Identification Number. The water quality laboratory shall make internal water quality laboratory records available to the Department.

    (c) When a water quality laboratory reports compliance results on behalf of a public water system, the water quality laboratory shall comply with the reporting requirements specified in 40 CFR §141.31.

  (5) Tests to be Performed by Qualified Analysts. The water quality laboratory supervisor shall assure that all tests are performed by qualified analysts.

  (6) Supervisors Limited to Two Laboratories. A water quality laboratory supervisor may not be responsible for the supervision of more than two certified water quality laboratories.

  (7) Maintenance of Laboratory Records. Each certified water quality laboratory shall comply with the following requirements:

    (a) A suitable record of each test result shall be kept for a period of at least 5 years or until the next certification data audit is completed;

    (b) If the laboratory reports on behalf of a public water system, records for chemistry and radiochemistry shall be held for 10 years (40 CFR §141.33) and records for lead and copper shall be held for 12 years (40 CFR §141.91);

    (c) All records shall be maintained in a manner that permits ready identification and accessibility;

    (d) Certified water quality laboratory records and reports shall identify samples sent to other certified water quality laboratories for analyses, and shall identify the certified water quality laboratory performing the test; and

    (e) Laboratory records shall be available to the Department for inspection.

  (8) Changes in ownership, mergers, or laboratory closures do not eliminate the requirements in §A(7) of this regulation.

B. The laboratory shall implement the provisions of the Quality Assurance Manual.

#### Regulation .06 Application for Certification.

*COMAR 26.08.05.06*

A. An application is required for:

  (1) Certification for microbiology, chemistry, or radiochemistry; or

  (2) Renewal of certification.

B. An application for water quality laboratory certification shall be submitted to the Department on a form provided by the Department, and shall include, but not be limited to, the following information:

  (1) Name, address, and valid phone number of the water quality laboratory;

  (2) Name of the water quality laboratory owner or director;

  (3) A listing of the tests for which certification is requested;

  (4) Description of facilities, equipment, and methodology;

  (5) The name, education, experience, and training of the water quality laboratory supervisor;

  (6) The name, education, experience, and training of all water quality laboratory analysts;

  (7) The approximate number of tests by category performed annually by the water quality laboratory;

  (8) The laboratory’s Quality Assurance Manual;

  (9) Valid Federal Employer Identification Number (FEIN) as required by Environment Article, §1-203, Annotated Code of Maryland;

  (10) A copy of the valid and current water quality laboratory certification that has been issued by any other state or by NELAP, as applicable;

  (11) Proficiency test results for each certified parameter and approved test method; and

  (12) Fees, if applicable.

C. The laboratory owner, director, or quality assurance officer shall complete fully and sign the application.

#### Regulation .07 Fees.

*COMAR 26.08.05.07*

A. A certified water quality laboratory in the State of Maryland, except a federal, State, or a local government laboratory, shall pay an annual certification fee of $250 plus $10 for each specific test and parameter combination for which certification is requested.

B. An out-of-State water quality laboratory shall pay a $400 annual certification fee for all parameters certified by their home state or NELAP accrediting body.

C. The applicant for certification shall pay the fee at the time an application for certification or renewal of certification is submitted to the Department.

D. If a water quality laboratory submits its renewal application after the expiration date of its certification, it shall pay a late fee of $100.

#### Regulation .08 On-Site Evaluation.

*COMAR 26.08.05.08*

A. The Department may perform announced, or unannounced, on-site evaluations of the premises and operations of a water quality laboratory that is currently certified or that has applied for certification.

B. During an on-site evaluation, the Department may evaluate the adequacy of the quality assurance program, qualifications of personnel, adequacy of equipment, adequacy of the supervision, and compliance with these regulations.

C. An in-State water quality laboratory may not analyze regulated drinking water contaminants until the Department has conducted an on-site evaluation.

D. The Department may revoke the certification of a laboratory that refuses access for the on-site evaluation.

E. The water quality laboratory shall notify the Department of any on-site evaluations performed by other states or third-party organizations that include the review of drinking water test methods.

#### Regulation .09 Personnel Qualifications.

*COMAR 26.08.05.09*

A. The water quality laboratory shall have staff that is trained in the approved drinking water methods to ensure that the water quality laboratory generates valid and accurate test results.

B. To maintain certification, a water quality laboratory shall continue to meet the education and training criteria identified in the Manual for the Certification of Laboratories Analyzing Drinking Water, which is incorporated by reference in Regulation .02 of this chapter.

C. Water Quality Laboratory Supervisor.

  (1) The supervisor of a certified water quality laboratory performing chemical analyses on water samples shall have a bachelor's degree in chemistry or a bachelor's degree in a closely related science with a minimum of 12 semester hours of chemistry work and a minimum of 2 years experience in the performance of chemical tests routinely performed by the water quality laboratory except as allowed under §D of this regulation.

  (2) The supervisor of a certified water quality laboratory performing microbiological analyses on water samples shall have a bachelor's degree in microbiology or a bachelor's degree in a closely related science with a minimum of one college level microbiology course or equivalent and a minimum of 2 years experience in the performance of microbiological tests routinely performed by the water quality laboratory except as allowed by §D of this regulation.

D. Minimum Education Waiver.

  (1) The certification officer may waive the minimum education requirements as specified in the Manual for the Certification of Laboratories Analyzing Drinking Water on a case-by-case basis for experienced analysts or water quality laboratory supervisors.

  (2) If a waiver is granted, the certification officer shall document the decision and justification for the waiver in writing.

  (3) The waiver is not transferrable to another water quality laboratory and may be subject to additional review or approval

  (4) A water quality laboratory shall keep a copy of the waiver available for inspection.

#### Regulation .10 Laboratory Quality Assurance Program.

*COMAR 26.08.05.10*

A. Quality Assurance Manual.

  (1) Each certified water quality laboratory shall establish a quality assurance program consistent with U.S. Environmental Protection Agency Laboratory Certification Manual criteria or with TNI standards, if applicable.

  (2) A water quality laboratory’s Quality Assurance Manual shall include a description of its quality assurance program.

  (3) The quality assurance officer for a laboratory is responsible for maintaining the quality assurance manual.

  (4) A water quality laboratory shall submit its Quality Assurance Manual for review to the Department as part of the initial certification application.

  (5) A water quality laboratory shall submit in writing any revisions to a Quality Assurance Manual if there is a change in laboratory operations or if the Quality Assurance Manual is requested by the Department.

B. An acceptable quality assurance program shall include the following:

  (1) A preventive maintenance program that ensures proper functioning of all instruments and equipment;

  (2) Regular operational checks and calibrations to assure proper operation and standardization of equipment, instruments, and reagents;

  (3) Routine testing of standard reference samples and other quality control materials. Quality control checks on reagents and media utilized in the performance of tests;

  (4) Maintenance of quality control records, which will support the reliability of all procedures performed and which shall be kept on file and readily available for a period of 5 years;

  (5) Satisfactory participation in a proficiency test program administered under NELAP or a TNI approved accredited proficiency test body, to be performed for every method and parameter requested for certification; and

  (6) The analysis of proficiency testing samples at a frequency necessary to evaluate the performance of any certified water quality laboratory.

C. The water quality laboratory supervisor shall assure that a copy of the results of the proficiency testing analyses are forwarded directly to the Department from the approved proficiency test provider within 30 days of receipt.

D. Proficiency Testing Evaluation.

  (1) If there is not a valid proficiency test for each parameter and test method combination for the review period, the Department shall downgrade the laboratory’s certification to a provisional status for the parameter and test method.

  (2) Provisional certification for a parameter and test method is valid for 90 days.

  (3) If the laboratory does not submit passing proficiency test results within the review period, the Department may revoke or deny certification for the parameter or test method that does not have a valid proficiency test report.

E. Test results may not be reported on samples when quality control samples included in the analysis are found to be outside acceptable analytical limits. The entire batch of samples in the test run shall be retested and analytical data may not be reported unless quality control samples for the test run are within acceptable limits.

F. The supervisor shall certify that each test or analysis is accurate and valid and that the test or analysis was performed in accordance with approved EPA methods for drinking water.

#### Regulation .11 Evaluation Procedure.

*COMAR 26.08.05.11*

A. Documentation of Corrective Actions.

  (1) If a certified water quality laboratory is found to be in noncompliance with these regulations, the water quality laboratory shall submit documentation of corrective action to the Department.

  (2) If a certified water quality laboratory is found to be in noncompliance with an on-site evaluation by another state or third-party organization, the laboratory shall forward copies of the associated on-site evaluation report or reports, the laboratory’s follow up corrective actions, and notifications of certification status.

B. Adequacy of Corrective Action. On receipt of documentation of corrective action, the Certification Authority shall determine the adequacy of the action taken. If the corrective action is not adequate, the water quality laboratory may be required to test supplemental proficiency test samples or submit to an on-site inspection, or both. If the results of the on-site inspection or the results obtained through testing of unknown samples are unacceptable, the water quality laboratory shall be downgraded for the specific tests for which results are unacceptable or procedures, facilities, or records are not in compliance.

C. Continued Certification of Other Tests. The certified water quality laboratory shall continue to be certified for performance of all tests for which it has demonstrated satisfactory performance through testing of unknown samples and through compliance with these regulations.

D. Notification About Discrepancies. The Department shall advise owners and water quality laboratory supervisors in writing of all certified water quality laboratory discrepancies which may lead to revocation of certification, or a downgrade to provisional status.

#### Regulation .12 Downgrading of Certification for Performance of Specific Tests.

*COMAR 26.08.05.12*

A. If a water quality laboratory is subject to a change in certification status, the Certification Authority shall notify the laboratory in writing of the intent to downgrade the parameter list for the certificate.

B. The Department may deny, make provisional, or revoke approval for one or more tests for the following reasons:

  (1) The certified water quality laboratory fails to satisfactorily participate in an approved proficiency test program as indicated, or to pass the test for each parameter and test method combination;

  (2) Failure to pass two or more consecutive proficiency tests;

  (3) Failure to implement a Quality Assurance Program required under Regulation .10 of this chapter;

  (4) Failure to pass an on-site evaluation;

  (5) Failure to complete an acceptable corrective action plan to address the on-site evaluation report; or

  (6) Failure to report compliance data in a timely manner, as specified in COMAR 26.04.01.

C. A water quality laboratory that is subject to a change in certification status under this section may not analyze those drinking water compliance samples for which approval has been denied or revoked by the Certification Authority.

D. A certified water quality laboratory that has been denied or revoked approval for performance of certain tests may regain approval by documenting corrective actions taken and by requesting a review of the corrective actions.

E. Reinstatement.

  (1) The Certification Authority may require an on-site evaluation prior to reinstatement.

  (2) Within 30 days after completion of the on-site review, the certification officer shall make a recommendation on the status to the laboratory and submit his report to the laboratory.

  (3) The water quality laboratory shall respond with corrective actions within 30 days of the receipt of the on-site report.

  (4) If the corrective actions are acceptable, the Certification Authority may reinstate approval subject to continued compliance with these regulations.

  (5) If the corrective actions are not acceptable, the Certification Authority may require additional corrections.

F. Reinstatement Corrective Actions.

  (1) If the Certification Authority does not reinstate approval for specific tests under this regulation, the Certification Authority shall provide the water quality laboratory supervisor with written notice of actions to be taken to correct deficiencies.

  (2) The certified water quality laboratory supervisor may request a new review after 60 days from the date of the last review.

#### Regulation .13 Laboratory Certification Denial, Provisional Certification, and Revocation of Certification.

*COMAR 26.08.05.13*

A. Denial of Initial Certification.

  (1) The Department may deny initial certification to a water quality laboratory for any of the following reasons:

    (a) Failure to comply with the minimum standards and qualifications required by this chapter;

    (b) Failure to participate in or analyze proficiency test samples;

    (c) Submittal of another water quality laboratory’s results for proficiency tests;

    (d) Intentionally false statements made on the application forms or any document associated with the certification application;

    (e) Conviction of any violation of the laws of Maryland related to water quality;

    (f) Fraudulently or deceptively obtaining or attempting to obtain a certification;

    (g) Failure to pay the prescribed certification fees; or

    (h) Failure to submit or complete acceptable corrective actions to an on-site evaluation.

  (2) The denial of initial certification because a water quality laboratory does not satisfactorily meet certification criteria is not appealable.

B. Provisional Certification.

  (1) The Department may downgrade a certification of a water quality laboratory for any of the following reasons:

    (a) Violation of any provision of this chapter;

    (b) Failure to report compliance data in accordance with COMAR 26.04.01 to the public water system or the Department in a timely manner, thereby preventing compliance with federal or State regulations or endangering public health;

    (c) Failure to participate in or analyze proficiency test samples in a timely manner;

    (d) Failure to report a change in ownership, management, location of facilities, or name of a water quality laboratory within a period of 30 days after the change has occurred; or

    (e) Failure to submit or complete acceptable corrective actions to an on-site evaluation.

  (2) Procedure for Downgrading Laboratory Status to Provisional.

    (a) If a laboratory is subject to downgrading on the basis of criteria in §B of this regulation, the Certification Authority shall notify the laboratory director or owner by certified mail of its intent to downgrade within 30 days from becoming aware of the situation warranting downgrading.

    (b) The laboratory director shall send a written response to the Certification Authority within 30 days of receipt of the letter specifying what immediate corrective actions are being taken and any proposed corrective actions that need the concurrence of the Certification Authority.

    (c) The Certification Authority shall notify the laboratory in writing, by certified mail, within 14 days of receipt of the laboratory’s response whether the corrective action taken is adequate or if the laboratory is being downgraded to provisionally certified status.

    (d) Provisionally certified status may not exceed 90 days.

  (3) Testing Under Provisional Certification.

    (a) If the Certification Authority determines that the laboratory results are reliable, a provisionally certified laboratory may analyze drinking water samples for compliance purposes.

    (b) The laboratory shall notify its clients of its downgraded status in writing on any report.

C. Revocation of Certification for the Water Quality Laboratory.

  (1) The Department may revoke certification to a water quality laboratory for one or more of the following reasons:

    (a) Failure to comply with the minimum standards and qualifications required by this chapter;

    (b) Failure to participate in or analyze proficiency test samples, or to obtain acceptable laboratory results of tests required on the samples annually;

    (c) Operation in such a manner as to endanger the public health or safety;

    (d) Intentionally false statements made on the application forms or any document associated with certification;

    (e) Fraudulence, deliberate falsification, or misrepresentation of federal and State laws when reporting test results;

    (f) Conviction of any violation of the laws of Maryland related to water quality laboratories or public drinking water systems;

    (g) Documentation of repeated episodes of unethical conduct of water quality laboratory operation;

    (h) Failure to pay the prescribed fees associated with certification or renewal of certification;

    (i) Fraudulent or deceptive use of a certification;

    (j) Fraudulently or deceptively obtaining or attempting to obtain a certification;

    (k) Submittal of another water quality laboratory’s results for proficiency tests; or

    (l) Failure to implement corrective actions to an on-site evaluation.

  (2) Procedure for Revocation.

    (a) The Certification Authority shall notify the laboratory, by certified mail, of the intent to revoke certification. The notification shall state the reasons that the laboratory’s certification is being revoked and set forth corrective actions when applicable.

    (b) The laboratory shall have 30 days from receipt of the notice of intent to revoke to submit documentation that shows the decision does not meet the criteria in this section. The documentation and a letter of explanation shall be sent by certified mail to the attention of the certification officer.

    (c) If the laboratory has not responded within 30 days of the notification of the intent to revoke the certification, the Certification Authority may issue a notice of revocation. A copy of the Department’s judicial review process shall be included with each notice of revocation.

    (d) If the laboratory provides documentation and an explanation within the required time, the Certification Authority shall review the submission and determine whether to proceed with revocation.

    (e) Within 30 days of receipt of the laboratory’s submission, the Certification Authority shall notify the laboratory either that the documentation is satisfactory to address the reasons for revocation or that certification is revoked.

    (f) If the Certification Authority determines after review of the laboratory’s submission to revoke the certification, the revocation date may not be sooner than 30 days from the Certification Authority’s notification to the laboratory. A copy of the Department’s judicial review process shall be included with each notice of revocation.

  (3) Upon revocation:

    (a) A water quality laboratory shall return its certificate and parameter list; and

    (b) A water quality laboratory may not analyze drinking water samples for compliance.

D. Request for Reinstatement of Certification.

  (1) Revoked Certification. Through a written request, a laboratory may seek reinstatement of certification if a laboratory can demonstrate to the Certification Authority’s satisfaction that the deficiencies which resulted in revocation have been corrected. The Certification Authority may require an on-site evaluation, successful analysis of unknown samples, or other measures before determining that a laboratory’s certification should be reinstated.

  (2) Expired Certification. If a water quality laboratory demonstrates that it meets all renewal requirements, the Department may reinstate the certification of the water quality laboratory.

#### Regulation .14 Expiration and Renewal of Certification.

*COMAR 26.08.05.14*

A. Expiration Date.

  (1) Certification expires on the date shown on the certificate and is renewable annually.

  (2) The expiration date of a certificate may be amended upon the written request of a water quality laboratory and the approval of the Certification Authority.

B. Annual Certification. The Department shall notify a water quality laboratory not less than 120 days before the expiration date shown on the face of the existing certificate that the laboratory shall submit a renewal application and fees, as applicable.

C. A water quality laboratory shall submit an application and fees, as applicable, for renewal of its certification annually at least 90 days prior to the expiration date on the certificate.

D. A water quality laboratory that has an expired certification may not analyze drinking water compliance samples.

#### Regulation .15 Certification of Out-of-State Water Quality Laboratories.

*COMAR 26.08.05.15*

A. An out-of-State water quality laboratory may be certified to perform drinking water analyses pursuant to Environment Article, Title 9, Subtitle 10, Annotated Code of Maryland, provided it is certified by the U.S. Environmental Protection Agency, TNI, or the state in which it is located, if certification criteria are at least as stringent as the requirements of this chapter. Proof of this certification shall be provided to the Department by the out-of-State water quality laboratory.

B. An out-of-State water quality laboratory shall submit acceptable proficiency test results for each certified parameter and method.

#### Regulation .16 Changes in Personnel, Analytical Procedures, or Location of Water Quality Laboratory.

*COMAR 26.08.05.16*

A. A water quality laboratory shall report a change in ownership, water quality laboratory supervisor, or analyst in writing to the Department within 30 days after its occurrence.

B. A water quality laboratory shall submit in writing to the Department any proposed changes in analytical procedures, instrumentation, or location of a certified water quality laboratory before the change is implemented.

C. The Department may perform an on-site evaluation within 30 days of notification by the laboratory that a change in location has occurred.

#### Regulation .17 Certification Refusal, Revoked Certification, and Provisional Certification.

*COMAR 26.08.05.17*

A. A certification may be downgraded to provisional certification or revoked by the Department following an opportunity for a hearing before the Secretary or a designated hearing officer, pursuant to COMAR 26.01.02.

B. Written notification will be issued to the water quality laboratory or person, or persons, responsible for its operation, specifying one or more reasons for refusal, downgrade to a provisional certification, or revocation.

C. If certification is downgraded to provisional certification, full certification is withdrawn until the cause for noncompliance with this chapter has been removed or addressed.

D. A provisional certification status continuing for more than 90 days without correction may be followed by revocation.

E. After revocation of its certification, the water quality laboratory may be recertified upon presentation to the Department of reasonable evidence of capability to comply with this chapter.

#### Regulation .18 Penalty.

*COMAR 26.08.05.18*

A person who violates any provision of Environment Article, Title 9, Subtitle 10, Annotated Code of Maryland, is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 1 year or both.

### Chapter 06 — Cleaning Agents

**Authority:** Environment Article, §§9-1501—9-1505, Annotated Code of Maryland

**Administrative History:** Effective date: July 13, 1986 (13:14 Md. R. 1633)

**Administrative History:** Recodified from COMAR 10.50.08 to COMAR 26.08.06

#### Regulation .01 Scope.

*COMAR 26.08.06.01*

These regulations restrict phosphorous content in laundry and dishwashing cleaning agents.

#### Regulation .02 Definitions.

*COMAR 26.08.06.02*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Cleaning agent” means a laundry detergent, dishwashing compound, household cleaner, metal cleaner, phosphate compound, or other substance that is used or intended to be used for cleaning purposes.

  (2) “Department” means the Department of the Environment.

  (3) “Dishwashing detergent” means a cleaning agent sold, used, or manufactured for the purpose of cleaning dishes, whether by hand or by household or commercial machine.

  (4) “Laundry detergent” means a cleaning agent sold, used, or manufactured for the purpose of cleaning laundry, whether by hand or by household or commercial machine.

  (5) “Person” includes the State, any county, municipal corporation, or other political subdivision of the State, or any of their units, or an individual receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm. association, public or private corporation, or any other entity.

  (6) “State” means the State of Maryland.

#### Regulation .03 Phosphate Ban.

*COMAR 26.08.06.03*

A. After December 1, 1985, a person may not use, sell, manufacture, or distribute for use or sale any cleaning agent that contains phosphorous, except as provided below:

  (1) Products that may be used, sold, manufactured, or distributed for use or sale regardless of phosphorous content include:

    (a) A detergent:

      (i) Used in dairy, beverage, or food processing cleaning equipment,

      (ii) Used in hospitals, veterinary hospitals, clinics, health care facilities, or in agricultural production,

      (iii) Used by industry for metal cleaning or conditioning,

      (iv) Manufactured, stored, or distributed for use or sale outside the State,

      (v) Used in any laboratory, including a biological laboratory, research facility, chemical laboratory, and engineering laboratory,

      (vi) Used in a commercial laundry that provides laundry services for a hospital, health care facility, or veterinary hospital, or

      (vii) Used for surface cleaning, appliance cleaning, or specialty home cleaning, and not for dishwashing or laundry;

    (b) A phosphoric acid product, including a sanitizer, brightener, acid cleaner, or metal conditioner;

    (c) A substance the Department excludes from the phosphorous limitations of this section based on a finding that compliance with this section would:

      (i) Create a significant hardship on the user, or

      (ii) Be unreasonable because of the lack of an adequate substitute cleaning agent that could be substituted for the subject cleaning agent without significant cost or effect differences.

  (2) Laundry Detergents. After December 1, 1985, a person may use, sell, manufacture, or distribute for use or sale a laundry detergent that contains 0.5 percent phosphorous or less that is incidental to manufacturing.

  (3) Dishwashing Detergents. After December 1, 1985, a person may use, sell, manufacture, or distribute for use or sale a dishwashing detergent that contains 8.7 percent phosphorous or less by weight.

B. Products Used in Coin-Operated Laundries and Septic Tanks. The Department finds that no significant hardship exists for owners of coin-operated laundries and for owners of septic tanks, so products used by these two groups are specifically included in the phosphate ban.

C. Penalties.

  (1) A person who uses a cleaning agent in violation of this chapter is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $100.

  (2) A person who sells, distributes, or manufactures a cleaning agent in violation of this chapter is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000.

  (3) The Department may seize any cleaning agent held for sale or distribution in violation of this chapter. The seized cleaning agents are considered forfeited.

### Chapter 07 — Underground Injection Control

**Authority:** Environment Article, §§7-204(a), 7-208, 9-313(a), and 9-314(b)(3) et seq., Annotated Code of Maryland

**Administrative History:** Effective date: December 19, 1983 (10:25 Md. R. 2269)

**Administrative History:** Recodified from COMAR 10.50.04 to COMAR 26.08.07

**Administrative History:** Regulation .01 amended effective September 3, 2001 (28:17 Md. R. 1559)

**Administrative History:** Regulation .02 amended effective September 3, 2001 (28:17 Md. R. 1559)

**Administrative History:** Regulation .03 amended effective September 3, 2001 (28:17 Md. R. 1559)

**Administrative History:** Regulation .04 adopted effective September 3, 2001 (28:17 Md. R. 1559)

#### Regulation .01 General.

*COMAR 26.08.07.01*

A. Except as provided in Regulation .02, the Department of the Environment adopts by incorporation by reference, as its regulations, the federal regulations for Underground Injection Control contained in 40 CFR 144 (48 FR 14189—14203 (April 1, 1983)) and as amended in 64 FR 68546 (December 7, 1999), 124 (Subpart A) (48 FR 14264—14273 (April 1, 1983)), and 146 (July 1, 1982 Edition), as amended in 48 FR 14293 and as amended in 64 FR 68546 (December 7, 1999.).

B. For any underground injection subject to this subtitle, a person may not cause, maintain, or allow any underground injection except as provided in this subtitle. A person may not construct a Class I—Class IV underground injection well subject to this subtitle until a permit has been issued under this subtitle.

C. The terms “Director” and “State Director”, defined in 40 CFR 144.3 and 146.3 mean the Secretary of the Environment or the Secretary of the Environment's designee.

#### Regulation .02 Exceptions.

*COMAR 26.08.07.02*

40 CFR 144.4 (Considerations Under Federal Law) is inapplicable to Underground Injection Control Permits issued by the Department of the Environment and, therefore, is not adopted by incorporation by reference.

#### Regulation .03 Enforcement.

*COMAR 26.08.07.03*

A. A person who violates the requirements of this chapter is subject to administrative and judicial enforcement and penalties, as provided in Environment Article, §§9-334 et seq., Annotated Code of Maryland.

B. The procedures for an adjudicatory hearing under this chapter are those in COMAR 26.01.02.

#### Regulation .04 Prohibitions.

*COMAR 26.08.07.04*

As provided in COMAR 26.13.05.19, the underground injection of hazardous waste is prohibited in Maryland.

### Chapter 08 — Pretreatment Requirements to Control Industrial Users of Publicly Owned Treatment Works

**Authority:** Environment Article, §§9-313, 9-314, 9-315, 9-319, 9-320, 9-325, 9-327, and 9-328, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** COMAR 10.50.01.08J-1 recodified to COMAR 26.08.08.01—.04

**Administrative History:** Regulations .01—.04 adopted effective August 26, 1985 (12:17 Md. R. 1706)

**Administrative History:** Chapter revised effective June 27, 1988 (15:13 Md. R. 1556)

**Administrative History:** Regulation .02A amended effective April 16, 1990 (17:7 Md. R. 854)

#### Regulation .01 Purpose.

*COMAR 26.08.08.01*

The Department shall operate the State Pretreatment Program to:

A. Meet national pretreatment requirements; and

B. Eliminate contributions of pollutants discharged from industrial users into publicly owned treatment works (POTWs) which cause interference with or pass through the POTW, or contaminate the sludge.

#### Regulation .02 General Requirements.

*COMAR 26.08.08.02*

A. POTWs meeting the conditions in Regulation .05 of this chapter shall develop and implement a pretreatment program in accordance with pretreatment requirements.

B. New and existing industrial users which directly or indirectly discharge industrial waste into POTWs shall be regulated by the State and by persons owning POTWs under authority delegated to them by the State.

C. A person may not:

  (1) Introduce industrial wastes into a POTW except in compliance with pretreatment requirements; or

  (2) Prevent or interfere with the inspection and sampling of industrial users subject to pretreatment requirements.

#### Regulation .03 State Pretreatment Program.

*COMAR 26.08.08.03*

A. A person owning a POTW or combination of POTWs shall implement POTW pretreatment programs in accordance with the pretreatment regulations in this section if:

  (1) The total design flow exceeds 5 million gallons per day; and

  (2) Industrial users discharge wastes which pass through, or cause interference, or are otherwise subject to national pretreatment standards.

B. POTW owners may be required to develop and implement pretreatment programs if:

  (1) The nature or volume of waste from an industrial user causes interference or pass through; or

  (2) An industrial user subject to national pretreatment standards discharges into the POTW.

C. Persons owning POTWs for which pretreatment programs are required shall, upon request, submit to the Department information in accordance with national pretreatment requirements to document that:

  (1) Industrial users discharging to the POTW are adequately identified and characterized;

  (2) Adequate legal authority exists to require industrial users to meet pretreatment requirements;

  (3) Adequate technical ability exists or will exist to meet the requirements of this section;

  (4) Adequate inspection and monitoring capability exists or will exist to ensure compliance with pretreatment requirements;

  (5) Administrative procedures necessary to implement a pretreatment program have been developed; and

  (6) Adequate resources exist or will be committed (funds, equipment, and personnel) to implement a continuing pretreatment program.

D. The Department shall review POTW pretreatment program submittals to determine compliance with the requirements of this section and national pretreatment requirements.

E. The Department shall conform with national pretreatment requirements and the applicable provisions of the Administrative Procedure Act, State Government Article, Title 10, Annotated Code of Maryland, concerning public notice, opportunity for public hearing, and public appeal of final determination.

F. If the Department determines that the POTW's pretreatment program does not meet the requirements of this section and national pretreatment requirements, the Department may order the owners to take any action necessary to ensure compliance.

G. Existing State discharge permits may be reissued for those POTWs required to implement a pretreatment program.

H. The Department may impose as a condition in a discharge permit:

  (1) The implementation of an approved and delegated pretreatment program; and

  (2) The submission of data necessary to ensure compliance with pretreatment requirements.

I. The Department shall administer federal and State pretreatment requirements through delegation agreements with the person owning a POTW. The delegation agreement shall set out:

  (1) Specific pretreatment authority delegated including enforcement authority in Environment Article, §§9-333, 9-334, 9-339, 9-342, and 9-343, Annotated Code of Maryland;

  (2) The pretreatment responsibilities of the person owning the POTW;

  (3) The requirement to collect data and reports, (baseline monitoring reports and self-monitoring report) in accordance with pretreatment requirements;

  (4) The requirement to develop and enforce compliance schedules for industrial users in accordance with pretreatment requirements;

  (5) The requirement to submit information to the Department; and

  (6) The requirement to implement the approved local program to meet pretreatment requirements.

J. A person owning a POTW shall retain all records or information required by the delegation agreement and national pretreatment requirements for a period of not less than 3 years. This period shall be extended during the course of unresolved litigation.

K. The Department shall review reports, inspect and monitor POTWs and industrial users to verify compliance with pretreatment requirements.

L. Notwithstanding the existence of any delegation agreement, to ensure compliance with the pretreatment requirements, the Department may take any of the following actions against a POTW or an industrial user:

  (1) Issue a complaint and order which may include a limitation in flows to the POTW or the imposition of sewer moratoria in accordance with Environment Article, §§9-512 and 9-335, Annotated Code of Maryland;

  (2) Seek injunctive relief in accordance with Environment Article, §9-339, Annotated Code of Maryland;

  (3) Seek civil penalties in accordance with Environment Article, §9-342, Annotated Code of Maryland;

  (4) Seek criminal penalties in accordance with Environment Article, §9-343, Annotated Code of Maryland;

  (5) Impose and enforce pretreatment requirements on industrial users and exercise any other authority delegated to it by law; and

  (6) Order an industrial user to submit any reports imposed by national pretreatment requirements including signatory requirements directly to the Department.

M. The Department, its authorized representatives, and delegated POTWs shall have the right to enter any buildings, structures, or premises of an industrial user that is or may be subject to pretreatment requirements for the purpose of:

  (1) Inspecting and copying required records;

  (2) Inspecting and monitoring methods and equipment;

  (3) Sampling discharges into POTWs; and

  (4) Determining compliance with pretreatment requirements.

N. The Department may require or order modifications to any POTW pretreatment program if the Department determines that the pretreatment program is inadequate to prevent interference or pass through.

O. The Department shall review and may approve requests made by any person owning a POTW for modifications to approved pretreatment programs. The Department shall approve the request if the Department determines that the modification meets pretreatment requirements.

P. The Department shall review, in accordance with national pretreatment requirements, requests for industrial category determinations, submitted by a person owning a POTW or an industrial user. When a determination has been made, the decision and a written explanation will be forwarded to EPA for final action.

Q. The owner of a POTW receiving wastes from an industrial user to which a national pretreatment standard applies may request the Department's approval to revise the discharge limit for a specific pollutant covered in the national pretreatment standard applicable to the user. Revisions may be approved if the POTW owner demonstrates compliance with national pretreatment requirements regulating granting of removal credits.

R. If upon review of the request the Department determines that the POTW owner's application to revise a discharge limit can be approved, the Department shall, in accordance with national pretreatment requirements and the Maryland Administrative Procedure Act, issue public notice of the POTW owner's request and provide for public hearing, notice and appeal of final determination.

#### Regulation .04 Variance to State Pretreatment Program.

*COMAR 26.08.08.04*

A. A person believing that factors relating to an industrial user are fundamentally different from the factors considered during development of a national pretreatment standard applicable to the user, and that the existence of those factors justifies a different discharge limit from that specified in the applicable national pretreatment standard, may request a fundamentally different factor variance.

B. A person seeking a variance shall submit to the Department an application which contains the information required for request of variances in the national pretreatment requirements.

C. The Department shall review requests for fundamentally different factors in accordance with procedures established by the national pretreatment requirements and forward the application with its comments to EPA.

#### Regulation .05 Pretreatment Reporting Requirements for a Person Owning a POTW.

*COMAR 26.08.08.05*

A. A person who owns a POTW and has reason to believe that an industrial user has caused interference, pass through, or a permit violation in the POTW shall:

  (1) Within 24 hours report the event to the Department; and

  (2) Within 14 days submit to the Department a written summary of the occurrence and any enforcement or corrective actions taken to prevent or minimize recurrence.

B. A person owning a POTW with an approved pretreatment program shall collect and submit data summaries and other reports to the Department, in accordance with and on a frequency specified by the delegation agreement. The signatures on the reports shall conform with national pretreatment requirements. The reports shall include:

  (1) POTW Sampling Report. A summary of self-monitoring conducted by the POTW owner to determine compliance with pretreatment requirements.

  (2) Industrial User Sampling Report. A summary of the results of self-monitoring reports filed by industrial users with the participating POTW which includes violations of discharge authorizations.

  (3) POTW Inspection Report. A summary of inspections made of industrial users by the POTW staff which shows the number of inspections, type of inspection, results of inspection, and any enforcement actions taken.

  (4) POTW Monitoring Report. A summary of the analytical results of industrial waste samples taken by the POTW staff.

  (5) POTW Enforcement and Compliance Report. A report indicating the adherence to any applicable schedule for compliance imposed upon an industrial user to comply with pretreatment requirements.

C. A person owning a POTW shall submit annual revisions of their list of industrial users to the Department.

### Chapter 09 — Public Bathing Beaches

**Authority:** Environment Article, §§9-252, 9-313—9-315, and 9-319, Annotated Code of Maryland

**Administrative History:** Effective date: May 13, 1991 (18:9 Md. R. 1012)

**Administrative History:** Regulation .06I adopted as an emergency provision effective April 26, 2000 (27:11 Md. R. 1076); adopted permanently effective May 15, 2000 (27:9 Md. R. 860)

**Administrative History:** Regulation .06I amended effective April 16, 2001 (28:7 Md. R. 692)

**Administrative History:** Chapter revised effective July 5, 2004 (31:13 Md. R. 995)

**Administrative History:** Chapter revised effective October 1, 2005 (32:17 Md. R. 1446)

**Administrative History:** Regulation .01B amended effective April 9, 2018 (45:7 Md. R. 347)

**Administrative History:** Regulation .04 amended effective April 9, 2018 (45:7 Md. R. 347)

**Administrative History:** Regulation .06E, F, G amended effective April 10, 2018 (45:7 Md. R. 347)

**Administrative History:** Regulation .07B amended effective April 9, 2018 (45:7 Md. R. 347)

**Administrative History:** Regulation .08A, B amended effective April 9, 2018 (45:7 Md. R. 347)

#### Regulation .01 Definitions.

*COMAR 26.08.09.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Approving authority” means the Secretary of the Department of the Environment or the Secretary's designee.

  (2) “Beach Action Value” (BAV) means the value the approving authority uses to issue beach notifications and is defined as follows:

    (a) BAV is 235 colony forming units (cfu) using E. coli indicator at freshwater beaches.

    (b) BAV is 104 cfu using Enterococci indicator at marine beaches.

  (3) Beaches.

    (a) “Beaches” means natural waters, including points of access, used by the public for swimming, bathing, surfing, or other similar water contact activities.

    (b) Beaches are places where people engage in or are likely to engage in activities that could result in immersion in or ingestion of the water.

    (c) Beaches are designated as such from Memorial Day through Labor Day.

  (4) “Owner or operator” means an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation, governmental body, or other entity receiving a permit for a beach.

  (5) Permitted Beach.

    (a) “Permitted beach” means a beach which the owner or operator holds open to the public for bathing, swimming, or other water recreation and which abuts a pond, lake, quarry, stream, bay, or other water body.

    (b) “Permitted beaches” includes the buildings and appurtenances, if any, used in connection with it.

  (6) “Sampling event” means samples taken at a beach or permitted beach to characterize bacterial concentrations with the number and placement of sampling stations sufficient to characterize conditions in the full extent of the bathing area.

  (7) “Sanitary survey” means a comprehensive survey conducted by the approving authority of the topographic drainage area surrounding the beach or permitted beach to determine possible sources of pollution or any discharge which may adversely affect the quality of water in the swimming area.

#### Regulation .02 Approval of Plans and Application for Permitted Beaches.

*COMAR 26.08.09.02*

A. An owner or operator shall submit an application for a permit to operate a permitted beach to the approving authority for approval 30 days before the planned opening of the permitted beach.

B. Plans.

  (1) Plans shall be drawn to scale.

  (2) The application shall include the following plans, except as provided in §C, of this regulation:

    (a) A diagram of the beach area including all buildings;

    (b) Plans for the bathhouses;

    (c) Plans of the water supply and sewage system;

    (d) Location of trash and waste containers;

    (e) Plans of any food facility; and

    (f) Plans of marina facilities, if any.

C. When a permitted beach has had no change in the facilities which would require a change in the previously approved, existing plans for the permitted beach, the approving authority, upon the request of the applicant, may approve the existing plans.

#### Regulation .03 Annual Permit for Operation of Permitted Beaches.

*COMAR 26.08.09.03*

A. An owner or operator may not operate or permit the use of a permitted beach without obtaining a written permit from the approving authority.

B. The beach shall be served by public sewerage or an approved sewage disposal system. An operating permit may not be issued until a sanitary survey conducted by the approving authority has demonstrated that the beach does not represent a public health risk.

C. A permittee shall comply with all:

  (1) Terms and conditions of the permit;

  (2) Applicable laws, regulations, and ordinances.

D. A permit is not valid for more than 1 year and expires not later than December 31st of the year of the issuance of the permit.

E. Operating permits shall be posted conspicuously at a beach.

F. A permit may be suspended or revoked for failure to comply with this regulation. A revoked permit shall be removed and a copy of the revocation notice shall be posted by the owner or operator of the beach.

#### Regulation .04 Drinking Water at Permitted Beaches.

*COMAR 26.08.09.04*

An adequate supply of potable drinking water shall be available to bathers at each permitted beach.

#### Regulation .05 Sanitary Facilities at Permitted Beaches.

*COMAR 26.08.09.05*

A. Toilet facilities shall be provided in accordance with applicable local plumbing codes.

B. The beach shall be served by public sewerage or an approved sewage disposal system. Sewage disposal systems shall comply with COMAR 26.04.02 and COMAR 26.04.03 and all applicable local ordinances.

C. Plans for a sewage disposal system to be constructed at any beach shall first be submitted to, and receive the written approval of, the approving authority.

D. The permittee shall provide adequate containers for the disposal of refuse, trash, and garbage.

#### Regulation .06 Sanitary Quality of Permitted Beaches.

*COMAR 26.08.09.06*

A. A sanitary survey shall be performed by the approving authority before a beach is permitted to open.

B. The sanitary quality of a beach is acceptable for use when the sanitary survey discloses that there is no public health risk.

C. The sanitary survey shall evaluate potential sources of pollution which include, but are not limited to:

  (1) Discharges from sewage treatment plants, sewage pumping stations, storm drain outfalls, and failing on-site sewage disposal systems;

  (2) Natural storm water discharges;

  (3) Industrial and commercial discharges;

  (4) Agricultural runoff;

  (5) Discharges at marinas; and

  (6) Concentrated domestic or wild animal populations.

D. Two or more sampling events shall be performed and completed during the 30-day period before the opening of a beach for public use.

E. An operating permit may be issued if a sanitary survey reveals no dangerous sources of pollution and if the microbiological samples collected during the sanitary survey satisfy the Beach Action Value (BAV).

F. When results of the samples show an exceedance of the BAV, a permit may be issued only if it is further determined by the approving authority, after additional sampling and analysis, that the bathing water poses no significant health risk to the bathers.

G. The approving authority shall periodically sample the bathing waters under permit for microbiological quality. Sampling shall be consistent with Regulation .07 of this chapter. All permitted beaches are considered Tier I and shall be monitored at least weekly unless a justification for lower priority is provided by the approving authority. The approving authority may order restrictions, including suspension of the permit and closing of the bathing water to use, as necessary, when the results of the bacterial indicator density exceed the BAV. A permit may be reinstated when the bacterial indicator densities return to acceptable limits.

H. When an emergency health hazard is caused by any dangerous contaminant or condition, the approving authority or the Department may immediately order summarily the suspension of the operating permit and promptly shall provide the permittee written notice of the suspension, the finding and the reasons that support the finding, and an opportunity to be heard.

#### Regulation .07 Tiered Monitoring — Applicable Memorial Day Through Labor Day.

*COMAR 26.08.09.07*

A. Prioritization for Monitoring. The approving authority shall maintain a list of all beaches. The monitoring priority for each area shall be based on frequency and nature of use, proximity of pollution sources, and effects of storm events on the waters. The approving authority shall identify each beach as Tier 1 (High Priority), Tier 2 (Medium Priority), or Tier 3 (Low Priority) and provide appropriate public notification.

B. Bacteriological Monitoring.

  (1) The approving authority shall perform a sanitary survey before a beach may open. In addition, one or more sampling events shall be performed and completed during the 30-day period before the opening of a beach for public use.

  (2) Sampling Frequency.

    (a) Tier 1 — Frequently used beaches or beaches where risk may potentially be elevated by known pollution sources or impacts from rainfall shall be monitored weekly.

    (b) Tier 2 — Less frequently used beaches or beaches where potential pollution impacts are minimal shall be monitored biweekly.

    (c) Tier 3 — All other beaches shall be monitored monthly.

  (3) Evaluation of water quality using Beach Action Values (BAV).

    (a) Sampling events shall consist of at least three indicator bacteria samples per sampling event.

    (b) In addition to the application of the BAV, the approving authority may consider other factors, including the results of sanitary surveys, prior rainfall, and other environmental conditions in making public health decisions.

#### Regulation .08 Public Notification.

*COMAR 26.08.09.08*

A. When results of the samples show an indicator organism density that exceeds the Beach Action Value, the Approving Authority shall issue a public notification unless there is reason to doubt the accuracy or certainty of the first sample. The approving authority shall then promptly resample and, if standards are being exceeded, prompt public notification of the advisory or closure if required. If a known pollution source exists, such as combined sewer overflow, failing sewer infrastructure, wastewater treatment discharge, or other source, the approving authority shall close the beach and provide prompt public notification of the closing.

B. The beach may be opened or the advisory lifted only after subsequent bacteriological sampling results in indicator densities that satisfy the Beach Action Value.

C. When an emergency health hazard is caused by any dangerous contaminant or condition, the Approving Authority or the Department may immediately order the beach closed and summarily suspend the operating permit (for permitted beaches) and shall promptly provide the permittee written notice of the suspension, the finding and the reasons that support the finding, and an opportunity to be heard. Public notification procedures shall be implemented.

#### Regulation .09 Appeal.

*COMAR 26.08.09.09*

An owner or operator aggrieved by the decision of the Department shall have notice and an opportunity for a hearing in accordance with the provisions of the Administrative Procedure Act and other applicable statutes and regulations. Requests for hearings shall be filed with the Department, Water Management Administration, within 10 days after notification by the Department or the Approving Authority of the opportunity for a hearing.

### Chapter 10 — Overflows or Bypasses

**Authority:** Environment Article, §9-331.1, Annotated Code of Maryland

**Administrative History:** Effective date: March 28, 2005 (32:6 Md. R. 636)

#### Regulation .01 Definition.

*COMAR 26.08.10.01*

A. In this chapter, the following term has the meaning indicated.

B. Overflow.

  (1) “Overflow” means any loss of wastewater or discharge from a sanitary sewer system, combined sewer system, or wastewater treatment plant bypass which results in the direct or potential discharge of raw, partially treated or diluted sewage into waters of the State as defined in Environment Article, §9-101(l), Annotated Code of Maryland.

  (2) “Overflow” includes, but is not limited to, any overflow or discharge of raw or diluted sewage onto the surface of the ground, into waterways, storm drains, ditches or other manmade or natural drainage conveyances to surface or ground waters.

  (3) “Overflow” does not include:

    (a) An overflow or discharge of 50 gallons or less to the ground that are cleaned up within 1 hour of its occurrence; and

    (b) An overflow or discharge to impervious surfaces that are effectively contained and cleaned up so that there is no direct or potential pollution of waters of the State as a result of the overflow or discharge.

#### Regulation .02 Overflows Prohibited.

*COMAR 26.08.10.02*

A. Overflows are prohibited except as allowed under the terms of a discharge permit issued by the Department.

B. The existence of a discharge permit for a sanitary sewer system or combined sewer system that does not specifically reference the requirements of this chapter does not exclude the owner, operator, or permittee from the requirements of this chapter.

#### Regulation .03 Reports — Generally.

*COMAR 26.08.10.03*

A. The owner or operator, or both, of any sanitary sewer system, combined sewer system, or wastewater treatment plant shall report to the Department and local health department any overflow that results in the direct or potential discharge of raw, partially treated, or diluted sewage into waters of the State.

B. The owner of a separate sanitary sewer system, pumping station, or grease trap that is connected to a public sewer system is responsible for providing reports required by this chapter.

C. Reports required by this chapter shall be made by telephone as soon as practicable to the telephone number or numbers designated by the Department, but not later than 24 hours after the time that the owner or operator becomes aware of the event.

#### Regulation .04 Telephone Reports.

*COMAR 26.08.10.04*

Telephone reports shall include:

A. The location of the overflow, including latitude and longitude if reasonably available, Maryland Grid Coordinates or nearest street and intersection, city or town, and county;

B. The name of the owner and operator of the sanitary sewer system or treatment plant;

C. The name of the receiving water, if applicable, and if known, whether the receiving water is designated as shellfish waters or for a public drinking water supply;

D. The volume discharged based on actual measurement or as an estimate using best professional judgment;

E. A description of the combined sewer system, separate sanitary sewer system or treatment plant component from which the overflow was released, such as manhole, crack in pipe, pumping station wet well or constructed overflow pipe;

F. Whether the overflow is from a combined sewer system, a separate sanitary sewer system, or a treatment plant bypass;

G. A detailed description of visual observations and preliminary assessment of the overflow's actual or potential impact upon waters of the State;

H. The cause or suspected cause of the overflow;

I. The date and time when the overflow began and stopped or, if not stopped, the date and time the overflow is expected to be stopped;

J. The steps taken or planned to reduce, eliminate, and prevent recurrence of the overflow and a time schedule for completion of the steps;

K. Measures taken or planned to mitigate the adverse impact of the overflow and a time schedule for implementation of the measures; and

L. Whether the public has been notified, who performed the notification, the media used, and the content of the message.

#### Regulation .05 Written Reports.

*COMAR 26.08.10.05*

A. Within 5 calendar days after the telephone notification of the event, the owner or operator shall provide the Department and local health department with a written report that includes, at a minimum, the information in Regulation .04 of this chapter unless the Department waives the requirement for submission of a written report due to the small volume of the overflow. The written report shall be directed to the mailing address specified by the Department.

B. The owner or operator of the sanitary sewer system, combined sewer system, or wastewater treatment plant or a duly authorized representative shall sign any written report. A person is a duly authorized representative only if the owner or operator has signed and submitted a written authorization to the Department specifying that the person or the person holding a specified position is authorized to sign sewage overflow reports. The written authorization shall be directed to the mailing address specified by the Department.

#### Regulation .06 Records, Disclosure.

*COMAR 26.08.10.06*

The owner or operator shall, for at least 5 years from the date of the overflow or backup:

A. Maintain copies of all overflow records and reports, including:

  (1) Any backups of sewage into houses or businesses;

  (2) Work orders associated with investigation of overflows;

  (3) A list and description of complaints from customers or others related to overflows; and

  (4) Documentation of performance and implementation measures to address overflows; and

B. Make this information available to the Department for review upon request.

#### Regulation .07 Reports to the Public.

*COMAR 26.08.10.07*

The owner or operator shall coordinate with the local health officer or environmental health director regarding the content of reports to the public about overflows in accordance with the procedures developed by the Department, in cooperation with the Maryland Department of Health, local health departments, and local environmental health directors.

#### Regulation .08 Public Notification.

*COMAR 26.08.10.08*

A. Unless advised by the Maryland Department of Health, local health department, or environmental health director on a case by case basis that public notification is not necessary, the owner or operator shall notify the public as soon as practicable, but not later than 24 hours after the time that the owner or operator becomes aware of the event, about:

  (1) Any overflow that enters:

    (a) Shellfish harvesting waters;

    (b) Waters protected as drinking water sources;

    (c) Waters used as public bathing beaches where people may swim; or

    (d) Waters used for public recreation where people may boat, fish, or swim; and

  (2) Any situation where the Maryland Department of Health, local health department, or environmental health director has reason to believe is a public health risk.

B. Public notification shall be made as soon as practicable, but not later than 24 hours after the time that the owner or operator becomes aware of the event and shall be made:

  (1) By a public service announcement or paid advertising in a daily newspaper, radio station, or television station serving the immediate area where the overflow occurred and any other areas where the overflow is likely to have an adverse impact; and

  (2) By posting affected areas, if the Maryland Department of Health, local health department, environmental health director, or a designee determines that:

    (a) There is an immediate threat of human contact with contaminated water or ground where the overflow occurred;

    (b) The size and flow rate of the water body into which the discharge entered are such that the discharge constitutes a significant portion of the flow;

    (c) The potential for dilution and dispersal of the overflow into the receiving waters is minimal due to the season of the year, the period of time of the actual discharge, or the receiving water already being listed as impaired due to nonattainment of State bacteriological water quality standards; or

    (d) The concentration of the effluent increases the risk to public health.

C. In addition to the public notification requirement based on the criteria in §B(1) of this regulation, if the overflow's total volume at the time of completed repair as measured or estimated using best professional judgment is 10,000 gallons or more, the owner or operator shall notify the public by:

  (1) A public service announcement or paid advertising in a daily newspaper, radio station, or television station serving the immediate area where the overflow occurred and any other areas where the overflow is likely to have an adverse impact; and

  (2) Posting affected areas, unless advised by the Maryland Department of Health, local health department, or environmental health director that public notification is not necessary.

D. The public advisory shall remain in effect until the Maryland Department of Health, local health department, environmental health director, or a designee determines that sampling data for the receiving water shows return to normal or prior background levels.

E. If the overflow's total volume at the time of completed repair as measured or estimated using best professional judgment is less than 10,000 gallons, and the Maryland Department of Health, local health department, environmental health director, or their designee determines that none of the factors listed in §B(1) and (2) of this regulation apply, the general public notification may be in the form of information provided in quarterly or annual reports, reports of incidents included with water bills, or information about incidents available on a web site in conjunction with a written notification. The information shall:

  (1) State that due to various causes, such as accidents and equipment failures, the specific sewer system experienced occasional sewage overflows;

  (2) State the time period being reported;

  (3) State the number of overflows that occurred;

  (4) State the total number of gallons released;

  (5) Advise the public in areas that are posted to avoid contact with the water or other water contact activities; and

  (6) Advise that for larger overflows with potential environmental or human health impacts the public is notified through the media and, if appropriate, by posting signs.

F. Any public notification shall state:

  (1) The approximate number of gallons of overflow;

  (2) When the overflow occurred;

  (3) Where the overflow occurred;

  (4) The name of the receiving water;

  (5) That swimming or other direct contact should be avoided in the receiving water from a specific point upstream to a specific point downstream until a specific date that is to be determined by the Maryland Department of Health, local health department, or environmental health director; and

  (6) A telephone number for additional information.

#### Regulation .09 Personal Notification of Schools and Other Establishments.

*COMAR 26.08.10.09*

If there are schools, day care centers, hospitals, or similar establishments or locations with potentially sensitive populations that may be subject to exposure in the immediate area of the overflow, the owner or operator of the system or plant or a representative shall personally notify each establishment of the overflow as soon as possible.

#### Regulation .10 Departmental Responsibilities and Authority.

*COMAR 26.08.10.10*

A. The Maryland Department of Health, the local health officer, or the local environmental health director shall make all decisions and determinations as to public health issues resulting from an overflow.

B. The Maryland Department of Health, the local health officer, or the local environmental health director may require that reports to the public concerning an overflow include specific information regarding public health.

C. Signs posted following an overflow may be removed only as directed by the Maryland Department of Health, the local health department, or the local environmental health director.

#### Regulation .11 Owner or Operator Responsibilities.

*COMAR 26.08.10.11*

A. The owner or operator shall make any local policies or procedures related to the requirements of this chapter available to the public upon request.

B. The owner or operator shall perform sampling of State surface waters that have received an overflow as directed and under the guidance of the Maryland Department of Health, the local health department, or the local environmental health director. The owner or operator shall have samples tested for fecal coliform, Escherichia coli (E. coli), Enterococci, or any other specific organism as directed by the Maryland Department of Health, the local health department, or the local environmental health director.

C. The owner or operator shall provide data collected after an overflow or bypass event and information about any permanent postings or health advisories to the Department within 14 days of the event. Reports of bacterial analysis shall include the dates the samples were taken, the latitude and longitude of the sampling location or Maryland Grid Coordinates if the latitude and longitude are not known, quantitative results, the name and address of the laboratory that performed the analysis, and any additional data that the Department may require. If a permanent posting or health advisory results from the monitoring, information shall be provided to the Department regarding the name and location of the receiving waters and the latitude and longitudes or Maryland Grid Coordinates of the upstream and downstream boundaries of the area to which the advisory applies, and a contact name.

### Chapter 11 — Maryland Water Quality Trading Program

**Authority:** Agriculture Article, §§8-901 and 8-904; Environment Article, §§9-313, 9-315, 9-319, and 9-325; Annotated Code of Maryland

**Administrative History:** Effective date: July 16, 2018 (45:14 Md. R. 698)

#### Regulation .01 Purpose.

*COMAR 26.08.11.01*

A. The purpose of this chapter is to establish a Water Quality Trading Program between the agricultural, stormwater, wastewater, and on-site sewage disposal sectors that attracts public and private participation and enhances Maryland’s effort to protect and restore not only the water resources of the Chesapeake Bay and its tributaries, but also local waters. Trading may supplement the more traditional governmental approaches for improving water quality and has the potential to achieve results faster and at a lower cost, accelerating efforts to restore and improve water quality. The Program expands opportunities for point sources and nonpoint sources by creating a water quality marketplace that allows them to meet and maintain pollutant load limits through the acquisition of credits generated by pollutant load reductions elsewhere in Maryland’s portion of the Chesapeake Bay watershed as long as the trade does not cause or contribute to a violation of State water quality standards.

B. General Structure of Program.

  (1) The Program is voluntary and relies on a market-based approach to offer economic incentives for pollutant reductions from point and nonpoint sources.

  (2) The State provides the infrastructure to support trading through an online suite of tools that includes:

    (a) The Maryland Nutrient Tracking Tool used by agricultural credit generators;

    (b) The central Registry; and

    (c) The optional Marketplace.

  (3) The price of each credit is negotiated between the credit seller and the credit buyer.

#### Regulation .02 Scope.

*COMAR 26.08.11.02*

This chapter establishes Maryland’s Water Quality Trading Program and sets forth the criteria under which the Program will operate, including:

A. Purpose;

B. Definitions;

C. Program framework;

D. Baseline requirements;

E. Calculation of credits;

F. Procedure for certification;

G. Trading requirements;

H. Usage of credits by point sources;

I. Registration of trades;

J. Verification and reporting requirements;

K. Public participation;

L. Enforcement; and

M. Appeal process.

#### Regulation .03 Definitions.

*COMAR 26.08.11.03*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “303(d) list” means the list of impaired waters maintained by the State pursuant to 33 U.S.C. §1313(d).

  (2) “Aggregator” means a person that funds, generates, owns, or assembles credits resulting from a number of point or nonpoint sources to resell them.

  (3) “Agricultural land” has the meaning stated in COMAR 15.20.12.02.

  (4) “Agricultural nonpoint source” means a nonpoint source that is an agricultural operation.

  (5) “Agricultural operation” has the meaning stated in COMAR 15.20.12.02.

  (6) “Allocation” means the share of the total amount of pollutants that impaired waters can receive from a specific source discharger.

  (7) “Baseline” means the practices, actions, or levels of nitrogen, phosphorus, or sediment reductions that must be achieved before a credit seller becomes eligible to generate credits, enter the trading market, and trade credits.

  (8) “Bay Restoration Fund (BRF)” means the fund established by Environment Article, §9-1605.2, Annotated Code of Maryland.

  (9) Best Management Practice (BMP).

    (a) “Best management practice (BMP)” means a practice, or combination of practices, that is determined by the Chesapeake Bay Program to be an effective and practicable method of preventing or reducing pollutants generated by point or nonpoint sources so as to minimize the movement of those pollutants into or remove those pollutants from waters of the State, or mitigate flooding.

    (b) “Best management practice (BMP)” includes structural and nonstructural pollution controls, operations, and maintenance procedures and practices that prevent or reduce pollutants.

  (10) “Broker” means a person that connects a credit seller and a credit buyer and helps to negotiate a trade between them.

  (11) “Cap” means a legally enforceable aggregate mass load limit contained in a discharge permit.

  (12) “Certification” means the process in which credits are quantified by the Department or the Department of Agriculture and placed on the Registry, or the result of this process.

  (13) “Chesapeake Bay Program (CBP)” means the regional partnership of federal and state agencies, local governments, nonprofit organizations, and academic institutions that leads and directs Chesapeake Bay restoration and protection.

  (14) “Chesapeake Bay Watershed Model (CBWM)” means the latest model adopted by the Chesapeake Bay Program used to simulate loading and transport of nitrogen, phosphorus, and sediment from pollutant sources throughout the Chesapeake Bay watershed and provide estimates of watershed nitrogen, phosphorus, and sediment loads resulting from various management scenarios.

  (15) “Credit” means a unit of load reduction below baseline of 1 pound of nitrogen, phosphorus, or sediment.

  (16) “Department” means the Maryland Department of the Environment.

  (17) “Edge of tide (EoT) factor” means a numeric adjustment that reflects the rate at which pollutants are reduced through natural processes, such as hydrolysis, oxidation, and biodegradation, and manmade structures, such as dams, on their way through nontidal tributaries to the tidal waters of the Chesapeake Bay or its tidal tributaries.

  (18) “Edge of tide (EoT) ratio” means a numeric adjustment applied to a trade to compensate for different EoT factors in the segmentshed where the credit is generated and the segmentshed where the credit is used.

  (19) “Enhanced nutrient removal (ENR)” has the meaning stated in Environment Article, §9-1601, Annotated Code of Maryland.

  (20) “Floating cap” means a permitted effluent limitation applicable to an ENR facility, funded by the Bay Restoration Fund, which is calculated at the end of each calendar year using the end of the calendar year annual cumulative flow for the facility, multiplied by the applicable nitrogen or phosphorus concentration, and then converted to units of pounds per year.

  (21) “Generator” means the original source of pollution reductions embodied in a credit, regardless of subsequent buyers and sellers of the credit.

  (22) “Impaired waters” means waters included on the 303(d) list for nitrogen, phosphorus, or sediment.

  (23) Load.

    (a) “Load” means a pound or pounds of nitrogen or phosphorus or a pound, pounds, ton, or tons of sediment discharged by a point or nonpoint source per unit of time.

    (b) “Load” is calculated or estimated using pollutant concentrations and flow and converting them to pounds or tons.

  (24) “Load allocation (LA)” means the portion of a receiving water's loading capacity that is attributed to one of either its existing or future nonpoint sources.

  (25) “Local water quality impairment” means conditions in a nontidal river, stream or impoundment that would cause the nontidal river, stream or impoundment to be listed on the 303(d) list for nitrogen, phosphorus, or sediment.

  (26) “Marketplace” means an online system where information is exchanged between credit owners or their representatives and credit buyers.

  (27) “Maryland Nutrient Tracking Tool (MNTT)” means an online performance-based calculation system that enables users to analyze agricultural parcels and their management to determine eligibility and credit generation potential for participation in the Maryland Water Quality Trading Program.

  (28) “Maryland Water Quality Trading Program (Program)” means the Program under this chapter that establishes the policies and procedures to support market-based trading activities to enhance water quality and to certify, verify, and register nonagricultural point and nonpoint source nitrogen, phosphorus, and sediment credits.

  (29) “MS4 Permittee” means a person that has been issued a Phase I MS4 permit or a Phase II MS4 permit as defined in 40 CFR §122.26.

  (30) “Municipal Separate Storm Sewer System (MS4)” has the meaning stated in 40 CFR §122.26.

  (31) “National Pollutant Discharge Elimination System (NPDES) permit program” means the national system for issuing permits as designated by 33 U.S.C. §1251 et seq., its amendments, and all regulations and rules adopted under the federal Clean Water Act and State law.

  (32) “Nonregulated source” means a point source or nonpoint source that the Department has determined is not required to obtain an NPDES or State discharge permit and that is not an agricultural operation.

  (33) “Nonpoint source” means a source of pollution that is not from a discernible, confined, and discrete conveyance, or other point source, as point source is defined in 33 U.S.C. §1362.

  (34) “On-site sewage disposal system” means a sewage system that discharges treated effluent into the ground, such as a septic system.

  (35) “Performance-based benchmark” means a wastewater point source annual effluent load which is calculated at the end of each calendar year using the end of the calendar year annual cumulative flow for the facility, multiplied by the applicable assigned nitrogen or phosphorus performance concentration converted to units of pounds per year, where:

    (a) A sewage treatment facility with a design capacity greater than or equal to 0.5 million gallons per day has an assigned performance consideration:

      (i) Equal to or less than 3.0 mg/l for nitrogen or .3 mg/l for phosphorus; and

      (ii) If applicable, equal to or less than the concentration basis of the permit’s required floating cap; and

    (b) All other wastewater point sources have an assigned performance concentration established on a case-by-case basis, with the resulting benchmark at least as stringent as the baseline required under Regulation .05 of this chapter.

  (36) “Person” has the meaning stated in COMAR 26.08.01.01.

  (37) “Point source” has the meaning stated in 33 U.S.C. §1362.

  (38) “Public funding” means federal or State grant funding.

  (39) “Registration” means the recordation of a credit or trade in the Registry.

  (40) “Registry” means a publicly accessible online database system used by the Department and the Department of Agriculture to administer the Maryland Water Quality Trading Program by tracking credit-generating BMPs, verification activities, credits, trades, and credit usage records.

  (41) “Reserve pool” means a pool of certified credits created by the application of the reserve ratio that can be used by the State as stated in Regulation .08 of this chapter.

  (42) “Reserve ratio” means a 5 percent reduction in the total number of generated credits, the result rounded down to the next whole number, placed in the reserve pool at the time of certification.

  (43) “Sector” means each of the following groups of persons:

    (a) Agricultural dischargers;

    (b) Stormwater dischargers;

    (c) Sewage treatment and industrial wastewater dischargers; and

    (d) Persons having on-site sewage disposal systems.

  (44) “Segmentshed” means a discrete land area that drains into one of the Chesapeake Bay Program tidal segments for which a TMDL is established in the Chesapeake Bay TMDL.

  (45) “Source discharger” means a:

    (a) Point source regulated under an NPDES or State discharge permit that has received an individual or aggregate wasteload allocation; or

    (b) Nonpoint source that is assigned a share of the aggregate load allocation for an entire sector.

  (46) “Stormwater” has the meaning stated in COMAR 26.17.02.02.

  (47) “Stormwater point source” means a regulated stormwater discharger such as a MS4 permittee, or an NPDES Industrial stormwater permittee.

  (48) “Technology-based effluent limitation (TBEL)” means a permit limit for a pollutant that is based on the capability of a treatment method to reduce the pollutant to a certain concentration or loading.

  (49) “Total maximum daily load (TMDL)” means a calculation for an impaired water body of the maximum amount of a pollutant the water body can receive and still meet applicable water quality standards in accordance with federal Clean Water Act requirements.

  (50) “Trade” or “trading” means a transaction, sale, or other exchange of credit through a contractual agreement between a credit generator or owner and a credit buyer.

  (51) “Uncertainty ratio” means a numeric adjustment to a trade to compensate for possible discrepancies in estimated pollutant reductions resulting from inaccuracy in credit estimation methodology or variability in project performance, or to provide a margin of safety in the achievement of water quality goals.

  (52) “Wasteload allocation (WLA)” has the meaning stated in COMAR 26.08.01.01.

  (53) “Wastewater” has the meaning stated in COMAR 26.08.01.01.

  (54) Wastewater Point Source.

    (a) “Wastewater point source” means a sewage treatment discharger, an industrial wastewater discharger, or any other point source that has applied for and received an NPDES or State discharge permit issued pursuant to COMAR 26.08.04.

    (b) “Wastewater point source” does not include stormwater point sources.

  (55) “Watershed” means an area of land that drains all the streams and rainfall to a common outlet such as the outflow of a reservoir, mouth of a bay, or any point along a stream channel.

#### Regulation .04 Maryland Water Quality Trading Program Framework.

*COMAR 26.08.11.04*

A. Pollutants Eligible for Trading. Nitrogen, phosphorus, and sediment are the only pollutants eligible for credit trading and may be traded independently or in any combination.

B. Maryland Trading Regions.

  (1) Any trade shall occur within the same trading region.

  (2) The Department has established the following trading regions:

    (a) Potomac River Basin;

    (b) Patuxent River Basin; and

    (c) Eastern Shore and Western Shore River Basins, including the Maryland portion of the Susquehanna Basin.

C. Program Participation.

  (1) A person may only use credits generated and sold within the State to:

    (a) Comply with the applicable nitrogen, phosphorus, and sediment load or wasteload allocations of the Maryland portion of the Chesapeake Bay TMDL, local TMDLs, or NPDES permit requirements; or

    (b) Improve water quality.

  (2) Other than persons generating credits under the provisions of COMAR 15.20.12, a person generating credits under the Maryland Water Quality Trading Program shall:

    (a) Meet appropriate baseline requirements in accordance with Regulation .05 of this chapter;

    (b) Implement a BMP approved by the Chesapeake Bay Program that is acceptable to the Department;

    (c) Demonstrate a load reduction below the baseline requirements that is acceptable to the Department and calculate credits in accordance with Regulation .06 of this chapter; and

    (d) Submit a Certification and Registration form to the Department for credit certification in accordance with Regulation .07 of this chapter.

  (3) A person's ability to generate credits is based on the performance of each individual facility or best management practice and their ability to comply with Regulation .07 of this chapter.

D. Limitations.

  (1) This chapter does not apply to wastewater point source to wastewater point source trading.

  (2) No credit shall be offered for trade except in compliance with the provisions of this chapter.

  (3) Except those BMPs implemented in conformance with Special Conditions III.A.1.f of General Permit No. 12SW, Stormwater Associated with Industrial Activities, any BMP implemented to satisfy regulatory requirements, including those related to new development and redevelopment, prior to the effective date of this chapter, may not be used to generate a credit.

  (4) Credits may be traded only after they have been certified, verified, and registered in accordance with this chapter or, for agricultural credits, in accordance with COMAR 15.20.12.

  (5) For the purposes of this chapter, public funding may not be used to generate a credit, except:

    (a) A wastewater treatment plant upgraded to ENR that accepts BRF grant funding for operation and maintenance to achieve a nitrogen discharge of 3mg/l and a phosphorus discharge of 0.3 mg/l may generate credits for performance below 3mg/l of nitrogen and below 0.3mg/l of phosphorus; or

    (b) Unless otherwise prohibited by the terms and conditions of the public funding, the credits generated by any other nonagricultural BMP funded in part by public funding shall be prorated based on the ratio of nonpublic funding used to generate the credit to the total cost incurred to generate the credit.

  (6) The Department is not responsible or liable for the performance of a credit-generating project certified pursuant to the requirements of this chapter.

  (7) The acquisition of credits for compliance purposes does not eliminate any requirement to comply with local water quality standards, permits, or other legal requirements.

E. Water Quality Trading Program Registry.

  (1) The Department, in consultation with the Maryland Department of Agriculture, shall establish and maintain the Registry.

  (2) Pursuant to this chapter and COMAR 15.20.12, all certified credits shall be posted on the Registry.

  (3) The inclusion of credits on the Registry or the Marketplace is not a representation by the Department or the credit seller that the credits will satisfy the specific regulatory requirements of the credit buyer.

#### Regulation .05 Baseline Requirements.

*COMAR 26.08.11.05*

A. General Policies.

  (1) All baselines shall be consistent with the 2010 Chesapeake Bay TMDL, as may be amended from time to time, or, if more restrictive, a local TMDL.

  (2) In the event of an amendment to the Chesapeake Bay TMDL, the:

    (a) Baseline established in a permit remains in effect until a new permit or a permit modification is issued by the Department; and

    (b) Credits calculated with a baseline established under the previous Chesapeake Bay TMDL and approved by the Department prior to the effective date of the amendment shall remain available for sale until the certification period ends for that credit.

B. The baseline for an agricultural nonpoint source shall be determined by the Department of Agriculture in accordance with COMAR 15.20.12.

C. The baseline for a wastewater point source shall be determined by the Department based on an annual loading limit wasteload allocation established in the wastewater point source’s NPDES discharge permit.

D. The baseline for a stormwater point source is the restoration requirement of the stormwater point source’s current NPDES discharge permit.

E. Except as may be revised pursuant to subsequent versions of the Chesapeake Bay Watershed Model, the baseline for a nonregulated source shall be the pollutant load generated under the conditions that existed prior to installation of the BMP, as calculated using assessment tools consistent with the Chesapeake Bay Program modeling tools and accepted by the Department.

F. Except as may be revised pursuant to subsequent versions of the Chesapeake Bay Watershed Model, the baseline load per equivalent dwelling unit for an on-site sewage disposal system is:

  (1) 18.56 pounds of nitrogen per year for a system located in the Critical Area for the Chesapeake and Atlantic Coastal Bays;

  (2) 11.60 pounds of nitrogen per year for a system located within 1,000 feet of surface water; and

  (3) 6.96 pounds of nitrogen per year for all other systems.

#### Regulation .06 Calculation of Credits.

*COMAR 26.08.11.06*

A. Wastewater Point Sources. Credits generated by a wastewater point source shall be based on that wastewater point source’s performance as follows:

  (1) Credits shall be calculated and reported under the terms of the required wastewater discharge permit at the end of each calendar year as the load remaining after subtracting actual annual effluent nutrient load from the performance-based benchmark load; and

  (2) The annual effluent nutrient load shall be calculated using the end of the calendar year annual cumulative flow for the facility, multiplied by the actual effluent nitrogen, phosphorus, or sediment concentration converted to units of pounds per year.

B. Stormwater Point Sources and Nonregulated Sources. Stormwater point source and nonregulated source credits shall be calculated using assessment tools consistent with the Chesapeake Bay Program modeling tools and accepted by the Department.

C. Agricultural Nonpoint Sources. Nonpoint source credits generated on agricultural land shall be calculated using the Maryland Nutrient Tracking Tool in accordance with COMAR 15.20.12.

D. On-site Sewage Disposal Systems. Nitrogen credit for an on-site sewage disposal system upgraded with nutrient removal technology is calculated by subtracting the load remaining after upgrade of the system from the system’s baseline load established in accordance with Regulation .05 of this chapter.

#### Regulation .07 Procedure for Certification.

*COMAR 26.08.11.07*

A. Credits are not valid or tradable until placed on the Registry after certification as follows:

  (1) Agricultural credits are certified by the Maryland Department of Agriculture in accordance with COMAR 15.20.12;

  (2) Wastewater point source credits are certified by the Department through issuance of an NPDES or State discharge permit, or permit modification; and

  (3) All other credits are certified by the Department according to §B of this regulation.

B. A person who applies to the Department for certification of a credit shall complete and sign a Certification and Registration Form provided by the Department, including:

  (1) Identification of the location and segmentshed where the BMP is being implemented and a map identifying the location and boundaries of the BMP;

  (2) Documentation that the generator either owns the property or has the permission of the landowner to install, access, and maintain the BMP and to apply for certification of credits;

  (3) A description of the BMP, including:

    (a) A description of any permits required for its installation and evidence establishing that it was installed in accordance with the laws, regulations, and programs of applicable local, state, and federal authorities;

    (b) Verification in accordance with Regulation .11 of this chapter; and

    (c) A maintenance plan for the BMP that will be put into operation during the lifespan of the credit;

  (4) Supporting documentation that explains:

    (a) Which tool was selected to determine the requested number of credits;

    (b) How the project satisfies the baseline requirements in Regulation .05 of this chapter; and

    (c) How the credits were calculated to meet the nitrogen, phosphorus, and sediment reduction amounts claimed in the application; and

  (5) Any other information the Department deems necessary to review the Certification and Registration Form, and certify the credits.

C. As a condition of the Department’s certification of a credit, the applicant and landowner shall agree in writing to provide the Department, verifier, and their agents with access to the BMP at all reasonable times during the lifespan of the credit.

D. Upon review and approval of the information submitted in the Certification and Registration Form, the Department shall assign each credit or block of credits a unique registration number and place the certified credits on the Registry.

E. If the Department denies the Certification and Registration Form, the Department shall provide the basis for the denial to the applicant.

F. The credit owner shall update the credit registration, in writing within 30 days, to the Department and the credit buyer, if applicable, if there is a change in:

  (1) The BMP used to generate the credit that could reasonably be expected to affect its certification; or

  (2) The ownership of the property where the BMP is located.

G. The BMP generates credits once it is certified.

H. Credit generators may create listings linked to their Marketplace accounts to display certified credits they have for sale and initiate trades with potential credit buyers.

I. Credit buyers may post credit needs or solicit offers using the Marketplace.

#### Regulation .08 Trading Requirements.

*COMAR 26.08.11.08*

A. Credit trades may occur with or without the participation of an aggregator or broker.

B. In the event of a default in a trade contract, expiration of a credit, or suspension or revocation of a credit, the buyer using the credit remains responsible for complying with any NPDES and State discharge permit or other regulatory requirement that the credit was intended to satisfy.

C. Ratios Applicable to All Trades.

  (1) Uncertainty Ratio.

    (a) An uncertainty ratio of 1:1 shall be applied to trades involving credits generated by nonpoint sources and acquired by stormwater point sources or other nonregulated sources.

    (b) An uncertainty ratio of 1:1 shall be applied to trades involving implementation of BMPs for land conservation that includes protection through an irrevocable conservation easement or other instrument attached to the property deed and recorded with the local circuit court.

    (c) An uncertainty ratio of 2:1 shall be applied to trades involving credits generated by nonpoint sources and acquired by wastewater point sources, unless the generator, seller, or buyer of the credit is able to demonstrate to the Department that a lower ratio is justified and protective of water quality standards.

  (2) Edge of Tide Ratio.

    (a) An EoT numeric adjustment factor shall be applied to all applicable credits to normalize loads based on delivery to the mainstem of the Chesapeake Bay. The appropriate factor shall be calculated using assessment tools consistent with the Chesapeake Bay Program modeling tools and accepted by the Department.

    (b) EoT adjustment factors for credits from wastewater point sources shall be determined by the Department based on the latest Chesapeake Bay Model used by the Department in issuing permits with trades.

  (3) Reserve Ratio. A reserve ratio shall be applied to each credit when it is certified to create a reserve pool of credits that may be used by the Department to:

    (a) Cover the loss of certified credits from a BMP damaged by events arising from sudden and reasonably unforeseeable events beyond the control of the person responsible for the maintenance of the BMP, including acts of God;

    (b) Replace purchased credits that become unavailable due to the failure or underperformance of a BMP;

    (c) Address a lack of readily available credits; or

    (d) Improve the overall water quality during a year when the credits in the reserve pool are not used to support other purposes detailed in this chapter.

D. Lifespan of Certified Credits.

  (1) A BMP may only generate credits when it is installed and placed into operation and all operational and maintenance guidelines are followed.

  (2) Credits may be certified for more than 1 year but shall be applied annually.

  (3) The Department shall include the number of years a credit is generated as part of the credit certification.

E. Local Water Quality.

  (1) The use of a credit may not cause nor contribute to local water quality impairments or prevent the attainment of local water quality standards.

  (2) Credits used within any impaired waters must be generated within such impaired waters or upstream of the credit user's discharge.

F. Prohibitions. At its discretion, the Department may prohibit the following persons from generating credits:

  (1) A permittee in noncompliance with permit terms;

  (2) A nonregulated source or owner of an on-site sewage disposal system that is not in compliance with COMAR 26.04.03, 26.17.01, 26.17.02, 26.17.04, 26.23, or 26.24, if applicable;

  (3) An agricultural operation that is not in compliance with COMAR 15.20.12; or

  (4) A person who has previously violated any provision of the Environment Article or any regulation adopted under the Environment Article.

#### Regulation .09 Usage of Credits by Point Sources.

*COMAR 26.08.11.09*

A. In order to use traded credits to fulfill permit requirements, a credit buyer shall select credits that meet the limitations in this chapter, including limitations relating to credit lifespan, trading, trading regions, and local water quality standards and requirements.

B. The use of a credit shall be consistent with the credit’s certification.

C. The Department shall prorate the amount of certified credits generated from any BMP for use in the year the credits are certified, while the total amount of certified credits generated from any BMP are not valid for use until the following year starting January 1.

D. Credits may not be used for the purpose of complying with technology-based effluent limitations.

E. The use of certified credits by a point source shall be subject to the terms and conditions of the permit to which the certified credits apply.

F. Permits may contain conditions on the use of certified credits, including:

  (1) The extent to which the requirement of the permit may be satisfied with certified credits; and

  (2) When, and from what source, certified credits may be acquired by the permittee.

#### Regulation .10 Registration of Trades.

*COMAR 26.08.11.10*

A. A credit buyer shall notify the Department about each trade by filing a form provided by the Department within 15 days after the trade.

B. Within 15 days after receipt of the notification form required by §A of this regulation, the Department shall update the Registry, including the registration number for the credit, its location, duration, and the intended use of the credit.

C. The Department shall update the Registry within 30 days after receiving notice from the credit buyer of a change in the intended use of the credit.

#### Regulation .11 Verification and Reporting Requirements.

*COMAR 26.08.11.11*

A. In its certification of a credit, the Department shall state the frequency at which the credits shall be verified, which shall be in accordance with local, State, and federal law and permit requirements, but shall be no less frequently than every three years.

B. Verification Requirements.

  (1) Verification of credits generated by a wastewater point source shall include a report submitted to the Department annually for approval which includes certified discharge monitoring reports, appropriate annual reports, inspections, and any other reporting terms specified within the wastewater point source permit or required by the Department.

  (2) Verification of credits generated by any other source shall be performed by a:

    (a) State or county inspector;

    (b) Professional engineer registered in Maryland; or

    (c) Department-approved verifier.

  (3) Before performing any verification under §B(2) of this regulation, the inspector, engineer, or verifier shall demonstrate to the Department that the inspector, engineer, or verifier:

    (a) Has the appropriate education, expertise, and training to perform the verification;

    (b) Does not hold an interest in the operation or entity generating the credit; and

    (c) Was not involved in the original application or qualification of the credits.

C. Each report prepared by an inspector, engineer, or verifier in accordance with §B(2) of this regulation shall include:

  (1) Documentation that the BMP implemented continues to meet baseline compliance and that the credit generating BMP continues to be operated and maintained in accordance with the terms of the trading contract and the requirements of this chapter; and

  (2) Confirmation that no deficiencies exist and no corrective measures are needed or a detailed description of deficiencies and required corrective actions.

D. Based on the information obtained in the verification reports, the Department shall update the Registry as necessary.

#### Regulation .12 Public Participation.

*COMAR 26.08.11.12*

A. The Department shall provide notice, and an opportunity for comment and a hearing, if requested, for NPDES and State discharge permits that propose to allow trading under this chapter in accordance with the federal Clean Water Act and Environment Article, Annotated Code of Maryland, for new permits or modification of existing permits, as applicable.

B. The Department shall report all credit trades by a stormwater point source permittee annually, and make the report available to the public on the Registry.

#### Regulation .13 Enforcement.

*COMAR 26.08.11.13*

A. If a BMP is not performing in conformance with its certification the Department may order:

  (1) Repairs or other remedies to address or eliminate any deficiencies, within a time period determined by the Department;

  (2) Additional inspections; and

  (3) Written substantiations that corrective measures have been taken.

B. The Department may suspend or revoke certification of a credit if:

  (1) There are any violations of this chapter;

  (2) A BMP is not performing in conformance with its certification;

  (3) The Department determines that misleading, false, or fraudulent information was provided in the application for certification of such credit or any other submission related to such credit; or

  (4) Any other action or inaction by a credit seller or credit buyer that the Department determines provides good cause to suspend or revoke such certification.

C. Within 30 days of a determination to suspend or revoke a certification, the Department shall:

  (1) Issue a notice of the suspension or revocation of credit certification, including an effective date thereof, to the credit seller and the credit buyer; and

  (2) Update the Registry to reflect the suspension or revocation.

D. A corrective action order does not preclude the Department from exercising its enforcement authority. Suspension or revocation of credit certification does not preclude any other legal action that may be taken by the Department or another public or private entity.

#### Regulation .14 Appeal Process.

*COMAR 26.08.11.14*

Any person aggrieved by the suspension or revocation of a credit taken in accordance with this chapter shall have the right to review in accordance with the provisions of the Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

## Subtitle 09 — Maryland Co2 Budget Trading Program

### Chapter 01 — General Administrative Provisions

**Authority:** Environment Article, §§1-101, 1-404, 2-103, and 2-1002(g), Annotated Code of Maryland

**Administrative History:** Effective date: July 17, 2008 (35:14 Md. R. 1247)

**Administrative History:** Regulation .01 amended effective December 31, 2018 (45:26 Md. R. 1249)

**Administrative History:** Regulation .02B amended effective May 18, 2009 (36:10 Md. R. 717)

**Administrative History:** Regulation .02B amended as an emergency provision effective December 28, 2009 (37:4 Md. R. 336); amended permanently effective May 3, 2010 (37:9 Md. R. 674)

**Administrative History:** Regulation .02B amended as an emergency provision effective February 1, 2011 (38:4 Md. R. 263); amended permanently effective May 16, 2011 (38:10 Md. R. 617)

**Administrative History:** Regulation .02B amended effective August 6, 2012 (39:15 Md. R. 964); January 21, 2013 (40:1 Md. R. 22); January 6, 2014 (40:26 Md. R. 2165); February 12, 2018 (45:3 Md. R. 157); December 31, 2018 (45:26 Md. R. 1249); March 30, 2026 (53:6 Md. R. 292)

**Administrative History:** Regulation .03B amended effective May 18, 2009 (36:10 Md. R. 717)

**Administrative History:** Regulation .03B amended as an emergency provision effective December 28, 2009 (37:4 Md. R. 336); amended permanently effective May 3, 2010 (37:9 Md. R. 674)

**Administrative History:** Regulation .03B amended effective January 6, 2014 (40:26 Md. R. 2165); December 31, 2018 (45:26 Md. R. 1249); March 30, 2026 (53:6 Md. R. 292)

**Administrative History:** Regulation .04 amended effective May 18, 2009 (36:10 Md. R. 717)

**Administrative History:** Regulation .04C, L amended effective December 31, 2018 (45:26 Md. R. 1249)

**Administrative History:** Regulation .04L amended effective March 30, 2026 (53:6 Md. R. 292)

**Administrative History:** Regulation .05 amended effective May 18, 2009 (36:10 Md. R. 717)

**Administrative History:** Regulation .05L, N amended effective December 31, 2018 (45:26 Md. R. 1249)

**Administrative History:** Regulation .05M repealed as an emergency provision effective December 28, 2009 (37:4 Md. R. 336); repealed permanently effective May 3, 2010 (37:9 Md. R. 674)

**Administrative History:** Regulation .06 amended effective May 18, 2009 (36:10 Md. R. 717)

#### Regulation .01 Purpose.

*COMAR 26.09.01.01*

The purpose of this chapter is to define the terms used in this subtitle, to identify the documents that are incorporated by reference in this subtitle, and identify the selection process and responsibilities of CO2 authorized account representatives and alternate CO2 authorized account representatives that perform various functions on behalf of the owners or operators of CO2 budget sources or units. The definitions and documents incorporated by reference relate to requirements and procedures that apply to affected CO2 budget sources and units to reduce emissions of carbon dioxide (CO2) and other greenhouse gases into the air.

#### Regulation .02 Definitions.

*COMAR 26.09.01.02*

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Account number” means the identification number given to each CO2 account.

  (2) “Administrator” means the Administrator of the United States Environmental Protection Agency or the Administrator's authorized representative.

  (3) “Allocate” means to distribute and record CO2 allowances in:

    (a) A CO2 budget unit's compliance account;

    (b) A set-aside account; or

    (c) The consumer energy efficiency account.

  (4) “Allocation year” means a calendar year for which CO2 allowances are allocated.

  (4-1) “Alternate CO2 authorized account representative” means:

    (a) For a CO2 budget source, the alternate individual who is authorized by the owners and operators of the source to represent and legally bind them in matters pertaining to this subtitle; or

    (b) For a general account, the alternate individual who is authorized to transfer or otherwise dispose of CO2 allowances held in the general account.

  (4-2) “Anaerobic digester” means a device that promotes the decomposition of organic material to simple organics and gaseous biogas products, in the absence of elemental oxygen, usually accomplished by means of controlling temperature and volume, and including a methane recovery system.

  (5) “Anaerobic digestion” means the decomposition of organic material, including manure, brought about through the action of microorganisms in the absence of elemental oxygen.

  (6) “Anaerobic storage” means the storage of organic material in an oxygen-free environment, or under oxygen-free conditions, including, holding tanks, ponds, and lagoons.

  (7) “ANSI” means the American National Standards Institute.

  (8) “Applicant” means a person who submits an application to qualify for participation in a CO2 allowance auction.

  (9) “Attribute” means a characteristic associated with electricity generated using a particular renewable fuel, such as its generation date, facility geographic location, unit vintage, emissions output, fuel, state program eligibility, or other characteristic that can be identified, accounted for, and tracked.

  (10) “Attribute credit” means the attributes related to one megawatt-hour of electricity generation.

  (11) “Auction” means a sale conducted by the Department in which CO2 allowances are made available to eligible categories of bidders for sale and purchase.

  (12) “Auction advisory committee” means a committee comprised of the Secretary of the Environment, the Director of the Maryland Energy Administration, and a commissioner of the Maryland Public Service Commission, or their designees.

  (12-1) “Auction clearing price” means the price per CO2 allowance at which all CO2 allowances offered for sale in the auction will be sold.

  (13) “Automated data acquisition and handling system (DAHS)” means that component of a continuous emissions monitoring system, or other approved emissions monitoring system, designed to interpret and convert individual output signals from pollutant concentration monitors, flow monitors, diluent gas monitors, and other component parts of the monitoring system to produce a continuous record of the measured parameters.

  (14) “Bidder” means a person who is participating or may potentially participate in an auction of CO2 allowances.

  (15) “Billing meter” means a measurement device used to measure electric or thermal output for commercial billing under a contract where the owners of the facility selling the electric or thermal output must be different from the owners of the party purchasing the electric or thermal output.

  (16) “Biogas” means gas resulting from the decomposition of organic matter under anaerobic conditions where the principle constituents are methane and carbon dioxide.

  (17) “Clean generation” means, in the context of the Clean Generation Set-aside Account, electricity produced by the combustion of fossil fuels at a CO2 budget unit that has implemented measures to reduce the emission of air pollutants resulting from the CO2 budget unit's production of electricity.

  (18) “Clean Generation Set-aside Account” means a general account established by the Department from which allowances are awarded to CO2 budget units and CO2 budget sources that:

    (a) Commence operation after January 1, 2009; and

    (b) Engage in clean generation.

  (18-1) Climate Action Plan.

    (a) “Climate action plan” means a written plan submitted to the Department by a CO2 budget source that identifies and analyzes its CO2e emission reduction or sequestration strategies and plans.

    (b) “Climate action plan” includes, but is not limited to, the following components:

      (i) Baseline data and forecasts for on-site CO2e emissions;

      (ii) Short and long term goals for reducing or sequestering CO2e emissions;

      (iii) Identification of CO2e emission reduction or sequestration techniques and strategies that the CO2 budget source will implement and the timetable for implementation; and

      (iv) An estimate of the CO2e emissions reductions that will result from the implementation of the emission reduction or sequestration techniques and strategies identified pursuant to §B(18-1)(b)(iii) of this regulation.

  (19) “Closed auction” means an auction where a specified number of CO2 allowances are made available for sale and purchase only to the owners or operators of a budget unit.

  (20) “CO2 allowance” means the limited authorization to emit up to 1 ton of CO2 and does not constitute a property right.

  (21) “CO2 allowance auction website” means a website that includes information including, but not limited to:

    (a) The date and time of an auction;

    (b) The number of CO2 allowances to be available for purchase at auction;

    (c) The categories of participants that are able to bid on the available allowances at auction; and

    (d) Other information that the Department determines may be pertinent to the auction.

  (22) “CO2 allowance contingency account” means an account administered by the Department to hold the following CO2 allowances:

    (a) Previously auctioned but unsold allowances;

    (b) Unretired or unallocated CO2 allowances from the Set-aside Accounts; or

    (c) Any other CO2 allowances as identified by the auction advisory committee.

  (23) “CO2 allowance deduction” means the permanent withdrawal of CO2 allowances from a CO2 compliance account for each ton of CO2 emitted from a CO2 budget unit during a control period or interim control period.

  (24) “CO2 allowances held” means the CO2 allowances recorded or submitted to be recorded in a CO2 account.

  (25) “CO2 allowance retirement account” means a general account administered by the Department to hold CO2 allowances that have been permanently retired from the Voluntary Renewable Set-aside Account or the CO2 Allowance Contingency Account.

  (26) “CO2 allowance tracking system or COATS” means the system that records allocations, deductions, and transfers of CO2 allowances which may also be used to track CO2 allowance prices, and emissions from affected sources.

  (27) “CO2 allowance transfer deadline means the deadline by which CO2 allowances must be submitted for recordation in a CO2 budget source’s compliance account for the source to meet the requirements of COMAR 26.09.02.03K for a control period or interim control period, occurring at:

    (a) Midnight of the March 1 after the end of the relevant control period or interim control period; or

    (b) If the relevant March 1 is not a business day, the deadline is midnight of the first business day thereafter.

  (28) “CO2 authorized account representative” means:

    (a) For a CO2 budget source, the individual who is authorized by the owners and operators of the source to represent and legally bind them in matters pertaining to this subtitle; or

    (b) For a general account, the individual who is authorized to transfer or otherwise dispose of CO2 allowances held in the general account.

  (29) “CO2 budget emissions limitation” means the tonnage equivalent of the CO2 allowances available for compliance deduction for a CO2 budget source for a control period or twice the CO2 allowances available for an interim control period.

  (30) “CO2 budget permit” means a permit issued to a CO2 budget source or CO2 budget unit that specifies the requirements applicable to the source or to each CO2 budget unit, and to the owners and operators and the CO2 authorized account representative of the CO2 budget source or CO2 budget unit.

  (31) “CO2 budget source” means a source that includes one or more CO2 budget units.

  (32) “CO2 budget system” means two or more CO2 budget sources subject to this subtitle that are owned, operated, or controlled by the same person.

  (33) “CO2 budget unit” means fossil fuel fired fuel-burning equipment that, after January 1, 2005, serves a generator with a nameplate capacity of 25 megawatts or greater.

  (34) “CO2 cost containment reserve tier 1 allowance or CO2 CCR tier 1 allowance” means a CO2 allowance that is offered for sale at an auction by the Department for the purpose of containing the cost of CO2 allowances, subject to the requirements of §B(34-2) of this regulation, and is separate from, and additional to, a CO2 allowance allocated from the Maryland CO2 Budget Trading Program budgets.

  (34-1) “CO2 cost containment reserve tier 2 allowance or CO2 CCR tier 2 allowance” means a CO2 allowance that is offered for sale at an auction by the Department for the purpose of containing the cost of CO2 allowances, subject to the requirements of §B(34-3) of this regulation, and is separate from, and additional to, a CO 2 allowance allocated from the Maryland CO2 Budget Trading Program budgets.

  (34-2) “CO2 cost containment reserve tier 1 trigger price, or CCR tier 1 trigger price” means the minimum price at which CO2 CCR tier 1 allowances are offered for sale by the Department at an auction, and shall be:

    (a) $19.50 per CO2 allowance for calendar year 2027; and

    (b) Each calendar year thereafter, the CCR tier 1 trigger price shall be 1.07 multiplied by the CCR tier 1 trigger price from the previous calendar year, rounded to the nearest whole cent as follows:

      (i) $20.87 for 2028;

      (ii) $22.33 for 2029;

      (iii) $23.89 for 2030;

      (iv) $25.56 for 2031;

      (v) $27.35 for 2032;

      (vi) $29.26 for 2033;

      (vii) $31.31 for 2034;

      (viii) $33.50 for 2035;

      (ix) $35.85 for 2036; and

      (x) $38.36 for 2037.

  (34-3) “CO2 cost containment reserve tier 2 trigger price, or CCR tier 2 trigger price” means the minimum price at which CO2 CCR tier 2 allowances are offered for sale by the Department at an auction, and shall be:

    (a) $29.25 per CO2 allowance for calendar year 2027; and

    (b) Each calendar year thereafter, the CCR tier 2 trigger price shall be 1.07 multiplied by the CCR tier 2 trigger price from the previous calendar year, rounded to the nearest whole cent as follows:

      (i) $31.30 for 2028;

      (ii) $33.49 for 2029;

      (iii) $35.83 for 2030;

      (iv) $38.34 for 2031;

      (v) $41.02 for 2032;

      (vi) $43.89 for 2033;

      (vii) $46.96 for 2034;

      (viii) $50.25 for 2035;

      (ix) $53.77 for 2036; and

      (x) $57.53 for 2037.

  (34-4) “CO2 emissions factor” means the average release rate of carbon dioxide (CO2) from electrical generation units that supply electricity to the PJM region relative to the total megawatt hours (MwH) supplied as expressed in pounds CO2 per MwH or metric ton of CO2 per MwH.

  (34-5) “CO2 emission offset project” means:

    (a) A historical project that allowed the Department to determine how many CO2 offset allowances to record to a sponsor’s general account related specific emission reductions outside of the electricity sector;

    (b) Can no longer be approved for the Maryland CO2 Budget Trading Program; and

    (c) CO2 offset allowances created before January 1, 2027 are eligible to meet the compliance deduction and subject to the relevant compliance deduction limitations.

  (35) “CO2 equivalent (CO2e)” means the quantity of a given greenhouse gas, other than CO2, multiplied by its global warming potential (GWP).

  (36) “CO2 offset allowance” means a CO2 allowance that is:

    (a) Determined by the Department to have been recorded, by a participating state prior to January 1, 2027, in the general account of the sponsor of a CO 2 emissions offset project; and

    (b) Is subject to the relevant compliance deduction limitations.

  (37) “Combined cycle system” means a system comprised of one or more combustion turbines, heat recovery steam generators, and steam turbines configured to improve overall efficiency of electricity generation or steam production.

  (37-1) “Combined heat and power unit, CHP unit, or cogeneration unit” means an electric generating unit that uses a steam-generating unit or stationary combustion turbine to simultaneously produce both electric (or mechanical) and useful thermal output from the same primary energy facility.

  (38) “Combustion turbine” means an enclosed fossil or other fuel-fired device comprised of a compressor, a combustor, and a turbine in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine to rotate the turbine.

  (39) “Commence commercial operation” means:

    (a) For a unit that serves a generator, the date the unit begins to produce steam, gas, or other heated medium used to generate electricity for sale or use, including test generation;

    (b) For a CO2 budget unit, the date the unit begins operation; or

    (c) For a unit that is not a CO2 budget unit, the date the unit begins commercial operation which is the date when the unit becomes a CO2 budget unit.

  (40) “Commence operation” means to begin any mechanical, chemical, or electronic process, including start-up of a unit's combustion chamber, determined as follows:

    (a) For a unit that begins operation and is subsequently modified, reconstructed, or repowered, the date for the CO2 budget unit remains the same; or

    (b) For a unit that is not a CO2 budget unit on the date of commencement of operation, the date the unit becomes a CO2 budget unit.

  (41) “Compliance account” means a budget source's CO2 account in which the CO2 allowances are held and made available for use by the source for a control period or interim control period for the purpose of meeting the source's CO2 budget emissions limitation.

  (42) “Consumer energy efficiency account” means a general account established by the Department from which allowances will be sold or distributed in order to provide funds to encourage and foster the following:

    (a) Promotion of energy efficiency measures;

    (b) Direct mitigation of electricity ratepayer impacts attributable to the implementation of this subtitle;

    (c) Promotion of renewable or non-carbon-emitting energy technologies;

    (d) Stimulation or reward of investment in the development of innovative carbon emissions abatement technologies with significant carbon reduction potential; and

    (e) Funding to implement this subtitle.

  (43) “Continuous emissions monitoring system (CEMS)” means the equipment used to sample, analyze, measure, and provide a permanent record of stack parameters and pollutant concentrations.

  (44) “Control period” means a 3-calendar year time period beginning January 1, 2009, to December 31, 2011, and each subsequent 3-year period.

  (45) “Current vintage year” means a CO2 allowance that was originated in the current calendar year.

  (46) “Department” means the Department of the Environment or its designated agent.

  (47) "Early Applicant” means an eligible CO2 budget unit that commences operation prior to or on December 31, 2017.

  (48) “Electricity supplier” has the meaning given that term in Public Utility Companies Article, §1-101(j), Annotated Code of Maryland.

  (49) “Electronic submission agent” means one or more persons designated by the authorized account representative or the alternate authorized account representative of a compliance or general account to have the authority to provide information electronically.

  (50) Eligible Biomass.

    (a) “Eligible biomass” means sustainably harvested woody and herbaceous fuel that is available on a renewable or recurring basis.

    (b) “Eligible biomass” includes:

      (i) Dedicated energy crops and trees;

      (ii) Agricultural food and feed crop residues;

      (iii) Aquatic plants;

      (iv) Unadulterated wood and wood residues;

      (v) Animal wastes;

      (vi) Other clean organic wastes not mixed with other solid wastes;

      (vii) Biogas; and

      (viii) Other neat liquid biofuels derived from the fuel sources.

    (c) “Eligible biomass” does not include old growth timber.

  (51) “Emission containment reserve account” means a general account established by the Department for the purpose of withholding CO2 allowances from sale at an auction by the Department for the purpose of additional emission reduction in the event of lower than anticipated emission reduction costs.

  (52) “Excess emissions” means the tons of CO2 emitted by a CO2 budget unit during a control period that exceeds the CO2 budget emissions limitation for the source.

  (53) “Excess interim emissions” means, during an interim control period, the amount in tons of CO2 emitted by a CO2 budget source that exceeds 50 percent of the CO2-budget emissions limitation for the source.

  (54) Fossil Fuel-Fired.

    (a) “Fossil fuel-fired” means, for a unit that commenced operation before January 1, 2005, the combustion of fossil fuel alone or in combination with any other fuel where the fossil fuel combusted comprises, or is projected to comprise, more than 50 percent of the annual heat input on a Btu basis during any year.

    (b) “Fossil fuel-fired” means, for a unit that commenced or commences operation on or after January 1, 2005, the combustion of fossil fuel alone or in combination with any other fuel, where the fossil fuel combusted comprises, or is projected to comprise, more than 5 percent of the annual heat input on a Btu basis during any year.

  (55) “Fund” means any fund authorized by the legislature to hold proceeds from the auction of CO2 allowances for any of the uses identified in this subtitle.

  (56) “GATS” means the Generation Attribute Tracking System of PJM Environmental Information Services, Inc.

  (57) “GATS reserve subaccount” means a repository in a GATS account that is designed for one-way transfers of certificates, such as RECs, for removal from circulation, as with retirement.

  (58) “General account” means a CO2 account that is not a compliance account.

  (59) “Gross generation” means the electrical output in megawatts at the terminals of the generator.

  (60) “Independent verifier” means an individual that has been approved to conduct verification activities.

  (61) “Interim control period” means a 1-calendar-year time period, during each of the first and second calendar years of each 3-year control period, further defined as follows:

    (a) The first interim control period begins on January 1, 2015 and ends on December 31, 2015, inclusive;

    (b) The second interim control period begins on January 1, 2016, and ends on December 31, 2016, inclusive; and

    (c) Each successive 3-year control period will include two interim control periods, comprised of each of the first 2 calendar years of that control period.

  (62) “Life-of-the-unit contractual arrangement” means a unit participation power sales agreement under which a customer reserves, or is entitled to receive, a specified amount or percentage of nameplate capacity or associated energy from any specified unit pursuant to a contract:

    (a) For the life of the unit;

    (b) For a cumulative term of not less than 30 years, including contracts that permit an election for early termination; or

    (c) For a period equal to or greater than 25 years or 70 percent of the economic useful life of the unit determined as of the time the unit is built, with option rights to purchase or release some portion of the nameplate capacity and associated energy generated by the unit at the end of the period.

  (63) “Long Term Contract Price” shall be:

    (a) $2.00 in calendar year 2014; and

    (b) For each calendar year thereafter, the LTCP from the previous year multiplied by 1.025, rounded to the nearest whole cent.

  (64) “Limited Industrial Exemption” means industrial generators of at least 25 megawatts which have taken a permit condition that limits the unit’s annual electrical output to the electric grid to less than or equal to 10 percent of its annual gross generation.

  (65) “Long Term Contract Set-aside Account” means a general account established by the Department from which allowances will be awarded to CO2 budget units with long term contracts after demonstration by the budget unit that purchasing allowances equal to the budget unit’s CO2 emissions will affect the financial viability of the plant.

  (66) “Market penetration rate” means a measure of the diffusion of a technology, product, or practice in a defined market, as represented by:

    (a) The percentage of annual sales for a product or practice;

    (b) A percentage of the existing installed stock for a product or category of products; or

    (c) The percentage of existing installed stock that utilizes a practice.

  (67) “Maryland CO2 Budget Trading Program base budget” is specified in COMAR 26.09.02.03A, and does not include CO2 CCR tier 1 and CO2 CCR tier 2 allowances offered for sale at an auction:

  (68) “Minimum reserve price” shall be, except for CO2 CCR tier 1 and CO2 CCR tier 2 allowances:

    (a) $9.00 in calendar year 2027; and

    (b) For each calendar year thereafter, the minimum reserve price from the previous calendar year multiplied by 1.07, rounded to the nearest whole cent as follows:

      (i) $9.63 for 2028;

      (ii) $10.30 for 2029;

      (iii) $11.02 for 2030;

      (iv) $11.79 for 2031;

      (v) $12.62 for 2032;

      (vi) $13.50 for 2033;

      (vii) $14.45 for 2034;

      (viii) $15.46 for 2035;

      (ix) $16.54 for 2036; and

      (x) $17.70 for 2037.

  (69) “Nameplate capacity” means the maximum electrical output, in megawatts, that a generator can sustain over a specified period of time when not restricted by seasonal or other deratings as measured in accordance with the United States Department of Energy standards.

  (70) Net-Electric Output.

    (a) “Net-electric output” means the amount of gross generation the generator(s) produce, as measured at the generator terminals, less the electricity used to operate the plant (i.e., auxiliary loads), including but not limited to the following:

      (i) Output from steam turbine(s);

      (ii) Combustion turbine(s);

      (iii) Gas expander(s); and

      (iv) Other generator types deemed fit by the Department.

    (b) Such uses include fuel handling equipment, pumps, fans, pollution control equipment, other electricity needs, and transformer losses as measured at the transmission side of the step up transformer (e.g., the point of sale).

  (71) “Non-CO2 budget unit” means a unit that does not serve a generator with a nameplate capacity equal to or greater than 25 megawatts.

  (72) “Non-early Applicant” means an eligible CO2 budget unit that commences operation after December 31, 2017.

  (73) “Off-site” means a location that is not contiguous with the property where the anaerobic digester is located.

  (74) “Open auction” means an auction where a specified number of CO2 allowances are made available for purchase by any authorized auction participant, including owners or operators of budget units, environmental groups, brokers, and investment facilities.

  (75) “Participating state” means a state that has established corresponding regulations as part of the CO2 Budget Trading Program.

  (76) “Permanently retired” means allowances or credits that have been placed in a retirement account and rendered unusable.

  (77) “Person” means an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any firm, partnership, association or corporation, or other entity including any public or municipal corporation and any agency, bureau, department, or instrumentality of federal, State, or local government.

  (78) “PJM Environmental Information Services, Inc. (EIS)” means the entity that owns and operates the GATS.

  (79) “PJM region” means the control area administered by the PJM Interconnection, Inc., as the area may change from time to time.

  (80) “Regional-type anaerobic digester” means an anaerobic digester using feedstock from more than one agricultural operation, or importing feedstock from more than one agricultural operation, commonly referred to as a community digester or centralized digester.

  (81) “Renewable energy” has the meaning given that term in Public Utility Companies Article, §7-701(l) and (m), Annotated Code of Maryland.

  (82) “Renewable energy credit (REC)” has the meaning given that term in Public Utility Companies Article, §7-701(i), Annotated Code of Maryland, and is created or acquired pursuant Public Utility Companies Article, Title 7, Subtitle 7, Annotated Code of Maryland.

  (83) “Renewable energy facility” has the meaning given that term in COMAR 20.61.01.03B(11).

  (84) “Renewable energy portfolio standard (RPS)” has the meaning given that term in Public Utility Companies Article, §7-701(j), Annotated Code of Maryland.

  (85) “Renewable on-site generator” has the meaning given that term in the Public Utility Companies Article §7-701(k), Annotated Code of Maryland.

  (86) “Renewable portfolio standard” means the renewable energy portfolio standard.

  (87) “Reserve price” means the minimum acceptable price at which a CO2 allowance will be sold in a given auction, defined as either the minimum reserve price, the CCR tier 1 trigger price, or the CCR tier 2 trigger price.

  (88) “Retail marketer” means, for the purposes of the voluntary renewable set-aside account, a person who provides renewable energy or renewable energy attribute credits to a retail customer through a retail sales transaction, or a person who provides to a retail customer the service of procuring and retiring renewable energy attribute credits on the customer’s behalf.

  (89) “Serial number” means the unique identification number assigned to each CO2 allowance.

  (90) “Ton or tonnage” means any “short ton”, or 2,000 pounds. For the purpose of determining compliance with the CO2 requirements of Regulations .04 and .05 of this chapter, total CO2 emissions for a control period and each interim control period shall be calculated as the sum of all recorded hourly emissions (or the tonnage equivalent of the recorded hourly emissions rates) in accordance with COMAR 26.09.02.10 and .11: with

    (a) Any remaining fraction of a ton equal to or greater than 0.50 ton deemed to equal 1 ton;

    (b) Any fraction of a ton less than 0.50 ton deemed to equal zero tons; and

    (c) A short ton is equal to 0.9072 metric tons.

  (91) “Total solids” means the total of all solids in a sample, including the total suspended solids, total dissolved solids, and volatile suspended solids.

  (92) “Transmission or distribution entity” means the assets and equipment used to transmit and distribute electricity from an electric generator to the electrical load of a customer, including all related assets and equipment located within the service territory of the entity, as specified by the applicable state regulatory agency.

  (93) “Unsold allowance” means a CO2 allowance that has been offered for sale in an auction conducted by the Department, but not sold.

  (94) “Vintage year” means the calendar year that a CO2 allowance was originated.

  (95) “Volatile solids” means the fraction of total solids that is comprised primarily of organic matter.

  (96) “Voluntary renewable CO2 emissions factor” means the average release rate of carbon dioxide (CO2) from the fossil fuel electrical generation units that supply electricity to the PJM region relative to the total megawatt hours (MwH) supplied as expressed in pounds of CO2 per MwH or metric ton of CO2 per MwH.

  (97) “Voluntary renewable energy purchase” means the purchase of electricity from renewable energy generation or renewable energy attribute credits by a retail electricity customer on a voluntary basis where the purchase may not be used by the generator or purchaser to meet any regulatory mandate, such as a renewable portfolio standard.

  (98) “Voluntary renewable set-aside account” means a general account established by the Department from which allowances will be permanently retired based upon documented purchases of voluntary renewable energy by ratepayers in Maryland.

#### Regulation .03 Incorporation by Reference.

*COMAR 26.09.01.03*

A. In this subtitle, the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) 40 CFR §72.2, as amended.

  (2) 40 CFR Part 75, including Appendices B, D, E, F, and G and Section 2.1 of Appendix A, as amended.

  (3) New York State Renewable Energy Standard Biomass Power Guide, June 2018.

#### Regulation .04 Selection and Responsibilities of CO

*COMAR 26.09.01.04*

A. By January 1, 2009, the Department shall establish a single compliance account for each CO2 budget source.

B. Each CO2 budget source shall have a CO2 authorized account representative and an alternate CO2 authorized account representative.

C. The CO2 authorized account representative and alternate CO2 authorized account representative of the CO2 budget source shall be selected by an agreement binding on the owners and operators of the source and all CO2 budget units at the source and must act in accordance with the certificate of representation under §J of this regulation.

D. The agreement by which the alternate CO2 authorized account representative is selected shall include a procedure for authorizing the alternate CO2 authorized account representative to act instead of the CO2 authorized account representative.

E. Upon receipt of a complete account certificate of representation:

  (1) The CO2 authorized account representative and alternate CO2 authorized account representative shall represent and, by representations, actions, inactions, or submissions, legally bind each owner or operator of the CO2 budget source represented and each CO2 budget unit at the source in all matters pertaining to this subtitle, notwithstanding any agreement between the CO2 authorized account representative, alternate CO2 authorized account representative, and the owners or operators; and

  (2) The owners or operators shall be bound by any decision or order issued to the CO2 authorized account representative or alternate CO2 authorized account representative by the Department or a court regarding the CO2 budget source or unit.

F. A CO2 budget permit may not be issued or a compliance account established for a CO2 budget source until the Department has received a complete account certificate of representation for a CO2 authorized account representative and alternate CO2 authorized account representative of the source and the CO2 budget units at the source.

G. Each submission shall be signed and certified by the CO2 authorized account representative or alternate CO2 authorized account representative on behalf of each CO2 budget source and shall include the following statement by the CO2 authorized account representative or alternate CO2 authorized account representative: “I am authorized to make the submission on behalf of the owners or operators of the CO2 budget sources or CO2 budget units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in the document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment”.

H. Changing the CO2 Authorized Account Representative.

  (1) The CO2 authorized account representative may be changed at any time upon receipt of a superseding complete account certificate of representation.

  (2) All representations, actions, inactions, and submissions by the previous CO2 authorized account representative before the time and date when the Department receives the superseding account certificate of representation are binding on the new CO2 authorized account representative and the owners or operators of the CO2 budget source and the CO2 budget units at the CO2 budget source.

I. Changes in the Owners and Operators.

  (1) If a new owner or operator of a CO2 budget source or a CO2 budget unit is not included in the list of owners or operators submitted in the account certificate of representation, the new owner or operator shall be deemed to be subject to and bound by the account certificate of representation, the representations, actions, inactions, and submissions of the CO2 authorized account representative or alternate CO2 authorized account representative of the CO2 budget source or unit, and the decisions, orders, actions, and inactions of the Department, as if the new owner or operator were included in the list.

  (2) Within 30 days following any change in the owners or operators of a CO2 budget source or a CO2 budget unit, including the addition or deletion of an owner or operator, the CO2 authorized account representative or alternate CO2 authorized account representative shall submit a revision to the account certificate of representation amending the list of owners or operators to include the change.

J. Account Certificate of Representation.

  (1) A complete account certificate of representation for a CO2 authorized account representative or alternate CO2 authorized account representative shall include the following:

    (a) Identification of the CO2 budget source and each CO2 budget unit at the source for which the account certificate of representation is submitted;

    (b) The name, address, email address, telephone number, and facsimile transmission number of the CO2 authorized account representative;

    (c) A list of the owners or operators of the CO2 budget source and of each CO2 budget unit at the source;

    (d) The following certification statement by the CO2 authorized account representative or alternate CO2 authorized account representative: “I certify that I was selected as the CO2 authorized account representative or alternate CO2 authorized account representative, as applicable, by an agreement binding on the owners or operators of the CO2 budget source and each CO2 budget unit at the source. I certify that I have all the necessary authority to carry out my duties and responsibilities under this subtitle on behalf of the owners or operators of the CO2 budget source and of each CO2 budget unit at the source and that each owner or operator shall be fully bound by my representations, actions, inactions, or submissions and by any decision or order issued to me by the Department or a court regarding the source or unit.”; and

    (e) The signature of the CO2 authorized account representative or alternate CO2 authorized account representative and the dates signed.

  (2) Unless otherwise required, documents of agreement referred to in the account certificate of representation are not submitted, and the Department is not under any obligation to review or evaluate the sufficiency of these documents, if submitted.

K. Objections Concerning the CO2 Authorized Account Representative or Alternate CO2 Authorized Account Representative.

  (1) Once a complete account certificate of representation has been submitted and received, the Department shall rely on the account certificate of representation until the Department receives a superseding complete account certificate of representation.

  (2) An objection or other communication submitted concerning the authorization, or any representation, action, inaction, or submission of the CO2 authorized account representative or alternate CO2 authorized account representative does not affect any representation, action, inaction, or submission of the CO2 authorized account representative or alternate CO2 authorized account representative or the finality of any decision or order by the Department under this subtitle.

  (3) The Department may not adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of any CO2 authorized account representative or alternate CO2 authorized account representative, including private legal disputes concerning the proceeds of CO2 allowance transfers.

L. Delegation by CO2 Authorized Account Representative or Alternate CO2 Authorized Account Representative.

  (1) A CO2 authorized account representative or alternate CO2 authorized account representative may delegate to one or more individuals the authority to make an electronic submission under this subtitle.

  (2) In order to delegate authority to make an electronic submission, the CO2 authorized account representative or alternate CO2 authorized account representative shall submit a notice of delegation in a format prescribed by the Department that includes the following:

    (a) The name, address, email address, telephone number, and facsimile transmission number of the CO2 authorized account representative or alternate CO2 authorized account representative;

    (b) The name, address, email address, telephone number, and facsimile transmission number of each individual, referred to in this subtitle as the electronic submission agent;

    (c) For each electronic submission agent, a list of the types of electronic submissions for which authority is delegated to that individual; and

    (d) The following certification statements by the CO2 authorized account representative or alternate CO2 authorized account representative:

      (i) “I agree that any electronic submission by an individual identified in this notice of delegation and of a type listed for the electronic submission agent in this notice of delegation and that is made while I am a CO2 authorized account representative or alternate CO2 authorized account representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under COMAR 26.09.01.04L shall be deemed to be an electronic submission by me.”; and

      (ii) “Until this notice of delegation is superseded by another notice of delegation, I agree to maintain an email account and to notify the Department immediately of any change in email address unless all delegation authority by me under COMAR 26.09.01.04L is terminated”.

  (3) A notice of delegation submitted under this regulation is effective upon receipt of the notice by the Department and until receipt by the Department of a superseding notice of delegation by the CO2 authorized account representative or alternate CO2 authorized account representative.

  (4) The superseding notice of delegation may replace any previously identified electronic submission agent, add a new electronic submission agent, or eliminate entirely any delegation of authority.

  (5) An electronic submission covered by the certification and made in accordance with a notice of delegation is deemed to be an electronic submission by the CO2 authorized account representative or alternate CO2 authorized account representative submitting the notice of delegation.

  (6) A CO2 authorized account representative may delegate, to one or more natural persons, his or her authority to review information in the CO2 allowance tracking system under this regulation.

  (7) An alternate CO2 authorized account representative may delegate, to one or more natural persons, his or her authority to review information in the CO2 allowance tracking system under this regulation.

  (8) In order to delegate authority to review information in the CO2 allowance tracking system in accordance with §L(6) and (7) of this regulation, the CO2 authorized account representative or alternate CO2 authorized account representative, as appropriate, must submit to the Department a notice of delegation, in a format prescribed by the Department that includes the following:

    (a) The name, address, e-mail address, telephone number, and facsimile transmission number of such CO2 authorized account representative or alternate CO2 authorized account representative;

    (b) The name, address, e-mail address, telephone number and facsimile transmission number of each such natural person, herein referred to as the “reviewer”;

    (c) For each such natural person, a list of the type of information under §L(6) and (7) of this regulation for which reviewing authority is delegated to him or her; and

    (d) The following certification statements by such CO2 authorized account representative or alternate CO2 authorized account representative:

      (i) “I agree that any information that is reviewed by a natural person identified in this notice of delegation and of a type listed for such information accessible by the reviewer in this notice of delegation and that is made while I am a CO2 authorized account representative or alternate CO2 authorized account representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under COMAR 26.09.01.04L shall be deemed to be reviewed by me.”

      (ii) “Until this notice of delegation is superseded by another notice of delegation under COMAR 26.09.01.04L, I agree to maintain an e-mail account and to notify the Department immediately of any change in my e-mail address unless delegation authority by me under COMAR 26.09.01.04L is terminated.”

  (9) A notice of delegation submitted under §L8 of this regulation shall be effective, with regard to the CO2 authorized account representative or alternate CO2 authorized account representative identified in such notice, upon receipt of such notice by the Department or its agent and until receipt by the Department or its agent of a superseding notice of delegation by such CO2 authorized account representative or alternate CO2 authorized account representative as appropriate. The superseding notice of delegation may replace any previously identified review, add a new review, or eliminate entirely any delegation of authority.

  (10) Reviewed information covered by the certification and done in accordance with a notice of delegation is deemed to be reviewed by the CO2 authorized account representative or alternate CO2 authorized account representative submitting the notice of delegation.

#### Regulation .05 Selection and Responsibilities of General Account Authorized Account Representatives.

*COMAR 26.09.01.05*

A. Upon request, the Department shall establish a general account for any person that designates a CO2 authorized account representative and an alternate CO2 authorized account representative.

B. The agreement by which the alternate CO2 authorized account representative is selected shall include a procedure for authorizing the alternate CO2 authorized account representative to act instead of the CO2 authorized account representative.

C. A complete application for a general account submitted to the Department shall include the following:

  (1) Name, address, email address, telephone number, and facsimile transmission number of the CO2 authorized account representative and the alternate CO2 authorized account representative;

  (2) Organization name and type of organization;

  (3) A list of all persons subject to a binding agreement for the CO2 authorized account representative or the alternate CO2 authorized account representative to represent their ownership interest with respect to the CO2 allowances held in the general account;

  (4) The following certification statement by the CO2 authorized account representative and the alternate CO2 authorized account representative: “I certify that I was selected as the CO2 authorized account representative or the CO2 alternate authorized account representative, as applicable, by an agreement that is binding on all persons who have an ownership interest with respect to CO2 allowances held in the general account. I certify that I have all the necessary authority to carry out my duties and responsibilities under the CO2 Budget Trading Program on behalf of these persons and that each person shall be fully bound by my representations, actions, inactions, or submissions and by any order or decision issued to me by the Department or a court regarding the general account.”; and

  (5) The signature of the CO2 authorized account representative and the alternate CO2 authorized account representative and the dates signed.

D. Unless otherwise required, documents of agreement referred to in the application for a general account are not submitted to the Department and the Department is not under any obligation to review or evaluate the sufficiency of any submitted documents.

E. The CO2 authorized account representative and the alternate CO2 authorized account representative for the general account shall represent and, by representations, actions, inactions, or submissions, legally bind each person who has an ownership interest with respect to CO2 allowances held in the general account in all matters pertaining to this subtitle, notwithstanding any agreement between the CO2 authorized account representative or the alternate CO2 authorized account representative and the owner.

F. The owner is bound by any order or decision issued to the CO2 authorized account representative or the alternate CO2 authorized account representative by the Department or a court regarding the general account.

G. Each submission concerning the general account shall be signed and certified by the CO2 authorized account representative or the alternate CO2 authorized account representative for the persons having an ownership in the CO2 allowances held in the general account.

H. Each submission shall include the following certification statement by the CO2 authorized account representative or the alternate CO2 authorized account representative: “I am authorized to make this submission on behalf of the persons having an ownership interest with respect to the CO2 allowances held in the general account. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment”.

I. Changing CO2 Authorized Account Representatives.

  (1) The CO2 authorized account representative or alternate CO2 authorized account representative for a general account may be changed at any time upon receipt of a superseding complete application for a general account.

  (2) Notwithstanding any changes, all representations, actions, inactions, and submissions by the previous CO2 authorized account representative or alternate CO2 authorized account representative before the time and date when the Department receives the superseding application for a general account are binding on the new CO2 authorized account representative or alternate CO2 authorized account representative and the persons with an ownership in the CO2 allowances in the general account.

J. Changes in Persons with Ownership Interest.

  (1) If a new person having an ownership interest with respect to CO2 allowances in the general account is not included in the list of persons in the application for a general account, the new person shall be deemed to be subject to and bound by the application for a general account, the representations, actions, inactions, and submissions of the CO2 authorized account representative or alternate CO2 authorized account representative, and the decisions, orders, actions, and inactions of the Department, as if the new person were included in the list.

  (2) Within 30 days following any change in the persons having an ownership interest with respect to CO2 allowances in the general account, including the addition or deletion of persons, the CO2 authorized account representative or alternate CO2 authorized account representative shall submit a revision to the application for a general account amending the list of persons having an ownership interest with respect to the CO2 allowances in the general account to include the change.

K. Objections Concerning CO2 Authorized Account Representative or Alternate CO2 Authorized Account Representative.

  (1) Following receipt of a complete application for a general account, the Department shall rely on the application until a superseding complete application for a general account is received by the Department.

  (2) An objection or other communication submitted to the Department concerning the authorization, or any representation, action, inaction, or submission of the CO2 authorized account representative or alternate CO2 authorized account representative for a general account does not affect any representation, action, inaction, or submission of the CO2 authorized account representative or alternate CO2 authorized account representative or the finality of any decision or order by the Department under this subtitle.

  (3) The Department may not adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of the CO2 authorized account representative or alternate CO2 authorized account representative for a general account, including private legal disputes concerning the proceeds of CO2 allowance transfers.

L. Delegation by CO2 Authorized Account Representative.

  (1) A CO2 authorized account representative or alternate CO2 authorized account representative may delegate, to one or more individuals, the authority to make an electronic submission.

  (2) In order to delegate authority to make an electronic submission, the CO2 authorized account representative or alternate CO2 authorized account representative shall submit a notice of delegation, in a format prescribed by the Department.

  (3) Notice of Delegation. The notice of delegation shall include the following elements:

    (a) The name, address, email address, telephone number, and facsimile transmission number of the CO2 authorized account representative or alternate CO2 authorized account representative;

    (b) The name, address, email address, telephone number, and facsimile transmission number of each individual, referred to in this subtitle as the electronic submission agent;

    (c) For each electronic submission agent, a list of the type of electronic submissions for which authority is delegated to that individual; and

    (d) The following certification statements by the CO2 authorized account representative or alternate CO2 authorized account representative:

      (i) “I agree that any electronic submission to the Department by an individual identified in this notice of delegation and of a type listed for the electronic submission agent in this notice of delegation and that is made when I am a CO2 authorized account representative or alternate CO2 authorized account representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation shall be deemed to be an electronic submission by me.”; and

      (ii) “Until this notice of delegation is superseded by another notice of delegation, I agree to maintain an email account and to notify the Department or its agent immediately of any change in my email address unless all delegation authority by me is terminated”.

  (4) A notice of delegation is effective upon receipt of the notice by the Department and until receipt of a superseding notice of delegation by the CO2 authorized account representative or alternate CO2 authorized account representative.

  (5) The superseding notice of delegation may replace any previously identified electronic submission agent, add a new electronic submission agent, or eliminate entirely any delegation of authority.

  (6) An electronic submission covered by the certification and made in accordance with a notice of delegation is deemed to be an electronic submission by the CO2 authorized account representative or alternate CO2 authorized account representative submitting the notice of delegation.

  (7) A CO2 authorized account representative may delegate, to one or more natural persons, his or her authority to review information in the CO2 allowance tracking system under this regulation.

  (8) An alternate CO2 authorized account representative may delegate, to one or more natural persons, his or her authority to review information in the CO2 allowance tracking system under this regulation.

  (9) In order to delegate authority to review information in the CO2 allowance tracking system in accordance with §L7 and 8 of this regulation, the CO2 authorized account representative or alternate CO2 authorized account representative, as appropriate, must submit to the Department a notice of delegation, in a format prescribed by the Department that includes the following:

    (a) The name, address, e-mail address, telephone number, and facsimile transmission number of such CO2 authorized account representative or alternate CO2 authorized account representative;

    (b) The name, address, e-mail address, telephone number and facsimile transmission number of each such natural person, herein referred to as the “reviewer”;

    (c) For each such natural person, a list of the type of information under §L(7) and (8) of this regulation for which authority is delegated to him or her; and

    (d) The following certification statements by such CO2 authorized account representative or alternate CO2 authorized account representative:

      (i) “I agree that any information that is reviewed by a natural person identified in this notice of delegation and of a type listed for such information accessible by the reviewer in this notice of delegation and that is made when I am a CO2 authorized account representative or alternate CO2 authorized account representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under COMAR 26.09.01.05L shall be deemed to be reviewed by me.”

      (ii) “Until this notice of delegation is superseded by another notice of delegation under COMAR 26.09.01.05L, I agree to maintain an e-mail account and to notify the Department or its agent immediately of any change in my e-mail address unless delegation authority by me under COMAR 26.09.01.05L is terminated.”

  (10) A notice of delegation submitted under §L(9) of this regulation shall be effective, with regard to the CO2 authorized account representative or alternate CO2 authorized account representative identified in such notice, upon receipt of such notice by the Department or its agent and until receipt by the Department or its agent of a superseding notice of delegation by such CO2 authorized account representative or alternate CO2 authorized account representative as appropriate. The superseding notice of delegation may replace any previously identified review, add a new review, or eliminate entirely any delegation of authority.

  (11) Reviewed information covered by the certification and done in accordance with a notice of delegation is deemed to be reviewed by the CO2 authorized account representative or alternate CO2 authorized account representative submitting the notice of delegation.

  (12) Account Identification. The Department shall assign a unique identifying number to each account established.

M. Repealed.

N. Closing of General Accounts.

  (1) A CO2 authorized account representative or alternate CO2 authorized account representative of a general account may close the account by submitting a statement to the Department requesting deletion of the account and by submitting a CO2 allowance transfer of all CO2 allowances in the account to one or more other CO2 Allowance Tracking System accounts.

  (2) If a general account shows no activity for a period of 1 year or more and does not contain any CO2 allowances, the Department may notify the CO2 authorized account representative for the account that the account will be closed 30 business days after the notice is sent.

  (3) The general account shall be closed after the 30-day period unless, before the end of the 30-day period, the Department receives the following:

    (a) A transfer of CO2 allowances into the account; or

    (b) A statement submitted by the CO2 authorized account representative or alternate CO2 authorized account representative demonstrating to the satisfaction of the Department good cause as to why the account should not be closed.

#### Regulation .06 CO

*COMAR 26.09.01.06*

A. CO2 Allowance Transfers. To transfer a CO2 allowance, the CO2 authorized account representative or alternate CO2 authorized account representative shall submit the following information to the Department:

  (1) The account numbers of both the transferor and the transferee;

  (2) The serial numbers of each CO2 allowance to be transferred;

  (3) The printed name and signature of the CO2 authorized account representative of the transferor account and the date signed;

  (4) The date when the last sale or purchase transaction was completed for each allowance, if any; and

  (5) The purchase or sale price of the allowances that are to be sold or purchased.

B. Recording the Transfer of Allowances.

  (1) The Department shall record the transfer of each CO2 allowance from the transferor account to the transferee account within 5 business days of receiving a CO2 allowance transfer, if:

    (a) The transfer was submitted in accordance with the provisions in §A of this regulation;

    (b) At the time of the transfer, the transferor account contains each CO2 allowance, identified by serial number, to be transferred.

  (2) The Department may not record the allowance transfer within 5 business days if:

    (a) The request for allowance transfer is received after the CO2 allowance transfer deadline; and

    (b) The transfer includes CO2 allowances that belong to the allocation years that fall within the same or prior control periods to which the CO2 allowance transfer deadline applies.

  (3) When all requirements are satisfied, the Department shall record the transfer after deducting allowances for compliance.

C. Notification of a Transfer.

  (1) Notice of Recording a Transfer. The Department shall notify the CO2 authorized account representatives or alternate CO2 authorized account representatives of both the transferor and transferee accounts of a transfer of CO2 allowances within 5 business days of recording the transfer.

  (2) Notice of Not Recording a Transfer. Within 10 business days of receipt of a request for CO2 transfer that fails to meet the requirements of this regulation, the Department shall notify the CO2 authorized account representatives or alternate CO2 authorized account representatives of both accounts of the decision not to record the transfer and the reasons for the decision.

  (3) Upon satisfying applicable requirements, a CO2 allowance transfer may be resubmitted for recording.

### Chapter 02 — Applicability, Determining Compliance, and Allowance Distribution

**Authority:** Environment Article, §§1-101, 1-404, 2-103, and 2-1002(g), Annotated Code of Maryland

**Administrative History:** Effective date: July 17, 2008 (35:14 Md. R. 1247)

**Administrative History:** Chapter revised effective May 18, 2009 (36:10 Md. R. 717)

**Administrative History:** Regulation .02 amended effective January 6, 2014 (40:26 Md. R. 2165)

**Administrative History:** Regulation .03 amended effective January 21, 2013 (40:1 Md. R. 22); January 6, 2014 (40:26 Md. R. 2165); December 31, 2018 (45:26 Md. R. 1249); March 30, 2026 (53:6 Md. R. 292)

**Administrative History:** Regulation .04A amended effective December 31, 2018 (45:26 Md. R. 1249)

**Administrative History:** Regulation .05A amended as an emergency provision effective December 28, 2009 (37:4 Md. R. 336); amended permanently effective May 3, 2010 (37:9 Md. R. 674); August 6, 2012 (39:15 Md. R. 964)

**Administrative History:** Regulation .05A amended effective January 6, 2014 (40:26 Md. R. 2165)

**Administrative History:** Regulation .05C repealed effective January 6, 2014 (40:26 Md. R. 2165)

**Administrative History:** Regulation .06 amended effective March 30, 2026 (53:6 Md. R. 292)

**Administrative History:** Regulation .06B amended effective January 21, 2013 (40:1 Md. R. 22); December 31, 2018 (45:26 Md. R. 1249)

**Administrative History:** Regulation .06D amended effective December 31, 2018 (45:26 Md. R. 1249)

**Administrative History:** Regulation .06G amended effective August 6, 2012 (39:15 Md. R. 964); January 21, 2013 (40:1 Md. R. 22); December 31, 2018 (45:26 Md. R. 1249)

**Administrative History:** Regulation .07 amended effective January 21, 2013 (40:1 Md. R. 22); December 31, 2018 (45:26 Md. R. 1249)

**Administrative History:** Regulation .07H amended effective January 6, 2014 (40:26 Md. R. 2165)

**Administrative History:** Regulation .07J adopted effective March 30, 2026 (53:6 Md. R. 292

**Administrative History:** Regulation .07N amended effective August 6, 2012 (39:15 Md. R. 964)

**Administrative History:** Regulation .08 amended as an emergency provision effective February 1, 2011 (38:4 Md. R. 263); amended permanently effective May 16, 2011 (38:10 Md. R. 617)

**Administrative History:** Regulation .08A amended effective January 21, 2013 (40:1 Md. R. 22)

**Administrative History:** Regulation .08C amended effective August 6, 2012 (39:15 Md. R. 964); January 21, 2013 (40:1 Md. R. 22)

**Administrative History:** Regulation .08D adopted effective February 12, 2018 (45:3 Md. R. 157)

**Administrative History:** Regulation .09 amended effective February 12, 2018 (45:3 Md. R. 157)

**Administrative History:** Regulation .09B amended effective January 21, 2013 (40:1 Md. R. 22)

**Administrative History:** Regulation .09H amended effective August 6, 2012 (39:15 Md. R. 964); January 21, 2013 (40:1 Md. R. 22)

**Administrative History:** Regulation .10 amended effective March 30, 2026 (53:6 Md. R. 292)

**Administrative History:** Regulation .11 D, E amended effective March 30, 2026 (53:6 Md. R. 292)

**Administrative History:** Regulation .11H amended effective December 31, 2018 (45:26 Md. R. 1249)

#### Regulation .01 Purpose.

*COMAR 26.09.02.01*

The purpose of this chapter is to establish emissions limitations and procedures that apply to CO2 budget sources and units for the use of CO2 allowances. In this chapter, compliance with emission limitations is achieved through a process that involves the transfer of allowances from and into CO2 budget source accounts.

#### Regulation .02 Applicability.

*COMAR 26.09.02.02*

A. The requirements of this chapter apply to the owner or operator of a CO2 budget unit. When this chapter establishes a requirement such as the submittal of a permit application, a report, a request for allowances or transfer of allowances, or general information, these actions shall be achieved through the CO2 authorized account representative on behalf of the owner or operator of the affected CO2 budget source or unit.

B. When this chapter states that an action is to be achieved by the authorized account representative of a CO2 budget unit or source, the action may be achieved by the alternate authorized account representative, or the delegated representative, on behalf of the owner or operator of the CO2 budget unit or source.

C. The requirements of this subtitle are effective on January 1, 2009 or, for new CO2 budget units, on the day on which the unit commences operation.

D. The provisions of this subtitle do not exempt or otherwise relieve the owners or operators of a CO2 budget source from achieving compliance with any other provision of applicable State and federal laws and regulations.

E. Unless otherwise stated under this subtitle, any time period scheduled to begin:

  (1) On the occurrence of an act or event, begins on the day the act or event occurs; and

  (2) Before the occurrence of an act or event, is computed so that the period ends the day before the act or event occurs.

F. Unless otherwise stated, if the final day of any time period for performing an act required by this subtitle falls on a weekend or on a State or federal holiday, the time period is extended until or to the next business day.

#### Regulation .03 Distribution of CO

*COMAR 26.09.02.03*

A. The Maryland CO2 Budget Trading Program consists of allowances to cover CO2 emissions for the following:

  (1) 12,663,369 tons for 2027;

  (2) 11,080,448 tons for 2028;

  (3) 9,497,526 tons for 2029;

  (4) 7,914,605 tons for 2030;

  (5) 6,331,684 tons for 2031;

  (6) 4,748,763 tons for 2032;

  (7) 3,165,842 tons for 2033;

  (8) 2,713,579 tons for 2034;

  (9) 2,261,316 tons for 2035;

  (10) 1,809,053 tons for 2036; and

  (11) 1,356,790 tons for 2037 and each succeeding calendar year.

B. CO2 Allowances Available for Allocation. For the allocation year 2027 and each succeeding calendar year, the Maryland CO2 Budget Trading Program base budget shall be the maximum number of allowances available for allocation in a given allocation year, except for CO2 CCR tier 1 and CO2 CCR tier 2 allowances.

C. Cost Containment Reserve Allocation.

  (1) The Department shall allocate CO2 CCR tier 1 and CO2 CCR tier 2 allowances, separate from and in addition to the Maryland CO2 Budget Trading Program base budget set forth in §A of this regulation, to the Consumer Energy Efficiency Account. The CCR allocation is for the purpose of containing the cost of CO2 allowances..

  (2) On or before January 1, 2027, and each calendar year thereafter, the Department shall allocate 2,130,856 current vintage year CO2 CCR tier 1 and 2,130,856 CO2 CCR tier 2 allowances, and withdraw the number of CO2 CCR tier 1 and CO2 CCR tier 2 allowances that remain in the Maryland CO2 Budget Trading Program at the end of the prior calendar year.

  (3) The Department shall withdraw the number of CO2 allowances that remain in the Consumer Energy Efficiency Account at the end of the prior calendar year.

D. Repealed.

E. Serial Numbers for CO2 Allowances. Before allowances are made available for allocation, the Department shall assign a unique serial number to each allowance including digits that will identify the year the allowances are made available.

F. Repealed.

G. Repealed.

H. Repealed.

I. Repealed.

J. General Distribution of CO2 Allowances.

  (1) The Department shall open and manage a general account for the following:

    (a) The Long Term Contract Set-aside Account;

    (b) The Clean Generation Set-aside Account; and

    (c) The Consumer Energy Efficiency Account.

  (2) On or before January 31 of each calendar year, the Department shall allocate all CO2 allowances from the CO2 Budget Trading Program to the Consumer Energy Efficiency Account, except as directed in §J(3) and (4) of this regulation.

  (3) The Department shall allocate CO2 allowances from the Consumer Energy Efficiency Account to each of the following accounts, except as directed in Regulation .09 of this chapter, so that the total number of allowances in each account is:

    (a) 1,600,000 in the Long Term Contract (LTC) Set-aside Account; and

    (b) The following number of allowances in the Clean Generation Set-aside Account:

      (i) 1,687,679 for 2018;

      (ii) 1,500,159 for 2019;

      (iii) 1,312,639 for 2020;

      (iv) 1,125,119 for 2021; and

      (v) 937,599 for 2022.

  (4) If, on December 31 of each year, allowances have been sold or awarded from a set-aside account such that the number of allowances in the set-aside account falls below the required allocation in §J(3)(a)—(c) of this regulation, as applicable, that account shall be replenished from the Consumer Energy Efficiency Account in the following calendar year using allowances from that calendar year.

K. Demonstrating Compliance.

  (1) Unless otherwise specified in this chapter, a CO2 budget source shall demonstrate compliance with its CO2 budget emissions limitation by holding one CO2 allowance in its compliance account for every ton of CO2 that it emits in a control period, by the allowance transfer deadline for that control period.

  (2) As of the CO2 allowance transfer deadline for an interim control period, the owners and operators of each CO2 budget source and each CO2 budget unit at the source shall hold, in the source’s compliance account for deduction under §K of this regulation, CO2 allowances for no less than 50 percent of the total number of tons of CO2 emissions for the interim control period from all CO2 budget units at the source.

  (3) Allowances Available for Compliance Deduction. The following CO2 allowances may be deducted from a compliance account for purposes of complying with a budget source's CO2 budget emissions limitation for a control period or an interim control period:

    (a) CO2 allowances that are not CO2 offset allowances and are identified as allowances falling within a prior control period, the same control period, or the same interim control period for which the allowances are deducted;

    (b) CO2 allowances that are held or transferred into the CO2 budget source's compliance account as of the CO2 allowance transfer deadline for that control period or for the interim control period contained within that control period;

    (c) CO2 offset allowances that are available to be deducted for compliance during a control period or an interim control period where the quantity of allowances is limited to:

      (i) 3.3 percent of the CO2 budget source’s CO2 emissions for that control period; or

      (ii) 3.3 percent of the CO2 budget source’s CO2 emissions for an interim control period multiplied by 0.50.

  (4) Deduction of CO2 allowances:

    (a) The Department shall deduct allowances from the CO2 budget source's compliance account until:

      (i) The number of CO2 allowances deducted equals 50 percent of the total CO2 emissions for an interim control period; or

      (ii) The number of CO2 allowances deducted equals the total CO2 emissions for the control period.

    (b) No deduction shall be made for CO2 emissions attributable to the burning of eligible biomass.

  (5) The identification of available CO2 allowances for compliance deduction by serial number or by default is as follows:

    (a) The CO2 authorized account representative for a source's compliance account may request that specific CO2 allowances, identified by serial number for a control period or interim control period, be deducted; and

    (b) In the absence of an identification or in the case of a partial identification of available CO2 allowances by serial number, the Department shall deduct CO2 allowances for a control period or interim control period in the following descending order:

      (i) For the first control period, all CO2 allowances purchased by direct sale from the Department during years 2009, 2010, and 2011 resulting from the occurrence of the $7 auction clearing price;

      (ii) All CO2 allowances for a control period allocated to a CO2 budget unit from the Long Term Contract Set-aside Account or the Clean Generation Set-aside Account;

      (iii) Subject to the relevant compliance deduction limitations identified in §K(3)(c) of this regulation, any CO2 offset allowances transferred and recorded in the compliance account, in chronological order, or, in the event that some, but not all, CO2 offset allowances from a particular allocation year are to be deduced, CO2 offset allowances shall be deducted by serial number, with lower serial number CO2 offset allowances deducted before higher serial number allowances; and

      (iv) Any CO2 allowances, other than those identified in §K(5)(b)(i)—(iii) of this regulation, that are available for deduction in the order they were recorded.

  (6) Deductions for Excess Emissions.

    (a) If a CO2 budget source has excess emissions, the Department shall deduct CO2 allowances from the CO2 budget source's compliance account equal to three times the excess emissions.

    (b) If a source’s compliance account holds insufficient CO2 allowances to cover the excess emissions, the source shall immediately transfer sufficient allowances into its compliance account.

    (c) CO2 offset allowances may not be deducted to account for the source's excess emissions.

    (d) No CO2 allowance deduction shall relieve the owners or operators of the CO2 budget units at the source of liability for any fine, penalty, assessment or obligation to comply with any other remedy, for the same violation, as ordered under applicable State law.

  (7) Guidelines.

    (a) The following guidelines apply in assessing fines, penalties, or other obligations:

      (i) For purposes of determining the number of days of violation, if a CO2 budget unit has excess emissions for a control period or interim control period, each day in the control period or interim control period, as applicable, constitutes a separate day of violation unless the owners or operators of the unit can demonstrate to the satisfaction of the Department that a lesser number of days should be considered; and

      (ii) The Department shall consider the amount of excess emissions in determining the severity of the violation.

    (b) Each ton of excess interim emissions is a separate violation.

  (8) If the CO2 budget source's compliance account no longer exists, the CO2 allowances shall be deposited in a general account selected by the owner or operator of the CO2 budget source.

  (9) Adjustments and Errors.

    (a) The Department may review and conduct independent audits concerning any submission under this subtitle and make appropriate adjustments to the information, if necessary.

    (b) The Department may correct any error in any account and, within 10 business days of making any correction, notify the CO2 authorized account representative for the account.

#### Regulation .04 Permits.

*COMAR 26.09.02.04*

A. CO2 Budget Permit Requirements.

  (1) Each CO2 budget source shall apply for and have in effect a CO2 budget permit that contains all applicable requirements.

  (2) The CO2 authorized account representative for the source shall submit an initial CO2 budget permit application by October 1, 2008, or 12 months before the date on which the CO2 budget source, or a new unit at the source, commences operation.

  (3) The CO2 budget permit application shall include the following in a format prescribed by the Department:

    (a) The identification of the CO2 budget source;

    (b) Plant name and the ORIS (Office of Regulatory Information Systems) or facility code assigned to the source by the Energy Information Administration of the U. S. Department of Energy, if applicable;

    (c) Each CO2 budget unit at the source; and

    (d) Other information required by the Department.

B. The CO2 budget permit issued by the Department shall be separate but attached to the budget source's Part 70 permit.

C. A CO2 budget permit application is timely if the application meets the requirements of this regulation.

D. A CO2 budget permit expires 5 years from the date of issuance by the Department, unless an earlier expiration date is specified in the permit.

E. A CO2 authorized account representative for the source shall submit a complete application for the renewal of an existing CO2 budget permit on forms provided by the Department not later than 90 days before the expiration of the current CO2 budget permit and in accordance with this regulation.

#### Regulation .05 Compliance Certification and Early Reductions.

*COMAR 26.09.02.05*

A. Compliance Certification Report.

  (1) Applicability and Deadline. For each control period in which a CO2 budget source is subject to the CO2 budget emissions limitation, the CO2 authorized account representative of the source shall submit a compliance certification report by the March 1 following the relevant control period. A compliance certification report is not required as part of the compliance obligation during an interim control period.

  (2) Contents of Report. The CO2 authorized account representative shall include in the compliance certification report the following:

    (a) Identification of the source and each CO2 budget unit at the source;

    (b) At the CO2 authorized account representative's option, the serial numbers of the CO2 allowances that are to be deducted from the source's compliance account for the control period, including the serial numbers of any CO2 offset allowances that are to be deducted subject to applicable limitations; and

    (c) The compliance certification required by §A(3) of this regulation.

  (3) Compliance Certification. In the compliance certification report, the CO2 authorized account representative shall certify whether the source and each CO2 budget unit at the source for which the compliance certification is submitted was operated during the control period in compliance with the requirements of this subtitle, including:

    (a) Whether each CO2 budget unit at the source was operated in compliance with the CO2 budget emissions limitation;

    (b) Whether the monitoring plan applicable to each unit at the source:

      (i) Has been maintained to reflect the actual operation and monitoring of the unit; and

      (ii) Contains all information necessary to track CO2 emissions from the unit;

    (c) Whether all CO2 emissions from each unit at the source were monitored or accounted for through the missing data procedures and reported in the quarterly monitoring reports, including:

      (i) Whether all conditional data was reported in the quarterly reports; or

      (ii) If conditional data were reported, whether the status of all conditional data has been resolved and all necessary quarterly report resubmissions have been made;

    (d) Whether the basis for certification or for using an excepted monitoring method or approved alternative monitoring method has changed; and

    (e) If a change is required to be reported, include:

      (i) The nature and reasons for the change;

      (ii) When the change occurred; and

      (iii) How the unit's compliance status was determined after the change, including the method used to determine emissions when a change mandated the need for monitor recertification.

  (4) Format of report. The CO2 authorized account representative shall submit the compliance certification report in the following manner:

    (a) Electronically to the CO2 allowance tracking system; and

    (b) Directly to the Department in a hard copy.

B. Audit of Compliance Certifications.

  (1) The Department, at its discretion, may review and conduct independent audits of any compliance certification or other submission required under this subtitle.

  (2) The Department may deduct CO2 allowances from, or transfer CO2 allowances to, a compliance account to correct errors in the account or to accurately reflect CO2 emissions, based on the information in the compliance certification or other submissions.

C. CO2 Early Reduction Allowances. The Department may award CO2 early reduction allowances (ERAs) to a CO2 budget source for reductions in emissions, including all reductions from CO2 budget units that are achieved during the early reduction period, 2006, 2007, and 2008, if:

  (1) The CO2 budget source submits an application for the award by May 1, 2009; and

  (2) The CO2 budget source:

    (a) Demonstrates that all CO2 budget units that existed at the source during the baseline period of 2003, 2004, and 2005 are included as CO2 budget units for the early reduction period; and

    (b) Includes new CO2 budget units added at the CO2 budget source during the early reduction period.

D. Calculation of Early Reduction Allowances.

  (1) The Department shall calculate the number of ERAs to be awarded to a CO2 budget source for the early reduction period based on the following methodology:

    (a) If the total heat input for all CO2 budget units at the CO2 budget source during the early reduction period is less than or equal to the total heat input for all the CO2 budget units at the CO2 budget source during the baseline period, then ERAs shall be calculated as follows:

      (i) AEERBASELINE = the average CO2 emissions rate resulting from electric energy output and thermal energy output for all of the CO2 budget units at the CO2 budget source during the baseline period (in pounds of CO2/megawatt hours (MWhth+e);

      (ii) AEERERP = the average CO2 emissions rate resulting from electric energy output and thermal energy output for all of the CO2 budget units at the CO2 budget source during the early reduction period (in pounds of CO2/ megawatt hours (MWhth+e);

      (iii) EOERP = the total electric energy output from all CO2 budget units at the CO2 budget source during the early reduction period (in megawatt hours (MWhe); and

      (iv) TOERP = the total useful thermal energy output from all CO2 budget units at the CO2 budget source during the early reduction period (in MMBtu). For purposes of this regulation, thermal energy output is converted to units of MWh by the conversion factor 1 MWh = 3.413 MMBtu;

    (b) If the total heat input to all CO2 budget units at the CO2 budget source during the early reduction period is greater than the total heat input for all the CO2 budget units at the CO2 budget source during the baseline period, then:

      (i) EBASELINE = the total CO2 emissions from all of the CO2 budget units at the CO2 budget source during the baseline period (in tons); and

      (ii) EERP = the total CO2 emissions from all of the CO2 budget units at the CO2 budget source during the early reduction period (in tons).

  (2) The CO2 budget source shall demonstrate that the data submitted in support of the early reduction application was recorded in compliance with applicable requirements for all of the baseline years and the early reduction years for which the budget source was required to report CO2 data pursuant to 40 CFR Part 75.

  (3) A CO2 budget source that was not required to submit CO2 data pursuant to 40 CFR Part 75 for any of the years contained in the baseline period or early reduction period may petition the Department as part of its application for the use of an alternative data source or sources for the calculation of early reduction allowances.

  (4) Following confirmation of a CO2 budget source's early reductions, the Department shall award the ERAs to the CO2 budget source's compliance account by December 31, 2009.

  (5) Total facility shutdowns are not eligible for ERAs.

#### Regulation .06 Limited Industrial Exemption.

*COMAR 26.09.02.06*

A. The Department shall administer the Limited Industrial Exemption in accordance with the procedures of this regulation.

B. A CO2 budget source is exempt from the requirements of Regulation .03K of this chapter if it meets the following criteria:

  (1) Obtains from the Department a condition in its CO2 budget permit that limits the CO2 budget source's annual electrical output to the electric grid in the PJM region to not more than 10 percent of its annual gross generation;

  (2) Submits a request for and receives the Department's approval of a climate action plan which requires reduction of CO2e emissions through reasonably available reduction practices not limited to the following:

    (a) Energy efficiency;

    (b) Fuel switching;

    (c) Alternative transportation options; and

    (d) Modification to manufacturing processes; and

  (3) Receives written notice of the Department's approval of the exemption based on the criteria in §B(1) and (2) of this regulation.

C. Once the Department approves the CO2 budget source's exemption and notifies the CO2 budget source of its approval, the exemption shall become effective as follows:

  (1) For a CO2 budget source that commenced operation before January 1, 2009, retroactively on the January 1 that began a control period; or

  (2) For a CO2 budget source that commenced operation after January 1, 2009, the January 1 of the calendar year that the CO2 budget source commenced operation.

D. An exempt CO2 budget source shall:

  (1) Comply with the CO2 budget permit condition issued pursuant to §B(1) of this regulation;

  (2) Comply with the terms of the climate action plan approved pursuant to §B(2) of this regulation;

  (3) Beginning the April 1 of the year after the Department approved the CO2 budget source's exemption, report annually to the Department the following:

    (a) Its annual gross electricity generation; and

    (b) The amount of electricity that it supplied to the electric grid in the PJM region during the calendar year;

  (4) Report reductions achieved by the approved climate action plan; and

  (5) Retain all reports required by this regulation at the CO2 budget source for a period of 10 years from the date the reports are created.

E. A CO2 budget source's exemption pursuant to §B of this regulation shall no longer apply if the CO2 budget source fails to comply with any of the requirements of §D of this regulation.

F. On or after January 1, 2027, the Department may reallocate any CO2 allowances previously allocated for retirement on behalf of CO2 budget sources eligible for the Limited Industrial Exemption to the Consumer Energy Efficiency Account..

#### Regulation .07 Long Term Contract Set-aside Account.

*COMAR 26.09.02.07*

A. The Department shall administer the Long Term Contract Set-aside Account in accordance with the procedures of this regulation.

B. A long term contract applicant may purchase allowances from the Long Term Contract Set-aside Account through direct sale from the Department at the long term contract price if:

  (1) A long term contract with the applicant for the electrical output of its budget units has been in existence since January 1, 2001; and

  (2) The applicant is unable to recover the cost of purchasing allowances through electricity pricing or other mechanism.

C. The number of allowances purchased from the Long Term Contract Set-aside Account by an applicant may not exceed the equivalent tons of CO2 that the applicant emits in the prior calendar year.

D. To remain eligible to purchase allowances from the Long Term Contract Set-aside Account through direct sale from the Department, the applicant shall renegotiate the long term contract to include the cost of purchasing CO2 allowances when the first opportunity to exercise any option in the existing contract occurs.

E. Each calendar year, the CO2 authorized account representative for the compliance account, referred to in this subtitle as the LTC applicant, shall make all requests for purchase of allowances from the Long Term Contract Set-aside Account to the Department in writing by November 15 of each year.

F. If all the allowances are not sold from the Long Term Contract Set-aside Account by the end of the calendar year, the undistributed allowances shall remain in the account. On or before January 31 of the following year, the Department shall transfer from the Consumer Energy Efficiency Account the number of allowances needed to restore the balance of the Long Term Contract Set-aside Account to 1,600,000.

G. Allowances Available for Purchase by LTC Applicants.

  (1) All allowances purchased by LTC applicants in accordance with §D of this regulation shall be maintained in the CO2 budget source's compliance account and only used to demonstrate compliance for a control period.

  (2) Allowances purchased by LTC applicants in accordance with §D of this regulation may not be resold.

H. The request shall include the following:

  (1) A copy of the long term contract if it has not been provided to the Department previously, or if it has, a letter certifying that the contract has not changed; and

  (2) A letter certifying that the LTC applicant is unable to recover the cost of allowances through electricity pricing or other mechanism.

I. Calculation of Long Term Contract Price.

  (1) The Long Term Contract Price (LTCP) in calendar year 2013 shall be $1.98.

  (2) The LTCP in calendar year 2014 shall be $2.00.

  (3) For years subsequent to calendar year 2014, the LTCP shall be established as of the first day of each calendar year, and each calendar year thereafter, the LTCP shall be the LTCP from the previous calendar year multiplied by 1.025, rounded to the nearest whole cent.

J. The Long Term Contract Set-aside Account shall expire on January 1, 2027.

#### Regulation .08 Voluntary Renewable Set-aside Account.

*COMAR 26.09.02.08*

A. Administration and Participation.

  (1) The Department shall administer the Voluntary Renewable Set-aside Account in accordance with the procedures of this regulation.

  (2) When a person, electricity supplier, retail marketer, or renewable energy facility residing or doing business in Maryland or on behalf of a person residing or doing business in Maryland accumulates renewable energy credits (RECs) equal to 1 or more tons of CO2 as calculated pursuant to §C(1) of this regulation, the person, electricity supplier, retail marketer or renewable energy facility may submit the documentation identified in §B(2) of this regulation to the Department in exchange for the permanent retirement of CO2 allowances from the Voluntary Renewable Set-aside Account, if the renewable energy is generated or created, as applicable, in a state or states participating in a multi-state CO2 air pollution control and emissions reduction program established pursuant to this chapter or corresponding rules and regulations in other participating states as a means of reducing emissions of CO2 from CO2 budget sources.

  (3) An electricity supplier, retail marketer, or a renewable energy facility may purchase RECs using funds provided to it for that purpose by a person residing or doing business in Maryland.

  (4) An electricity supplier, retail marketer, or a renewable energy facility may demonstrate retirement of RECs purchased under §A(3) of this regulation by submitting the documentation identified in §B(2) of this regulation.

  (5) A person residing or doing business in Maryland may acquire RECs by generating renewable energy that results in the creation of RECs.

  (6) A person residing or doing business in Maryland may demonstrate retirement of RECs acquired by generating renewable energy under §A(5) of this regulation by submitting documentation outlined in §B(2) of this regulation.

  (7) A person residing or doing business in Maryland may acquire RECs from a renewable energy facility.

  (8) A person residing or doing business in Maryland may demonstrate the retirement of RECs acquired from a renewable energy facility under §A(7) of this regulation by submitting documentation outlined in §B(2) of this regulation.

  (9) The Department shall, upon its approval of the documentation submitted under §A(4), (6), or (8) of this regulation, permanently retire CO2 allowances in accordance with this regulation.

  (10) The Department shall permanently retire one CO2 allowance for every ton of CO2 emissions avoided as represented by the submitted RECs.

  (11) The Department may not accept RECs that do not equal at least 1 ton of CO2 emissions.

  (12) The Department may not permanently retire partial CO2 allowances.

  (13) The Department shall permanently retire CO2 allowances into the CO2 Allowance Retirement Account at least annually and by not later than December 31 of the calendar year.

B. Documentation of Energy Purchases.

  (1) Documentation of the purchase of RECs for the purpose of this regulation shall be submitted to the Department not later than July 1 of the year following purchase. All submittals received by the Department after July 1 of each year shall be applied toward retirement of CO2 allowances from the Voluntary Renewable Set-aside Account in the next calendar year.

  (2) In order for the Department to retire CO2 allowances from the Voluntary Renewable Set-aside Account on behalf of voluntary purchases of RECs, a person, electricity supplier, retail marketer, or renewable energy facility shall submit to the Department for approval the following documentation:

    (a) A GATS reserve subaccount report from PJM EIS that documents transfer of the REC to a GATS retirement subaccount for the purposes of this subtitle;

    (b) The name of the state in which the REC was created, the name of the facility that generated the renewable energy and its unique generator ID number, and the fuel type;

    (c) Any additional information that the Department determines necessary to demonstrate that the RECs purchased are not being credited in more than one state or to satisfy compliance with any state renewable energy portfolio standard program.

C. Determining the Number of CO2 Allowances to be Retired.

  (1) The number of CO2 allowances to be retired by the Department shall equal the number of megawatt hours of renewable energy represented by the RECs submitted to the Department, multiplied by a voluntary renewable CO2 emissions factor as calculated annually using the previous year’s fuel mix data from GATS.

  (2) If the total number of CO2 allowances calculated for retirement equals or exceeds the number of CO2 allowances in the Voluntary Renewable Set-aside Account, then the Department shall retire not more than the total number of allowances in the Voluntary Renewable Set-aside Account.

  (3) For a given calendar year, if the number of CO2 allowances calculated for retirement is less than 350,000, the allowances remaining in the Voluntary Renewable Set-aside Account shall remain in that account. After the retirement of allowances for the preceding calendar year, the Department shall transfer from the Consumer Energy Efficiency Account the number of allowances needed to restore the balance of the Voluntary Renewable Set-aside Account to 350,000.

  (4) Every 2 years, the Department, in consultation with the Committee, shall review, and if appropriate, increase the number of CO2 allowances allocated to the Voluntary Renewable Set-aside Account, considering projected voluntary renewable sales, REC market impact, associated impacts pertaining to Maryland’s renewable portfolio standard, and other relevant factors.

D. The Voluntary Renewable Set-aside Account shall expire on March 1, 2018.

#### Regulation .09 Clean Generation Set-aside Account.

*COMAR 26.09.02.09*

A. The Department shall administer the Clean Generation Set-aside Account in accordance with the procedures of this regulation.

B. A CO2 budget unit that commences operation after January 1, 2009, is eligible for an award of CO2 allowances from the Clean Generation Set-aside Account if the CO2 budget unit:

  (1) Uses gaseous fossil fuel as the primary fuel;

  (2) Has applied best available control technology (BACT) or lowest achievable emission rates (LAER) as applicable; and

  (3) Has not been constructed pursuant to an order issued by the Public Service Commission of Maryland or by agreement with the State.

C. Allocation of CO2 Allowances.

  (1) The Department shall allocate CO2 allowances from the Consumer Energy Efficiency Account to the Clean Generation Set-aside Account so that the total number of CO2 allowances in the Clean Generation Set-aside Account is:

    (a) 1,687,679 CO2 allowances for 2018;

    (b) 1,500,159 CO2 allowances for 2019;

    (c) 1,312,639 CO2 allowances for 2020;

    (d) 1,125,119 CO2 allowances for 2021; and

    (e) 937,599 CO2 allowances for 2022.

D. Awarding of CO2 Allowances.

  (1) Within 60 days after the end of the calendar year, the Department shall award one CO2 allowance to an eligible CO2 budget unit from the Clean Generation Set-aside Account for each ton of CO2 actually emitted by the eligible CO2 budget unit for that calendar year.

  (2) Calculating Award of CO2 Allowances for Early Applicants until December 31, 2022.

    (a) Except as directed in §D(2)(b) of this regulation, each Early Applicant is guaranteed the following allowances from the Clean Generation Set-aside Account:

      (i) 421,920 CO2 allowances for 2018;

      (ii) 375,040 CO2 allowances for 2019;

      (iii) 328,160 CO2 allowances for 2020;

      (iv) 281,280 CO2 allowances for 2021; and

      (v) 234,400 CO2 allowances for 2022.

    (b) Early Applicants may not be awarded more CO2 allowances than they are eligible to receive as directed in §D(1) of this regulation.

  (3) Calculating Award of CO2 Allowances When Requests Are Less than Allocation.

    (a) If, after all the allowances are awarded under §D(2)(a), the Department finds that it has only received requests for CO2 allowances for a calendar year from Early Applicants, and the number of allowances requested does not exceed the remaining number of allowances in the Clean Generation Set-aside Account, the remaining CO2 allowances will be awarded based on the number of CO2 allowances requested by the number of eligible Early-Applicants for each calendar year, not to exceed the amount directed in §D(1) of this regulation.

    (b) If, after all the allowances are awarded under §D(2)(a), the Department finds that it has received requests for allowances for a calendar year from both Early Applicants and Non-early Applicants, and the number of CO2 allowances requested by both Early Applicants and Non-early Applicants does not exceed the number of remaining CO2 allowances in the Clean Generation Set-aside Account, the remaining CO2 allowances will be awarded based on the number of CO2 allowances requested by the number of eligible Early Applicants and Non-early Applicants, not to exceed the amount directed in §D(1) of this regulation.

  (4) Calculating Award of CO2 Allowances When Requests Are Greater than Allocation.

    (a) If, after all the allowances are awarded under §D(2)(a), the Department finds that it has only received requests for CO2 allowances for a calendar year from Early Applicants, and the number of allowances requested by Early Applicants exceeds the number of remaining allowances in the Clean Generation Set-aside Account, the remaining CO2 allowances will be awarded in proportion to the number of CO2 allowances requested by the number of eligible Early-Applicants for each calendar year, not to exceed the amount directed in <D1>D(1) of this regulation.

    (b) If, after all the allowances are awarded under §D)(2)(a), the Department finds that it has received requests for allowances for a calendar year from both Early Applicant and Non-early Applicants, and the number of CO2 allowances requested by both Early Applicants and Non-early Applicants exceeds the number of remaining CO2 allowances in the Clean Generation Set-aside Account, the remaining CO2 allowances will be awarded in proportion to the number of CO2 allowances requested by the number of eligible Early Applicants and Non-early Applicants, not to exceed the amount directed in §D(1) of this regulation.

E. All CO2 allowances awarded by the Department under this regulation shall be maintained in the CO2 budget unit’s compliance account and shall only be used to demonstrate compliance.

F. CO2 allowances awarded by the Department under this regulation may not be resold by the recipient of the award.

G. At the end of each calendar year, any CO2 allowances that remain in the Clean Generation Set-aside Account will remain in the Clean Generation Set-aside Account. After awarding CO2 allowances for the preceding calendar year, the Department shall transfer from the Consumer Energy Efficiency Account the number of CO2 allowances needed to restore the balance of the Clean Generation Set-aside Account to the allocations defined in §C(1)(a)—(e) of this regulation.

H. The Clean Generation Set-aside Account shall expire on January 1, 2023.

#### Regulation .10 Monitoring Requirements.

*COMAR 26.09.02.10*

A. The owner or operator of a CO2 budget unit shall install monitoring systems to monitor CO 2 mass emissions including CO2 concentration, stack gas flow rate, oxygen concentration, heat input, and fuel flow rate.

B. The owner or operator of a CO2 budget unit shall install all monitoring systems in accordance with 40 CFR Part 75.13, 75.71, and 75.72 except for equation G-1 in Appendix G.

C. The owner or operator of a CO2 budget unit shall record, report, and verify the data from the monitoring systems in accordance with §§A and B of this regulation.

#### Regulation .11 Record Keeping and Reporting.

*COMAR 26.09.02.11*

A. General Provisions. The CO2 authorized account representative shall comply with all record-keeping and reporting requirements in this chapter and the applicable record-keeping and reporting requirements under 40 CFR §75.73.

B. Quarterly Reports.

  (1) The CO2 authorized account representative shall submit quarterly reports as described in this section.

  (2) The report shall contain the CO2 mass emissions data for the CO2 budget unit in an electronic format, unless otherwise required by the Department, for each calendar quarter beginning with:

    (a) The calendar quarter covering January 1, 2009—March 31, 2009, for a unit that commences commercial operation before July 1, 2008; or

    (b) For a unit commencing commercial operation on or after July 1, 2008, the calendar quarter corresponding to the earlier of the:

      (i) Date of provisional certification; or

      (ii) Applicable deadline for initial certification.

  (3) If the quarter is the third or fourth quarter of 2008, reporting shall commence in the quarter covering January 1, 2009 through March 31, 2009.

  (4) The CO2 authorized account representative shall submit each quarterly report within 30 days following the end of the calendar quarter covered by the report and in accordance with 40 CFR Part 75, Subpart H, §75.64 and 40 CFR Part 75, Subpart G except for the opacity, NOX, and SO2 provisions.

  (5) Compliance Certification. The CO2 authorized account representative shall submit a compliance certification in support of each quarterly report. The certification shall state that:

    (a) The monitoring data submitted were recorded in accordance with the applicable requirements of this chapter and 40 CFR Part 75, including the quality assurance procedures and specifications;

    (b) For a unit with add-on CO2 emissions controls and for all hours where data are substituted in accordance with 40 CFR §75.34(a)(1), the add-on emissions controls were operating within the range of parameters listed in the quality assurance and quality control program under 40 CFR Part 75, Appendix B, and the substitute values do not systematically underestimate CO2 emissions; and

    (c) The CO2 concentration values substituted for missing data under 40 CFR Part 75, Subpart D, do not systematically underestimate CO2 emissions.

C. Petitions for Alternative Requirements. The CO2 authorized account representative of a CO2 budget unit may submit a petition to the Department under 40 CFR §75.66 requesting approval to apply an alternative to any requirement of this chapter.

D. CO2 Budget Units that Burn Eligible Biomass.

  (1) The CO2 authorized account representative or alternate CO2 authorized account representative of a CO2 budget unit that burns eligible biomass as a compliance mechanism under this chapter shall report the following information for each calendar quarter:

    (a) For each shipment of solid eligible biomass fuel fired at the CO2 budget unit:

      (i) Total eligible biomass fuel input, on an as-fired basis, in pounds; and

      (ii) The moisture content, on an as-fired basis, as a fraction of weight;

    (b) For each distinct type of gaseous eligible biomass fuel fired at the CO2 budget unit:

      (i) The density of the biogas, on an as-fired basis, in pounds per standard cubic foot; and

      (ii) The moisture content of the biogas, as a fraction by total weight;

    (c) For each distinct type of eligible biomass fuel fired at the CO2 budget unit:

      (i) The dry basis carbon content of the fuel type, as a fraction by dry weight;

      (ii) The dry basis higher heating value, in MMBtu per dry pound;

      (iii) The total dry basis eligible biomass fuel input, in pounds;

      (iv) The total eligible biomass fuel heat input; and

      (v) Chemical analysis, including heat value and carbon content;

    (d) The total amount of CO2 emitted from the CO2 budget unit due to firing eligible biomass fuel, in tons, calculated as in §D(2)(b) of this regulation;

    (e) The total heat input to the CO2 budget unit due to firing eligible biomass fuel, in MMBtu, calculated in §D(4)(b) of this regulation; and

    (f) Descriptions and documentation of monitoring technology and fuel sampling methodology employed, including sampling frequency;

  (2) An owner or operator of a CO2 budget unit shall calculate and submit on a quarterly basis the total dry weight for each distinct type of eligible biomass fired by the CO2 budget unit during the reporting quarter as follows:

    (a) For solid eligible biomass fuel, determined as follows:

      (i) Fj = Total eligible biomass dry basis fuel input (pounds) for fuel type j;

      (ii) Fi = Eligible biomass as fired fuel input (pounds) for fired shipment i;

      (iii) Mi = Moisture content (fraction) for fired shipment i;

      (iv) i = fired fuel shipment;

      (v) j = fuel type; and

      (vi) m = number of shipments;

    (b) For gaseous eligible biomass fuel, as determined as follows:

      (i) Fj = Total eligible biomass dry basis fuel input (pounds) for fuel type j;

      (ii) Dj = Density of biogas (pounds/scf) for fuel type j;

      (iii) Vj = Total volume (scf) for fuel type j;

      (iv) Mj = Moisture content (fraction) for fuel type j; and

      (v) j = fuel type.

  (3) The amount of CO2 emissions that is produced from the firing of eligible biomass for any full calendar quarter, during which either no fuel other than eligible biomass is combusted or during which fuels other than eligible biomass are combusted, is determined as follows:

    (a) CO2 tons = CO2 emissions due to firing of eligible biomass for the reporting quarter;

    (b) Fj = Total eligible biomass dry basis fuel input (pounds) for fuel type j, as calculated in §D(2)(a) of this regulation;

    (c) Cj = Carbon fraction (dry basis) for fuel type j;

    (d) Oj = Oxidation factor for eligible biomass fuel type j, derived for solid fuels based on the ash content of the eligible biomass fired and the carbon content of this ash; for gaseous eligible biomass fuels, a default oxidation factor of 0.995 may be used;

    (e) 0.0005 = The number of short tons which is equal to 1 pound;

    (f) j = Fuel type; and

    (g) n = number of distinct fuel types.

  (4) Heat input due to firing of eligible biomass for each quarter shall be determined as follows:

    (a) For each distinct fuel type:

      (i) Hj = Heat input (MMBtu) for fuel type j;

      (ii) Fj = Total eligible biomass dry basis fuel input (pounds) for fuel type j;

      (iii) HHVj = Higher heating value (MMBtu/pound), dry basis, for fuel type j, as determined through chemical analysis;

      (iv) j = Fuel type;

    (b) For all fuel types:

      (i) Hj = Heat input (MMBtu) for fuel type j;

      (ii) j = fuel type; and

      (iii) n = number of distinct fuel types.

  (5) Fuel sampling methods and fuel sampling technology shall be consistent with the New York State Renewable Energy Standard Biomass Power Guide, June 2018.

E. Additional Requirements to Provide Output Data.

  (1) Report of Megawatt-Hours of Electrical Output. A CO2 budget unit shall submit to the Department the megawatt-hour value and a statement certifying that the megawatt-hour of electrical output reported reflects the total actual electrical output for all CO2 budget units at the facility used by the independent system operator (ISO) to determine settlement resources of energy market participants.

  (2) Report of Gross Hourly Megawatts. A CO2 budget unit shall report gross hourly megawatts to the Department in the same electronic data report (EDR) for gross output as submitted to the EPA Administrator, for the operating time in the hour, added for all hours in a year.

  (3) Report of Net Electrical Output. A CO2 budget unit shall submit the net electrical output to be used to the Department in accordance with this regulation. A CO2 budget source whose electrical output is not used in the independent system operator (ISO) energy market settlement determinations shall propose a method for quantification of net electrical output.

  (4) Report of Net Steam Output.

    (a) CO2 budget sources selling steam shall use billing meters to determine net steam output or an alternative method to measure net steam output approved by the Department.

    (b) If data for steam output is not available, the CO2 budget source may report heat input, substituting useful steam output for steam output.

F. Output Monitoring Plan.

  (1) The owner or operator of each CO2 budget unit shall report net output described in this section.

  (2) Each CO2 budget source shall submit an output monitoring plan with a description and diagram that include the following:

    (a) If the CO2 budget unit monitors net electric output, the diagram shall contain all CO2 budget units and all generators served by each CO2 budget unit and the relationship between CO2 budget units and generators;

    (b) If a generator served by a CO2 budget unit is also served by a nonaffected unit, the nonaffected unit and its relationship to each generator shall be indicated on the diagram;

    (c) The diagram shall indicate where the net electric output is measured and include all electrical inputs and outputs to and from the plant;

    (d) If net electric output is determined using a billing meter, the diagram shall show each billing meter used to determine net sales of electricity and show that all electricity measured at the point of sale is generated by the CO2 budget units;

    (e) If the CO2 budget unit monitors net thermal output, the diagram shall indicate all steam or hot water coming into the net steam system, including steam from CO2 budget units and nonaffected units, and all exit points of steam or hot water from the net steam system;

    (f) Each input and output stream shall have an estimated temperature, pressure and phase indicator, and an enthalpy in Btu per pound;

    (g) The diagram of the net steam system shall identify all useful loads, house loads, parasitic loads, any other steam loads, and all boiler feedwater returns;

    (h) The diagram shall represent all energy losses in the system as either usable or unusable losses;

    (i) The diagram shall indicate all flow meters, temperature or pressure sensors, or other equipment used to calculate gross thermal output; and

    (j) If a sales agreement is used to determine net thermal output, the diagram shall show the monitoring equipment used to determine the sales of steam.

  (3) Description of Output Monitoring System.

    (a) The description of the output monitoring system shall include:

      (i) A written description of the output system and the equations used to calculate output, and, for net thermal output systems, descriptions and justifications of each useful load;

      (ii) A detailed description of all quality assurance and quality control activities that will be performed to maintain the output system; and

      (iii) Documentation supporting any output value to be used as a missing data value if there are periods of invalid output data.

    (b) The missing data output value shall be either zero or an output value that is likely to be lower than a measured value and approved as part of the required monitoring plan.

G. Initial Certification Statement and Billing Meters.

  (1) A certification statement shall be submitted by the CO2 authorized account representative stating that either:

    (a) The output monitoring system consists entirely of billing meters; or

    (b) The output monitoring system meets one of the accuracy requirements for nonbilling meters.

  (2) The billing meter shall record the electric or thermal output. Any electric or thermal output values reported shall be the same as the values used in billing for the output.

  (3) For nonbilling meters, either the output monitoring system shall meet an accuracy of within 10 percent of the reference value, or each component monitor for the output system shall meet an accuracy of within 3 percent of the full scale value, whichever is less stringent.

  (4) The system approach to accuracy shall include:

    (a) A determination of how the system accuracy of 10 percent is achieved using the individual components in the system; and

    (b) Data loggers and any wattmeters used to calculate the final net electric output data or any flowmeters for steam or condensate, temperature measurement devices, absolute pressure measurement devices, and differential pressure devices used for measuring thermal energy.

  (5) If, upon testing a piece of output measurement equipment, it is determined that the output readings are not accurate to within 3 percent of the full scale value, then the equipment shall be repaired or replaced to meet that requirement.

  (6) Data is invalid until the output measurement equipment passes an accuracy test or is replaced with another piece of equipment that passes the accuracy test.

H. Ongoing Quality Assurance and Quality Control.

  (1) Ongoing quality assurance and quality control activities shall be performed in order to maintain the output system.

  (2) Billing Meters. If billing meters are used to determine output, quality assurance and quality control activities are not required beyond what are already performed.

  (3) Nonbilling Meters.

    (a) Certain types of equipment such as potential transformers, current transformers, nozzle and venturi type meters, and the primary element of an orifice plate only require an initial certification of calibration and do not require periodic recalibration unless the equipment is physically changed.

    (b) Pressure and temperature transmitters accompanying an orifice plate will require periodic retesting.

    (c) For other types of equipment, the meter accuracy shall be recalibrated or verified at least once every 2 years, unless a consensus standard allows for less frequent calibrations or accuracy tests.

    (d) For nonbilling meters, either the output monitoring system shall meet an accuracy of within 10 percent of the reference value, or each component monitor for the output system shall meet an accuracy of within 3 percent of the full scale value, whichever is less stringent.

    (e) If, upon testing a piece of output measurement equipment, it is determined that the output readings are not accurate to within 3 percent of the full scale value, then the equipment shall be repaired or replaced to meet that requirement.

  (4) Out-of-Control Periods.

    (a) If, upon testing a piece of output measurement equipment, it is determined that the output readings are not accurate to the certification value, data is invalid until the output measurement equipment passes an accuracy test or is replaced with another piece of equipment that passes the accuracy test.

    (b) All invalid data shall be replaced by either zero or an output value that is likely to be lower than a measured value and that is approved as part of the required monitoring plan.

I. Annual Reports. The CO2 authorized account representative shall submit annual output reports, as follows:

  (1) Data shall be sent both electronically and in hardcopy by March 1 for the immediately preceding calendar year; and

  (2) The annual report shall include unit level megawatt hours, all useful steam output, and a certification statement from the CO2 authorized account representative stating the following, “I am authorized to make this submission on behalf of the owners and operators of the CO2 budget sources or CO2 budget units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment”.

### Chapter 03 — Offset Projects

*Repealed*

**Authority:** Environment Article, §§1-101, 1-404, 2-103, and 2-1002(g), Annotated Code of Maryland

**Administrative History:** Effective date: July 17, 2008 (35:14 Md. R. 1247)

**Administrative History:** Regulation .01 amended effective January 6, 2014 (40:26 Md. R. 2165)

**Administrative History:** Regulation .02 amended effective May 18, 2009 (36:10 Md. R. 717); January 6, 2014 (40:26 Md. R. 2165)

**Administrative History:** Regulation .04A amended as an emergency provision effective December 28, 2009 (37:4 Md. R. 336); amended permanently effective May 3, 2010 (37:9 Md. R. 674)

**Administrative History:** Regulation .04D amended effective May 18, 2009 (36:10 Md. R. 717); January 6, 2014 (40:26 Md. R. 2165)

**Administrative History:** Regulation .05 amended effective January 6, 2014 (40:26 Md. R. 2165)

**Administrative History:** Regulation .06 amended effective May 18, 2009 (36:10 Md. R. 717)

**Administrative History:** Regulation .06H amended as an emergency provision effective December 28, 2009 (37:4 Md. R. 336); amended permanently effective May 3, 2010 (37:9 Md. R. 674)

**Administrative History:** Regulation .07G, I amended effective May 18, 2009 (36:10 Md. R. 717)

**Administrative History:** Regulation .07G amended as an emergency provision effective December 28, 2009 (37:4 Md. R. 336); amended permanently effective May 3, 2010 (37:9 Md. R. 674)

**Administrative History:** Regulation .09 amended effective January 6, 2014 (40:26 Md. R. 2165)

**Administrative History:** Regulation .09E amended effective May 18, 2009 (36:10 Md. R. 717)

**Administrative History:** Chapter revised effective December 31, 2018 (45:26 Md. R. 1249)

**Administrative History:** Chapter repealed effective March 30, 2026 (53:6 Md. R. 292)

### Chapter 04 — Auctions

**Authority:** Environment Article, §§1-101, 1-404, 2-103, and 2-1002(g), Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.13 adopted as an emergency provision effective April 4, 2008 (35:9 Md. R. 895); adopted permanently effective August 25, 2008 (35:17 Md. R. 1490)

**Administrative History:** Regulation .02C amended effective August 6, 2012 (39:15 Md. R. 964)

**Administrative History:** Regulation .03B amended as an emergency provision effective December 28, 2009 (37:4 Md. R. 336); amended permanently effective May 3, 2010 (37:9 Md. R. 674)

**Administrative History:** Regulation .03B amended effective August 6, 2012 (39:15 Md. R. 964)

**Administrative History:** Regulation .05F amended effective August 6, 2012 (39:15 Md. R. 964)

**Administrative History:** Regulation .08B amended as an emergency provision effective December 28, 2009 (37:4 Md. R. 336); amended permanently effective May 3, 2010 (37:9 Md. R. 674)

**Administrative History:** Regulation .09A amended as an emergency provision effective December 28, 2009 (37:4 Md. R. 336); amended permanently effective May 3, 2010 (37:9 Md. R. 674)

**Administrative History:** Chapter revised effective January 6, 2013 (40:26 Md. R. 2165)

**Administrative History:** Regulation .03B amended effective March 30, 2026 (53:6 Md. R. 292)

**Administrative History:** Regulation .06B amended effective December 31, 2018 (45:26 Md. R. 1249); March 30, 2026 (53:6 Md. R. 292)

#### Regulation .01 Purpose.

*COMAR 26.09.04.01*

The purpose of this chapter is to provide for the administration and implementation of CO2 allowance auctions under the Maryland CO2 Budget Trading Program.

#### Regulation .02 Multistate Auctions.

*COMAR 26.09.04.02*

A. The Department, in consultation with the Auction Advisory Committee (Committee), shall determine whether to participate in multistate regional CO2 allowance auctions in coordination with other participating states or to conduct Maryland-only auctions.

B. In making its determination, the Department and the Committee shall consider whether:

  (1) A multistate regional auction process, which includes the Department and other participating states, has been jointly established and is operationally in place;

  (2) A multistate regional auction process will result in fair market prices for allowances at reasonable transaction costs; and

  (3) A multistate regional auction process is consistent with the auction processes described in this chapter.

C. The Department shall convene the Committee at least quarterly to review the status of the Consumer Energy Efficiency Account, the CO2 Allowance Contingency Account, the CO2 Allowance Retirement Account, and the Set-aside accounts.

#### Regulation .03 Consumer Energy Efficiency Account.

*COMAR 26.09.04.03*

A. The Department shall establish the Consumer Energy Efficiency Account, referred to in this subtitle as the Account, as described in COMAR 26.09.02. Each allowance to be auctioned shall be identified by its serial number as described in COMAR 26.09.02.

B. The Department shall administer the Account in such a manner that allowances allocated to the Account or transferred to it from the Long Term Contract Set-aside Account, the Voluntary Renewable Set-aside Account, the Clean Generation Set-aside Account, or the CO2 Allowance Contingency Account may be offered for sale in CO2 allowance auctions as described in COMAR 26.09.02.

C. The proceeds of the auction shall be placed into the Fund.

D. The Department shall use the proceeds it receives from the Fund for climate change programs.

#### Regulation .04 Implementation of CO

*COMAR 26.09.04.04*

A. The Department shall design, implement, and administer CO2 allowance auctions in accordance with the objectives of this subtitle.

B. Implementation and administrative support functions for any auction conducted may be performed by an agent of the Department, if the agent performs all functions under the direction and oversight of the Department.

#### Regulation .05 Commencement, Frequency, and Quantity of CO

*COMAR 26.09.04.05*

A. The Department shall allocate allowances to the Account for auction as described in COMAR 26.09.02.

B. The initial auction shall be conducted at a time and in a manner determined by the Department in consultation with the Committee.

C. Frequency. Auctions shall be held at least annually and may be held as often as necessary to meet the objectives of this subtitle, at the Department's discretion and in consultation with the Committee.

D. Participation. The Department shall determine whether an auction will be an open auction or a closed auction.

E. Reserve Price. Before any auction, the Department may set a binding reserve price to be accepted for CO2 allowances in the auction, which may or may not be disclosed to the public or to prospective bidders.

F. CO2 allowances left unsold in any auction shall be transferred, in quantities and in a manner determined by the Department in consultation with the Committee, to:

  (1) The CO2 Allowance Contingency Account for future distribution to other accounts by the Department in consultation with the Committee;

  (2) The Consumer Energy Efficiency Account for sale in subsequent auctions; or

  (3) The CO2 Allowance Retirement Account for permanent retirement.

#### Regulation .06 Auction of CO

*COMAR 26.09.04.06*

A. The following rules shall apply to each allowance auction. The Department may specify additional information in the auction notice for each auction. Such additional information may include the time and location of the auction, auction rules, registration deadlines, and any additional information deemed necessary or useful.

B. General Requirements.

  (1) The Department shall include the following information in the auction notice for each auction:

    (a) The number of CO2 allowances offered for sale at the auction, not including any CO2 CCR tier 1 or CO2 CCR tier 2 allowances;

    (b) The number of CO 2 CCR tier 1 allowances that will be offered for sale at the auction if the condition of §B(2)(a) of this regulation is met;

    (c) The number of CO 2 CCR tier 2 allowances that will be offered for sale at the auction if the condition of §B(2)(c) of this regulation is met;

    (d) The minimum reserve price for the auction;

    (e) The CCR tier 1 trigger price for the auction; and

    (f) The CCR tier 2 trigger price for the auction.

  (2) The Department or its agent shall follow these rules for the sale of CO2 CCR allowances:

    (a) CO2 CCR tier 1 allowances shall only be sold at an auction in which total demand for allowances, above the CCR tier 1 trigger price, exceeds the number of CO2 allowances available for purchase at the auction, not including any CO2 CCR tier 1 or tier 2 allowances;

    (b) If the condition of §B(2)(a) of this regulation is met at an auction, then the number of CO2 CCR tier 1 allowances offered for sale by the Department at the auction shall be equal to the number of CO2 CCR tier 1 allowances in the Consumer Energy Efficiency Account at the time of the auction;

    (c) CO2 CCR tier 2 allowances shall only be sold at an auction in which total demand for allowances, above the CCR tier 2 trigger price, exceeds the number of CO2 allowances available for purchase at the auction, not including any CO2 CCR tier 2 allowances;

    (d) If the condition of §B(2)(c) of this regulation is met at an auction, then the number of CO 2 CCR tier 2 allowances offered for sale by the Department at the auction shall be equal to the number of CO 2 CCR tier 2 allowances in the Consumer Energy Efficiency Account at the time of the auction;

    (e) After all of the CO2 CCR tier 1 allowances in the Consumer Energy Efficiency Account have been sold in a given calendar year, no additional CO2 CCR tier 1 allowances will be offered for sale at any auction for the remainder of that calendar year, even if the condition of §B(2)(a) of this regulation is met at an auction;

    (f) After all of the CO2 CCR tier 2 allowances in the Consumer Energy Efficiency Account have been sold in a given calendar year, no addition CO2 CCR allowances will be offered for sale at any auction for the remainder of that calendar year, even if the condition of §B(2)(c) of this regulation is met at an auction;

    (g) At an auction in which CO2 CCR tier 1 allowances are sold, but no CO2 CCR tier 2 allowances are sold, the reserve price for the auction shall be the CCR tier 1 trigger price;

    (h) At an auction in which CO 2 CCR tier 2 allowances are sold, the reserve price for the auction shall be the CCR tier 2 trigger price;

    (i) If the condition of §B(2)(a) of this regulation is not satisfied, no CO2 CCR tier 1 or CO2 CCR tier 2 allowances shall be offered for sale at the auction, and the reserve price for the auction shall be equal to the minimum reserve prices; and

    (j) If the condition of §B(2)(c) of this regulation is not satisfied, no CO 2 CCR tier 2 allowances shall be offered for sale at the auction, and the reserve price for the auction shall be determined as follows:

      (i) If the condition of §B(2)(a) of this regulation is met, the reserve price shall be equal to the CCR tier 1 trigger price; and

      (ii) If the condition of §B(2)(a) of this regulation is not met, the reserve price shall be equal to the minimum reserve price.

  (3) The Department shall implement the reserve price in the following manner:

    (a) No allowances shall be sold at any auction for a price below the reserve price for that auction; and

    (b) If the total demand for allowances at an auction is less than or equal to the total number of allowances made available for sale in that auction, then the auction clearing price for the auction shall be the reserve price.

#### Regulation .07 Auction Formats.

*COMAR 26.09.04.07*

A. In conducting auctions, the Department may employ any of the following auction formats, or an auction format consisting of any or all of the components in §§B—E of this regulation.

B. Sealed Bid, Discriminatory Price. In this format:

  (1) There is a single or multiple round sealed-bid auction in which the bidders may submit multiple bids at different prices; and

  (2) Allowances are awarded to the highest bidders at their own bid price.

C. Sealed Bid, Uniform Price. In this format:

  (1) There is a single or multiple round sealed-bid auction in which bidders may submit multiple bids at different prices; and

  (2) The price paid by all awarded bidders shall be uniform.

D. Ascending Price, Multiple Round. In this format:

  (1) There is a multiple round auction starting with an opening price with increases for each round by predetermined increments;

  (2) In each round, bidders offer the quantity they are willing to purchase at the posted price;

  (3) Rounds continue until demand exceeds the quantity offered for sale; and

  (4) At the completion of the final round, the Department shall award allowances as follows:

    (a) Bidders who bid above the final price shall receive full allocations;

    (b) Bidders who bid at the final price shall receive full allocations in time-stamp order until the quantity of allowances offered for sale is exhausted;

    (c) Bidders who bid at the final price but late in the auction may receive prorated allocations or no allocations at all; and

    (d) The Department may incorporate alternate award scenarios consistent with those established by other participating states.

E. Descending Price, Multiple Round. In this format:

  (1) There is a multiround auction starting with a high provisional price, which falls in each round by predetermined increments;

  (2) In each round, the bidder may lock in some purchases at the current provisional price or the bidder may wait for the price to fall; and

  (3) The auction rounds cease when the number of allowances locked in is greater than or equal to the quantity of allowances being offered.

F. The Department may establish a limit on the number of allowances that can be purchased by any one bidder at an auction. This limit shall be consistent with limits established in other participating states.

#### Regulation .08 Participant Eligibility.

*COMAR 26.09.04.08*

A. The Department, in consultation with the Committee, shall determine which categories of eligible bidders will be authorized to submit bids in each auction. Notification of the categories shall be included in each notice of CO2 allowance auction.

B. Eligible categories of bidders for an auction may include:

  (1) Owners of CO2 budget units located in Maryland;

  (2) Owners of CO2 budget units located outside of Maryland but in a participating state with final CO2 budget trading rules in place at the time of the auction; and

  (3) Other market participants, including but not limited to, brokers, environmental groups, financial and investment institutions, and owners of generation units, located in or outside of the participating states with final CO2 budget trading rules in place at the time of the auction.

C. In order to participate in auctions, eligible bidders shall provide financial security in the form of a bond, cash, certified funds, or an irrevocable standby letter of credit, in a form acceptable to the Department.

D. A bidder's eligibility to bid in any auction may be limited to the level of financial security provided.

E. A bidder's financial security may be forfeited and retained by the Department in the event the bidder's offer is accepted in an auction and the bidder fails to tender payment of the full amount when due.

F. Return of Financial Security.

  (1) A bidder may request return of its financial security at any time before or following any auction.

  (2) The Department shall return the financial security upon the Department's determination that the bidder has complied with these regulations and paid the full amount of its accepted bid.

#### Regulation .09 Notice of Auctions.

*COMAR 26.09.04.09*

A. Notice of CO2 Allowance Auction.

  (1) A notice of CO2 allowance auction shall be published on the CO2 allowance auction website and in any other publication the Department considers appropriate not later than 45 days before the date upon which the auction may be conducted.

  (2) Failure to publish the notice at least 45 days prior to the auction does not prohibit the Department from conducting an auction, if reasonable notice of the auction is provided.

  (3) Notices may be transmitted electronically to parties requesting notification if they have submitted an electronic mail address to the Department.

B. Each notice shall provide a specific description of the auction format and include, but not be limited to, the following:

  (1) All auction participant requirements;

  (2) Date, time, and location of the auction;

  (3) Categories of bidders who will be eligible to bid;

  (4) Number of CO2 allowances to be auctioned;

  (5) Required bid format;

  (6) Instructions as to the qualification application;

  (7) Other pertinent rules of the auction;

  (8) Identification of a contact person at the Department for further information; and

  (9) Any other information the Department may consider necessary.

#### Regulation .10 Participation Requirements.

*COMAR 26.09.04.10*

A. Qualification.

  (1) Any party wishing to participate in an auction shall open and maintain a compliance or general account as described in COMAR 26.09.01.

  (2) Any party wishing to participate in an auction shall be qualified by the Department.

  (3) Only those bidders found qualified through the qualification application process will be permitted to submit a bid or bids or otherwise participate in bidding in any auction.

  (4) As part of the qualification application, bidders shall be required to provide information and documentation relating to the bidder's ability and authority to execute bids and honor contractual obligations, which includes, but is not limited to, the following:

    (a) Information and documentation regarding the corporate identity, ownership, and capital structure of the bidder;

    (b) Audited annual reports and credit reports;

    (c) Identification of any indictment or felony conviction of the bidder, or of any member, director, principal, partner, or officer of the bidder or any affiliate or related entity; and

    (d) A statement by the bidder identifying prior findings of nonresponsibility with regard to any Maryland procurement.

  (5) Any party wishing to participate in an auction shall submit a qualification application to the Department on or before the qualification application deadline date specified in the notice, that is not sooner than 15 days following the date of publication of the notice.

  (6) Qualification application information and forms shall be made available electronically on the CO2 allowance auction website.

  (7) The Department shall review each qualification application and make a determination as to the qualifications of each applicant to submit bids in the auction. The following shall apply:

    (a) Failure to provide any information required by the notice or this chapter may result in the qualification application being declared incomplete or otherwise deficient;

    (b) All prospective bidders shall be notified in writing of the Department's determination not later than 15 days before the date upon which the auction may be conducted;

    (c) If a qualification application is determined to be incomplete or otherwise deficient, the Department shall notify the prospective bidder and state the reason; and

    (d) Prospective bidders whose qualification applications have been determined to be incomplete or deficient shall be given not less than 10 business days to provide additional information and address the deficiencies.

  (8) Bidders found qualified for participation shall be qualified for all subsequent auctions and shall be eligible to bid in the auctions if:

    (a) The bidders maintain compliance with the financial security requirements;

    (b) There is no material change to the information provided in the qualification step; and

    (c) The applicant remains within one of the categories of eligible bidders described in the notice for the auction.

  (9) The bidder shall notify the Department of any change in the information provided in the qualification application not later than 5 days following the end of the month during which the change occurred. The notification shall include the date the change occurred and a description of the change with sufficient detail to enable the Department to determine whether the change is material.

B. Bid Submittal Instructions.

  (1) All bids shall be in a form prescribed by the Department and made available electronically on the CO2 allowance auction website, as appropriate.

  (2) All bids submitted shall be considered binding offers for the purchase of allowances under the rules of the auction.

C. If the Department determines that a bidder has provided false or misleading information, has withheld pertinent information in its qualification application, or has otherwise failed to comply with any material provision of this chapter, the Department may prohibit the bidder from participating in any future CO2 allowance auction.

#### Regulation .11 Audit and Certification.

*COMAR 26.09.04.11*

The Department shall assign a designee to observe the conduct and outcome of each auction and to issue a report to the Committee.

#### Regulation .12 Antideceptive Practices.

*COMAR 26.09.04.12*

It is unlawful for a bidder to use or employ any manipulative, misleading, or deceptive practice in connection with its qualification application or purchase of allowances from the Department, including but not limited to any practice that is in contravention of any applicable federal or state law or regulation, this subtitle, and rules and regulations the Maryland Public Service Commission may prescribe as necessary or appropriate in the public interest or for the protection of electric rate payers.

#### Regulation .13 Transfer of CO

*COMAR 26.09.04.13*

Upon receipt and approval by the Committee of the report provided under Regulation .10 of this chapter and upon payment in full of purchased allowances by the successful bidder, the Department shall transfer or have transferred the corresponding CO2 allowances from the Account to the successful bidder's compliance or general account.

#### Regulation .14 Publication of Results.

*COMAR 26.09.04.14*

The Department shall publish on the CO2 allowance auction website the auction clearing price and the number of allowances purchased by a successful bidder through the auction.

## Subtitle 10 — Oil Pollution Control and Storage Tank Management

### Chapter 01 — Oil Pollution Control

**Authority:** Environment Article, §§1-101, 4-401, 4-402, 4-405, 4-407—4-412, 4-415—4-420, and 7-201 et seq.; State Government Article, §§10-206 and 10-226; Annotated Code of Maryland

**Administrative History:** Effective date: September 1, 1974 (1:1 Md. R. 33)

**Administrative History:** Regulation .07 amended effective April 21, 1978 (5:8 Md. R. 593)

**Administrative History:** Regulation .07C amended effective September 12, 1983 (10:18 Md. R. 1607)

**Administrative History:** Regulation .07 repealed effective January 28, 1985 (12:2 Md. R. 134)

**Administrative History:** Regulations .01—.06 and .08—.13 transferred to COMAR 10.50.01 effective July 1, 1980

**Administrative History:** Regulations .01—.21 adopted effective January 28, 1985 (12:2 Md. R. 134)

**Administrative History:** Regulations .01A, B, .02C, .04A, .07A, .08A, .12A, .13, .15A, .17A, C amended effective December 28, 1987 (14:26 Md. R. 2743)

**Administrative History:** Regulations .04A, .12A, .13, .14B, C, .15, and .18B amended effective July 1, 1985 (12:13 Md. R. 1278)

**Administrative History:** Regulation .06 repealed and new Regulation .06 adopted effective December 28, 1987 (14:26 Md. R. 2743)

**Administrative History:** Regulation .09 amended effective September 23, 1985 (12:19 Md. R. 1847)

**Administrative History:** Regulation .14E adopted effective August 26, 1985 (12:17 Md. R. 1702)

**Administrative History:** Regulation .22 adopted effective December 28, 1987 (14:26 Md. R. 2743)

**Administrative History:** Appendix A amended effective August 26, 1985 (12:17 Md. R. 1702)

**Administrative History:** Appendix A recodified as Regulation .23 and amended effective December 28, 1987 (14:26 Md. R. 2743)

**Administrative History:** Chapter recodified from COMAR 08.05.04 to COMAR 26.10.01

**Administrative History:** Regulation .01 amended effective January 1, 1996 (22:26 Md. R. 2031); September 7, 1998 (25:18 Md. R. 1438); February 18, 2002 (29:3 Md. R. 223)

**Administrative History:** Regulation .01-1 adopted effective January 1, 1996 (22:26 Md. R. 2031)

**Administrative History:** Regulation .02D adopted effective January 1, 1996 (22:26 Md. R. 2031)

**Administrative History:** Regulation .04 amended effective January 1, 1996 (22:26 Md. R. 2031)

**Administrative History:** Regulation .04A amended effective April 5, 2010 (37:7 Md. R. 575)

**Administrative History:** Regulation .05 repealed effective January 1, 1996 (22:26 Md. R. 2031)

**Administrative History:** Regulation .05 adopted effective February 24, 1997 (24:4 Md. R. 294)

**Administrative History:** Regulations .07, .16, and .17 amended as an emergency provision effective January 18, 1993 (20:3 Md. R. 256); amended permanently effective July 18, 1993 (20:13 Md. R. 1050)

**Administrative History:** Regulation .07A amended effective February 4, 1991 (18:2 Md. R. 151); February 18, 2002 (29:3 Md. R. 223)

**Administrative History:** Regulation .08A amended effective February 4, 1991 (18:2 Md. R. 151); February 18, 2002 (29:3 Md. R. 223)

**Administrative History:** Regulation .09 amended effective February 18, 2002 (29:3 Md. R. 223)

**Administrative History:** Regulation .09B amended effective February 4, 1991 (18:2 Md. R. 151)

**Administrative History:** Regulation .12 amended effective February 18, 2002 (29:3 Md. R. 223)

**Administrative History:** Regulation .12A amended effective February 4, 1991 (18:2 Md. R. 151); February 18, 2002 (29:3 Md. R. 223); April 5, 2010 (37:7 Md. R. 575)

**Administrative History:** Regulation .12B amended effective September 18, 1989 (16:18 Md. R. 2025); February 18, 2002 (29:3 Md. R. 223)

**Administrative History:** Regulations .13—.15 repealed effective February 4, 1991 (18:2 Md. R. 151)

**Administrative History:** Regulation .16 amended effective February 18, 2002 (29:3 Md. R. 223)

**Administrative History:** Regulation .17 amended effective February 18, 2002 (29:3 Md. R. 223)

**Administrative History:** Regulation .17A amended effective September 18, 1989 (16:18 Md. R. 2025)

**Administrative History:** Regulation .18B amended effective February 18, 2002 (29:3 Md. R. 223)

**Administrative History:** Regulation .19 repealed effective September 7, 1998 (25:18 Md. R. 1438)

**Administrative History:** Regulation .20A amended effective February 4, 1991 (18:2 Md. R. 151); February 18, 2002 (29:3 Md. R. 223)

**Administrative History:** Regulations .22—.24 repealed effective February 4, 1991 (18:2 Md. R. 151)

**Administrative History:** Regulation .23 amended effective May 1, 1989 (16:8 Md. R. 911)

**Administrative History:** Regulation .24 adopted effective May 1, 1989 (16:8 Md. R. 911)

**Administrative History:** Regulations .22—.24 recodified from Regulations .25—.27 and adopted effective January 1, 1996 (22:26 Md. R. 2031)

**Administrative History:** Regulations .01—.24 repealed and new Regulations .01—.24 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Scope and Applicability.

*COMAR 26.10.01.01*

A. Unless otherwise stated, throughout this subtitle when a regulation places a requirement on more than one person, the following apply:

  (1) The Department may hold all or each person individually liable for a violation;

  (2) At least one of the persons listed shall meet the requirement; and

  (3) Each person listed shall ensure the requirement is met.

B. Except as otherwise provided, this chapter applies to a person that:

  (1) Engages in one or more of the following activities:

    (a) The aboveground or underground storage, dispensing, or transportation of oil;

    (b) The underground storage of a hazardous substance;

    (c) The removal, storage, treatment, or transportation of oil-contaminated soil, oil sludge, oil refuse, or oil mixed with other waste;

    (d) The installation, removal, closure, or maintenance of a storage tank system; or

    (e) The management of used oil, including burning used oil as fuel;

  (2) Actively or passively participates in the spill, release, or discharge of oil or allows the spill, release, or discharge of oil; and

  (3) Owns, operates, or is the person in charge of a device, equipment, facility, or vessel used to engage or participate in one or more of the activities described under §B(1) or (2) of this regulation.

C. Exceptions.

  (1) Except for Regulations .02—.06 and .24 of this chapter, the requirements of this chapter do not apply to an owner, an operator, and a person in charge of a vessel, facility, or equipment when used in activities related to the removal of oil within a spill response area defined by a federal or State on-scene coordinator.

  (2) Except for Regulations .02—.04, and .24 of this chapter, the requirements of this chapter do not apply to an owner, an operator, and a person in charge of an underground storage tank (UST) system used for the storage of a hazardous substance.

#### Regulation .02 Definitions.

*COMAR 26.10.01.02*

A. In this subtitle:

  (1) A term in §B of this regulation has the meaning indicated; and

  (2) A term not defined in §B of this regulation has:

    (a) The meaning given to the term in a relevant statute; or

    (b) If not defined in a relevant statute, the meaning attributed by common use.

B. Terms Defined.

  (1) Aboveground Storage Tank (AST).

    (a) “Aboveground storage tank” means a storage tank that:

      (i) Currently stores oil;

      (ii) Previously stored oil, except for a storage tank placed out-of-service to store a non-oil product in accordance with COMAR 26.10.17 or 26.10.18;

      (iii) Has a storage capacity of greater than 250 gallons;

      (iv) Is designed to operate at pressures from atmospheric pressure to a gauge pressure of 1.0 psi (6.9 kPa) measured at the top of the storage tank;

      (v) Is constructed more than 90 percent above the surface of the ground, excluding piping; and

      (vi) May be installed in an underground vault, a basement, or a sub-surface building.

    (b) “Aboveground storage tank” does not include:

      (i) An aboveground residential heating oil tank;

      (ii) A storage tank on a farm or private residence with a capacity to store 1,100 gallons or less of motor fuel or heating oil for noncommercial or personal use;

      (iii) A septic tank, surface impoundment, pit, pond, or lagoon;

      (iv) A stormwater or wastewater collection system;

      (v) A flow-through process tank;

      (vi) Oil-filled operational equipment;

      (vii) A pipeline facility, including gathering lines, regulated under 49 U.S.C. §§60101—60141, or an intrastate pipeline facility regulated under State law as provided under 49 U.S.C. §§60101—60141 and determined by the federal Secretary of Transportation to be connected to a pipeline, or operated or intended to be capable of operating at pipeline pressure or as an integral part of a pipeline; and

      (viii) A liquid trap or associated gathering lines directly related to oil or gas production and gathering operations.

  (2) “Aggregate storage capacity” means the total oil storage capacity of all ASTs on a property.

  (3) Ancillary Equipment.

    (a) “Ancillary equipment” means a device connected to a storage tank system used to distribute, meter, or control the flow of:

      (i) Oil to and from an AST; or

      (ii) A regulated substance to and from a UST, as defined in COMAR 26.10.02.02B.

    (b) “Ancillary equipment” includes, but is not limited to, devices such as piping, fittings, flanges, valves, and pumps.

  (4) “AST system” means an AST, connected aboveground and underground piping, ancillary equipment, and appurtenances, including dispensers, loading racks, and secondary containment.

  (5) “Attended” means there is an attendant or an employee that is on duty and available to customers at a motor fuel dispensing facility.

  (6) “Barge” means a vessel not equipped with a means of self-propulsion.

  (7) “Barrel” means a measure of oil that consists of 42.0 gallons of liquid measure.

  (8) Biofuel.

    (a) “Biofuel” means a fuel that is derived from animal or plant byproducts.

    (b) “Biofuel” may include oil if the liquid meets the definition of oil under §B(47) of this regulation.

  (9) “Breakout tank” means a tank used to:

    (a) Relieve surges in an oil pipeline system; or

    (b) Receive and store oil transported by pipeline for reinjection and continued transportation by pipeline.

  (10) “Cargo level monitor system” means a system of fixed level sensing and warning devices used to gauge and to warn of changes in levels of liquid cargo during transport by tank vessel, or any other system that gauges levels and warns of changes in levels of liquid cargo that is approved by the United States Coast Guard under 33 CFR Part 157.

  (11) Cargo Tank.

    (a) “Cargo tank” means any vehicle-mounted tank used for carrying oil that has a liquid capacity greater than 110 gallons.

    (b) “Cargo tank” does not include a tank used solely for the purpose of supplying fuel for the propulsion of a vehicle.

  (12) “Cathodic protection” means a technique to prevent corrosion of a metal surface by making that surface the cathode of an electrochemical cell, usually through the application of either galvanic anodes or impressed current.

  (13) “Cathodic protection tester” means a person who:

    (a) Can demonstrate an understanding of the principles and measurements of all common types of cathodic protection systems as applied to buried or submerged metal piping and storage tank systems;

    (b) Possesses one of the following:

      (i) A valid registration or certification card issued by a recognized institution within the past 5 years; or

      (ii) Documentation signed by a professional engineer (PE) attesting to the person’s education and knowledge of cathodic protection; and

    (c) Possesses education and experience in soil resistivity, stray current, structure-to-soil potential, and component electrical isolation measurements of buried metal piping and storage tank systems.

  (14) “Collecting agents” means a chemical agent or other compound that can gel, congeal, herd, entrap, fix, or make an oil mass more rigid or viscous to facilitate its removal from a water surface.

  (15) “Combustible liquid” means a liquid having a closed-cup flash point at or above 100.0ºF (37.8ºC).

  (16) Containment Sump.

    (a) “Containment sump” means a liquid-tight container that protects the environment by containing spills, releases, or discharges of a regulated substance from piping, dispensers, pumps and related components in the containment area.

    (b) “Containment sump” may be single-walled or secondarily contained and located at the top of a storage tank (tank top or submersible turbine pump sump), underneath the dispenser (under-dispenser containment sump), or at other points in the piping run (transition or intermediate sump).

  (17) “Control” means the possession of power to direct or cause the direction of the actions of a person, place, or thing.

  (18) Corrosion Expert.

    (a) “Corrosion expert” means a person who, by reason of thorough knowledge of the physical sciences and the principles of engineering and mathematics acquired by a professional education and related practical experience, is qualified to engage in the practice of corrosion control on buried or submerged metal components of a storage tank system.

    (b) “Corrosion expert” includes:

      (i) A person who is certified by the National Association of Corrosion Engineers; or

      (ii) A registered professional engineer who has certification or licensing that includes education and experience in corrosion control on buried or submerged metal components of storage tank systems.

  (19) “Damages” has the meaning stated in Environment Article, §4-401(c), Annotated Code of Maryland.

  (20) “Department” means the Maryland Department of the Environment.

  (21) “Dielectric material” means a material, such as a coating, bushing, or union that does not conduct direct electrical current.

  (22) “Discharge” means the addition, introduction, leaking, spilling, or emitting of oil to waters of the State or the placement of oil in a location where it is likely to reach or pollute waters of the State.

  (23) “Dispenser” means equipment located aboveground that dispenses:

    (a) Oil from an AST system; or

    (b) A regulated substance from a UST system.

  (24) Dispenser System.

    (a) “Dispenser system” means a dispenser and the equipment necessary to connect the dispenser to a UST system.

    (b) “Dispenser system” includes a dispenser connected to a UST system using check valves, shear valves, unburied risers or flexible connectors, or other transitional components that are underneath the dispenser and connect the dispenser to the UST system.

  (25) “Dispersant” means a chemical agent or another compound that can emulsify, disperse, or solubilize oil or which acts to further the surface spreading of oil to facilitate its dispersal.

  (26) “Farm tank” means a storage tank:

    (a) That does not meet the definition of a residential heating oil tank under §B(65) of this regulation;

    (b) Located on a farm property, including associated residences and improvements, or a tract of land devoted to:

      (i) Agriculture, including the production of crops and nurseries with growing operations; or

      (ii) Raising animals, including rangelands and fish hatcheries; and

    (c) Used solely in farm activities.

  (27) “Flammable liquid” means a liquid having a closed-cup flash point below 100.0ºF (37.8ºC).

  (28) “Floodplain” has the meaning stated in COMAR 26.17.04.02B.

  (29) Flow-through Process Tank.

    (a) “Flow-through process tank” means a tank that forms an integral part of a production process through which there is a steady, variable, recurring, or intermittent flow of materials during the operation of the process.

    (b) “Flow-through process tank” does not include:

      (i) Oil-filled operational equipment or a tank used for the storage of materials before their introduction into the production process; or

      (ii) Oil-filled operational equipment or a tank used for the storage of finished products or byproducts from the production process.

  (30) “Fuel oil” means a liquid petroleum product that includes, but is not limited to, the following products:

    (a) No. 1, No. 2, No. 4 – light, No. 4 – heavy, No. 5 – light, No. 5 – heavy, and No. 6 technical grades of fuel oil;

    (b) Other residual fuel oils, including Navy Special fuel oil and Bunker C;

    (c) Other fuels when used as substitutes for one of the fuel oils described in §B(30)(a) and (b) of this regulation; and

    (d) Heating oil as defined under §B(35) of this regulation.

  (31) “Fund” means the Maryland Oil Disaster Containment, Clean-Up and Contingency Fund.

  (32) “Gathering lines” means any pipeline, equipment, facility, or building used in the transportation of oil or gas during oil or gas production or gathering operations.

  (33) “General Oil Operations Permit” means the authorization established under Regulation .09B of this chapter for certain categories of oil storage facilities and oil handling facilities to operate without an Individual Oil Operations Permit.

  (34) Hazardous Substance.

    (a) “Hazardous substance” has the meaning stated in §101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §9601(14).

    (b) “Hazardous substance” does not include a substance that is regulated as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act.

  (35) “Heating oil” means a fuel oil as defined under §B(30) of this regulation that is typically used in the operation of heating equipment, boilers, or furnaces.

  (36) “Individual Oil Operations Permit” means an individual written authorization issued by the Department in accordance with Regulation .09A of this chapter describing the required performance standards for specific activities and operations of an oil storage facility or oil handling facility.

  (37) “Leak” means a loss of pressure within a storage tank system that may result in a spill, release, or discharge.

  (38) “Licensee” means a person who holds a valid Oil Transfer License from the Department in accordance with Regulation .08 of this chapter.

  (39) “Loading/unloading rack” means a fixed structure, such as a platform or gangway, having a loading or unloading arm necessary for loading or unloading a truck tank, transport, or tank car and may include any combination of the following:

    (a) Piping assemblages;

    (b) Valves;

    (c) Pumps;

    (d) Shut-off devices;

    (e) Overfill sensors; and

    (f) Personnel safety devices.

  (40) “Maintenance” means the performance of normal operational upkeep to prevent a storage tank system from spilling, releasing, or discharging a regulated substance.

  (41) Marina.

    (a) “Marina” means a facility having one or more piers, moorings or bulkheads, and marine motor fuel storage and dispensing systems for boats, vessels, and other marine watercraft used primarily for recreational purposes by the general public.

    (b) “Marina” does not include a marine oil facility.

  (42) Marine Oil Facility.

    (a) “Marine oil facility” means an on-shore or off-shore oil storage facility or oil handling facility located within waters of the State, including the Chesapeake Bay and its tributaries, used or capable of being used to transfer oil in bulk to or from a tank vessel and includes structures, equipment, and appurtenances.

    (b) “Marine oil facility” includes, if the facility is associated with a factory or power plant, only areas of the facility used for transfer of oil to or from a tank vessel.

    (c) “Marine oil facility” does not include a tank vessel or a tank barge.

  (43) “MDE” means the Maryland Department of the Environment.

  (44) “Monthly” means occurring at a frequency of once per calendar month and occurring generally 28 to 31 days between events.

  (45) Motor Fuel.

    (a) “Motor fuel” means a complex blend of hydrocarbons typically used in the operation of a motor engine or an emergency generator.

    (b) “Motor fuel” includes:

      (i) Motor gasoline, including gasohol;

      (ii) Aviation gasoline;

      (iii) No. 1 or No. 2 diesel fuel, including biodiesel fuel; and

      (iv) Any blend containing one or more of the substances listed in §B(45)(b)(i)—(iii) of this regulation.

  (46) “Motor fuel dispensing facility” means that portion of an oil storage facility where motor fuels are stored and dispensed from fixed equipment into the fuel tanks of motor vehicles, vessels, or into approved containers, including all equipment used in connection therewith.

  (47) Oil.

    (a) “Oil” means oil of any kind and in any liquid form including:

      (i) Petroleum and petroleum products;

      (ii) Petroleum byproducts;

      (iii) Light and heavy fuel oils, including fuel oils that are blended or mixed with biofuels or processed or re-refined used oil;

      (iv) Sludge containing oil or oil residues;

      (v) Oil refuse;

      (vi) Oil mixed with or added to or otherwise contaminating soil, waste, or any other liquid or solid media;

      (vii) Crude oils;

      (viii) Aviation fuels;

      (ix) Gasoline, including gasohol;

      (x) Kerosene;

      (xi) Diesel motor fuel, including biodiesel fuel, regardless of whether the fuel is petroleum based;

      (xii) Asphalt;

      (xiii) Ethanol that is intended to be used as a motor fuel or fuel source; and

      (xiv) Regardless of specific gravity, every other nonedible, nonsubstituted liquid petroleum fraction unless that fraction is specifically identified as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§9601 et seq.

    (b) “Oil” does not include:

      (i) Liquefied propane;

      (ii) Liquefied natural gas; or

      (iii) Any edible oils not intended to be used as a motor fuel or a fuel source.

  (48) “Oil-filled operational equipment” means equipment that includes an oil storage container or multiple containers in which the oil is present solely to support the function of the apparatus or the device, including:

    (a) Hydraulic systems;

    (b) Lubricating systems for pumps, compressors and other rotating equipment;

    (c) Gear boxes;

    (d) Machining coolant systems;

    (e) Heat transfer systems;

    (f) Transformers;

    (g) Circuit breakers;

    (h) Electrical switches; and

    (i) Other systems containing oil solely to enable the operation of the device.

  (49) “Oil handling facility” means a facility that is responsible for one or more of the following operations:

    (a) Delivery of oil by cargo tank;

    (b) Transfer of oil;

    (c) Management of used oil;

    (d) Storage and treatment of oil-contaminated soils; and

    (e) Oil sludge, oil refuse, or oil mixed with other waste solidification/stabilization.

  (50) Oil Storage Facility.

    (a) “Oil storage facility” means an installation, structure, or premises, including an aboveground or underground storage tank, in which oil has been or is stored.

    (b) “Oil storage facility” does not include:

      (i) A storage tank on a farm or private residence with a capacity to store 1,100 gallons or less of motor fuel or heating oil for noncommercial or personal use; or

      (ii) A vessel.

  (51) “Operator” means a person in control of a storage tank system, oil storage facility, or oil handling facility or a person that has responsibility over the following activities for a storage tank system, oil storage facility, or oil handling facility:

    (a) Daily or periodic operation;

    (b) Installation, repair, maintenance, and testing of one or more storage tank system; or

    (c) Closure.

  (52) “Other security” means a trust fund, letter of credit, insurance, or other form of financial responsibility approved by the Department.

  (53) “Owner” means a person who:

    (a) Owns a storage tank system, oil storage facility, or oil handling facility; or

    (b) Owned a storage tank system, oil storage facility, or oil handling facility immediately before the discontinuation of its use.

  (54) “Permittee” means one of the following regulated persons:

    (a) A person holding a valid Individual Oil Operations Permit issued by the Department;

    (b) A person subject to a General Oil Operations Permit authorized by the Department; or

    (c) A person subject to a General UST System Permit authorized by the Department under COMAR 26.10.02.04.

  (55) “Person” means:

    (a) An individual;

    (b) A receiver, trustee, guardian, executor, administrator, fiduciary, trust, or representative of any kind;

    (c) A partnership, firm, joint stock company, association, public or private corporation, joint venture, commercial entity, or consortium;

    (d) The United States Government and any federal agency;

    (e) The State or a county, municipality, municipal corporation, or other political subdivision of the State, or any of their units;

    (f) A commission or any interstate body; or

    (g) Any other entity.

  (56) “Person in charge” means a person designated by an owner, an operator, or a permittee as the person with direct supervisory responsibility for:

    (a) An activity or operation at a facility, such as the transfer of oil to or from any points in the facility; or

    (b) The repair, installation, maintenance, closure, or testing of a storage tank system.

  (57) “Person responsible for the discharge” means a person that meets the criteria under Environment Article, §4-401(j), Annotated Code of Maryland and includes the owner, the operator, or the person in charge of an oil handling facility involved in the discharge at the time of or immediately before the discharge.

  (58) “Pier” means a fixed or floating dock or a wharf constructed on or over waters of the State.

  (59) “Pollution” means every contamination or alteration of the physical, chemical, or biological properties of any waters of the State, including a change in temperature, taste, color, turbidity, or odor of the waters or the discharge or deposit of any organic matter, harmful organism, or liquid, gaseous, solid, radioactive, or other substance into any waters of the State that will render the waters harmful, detrimental, or injurious to:

    (a) Public health, safety, or welfare;

    (b) Domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses;

    (c) Livestock, wild animals, or birds; or

    (d) Fish or other aquatic life.

  (60) “Public vessel” means a vessel, not engaged in commerce, which is operated by the Government of the United States or a state or political subdivision or a foreign nation.

  (61) “Regulated substance” means:

    (a) A hazardous substance as defined under §B(34) of this regulation; and

    (b) Oil as defined under §B(47) of this regulation.

  (62) Regulated Substance Storage Facility.

    (a) “Regulated substance storage facility” means an installation, structure, or premises in which a regulated substance has been or is stored in one or more UST systems.

    (b) “Regulated substance storage facility” includes an underground oil storage facility

  (63) “Release” means:

    (a) A discharge as defined under §B(22) of this regulation from a storage tank system, transport, truck tank, tank barge, tank car, or pipeline;

    (b) The discharge, escaping, leaching, spilling, leaking, emitting, or disposing of a regulated substance from a UST system as defined in COMAR 26.10.02.02B into:

      (i) Groundwater, surface water, or surface or subsurface soils; or

      (ii) Secondary containment; or

    (c) The discharge, escaping, leaching, spilling, leaking, emitting, or disposing of oil from an AST system to a secondary containment dike as defined in COMAR 26.10.17.02B and 26.10.18.02B.

  (64) “Removal” means:

    (a) In response to a spill, release, or discharge, the act of abatement, containment, response, or the taking of other corrective actions as may be necessary to minimize or mitigate damage to the public health, safety, or welfare from a discharge or release or the threat of a discharge or release, including, but not limited to, public and private lands, waters of the State, and natural resources, both living and inert; and

    (b) The act of extracting a UST, underground piping, and any other components of a UST system.

  (65) “Residential heating oil tank” means an aboveground or underground storage tank that is used to store heating oil for use as a fuel in heating a single-family residential property and that meets the criteria for a heating oil tank under Environment Article, §4-401, Annotated Code of Maryland.

  (66) “Residential tank” means a storage tank used solely for noncommercial purposes and serving not more than one residence.

  (67) “Responsible party” includes:

    (a) For a discharge of oil, the person responsible for the discharge; and

    (b) For a release of a regulated substance from a UST system:

      (i) The owner of the released regulated substance;

      (ii) The owner, the operator, and the person in charge of the UST system or vehicle involved in the release of the regulated substance at the time of or immediately before the release;

      (iii) Any other person who through act of omission causes the release; and

      (iv) A person that meets the criteria of a responsible person under Environment Article, §7-201(t), Annotated Code of Maryland.

  (68) “Secondary containment” means an Underwriters Laboratories LLC (UL) listed or Department-approved system that:

    (a) Prevents a release to the environment by containing a regulated substance released from the primary storage tank or piping until the regulated substance is detected and removed; and

    (b) Detects a release by meeting the requirements of COMAR 26.10.05.05G.

  (69) “Secretary” means the Secretary of the Environment or the Secretary’s designee.

  (70) “Sinking agent” means a chemical agent or other compound that can physically sink oil below the water surface.

  (71) “Solidification/stabilization” means a treatment process that involves combining oil sludge, oil refuse, or oil mixed with other waste with a non-hazardous substance to solidify or eliminate liquid traits of the oil sludge, oil refuse, or oil mixed with other waste.

  (72) “Sorbent” means a substance or material that takes up and holds oil by either adsorption or absorption.

  (73) “Special flood hazard area” or “area of special flood hazard” has the meaning stated in 44 CFR §59.1.

  (74) “Spill” means a release as defined in §B(63) of this regulation.

  (75) Spill Catchment Basin.

    (a) “Spill catchment basin” means a liquid tight container, which may be single-walled or double-walled, that has a minimum capacity of 5 gallons and is installed on the fill pipe riser, remote fill pipe, and Stage I vapor recovery connections.

    (b) “Spill catchment basin” includes a spill bucket.

  (76) “Spill Prevention, Control, and Countermeasure (SPCC) Plan” means the document required under 40 CFR §112.3 that details the equipment, workforce, procedures, and steps to prevent, control, and provide adequate countermeasures to a spill, release, or discharge.

  (77) “State” means the State of Maryland.

  (78) “Storage capacity” means the primary shell capacity of a storage tank.

  (79) “Storage tank” means a stationary device:

    (a) Designed to contain an accumulation of oil either aboveground or underground, or an accumulation of hazardous substances underground; and

    (b) Constructed of nonearthen materials such as concrete, steel, fiberglass, and plastic, that provide structural support.

  (80) “Storage tank system” means a storage tank, connected piping, ancillary equipment and appurtenances, including dispensers and secondary containment.

  (81) “Tank barge” means a tank vessel not equipped with a means of self-propulsion.

  (82) “Tank car” means a cargo tank that is moved by locomotive power along a railroad system.

  (83) Tank Vessel.

    (a) “Tank vessel” means a vessel constructed or adapted to carry oil, or that carries oil in bulk as cargo, in a quantity of 300 gallons or more and does not carry the oil for self-propulsion.

    (b) “Tank vessel” does not include any vessel dedicated to, and engaged only in, oil removal-related activities, including training or drills.

  (84) “Tank vessel operator” means a person responsible for the operation of a tank vessel and includes, but is not limited to, the owner or a person who charters the tank vessel by demise.

  (85) “Transfer” means the loading or unloading of oil in the State from or to any tank vessel, tank barge, transport, truck tank, tank car, pipeline, or any other means used for transporting oil.

  (86) “Transfer area” means an area of an oil storage facility or oil handling facility, other than a loading/unloading rack, where oil is transferred to or from a tank car.

  (87) “Transport” means a vehicle used for the transportation of oil and equipped with a cargo tank or vacuum tank having a fifth wheel connection such that part of its load and weight rests upon the towing vehicle.

  (88) “Transporting” means the movement of oil or storage of oil by tank vessel, transport, truck tank, tank barge, tank car, or pipeline, or any other means used for transporting oil, and includes the transfer of oil.

  (89) “Truck tank” means a self-propelled motor vehicle used for the transportation of oil and equipped with a permanently mounted cargo tank or vacuum tank.

  (90) “Ullage” means the volume above the liquid in a storage tank as calculated by subtracting the gross volume of liquid in the storage tank from the maximum capacity of the storage tank, as listed on the applicable tank chart.

  (91) “Unattended” means there is no attendant or employee that is on duty and available to customers at a motor fuel dispensing facility.

  (92) “USCG” means the United States Coast Guard.

  (93) “Used oil” means any petroleum-based oil or synthetic oil which through use, storage, or handling has become unsuitable for its original purpose due to the presence of impurities or loss of original properties.

  (94) “USEPA” means the United States Environmental Protection Agency.

  (95) “Vessel” means every watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on the waters of the State.

  (96) “Waters of the State” includes:

    (a) Both surface and underground waters within the boundaries of the State subject to its jurisdiction, including that portion of the Atlantic Ocean within the boundaries of the State;

    (b) The Chesapeake Bay and its tributaries;

    (c) All ponds, lakes, rivers, streams, public ditches, tax ditches, and public drainage systems within the State, other than those designed and used to collect, convey, or dispose of sanitary sewage; and

    (d) The floodplain of free-flowing waters determined by the Department on the basis of the 100-year flood frequency.

#### Regulation .03 Incorporation by Reference.

*COMAR 26.10.01.03*

A. In this subtitle, the following documents published by the American Petroleum Institute (API) are incorporated by reference:

  (1) Specification for Bolted Tanks for Storage of Production Liquids (API Specification 12B, 17th Edition, December 2020);

  (2) Specification for Field-welded Tanks for Storage of Production Liquids (API Specification 12D, 12th Edition, June 2017);

  (3) Risk-based Inspection (API Recommended Practice 580, 3rd Edition, February 2016);

  (4) Welded Tanks for Oil Storage (API Standard 650, 13th Edition, March 2020, Errata 1, January 2021);

  (5) Cathodic Protection of Aboveground Petroleum Storage Tanks (API Recommended Practice 651, 4th Edition, September 2014);

  (6) Tank Inspection, Repair, Alteration, and Reconstruction (API Standard 653, 5th Edition, November 2014), except Annex H — Similar Service Assessment;

  (7) Closure of Underground Petroleum Storage Tanks (API Recommended Practice 1604, 4th Edition, February 2021);

  (8) Installation of Underground Petroleum Storage Systems (API Recommended Practice 1615, 6th Edition, April 2011, Reaffirmed May 2020);

  (9) Storing and Handling Ethanol and Gasoline-ethanol Blends at Distribution Terminals and Filling Stations (API Recommended Practice 1626, 2nd Edition, August 2010, Reaffirmed May 2020);

  (10) Interior Lining and Periodic Inspection of Underground Storage Tanks (API Standard 1631, 5th Edition, June 2001, Reaffirmed May 2020);

  (11) Using the API Color-Symbol System to Identify Equipment, Vehicles, and Transfer Points for Petroleum Fuels and Related Products at Dispensing and Storage Facilities and Distribution Terminals (API Recommended Practice 1637, 4th Edition, April 2020);

  (12) Venting Atmospheric and Low-pressure Storage Tanks (API Standard 2000, 7th Edition, March 2014, Reaffirmed April 2020); and

  (13) Overfill Protection for Storage Tanks in Petroleum Facilities (ANSI/API Standard 2350, 5th Edition, September 2020).

B. In this subtitle, the following documents published by the National Association of Corrosion Engineers (NACE) are incorporated by reference:

  (1) Control of External Corrosion on Underground or Submerged Metallic Piping Systems (NACE SP0169-2013, Approved April 1969, Revised October 2013);

  (2) Application of Cathodic Protection to Control External Corrosion of Carbon Steel On-Grade Storage Tank Bottoms (NACE SP0193-2016, Approved October 1993, Revised February 2016);

  (3) Corrosion Control of Underground Storage Tank Systems by Cathodic Protection (NACE SP0285-2011, Approved March 1985, Revised March 2011);

  (4) Measurement Techniques Related to Criteria for Cathodic Protection of Underground Storage Tank Systems (NACE Standard TM0101-2012, Approved November 2001, Revised March 2012); and

  (5) Measurement Techniques Related to Criteria for Cathodic Protection on Underground or Submerged Metallic Piping Systems (NACE TM0497-2018, Approved September 2018).

C. In this subtitle, the following documents published by the National Fire Protection Association (NFPA) are incorporated by reference:

  (1) Flammable and Combustible Liquids Code (NFPA 30, 2021 Edition);

  (2) Code for Motor Fuel Dispensing Facilities and Repair Garages (NFPA 30A, 2021 Edition);

  (3) Standard for the Installation of Oil-Burning Equipment (NFPA 31, 2020 Edition);

  (4) National Electrical Code (NFPA 70, 2020 Edition);

  (5) Standard for Tank Vehicles for Flammable and Combustible Liquids (NFPA 385, 2017 Edition); and

  (6) Standard System for the Identification of the Hazards of Materials for Emergency Response (NFPA 704, 2022 Edition).

D. In this subtitle, the following documents published by the Petroleum Equipment Institute (PEI) are incorporated by reference:

  (1) Recommended Practices for Installation of Underground Liquid Storage Systems (PEI/RP100-20, 2020 Edition);

  (2) Recommended Practices for Installation of Aboveground Storage Systems for Motor Vehicle Fueling (PEI/RP200-19, 2019 Edition);

  (3) Recommended Practices for Overfill Prevention for Shop-Fabricated Aboveground Tanks (PEI/RP600-18, 2018 Edition);

  (4) Recommended Practices for Installation of Bulk Storage Plants (PEI/RP800-20, 2020 Edition);

  (5) Recommended Practices for the Inspection and Maintenance of UST Systems (PEI/RP900-17, 2017 Edition);

  (6) Recommended Practices for the Installation of Marina Fueling Systems (PEI/RP1000-14, 2014 Edition);

  (7) Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities (PEI/RP1200-19, 2019 Edition); and

  (8) Recommended Practices for the Closure of Underground Storage Tank and Shop-Fabricated Aboveground Storage Tank Systems (PEI/RP1700-18, 2018 Edition).

E. In this subtitle, the following documents published by Steel Tank Institute/Steel Plate Fabricators Association (STI/SPFA) are incorporated by reference:

  (1) Standard for the Inspection of Aboveground Storage Tanks (STI/SPFA SP001, 6th Edition, January 2018);

  (2) Cathodic Protection Testing Procedures for sti-P3 USTs (STI/SPFA R051, Revised April 2017); and

  (3) Recommended Practice for the Addition of Supplemental Anodes to sti-P3 USTs (STI/SFPA R972, Revised December 2010).

F. In this subtitle, the following documents published by UL are incorporated by reference:

  (1) Standard for Safety, Steel Aboveground Tanks for Flammable and Combustible Liquids (UL 142, 10th Edition, May 2019, Revised January 2021); and

  (2) Standard for Safety, Special Purpose Aboveground Tanks for Specific Flammable or Combustible Liquids (UL 142A, 1st Edition, May 2018, Revised January 2021).

G. In this subtitle, USEPA Doing Inventory Control Right for Underground Storage Tanks (USEPA 510-B-93-004, November 1993) is incorporated by reference.

H. In this subtitle, the following test methods as published in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods Compendium” (USEPA SW-846, 3rd Edition) are incorporated by reference:

  (1) USEPA Test Method 1311 — Toxicity Characteristic Leaching Procedure (July 1992, Revision 0);

  (2) USEPA Test Method 8015C — Nonhalogenated Organics by Gas Chromatography (February 2007, Revision 3);

  (3) USEPA Test Method 8082A — Polychlorinated Biphenyls (PCBs) by Gas Chromatography (February 2007, Revision 1); and

  (4) USEPA Test Method 8260D — Volatile Organic Compounds by Gas Chromatography/Mass Spectrometry (June 2018, Revision 4).

I. In this subtitle, the following test methods as published in “Selected Analytical Methods for Environmental Remediation and Recovery (SAM) 2017” (USEPA/600/R-17/356, 2017) are incorporated by reference:

  (1) USEPA Test Method 524.2 — Measurement of Purgeable Organic Compounds in Water by Capillary Column Gas Chromatography/Mass Spectrometry (1995 Edition, Revision 4.1); and

  (2) USEPA Test Method 8015D — Nonhalogenated Organics Using GC/FID (June 2003, Revision 4).

#### Regulation .04 General Provisions and Specifically Prohibited Acts.

*COMAR 26.10.01.04*

A. The requirements of this chapter do not relieve a person from the duty to comply with any other federal, State, or local government statute, regulation, or authorization applicable to an activity, operation, or authorization regulated under this subtitle.

B. The Department, at its discretion, may modify a testing requirement of this subtitle for an owner, an operator, and a person in charge of a storage tank system, vehicle, vessel, or equipment subject to the provisions of this subtitle if:

  (1) The modification does not violate a general restriction or specifically prohibited act under §§C and D of this regulation;

  (2) The modification is not prohibited under a State statute or a federal statute, rule, or regulation; and

  (3) The modification is as protective of public health and the environment as the testing requirement modified.

C. General Restrictions. A person subject to the requirements of this chapter, as defined in Regulation .01B of this chapter, may not engage in an activity or operation in a manner likely to:

  (1) Create a nuisance;

  (2) Create air pollution;

  (3) Cause a discharge of pollutants to waters of this State, except in accordance with a valid permit issued by the Department under Environment Article, §9-323, Annotated Code of Maryland;

  (4) Impair the quality of the environment; or

  (5) Create other hazards to the public health, safety, welfare, or comfort as may be determined by the Department.

D. Specifically Prohibited Acts.

  (1) Prohibition Against Hazardous Substance Releases.

    (a) A person may not cause a release of a hazardous substance.

    (b) A person violating §D(1)(a) of this regulation is subject to:

      (i) Any applicable sanctions under Environment Article, Title 7, Subtitle 2, Part VIII, Annotated Code of Maryland;

      (ii) The modification, suspension, or revocation of a permit issued under the provisions of COMAR 26.10.02.04; and

      (iii) The Hazardous Substance Response Action Plan requirements under Environment Article, §7-222, Annotated Code of Maryland and COMAR 26.14.01 and 26.14.02.

  (2) Prohibition Against Oil Pollution.

    (a) A person may not pump, spill, release, discharge, throw, drain, deposit, or cause to be deposited oil or other matter containing oil into, near, or in an area likely to pollute waters of the State.

    (b) A person may not pump, spill, release, discharge, deposit or cause to be deposited bilge or ballast water or water from any receptacle containing oil in a manner by which oil may escape into, or in an area likely to pollute, waters of the State.

    (c) A person violating §D(2)(a) or (b) of this regulation is subject to:

      (i) Sanctions under Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland;

      (ii) The modification, suspension, or revocation of a license or permit issued under the provisions of this subtitle; and

      (iii) Any other sanctions provided under law.

    (d) The Department may exempt a person from §D(2)(a) and (b) of this regulation if:

      (i) There is an emergency imperiling life or property, an unavoidable accident, a collision, or stranding; or

      (ii) The person is authorized by the Department to remove an oil discharge from waters of the State.

  (3) False Statements. A person may not knowingly make a false statement, representation, or certification to the Department in any application, record, report, plan, or other document filed or required to be maintained under this subtitle.

  (4) Tampering with Monitoring Devices. A person may not falsify, tamper with, or knowingly render inaccurate a monitoring device or method required to be maintained under this subtitle.

E. Wetlands and Waterways.

  (1) A person may not install, construct, or extend a storage tank, storage tank system, oil storage facility, oil handling facility, or regulated substance storage facility in the following locations unless the person obtains all of the applicable authorizations listed in §E(2) of this regulation:

    (a) A special flood hazard area;

    (b) A tidal or nontidal wetland;

    (c) A nontidal wetland buffer; or

    (d) A 100-year floodplain of free-flowing waters, as described under Regulation .02B(96)(d) of this chapter.

  (2) A person installing, constructing, or extending a storage tank, storage tank system, oil storage facility, oil handling facility, or regulated substance storage facility in one of the areas listed in §E(1) of this regulation shall first obtain:

    (a) The applicable authorizations issued under Environment Article, Title 5 or 16, Annotated Code of Maryland and COMAR 23.02.04, 26.17.04, 26.23.02, 26.23.03, 26.24.02, or 26.24.03; and

    (b) If required under 33 U.S.C §1341(a), a Water Quality Certification issued by the Department in accordance with 33 U.S.C §1341, 40 CFR Part 121, and COMAR 26.08.02.10.

#### Regulation .05 Reporting an Oil Spill, Release, or Discharge.

*COMAR 26.10.01.05*

A. A person spilling, releasing, or discharging oil or allowing the spill, release, or discharge of oil, or who either actively or passively participates in a spill, release, or discharge of oil, either from a land-based installation, including vehicles in transit, or from any vessel, including a ship or boat of any kind, shall:

  (1) Report the incident to the Department immediately, but not later than 2 hours after detection of the spill, release, or discharge, in accordance with §B of this regulation; and

  (2) Remain available until clearance to leave the scene of the incident is given by the appropriate official as designated under §C of this regulation.

B. A person reporting an oil spill, release, or discharge to the Department shall include in the report all of the following information:

  (1) Time and date of the spill, release, or discharge;

  (2) Location and cause of the spill, release, or discharge;

  (3) Mode of transportation or type of facility involved;

  (4) Type and quantity of oil spilled, released, or discharged;

  (5) Assistance required;

  (6) Name, address, and telephone number of the person making the report; and

  (7) Any other pertinent information requested by the Department.

C. The authority to grant a person responsible for the discharge clearance to leave the scene of a spill, release, or discharge is designated as follows:

  (1) A representative of the Department may grant any person responsible for the discharge clearance to leave the scene either by telephone or in-person at the scene;

  (2) Without first giving notice to and receiving approval from the Department, a representative of any Maryland emergency fire and rescue service or any State, county, or local police officer on the scene may grant a person responsible for the discharge clearance to leave the scene to a person that is responsible for a discharge of less than 250 gallons; and

  (3) After giving notice to and receiving approval from the Department, a representative of any Maryland emergency fire and rescue service or any State, county, or local police officer on the scene may grant a person responsible for the discharge clearance to leave the scene to a person that is responsible for a discharge of more than 250 gallons.

D. Before granting a person responsible for the discharge clearance to leave the scene, the designated official shall obtain the person’s name, address, and telephone number as well as information on how the spill, release, or discharge occurred.

E. Written Report of the Occurrence.

  (1) A person responsible for the discharge shall submit a written report of the occurrence in accordance with the requirements of this section if:

    (a) 5 gallons or more of oil was spilled, released, or discharged;

    (b) Oil was discharged to waters of the State, regardless of the amount of oil spilled, released, or discharged; or

    (c) Directed by the Department to submit a written report of the occurrence.

  (2) Within ten working days, or as directed by the Department, after completion of removal work required under Regulation .06 of this chapter, a person responsible for the discharge shall prepare a written report of the occurrence and promptly submit the report to the Department.

  (3) A person responsible for the discharge shall prepare the written report of the occurrence on company letterhead and include all of the following information:

    (a) Date, time, and place of the spill, release, or discharge;

    (b) Amount and type of oil spilled, released, or discharged;

    (c) A complete description of circumstances contributing to the spill, release, or discharge;

    (d) A complete description of the containment and removal operations performed, including disposal sites to which oil refuse was transported;

    (e) Procedures, methods, and precautions instituted to prevent recurrence of an oil spill, release, or discharge from the facility involved;

    (f) Any other information considered necessary or required by the Department for a complete description of the incident; and

    (g) A certification that the information provided is true and correct to the knowledge of the person signing the report.

#### Regulation .06 Removal of an Oil Spill, Release, or Discharge.

*COMAR 26.10.01.06*

A. Responsibility for Performing a Removal.

  (1) The responsibility for the prompt control and removal of any oil spill, release, or discharge or threat of a spill, release, or discharge shall be with the person responsible for the discharge.

  (2) For spills, releases, or discharges occurring from an improperly abandoned storage tank system, the current landowners and any other person who owned, operated, leased, or was otherwise responsible for the storage tank system at the time it was abandoned shall also be responsible for the oil removal.

B. A person’s responsibility under §A of this regulation shall continue until removal of the spill, release, or discharge or threat of a spill, release, or discharge has been accomplished to the satisfaction of the Department.

C. A person shall accomplish the removal of oil by physical or mechanical means such as the use of skimming devices or vacuum systems, by the use of inert sorbent material, or by any other method specifically approved by the Department.

D. If sorbent material is employed, a person shall remove and dispose of the sorbent material in accordance with all federal, State, and local requirements.

E. A person may not use collecting agents, dispersants, or sinking agents except when authorized in writing by the Department.

F. Unless the appropriate federal official is directing the removal, the Department shall assume control of any spill, release, or discharge incident when the Department determines that a person responsible for the discharge is:

  (1) Not acting promptly to perform the removal of the spill, release, or discharge; or

  (2) Not completing the removal in a manner that controls or rectifies the conditions constituting an emergency or hazard.

G. A person shall perform removal activities that are:

  (1) Consistent with Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland; and

  (2) Not prohibited under Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland, the National Contingency Plan, or the directions of a Departmental or federal on-scene coordinator.

#### Regulation .07 Site Status Letters.

*COMAR 26.10.01.07*

A. The Department may issue notice of compliance, site condition, removal suspension, and final closure letters to either a person responsible for the discharge or any other person associated with a site subject to regulatory requirements under this subtitle.

B. Notice of Compliance Letter. The Department shall issue, upon request, a notice of compliance letter to a person who has received from the Department a notice of a violation of one or more of the regulatory provisions of this subtitle after the violation is corrected to the satisfaction of the Department.

C. Site Condition Letter. The Department shall issue, upon request, a site condition letter stating whether:

  (1) The Department requires corrective action at a site; or

  (2) A site is in compliance with the regulations of this subtitle.

D. Removal Suspension Letter.

  (1) Unless otherwise provided under §F of this regulation, the Department shall issue, upon request, a removal suspension letter if the Department determines that no further treatment of soil, groundwater or surface water is required for a specific spill, release, or discharge undergoing corrective action in accordance with Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland, Regulation .06 of this chapter, or COMAR 26.10.09.

  (2) After receiving a removal suspension letter, a person responsible for the discharge or a person performing a removal shall continue to monitor a site as may be required by the Department.

  (3) If a removal suspension letter is issued, the letter is applicable to any transferee of title, successor or assignee of a person responsible for the discharge, or any other person who performed a removal.

E. Final Closure Letter.

  (1) Unless otherwise provided under §F of this regulation, the Department shall issue a final closure letter after the Department determines that a site where a spill, release, or discharge of oil occurred is in compliance with Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland, Regulation .06 of this chapter, or COMAR 26.10.09.

  (2) The Department shall state in a final closure letter that a person responsible for the discharge or a person performing a removal is released from any additional corrective action under this subtitle regarding a spill, release, or discharge, except in those circumstances described under §F of this regulation.

  (3) A final closure letter is applicable to any transferee of title, successor or assignee of a person responsible for the discharge, or any other person who performed a removal.

F. The Department may require a person responsible for the discharge or a person performing a removal to take further remedial action at a site subject to a letter issued under §§B—E of this regulation if the Department determines that:

  (1) There is a threat to public health, safety, or welfare or the environment;

  (2) A spill, release, or discharge recurs as free phase oil product;

  (3) A letter issued under §D or E of this regulation was obtained through fraud or misrepresentation; or

  (4) A new or previously undiscovered spill, release, or discharge of oil requires a corrective action under Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland or the provisions of COMAR 26.10.

G. A purchaser of an oil-contaminated property may not be considered a person responsible for the discharge solely as a result of the purchase of the property, unless the purchaser meets the criteria for a person responsible for the discharge under Regulation .02B of this chapter.

#### Regulation .08 Oil Transfer License.

*COMAR 26.10.01.08*

A. Oil Transfer License Requirement. Except for a vessel or barge, a person may not transfer oil in the State without an Oil Transfer License issued by the Department.

B. Application Requirements. Before an Oil Transfer License may be issued by the Department, an applicant shall submit to the Department all of the following information:

  (1) A completed application on a form provided by the Department;

  (2) If applicable, satisfactory evidence that the applicant has implemented or is in the process of implementing:

    (a) State and federal plans and regulations to control pollution related to oil, petroleum products, and their byproducts; and

    (b) A plan for the abatement of pollution related to oil, petroleum products, and their byproducts when a spill, release, or discharge occurs;

  (3) Proof that the applicant is registered with the Maryland Department of Assessments and Taxation and that the person is in good standing with the State at the time the application for an Oil Transfer License is submitted;

  (4) Proof of Workers’ Compensation Insurance or, if not required, a certificate of compliance with the Maryland Workers’ Compensation Act; and

  (5) Proof of the applicant’s registration with the Comptroller of Maryland’s Motor Fuel Tax Unit or a signed document that registration by the applicant with the unit is not required.

C. License Effective Period. An Oil Transfer License issued by the Department has an effective period of 5 years, unless the license is:

  (1) Surrendered, suspended, revoked, or otherwise terminated by the Department; or

  (2) Issued by the Department, with reasons stated, with an effective period of less than 5 years.

D. License Renewal.

  (1) In addition to satisfying the requirements under §B of this regulation, a licensee applying to renew an Oil Transfer License may not have any tax liabilities with the Comptroller of Maryland.

  (2) When a tax liability is identified, the licensee will be notified by the Department and the license renewal process will stop until the liability is resolved.

  (3) The licensee shall determine the cause of the tax liability and notify the Department in writing when the liability is resolved.

E. License Cancellation. A licensee that determines they no longer require an Oil Transfer License shall notify the Department in writing within 60 days of making the determination.

F. Oil Transfer Fee.

  (1) The Department shall impose a fee on each barrel of oil transferred in the State, with the fee assessed only once at the first point of transfer in the State.

  (2) The fee amount is established under Environment Article, §4-411, Annotated Code of Maryland.

  (3) The licensee that offloads or onloads oil at the first point of transfer in the State is responsible for paying the fee.

  (4) A licensee shall pay the fee on a quarterly basis to the Department not later than the following due dates or, if the payment is received by the Department after a due date, postmarked two days before the following due dates:

    (a) First Quarter (July, August, September) — October 31;

    (b) Second Quarter (October, November, December) — January 31;

    (c) Third Quarter (January, February, March) — April 30; and

    (d) Fourth Quarter (April, May, June) — July 31.

G. Reports Required. A licensee, including one that does not transfer oil during one or more quarters identified in §F of this regulation, shall:

  (1) Report to the Department the barrels of oil transferred each quarter on forms provided by the Department; and

  (2) Submit the completed forms with the fee payment to the Department in accordance with §F of this regulation.

H. The transfer of the following products are exempt from the oil transfer fee and reporting requirements:

  (1) Oil in containers of less than 100 gallons capacity; and

  (2) Oil products not listed under §I of this regulation.

I. The following oil and petroleum products are subject to the license fee:

  (1) Gasoline;

  (2) Gasohol, including:

    (a) Alcohols denatured with oil; and

    (b) Ethanol that is intended to be used as a motor fuel or fuel source;

  (3) Kerosene;

  (4) Aviation fuels;

  (5) Diesel motor fuel, including biodiesel fuel, regardless of whether the fuel is petroleum based;

  (6) Heating oil;

  (7) Fuel oils, including fuel oil that is blended or mixed with:

    (a) Biofuels; or

    (b) Processed or re-refined used oil;

  (8) Liquid asphalts;

  (9) Hydraulic oils;

  (10) Lubricating oils; and

  (11) Crude oil.

J. Audits.

  (1) The Department may perform audits of a report, required under §G of this regulation, submitted by a licensee to ensure the licensee is reporting properly and completely.

  (2) Upon the request of the Department, a licensee shall provide records to the Department during an audit in accordance with Regulation .20 of this chapter.

K. Failure to Submit Oil Transfer Fee Payments and Reports.

  (1) If a licensee fails to submit an oil transfer fee payment and accompanying report to the Department for a given quarter, the Department shall determine the amount of oil transfer fee due using available information and provide notice of this determination to the licensee liable for payment of the oil transfer fee.

  (2) A licensee shall have an opportunity for a contested case hearing if the licensee files a written request with the Department within 30 calendar days of receiving a notice of determination issued under §K(1) of this regulation.

  (3) A determination made in accordance with §K(1) of this regulation is considered final, unless:

    (a) The licensee liable for the oil transfer fee payment requests a hearing in accordance with §K(2) of this regulation; or

    (b) The Department, on its own, redetermines the oil transfer fee amount owed by the licensee liable for the oil transfer fee payment.

  (4) The Department shall conduct a contested case hearing in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

#### Regulation .09 Oil Operations Permits.

*COMAR 26.10.01.09*

A. Individual Oil Operations Permit.

  (1) An owner, an operator, and a person in charge of an oil storage facility or oil handling facility that meets one or more of the following conditions shall obtain an Individual Oil Operations Permit in accordance with Regulation .11 of this chapter:

    (a) An oil storage facility or oil handling facility having an aggregate storage capacity of 10,000 gallons or greater;

    (b) A marina with an AST system that is part of a motor fuel dispensing facility;

    (c) An oil storage facility or oil handling facility involved in the handling, reuse, processing, re-refining, or disposal of used oil that has an aggregate storage capacity of 1,000 gallons or greater of used oil;

    (d) An oil storage facility or oil handling facility involved in the delivery or transfer of oil:

      (i) Using a truck tank or transport with a cargo tank capacity of 500 gallons or greater; and

      (ii) To or from any point within the State, including deliveries from out-of-State facilities;

    (e) An oil storage facility or oil handling facility with a loading/unloading rack or transfer area used in the transfer of oil to or from a truck tank, transport, or tank car;

    (f) An oil storage facility or oil handling facility otherwise permitted under §B of this regulation that delivers, transfers, or stores oil if the Department determines the delivery, transfer, or storage of oil poses a water pollution hazard due to the facility’s size, nature, or location;

    (g) An oil-contaminated soil facility as defined in COMAR 26.10.13.02B; and

    (h) An oil storage facility or oil handling facility whose operations involve the solidification/stabilization of oil sludge, oil refuse, or oil mixed with other waste.

  (2) An owner, an operator, and a person in charge of an oil storage facility or oil handling facility required to have an Individual Oil Operations Permit shall comply with the following provisions of COMAR 26.10:

    (a) Regulations .04—.06 of this chapter and COMAR 26.10.08 and 26.10.09 when a suspected or confirmed spill, release, or discharge occurs;

    (b) Regulations .03, .04, .10—.12, .19, and .24 of this chapter;

    (c) For an aboveground oil storage facility:

      (i) Regulations .18, .20, and .21 of this chapter;

      (ii) If the facility is located at a marina, Regulation .14 of this chapter;

      (iii) If the facility manages used oil, COMAR 26.10.15;

      (iv) If the facility has shop-fabricated ASTs, COMAR 26.10.17;

      (v) If the facility has field-erected ASTs, COMAR 26.10.18;

      (vi) If the facility has underground piping connected to an AST, COMAR 26.10.03.02 and 26.10.05.02D; and

      (vii) COMAR 26.10.10, which specifies the closure requirements for underground piping connected to an AST;

    (d) If the facility conducts deliveries or transfers of oil using a truck tank or transport, Regulations .16 and .17 of this chapter;

    (e) The oil transfer requirements in Regulation .18 of this chapter;

    (f) For an oil-contaminated soil facility, COMAR 26.10.13; and

    (g) For an oil solidification/stabilization facility, Regulation .15 of this chapter.

B. General Oil Operations Permit by Rule.

  (1) Unless required to obtain an Individual Oil Operations Permit under §A(1) of this regulation, an owner, an operator, and a person in charge of one of the following oil storage facilities or oil handling facilities is permitted by the Department to operate provided the conditions specified in this section are met:

    (a) An oil storage facility or oil handling facility with an aggregate storage capacity of less than 10,000 gallons;

    (b) An oil storage facility or oil handling facility involved in the handling, reuse, processing, re-refining, or disposal of used oil with an aggregate storage capacity of less than 1,000 gallons of used oil; and

    (c) An oil storage facility or oil handling facility involved in the delivery or transfer of oil:

      (i) Using a truck tank or transport with a cargo tank capacity of less than 500 gallons; and

      (ii) To or from any point within the State, including deliveries from out-of-State facilities.

  (2) An owner, an operator, and a person in charge of an oil storage facility or oil handling facility permitted to operate under a General Oil Operations Permit shall comply with the following provisions of COMAR 26.10:

    (a) Regulations .04—.06 of this chapter and COMAR 26.10.08 and 26.10.09 when a suspected or confirmed spill, release, or discharge occurs;

    (b) Regulations .03, .04, .10, .12, .19, and .24 of this chapter;

    (c) If the facility has underground piping connected to an AST, COMAR 26.10.03.02 and 26.10.05.02D;

    (d) If the facility has shop-fabricated ASTs, COMAR 26.10.17;

    (e) If the facility has field-erected ASTs, COMAR 26.10.18;

    (f) If the facility manages used oil, COMAR 26.10.15; and

    (g) If the facility conducts oil deliveries or transfers using a truck tank or transport, Regulations .16 and .17 of this chapter.

#### Regulation .10 Registration of AST Systems.

*COMAR 26.10.01.10*

A. Exception.

  (1) Unless otherwise directed by the Department, an owner, an operator, and a person in charge of an oil storage facility or oil handling facility is not required to register an AST system located at the facility with the Department if:

    (a) The oil storage facility is a single-family residential property;

    (b) The oil storage facility or oil handling facility has an aggregate storage capacity of 2,500 gallons or less and operates under a General Oil Operations Permit, as required under Regulation .09B of this chapter; or

    (c) The AST system stores oil for less than six consecutive months.

  (2) To address a special circumstance at a facility, the Department may approve a written request for an exemption from the AST system registration requirement under §B of this regulation submitted by an owner, an operator, or a person in charge of an oil storage facility or oil handling facility otherwise required to register an AST system with the Department.

B. Registration Requirement.

  (1) Except as provided under §A of this regulation, an owner, an operator, and a person in charge of an oil storage facility or oil handling facility:

    (a) Shall register, and maintain current registration of, each AST system located at the facility with the Department; and

    (b) May not allow the receipt of oil to, or selling or dispensing of oil from, an AST system not registered with the Department.

  (2) Prior to selling or transferring ownership of an oil storage facility or oil handling facility or an AST system intended to be used by a purchaser or transferee for the storage of oil in Maryland, an owner, an operator, and a person in charge of an oil storage facility or oil handling facility required to register an AST system under §B(1) of this regulation shall:

    (a) Inform the purchaser or transferee of the registration requirements under this regulation; and

    (b) If an oil storage facility or oil handling facility described under §D of this regulation, provide the purchaser or transferee with a copy of the current registration form.

C. Facility with an Individual Oil Operations Permit. An owner, an operator, and a person in charge of an oil storage facility or oil handling facility required to obtain an Individual Oil Operations Permit under Regulation .09A of this chapter shall register and maintain registration of each AST system located at the facility:

  (1) As part of the application process for a new or renewal Individual Oil Operations Permit in accordance with Regulation .11 of this chapter; and

  (2) If required under Regulation .12B of this chapter, by requesting a modification of an effective Individual Oil Operations Permit.

D. Facility with a General Oil Operations Permit. An owner, an operator, and a person in charge of an oil storage facility or oil handling facility with an aggregate storage capacity of greater than 2,500 gallons that operates under a General Oil Operations Permit, as required under Regulation .09B of this chapter, shall register and maintain registration for each AST system located at the facility in accordance with the registration procedures of this section.

  (1) Registration Form. An owner, an operator, or a person in charge of an oil storage facility or oil handling facility:

    (a) Shall register or amend the registration for each AST system located at the facility using a registration form provided by the Department;

    (b) May use one registration form to register multiple AST systems at a single facility;

    (c) May not use one registration form to register multiple AST systems located at more than one facility;

    (d) Shall provide all of the required information on the registration form, including information unchanged since the last registration form was submitted to the Department for the AST system; and

    (e) Shall sign and date each registration form submitted to the Department.

  (2) Registration Schedule. An owner, an operator, or a person in charge of an oil storage facility or oil handling facility shall:

    (a) Register an AST system with the Department in accordance with the following schedule:

      (i) If the AST system is installed on or after June 13, 2022, within 30 days of installing the AST system; and

      (ii) If the AST system was installed before June 13, 2022, not later than 18 months after June 13, 2022; and

    (b) Submit an amended registration form to the Department within 30 days of one or more of the following changes to an AST system or an oil storage facility or oil handling facility:

      (i) The sale, transfer of ownership, or change in ownership structure;

      (ii) A change in the oil product stored in the AST system;

      (iii) A change in status of the AST system from or to in-service, permanently closed or out-of-service, including a change-in-service to store a non-oil product in the AST system; or

      (iv) The installation of a new or replacement AST system at the facility.

  (3) Recordkeeping. An owner, an operator, or a person in charge of an oil storage facility or oil handling facility shall:

    (a) Maintain a copy of each complete AST system registration form at the oil storage facility or oil handling facility; and

    (b) Make a copy of a complete AST system registration form available upon request by the Department.

#### Regulation .11 Requirements for the Application and Issuance of an Individual Oil Operations Permit.

*COMAR 26.10.01.11*

A. An owner, an operator, and a person in charge of an oil storage facility or oil handling facility required to obtain an Individual Oil Operations Permit under Regulation .09A of this chapter shall complete, on forms provided by the Department, and submit to the Department:

  (1) An application for an Individual Oil Operations Permit; and

  (2) A plan for notification, containment, and removal of a spill, release, or discharge of oil.

B. An owner, an operator, and a person in charge of an oil storage facility or oil handling facility shall submit the following additional documentation with the forms required under §A of this regulation to the Department:

  (1) Satisfactory evidence that the oil storage facility or oil handling facility is in compliance with all applicable county zoning and land use requirements;

  (2) Proof of Workers’ Compensation Insurance or, if not required, a certificate of compliance with the Maryland Workers’ Compensation Act;

  (3) If the oil storage facility or oil handling facility is used in the operation of a commercial or business entity, certification and proof that:

    (a) The owner has registered the commercial or business entity with the Maryland Department of Assessments and Taxation; and

    (b) The commercial or business entity is in good standing with the State at the time the application for an Individual Oil Operations Permit is submitted; and

  (4) If a marine oil facility, an updated response plan in accordance with Regulation .21A of this chapter when requested by the Department.

C. An owner, an operator, and a person in charge of an oil storage facility or oil handling facility shall include in the plan for notification, containment, and removal required under §A of this regulation the following information to address containment and removal operations for an oil spill, release, or discharge:

  (1) A list of names and telephone numbers of individuals to be notified in the event of an oil spill, release, or discharge at the facility;

  (2) Provisions for quick control of an oil spill, release, or discharge, including personnel assignments, equipment and personnel locations, and procedures necessary to obtain equipment and materials;

  (3) A list of contractors, equipment, and disposal facilities that may be used for containment and removal;

  (4) Confirmation the facility has an up-to-date federal SPCC Plan; and

  (5) Additional information as requested by the Department.

D. An owner, an operator, and a person in charge of an oil storage facility or oil handling facility shall submit the documents required in §§A—C of this regulation to the Department not later than 60 days prior to:

  (1) A new oil storage facility receiving, selling, or dispensing oil; or

  (2) A new oil handling facility initiating oil operations.

E. Renewal. A permittee shall submit an application for the renewal of an Individual Oil Operations Permit in accordance with §§A—C of this regulation not later than 60 days before the expiration of the Individual Oil Operations Permit.

F. Registration of an AST System. An owner, an operator, and a person in charge of an oil storage facility or oil handling facility required under Regulation .10 of this chapter to register each AST system located at the facility shall comply with the registration requirement by submitting a complete permit application in accordance with §§A—C of this regulation.

G. When issuing an Individual Oil Operations Permit, the Department shall:

  (1) Review an application for an Individual Oil Operations Permit submitted by an owner, an operator, and a person in charge of an oil storage facility or oil handling facility completed in accordance §§A—C of this regulation;

  (2) Inspect each oil storage facility or oil handling facility for which the application was submitted, except for:

    (a) Truck tank and transport facilities having no AST systems; and

    (b) Out-of-State oil delivery facilities; and

  (3) Issue an Individual Oil Operations Permit to the applicant if the Department determines that:

    (a) The applicable requirements of COMAR 26.10 can be met;

    (b) A facility is properly and adequately equipped to prevent oil pollution, and to contain and remove oil spills, releases, and discharges;

    (c) A person in charge of a facility has the capability to handle the oil in accordance with the applicable requirements of COMAR 26.10; and

    (d) An owner, an operator, and a person in charge of an oil storage facility or oil handling facility has:

      (i) No tax liabilities with the Maryland Comptroller’s Office;

      (ii) Submitted to the Department satisfactory evidence that the oil storage facility or oil handling facility is in compliance with all applicable county zoning and land use requirements;

      (iii) Provided proof that Workers’ Compensation Insurance requirements have been satisfied; and

      (iv) Provided proof that the person is registered with the Maryland Department of Assessments and Taxation and is in good standing with the State.

H. Permit Effective Period. An Individual Oil Operations Permit issued by the Department has an effective period of 5 years, unless the permit is:

  (1) Surrendered, suspended, revoked, or otherwise terminated by the Department; or

  (2) Issued by the Department, with reasons stated, with an effective period of less than 5 years.

#### Regulation .12 Conditions for the Denial, Suspension, Revocation, and Modification of an Oil Transfer License or Oil Operations Permit.

*COMAR 26.10.01.12*

A. Oil Transfer License.

  (1) After written notification by the Department and an opportunity to request a hearing, the Department may deny a person’s application for an Oil Transfer License or suspend or revoke a licensee’s Oil Transfer License if the Department determines that:

    (a) A violation of a provision of the Oil Transfer License or other applicable federal, State, or local requirements related to oil pollution has occurred;

    (b) A violation of the Environment Article, Annotated Code of Maryland or a regulation adopted under the Environment Article, Annotated Code of Maryland has occurred;

    (c) False or inaccurate information or data was provided in:

      (i) An application for an Oil Transfer License;

      (ii) A report, submitted to the Department, on the barrels of oil transferred within a quarter by a licensee; or

      (iii) Any other document submitted to the Department under the terms and conditions of an Oil Transfer License;

    (d) A licensee has failed to submit to the Department an oil transfer fee payment or accompanying report on the barrels of oil transferred for one or more quarters;

    (e) Issuance of an Oil Transfer License would pose a risk of harm to public health, safety, or welfare or the environment; or

    (f) Any other good cause exists for denying, suspending, or revoking an Oil Transfer License.

  (2) Once the Department denies a person’s application to renew an Oil Transfer License or suspends or revokes a person’s Oil Transfer License, the person shall cease activities authorized under the license in a manner determined by the Department.

  (3) The filing of a hearing request made in accordance with §D of this regulation does not stay the Department’s decision to deny, revoke, or suspend an Oil Transfer License.

B. Individual Oil Operations Permit.

  (1) Denial, Suspension, or Revocation.

    (a) The Department may deny a person’s application for an Individual Oil Operations Permit or suspend or revoke a permittee’s Individual Oil Operations Permit if the Department determines that:

      (i) A violation of a provision of an Individual Oil Operations Permit or other applicable federal, State, or local requirements related to oil pollution has occurred;

      (ii) A violation of the Environment Article, Annotated Code of Maryland or a regulation adopted under the Environment Article, Annotated Code of Maryland has occurred;

      (iii) False or inaccurate information or data was provided in an application for an Individual Oil Operations Permit or any other document submitted to the Department under the terms and conditions of an Individual Oil Operations Permit;

      (iv) The permittee has failed to report to the Department a substantial change that requires a permit modification under §B(2) of this regulation;

      (v) Issuance of an Individual Oil Operations Permit would pose a risk of harm to public health, safety, or welfare or the environment; or

      (vi) Any other good cause exists for denying an application for an Individual Oil Operations Permit or suspending or revoking an Individual Oil Operations Permit.

    (b) Once the Department denies a person’s application to renew an Individual Oil Operations Permit or suspends or revokes a person’s Individual Oil Operations Permit, the person shall cease activities authorized under the permit in a manner determined by the Department.

  (2) Modification.

    (a) The Department may modify an Individual Oil Operations Permit as necessary to carry out the intent and purpose of COMAR 26.10 and a permittee may submit to the Department a request to modify an Individual Oil Operations Permit to implement a substantial change listed in §B(2)(b) of this regulation.

    (b) Before implementing a change, a permittee shall submit a request to the Department to modify an Individual Oil Operations Permit for one or more of the following substantial changes in either the size or scope of the permitted oil operation or in the information provided to the Department in the permit application:

      (i) The sale, transfer of ownership, or change in ownership structure of the AST system or the oil storage facility or oil handling facility;

      (ii) The installation or removal of an AST system at the oil storage facility or oil handling facility;

      (iii) A change in the methods, processes, or operations for the treatment of oil-contaminated soil;

      (iv) A change in methods, processes, or operations used for the solidification/stabilization of oil sludge, oil refuse, or oil mixed with other waste;

      (v) The addition of, or a change in the type of, secondary containment or diking used as containment for an AST system, loading/unloading rack, or transfer area at an oil storage facility or oil handling facility;

      (vi) A change in the type of oil stored in an AST system;

      (vii) The installation or removal of underground piping associated with an AST system;

      (viii) A change in status of the AST system from or to in-service, permanently closed or out-of-service, including a change-in-service to store a non-oil product in the AST system; and

      (ix) Upon notification by the Department, a change determined by the Department to constitute a substantial change in either the size or scope of the permitted oil operation or in the information provided to the Department in the permit application.

    (c) A permittee requesting a modification of an Individual Oil Operational Permit shall submit to the Department a request in writing on company letterhead and signed by the permittee.

    (d) The Department may deny a permittee’s request to modify an Individual Oil Operations Permit for the reasons provided under §B(1) of this regulation.

C. General Oil Operations Permit.

  (1) The Department may suspend or revoke a permittee’s authorization to operate under a General Oil Operations Permit as provided under Regulation .09B of this chapter if the Department determines that:

    (a) A violation of a condition specified under Regulation .09B of this chapter under which the permittee is required to comply with in the operation an oil storage facility or oil handling facility has occurred;

    (b) A violation of an applicable federal, State, or local requirement related to oil pollution has occurred;

    (c) A violation of the Environment Article, Annotated Code of Maryland or a regulation adopted under the Environment Article, Annotated Code of Maryland has occurred;

    (d) False or inaccurate information or data was provided in a document required to be submitted to the Department under Regulation .09B of this chapter;

    (e) A permittee’s continued operation of an oil storage facility or oil handling facility under the General Oil Operations Permit would pose a risk of harm to public health, safety, or welfare or the environment; or

    (f) Any other good cause exists for suspending or revoking the authorization provided under Regulation .09B of this chapter.

  (2) Once the Department suspends or revokes a person’s authorization to operate under a General Oil Operations Permit, the person shall cease activities permitted under the suspended or revoked General Oil Operations Permit in a manner determined by the Department.

D. Contested Case Hearings.

  (1) A person whose application for an Oil Transfer License was denied or a person with a suspended or revoked Oil Transfer License shall have an opportunity for a contested case hearing if the person files a written request with the Department not later than 30 calendar days after receiving a notice of the Department’s decision to deny an application for the Oil Transfer License or to suspend or revoke the Oil Transfer License.

  (2) Unless a person notified of the Department’s licensing decision makes a timely request for a contested case hearing in accordance with §D(1) of this regulation, the decision is final.

  (3) The Department shall conduct a hearing in accordance with the provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

E. A person aggrieved by a permit or order issued by the Department under Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland and the provisions of this chapter may obtain immediate judicial review under State Government Article, §§10-222 and 10-223, Annotated Code of Maryland and the Maryland Rules.

#### Regulation .13 Residential Heating Oil Tanks.

*COMAR 26.10.01.13*

A. Scope. This regulation establishes requirements for the delivery of heating oil to a residential heating oil tank and the use, installation, and permanent closure of a residential heating oil tank.

B. Heating Oil Delivery.

  (1) The owner of an oil delivery company shall have a valid Individual Oil Operations Permit issued by the Department:

    (a) To deliver heating oil to residential heating oil tanks; and

    (b) To employ persons to deliver heating oil to residential heating oil tanks.

  (2) A person may not deliver heating oil to a residential heating oil tank if the residential heating oil tank has a spill or release, visible or otherwise known, or unstable so as to likely fall over when filled.

  (3) A person may not deliver heating oil to a residential heating oil tank unless the residential heating oil tank is equipped with means to determine the heating oil level in the residential heating oil tank at the fill point by one or more of the following methods:

    (a) A functioning vent whistle with proper vent sizing;

    (b) A functioning visual or audible overfill alarm; or

    (c) A person confirming there is sufficient ullage in the residential heating oil tank for the planned delivery volume.

  (4) A person shall report a suspected or confirmed spill, release, or discharge of heating oil that occurs during a delivery to:

    (a) The Department in accordance with Regulation .05 of this chapter;

    (b) An individual living at the property; and

    (c) The owner of the residential heating oil tank.

  (5) Homeowner Heating Oil Deliveries.

    (a) A homeowner may deliver heating oil to a residential heating oil tank owned by the homeowner.

    (b) A homeowner delivering heating oil to a residential heating oil tank owned by the homeowner shall:

      (i) Comply with §B(2)—(4) of this regulation; and

      (ii) Report a suspected or confirmed heating oil spill, release, or discharge to the Department in accordance with Regulation .05 of this chapter.

C. New and Replacement Residential Heating Oil Tanks. A person installing a new or replacement residential heating oil tank aboveground, inside of a building, or underground shall comply with the following provisions:

  (1) Install a residential heating oil tank that meets the requirements of NFPA 31 “Standard for the Installation of Oil-Burning Equipment”;

  (2) Ensure all underground piping or piping in contact with the ground surface is protected from corrosion in accordance with:

    (a) NFPA 30 “Flammable and Combustible Liquids Code”; and

    (b) NFPA 31 “Standard for the Installation of Oil-Burning Equipment”;

  (3) Before installing a residential heating oil tank, obtain any applicable wetland and waterways authorization stated in Regulation .04E of this chapter;

  (4) If installing an aboveground residential heating oil tank aboveground or inside of a building, install a storage tank that is:

    (a) UL listed for aboveground use or a storage tank designed and constructed for aboveground use in accordance with a Department-approved industry standard; and

    (b) Placed on a foundation designed to minimize:

      (i) Uneven settling of the residential heating oil tank or the foundation; and

      (ii) Corrosion to any part of the residential heating oil tank resting on the foundation;

  (5) If installing an aboveground residential heating oil tank in an area subject to flooding, anchor the residential heating oil tank securely to prevent:

    (a) The residential heating oil tank from floating; and

    (b) A spill, release or discharge of heating oil from the residential heating oil tank; and

  (6) If installing an underground residential heating oil tank on or after June 13, 2022, install a storage tank that is:

    (a) UL listed for underground use or a storage tank designed and constructed for underground use in accordance with a Department-approved industry standard;

    (b) Constructed of corrosion protected steel or fiberglass reinforced plastic; and

    (c) Protected from corrosion in accordance with:

      (i) NFPA 30 “Flammable and Combustible Liquids Code”; and

      (ii) NFPA 31 “Standard for the Installation of Oil-Burning Equipment”.

D. Permanent Closure. A person shall complete all of the requirements of this section when permanently abandoning the use of heating oil as a fuel at a residential property or if removing a residential heating oil tank from a property.

  (1) Complete the permanent closure of a residential heating oil tank in accordance with PEI/RP1700-18 “Recommended Practices for the Closure of Underground Storage Tank and Shop-Fabricated Aboveground Storage Tank Systems”.

  (2) Complete the requirements listed in §D(3) or (4) of this regulation within 30 days of the determination that a residential heating oil tank will be permanently closed.

  (3) When permanently closing a residential heating oil tank located aboveground or inside of a building:

    (a) Remove all flammable or combustible liquids from the storage tank and piping;

    (b) Dispose of all flammable and combustible liquids in accordance with federal, State, and local laws;

    (c) Remove the residential heating oil tank from the property;

    (d) Remove all piping and piping connections used for supplying heating oil between the storage tank and the heating system; and

    (e) Remove all fill and vent pipes or fill the pipes with cement to prevent accidental filling.

  (4) When permanently abandoning the use of heating oil as fuel, permanently close an underground residential heating oil tank in accordance with the closure requirements for UST systems in COMAR 26.10.10.

#### Regulation .14 Marinas.

*COMAR 26.10.01.14*

A. This regulation does not apply to:

  (1) A marine oil facility;

  (2) An oil storage facility with loading and unloading facilities;

  (3) An oil storage facility or oil handling facility utilizing a flange-to-flange closed transfer piping system; or

  (4) A marine motor fuel dispensing facility where oil used as fuel is stored and dispensed only into fuel tanks of vessels of 300 gross tons or greater.

B. If a marina is located in an area subject to flooding, an owner, an operator, and a person in charge of the marina shall ensure an AST and each dispenser at the marina used for fueling vessels or motor vehicles is anchored securely to prevent the AST or dispenser from floating and spilling, releasing, and discharging oil.

C. An owner, an operator, and a person in charge of a new or replacement storage tank system used for fueling vessels at a marina shall:

  (1) Before beginning the installation of the storage tank system, obtain any applicable wetland and waterways authorization stated in Regulation .04E of this chapter;

  (2) Comply with §E of this regulation;

  (3) Ensure the design and construction of a marina fueling system, including the piping system installed on a pier and connected to a dispenser, complies with the following standards:

    (a) NFPA 30 “Flammable and Combustible Liquids Code”;

    (b) NFPA 30A “Code for Motor Fuel Dispensing Facilities and Repair Garages”; and

    (c) PEI/RP1000-14 “Recommended Practices for the Installation of Marina Fueling Systems”; and

  (4) At least 60 days prior to the start of installation, submit to the Department for review and approval the storage tank system engineering plans prepared by one or more of the following individuals:

    (a) A professional engineer;

    (b) An individual certified as a UST system technician in accordance with COMAR 26.10.06;

    (c) A certified inspector, as defined in COMAR 26.10.17.02B; or

    (d) An authorized inspector, as defined in COMAR 26.10.18.02B.

D. An owner, an operator, and a person in charge of an oil storage tank system installed before June 13, 2022 that is used for fueling vessels at a marina shall comply with §E of this regulation not later than:

  (1) 3 years after June 13, 2022; or

  (2) Another time period approved by the Department.

E. Marina Fueling System Requirements. An owner, an operator, and a person in charge of an oil storage tank system used for fueling vessels at a marina shall ensure a marina fueling system satisfies all of the following requirements:

  (1) A readily accessible shut-off ball valve for each pipe conveying oil from a storage tank to a dispenser on a fueling pier is:

    (a) Located on-shore and near to the approach to the fueling pier;

    (b) Located outside of any secondary containment area;

    (c) Grouped in one location;

    (d) In a waterproof containment sump that is not locked or bolted closed; and

    (e) Identified by a sign stating “EMERGENCY FUEL SHUTOFF VALVE” in 2-inch minimum red capital letters;

  (2) The electrical components of a marina fueling system:

    (a) Are installed in accordance with NFPA 70 “National Electrical Code”; and

    (b) Include emergency shut-off switches:

      (i) That are interlocked to shut off power to all pump motors, fuel dispensing devices, solenoid valves, and electrical circuits in classified areas from any individual location and manually reset only from a master switch;

      (ii) Located on land within 10 feet of the bulkhead and near to the approach to a fueling pier;

      (iii) Located on a fueling pier at least 20 feet and not further than 100 feet from a dispenser; and

      (iv) Identified by a sign stating “EMERGENCY PUMP SHUTOFF” in 2-inch minimum red capital letters;

  (3) The fuel dispensing system, including each dispenser, dispenser hose and nozzle, at the marina:

    (a) Is UL listed or approved for the fuel being dispensed;

    (b) Is compatible with the product piping;

    (c) Has a containment sump that does not leak; and

    (d) Has a UL listed shear valve placed and properly anchored at the dispenser in accordance with manufacturer requirements;

  (4) Each fuel delivery nozzle on a dispenser used for fueling vessels is an automatic-closing type without a latch-open device;

  (5) One or more signs are posted in the dispensing area that provide instructions to the public on vessel fueling procedures in accordance with Section 11.10.8 of NFPA 30A “Code for Motor Fuel Dispensing Facilities and Repair Garages”;

  (6) If the hose length of a dispenser hose is greater than 18 feet, the dispenser hose is secured by a hose reel;

  (7) Underground piping:

    (a) Between an AST and the bulkhead complies with COMAR 26.10.03.02 and 26.10.05.01 and .02; and

    (b) May be used between the bulkhead and the dispenser only if the underground piping has UL listed flexible double-walled construction:

      (i) Rated for aboveground, overwater, or underwater use by the piping manufacturer; or

      (ii) Not rated for aboveground, overwater, or underwater use by the piping manufacturer, but the piping is sleeved in rigid, corrosion-resistant pipe meeting a minimum 2-hour fire rating; and

  (8) The transition piping between the bulkhead and a floating pier:

    (a) Includes:

      (i) A reducing seal at the bulkhead;

      (ii) Non-corrosive pipe supports;

      (iii) An in-line breakaway that seals both ends of the piping;

      (iv) Single plane swivel joints with flanged fittings; and

      (v) Fire-rated flex connectors; and

    (b) Connects to the floating pier piping in a leak-proof containment sump with:

      (i) A manual ball valve in the product line;

      (ii) A solenoid valve that is closed when the emergency pump shutoff is activated or when no fueling is occurring; and

      (iii) A sump sensor that triggers a positive system shutdown.

F. An owner, an operator, and a person in charge of a marina shall:

  (1) Provide an attendant during vessel fueling activities and the attendant shall:

    (a) Be familiar with the dispensing systems and emergency shutoff controls;

    (b) Prevent the dispensing of oil into improper portable containers;

    (c) Ensure vessels are properly moored and all fueling connections are made;

    (d) Be within 15 feet of the dispensing controls during a fueling operation; and

    (e) Maintain a direct, clear, and unobstructed view of both the vessel fuel filler neck and the emergency pump shutoff; and

  (2) Provide a spill response box near to a fuel dispensing area that:

    (a) Stores a sufficient quantity of sorbent materials that can float on water to contain a minimum of 25 gallons of oil; and

    (b) The person in charge of the marina inspects monthly to ensure supplies of sorbent materials are maintained.

#### Regulation .15 Solidification/Stabilization of Oil Waste Materials.

*COMAR 26.10.01.15*

A. An owner, an operator, and a person in charge of an oil storage facility or oil handling facility shall obtain an Individual Oil Operations Permit to conduct an oil sludge, oil refuse, or oil mixed with other waste solidification/stabilization operation.

B. Permit Application and Issuance Procedures.

  (1) An owner, an operator, and a person in charge of an oil storage facility or oil handling facility shall apply for an Individual Oil Operations Permit in accordance with Regulations .09A and .11 of this chapter, and include the following information in the permit application:

    (a) A to-scale site diagram that identifies the:

      (i) Location of each solidification/stabilization process area;

      (ii) Direction of stormwater flow at the facility;

      (iii) Storm drains on-site and immediately off-site; and

      (iv) Location of buildings and property lines, identifying the owners of any adjacent properties; and

    (b) A detailed description of:

      (i) The solidification/stabilization process;

      (ii) The testing or verification to be completed prior to accepting oil sludge, oil refuse, or oil mixed with other waste intended for solidification/stabilization to ensure the oil sludge, oil refuse, or oil mixed with other waste does not contain a hazardous substance or originate from a gasoline storage tank system; and

      (iii) How the facility will maintain records of tracking and testing for each batch of raw material to be solidified/stabilized and for loads of processed material transferred to a permitted disposal facility.

  (2) Upon review of an application completed in accordance with this regulation, the Department shall:

    (a) Notify the applicant in writing that the application is not complete and additional information is required to determine whether the proposed oil solidification/stabilization operation is consistent with all applicable requirements of this chapter, COMAR 26.10, and other State laws and regulations;

    (b) Issue an Individual Oil Operations Permit to the applicant in accordance with Regulation .11G and H of this chapter; or

    (c) Deny the application for an Individual Oil Operations Permit in accordance with Regulation .12 of this chapter.

  (3) An owner, an operator, and a person in charge of an oil storage facility or oil handling facility shall apply to renew an Individual Oil Operations Permit in accordance with §B(1) of this regulation and Regulation .11E of this chapter.

  (4) In accordance with Regulation .12B of this chapter, the Department may:

    (a) Deny an application for an Individual Oil Operations Permit for a proposed oil solidification/stabilization operation; or

    (b) Suspend or revoke an Individual Oil Operations Permit under which an oil solidification/stabilization operation is permitted.

  (5) The Department may modify, or an owner, an operator, and a person in charge of an oil storage facility or oil handling facility may request to modify, the oil solidification/stabilization conditions of an Individual Oil Operations Permit in accordance with Regulation .12B of this chapter.

C. Operation and Recordkeeping Conditions. An owner, an operator, and a person in charge of an oil storage facility or oil handling facility conducting an oil solidification/stabilization operation:

  (1) May not accept oil sludge, oil refuse, or oil mixed with other waste that contains:

    (a) A hazardous substance; or

    (b) Sludge, refuse, or other mixed waste from a gasoline storage tank system;

  (2) May not cause or allow the unpermitted discharge of stormwater entering the solidification/stabilization process area into waters of the State;

  (3) Shall ensure stormwater entering the solidification/stabilization process area is either:

    (a) Included in the solidification/stabilization process;

    (b) Managed under a State discharge permit or National Pollutant Discharge Elimination System permit; or

    (c) Disposed of at a facility permitted for the treatment of oily water;

  (4) Shall complete the following tasks at the end of each working day:

    (a) Clean the area surrounding the solidification/stabilization area of all oily substances; and

    (b) Cover and secure the solidification/stabilization process area so that the contents are not exposed to stormwater;

  (5) Shall dispose of the end product from the solidification/stabilization process at a State or USEPA permitted disposal facility;

  (6) Shall maintain the following records for at least 5 years at the oil storage facility or oil handling facility:

    (a) Certification by a generator of oil sludge, oil refuse, or oil mixed with other waste that the material is in compliance with §C(1) of this regulation;

    (b) Analytical data demonstrating the oil sludge, oil refuse, or oil mixed with other waste accepted at the oil storage facility or oil handling facility is in compliance with §C(1) of this regulation; and

    (c) A copy of each approval from the receiving facility where the oil solidification/stabilization end product was accepted and disposed, including analytical data; and

  (7) In addition to the requirements under §C(1)—(6) of this regulation, shall comply with the Individual Oil Operations Permit conditions under Regulation .09A of this chapter.

#### Regulation .16 Requirements for Oil Delivery by Truck Tanks and Transports.

*COMAR 26.10.01.16*

A. A permittee and a person in charge of the transportation, transfer, or delivery of oil shall use:

  (1) A truck tank or transport equipped with transfer hoses and fittings of a grade suitable for the type of oil transferred and for the type of delivery;

  (2) A truck tank or transport equipped with transfer hoses designed to withstand pressure of the shut-off head of the cargo pump or pump relief valve setting; and

  (3) Vehicles that are in compliance with:

    (a) The Maryland Department of Transportation requirements for transportation of hazardous materials under COMAR 11.16.01 and motor carrier safety under COMAR 11.21.01; and

    (b) NFPA 385 “Standard for Tank Vehicles for Flammable and Combustible Liquids”.

B. A permittee and a person in charge of the transportation, transfer, or delivery of oil by truck tank or transport shall:

  (1) Provide a driver safety training program annually that instructs drivers employed by the permittee or the person in charge on:

    (a) Truck tank, transport, and oil delivery operations;

    (b) The oil pollution control and storage tank system provisions in COMAR 26.10.01—26.10.04, 26.10.17, and 26.10.18;

    (c) The requirement for the reporting, containment, and removal of an oil spill, release, or discharge; and

    (d) The conditions of the permittee’s Individual Oil Operations Permit;

  (2) Ensure a driver employed by the permittee or the person in charge is knowledgeable of and follows the requirements under Regulation .17 of this chapter;

  (3) Maintain records demonstrating compliance with the training requirement under §B(1) of this regulation;

  (4) Within 30 days of hire, provide a truck tank or transport driver with safety training in accordance with §B(1) of this regulation;

  (5) Provide each truck tank or transport with:

    (a) Materials to be used for the prompt containment and removal of an oil spill, release, or discharge; and

    (b) One portable fire extinguisher that has a minimum rating of 4-A:40-B:C, or at least two portable fire extinguishers with a rating of 2-A:20-B:C;

  (6) Ensure the Department’s emergency spill reporting telephone number listed in the Individual Oil Operations Permit is conspicuously posted in each truck tank and transport authorized under the permit for the transportation, transfer, or delivery of oil;

  (7) Meet insurance requirements for the transportation, transfer, and delivery of oil;

  (8) On an annual basis or at least every 25,000 miles, perform preventative maintenance on a truck tank or transport in accordance with 49 CFR Part 396 and COMAR 11.14;

  (9) Inspect and test each truck tank and transport used for the transportation of flammable petroleum liquids in accordance with 49 CFR §180.407;

  (10) Obtain and properly display a:

    (a) U.S. Department of Transportation number for each interstate truck tank or transport the permittee or the person in charge uses in the transportation, transfer, or delivery of oil; and

    (b) Maryland State Highway Administration identification number for each intrastate truck tank or transport the permittee or the person in charge uses in the transportation, transfer, or delivery of oil;

  (11) Register each placarded truck tank or transport in accordance with 49 CFR Part 107; and

  (12) Meet zoning requirements for commercial vehicles when parking a truck tank or transport in the State.

C. A permittee and a person in charge may not deliver oil by truck tank or transport to:

  (1) A UST system that is not registered with the Department in accordance with COMAR 26.10.03.09;

  (2) An AST system that is not registered with the Department in accordance with Regulation .10 of this chapter;

  (3) An oil storage tank in which the Department has:

    (a) In accordance with COMAR 26.10.02.03C, issued a notice of a delivery ban to the owner, the operator, and the person in charge of the oil storage tank system; and

    (b) Affixed a monitoring device, such as a tag, notice, or locking mechanism, to the fill; or

  (4) A storage tank system or a residential heating oil tank that is:

    (a) Visibly spilling or releasing oil;

    (b) In poor or damaged condition; or

    (c) In an unstable condition.

D. A person may not fuel or refuel a vessel from a truck tank or transport at a public marina.

E. Class II liquid from a truck tank or transport may be dispensed to a vessel located at a commercial, industrial, government, or manufacturing facility if the following requirements are met:

  (1) The vessel is used in connection with the facility’s business;

  (2) The owner, the operator, and the person in charge of the facility controls access to the fueling or refueling area, with the fueling or refueling area not accessible to the general public;

  (3) The dispensing hose does not exceed 50 feet in length;

  (4) The dispensing nozzle is a UL listed, automatic-closing type without a latch-open device;

  (5) A nighttime delivery only occurs in an area that is adequately lighted;

  (6) The driver or the person in charge at the facility ensures the flasher lights of the truck tank or transport are in operation during all fueling and refueling activities;

  (7) The driver ensures there is adequate fuel expansion space left in each fuel tank of the vessel being filled to prevent a spill, release, or discharge because of temperature increase; and

  (8) The owner, the operator, and the person in charge of a facility where the oil is delivered by truck tank or transport to a vessel:

    (a) Maintains sufficient spill containment materials for a spill, release, or discharge of, at a minimum, 100 gallons of oil on land or in waters of the State; and

    (b) Locates the spill containment materials in an easily identifiable area near to where fueling operations occur.

#### Regulation .17 Requirements for Drivers of Truck Tanks and Transports.

*COMAR 26.10.01.17*

A. A driver operating a truck tank or a transport shall:

  (1) Comply with NFPA 385 “Standard for Tank Vehicles for Flammable and Combustible Liquids”;

  (2) Be 21 years old or older as required under Transportation Article, §25-111, Annotated Code of Maryland; and

  (3) Complete annual safety training provided in accordance with Regulation .16B of this chapter.

B. A driver shall load and unload a truck tank or transport only in an approved location.

C. A driver may not deliver to a storage tank, including a residential heating oil tank, when any of the following conditions are observed:

  (1) The Department has:

    (a) In accordance with COMAR 26.10.02.03C, issued a notice of a delivery ban to the owner, the operator, and the person in charge of the oil storage tank system; and

    (b) Affixed a monitoring device, such as a tag, notice, or locking mechanism, to the fill;

  (2) The storage tank system is visibly spilling or releasing oil; or

  (3) An AST system is in poor, unstable, or damaged condition.

D. Before a transfer of oil begins, the driver shall:

  (1) Verify that:

    (a) Proper hoses and fittings will be used in the delivery of oil;

    (b) The transfer hoses are not damaged; and

    (c) All transfer hose connections are tight; and

  (2) Confirm, for direct or remote filling operations, the storage tank has sufficient ullage available to hold the amount of oil being delivered by implementing one or more of the following methods:

    (a) Gauge the storage tank and record ullage and amount of oil delivered;

    (b) Use a functioning vent whistle or other overfill device;

    (c) Verify with the facility’s person in charge:

      (i) The size of the storage tank being delivered to and the quantity of oil to be delivered;

      (ii) That the storage tank has an approved and functional overfill alarm; or

      (iii) For remote filling, that a representative from the facility will actively participate in the filling operation; or

    (d) Use another method approved by the Department.

E. During a transfer of oil, the driver shall:

  (1) Be alert and outside the vehicle;

  (2) Remain within 10 feet and in full and immediate control of the nozzle, shut-off valves, pumps, and emergency operating mechanism for the discharge control valve; and

  (3) Have the fill pipe opening in full view at all times.

F. If a driver leaves the equipment unattended for any reason, the driver shall turn off or return to the closed position all nozzles, shut-off valves, pumps, and discharge control valves of the truck tank or transport and the receiving facility.

G. A driver may not drain oil or empty hoses into a spill catchment basin.

H. A driver shall immediately report to the delivery company any unusual conditions observed during a transfer operation including, but not limited to:

  (1) A spill, release, or discharge;

  (2) A discrepancy between the quantity of oil delivered and the quantity of oil received;

  (3) Equipment defects on the delivery vehicle or at a transfer location; and

  (4) Unsafe delivery conditions.

I. A driver, permittee, and person in charge of a delivery company shall report a spill, release, or discharge made during an oil delivery in accordance with Regulation .05 of this chapter.

#### Regulation .18 Requirements for Oil Transfers at Facilities.

*COMAR 26.10.01.18*

A. The requirements of this regulation are applicable to oil storage facilities and oil handling facilities with tank car, truck tank, or transport loading/unloading racks or transfer areas.

B. Spill Control.

  (1) For a loading/unloading rack or transfer area at an oil storage facility or oil handling facility where a spill, release, or discharge can occur during transfer operations, an owner, an operator, and a person in charge of the facility shall:

    (a) Pave the loading/unloading rack or transfer area with a material that has a permeability of 10-7 centimeters/second or less and is resistant to oil;

    (b) Maintain the pavement installed in accordance with §B(1)(a) of this regulation to prevent cracking and holes;

    (c) Design the loading/unloading rack or transfer area to prevent the entrance of stormwater or wastewater runoff into the loading/unloading rack or transfer area;

    (d) Cover the loading/unloading rack or transfer area with a roof;

    (e) Include a containment system that prevents oil or stormwater containing oil from discharging to waters of the State by:

      (i) Being designed to hold a spill, release, or discharge from the largest single compartment of any tank car, truck tank, or transport loading or unloading oil at the facility; and

      (ii) Using permanent curbing, trenching, or other spill control methods approved by the Department; and

    (f) Install one or more of the following to prevent a spill, release, or discharge of oil:

      (i) An oil/water separator;

      (ii) A diked or bermed catchment area that has a permeability of 10-7 centimeters/second or less; or

      (iii) An emergency underground holding tank that remains empty unless a spill, release, or discharge occurs.

  (2) An owner of an oil storage facility or oil handling facility with a loading/unloading rack or transfer area may be required to obtain a State discharge permit or a National Pollutant Discharge Elimination System permit issued by the Department under Environment Article, §9-323, Annotated Code of Maryland and COMAR 26.08.01—26.08.04 for discharges of stormwater to waters of the State.

  (3) If oil is spilled, released, or discharged during an oil transfer, an owner, an operator, and a person in charge of an oil storage facility or oil handling facility shall:

    (a) Report the spill, release, or discharge immediately to the Department in accordance with Regulation .05 of this chapter;

    (b) Immediately begin the removal of oil; and

    (c) Handle the oil and all removal debris in accordance with all State, federal, and local requirements.

  (4) An owner, an operator, and a person in charge of an oil storage facility or oil handling facility shall make available at a loading/unloading rack or transfer area removal materials, such as sorbents:

    (a) That are appropriate for:

      (i) The grades of oil being transferred; and

      (ii) The most probable size of an anticipated spill, release, or discharge; and

    (b) For use in the containment and removal of spilled, released, or discharged oil.

C. Transfer Operations. An owner, an operator, and a person in charge of an oil storage facility or oil handling facility shall:

  (1) Install a clearly identifiable switch or shutoff at the loading/unloading rack and at a remote location from the loading/unloading rack area to shut off power to all transfer devices in the event of an emergency;

  (2) Provide an interlocking warning light or physical barrier system, warning signs, wheel chocks, or vehicle brake interlock system to prevent a tank car, truck tank, or transport from leaving a loading/unloading area or transfer area before flexible or fixed oil transfer lines are disconnected;

  (3) Prior to filling and departure at the oil storage facility or oil handling facility, inspect the lowermost drain and all outlets on the tank car, truck tank, or transport for spills, releases, or discharges; and

  (4) If a spill, release, or discharge is found during an inspection, repair or replace the lowermost drain and all outlets on the tank car, truck tank, or transport prior to entering a public transportation system.

#### Regulation .19 Right to Information and Facility Access.

*COMAR 26.10.01.19*

As a condition for the issuance of an Individual Oil Operations Permit or authorization to operate under a General Oil Operations Permit, the permittee and the person in charge of an oil storage facility or oil handling facility shall, upon the request of the Department:

A. Provide to the Department information and copies of records required under:

  (1) The provisions of COMAR 26.10;

  (2) Environment Article, §§4-401—4-420, Annotated Code of Maryland; or

  (3) A condition of the permit;

B. Allow the Department to conduct monitoring;

C. Complete any survey forms or other documents provided by the Department in a timely manner;

D. Make the facility available for inspection by the Secretary or the Secretary’s authorized representative, including the inspection of storage tank systems, equipment, vehicles, or vessels used in the operation of the oil storage facility or oil handling facility; and

E. During an inspection of the facility:

  (1) Make all records pertaining to the facility and the operation of the facility available for inspection;

  (2) Allow the Department to:

    (a) Make copies of data, records, and information pertaining to the facility and the operation of the facility;

    (b) Collect air, surface or groundwater, soil, and vegetation samples or samples of other materials on-site as determined necessary by the Department; and

    (c) Obtain photographic or videographic documentation or evidence.

#### Regulation .20 Requirements for Motor Fuel Dispensing Facilities.

*COMAR 26.10.01.20*

A. The requirements of this regulation apply to an owner, an operator, and a person in charge of a motor fuel dispensing facility.

B. An owner, an operator, and a person in charge of a motor fuel dispensing facility shall install and operate a storage tank system in accordance with the requirements of COMAR 26.10 as follows:

  (1) Install and operate a UST system in accordance with:

    (a) The requirements of this chapter, COMAR 26.10.02—26.10.12, and 26.10.16; and

    (b) The applicable documents incorporated by reference under Regulation .03 of this chapter;

  (2) Install and operate an AST system in accordance with:

    (a) The requirements of this chapter and COMAR 26.10.17 and 26.10.18; and

    (b) The applicable documents incorporated by reference under Regulation .03 of this chapter; and

  (3) If the motor fuel dispensing facility is located at a marina, comply with the requirements of Regulation .14 of this chapter.

C. An owner, an operator, and a person in charge of a motor fuel dispensing facility may not allow the dispensing of motor fuel at the facility unless:

  (1) The location is attended;

  (2) The owner, the operator, and the person in charge has received prior written approval from the Department to operate the location as an unattended motor fuel dispensing facility; or

  (3) The location is a commercial, industrial, governmental, or manufacturing property where motor fuels are dispensed into the fuel tanks of motor vehicles or vessels that are:

    (a) Owned or controlled by the owner, the operator, and the person in charge of the facility; and

    (b) Used in connection with the business or operation of that property by persons within the employ of such business or operation.

D. The Department may not provide written approval to an owner, an operator, and a person in charge of a marina with a motor fuel dispensing facility to operate the motor fuel dispensing facility unattended.

E. Pursuant to §C(2) of this regulation, the Department may provide written approval to an owner, an operator, and a person in charge of a motor fuel dispensing facility to operate the location unattended if the owner, the operator, and the person in charge of the facility:

  (1) Provide each customer with a unique means of authorization, such as a key card, membership card, or other method that identifies the specific customer;

  (2) Ensure the dispensers at the facility require a customer to input the unique authorization required under §E(1) of this regulation in order for motor fuel to be dispensed;

  (3) Install an emergency shut-off device or electrical disconnect that is readily accessible to customers for each group of dispensers on an individual dispenser island;

  (4) Confirm with the State Fire Marshall or local fire department whether the owner, the operator, and the person in charge of the motor fuel dispensing facility needs to employ additional fire protections such as:

    (a) Installing fixed suppression systems, automatic fire detection systems, or manual fire alarm stations;

    (b) Transmitting alarms to an off-site supervising fire alarm station located at the oil storage facility or another off-site location; or

    (c) Limiting the quantity of motor fuel dispensed per transaction;

  (5) Provide the Department with documentation that confirms the installation of any additional fire protection methods at the facility under the direction of the State Fire Marshall or local fire department, as required under §E(4) of this regulation;

  (6) Conspicuously post operating instructions, warning signs, and emergency instructions in the dispensing area in accordance with NFPA 30A “Code for Motor Fuel Dispensing Facilities and Repair Garages”;

  (7) Provide on-site in a readily accessible location a telephone or other approved clearly identifiable means to notify the fire department in accordance with NFPA 30A “Code for Motor Fuel Dispensing Facilities and Repair Garages”;

  (8) On a sign visible from the dispensing area that is not less than 8 x 10 inches in size with lettering not less than 1-inch high, conspicuously post emergency telephone numbers for contacting the following persons in the event of a suspected or confirmed spill, release or discharge, unusual operating conditions, emergency, or equipment failure:

    (a) Emergency response authorities;

    (b) A person in charge at the facility; and

    (c) The Department;

  (9) Provide at least one readily available spill containment kit clearly labeled and stored on-site to contain spills, releases, or discharges of less than 20 gallons; and

  (10) If the facility is a regulated substance storage facility, comply with the operator training requirements for designated Class A operators, Class B operators, and Class C operators of unattended facilities in accordance with COMAR 26.10.16.

F. If the Department determines that an owner, an operator, and a person in charge of an approved unattended motor fuel dispensing facility is not maintaining the operations of the facility in accordance with §E of this regulation, the Department may:

  (1) For a UST system, issue a notice of a delivery ban in accordance with COMAR 26.10.02.03C; and

  (2) For an AST system, suspend or revoke an Individual or General Oil Operations Permit in accordance with Regulation .12 of this chapter.

G. An owner, an operator, and a person in charge of a motor fuel dispensing facility with a sanitary sewer or storm drain connection receiving oil-bearing waste or wastewater from operations at the motor fuel dispensing facility shall:

  (1) Comply with one of the following requirements:

    (a) If oil-bearing waste or wastewater enters a publicly-owned wastewater treatment system, obtain and operate under a Pretreatment Permit issued by:

      (i) The local municipal wastewater treatment utility with delegated authority by the Department to administer a Pretreatment Program in accordance with COMAR 26.08.08; or

      (ii) The Department if the local municipal wastewater treatment utility does not have delegated authority to administer a Pretreatment Program; or

    (b) If oil-bearing waste or wastewater enter into a storm drain system, install an oil/water separating system that is properly:

      (i) Designed to accommodate a worst case incident of a spill, release, or discharge;

      (ii) Operated by a person in charge of the motor fuel dispensing facility;

      (iii) Maintained to manufacturer specifications;

      (iv) Inspected monthly; and

      (v) Pumped out when oil has accumulated to greater than 1 inch in the retention chamber; and

  (2) Obtain all the required permits for the sanitary sewer or storm drain connection receiving oil-bearing waste or wastewater from operations at the motor fuel dispensing facility in accordance with federal, State and local laws and regulations.

H. A person in charge of a motor fuel dispensing facility shall dispose of used oil generated at the motor fuel dispensing facility:

  (1) In accordance with COMAR 26.10.15;

  (2) In a manner that prevents a spill, release, or discharge; and

  (3) Using disposal methods required under applicable federal, State and local laws and regulations.

I. An owner, an operator, and a person in charge of a motor fuel dispenser facility may not install or use a dispenser hose that is greater than 18 feet in length.

#### Regulation .21 Requirements for Marine Oil Facilities.

*COMAR 26.10.01.21*

A. Response Plan.

  (1) An owner and an operator of a marine oil facility required to have an approved response plan under 33 CFR Part 154, Subpart F may not operate the marine oil facility unless the owner, the operator, and the marine oil facility are in full compliance with federal requirements for a response plan.

  (2) An owner and an operator of a marine oil facility shall include in a response plan, at a minimum:

    (a) Training elements;

    (b) Oil spill, release, or discharge contingency elements;

    (c) Removal equipment elements; and

    (d) All of the elements required to be included in a response plan under 33 CFR Part 154, Subpart F.

  (3) An owner and an operator of a marine oil facility shall provide to the Department a current response plan as part of an application for:

    (a) A new Individual Oil Operations Permit; and

    (b) A renewal of an Individual Oil Operations Permit.

  (4) An owner and an operator of a marine oil facility shall implement all of the elements of an approved response plan in accordance with the schedule of compliance in 33 CFR Part 154, Subpart F.

  (5) An owner and an operator of a marine oil facility shall:

    (a) Maintain an approved response plan at the marine oil facility; and

    (b) Make the approved response plan available for review upon request by the Department.

B. Spill, Release, and Discharge Prevention at Marine Oil Facilities.

  (1) An owner and an operator of a marine oil facility shall institute safe fill and shutdown procedures to prevent oil spills, releases, or discharges:

    (a) During an oil transfer operation; and

    (b) In the event of an overfill of a storage tank.

  (2) An owner and an operator of a marine oil facility shall include in the procedures required under §B(1) of this regulation, at a minimum, the following elements:

    (a) Prior to commencing an oil transfer operation, an owner, an operator, and a person in charge of the marine oil facility confirms that the volume available in the receiving storage tank is greater than the volume of oil to be transferred;

    (b) The continuous monitoring of an oil transfer operation by manual or automatic means until the transfer of oil is complete;

    (c) A storage tank fill valve not in use during an oil transfer operation is closed and secured; and

    (d) The transfer of oil only occurs into a storage tank designated to receive the oil.

  (3) Shutdown System or Alarm.

    (a) Storage tanks receiving asphalt (CAS8052424) from a tank vessel are exempt from the requirements of §B(3) of this regulation.

    (b) An owner and an operator of a marine oil facility shall:

      (i) Install an automatic shutdown system on each storage tank to be used during the transfer of oil from a tank vessel that will, in the event of an overfill, direct the flow of oil to another storage tank capable of receiving the oil or shut down the pumping system; or

      (ii) Equip each AST used in the transfer of oil from a tank vessel with a high level alarm.

    (c) If an AST is equipped with a high level alarm in accordance with §B(3)(b)(ii) of this regulation, an owner and an operator of a marine oil facility shall install a high level alarm that:

      (i) Consists of a device capable of visually and audibly alerting the owner and the operator of the marine oil facility of an impending storage tank overfill; and

      (ii) If a failure, malfunction, or power loss occurs during the transfer of oil, causes a warning light and audible signal to activate at a location in which the owner and the operator of the marine oil facility monitors or controls oil transfers at the facility.

  (4) If a high level alarm sounds, an owner and an operator of a marine oil facility shall initiate an immediate and orderly emergency shutdown of the oil transfer.

  (5) An owner and an operator of a marine oil facility using a high level alarm shall include an emergency shutdown procedure in the facility records and ensure that all facility personnel involved in the transfer operation are trained in the emergency shutdown procedure.

  (6) An owner and an operator of a marine oil facility shall ensure that an automatic shutdown system or high level alarm system is tested:

    (a) Monthly; or

    (b) Before a receipt of oil.

  (7) An owner and an operator of a marine oil facility shall:

    (a) Maintain records of testing at the marine oil facility; and

    (b) Make the records of testing available for review by a representative of the Department upon request.

#### Regulation .22 Requirements for Tank Vessels.

*COMAR 26.10.01.22*

A. Response Plan.

  (1) An owner and an operator of a tank vessel shall comply with the requirements of §A(2)—(4) of this regulation.

  (2) An owner and an operator of a tank vessel required to have an approved response plan under 33 CFR Part 155, Subpart D may not operate the tank vessel in the State unless the owner and the operator of the tank vessel and the tank vessel are in full compliance with federal requirements for a response plan.

  (3) An owner and an operator of a tank vessel shall include in a response plan, at a minimum:

    (a) Training elements;

    (b) Oil spill, release, or discharge contingency elements;

    (c) Removal equipment elements; and

    (d) All of the elements required to be included in a response plan under 33 CFR Part 155, Subpart D.

  (4) An owner and an operator of a tank vessel shall make an approved response plan available for review by a representative of the Department upon request.

B. Detection and Control of Oil Spills, Releases, and Discharges.

  (1) All-weather Escort Tank Vessel.

    (a) The requirements of §B(1) and (2) of this regulation do not apply to a public vessel.

    (b) An owner and an operator of a tank vessel shall ensure that a tank vessel transporting oil in the State is accompanied by an all-weather escort vessel.

    (c) The crew on an escort vessel shall continuously check for any evidence of an oil spill, release, or discharge from the escorted tank vessel.

    (d) A vessel supplying propulsion to the tank vessel does not fulfill the requirement for an all-weather escort vessel.

  (2) Alternative Monitoring. In lieu of meeting the escort vessel requirement under §B(1) of this regulation, an owner and an operator of a tank vessel may:

    (a) Equip the tank vessel with a cargo level monitoring system;

    (b) Ensure the tank vessel’s double hulls are designed in compliance with 33 CFR §157.10(d); or

    (c) Have a Department approved plan prepared by the owner and the operator of the tank vessel that provides for visual or another method of inspection of load lines or draft markings for the tank vessel that will determine the existence of an oil spill, release, or discharge from the tank vessel.

  (3) Cargo Level Monitoring System. An owner and an operator of a tank vessel shall:

    (a) Maintain the cargo level monitoring system of the tank vessel in full working order; and

    (b) Correct a malfunction of equipment before getting the tank vessel underway.

C. Inspection Requirements.

  (1) The requirements of this section do not apply to a public vessel.

  (2) An owner and an operator of a tank vessel transporting oil in the State shall inspect the tank vessel in accordance with 46 U.S.C. Subtitle II, Part B and 46 CFR Part 2.

  (3) The Department may require an owner and an operator of a tank vessel to perform additional inspections if the Department has reason to believe the tank vessel has been damaged or responsible for one or more spills, releases, or discharges due to structural damage.

  (4) An owner and an operator of a tank vessel shall display a certificate of inspection issued under 46 U.S.C. Subtitle II, Part B and 46 CFR Part 2 in a conspicuous place on the tank vessel.

#### Regulation .23 Bonding Requirements for Tank Vessels.

*COMAR 26.10.01.23*

A. The terms “assets”, “current assets”, “current liabilities”, “liabilities”, “net working capital”, “net worth”, “parent corporation”, and “tangible net worth” as used in §D of this regulation have the meanings stated in 40 CFR §264.141.

B. Exceptions.

  (1) The requirements of this regulation do not apply to a public vessel.

  (2) An owner and an operator of a tank vessel transferring greater than 25 barrels of oil in bulk as cargo in waters of the State may not be required to obtain a bond or other security for the tank vessel if:

    (a) The tank vessel is carrying oil removed from:

      (i) Waters of the State as the result of a spill, release, or discharge or at the request of the Department, the federal government, or a person responsible for the discharge; or

      (ii) Another vessel because of the threat of a spill, release, or discharge into waters of the State; and

    (b) The tank vessel is not owned or operated by the person responsible for the discharge resulting in the need for removal of oil from waters of the State.

C. Bonding Requirement. Upon entering waters of the State to transfer greater than 25 barrels of oil in bulk as cargo, an owner and an operator of a tank vessel shall post a bond or other security as set forth in §D of this regulation:

  (1) In the amount of $500 per gross ton of tank vessel; and

  (2) In a form approved by the Department.

D. Other Acceptable Forms of Security. In lieu of posting a bond, an owner and an operator of a tank vessel may satisfy the requirement under §C of this regulation by posting another acceptable form of security that meets the conditions under §D(1) or (2) of this regulation:

  (1) A certification signed by a certified public accountant that the owner and the operator of the tank vessel has:

    (a) Two out of the three following ratios:

      (i) A ratio of total liabilities to net worth of less than 2.0;

      (ii) A ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities of greater than 0.1; or

      (iii) A ratio of current assets to current liabilities of greater than 1.5;

    (b) Net working capital and tangible net worth that are individually at least six times the bond amount required under §C(1) of this regulation;

    (c) Tangible net worth of at least $10,000,000; and

    (d) Assets located in the United States amounting to at least:

      (i) 90 percent of total assets; or

      (ii) Six times the bond amount required under §C(1) of this regulation; or

  (2) A certification signed by a certified public accountant that the owner and the operator of the tank vessel has:

    (a) A current rating for the most recent bond issuance of:

      (i) AAA, AA, A, or BBB as issued by the Standard and Poor’s (S&P); or

      (ii) Aaa, Aa, A, or Baa as issued by Moody’s;

    (b) A parent corporation that meets the requirements of §D(1)(b)—(d) of this regulation; and

    (c) An absolute guaranty by the parent corporation of the owner and the operator of the tank vessel.

E. An owner and an operator of a tank vessel may satisfy §C of this regulation by offering proof to the Department of a current Certificate of Financial Responsibility issued to the owner and the operator of the tank vessel by the USCG under 33 CFR Part 138 for each tank vessel of the owner and the operator entering waters of the State.

F. The Department may waive the requirements of this regulation if the Department determines that the bonds or other securities required under this regulation are not generally available.

G. Bond Forfeiture.

  (1) If the Department determines that a spill, release, or discharge into waters of the State originated from a tank vessel, the bond or other security posted by the owner and the operator of the tank vessel is forfeited and becomes due and payable to the Department to the extent of:

    (a) The costs incurred by the Department to eliminate the residue of the oil spill, release, or discharge;

    (b) Damage caused to the natural and recreational resources of the State; and

    (c) Any uncollectible penalty levied against the owner and the operator of the tank vessel; and

  (2) If a bond or other security is forfeited to the Department as described in §G(1) of this regulation, an owner and an operator of a tank vessel shall post a new bond or other security for the tank vessel in accordance with §C of this regulation.

#### Regulation .24 Violations.

*COMAR 26.10.01.24*

A. As authorized under Environment Article, §4-412, Annotated Code of Maryland:

  (1) The Department shall issue and cause to be served a written complaint:

    (a) To an alleged violator of a provision of Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland or of any oil pollution control and storage tank management provision of COMAR 26.10; and

    (b) That specifies the following information:

      (i) The provision of law, rule, or regulation allegedly violated; and

      (ii) The alleged fact or facts that constitute the violation;

  (2) Subsequent to or concurrent with the service of the complaint authorized under §A(1) of this regulation, the Department may issue to an alleged violator:

    (a) An order requiring the alleged violator take necessary corrective action within the time prescribed in the order;

    (b) A notice requiring an alleged violator file a written report with the Department regarding the alleged violation;

    (c) A notice requiring the alleged violator to appear before the Department at a time and place the Department specifies to answer the charge outlined in the complaint; or

    (d) A notice requiring the alleged violator file a written report with the Department regarding the alleged violation and appear before the Department at a time and place the Department specifies to answer the charges outlined in the complaint; and

  (3) If the Department exercises one of the options provided under §A(2)(b)—(d) of this regulation, the Department:

    (a) May not issue an order to the alleged violator that requires corrective action be taken as a result of the alleged violation before expiration of the time set for filing a written report and for holding a hearing required under §A(2)(b)—(d) of this regulation; and

    (b) May issue an order requiring corrective action be taken within the time prescribed in the order, after the expiration of the time set for filing the written report and holding the hearing required under §A(2)(b)—(d) of this regulation.

B. Contested Case Hearing.

  (1) Filing a Hearing Request. A person shall have an opportunity for a contested case hearing if the person files a written request with the Department not later than 10 calendar days after being served with:

    (a) An order from the Department requiring a corrective action issued under §A(2)(a) of this regulation; or

    (b) A notice from the Department requiring the person to file a written report regarding an alleged violation issued under §A(2)(b) of this regulation.

  (2) The appearance of the alleged violator before the Department in accordance with §A(2)(c) or (d) of this regulation constitutes an administrative hearing, and the party shall have the rights of any party in a contested case provided under State Government Article, §§10-205, 10-208 and 10-209, Annotated Code of Maryland.

  (3) A person issued an order provided under §A(3)(b) of this regulation may not request a hearing as a result of the order.

  (4) Notwithstanding a person’s right to a contested case hearing, an order issued to a person pursuant to this regulation is effective immediately upon service according to its terms.

  (5) The Department shall conduct a hearing in accordance with the provisions under State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

C. Judicial Review. A person aggrieved by an order issued by the Department may obtain immediate judicial review under the provisions of State Government Article, §§10-222 and 10-223, Annotated Code of Maryland and the Maryland Rules.

### Chapter 02 — Underground Storage Tank Systems

**Authority:** Environment Article, §§4-401, 4-402, 4-405, 4-407—4-412, 4-415—4-419, 4-701 et seq., and 7-201 et seq.; State Government Article, §§10-206 and 10-226; Annotated Code of Maryland

**Administrative History:** Effective date: February 4, 1991 (18:2 Md. R. 151)

**Administrative History:** Chapter revised effective November 4, 1996 (23:22 Md. R. 1498)

**Administrative History:** Regulation .01 amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .02A, C amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .02C amended effective February 18, 2002 (29:3 Md. R. 224)

**Administrative History:** Regulations .03—.03-6 adopted as an emergency provision effective January 26, 2005 (32:4 Md. R. 404); emergency provision extended at 32:15 Md. R. 1315

**Administrative History:** Regulations .03—.03-6 adopted effective January 16, 2006 (33:1 Md. R. 37)

**Administrative History:** Regulation .03B amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .03-1 amended as an emergency provision effective July 5, 2006 (33:16 Md. R. 1362); emergency status expired December 31, 2006

**Administrative History:** Regulation .03-2F amended effective April 19, 2010 (37:8 Md. R. 621)

**Administrative History:** Regulation .03-4 amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .04B amended effective June 29, 1998 (25:13 Md. R. 997); February 18, 2002 (29:3 Md. R. 224); January 16, 2006 (33:1 Md. R. 37); January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .05 amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .06 amended effective June 29, 1998 (25:13 Md. R. 997); February 18, 2002 (29:3 Md. R. 224); January 12, 2009 (36:1 Md. R. 25); April 19, 2010 (37:8 Md. R. 621)

**Administrative History:** Regulations .01—.06 repealed and new Regulations .01—.05 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Applicability.

*COMAR 26.10.02.01*

A. Requirements for an Owner and an Operator of a UST System.

  (1) Except as otherwise provided in §§B and C of this regulation, an owner and an operator of a UST system that uses or may use the UST system to store a regulated substance are subject to the requirements of this chapter, COMAR 26.10.03—26.10.12, and 26.10.16.

  (2) Beginning January 12, 2009, an owner and an operator installing a new or replacement UST system are subject to the interstitial monitoring requirements for methods of release detection in COMAR 26.10.05.05G.

  (3) Beginning January 12, 2009, an owner and an operator of a UST system installing new, replacement, or upgraded secondary containment piping are subject to the monitoring requirements for secondary containment piping in COMAR 26.10.05.02D(3).

  (4) An owner and an operator of an airport hydrant fuel distribution system are subject to the requirements in COMAR 26.10.12.

  (5) An owner and an operator of a UST system with one or more field-constructed tanks are subject to the requirements in COMAR 26.10.12.

  (6) An owner and an operator of a UST system that stores fuel for use by an emergency power generator are subject to the methods of release detection requirements in COMAR 26.10.05.

B. Exclusions. An owner and an operator of the following UST systems are not subject to the requirements of this chapter and COMAR 26.10.03—26.10.12 and 26.10.16:

  (1) A UST system holding:

    (a) A hazardous waste listed or identified under Subtitle C of the Resource Conservation and Recovery Act; or

    (b) A mixture of a hazardous waste, as described under §B(1)(a) of this regulation, and other regulated substances;

  (2) A wastewater treatment tank system that is part of a wastewater treatment facility regulated under §307(b) or 402 of the Clean Water Act (33 U.S.C. §1317(b) or 1342);

  (3) Equipment or machinery that contains a regulated substance for operational purposes, such as hydraulic lift tanks and electrical equipment tanks;

  (4) A UST system that contains a de minimis concentration of a regulated substance; and

  (5) An emergency spill or overflow containment UST system that is expeditiously emptied after use.

C. Partial Exclusions.

  (1) An owner and an operator of the following UST systems are not subject to the requirements under COMAR 26.10.03—26.10.05, 26.10.08, 26.10.10, 26.10.12, and 26.10.16:

    (a) A wastewater treatment tank system not covered under §B(2) of this regulation;

    (b) An AST associated with:

      (i) An airport hydrant fuel distribution system regulated under COMAR 26.10.12; and

      (ii) A UST system with one or more field-constructed tanks regulated under COMAR 26.10.12;

    (c) A UST system containing radioactive material that is regulated under the Atomic Energy Act of 1954 (42 U.S.C. §§2011—2296b-7); and

    (d) A UST system that is part of an emergency generator system at a nuclear power generation facility licensed by the Nuclear Regulatory Commission and subject to the Nuclear Regulatory Commission’s requirements regarding design and quality criteria including, but not limited to, 10 CFR Part 50.

  (2) An owner and an operator of a UST system that stores heating oil only for consumptive use are not subject to the requirements under COMAR 26.10.03.08, 26.10.05, 26.10.11, and 26.10.16.

#### Regulation .02 Definitions.

*COMAR 26.10.02.02*

A. In this chapter and COMAR 26.10.03—26.10.12 and 26.10.16:

  (1) A term in §B of this regulation has the meaning indicated; and

  (2) A term not defined in §B of this regulation has the meaning given to it in:

    (a) A relevant statute;

    (b) COMAR 26.10.01; or

    (c) If not defined in a relevant statute or COMAR 26.10.01, the meaning attributed by common use.

B. Terms Defined.

  (1) Aboveground Release.

    (a) “Aboveground release” means a spill, release, or discharge to the surface of the land or to surface water.

    (b) “Aboveground release” includes, but is not limited to:

      (i) A release from the aboveground portion of a UST system; and

      (ii) An aboveground release associated with overfills and transfer operations as a regulated substance moves to or from a UST system.

  (2) “Airport hydrant fuel distribution system” or “airport hydrant system” means a UST system which fuels aircraft and operates under high pressure with large diameter piping that typically terminates into one or more hydrants or fill stands, and begins where fuel enters one or more storage tanks from an external source such as a pipeline, barge, rail car, or other motor fuel carrier.

  (3) Belowground Release.

    (a) “Belowground release” means a spill, release, or discharge to the subsurface of the land, groundwater, or both.

    (b) “Belowground release” includes, but is not limited to:

      (i) A release from the belowground portions of a UST system; and

      (ii) A belowground release associated with overfills and transfer operations as a regulated substance moves to or from a UST.

  (4) “Beneath the surface of the ground” means beneath the ground surface or otherwise covered with earthen materials.

  (5) Bulk Oil Storage.

    (a) “Bulk oil storage” means the storage of oil in a UST system that is not excluded under Regulation .01B of this chapter; and

    (b) “Bulk oil storage” does not include the storage of oil in a UST system for consumptive use.

  (6) “CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §9601 et seq.

  (7) “Compatible” means the ability of two or more substances to maintain their respective physical and chemical properties upon contact with one another for the design life of a UST system under conditions likely to be encountered in the UST system.

  (8) “Completion” means the final grade of a finished regulated substance storage facility, including all concrete pads and asphalt paving.

  (9) Connected Piping.

    (a) “Connected piping” means all underground piping, including valves, elbows, joints, flanges, and flexible connectors, attached to a UST system through which a regulated substance or petroleum vapor flows.

    (b) “Connected piping” includes, for the purpose of determining how much piping is connected to an individual UST system, the piping that joins two UST systems with the piping allocated equally between the UST systems.

  (10) Consumptive Use.

    (a) “Consumptive use” means heating oil consumed on the premises.

    (b) “Consumptive use” does not include the use of fuel oil in an emergency generator.

  (11) “Electrical equipment” means underground equipment that contains dielectric fluid that is necessary for the operation of equipment such as transformers and buried electrical cable.

  (12) Excavation Zone.

    (a) “Excavation zone” means the volume containing one or more UST systems and backfill material bounded by the ground surface, walls, and floor of a pit and trenches into which a UST system is placed at the time of installation.

    (b) “Excavation zone” includes a storage tank field.

  (13) “Existing UST system” means a UST system used to contain an accumulation of regulated substances for which installation commenced on or before December 22, 1988.

  (14) “Field-constructed tank” means a storage tank constructed in the field, including, but not limited to:

    (a) A storage tank constructed of concrete that is poured in the field; or

    (b) A steel or fiberglass storage tank primarily fabricated in the field.

  (15) “Free product” refers to a regulated substance that is present as a nonaqueous phase liquid.

  (16) “General UST System Permit” means the authorization established under Regulation .04A of this chapter for the operation of a UST system.

  (17) Groundwater Drain System.

    (a) “Groundwater drain system” means a permanent installation of a horizontal pipe or gravel trench intercepting the excavation zone of a UST for the purpose of removing, directing, or relieving groundwater accumulation to an alternative location.

    (b) “Groundwater drain system” does not include a temporary sump pump or temporary well point dewatering system.

  (18) Hazardous Substance UST System.

    (a) “Hazardous substance UST system” means a UST system that contains a hazardous substance or any mixture of a hazardous substance and petroleum.

    (b) “Hazardous substance UST system” does not include a petroleum UST system or a hazardous waste tank regulated under Subtitle C of the Resource Conservation and Recovery Act.

  (19) “Hydraulic lift tank” means a tank holding hydraulic fluid for a closed-loop mechanical system that uses compressed air or hydraulic fluid to operate lifts, elevators, and other similar devices.

  (20) “Implementing agency” means the Maryland Department of the Environment.

  (21) “Installation commenced” means an owner and an operator of a UST system has:

    (a) Obtained all federal, State, and local approvals or permits necessary to begin physical construction of the site or installation of the UST system; and

    (b) Either:

      (i) Begun a continuous on-site physical construction or installation program; or

      (ii) Entered into contractual obligations, which cannot be cancelled or modified without substantial loss, for physical construction at the site or installation of the UST system to be completed within a reasonable time.

  (22) “Liquid trap” means a sump, well cellar, and other trap used in association with oil and gas production, gathering, and extraction operations, including gas production plants, for the purpose of:

    (a) Collecting oil, water, and other liquids;

    (b) Temporarily collecting liquids for subsequent disposition or reinjection into a production or pipeline stream; or

    (c) Collecting and separating liquids from a gas stream.

  (23) “New UST system” means a UST system that is or will be used to contain an accumulation of regulated substances for which installation commenced after December 22, 1988.

  (24) “Noncommercial purposes” means motor fuel not for resale.

  (25) “On the premises” means a UST system storing heating oil located on the same property where the stored heating oil is used.

  (26) “Operational life” means the period beginning when installation of a UST system has commenced until the time the UST system is properly closed in accordance with COMAR 26.10.10.

  (27) “Overfill” means an occurrence when a UST is filled beyond the applicable level specified in COMAR 26.10.03.03A(2)(a), and that may result in a spill, release, or discharge of a regulated substance.

  (28) Petroleum UST System.

    (a) “Petroleum UST system” means a UST system that contains petroleum or a mixture of petroleum with de minimis quantities of other regulated substances.

    (b) “Petroleum UST system” includes a UST system that may contain motor fuel, jet fuel, distillate fuel oil, residual fuel oil, heating oil, lubricant, petroleum solvent, or used oil.

  (29) “Pipe” or “piping” means a hollow cylinder or tubular conduit that is constructed of nonearthen materials.

  (30) “Pipeline facility” means a new and existing pipe rights-of-way and any associated equipment, facilities, or buildings, including gathering lines.

  (31) “Precision tightness test” means a test:

    (a) For UST system tightness approved by the Department;

    (b) Conducted in accordance with the manufacturer’s test procedure, a test method with third party approval, or standards approved by the Department; and

    (c) Capable of detecting a 0.1 gallon per hour leak rate from any portion of a UST system, while accounting for the effects of:

      (i) Thermal expansion;

      (ii) Contraction of a liquid;

      (iii) Vapor pockets;

      (iv) Storage tank deformation;

      (v) Evaporation;

      (vi) Water; and

      (vii) Any subsurface water contacting the UST system.

  (32) “Release detection” means to determine whether a release of a regulated substance has occurred:

    (a) From a UST system into the environment;

    (b) Into the interstitial space between a UST system and the secondary barrier of the UST system; or

    (c) Into the secondary containment around a UST system.

  (33) “Repair” means to restore to proper operating condition a storage tank, pipe, spill prevention equipment, overfill prevention equipment, corrosion protection equipment, release detection equipment, or other component of a UST system that has:

    (a) Caused a release of a regulated substance from the UST system;

    (b) Failed to function properly; or

    (c) Been rendered inoperable in any way.

  (34) “Replace” means to remove and install:

    (a) A UST; or

    (b) 40 percent or more of piping connected to a single UST, including each independent piping run connected to a UST with multiple piping runs.

  (35) “SARA” means Superfund Amendments and Reauthorization Act of 1986.

  (36) “Septic tank” means a watertight covered receptacle designed to receive or process, through liquid separation or biological digestion, the sewage discharged from a building sewer, with the effluent distributed for disposal through the soil and settled solids and scum from the septic tank are pumped out periodically and hauled to a treatment facility.

  (37) Stormwater or Wastewater Collection System.

    (a) “Stormwater or wastewater collection system” means piping, pumps, conduits, and any other equipment necessary to collect and transport the flow of:

      (i) Stormwater runoff resulting from precipitation; or

      (ii) Domestic, commercial, or industrial wastewater to and from retention areas or any areas where treatment is designated to occur.

    (b) “Stormwater or wastewater collection system” does not include the treatment of stormwater or wastewater, except where treatment is incidental to conveyance of stormwater or wastewater.

  (38) “Surface impoundment” means a natural topographic depression, man-made excavation, or diked area formed primarily of earthen materials, although it may be lined with man-made materials, that is not an injection well.

  (39) “Under-dispenser containment” means containment underneath a dispenser system that meets the following conditions:

    (a) Designed to prevent a spill, release, or discharge from the dispenser and piping within or above the under-dispenser containment from reaching soil or groundwater;

    (b) Liquid-tight on the sides, bottom, and at any penetration of the containment;

    (c) Compatible with the regulated substance conveyed by the piping;

    (d) Tested in accordance with COMAR 26.10.03.03; and

    (e) Allows for visual inspection and access to the components in the containment, or the periodic monitoring of the containment for leaks from the dispenser system.

  (40) “Upgrade” means:

    (a) The addition or retrofit of a system designed to prevent the spill, release, or discharge of product from a UST system, such as an interior lining, cathodic protection, or spill and overfill controls; or

    (b) The replacement of any underground piping connected to a storage tank system.

  (41) UST.

    (a) “UST” means one storage tank or a combination of storage tanks, including underground pipes connected to the storage tank, in which the volume of the storage tank and connected underground pipes is 10 percent or more beneath the surface of the ground.

    (b) “UST” does not include:

      (i) Except for a farm or residential tank no longer in use and subject to the requirements under COMAR 26.10.10, a farm or residential tank with the capacity to store 1,100 gallons or less of motor fuel or heating oil for noncommercial purposes;

      (ii) A septic tank;

      (iii) A pipeline facility, including gathering lines, regulated under 49 U.S.C. §§60101—60141, or an intrastate pipeline facility regulated under State law as provided under 49 U.S.C. §§60101—60141 and determined by the federal Secretary of Transportation to be connected to a pipeline, or operated or intended to be capable of operating at pipeline pressure or as an integral part of a pipeline;

      (iv) A surface impoundment, pit, pond, or lagoon;

      (v) A stormwater or wastewater collection system;

      (vi) A flow-through process tank;

      (vii) A liquid trap or associated gathering lines directly related to oil or gas production and gathering operations;

      (viii) If a storage tank is situated upon or above the surface of the floor, a storage tank situated in an underground area such as a basement, cellar, mineworking, drift, shaft, or tunnel; or

      (ix) Pipes connected to a tank described under §B(41)(b) of this regulation.

  (42) “UST system” means a UST, connected underground piping, underground ancillary equipment, and, if any, containment systems.

  (43) “Wastewater treatment tank” means a tank that is designed to receive and treat an influent wastewater through physical, chemical, or biological methods.

#### Regulation .03 General Provisions for UST Systems.

*COMAR 26.10.02.03*

A. An owner and an operator of a UST system storing a regulated substance shall comply with the general provisions and specifically prohibited acts under COMAR 26.10.01.04.

B. Person Responsible for a Release.

  (1) The following persons shall be responsible for the prompt control, containment, and removal of a regulated substance release:

    (a) The responsible party;

    (b) The owner of the property where the regulated substance release occurred;

    (c) The owner of the regulated substance;

    (d) The owner and the operator of the UST system storing the regulated substance;

    (e) The person in charge of the facility, vessel, or vehicle involved in the release; and

    (f) If a release occurs from an improperly abandoned UST system, the current landowner and any person who owned, leased, or was otherwise responsible for the UST system at the time it was improperly abandoned.

  (2) A person shall continue to be responsible for the control, containment, and removal of a regulated substance release until removal of the regulated substance has been accomplished to the satisfaction of the Department.

C. Ban on Receiving a Regulated Substance.

  (1) An owner and an operator of a UST system served a written notification provided under §C(2) of this regulation is subject to a ban on receiving a regulated substance until the conditions in §C(3) of this regulation are met.

  (2) Upon determining that a UST system is not in compliance with one or more requirements of this chapter or COMAR 26.10.03—26.10.12 and 26.10.16:

    (a) The Department may serve a written notification to the owner and the operator of the UST system that specifies the Department’s determination, the regulatory provisions violated, and the facts that constitute the violation;

    (b) Subsequent to or concurrent with service of the written notification provided in §C(2)(a) of this regulation, the Department may:

      (i) Issue the owner and the operator of the UST system an order requiring the performance of corrective actions necessary to bring the UST system into compliance;

      (ii) Issue the owner and the operator of the UST system a ban on receiving a regulated substance; and

      (iii) Affix a monitoring device, such as a tag, notice, or locking mechanism to the UST system.

  (3) The Department may allow an owner and an operator of a UST system subject to a ban on receiving regulated substances to resume receiving regulated substances for the UST system if the following conditions are met:

    (a) The owner and the operator of the UST system notify the Department that the corrective actions necessary to bring the UST system into compliance have been performed;

    (b) The owner and the operator of the UST system submit to the Department evidence of the corrective actions performed that includes at least the following records:

      (i) Receipts;

      (ii) Work orders;

      (iii) Certificates;

      (iv) Testing records; and

      (v) Photographs;

    (c) The owner and the operator of the UST system have resolved all obligations related to the UST system as directed by the Department or in compliance with an order issued by the Department under §C(2)(b) of this regulation; and

    (d) The owner and the operator of the UST system receive written approval from the Department to remove the monitoring device from the UST system.

  (4) Contested Case Hearings.

    (a) As provided under Environment Article, §4-412, Annotated Code of Maryland, an owner and an operator of a UST system served an order under §C(2)(b) of this regulation shall have an opportunity for a contested case hearing if the owner and the operator of the UST system files a written request with the Department not later than 10 calendar days from the date the order was served.

    (b) The filing of a hearing request made in accordance with §C(4)(a) of this regulation does not stay the:

      (i) Department’s determination of noncompliance;

      (ii) The ban on receiving a regulated substance; or

      (iii) The obligation of the owner and the operator of the UST system to comply with §C(3) of this regulation.

    (c) The Department shall conduct a contested case hearing in accordance with the provisions under State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

D. Work Performed by Certified UST System Individuals.

  (1) Except as otherwise provided in §D(3) of this regulation, an owner, an operator, and a person in charge of a UST system shall ensure that the following work is performed by the following individuals certified by the Department under COMAR 26.10.06:

    (a) The installation, upgrade, and repair of a UST system is performed by or under the supervision of a certified UST system technician;

    (b) The closure or change-in-service of a UST system is performed by or under the supervision of a certified UST system technician or remover; and

    (c) Inspections required under COMAR 26.10.03.10 are performed by or under the supervision of a certified UST system inspector.

  (2) Except as otherwise provided in §D(3) of this regulation, an owner, an operator, and a person in charge of a storage tank system shall ensure that the following work is performed by the following individuals certified by the Department under COMAR 26.10.06:

    (a) The installation, upgrade, and repair of a UST system or the underground piping associated with a storage tank is performed in the continuous on-site presence and under the direction of a certified UST system technician; and

    (b) The closure or a change-in-service of a UST system, underground farm tank, underground residential tank, an underground residential heating oil tank, or the underground piping associated with a storage tank is performed in the continuous on-site presence and direction of a certified UST system technician or remover.

  (3) An owner, an operator, and a person in charge of a UST system storing heating oil for consumptive use and with a capacity of 2,000 gallons or less may use a heating oil technician that is certified by the Department under COMAR 26.10.06 to install, upgrade, repair, and close the UST system.

E. Installation Requirements for Partially Excluded UST Systems. An owner and an operator of a UST system listed under Regulation .01C of this chapter storing a regulated substance shall install a UST system that meets the following requirements:

  (1) Will prevent releases due to corrosion or structural failure for the operational life of the UST system;

  (2) Is cathodically protected against corrosion, constructed of non-corrodible material, steel clad with a non-corrodible material, or designed in a manner to prevent the release or threatened release of a stored regulated substance; and

  (3) Is constructed or lined with material that is compatible with the stored regulated substance.

#### Regulation .04 General UST System Permit by Rule.

*COMAR 26.10.02.04*

A. An owner and an operator of a UST system regulated under this chapter are authorized by the Department under a General UST System Permit to operate the UST system provided the conditions specified in this section are met:

  (1) The owner and the operator of the UST system shall comply with all of the applicable requirements of this chapter and COMAR 26.10.03—26.10.12 and 26.10.16;

  (2) The owner and the operator of the UST system shall remove or properly decommission nonoperational components and appurtenances connected to the UST system in order to:

    (a) Ensure proper operation of all spill and overfill, corrosion protection, and release detection equipment; and

    (b) Prevent a spill, release, or discharge;

  (3) The owner and the operator of the UST system shall:

    (a) Make the facility where the UST system is located available for reasonable inspection by the Secretary or the Secretary’s authorized representative; and

    (b) During an inspection, allow the Secretary or the Secretary’s authorized representative to:

      (i) Collect air, ground or surface water, soil, and vegetation samples or samples of other materials on-site as determined necessary by the Department; and

      (ii) Obtain photographic or videographic documentation or evidence;

  (4) The owner and the operator of the UST system shall make all records required under COMAR 26.10 and Environment Article, Annotated Code of Maryland available for inspection and copying by the Secretary or the Secretary’s authorized representative; and

  (5) The owner and the operator of the UST system shall complete any survey forms or other documents required by the Department in a timely manner.

B. Suspension or Revocation.

  (1) The Department may suspend or revoke a permittee’s authorization provided under §A of this regulation if the Department determines that:

    (a) A violation of a condition specified under §A of this regulation has occurred;

    (b) A violation of an applicable federal, State, or local requirement related to the management of a regulated substance has occurred;

    (c) A violation of the Environment Article, Annotated Code of Maryland or a regulation adopted under the Environment Article, Annotated Code of Maryland has occurred;

    (d) False or inaccurate information or data was provided in a document required to be submitted under this regulation to the Department;

    (e) A permittee’s continued operation of a UST system under the General UST System Permit would pose a risk of harm to public health, safety, or welfare or the environment; or

    (f) Any other good cause exists for suspending or revoking the authorization.

  (2) Once the Department suspends or revokes a permittee’s authorization provided under §A of this regulation, the permittee shall cease activities permitted under the suspended or revoked authorization in a manner determined by the Department.

C. Judicial Review. A person aggrieved by a permit issued by the Department may obtain immediate judicial review under the provisions of State Government Article, §§10-222 and 10-223, Annotated Code of Maryland and the Maryland Rules.

#### Regulation .05 Violations and Hearing Rights.

*COMAR 26.10.02.05*

A. The provisions of this regulation apply to an owner and an operator of a UST system regulated under COMAR 26.10.

B. If the Department determines that an owner and an operator of a UST system violated a provision of this chapter or Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland, the Department shall comply with the violation procedures specified under COMAR 26.10.01.24 and Environment Article, §4-412, Annotated Code of Maryland.

C. In addition to the violation procedures identified under §B of this regulation, if the UST system is a hazardous substance UST system from which a release of a hazardous substance has occurred, the Department shall conduct any applicable enforcement actions under Environment Article, Title 7, Subtitle 2, Part VIII, Annotated Code of Maryland.

D. Contested Case Hearings.

  (1) In addition to any other contested case hearing rights provided under this chapter, an owner and an operator of a UST system shall:

    (a) Have the contested case hearing rights provided under COMAR 26.10.01.24B and Environment Article, §4-412, Annotated Code of Maryland; and

    (b) In the case of a release of a hazardous substance from a UST system, have the contested case hearing rights provided under Environment Article, §7-261, Annotated Code of Maryland.

  (2) The Department shall conduct a contested case hearing in accordance with the provisions under State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

E. Judicial Review. A person aggrieved by an order issued by the Department may obtain immediate judicial review under the provisions of State Government Article, §§10-222 and 10-223, Annotated Code of Maryland and the Maryland Rules.

### Chapter 03 — UST Systems: Design, Construction, Installation, Registration, and Inspection

**Authority:** Environment Article, §§4-401, 4-402, 4-405, 4-407—4-411.2, 4-415.1, 4-417, 4-701 et seq., and 7-201 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: February 4, 1991 (18:2 Md. R. 151)

**Administrative History:** Chapter revised effective November 4, 1996 (23:22 Md. R. 1498)

**Administrative History:** Regulation .01 amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .01B amended effective June 29, 1998 (25:13 Md. R. 997)

**Administrative History:** Regulation .02 amended as an emergency provision effective January 26, 2005 (32:4 Md. R. 406); emergency provision extended at 32:15 Md. R. 1315

**Administrative History:** Regulation .02 amended effective January 16, 2006 (33:1 Md. R. 38); January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .03A amended effective February 18, 2002 (29:3 Md. R. 224)

**Administrative History:** Regulation .03A amended as an emergency provision effective January 26, 2005 (32:4 Md. R. 406); emergency provision extended at 32:15 Md. R. 1315

**Administrative History:** Regulation .03A amended effective January 16, 2006 (33:1 Md. R. 38)

**Administrative History:** Regulation .03D adopted effective June 29, 1998 (25:13 Md. R. 997)

**Administrative History:** Regulation .04B amended effective January 16, 2006 (33:1 Md. R. 38)

**Administrative History:** Regulation .04H adopted effective February 18, 2002 (29:3 Md. R. 224)

**Administrative History:** Regulation .04I adopted effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .05A amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .07E amended effective February 18, 2002 (29:3 Md. R. 224)

**Administrative History:** Regulation .08 amended effective June 29, 1998 (25:13 Md. R. 997); February 18, 2002 (29:3 Md. R. 224); January 16, 2006 (33:1 Md. R. 38)

**Administrative History:** Regulation .09 amended effective January 16, 2006 (33:1 Md. R. 38)

**Administrative History:** Regulation .10 adopted effective January 16, 2006 (33:1 Md. R. 38)

**Administrative History:** Regulation .10 amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulations .01—.10 repealed and new Regulations .01—.10 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Performance Standards for New or Replacement UST Systems.

*COMAR 26.10.03.01*

A. An owner and an operator of a new or replacement UST system shall comply with the requirements of this chapter for as long as a UST system is used to store a regulated substance to prevent a spill, release, or discharge due to structural failure, corrosion, or an overfill.

B. UST Standards for a New or Replacement UST System.

  (1) An owner and an operator of a UST system shall install a UST that is properly designed, constructed, and protected from corrosion in accordance with one of the following methods:

    (a) The UST is constructed of UL listed fiberglass-reinforced plastic;

    (b) The UST is constructed of steel, is coated with a suitable dielectric material, and has one of the following cathodic protection systems:

      (i) An impressed current system designed by a corrosion expert; or

      (ii) A manufacturer-installed cathodic protection system that is UL listed or approved by STI;

    (c) The UST is constructed of steel and clad or jacketed with a non-corrodible material that is UL listed or approved by STI; or

    (d) Subject to the approval of the Department, the UST is constructed and protected from corrosion by an alternative installation method that is designed to prevent a spill, release, or discharge or a threatened spill, release, or discharge of a stored regulated substance in a manner determined by the Department to be as protective of public health, safety, and welfare and the environment as the USTs described in §B(1)(a)—(c) of this regulation.

  (2) An owner and an operator of a UST system installed after January 11, 2009 shall install a UST that has secondary containment.

  (3) An owner and an operator of a UST system with a cathodic protection system installed in accordance with §B(1)(b) of this regulation shall:

    (a) Operate and maintain the cathodic protection system in accordance with COMAR 26.10.04.02; and

    (b) If the UST cathodic protection system is an impressed current system, ensure the impressed current system is designed to allow for the determination of the current operating status as required in COMAR 26.10.04.02.

C. Notification.

  (1) In a format required by the Department, an owner, an operator, and a person in charge of a new or replacement UST system shall notify the Department in writing of the installation of the new or replacement UST system not later than 5 working days before installation begins.

  (2) In accordance with Regulation .09 of this chapter, an owner, an operator, and a person in charge of a new or replacement UST system shall register the UST system with the Department after the installation of the UST system is complete.

D. Previously Installed USTs. An owner and an operator of a UST system shall:

  (1) Only install a previously installed UST if:

    (a) The owner and the operator submit to the Department a written certification from the UST manufacturer that states the previously installed UST is suitable for service; and

    (b) The Department has provided the owner and the operator written approval to install the previously installed UST;

  (2) Begin the installation of the previously installed UST within 60 days of the issuance of the Department’s written approval to install the UST or in accordance with another schedule required by the Department;

  (3) Ensure all UST system standards and installation requirements of COMAR 26.10 are met when installing the previously installed UST; and

  (4) Maintain the manufacturer’s written certification and the Department’s written approval in accordance with the recordkeeping requirements in COMAR 26.10.04.05.

#### Regulation .02 Performance Standards for Piping.

*COMAR 26.10.03.02*

A. On or after January 26, 2005, an owner and an operator of a UST system shall install, upgrade, or replace piping that routinely contains petroleum vapor or a regulated substance in accordance with the following requirements:

  (1) Install piping in a UL listed or Department approved secondary containment system that:

    (a) Contains the petroleum vapor or regulated substance released from the primary piping until the petroleum vapor or regulated substance is detected and removed;

    (b) Prevents a spill, release, or discharge of petroleum vapor or a regulated substance to the environment; and

    (c) With the exception of the vent riser, beginning June 13, 2022, terminates or connects in a liquid tight containment sump with a sump sensor:

      (i) Installed within 1 inch of the lowest part of the sump bottom;

      (ii) Properly secured in the sump by a fixed mounting bracket; and

      (iii) That activates an alarm when liquid is detected;

  (2) Connect piping to the UST in a liquid tight containment sump that is maintained clean and free of liquid;

  (3) When a product dispenser is part of the UST system, install piping that terminates in an under-dispenser containment sump that is liquid tight and maintained clean and free of liquid; and

  (4) If an intermediate sump is used, connect piping in a liquid tight containment sump that is maintained clean and free of liquid.

B. Corrosion Protection Standards for Piping.

  (1) An owner and an operator of a UST system shall ensure that piping in contact with the ground, including soil and backfill material, or continuous or intermittent water, is properly designed, constructed, and protected from corrosion in accordance with one of the following methods:

    (a) The piping and connectors are constructed of fiberglass-reinforced plastic or flexible piping that is UL listed as appropriate piping for the regulated substance stored and for use in a UST system;

    (b) The piping is constructed of steel, is coated with a suitable dielectric material, and has a cathodic protection system designed by a corrosion expert; or

    (c) Subject to the approval of the Department, the piping is constructed and protected from corrosion by an alternative installation method that is designed to prevent a spill, release, or discharge or a threatened spill, release, or discharge of a stored regulated substance in a manner determined by the Department to be as protective of public health, safety, and welfare and the environment as the types of piping described in §B(1)(a) and (b) of this regulation.

  (2) An owner and an operator of a UST system with steel piping equipped with a cathodic protection system installed in accordance with §B(1)(b) of this regulation shall:

    (a) Operate and maintain the piping cathodic protection system in accordance with COMAR 26.10.04.02; and

    (b) If the piping cathodic protection system is an impressed current system, ensure the impressed current system is designed to allow for the determination of the current operating status as required in COMAR 26.10.04.02.

C. An owner and an operator of a UST system may not use a fiberglass-reinforced plastic piping system:

  (1) For direct fill lines, unless approved by the Department; or

  (2) Aboveground or above grade.

D. After January 1, 2009, an owner and an operator that installs a new, upgraded, or replacement UST system may not use a flexible piping system for:

  (1) Direct fill lines;

  (2) Vent lines; or

  (3) Stage II vapor recovery lines.

E. An owner and an operator of a UST system that replaces 40 percent or more of piping connected to a single UST, including each independent piping run connected to a UST with multiple piping runs, shall replace the remaining single-walled piping connected to the UST with a piping system that meets the requirements of this regulation.

#### Regulation .03 Spill and Overfill Prevention Equipment.

*COMAR 26.10.03.03*

A. Except as provided under §C of this regulation, an owner and an operator of a UST system shall use spill and overfill prevention equipment that complies with the requirements of this section.

  (1) Spill Prevention Equipment. An owner and an operator of a UST system shall install and test spill prevention equipment that will prevent a spill, release, or discharge of a regulated substance into the environment when the transfer hose of a truck tank or transport is detached from the fill pipe or Stage I vapor recovery connection of a UST in accordance with the following requirements:

    (a) Install a spill catchment basin with a minimum capacity of 5 gallons at the fill pipe of a new, replacement, or upgraded UST;

    (b) Beginning November 4, 1996, install a spill catchment basin with a minimum capacity of 5 gallons at the fill pipe of a new, replacement, or upgraded UST system that receives used oil;

    (c) Beginning July 1, 1998, install a spill catchment basin with a minimum capacity of 5 gallons at the Stage I vapor recovery connection on a new or replacement UST system that utilizes Stage I vapor recovery; and

    (d) Test spill prevention equipment for tightness using a method approved by the Department at the following frequency:

      (i) If the spill prevention equipment was installed before January 26, 2005, within 180 days of that date;

      (ii) If the spill prevention equipment is installed on or after January 26, 2005, within 30 days of installing the spill prevention equipment;

      (iii) Upon repair of the spill prevention equipment; and

      (iv) At least annually after the most recent test was conducted.

  (2) Overfill Prevention Equipment. An owner and an operator of a UST system:

    (a) Shall ensure overfill prevention equipment:

      (i) Automatically shuts off flow into a UST when the UST is 95 percent full; or

      (ii) Alerts the transfer operator when a UST is 90 percent full by restricting the flow of a regulated substance into the UST or triggering a high level alarm;

    (b) May not install or replace a flow restrictor in a vent line to comply with §A(2)(a) of this regulation after June 13, 2022;

    (c) Shall have a UST system inspector or technician certified under COMAR 26.10.06 or a precision tightness tester certified by a test method recognized by the Department conduct an inspection and functional test of overfill prevention equipment as follows:

      (i) Inspect overfill prevention equipment using a method approved by the Department to ensure the overfill prevention equipment is set to activate at the correct level specified in §A(2)(a) of this regulation when a regulated substance reaches that level in a UST; and

      (ii) Conduct a functional test of the overfill prevention equipment using a method approved by the Department to ensure the overfill prevention equipment will activate when a regulated substance reaches the correct level specified in §A(2)(a) of this regulation; and

    (d) Shall conduct inspections and functional tests of overfill prevention equipment in accordance with the procedures in §A(2)(c) of this regulation at the following frequency:

      (i) Unless an inspection and functional test was conducted before June 13, 2022, within 1 year of June 13, 2022;

      (ii) Upon the installation or repair of overfill prevention equipment; and

      (iii) At least every 3 years after the most recent inspection and functional test was conducted.

  (3) Containment Sumps. An owner and an operator of a UST system shall:

    (a) Ensure a containment sump prevents the release of a regulated substance into the environment;

    (b) Use a containment sump for all connections of piping to or from a UST and to or from a dispenser; and

    (c) Test a containment sump for tightness using a method approved by the Department at the following frequency:

      (i) If the containment sump was installed before January 26, 2005, within 1 year of that date;

      (ii) If the containment sump is installed on or after January 26, 2005, within 30 days of installing the containment sump;

      (iii) Upon repair of the containment sump;

      (iv) If the most recent test conducted on the containment sump occurred before June 13, 2022, within 5 years of the most recent test; and

      (v) At least every 3 years after the most recent test was conducted.

  (4) When a test for tightness conducted on spill prevention equipment or a containment sump results in a failed test result, the owner and the operator of the UST system and the person conducting the test shall report the failed test result to the Department within 2 hours in accordance with COMAR 26.10.08.01.

B. Dispenser System Requirements.

  (1) When installing a new dispenser system, an owner and an operator of a UST system shall equip the dispenser system with under-dispenser containment.

  (2) A dispenser system is considered new when both the dispenser and the equipment needed to connect the dispenser to a UST system are installed at a regulated substance storage facility.

C. An owner and an operator of a UST system are not required to use the spill and overfill prevention equipment required under §A of this regulation if:

  (1) The Department determines alternative equipment or methods used for spill and overfill prevention are as protective of public health, safety, and welfare and the environment as the equipment or methods required under §A of this regulation;

  (2) Not more than 25 gallons of a regulated substance is transferred at one time to the UST system; or

  (3) The UST system stores heating oil only for consumptive use and the UST system was installed before November 4, 1996.

D. Reporting and Recordkeeping.

  (1) An owner and an operator of a UST system shall maintain records demonstrating compliance with the requirements for installing and operating spill and overfill prevention equipment and containment sumps for as long as the UST system is used to store a regulated substance.

  (2) If an owner, an operator, and a person in charge of a UST system changes the method of spill or overfill prevention used, the owner, the operator, and the person in charge of the UST system shall provide the Department written notification within 30 days of the change.

  (3) For each inspection and test conducted in compliance with §A(1)(d), (2)(d), and (3)(c) of this regulation, the owner and the operator of the UST system shall:

    (a) Maintain test records that include at least the following information:

      (i) The name of the testing company;

      (ii) The name of the individual conducting the test;

      (iii) The date of the test;

      (iv) The data accumulated by the test; and

      (v) The results of the test.

    (b) Keep the test records on file at the regulated substance storage facility or at a location designated by and under the control of the owner and the operator of the UST system for as long as the UST system is used to store a regulated substance; and

    (c) Make the records available to the Department upon request.

#### Regulation .04 UST System Installation Standards.

*COMAR 26.10.03.04*

A. An owner and an operator of a UST system shall properly install the UST system in accordance with:

  (1) The requirements of this regulation;

  (2) The applicable technical codes and standards incorporated by reference under COMAR 26.10.01.03;

  (3) The manufacturer’s instructions;

  (4) The requirement to have a certified UST system technician perform or supervise the installation in accordance with COMAR 26.10.02.03D; and

  (5) Any alternative installation methods approved by the Department under Regulations .01B(1)(d), .02B(1)(c), and .03C(1) of this chapter.

B. Monitoring Pipes. An owner and an operator of a UST system shall:

  (1) Install two permanent monitoring pipes or, if a UST system is constructed in a high risk groundwater use area or well head protection area as defined in COMAR 26.10.07.02B, four permanent monitoring pipes:

    (a) Vertically and in opposing corners of a new or replacement UST system excavation zone;

    (b) That extend to a minimum depth of 2 feet below the bottom of the UST in the excavation zone;

    (c) Constructed of schedule 40 polyvinyl chloride (PVC);

    (d) That are a minimum of 4 inches in diameter;

    (e) Constructed with PVC screened pipe from the bottom to within 2 feet of the top of a monitoring pipe, with the remaining 2 feet being constructed of solid PVC; and

    (f) That have a minimum slot size of 0.020 inches and maximum slot size of 0.025 inches with not less than 30 slots per foot; and

  (2) Complete the installation of the monitoring pipes required under §B(1) of this regulation by:

    (a) Backfilling around the outside of the monitoring pipes with fine pea gravel or wrapping the monitoring pipes in an appropriate filter cloth to prevent clogging;

    (b) Sealing around the top 8 inches to ground surface with a bentonite clay and concrete mixture or by other means to prevent the entrance of surface water runoff;

    (c) Capping the monitoring pipes with a liquid-tight threaded cap or removable liquid-tight plug;

    (d) Protecting the monitoring pipes from traffic with a manhole and cover;

    (e) Locking or bolting closed the monitoring pipes;

    (f) Identifying the monitoring pipes to avoid confusion with product fill lines; and

    (g) Having a key or locking tool for the monitoring pipes kept at the regulated substance storage facility.

C. Excavations. An owner and an operator of a UST system shall perform an excavation for the UST system that is:

  (1) A minimum distance of 5 feet from the base of adjacent structures or property lines;

  (2) If installing a steel UST, a minimum 12-inch distance between other USTs and a minimum 12-inch clearance between a UST and all sides of the excavation zone; and

  (3) If installing a fiberglass-reinforced plastic UST, a minimum 18-inch distance between other USTs and a minimum 18-inch clearance between a UST and all sides of the excavation zone.

D. An owner and an operator of a UST system shall place a UST upon a minimum 12-inch bedding made of backfill material.

E. Backfill Material. An owner and an operator of a UST system:

  (1) Shall use backfill material composed of:

    (a) Pea gravel not larger than 3/4 of an inch; or

    (b) Crushed stone not larger than 1/2 of an inch;

  (2) May use clean sand as backfill material for protected steel and steel-clad USTs;

  (3) Shall use the same material for backfilling operations that is used for bedding; and

  (4) May not use backfill material with debris, foreign matter, or frozen matter.

F. Except where there is, at a minimum, 48 inches of clearance between a UST and shoring, an owner and an operator of a UST system shall remove shoring from the UST system excavation zone when the installation of the UST system is complete.

G. In an area of high groundwater or where UST movement is possible, an owner and an operator of a UST system shall safeguard a UST against movement from high groundwater or a flood by:

  (1) Anchoring the UST in compliance with the UST manufacturer’s instructions; or

  (2) Other means acceptable to the Department.

H. When using a hold-down pad or anchors made of concrete to prevent the movement of a UST, an owner and an operator of a UST system shall allow the concrete to cure for a minimum of 48 hours before:

  (1) Placing a new UST and associated backfill on freshly poured concrete; or

  (2) Anchoring a UST to the hold-down devices.

I. An owner and an operator of a UST system may not install a groundwater drain system in the UST system excavation zone without prior written approval by the Department.

#### Regulation .05 Precision Tightness Testing.

*COMAR 26.10.03.05*

A. After completing the installation or replacement, repair, or upgrade of a UST system, an owner and an operator of a UST system shall test the UST system for tightness using a precision tightness test as defined in COMAR 26.10.02.02B before operation of the UST system.

B. An owner and an operator of a UST system shall only conduct a precision tightness test approved by the Department.

C. For each precision tightness test conducted on a UST system, the owner and the operator of the UST system shall:

  (1) Maintain and make available for inspection by the Department upon request, records regarding a precision tightness test;

  (2) Keep the records on file at the regulated substance storage facility or at a location designated by and the under control of the owner and the operator of the UST system for as long as the UST system is used to store a regulated substance; and

  (3) Include in the records all of the following information:

    (a) The commercial name of the test equipment;

    (b) The name of the testing company;

    (c) The name of the individual conducting the test;

    (d) The date of the test;

    (e) The data accumulated by the test; and

    (f) The results of the precision tightness test.

D. Inconclusive Precision Tightness Test Results.

  (1) When a precision tightness test conducted on a UST system results in an inconclusive test result, the owner and the operator of the UST system shall retest the UST system not later than 2 working days after the inconclusive test result.

  (2) If a subsequent precision tightness test conducted on a UST system also results in an inconclusive test result, the owner and the operator of the UST system and the person conducting the precision tightness test shall report the test result as a failure to the Department within 2 hours in accordance with COMAR 26.10.08.01.

E. When a precision tightness test conducted on a UST system results in a failed test result, the owner and the operator of the UST system and the person conducting the precision tightness test shall report the failed test result to the Department within 2 hours in accordance with COMAR 26.10.08.01.

F. Consumptive Use UST Systems.

  (1) An owner and an operator of a consumptive use UST system shall comply with the requirements of §§A—E of this regulation.

  (2) Unless otherwise required by the Department, an owner and an operator of a consumptive use UST system are not required to conduct precision tightness tests on the consumptive use UST system at the frequency required under §F(3)(a) if the following conditions are met:

    (a) The UST system is protected against corrosion in accordance with the requirements of this chapter;

    (b) The UST system is installed in accordance with the requirements of this chapter; and

    (c) The owner and the operator of the UST system conduct monthly release detection monitoring of the UST system in accordance with COMAR 26.10.05.

  (3) If the conditions in §F(2) of this regulation are not met, an owner and an operator of a consumptive use UST system shall:

    (a) Conduct a precision tightness test on the UST system:

      (i) 15 years after the installation date for the UST system or, if the installation date cannot be determined, immediately; and

      (ii) At least every 5 years after the most recent precision tightness test; and

    (b) Conduct a precision tightness test on the UST system immediately upon receipt of a notice from the Department to conduct a precision tightness test.

#### Regulation .06 Piping Installation.

*COMAR 26.10.03.06*

A. An owner and an operator of a UST system shall comply with the installation requirements of this regulation.

B. Install piping in accordance with the requirements of this regulation.

C. Place underground piping on a 6-inch bedding of appropriate backfill material as described in Regulation .04 of this chapter.

D. Maintain the following clearances when installing piping:

  (1) Twice the nominal diameter of the pipe but at least 4 inches between all piping;

  (2) At least 6 inches between piping and electrical conduits related to the UST system;

  (3) At least 6 inches between piping and excavation zone sidewalls; and

  (4) At least 18 inches between piping and the surface of the ground.

E. Unless otherwise approved by the Department, ensure piping rises 1/8 of an inch for each lateral foot from the UST to the piping endpoint.

F. Follow the manufacturer specifications and installation requirements when installing piping.

G. In accordance with manufacturer specifications, use a UL listed flexible connector to connect piping as follows:

  (1) Except for a direct fill line, to connect a pipe carrying a regulated substance to a UST at the end of a piping run; and

  (2) To connect a pipe carrying a regulated substance to a dispenser system.

H. Unless otherwise approved by the Department, an owner and an operator of a UST system may not use a flexible connector to connect piping carrying petroleum vapor or a regulated substance at any other point in the piping system not listed in §G of this regulation.

I. Place a UL listed shear valve on pressurized product piping dispensing motor fuel, and properly anchor the shear valve at the dispenser.

J. Install appurtenances such as water or air piping in a separate piping trench;

K. Ensure vent lines above the ground surface are:

  (1) Constructed with at least schedule 40 steel;

  (2) Protected from traffic;

  (3) Properly anchored; and

  (4) Protected from weather and debris.

L. Ensure the vents of a UST system storing a flammable or combustible liquid meet the following conditions:

  (1) If the UST system stores a flammable liquid, the vents terminate 12 feet above the ground surface and 2 feet above an attached building; and

  (2) If the UST system stores a combustible liquid, the vents terminate at least 3 feet above the ground surface.

#### Regulation .07 Compatibility.

*COMAR 26.10.03.07*

An owner and an operator of a UST system shall:

A. Use a UST system made of or lined with a material compatible with the regulated substance stored in the UST system;

B. If the UST system stores an ethanol blend, comply with API Recommend Practice 1626 “Storing and Handling Ethanol and Gasoline-ethanol Blends at Distribution Terminals and Filling Stations”;

C. Provide notification to the Department regarding a change in the regulated substance stored in the UST system as follows:

  (1) In a format required by the Department, notify the Department in writing at least 30 days before switching to a regulated substance that contains:

    (a) Greater than 10 percent ethanol;

    (b) Greater than 20 percent biodiesel; or

    (c) Any other regulated substance identified by the Department; and

  (2) In accordance with Regulation .09 of this chapter, amend the registration for the UST system after the switch to a regulated substance listed in §C(1) of this regulation is complete;

D. If a UST system stores one of the regulated substances identified in §C of this regulation, demonstrate the compatibility of the UST system with the regulated substance, including the UST, piping, containment sumps, pumping equipment, release detection equipment, spill prevention equipment, and overfill prevention equipment, by using one of the following options:

  (1) Use equipment or components certified or listed by a nationally recognized association for use with the stored regulated substance;

  (2) Use equipment or components with written approval from the manufacturer that affirmatively states the equipment or components are compatible with a specified range of biofuel blends, including the stored regulated substance; or

  (3) Use equipment or components determined by the Department to be not less protective of public health, safety, and welfare and the environment as the equipment or components specified in §D(1) and (2) of this regulation; and

E. Maintain records documenting compliance with the compatibility requirements under §D of this regulation for as long as the UST system is used to store the regulated substance.

#### Regulation .08 Upgrading Existing UST Systems.

*COMAR 26.10.03.08*

A. This regulation does not apply to an owner and an operator of:

  (1) A UST system containing heating oil for consumptive use; or

  (2) A UST system with a field-constructed tank or an airport hydrant fuel distribution system.

B. Closure of an Existing UST System.

  (1) Except as provided in §B(2) of this regulation, an owner and an operator of an existing UST system shall permanently close the UST system in accordance with:

    (a) The closure requirements under COMAR 26.10.10; and

    (b) The reporting and corrective action requirements under COMAR 26.10.08 and 26.10.09.

  (2) An owner and an operator of an existing UST system are not required under §B(1) of this regulation to permanently close the existing UST system if the following conditions are met:

    (a) Upon installation, the existing UST system was installed in accordance with the performance standards under Regulations .01B, .02B, .03A(1)(a) and (2)(a), and .07A of this chapter; or

    (b) The existing UST system was upgraded on or before December 22, 1998 in accordance with the requirements under §§D—F of this regulation.

C. Unless an existing UST system meets the conditions in §B(2) of this regulation, an owner and an operator of an existing UST system may not allow delivery of a regulated substance to, or dispensing of a regulated substance from, the existing UST system.

D. Upgrade Requirements.

  (1) Not later than December 22, 1998, an owner and an operator of an existing UST system with a steel UST shall implement of one the following corrosion protection methods under §D(2) or (3) of this regulation.

  (2) Cathodic Protection System. Not later than December 22, 1998, an owner and an operator of an existing UST system with a steel UST shall upgrade the UST by installing a cathodic protection system meeting the performance standards in Regulation .01B(1)(b)(i) and (3) of this chapter, and ensuring the integrity of the UST through one of the following methods:

    (a) Internally inspect and assess the UST to ensure the storage tank is structurally sound and free of corrosion holes;

    (b) Demonstrate the UST was not installed before December 22, 1988, and the UST has been monitored monthly for releases in accordance with COMAR 26.10.05.05E—H;

    (c) Demonstrate the UST was not installed before December 22, 1988, and the UST has been assessed by conducting two precision tightness tests meeting requirements of Regulation .05A—C of this chapter and the following testing schedule:

      (i) The first precision tightness test was conducted before installing the cathodic protection system; and

      (ii) The second precision tightness test was conducted between 3 and 6 months following the first operation of the cathodic protection system; or

    (d) Demonstrate that the UST was assessed for corrosion holes using a method determined by the Department to prevent spills, releases, and discharges in a manner that is not less protective of public health, safety, and welfare and the environment than the methods specified under §D(2)(a)—(c) of this regulation.

  (3) Internal Lining Combined with Cathodic Protection. Not later than December 22, 1998, an owner and an operator of an existing UST system with a steel UST that meets the requirements of API Standard 1631 “Interior Lining and Periodic Inspection of Underground Storage Tanks” shall upgrade the steel UST with an internal lining and a cathodic protection system as follows:

    (a) Before applying the interior lining, determine if there is evidence of a spill, release, or discharge from the UST system where a spill, release, or discharge is most likely to be present;

    (b) Apply the interior lining:

      (i) In compliance with the repair standards in COMAR 26.10.04.04; and

      (ii) In accordance with the requirements in API Standard 1631 “Interior Lining and Periodic Inspection of Underground Storage Tanks”;

    (c) Install a cathodic protection system that meets the performance standards for cathodic protection under Regulation .01B(1)(b)(i) and (3);

    (d) Conduct a precision tightness test on the UST system in accordance with Regulation .05A—C of this chapter before placing the UST system back into service;

    (e) Maintain, and make available for inspection by the Department upon request, a written certification from the contractors that performed the work required under §D(3)(a)—(d) of this regulation that states all work was performed in accordance with the requirements of this regulation; and

    (f) Internally inspect the lined UST within the first 10 years after applying the lining and at least every 5 years thereafter, with the results of each inspection finding that the lining is structurally sound and performing in accordance with the original design specifications.

  (4) After December 22, 1998, if the internal lining of an existing UST system upgraded using the method in §D(3) of this regulation no longer performs in accordance with original design specifications, the owner and the operator of the existing UST system shall permanently close the UST system in accordance with procedures in COMAR 26.10.10.

E. Piping Upgrade Requirements. Not later than December 22, 1998, an owner and an operator of an existing UST system shall upgrade metal piping in contact with the ground by installing a cathodic protection system that meets the performance standards for cathodic protection under Regulation .02B(1)(b) and (2) of this chapter.

F. Spill and Overfill Prevention Equipment Requirements. Not later than December 22, 1998, an owner and an operator of an existing UST system shall upgrade the UST system to meet the performance standards under Regulation .03A(1)(a) and (2)(a) of this chapter.

G. In accordance with Regulation .09 of this chapter, an owner, an operator, and a person in charge of an existing UST system shall amend the registration for the existing UST system after an upgrade performed in compliance with this regulation is complete.

#### Regulation .09 UST System Registration Requirements.

*COMAR 26.10.03.09*

A. An owner, an operator, and a person in charge of one or more UST systems shall:

  (1) Register each UST system with the Department and maintain up-to-date registration for each UST system with the Department;

  (2) Submit to the Department a completed registration form for a UST system to the Department not later than 30 days following the:

    (a) Installation of a new or replacement UST system; or

    (b) Acquisition of a new or replacement UST system;

  (3) Amend the registration for a registered UST system by submitting to the Department a registration form not later than 30 days following:

    (a) The return of a temporarily closed UST system to in-service status;

    (b) A change in the regulated substance stored;

    (c) A change-in-service to store a non-regulated substance in a UST system;

    (d) An upgrade of an existing UST system;

    (e) The temporary closure or permanent closure of a UST system; or

    (f) If applicable, an owner of UST system being released from the requirement to maintain financial responsibility or obtaining coverage under an alternate mechanism of financial responsibility; and

  (4) Include on a submitted registration form all of the information requested on the form, including:

    (a) If amending the registration for a registered UST system, information remaining unchanged since the last registration form was submitted for the UST system;

    (b) A certification of the UST system owner’s compliance with the:

      (i) Installation of a UST and piping requirements under this chapter;

      (ii) Installation of spill and overfill prevention equipment requirements under this chapter;

      (iii) Cathodic protection of steel USTs and piping requirements under Regulations .01 and .02 of this chapter;

      (iv) Financial responsibility requirements under COMAR 26.10.11; and

      (v) Release detection requirements under COMAR 26.10.05 and, if a UST system with a field-constructed tank or an airport hydrant system, 26.10.12;

    (c) If the UST system is used in the operation of a commercial or business entity, certification and proof that:

      (i) The owner has registered the commercial or business entity with the Maryland Department of Assessments and Taxation; and

      (ii) The commercial or business entity is in good standing with the State at the time of the UST system initial or amended registration; and

    (d) A certification from a certified UST system technician that the methods used to install the UST system comply with the requirements in COMAR 26.10.02—26.10.12 and 26.10.16.

B. An owner, an operator, and a person in charge of a UST system required to register or amend the registration for a UST system under §A of this regulation:

  (1) May register or amend the registration for one or more UST systems located at one place of operation using one registration form; and

  (2) Shall register or amend the registration for UST systems located at separate places of operation using separate registration forms for each place of operation.

C. A person who sells a UST system shall inform the purchaser of the registration obligation under §A of this regulation and provide the purchaser with a copy of the Department’s registration form.

D. An owner, an operator, and person in charge of a UST system that is not registered with the Department may not sell, receive, or dispense oil or any other regulated substance to or from the UST system, with the exception of the minimum amount of a regulated substance necessary to conduct an initial precision tightness test for a new or replacement UST system.

E. An owner, an operator, and a person in charge of a registered UST system shall:

  (1) Display the UST system registration certificate issued by the Department at the regulated substance storage facility; or

  (2) Produce the UST system registration certificate immediately upon the request of the Department.

#### Regulation .10 UST System Inspection Requirements.

*COMAR 26.10.03.10*

A. An owner of a motor fuel, bulk oil storage, used oil, or a hazardous substance UST system shall have a certified inspection completed for the UST system:

  (1) By a UST system inspector certified by the Department under COMAR 26.10.06;

  (2) To verify the owner’s and the operator’s compliance with the UST system requirements established under this chapter and COMAR 26.10.02, 26.10.04, 26.10.05, 26.10.07—26.10.12 and 26.10.16; and

  (3) In accordance with the schedule established under §B of this regulation.

B. Inspection Schedule. An owner of a motor fuel, bulk oil storage, used oil, or a hazardous substance UST system shall complete:

  (1) An initial inspection of the UST system:

    (a) If the UST system was installed before January 16, 2006, within 30 days of receiving a notification from the Department to complete an inspection; and

    (b) If the UST system was installed on or after January 16, 2006, within 6 months of the UST system installation;

  (2) A subsequent inspection of the UST system:

    (a) At least once every 3 years following the most recent inspection;

    (b) Within 30 days of receiving a notification from the Department to complete an inspection; and

    (c) If the ownership of the UST system changes, within 3 months of the change in ownership.

C. Additional Inspections.

  (1) If required by the Department, an owner of a motor fuel, bulk oil storage, used oil, or a hazardous substance UST system shall complete an inspection in addition to an inspection required under §B of this regulation to verify compliance with the UST system requirements under this chapter and COMAR 26.10.02, 26.10.04, 26.10.05, 26.10.07—26.10.12 and 26.10.16.

  (2) An owner of a motor fuel, bulk oil storage, used oil, or a hazardous substance UST system may not substitute an inspection required by the Department under §C(1) of this regulation for an inspection required under §B of this regulation.

D. After conducting an inspection required under §B or C of this regulation, an owner of a motor fuel, bulk oil storage, used oil, or a hazardous substance UST system shall:

  (1) Submit to the Department an inspection report on forms provided by the Department:

    (a) Within 30 days of the deadline to complete an inspection established under §B or C of this regulation;

    (b) Completed by a certified UST system inspector;

    (c) Signed by the certified UST system inspector that conducted the inspection; and

    (d) Signed by the owner, the operator, and the person in charge of the UST system; and

  (2) Unless the Department determines immediate corrective action by the owner is required to protect public health, safety, and welfare and the environment, within 30 days of receiving a Notice to Correct Deficiencies issued by the Department:

    (a) Correct all of the deficiencies identified during the inspection in accordance with the UST system requirements under this chapter and COMAR 26.10.02, 26.10.04, 26.10.05, 26.10.07—26.10.12 and 26.10.16; and

    (b) Submit to the Department proof of corrective actions performed to correct the deficiencies.

E. Recordkeeping. For a minimum of 5 years, an owner of a motor fuel, bulk oil storage, used oil, or a hazardous substance UST system shall maintain records of completed inspections at a location designated by the owner and make the records available to the Department upon request.

### Chapter 04 — UST Systems: General Operating Requuirements

**Authority:** Environment Article, §§4-401, 4-402, 4-405, 4-407—4-411.2, 4-415.1, 4-417, 4-701 et seq., and 7-201 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: February 4, 1991 (18:2 Md. R. 151)

**Administrative History:** Chapter revised effective November 4, 1996 (23:22 Md. R. 1498)

**Administrative History:** Regulation .01 amended effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .01F amended as an emergency provision effective July 5, 2006 (33:16 Md. R. 1363); emergency status expired December 31, 2006

**Administrative History:** Regulation .02F, G amended effective February 18, 2002 (29:3 Md. R. 224)

**Administrative History:** Regulation .04 amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .05C amended effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .05D amended effective February 18, 2002 (29:3 Md. R. 224)

**Administrative History:** Regulations .01—.05 repealed and new Regulations .01—.05 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Spill and Overfill Control.

*COMAR 26.10.04.01*

A. Delivery and Transfer Operations. An owner and an operator of a UST system shall ensure:

  (1) The ullage available in the UST is greater than the volume of the regulated substance to be transferred to the UST before delivery or transfer begins;

  (2) During a delivery or transfer operation:

    (a) A spill, release, or discharge of a regulated substance does not occur due to overfilling the UST or spilling a regulated substance during the transfer; and

    (b) The delivery or transfer operation is constantly monitored to prevent overfilling of the UST and spilling of a regulated substance;

  (3) The delivery or transfer operation is conducted in accordance with the requirements in COMAR 26.10.01.16 and .17 and NFPA 385 “Standard for Tank Vehicles for Flammable and Combustible Liquids”; and

  (4) The company making an oil delivery or transfer using a truck tank or transport with a cargo tank capacity of 500 gallons or greater holds a valid Individual Oil Operations Permit from the Department in accordance with COMAR 26.10.01.09.

B. An owner and an operator of a UST system and a responsible party shall report, investigate, and remediate spills, releases, and discharges and overfills from a UST system in accordance with COMAR 26.10.08.04.

C. Liquid Level Measurements.

  (1) An owner and an operator of a metered UST system shall:

    (a) Each day of operation, measure the liquid level of the UST using a gauging stick or an electronic method and reconcile the results with:

      (i) Pump meter readings of the UST; and

      (ii) Regulated substance delivery receipts for the UST;

    (b) Perform inventory in accordance with “USEPA Doing Inventory Control Right for Underground Storage Tanks”; and

    (c) Review reconciled inventory records in accordance with the inventory control requirements in COMAR 26.10.05.04.

  (2) An owner and an operator of a non-metered UST system designed to allow for the direct measurement of liquid levels in the UST shall gauge the liquid level in the UST using a gauging stick or an electronic method and record the measurements in writing before filling the UST.

  (3) An owner and an operator of a UST system shall maintain the liquid level measurement and inventory reconciliation records required under §C(1) and (2) of this regulation:

    (a) For 5 years at the regulated substance storage facility where the UST system is located, or another location designated by the owner of the UST system; and

    (b) In accordance with Regulation .05 of this chapter.

D. Delivery and Transfer Equipment. An owner and an operator of a UST system shall:

  (1) Ensure spill catchment basins are kept clean and dry;

  (2) In order to prevent liquid or other matter from entering the UST system, return and secure any fill pipe or Stage I vapor recovery connection cap taken off during a delivery or transfer operation;

  (3) Install a UST system designed to allow for the direct measurement of liquid levels using the gauging stick method;

  (4) Maintain a storage tank gauging stick in good operating condition and capable of measuring the level of a regulated substance over the full range of the UST and riser pipe height to the nearest 1/8 inch;

  (5) In compliance with NFPA 30 “Flammable and Combustible Liquids Code”, install a drop-tube in the fill pipe of:

    (a) A UST system that stores a flammable substance; or

    (b) A UST system with a capacity greater than 1,100 gallons that stores a combustible substance;

  (6) Install a high liquid level gauge, an alarm system, or a pump cut-off device on a UST system if the Department determines an overfill of oil is possible;

  (7) If a vent is not visible to a person positioned at the UST system fill, conduct additional procedures for filling a UST system as required by the Department to ensure a safe transfer or delivery of a regulated substance;

  (8) To indicate the size of a UST and the type of regulated substance stored, clearly mark all fill pipes for a UST system as follows:

    (a) Install a permanent tag or sign immediately adjacent to the fill pipe that states the size of the UST and the specific type of regulated substance being stored; or

    (b) Use a color code that conforms to the following requirements:

      (i) Using the marking system recommended in API Recommended Practice 1637 “Using the API Color-Symbol System to Identify Equipment, Vehicles, and Transfer Points for Petroleum Fuels and Related Products at Dispensing and Storage Facilities and Distribution Terminals”, paint or place color markings around the fill pipe or manhole cover in a manner that will readily identify the regulated substance stored in the UST; and

      (ii) Print the color code on a sign that is not less than 8 x 10 inches in size with letters not less than 5/16 inch high, post the sign at the regulated substance storage facility in a prominent location visible from the fill pipe area, and make the signage available for inspection at all times to show the UST size and type of regulated substance stored;

  (9) Only mark pipes or openings used for the transfer of a regulated substance stored at the regulated substance storage facility in a manner that associates the pipes or openings with the transfer of that regulated substance; and

  (10) Keep a key or other access device at the regulated substance storage facility for access to a dispenser system connected to the UST system.

#### Regulation .02 Operation and Maintenance of Corrosion Protection.

*COMAR 26.10.04.02*

A. An owner and an operator of a metal UST system with corrosion protection shall:

  (1) Comply with the requirements of this regulation to prevent a spill, release, or discharge due to corrosion until the UST system is permanently closed or undergoes a change-in-service pursuant to COMAR 26.10.10.02;

  (2) Operate and maintain a corrosion protection system to continuously provide corrosion protection to the metal components of the UST system in contact with the ground, including soil and backfill material, or continuous or intermittent water; and

  (3) If the UST system is protected by an impressed current system, design the UST system so that the impressed current source cannot be de-energized at any time, except to perform service work on the UST system or the impressed current system.

B. Inspections. An owner and an operator of a UST system equipped with a cathodic protection system shall comply with all of the following inspection requirements:

  (1) Determine if the cathodic protection system is adequate and complies with the requirements of this regulation by using criteria established in a NACE or STI code of practice incorporated by reference under COMAR 26.10.01.03;

  (2) Inspect the UST system for proper operation by having a qualified cathodic protection tester:

    (a) Test a field-installed cathodic protection system within 6 months of installation, and at least annually thereafter; and

    (b) Test a factory-installed cathodic protection system within 6 months of installation, and at least once every 3 years thereafter;

  (3) If a qualified cathodic protection tester determines the cathodic protection system is inadequate per a NACE or STI code of practice:

    (a) Notify the Department of the failed test in compliance with the suspected spill, release, or discharge reporting requirements in COMAR 26.10.08.01; and

    (b) Repair the cathodic protection system in accordance with a NACE or STI code of practice within 60 days of the failed test; and

  (4) If the UST system is designed with an impressed current system:

    (a) Inspect the UST system at least every 60 days to ensure that the impressed current system is functioning properly; and

    (b) Have a complete assessment of the impressed current system performed by a corrosion expert:

      (i) When the impressed current system reaches 5 years of age, and at least every 5 years after the most recent assessment; and

      (ii) In accordance with the guidance as established under a NACE code of practice.

C. An owner and an operator of a UST system equipped with a cathodic protection system shall:

  (1) In accordance with Regulation .05C of this chapter, maintain and upon request by the Department provide records of the operation and maintenance of the cathodic protection system that demonstrate compliance with performance standards of this regulation; and

  (2) Include in the records required to be maintained under §C(1) of this regulation the following information:

    (a) The results of the last three inspections and the last assessment of an impressed current system conducted in accordance with §B(4) of this regulation; and

    (b) The results of testing from the last two inspections of a cathodic protection system conducted in accordance with §B(2) of this regulation.

#### Regulation .03 Periodic Operation and Maintenance Walkthrough Inspections.

*COMAR 26.10.04.03*

A. Beginning not later than 90 days after June 13, 2022, an owner and an operator of a UST system shall conduct a periodic operation and maintenance walkthrough inspection in accordance with:

  (1) The inspection procedures under §B or C of this regulation; and

  (2) The recordkeeping requirements under §D of this regulation.

B. An owner and an operator of a UST system may meet the inspection requirements in §A(1) of this regulation by, at a minimum, checking:

  (1) The spill prevention equipment:

    (a) On a monthly basis or, if the UST system receives deliveries at intervals greater than 30 days, prior to each delivery; and

    (b) By completing the following tasks:

      (i) Visually checking the equipment for damage;

      (ii) Removing liquid and debris from the equipment;

      (iii) Checking for and removing obstructions in the fill pipe;

      (iv) Checking the fill cap to ensure the cap is securely on the fill pipe; and

      (v) For double-walled spill prevention equipment with interstitial monitoring, checking for a release in the interstitial area;

  (2) On a monthly basis, the release detection equipment to ensure:

    (a) The equipment is operating with no alarms or other unusual operating conditions present; and

    (b) The records of release detection testing are reviewed and are current;

  (3) On an annual basis, the containment sumps by:

    (i) Visually checking the containment sumps for damage;

    (ii) Checking for a release in the containment area and a spill, release, or discharge to the environment;

    (iii) Removing liquid and debris from the containment sumps; and

    (iv) For double-walled containment sumps with interstitial monitoring, checking for a release in the interstitial area; and

  (4) On an annual basis, the hand held release detection equipment by checking devices such as storage tank gauging sticks and groundwater bailers for operability and serviceability.

C. An owner and an operator of a UST system may meet the inspection requirements in §A(1) of this regulation by using an alternative procedure:

  (1) Established in guidance developed by the Department or a standard code of practice developed by a nationally recognized association incorporated by reference under COMAR 26.10.01.03; and

  (2) That checks equipment comparable to the equipment required to be checked under §B of this regulation.

D. An owner and an operator of a UST system shall maintain records of the operation and maintenance walkthrough inspections:

  (1) In accordance with Regulation .05 of this chapter;

  (2) For at least 1 year at the regulated substance storage facility where the UST system is located;

  (3) For at least 5 years at a location designated by the owner; and

  (4) That include the following information:

    (a) A list of each area checked during the inspection;

    (b) Whether an area inspected was acceptable or needed action taken;

    (c) If an action was taken to correct an issue, a description of the action taken; and

    (d) Delivery records if the spill prevention equipment is checked prior to a delivery because deliveries occur at intervals greater than 30 days.

#### Regulation .04 Repairs Allowed.

*COMAR 26.10.04.04*

A. An owner and an operator of a UST system shall conduct repairs that:

  (1) Prevent spills, releases, and discharges due to structural failure or corrosion for the entire period in which a UST system is used to store regulated substances;

  (2) Comply with the applicable code of practices developed by a nationally recognized association incorporated by reference under COMAR 26.10.01.03; and

  (3) Meet all of the requirements of this chapter.

B. An owner and an operator of a UST system shall have repairs to the equipment and components of the UST system performed or supervised by a UST system technician certified in accordance with COMAR 26.10.06.

C. Repair Procedures. An owner and an operator of a UST system:

  (1) Upon approval of the Department, shall have repairs conducted on a fiberglass-reinforced plastic or steel UST:

    (a) By an authorized representative of the UST manufacturer; or

    (b) In accordance with a code of practice developed by a nationally recognized association incorporated by reference under COMAR 26.10.01.03;

  (2) May not repair a UST by installing an internal liner;

  (3) Shall replace a metal pipe that has sections or fittings in which corrosion or other damage has resulted in:

    (a) A spill, release, or discharge of a regulated substance; or

    (b) An imminent threat of a spill, release, or discharge of a regulated substance, as determined by the Department;

  (4) Shall repair non-corrodible pipes and fittings in accordance with the manufacturer’s specifications; and

  (5) Shall repair a containment sump with materials rated by the material manufacturer for the regulated substance stored in the UST system.

D. Testing of Repaired UST Systems. An owner and an operator of a repaired UST system shall:

  (1) Before placing the UST system back into service, conduct a precision tightness test in accordance with COMAR 26.10.03.05 to test the repaired UST and piping;

  (2) Before placing the UST system back into service, test secondary containment areas of the UST, piping, and containment sumps in accordance with:

    (a) The manufacturer’s instructions;

    (b) A code of practice developed by a nationally recognized association incorporated by reference under COMAR 26.10.01.03; or

    (c) Requirements established by the Department; and

  (3) Within 6 months of completing a repair on a cathodically protected UST system, test the cathodic protection system:

    (a) To ensure the cathodic protection system is operating properly; and

    (b) In accordance with Regulation .02B of this chapter.

E. Recordkeeping. In accordance with Regulation .05 of this chapter, an owner and an operator of a UST system shall maintain records of each repair conducted on the UST system until the UST system is permanently closed or undergoes a change-in-service pursuant to COMAR 26.10.10.02.

#### Regulation .05 Access, Reporting, and Recordkeeping.

*COMAR 26.10.04.05*

A. Access. An owner, an operator, and a person in charge of a UST system shall:

  (1) Make available for inspection by the Secretary or the Secretary’s authorized representative:

    (a) The regulated substance storage facility where the UST system is located; and

    (b) An alternative site where records regarding the operation of the UST system are maintained;

  (2) Allow the Department to:

    (a) Make copies of data, records, and information pertaining to the UST system;

    (b) Collect air, ground or surface water, soil, and vegetation samples or samples of other materials on-site as determined necessary by the Department; and

    (c) Obtain photographic or videographic documentation or evidence; and

  (3) Following a spill, release, or discharge, allow a responsible party access to the site to conduct remedial activities.

B. Reporting. An owner and an operator of a UST system shall submit the following documentation to the Department:

  (1) A registration form for the UST system following certain events, as required under COMAR 26.10.03.09;

  (2) A notification regarding the planned storage of a certain regulated substance in the UST system required under COMAR 26.10.03.07C;

  (3) A report of a spill, release, or discharge or an overfill required under COMAR 26.10.01.05 and 26.10.08 and any other applicable provision under COMAR 26.10;

  (4) A report of corrective actions planned or taken required under Environment Article, §§4-412 and 7-259, Annotated Code of Maryland and any applicable provision of COMAR 26.10, including COMAR 26.10.09.03—.07; and

  (5) A notification of a planned permanent closure or change-in-service of the UST system required under COMAR 26.10.10.02.

C. Recordkeeping. An owner and an operator of a UST system shall maintain and make available to the Department, the following records:

  (1) If the UST system was installed after January 1, 2006, an as-built diagram of the UST system that includes a layout of the USTs and piping of the UST system;

  (2) Documentation supporting an alternative method of corrosion protection for the construction of a UST or piping, such as an analysis of the site corrosion potential from a corrosion expert, pursuant to COMAR 26.10.03.01B(1)(d) or .02B(1)(c);

  (3) Records of the installation of a previously installed UST, pursuant to COMAR 26.10.03.01D;

  (4) Records that demonstrate compliance with the requirements for installing, operating, and testing spill and overfill prevention equipment and containment sumps in COMAR 26.10.03.03;

  (5) Records of the compatibility of the UST system with a stored regulated substance, pursuant to COMAR 26.10.03.07;

  (6) Records of upgrades made to the existing UST system, pursuant to COMAR 26.10.03.08;

  (7) Records of certified inspections conducted pursuant to COMAR 26.10.03.10;

  (8) The liquid level measurement and inventory reconciliation records required under Regulation .01C of this chapter;

  (9) Records of the operation and maintenance of corrosion protection equipment, pursuant to Regulation .02 of this chapter;

  (10) Records of the periodic operation and maintenance walkthrough inspections conducted pursuant to Regulation .03 of this chapter;

  (11) Records of repairs performed on the UST system, pursuant to Regulation .04 of this chapter;

  (12) Records that demonstrate compliance with the release detection requirements under COMAR 26.10.05, pursuant to COMAR 26.10.05.06;

  (13) Records that demonstrate compliance with the release detection requirements under COMAR 26.10.12, pursuant to COMAR 26.10.12.07;

  (14) Documentation regarding certified Class A, Class B, and Class C operators designated for the regulated substance storage facility and the operator training and certification, pursuant to COMAR 26.10.16.09; and

  (15) Records documenting the UST system being take out-of-service through a closure or change-in-service, including the results of an investigation conducted at the site where the UST system underwent a temporary or permanent closure or a change-in-service, pursuant to COMAR 26.10.10.05.

D. Availability and Maintenance of Records.

  (1) Unless otherwise required in this chapter or COMAR 26.10.03, 26.10.05, 26.10.10, 26.10.12, and 26.10.16, an owner and an operator of a UST system shall keep the records required under §C of this regulation for the operational life of the UST system at:

    (a) The regulated substance storage facility where the UST system is located; or

    (b) A readily available alternative site under the control of the UST system owner.

  (2) If a UST system underwent permanent closure and the records required under COMAR 26.10.10.05 cannot be maintained at one of the locations specified in §D(1) of this regulation, the owner and the operator of the UST system shall submit the permanent closure records to the Department.

### Chapter 05 — UST Systems: Release Detection

**Authority:** Environment Article, §§4-401, 4-402, 4-405, 4-407—4-411.2, 4-415.1, 4-417, 4-701 et seq., and 7-201 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: February 4, 1991 (18:2 Md. R. 151)

**Administrative History:** Chapter revised effective November 4, 1996 (23:22 Md. R. 1498)

**Administrative History:** Regulation .01 amended effective February 18, 2002 (29:3 Md. R. 224)

**Administrative History:** Regulation .01A amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .02B amended effective June 29, 1998 (25:13 Md. R. 997)

**Administrative History:** Regulation .02C amended effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .02D amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .04 amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .04B amended effective June 29, 1998 (25:13 Md. R. 997)

**Administrative History:** Regulation .04C amended effective February 18, 2002 (29:3 Md. R. 224); January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .06 amended effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulations .01—.06 repealed and new Regulations .01—.06 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Release Detection: General Requirements for All UST Systems.

*COMAR 26.10.05.01*

A. An owner and an operator of a UST system shall provide a method, or combination of methods, of release detection that:

  (1) Can detect a spill, release, or discharge from any portion of the UST and the connected underground piping;

  (2) Is installed and calibrated in accordance with the manufacturer’s instructions;

  (3) Is operated and maintained in accordance with:

    (a) The manufacturer’s instructions;

    (b) A code of practice incorporated by reference under COMAR 26.10.01.03; or

    (c) Requirements determined by the Department to be not less protective of human health and the environment than §A(3)(a) or (b) of this regulation;

  (4) Meets the performance requirements in Regulations .02 and .05 of this chapter, or COMAR 26.10.12 for a UST system with a field-constructed tank or an airport hydrant system, as applicable, with performance claims verified by the manufacturer’s specifications; and

  (5) Is capable of detecting a leak at a rate or quantity specified in this chapter with a probability of detection of not less than 0.95 and a probability of false alarm of not more than 0.05.

B. Beginning January 12, 2009, an owner and an operator of a UST system installing a new or replacement UST system shall monitor the UST system for a spill, release, or discharge at least monthly by interstitial monitoring in accordance with Regulation .05G of this chapter.

C. Release Detection Operability Test. An owner and an operator of a UST system shall:

  (1) Have the electronic and mechanical components of a release detection method tested for proper operation in accordance with:

    (a) The manufacturer’s instructions;

    (b) A code of practice incorporated by reference under COMAR 26.10.01.03; or

    (c) Requirements determined by the Department to be not less protective of human health and the environment than §C(1)(a) or (b) of this regulation;

  (2) Perform an operability test of each electronic and mechanical component of a release detection method used at a regulated substance storage facility in accordance with the following criteria:

    (a) For the automatic tank gauge and other controllers:

      (i) Test the alarm;

      (ii) Verify the system configuration; and

      (iii) Test the battery backup;

    (b) For the probes and sensors:

      (i) Inspect the equipment for residual buildup;

      (ii) Ensure the floats move freely;

      (iii) Ensure the shafts are not damaged;

      (iv) Ensure the cables are free of kinks and breaks; and

      (v) Test the alarm operability and communication with the controller;

    (c) Test the operation of the automatic line leak detector to meet the criteria in Regulation .02D(2) of this chapter by simulating a leak;

    (d) Ensure the proper communication of the vacuum pumps and pressure gauges with the sensors and controller; and

    (e) Ensure the proper operation of the hand-held electronic sampling equipment associated with groundwater monitoring;

  (3) Perform the operability tests required by §C(1) and (2) of this regulation at least annually; and

  (4) Maintain the following records to show compliance with §C(1)—(3) of this regulation:

    (a) A list of each component tested;

    (b) Whether each component tested meets criteria specified or needs to have action taken; and

    (c) A description of any action taken to correct an issue.

D. Notifications.

  (1) An owner and an operator of a UST system shall notify the Department in accordance with COMAR 26.10.08.01 when a release detection method operated in accordance with one of the following performance standards indicates that a spill, release, or discharge may have occurred:

    (a) Regulation .05 of this chapter; or

    (b) If the UST system has a field-constructed tank or an airport hydrant system, COMAR 26.10.12.

  (2) If an owner, an operator, and a person in charge of a UST system changes the method of release detection used, the owner, the operator, and the person in charge of the UST system shall provide the Department written notification within 30 days of the change.

E. An owner and an operator of a UST system that cannot apply a method of release detection that complies with the requirements of this chapter shall close the UST system in accordance with procedures in COMAR 26.10.10.

F. An owner and an operator of a previously deferred UST system described in COMAR 26.10.02.01A(4)—(6) and COMAR 26.10.12 shall meet the requirements of this chapter not later than October 13, 2022.

G. A person may not tamper with, or render inaccurate, any monitoring device or method required to be maintained under this chapter.

#### Regulation .02 Requirements for UST Systems.

*COMAR 26.10.05.02*

A. An owner and an operator of a petroleum UST system or a hazardous substance UST system, unless otherwise provided in this regulation, shall provide release detection for USTs and piping as described in this regulation.

B. An owner and an operator of a UST system shall monitor the UST system for releases of a regulated substance by:

  (1) Conducting inventory control in accordance with Regulation .04 of this chapter; and

  (2) At least monthly, conducting one of the methods of release detection described in Regulation .05B—H of this chapter.

C. An owner and an operator of a UST system with a UST capacity of 550 gallons or less and that is not metered may use weekly manual tank gauging conducted in accordance with Regulation .05C of this chapter as a method of release detection.

D. Underground Piping.

  (1) An owner and an operator of a UST system shall monitor underground piping that routinely contains petroleum vapor or a regulated substance in accordance with §D(2)—(4) of this regulation.

  (2) Pressurized Piping.

    (a) An owner and an operator of a UST system with underground piping that conveys regulated substances under pressure shall equip the underground piping with an automatic line leak detector that is tested annually in accordance with Regulation .01C of this chapter, and which will:

      (i) Alert the operator to the presence of a leak or a spill, release, or discharge by restricting or shutting off the flow of a regulated substance through piping or triggering an alarm; and

      (ii) Detect a leak or a spill, release, or discharge of a regulated substance of at least 3 gallons per hour at 10 pounds per square inch line pressure within 1 hour; and

    (b) An owner and an operator of a UST system with underground piping that conveys regulated substances under pressure shall:

      (i) At least annually, perform a precision tightness test on the piping for a minimum of 1 hour that is capable of detecting a 0.1 gallon per hour release at 1.5 times the pipe operating pressure; or

      (ii) At least monthly, perform one of the methods of release detection described in Regulation .05B and F—H of this chapter.

  (3) Suction Piping.

    (a) An owner and an operator of a UST system with underground piping that conveys regulated substances under suction shall:

      (i) At least every 2 years, perform a precision tightness test on the piping for a minimum of 1 hour that is capable of detecting a 0.1 gallon per hour release at a pressure between 5 and 15 pounds per square inch; or

      (ii) At least monthly, monitor for a spill, release, or discharge using one of the methods of release detection described in Regulation .05B and F—H of this chapter.

    (b) An owner and an operator of a UST system with underground suction piping are not required to perform the release detection and precision tightness testing required in §D(3)(a) of this regulation on the piping when:

      (i) The piping operates at less than atmospheric pressure;

      (ii) The piping is sloped so that the contents of the pipe will drain back into the UST if the suction is released;

      (iii) A single check valve is included in each suction line;

      (iv) The check valve is located directly below and as close as practicable to the suction pump; and

      (v) The owner and operator of the UST system provide a method of visual inspection to determine compliance with §D(3)(b)(ii)—(iv) of this regulation.

  (4) An owner and an operator of a UST system with secondary containment piping shall test that piping:

    (a) After completing installation of the piping but before operation of the UST system, for new, upgraded, or replaced piping;

    (b) At least every 5 years, for piping installed on or after January 12, 2009; and

    (c) In accordance with manufacturer’s specifications or a method approved by the Department.

#### Regulation .03 Requirements for Hazardous Substance UST Systems.

*COMAR 26.10.05.03*

A. In addition to the UST system requirements in Regulation .02 of this chapter, an owner and an operator of a hazardous substance UST system shall:

  (1) Provide containment that meets the requirements of this regulation; and

  (2) Monitor the containment systems using interstitial monitoring pursuant to Regulation .05G of this chapter at least monthly.

B. An owner and an operator of a hazardous substance UST system shall ensure the hazardous substance UST system meets the following requirements:

  (1) A secondary containment system is designed, constructed, and installed to:

    (a) Contain hazardous substances spilled or released from the primary containment until the spill or release is detected and removed;

    (b) Prevent the spill, release, or discharge of hazardous substances to the environment at any time during the operational life of the UST system; and

    (c) Be checked for evidence of a spill, release, or discharge at least monthly;

  (2) A double-walled UST is designed, constructed, and installed to:

    (a) Contain a release from any portion of the inner storage tank within the outer wall; and

    (b) Detect the failure of the inner wall;

  (3) An external liner, including a vault, is designed, constructed, and installed to:

    (a) Contain 100 percent of the capacity of the largest UST within its boundary;

    (b) Prevent precipitation or groundwater from entering the liner; and

    (c) Surround the UST completely;

  (4) Underground piping is equipped with secondary containment that satisfies the requirements of §B(1)—(3) of this regulation; and

  (5) Underground piping that conveys hazardous substances under pressure is equipped with an automatic line leak detector in accordance with Regulation .02D(2) of this chapter.

C. An owner and an operator of hazardous substance UST system may use other methods of release detection in conjunction with interstitial monitoring as required in §A(2) of this regulation if the owner and an operator of the UST system:

  (1) Demonstrates to the Department in writing that an alternate method can detect a release of the stored hazardous substance as effectively as any of the methods allowed in Regulation .05B—H of this chapter,

  (2) Provides the Department with information regarding effective corrective action technologies, health risks, and chemical and physical properties of the stored hazardous substance, and the physical characteristics of the regulated substance storage facility; and

  (3) Obtains approval from the Department to use the alternate release detection method before the installation and operation of the UST system.

#### Regulation .04 Inventory Control.

*COMAR 26.10.05.04*

A. Inventory Variations.

  (1) An owner and an operator of a UST system shall review the reconciled inventory records required by COMAR 26.10.04.01 for the following:

    (a) Inventory variations exceeding 1 percent plus 130 gallons of the metered quantity of a regulated substance each calendar month; and

    (b) Daily inventory records that show 7 consecutive days of shortage totaling 80 gallons or more.

  (2) An owner and an operator of a UST system shall conduct a review of reconciled inventory records at the following frequencies:

    (a) Review inventory variation as required under §A(1)(a) of this regulation monthly; and

    (b) Review daily inventory records as required under §A(1)(b) of this regulation daily.

  (3) Reporting and Investigating Inventory Variations.

    (a) An operator of a UST system shall report a variation or shortage as described in §A(1) of this regulation to the owner of the UST system;

    (b) Upon discovery of an inventory variation, an owner and an operator of a UST system shall immediately investigate the cause of the variation or shortage;

    (c) If the investigation required under §A(3)(b) of this regulation reveals no indication of a discharge or release from a UST system, an owner and an operator of a UST system shall state the cause of the inventory variation or shortage in the daily inventory records; and

    (d) If the investigation required under §A(3)(b) of this regulation reveals a discharge or release from a UST system, an owner and an operator of a UST system shall follow the procedures established under COMAR 26.10.08.

B. The Department may require an owner and an operator of a UST system to perform a precision tightness test of the UST system:

  (1) If the owner and the operator fail to reconcile daily inventory records as specified in COMAR 26.10.04.01 and review the reconciled records in accordance with §A of this regulation;

  (2) If the owner and the operator fail to comply with monthly release detection requirements of Regulation .05 of this chapter; or

  (3) For any other good cause as determined by the Department.

C. The Department may require an owner and an operator of a UST system to perform a precision tightness test of the UST system and install monitoring wells or conduct a site assessment if there is reason to believe there is or may have been a discharge or release of a regulated substance from the UST system.

#### Regulation .05 Method of Release Detection.

*COMAR 26.10.05.05*

A. In addition to the inventory control requirements in Regulation .04 of this chapter, an owner and an operator of a UST system shall perform one or a combination of the methods of release detection described in §§B—H of this regulation at least monthly.

B. Statistical Inventory Reconciliation. An owner and an operator of a UST system utilizing statistical inventory reconciliation as a monthly method of release detection:

  (1) May only use statistical inventory reconciliation if the UST system is a metered UST system;

  (2) Shall use statistical inventory reconciliation to detect a spill, release, or discharge through application of statistical principles to inventory data, or another test of equivalent performance, with a probability of detection of not less than 0.95 and a probability of false alarm of not more than 0.05;

  (3) Shall use a method of statistical inventory reconciliation that meets the following requirements:

    (a) Uses inventory volume measurements collected in accordance with COMAR 26.10.04.01;

    (b) Produces a quantitative result with a calculated leak rate;

    (c) Is capable of detecting:

      (i) A leak rate of 0.2 gallon per hour; or

      (ii) A spill, release, or discharge of 150 gallons within a month; and

    (d) Uses a threshold that does not exceed one-half the minimum detectible leak rate; and

  (4) Shall have a Department-approved third party conduct the statistical inventory reconciliation.

C. Manual Tank Gauging.

  (1) At least weekly, an owner and an operator of a UST system shall perform manual tank gauging using a storage tank gauging stick maintained in accordance with COMAR 26.10.04.01 as follows:

    (a) Take UST liquid level measurements at the beginning and ending of an at least 36-hour period, during which liquid may not be added to or removed from the UST;

    (b) Base the level measurements on an average of two consecutive stick readings at both the beginning and ending of the period; and

    (c) Using a UST gauge chart specific to the UST gauged, convert the liquid levels to the gallons present in the UST and review for any variations between the starting and ending measurements.

  (2) An owner and an operator of a UST system shall report a suspected spill, release, or discharge and follow the investigation and confirmation procedures in COMAR 26.10.08 if the variation between beginning and ending manual tank gauging measurements performed in accordance with §C(1) of this regulation exceeds the weekly or monthly standards in the following table:

  (3) An owner and an operator of a UST system may use manual tank gauging:

    (a) As the sole method of release detection if the nominal capacity of a UST is 550 gallons or less; and

    (b) For a UST with a nominal capacity of 551 to 2,000 gallons only in conjunction with conducting a precision tightness test, as defined in COMAR 26.10.02.02, at least every 5 years in accordance with the requirements of COMAR 26.10.03.05.

  (4) An owner and an operator of a UST system may not use manual tank gauging to meet the requirements of this chapter for a UST that has a nominal capacity of more than 2,000 gallons.

D. Precision Tightness Testing. At least monthly, an owner and an operator of a UST system shall conduct a precision tightness test, as defined in COMAR 26.10.02.02, as a method of release detection in accordance with the requirements of COMAR 26.10.03.05.

E. Automatic Tank Gauging. At least monthly, an owner and an operator of a UST system shall perform automatic tank gauging using equipment that tests for the loss of regulated substance and conducts inventory control and that meets the following requirements:

  (1) The automatic regulated substance level monitor test is capable of detecting a 0.2 gallon per hour leak rate from any portion of the UST;

  (2) The automatic tank gauging equipment meets the inventory control, or another test of equivalent performance, requirements of COMAR 26.10.04.01, and Regulation .04 of this chapter; and

  (3) An automatic tank gauging system tests for loss of a regulated substance by operating in one of the following modes:

    (a) In-tank static testing conducted at least once monthly; or

    (b) Continuous in-tank leak detection operating on an uninterrupted basis or operating within a process that allows the automatic tank gauging system to gather incremental measurements to determine the leak status of the UST at least once monthly.

F. Groundwater Monitoring.

  (1) Beginning June 13, 2022, an owner and an operator of a UST system may only use groundwater monitoring as a monthly method of release detection with prior written approval from the Department.

  (2) An owner and an operator of a UST system shall conduct groundwater monitoring in accordance with the following requirements:

    (a) Perform a site assessment 60 days before the implementation of the groundwater monitoring method;

    (b) Provide a written report of the site assessment to the Department upon request and, beginning June 13, 2022, ensure the written report is signed by a professional engineer or professional geologist, or equivalent licensed professional with experience in environmental engineering, hydrogeology, or other relevant technical discipline acceptable to the Department; and

    (c) Demonstrate that the testing or monitoring to detect a regulated substance on the groundwater meets all of the following requirements:

      (i) The regulated substance stored is immiscible in water and has a specific gravity of less than one;

      (ii) Groundwater is never more than 15 feet from the ground surface and the hydraulic conductivity of the soil or soils between the UST system and the monitoring wells or devices is not less than 0.01 centimeter/second, with the soil consisting of gravels, coarse to medium sands, coarse silts, or other permeable materials;

      (iii) The slotted portion of the monitoring well casing is designed to prevent migration of natural soils or filter pack into the well and to allow entry of regulated substance on the water table into the well under both high and low groundwater conditions;

      (iv) Monitoring wells are sealed from the ground surface to the top of the filter pack;

      (v) Monitoring wells or devices intercept the UST excavation zone or positioned as close to the excavation zone as is technically feasible;

      (vi) The method of measuring the contents of the well, whether automatic or manual, is capable of detecting the presence of at least 1/8 of an inch of free product on top of the groundwater in the monitoring wells;

      (vii) At least monthly, the contents of the groundwater monitoring well are measured;

      (viii) Within and immediately below the UST system excavation zone, the site is assessed to ensure compliance with the requirements in §F(2)(c)(i)—(v) of this regulation and to establish the number and positioning of monitoring wells or devices that will detect discharges or releases from any portion of the UST system;

      (ix) Monitoring wells are clearly marked and secured to avoid unauthorized access and tampering; and

      (x) A key, a lock combination number, or access tool for all monitoring wells is provided to the Department upon request and made available on the site where the UST system is located.

G. Interstitial Monitoring.

  (1) Beginning June 13, 2022, an owner and an operator of a UST system may only use interstitial monitoring as a monthly method of release detection between a UST system and a secondary barrier as described in §G(2)(b) of this regulation with prior written approval from the Department.

  (2) An owner and an operator of a UST system may use interstitial monitoring between the UST system and a secondary barrier immediately around or beneath the UST system as a method of release detection if the UST system is designed, constructed, and installed to detect a spill, release, or discharge from any portion of the UST system and one of the following conditions are met:

    (a) For a double-walled UST system, the owner and operator of the UST system uses a sampling or testing method that can detect a spill or release through the inner wall in any portion of the UST system;

    (b) For a UST system with a secondary barrier within the excavation zone, the owner or operator of the UST system uses a sampling or testing method that can detect a spill, release, or discharge between the UST system and the secondary barrier, provided that:

      (i) The secondary barrier around and beneath the UST system consists of artificially constructed material that is sufficiently thick and impermeable, at least 1×10-6 centimeter/second for the regulated substance stored, to direct a spill, release, or discharge to the monitoring point and allow the detection of the regulated substance;

      (ii) The barrier is compatible with the regulated substance stored so that a spill, release, or discharge from the UST system will not cause a deterioration of the barrier and allow a spill, release, or discharge to pass through the barrier undetected;

      (iii) For cathodically protected UST systems, the owner and the operator installs a secondary barrier so that it does not interfere with the proper operation of the cathodic protection system;

      (iv) The groundwater, soil moisture, or rainfall will not make the testing or sampling method used inoperative so that a spill, release, or discharge could go undetected for more than 30 consecutive days;

      (v) The site is assessed to ensure that the secondary barrier is always above the groundwater and not in a 25-year flood plain, unless the barrier and monitoring designs are for use under these conditions; and

      (vi) Monitoring wells are clearly marked and secured with bolts or a lock to avoid unauthorized access and tampering; and

    (c) For USTs with an internally fitted liner, the owner and operator of the UST uses an automated device that can detect a spill or release between the inner wall of the UST and the liner, and the liner is compatible with the regulated substance stored.

H. Other Methods.

  (1) Upon the approval of the Department, an owner and an operator of a UST system may use one or combination of alternative methods of monthly release detection if:

    (a) The method can detect a 0.2 gallon per hour leak rate or a release of 150 gallons within a month with a probability of detection of not less than 0.95 and a probability of false alarm of not more than 0.05; or

    (b) The owner and the operator of the UST system can demonstrate to the Department that the method can detect a spill, release, or discharge as effectively as any of the methods allowed in §§B and D—G of this regulation.

  (2) If an alternative method of monthly release detection proposed by an owner and an operator of a UST system is approved by the Department, the owner and the operator of the UST system shall comply with any conditions imposed by the Department on the use of the method to ensure the protection of human health and the environment.

I. Vapor Monitoring. Except as provided in §H of this regulation, an owner and an operator of a UST system may not use vapor monitoring as a monthly method of release detection after April 1, 2009.

#### Regulation .06 Release Detection Recordkeeping.

*COMAR 26.10.05.06*

A. An owner and an operator of a UST system shall maintain records demonstrating compliance with the applicable requirements of this chapter:

  (1) In accordance with COMAR 26.10.04.05;

  (2) For at least 1 year at the regulated substance storage facility;

  (3) For at least 5 years at a location designated by the owner of the UST system; and

  (4) That include the following information:

    (a) Written performance claims pertaining to any release detection system used, and the manner in which these claims have been justified or tested by the equipment manufacturer or installer;

    (b) The results of any sampling, testing, or monitoring including:

      (i) The results of annual operability tests required in Regulation .01C of this chapter; and

      (ii) The results of precision tightness testing conducted in accordance with Regulation .05D of this chapter; and

    (c) Written documentation for all calibration, maintenance, and repair of release detection equipment permanently located on-site, and any schedules of required calibration and maintenance provided by the release detection equipment manufacturer.

B. An owner and an operator of a UST system shall maintain records of site assessments required under Regulation .05F of this chapter for as long as the groundwater monitoring method is used.

### Chapter 06 — UST System Technician, Remover, and Inspector Certification

**Authority:** Environment Article, §§4-401, 4-402, 4-405, 4-407—4-411.2, 4-415.1, 4-417, 4-701 et seq., and 7-201 et seq.; State Government Article, §§10-206 and 10-226; Annotated Code of Maryland

**Administrative History:** Effective date: February 4, 1991 (18:2 Md. R. 151)

**Administrative History:** Chapter revised effective November 4, 1996 (23:22 Md. R. 1498)

**Administrative History:** Regulation .01 amended effective February 18, 2002 (29:3 Md. R. 224); January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .02 amended effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .02A, B amended effective December 21, 2015 (42:25 Md. R. 1547)

**Administrative History:** Regulation .03 amended effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .03A amended effective June 29, 1998 (25:13 Md. R. 997); December 21, 2015 (42:25 Md. R. 1547)

**Administrative History:** Regulation .03C amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .03D repealed effective December 21, 2015 (42:25 Md. R. 1547)

**Administrative History:** Regulation .04 amended effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .04A amended effective January 12, 2009 (36:1 Md. R. 25); December 21, 2015 (42:25 Md. R. 1547)

**Administrative History:** Regulation .05 amended effective January 16, 2006 (33:1 Md. R. 39); December 21, 2015 (42:25 Md. R. 1547)

**Administrative History:** Regulation .06 amended effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .07 amended effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .08 amended effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .09 amended effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .09B amended effective June 29, 1998 (25:13 Md. R. 997)

**Administrative History:** Regulation .09B, C amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .09D repealed effective December 21, 2015 (42:25 Md. R. 1547)

**Administrative History:** Regulation .10 adopted effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .10C repealed effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .11 adopted effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .12 adopted effective January 16, 2006 (33:1 Md. R. 39)

**Administrative History:** Regulation .12B amended effective December 21, 2015 (42:25 Md. R. 1547)

**Administrative History:** Regulations .01—.12 repealed and new Regulations .01—.09 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 General.

*COMAR 26.10.06.01*

A. The Department may issue certifications to an individual for the following UST system categories:

  (1) A UST system technician certification that allows the individual to install, upgrade, repair, close, and perform a change-in-service of a UST system in accordance with the requirements in COMAR 26.10.01—26.10.10, 26.10.12, and 26.10.16;

  (2) A heating oil technician certification that allows the individual to only install, upgrade, repair, and close a UST system storing heating oil for consumptive use and with a capacity of 2,000 gallons or less in accordance with the requirements in COMAR 26.10.01—26.10.06 and 26.10.08—26.10.10;

  (3) A UST system remover certification that allows the individual to close and perform a change-in-service of a UST system in accordance with the requirements in COMAR 26.10.01, 26.10.02, 26.10.06, and 26.10.08—26.10.10; and

  (4) A UST system inspector certification that allows the individual to conduct a UST system inspection in accordance with COMAR 26.10.03.10.

B. A certification issued by the Department to an individual under this chapter expires 2 years from the date of issuance.

C. The Department may issue a UST system inspector certification and not more than one additional certification from the remaining categories listed in §A of this regulation to an individual provided the individual applies for the certifications in accordance with this chapter.

D. An individual shall only perform UST system work for which the individual has received a certification from the Department.

E. An individual certified by the Department under this chapter shall have proof of certification from the Department at all times while performing work on a UST system.

#### Regulation .02 Initial Certification Requirements.

*COMAR 26.10.06.02*

A. To be certified as a UST system technician, an individual shall:

  (1) Submit a complete application in accordance with Regulation .03 of this chapter;

  (2) Meet the following experience requirements:

    (a) Have at least 2 years of UST system installation experience within the last 36 months with a company or organization that installs UST systems; and

    (b) Have direct involvement in a minimum of six separate UST system installation, repair, upgrade, or closure events, where not more than three UST system closure events may be counted towards the six direct involvement events; and

  (3) Achieve a score of 90 percent or better on the UST system technician certification test given by the Department.

B. To be certified as a heating oil technician, an individual shall:

  (1) Submit a complete application in accordance with Regulation .03 of this chapter;

  (2) Meet the experience requirements listed in §A(2) of this regulation; and

  (3) Achieve a score of 90 percent or better on the heating oil technician certification test given by the Department.

C. To be certified as a UST system remover, an individual shall:

  (1) Submit a complete application in accordance with Regulation .03 of this chapter;

  (2) Have direct involvement in a minimum of six separate UST system closure events within the last 36 months with a company or organization that closes UST systems; and

  (3) Achieve a score of 90 percent or better on the UST system remover certification test given by the Department.

D. To be certified as a UST system inspector, an individual shall:

  (1) Submit a complete application in accordance with Regulation .03 of this chapter;

  (2) Meet the following experience requirements:

    (a) Attend and complete one or more nationally recognized or Department approved training courses, classes, examinations, or workshops pertaining to UST system design, installation, operation, testing, or inspection; and

    (b) Attend a UST system inspector orientation course provided by the Department; and

  (3) Achieve a score of 90 percent or better on the UST system inspector certification test given by the Department.

E. The experience requirements in §§A(2), B(2), C(2), and D(2) of this regulation may be waived if the individual has equivalent training or education as determined by the Department.

#### Regulation .03 Application and Testing.

*COMAR 26.10.06.03*

A. Application Process.

  (1) To apply for an initial or renewal UST system technician, heating oil technician, or UST system remover certification, an individual shall complete an application provided by the Department as follows:

    (a) As specified on the application, the individual shall submit verifiable proof of the experience requirements for the particular certification as required under:

      (i) Regulation .02A(2), B(2), or C(2) of this chapter for an initial certification; or

      (ii) Regulation .04A(2) of this chapter to renew a certification;

    (b) The individual applying for certification and the employer of the individual shall sign the completed application; and

    (c) The individual shall submit the completed application to the Department.

  (2) To apply for an initial or to renew a UST system inspector certification, an individual shall complete an application provided by the Department as follows:

    (a) As specified on the application, the individual shall submit verifiable proof of the experience requirements as required under:

      (i) Regulation .02D(2) of this chapter for an initial certification; or

      (ii) Regulation .04B(2) of this chapter to renew a certification;

    (b) The individual applying for certification and the employer of the individual shall sign the completed application; and;

    (c) The individual shall submit the completed application to the Department.

B. Certification Testing.

  (1) At least 30 days prior to registering with the Department to take a certification test, an individual shall have submitted a completed application to the Department in accordance with §A of this regulation.

  (2) The Department shall publish certification testing dates on the Department’s website.

  (3) An individual shall register with the Department at least 72 hours prior to the scheduled test date to take a certification test.

  (4) An individual shall present a valid government issued photo identification to the Department at the time of the certification test.

  (5) An individual shall follow all directions provided by the Department in taking the certification test.

  (6) The Department may disqualify an individual from completing a certification test if the Department determines the individual is dishonestly taking the certification test.

  (7) In order to pass a certification test, an individual must achieve a score of 90 percent or better.

  (8) An individual who has not achieved a passing score on a certification test may register to retest within 90 days and without being required to reapply for a certification.

  (9) An individual who does not achieve a passing score on a certification test within 90 days of the first failed attempt shall submit a new application for a certification.

  (10) An individual may not count time taking a certification test toward the continuing education requirements under this chapter.

#### Regulation .04 Certification Renewal Requirements.

*COMAR 26.10.06.04*

A. To renew a certification for a UST system technician, a heating oil technician, or a UST system remover, an individual shall:

  (1) At least 30 days prior to the expiration of the current certification, submit a complete application in accordance with Regulation .03 of this chapter; and

  (2) Meet the following experience requirements:

    (a) Attend and complete a UST system course approved by the Department within the last 2 years; and

    (b) Have direct involvement in a minimum of six separate UST system installation, repair, upgrade, or closure events.

B. To renew a certification for a UST system inspector, an individual shall:

  (1) At least 30 days prior to the expiration of the current certification, submit a complete application in accordance with Regulation .03 of this chapter; and

  (2) Meet the following experience requirements:

    (a) Attend and complete the following courses within the last 2 years:

      (i) At least one Department approved training program for compliance inspections of UST systems; and

      (ii) An inspector orientation course or workshop provided by the Department; and

    (b) Perform UST system inspections at a minimum of 10 regulated substance storage facilities within the last 2 years.

C. An individual shall renew a certification in accordance with Regulation .02 of this chapter if the individual fails to:

  (1) Submit a complete application at least 30 days prior to the expiration date of the current certification; or

  (2) Demonstrate compliance with the experience requirements in §A(2) or B(2) of this regulation.

D. An individual may elect to renew a certification in accordance with Regulation .02 of this chapter.

E. If an individual is required to renew a UST system inspector certification in accordance with §C of this regulation or elects to renew a UST system inspector certification in accordance with Regulation .02 of this chapter, the individual is not required to meet the experience requirement in Regulation .02D(2)(a) of this chapter.

#### Regulation .05 Reciprocity Certification.

*COMAR 26.10.06.05*

A. The Department may issue a reciprocity certification for one of the four categories listed in Regulation .01A of this chapter to an individual who has a valid certification issued by another state if the Department determines that the state has a comparable certification program to the requirements of this chapter.

B. To obtain reciprocity certification, an individual shall:

  (1) Submit a valid certification from another state to the Department;

  (2) Complete an application provided by the Department in accordance with Regulation .03 of this chapter;

  (3) Meet the experience requirements as follows:

    (a) An individual applying for a UST system technician, heating oil technician, or UST system remover reciprocity certification shall meet the experience requirements in Regulation .02 of this chapter; and

    (b) An individual applying for a UST system inspector reciprocity certification shall meet the following experience requirements:

      (i) Perform UST system inspections at a minimum of 10 regulated substance storage facilities within the last 2 years; and

      (ii) Attend and complete an inspector orientation course provided by the Department; and

  (4) Achieve a score of 90 percent or better on a certification test given by the Department for that certification.

C. An individual receiving a reciprocity certification issued under this chapter shall be subject to the requirements under COMAR 26.10.

D. An individual renewing a reciprocity certification issued under this chapter shall follow the renewal requirements in Regulation .04 of this chapter.

#### Regulation .06 Standards of Performance.

*COMAR 26.10.06.06*

An individual certified by the Department under this chapter shall:

A. Maintain knowledge of COMAR 26.10.01—26.10.12 and 26.10.16 and all documents incorporated by reference;

B. Adhere to equipment manufacturers’ instructions, accepted industry standards, and applicable industry codes of practice when performing UST system installation, repair, upgrade, closure, change-in-service, precision tightness testing, other tightness testing, or inspection activities;

C. Perform work so that there is no spill, release, or discharge of regulated substances or contamination of soil, surface water, or groundwater caused by regulated substances from a UST system or regulated substance storage facility;

D. Certify to an owner or an operator of a UST system that a UST system installation, upgrade, repair, closure, change-in-service, or inspection is complete only when the activity conducted by the individual complies with COMAR 26.10.01—26.10.12 and 26.10.16;

E. Complete and submit to the Department a form provided by the Department that certifies a UST system installation, closure, change-in-service, or inspection activity conducted by the individual meets the requirements of COMAR 26.10.01—26.10.12 and 26.10.16;

F. Place the individual’s signature and Department issued certification number on documentation concerning an installation, upgrade, repair, closure, change-in-service, or inspection of a UST system or component of a UST system only if:

  (1) The certified individual directly completed the work or the work was completed under the certified individual’s direct, on-site supervision and control; and

  (2) The individual had a valid certification issued by the Department to conduct the specific work at the time the work was performed;

G. Maintain complete records of UST system installation, upgrade, repair, closure, change-in-service, and inspection activities that the certified individual was directly involved with for a minimum of 5 years; and

H. Upon request by the Department, provide proof of the individual’s certification for the UST system services being provided.

#### Regulation .07 Conflict of Interest.

*COMAR 26.10.06.07*

A. A certified UST system inspector may not perform, and an owner and an operator of a UST system may not allow, a UST system inspector to perform an inspection on a UST system for compliance with COMAR 26.10.03.10 if the UST system inspector is also:

  (1) The owner or the operator of the UST system to be inspected;

  (2) An employee of the owner or the operator of the UST system to be inspected; or

  (3) The certified UST system technician who completed the installation, replacement, or upgrade work on the UST system to be inspected.

B. The Department shall refuse a UST system inspection report submitted in compliance with COMAR 26.10.03.10D if the UST system inspector who performed the inspection and signed and provided their Department issued certification number on the inspection report is also one of the individuals identified in §A of this regulation.

C. A certified UST system inspector who is also a certified UST system technician may correct deficiencies while performing an inspection on a UST system in compliance with COMAR 26.10.03.10.

D. A certified UST system inspector shall be subject to the actions available to the Department as stated in Regulation .08 and .09 of this chapter if the individual performed the inspection and signed and provided their Department issued certification number on the inspection report refused by the Department under §B of this regulation.

#### Regulation .08 Denial, Suspension, or Revocation.

*COMAR 26.10.06.08*

A. The Department may deny an application for certification if an individual has not complied with the application and experience requirements in Regulations .02—.04 of this chapter or has demonstrated a history of noncompliance with the provisions of COMAR 26.10, including the reasons listed in §B(1) of this regulation.

B. Suspension or Revocation.

  (1) The Department may suspend or revoke a certification of an individual if the Department determines that the individual has done one or more of the following:

    (a) Demonstrated a willful or negligent disregard or repeated violations of the regulations in this subtitle;

    (b) Willfully or negligently submitted false information to the Department;

    (c) Violated the requirements of Regulation .06 or .07 of this chapter; or

    (d) After a prior suspension or revocation of a certification under this chapter, committed an act in violation of COMAR 26.10.

  (2) An individual shall surrender all State certification documents obtained under this chapter to the Department upon notification of suspension or revocation.

  (3) The Department may suspend or revoke a certification obtained under this chapter in accordance with State Government Article, §10-226, Annotated Code of Maryland.

C. Contested Case Hearing.

  (1) Except as otherwise provided in COMAR 26.10.01.24, an individual shall have an opportunity for a contested case hearing if the individual files a written request with the Department within 30 calendar days of receiving:

    (a) A notice of the Department’s decision to deny the certification application or to suspend or revoke the individual’s certification, as provided in §§A and B of this regulation;

    (b) A notice or order issued by the Department regarding a violation of a provision of this chapter or COMAR 26.10.

  (2) The Department shall conduct a contested case hearing in accordance with the provisions under State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

#### Regulation .09 Sanctions.

*COMAR 26.10.06.09*

A. An individual whose certification has been revoked may not apply for a new certification for 2 years from the date of revocation.

B. An individual is subject to the sanctions set forth in Environment Article, Title 4, Subtitle 4 and Title 7, Subtitle 2, Part VIII, Annotated Code of Maryland if that individual:

  (1) Violates any provision of this chapter; or

  (2) Does not install, upgrade, repair, close, perform a change-in-service of, or inspect a UST system in accordance with the provisions of COMAR 26.10.

### Chapter 07 — High Risk Oil Storage Facilities

**Authority:** Environment Article, §§4-401, 4-402, 4-405, 4-407—4-411.2, 4-415.1, 4-417, and 4-701 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: February 4, 1991 (18:2 Md. R. 151)

**Administrative History:** Chapter revised effective November 4, 1996 (23:22 Md. R. 1498)

**Administrative History:** Regulation .01 repealed and new Regulations .01—.08 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Scope.

*COMAR 26.10.07.01*

A. Applicability.

  (1) The requirements of this chapter apply only to the following oil storage facilities:

    (a) An oil storage facility with a new or existing gasoline UST system located in a high risk groundwater use area (HRGUA) or well head protection area (WHPA); and

    (b) An oil storage facility that meets the definition of a high risk underground oil storage facility under Regulation .07A of this chapter.

  (2) In addition to the requirements of this chapter, an owner of a new or existing gasoline UST system and an owner of a high risk underground oil storage facility is subject to the requirements under COMAR 26.10.01—26.10.06, 26.10.08—26.10.12, and 26.10.16.

B. Variances.

  (1) The Department may grant an owner of a new or existing gasoline UST system or a high risk underground oil storage facility a variance from one or more requirements of this chapter if the owner demonstrates the UST system or oil storage facility is not a threat to groundwater.

  (2) An owner applying for a variance provided under §B(1) of this regulation shall submit to the Department the following information:

    (a) A survey of groundwater use within a 1/2 mile radius of the oil storage facility;

    (b) A description of the construction materials used for the UST system;

    (c) A description of the release detection methods used to protect groundwater;

    (d) A description of operation and testing methods used to protect groundwater; and

    (e) Any other information requested by the Department.

#### Regulation .02 Definitions.

*COMAR 26.10.07.02*

A. In this chapter:

  (1) A term in §B of this regulation has the meaning indicated; and

  (2) A term not defined in §B of this regulation has:

    (a) The meaning given to the term in a relevant statute or in COMAR 26.10.01 or 26.10.02; or

    (b) If not defined in a relevant statute or COMAR 26.10.01 or 26.10.02, the meaning attributed by common use.

B. Terms Defined.

  (1) “Existing gasoline UST system” means a UST system located in a HRGUA or WHPA:

    (a) Installed before:

      (i) January 26, 2005, if located in a HRGUA; or

      (ii) January 1, 2010, if located in a WHPA;

    (b) Containing gasoline, including gasohol, that is used to fuel motor vehicles; and

    (c) That has a storage capacity greater than 2,000 gallons.

  (2) “High risk groundwater use area” or “HRGUA” means an area with a new or existing gasoline UST system:

    (a) In which an individual water supply system, as defined in COMAR 26.04.03.01-1B, serves as the water supply for the new or existing gasoline UST system facility, an adjoining property of the new or existing gasoline UST system facility, or both; and

    (b) Located in:

      (i) Baltimore, Carroll, Cecil, Frederick, or Harford County; and

      (ii) Anne Arundel, Baltimore, Carroll, Cecil, Frederick, or Harford County for the purpose of notifying a property owner of groundwater contamination in accordance with Environment Article, §4-411.2, Annotated Code of Maryland.

  (3) “High risk underground oil storage facility” means an oil storage facility that meets the conditions defined in Regulation .07A of this chapter.

  (4) “Levels of concern” means:

    (a) Benzene at (=) 5 parts per billion;

    (b) Toluene at (=) 1,000 parts per billion;

    (c) Ethylbenzene at (=) 700 parts per billion;

    (d) Total xylenes at (=) 10,000 parts per billion; and

    (e) Methyl tertiary butyl ether (MTBE) at (=) 20 parts per billion.

  (5) “Local government” means a county, municipal corporation, or sanitary district.

  (6) “New gasoline UST system” means a UST system, including a replacement UST system, located in a HRGUA or WHPA:

    (a) Installed on or after:

      (i) January 26, 2005, if located in a HRGUA; or

      (ii) January 1, 2010, if located in a WHPA; and

    (b) Containing gasoline, including gasohol, that is used to fuel motor vehicles.

  (7) “Well” means a hole made in the ground to obtain or monitor groundwater.

  (8) “Well head protection area” or “WHPA” means an area in Baltimore, Carroll, Cecil, Frederick, or Harford County identified and regulated by a local government surrounding one or more wells serving a:

    (a) Community water system, as defined by COMAR 26.04.01.01B; or

    (b) Public water system, as defined by COMAR 26.04.01.01B.

#### Regulation .03 New Gasoline UST System.

*COMAR 26.10.07.03*

An owner of a new gasoline UST system, except for a new gasoline UST system in a HRGUA located in Anne Arundel County, shall:

A. Comply with the following release prevention and detection requirements for a newly installed UST system:

  (1) If installing Stage II vapor recovery piping, install the Stage II vapor recovery piping in accordance with COMAR 26.10.03.02;

  (2) Install and utilize an interstitial release detection system for the UST system piping approved by the National Work Group on Leak Detection Evaluations;

  (3) If the UST system has a storage capacity of greater than 2,000 gallons or there are multiple USTs installed in a shared excavation zone:

    (a) Install four monitoring pipes in accordance with the specifications in COMAR 26.10.03.04B, with one monitoring pipe located in each corner of the excavation zone; and

    (b) In conjunction with the monitoring pipes required under §A(3)(a) of this regulation, install a piping system that is designed to allow for active ventilation of the excavation zone; and

  (4) Select and, upon receipt of Department approval, install one of the following systems to detect a spill, release, or discharge of gasoline liquid and vapors from the UST system:

    (a) A minimum of three monitoring wells that are:

      (i) Constructed in accordance with COMAR 26.04.04 and Department specifications;

      (ii) Located outside of the excavation zone;

      (iii) In locations that will allow for the determination of groundwater flow; and

      (iv) Placed in areas that are most likely to detect a spill, release, or discharge from the UST system;

    (b) A pressure control system that:

      (i) Is continuously operated;

      (ii) Continuously monitors storage tank pressure;

      (iii) Maintains storage tank pressure at an average negative pressure; and

      (iv) Prevents the release of gasoline vapors to the environment;

    (c) If the UST system excavation zone meets the conditions of §A(3) of this regulation by either having a storage capacity of greater than 2,000 gallons or multiple USTs installed in a shared excavation zone, a soil vapor extraction system that is:

      (i) Connected to the monitoring pipes and piping system required under §A(3) of this regulation; and

      (ii) Operated continuously to maintain active ventilation of the excavation zone; or

    (d) An alternative method that will detect a spill, release, or discharge of gasoline liquid and vapors from the UST system;

B. Within 30 days of installing a UST system, and annually thereafter:

  (1) Sample each site supply well and groundwater monitoring well located at the oil storage facility using a method approved by the Department; and

  (2) Analyze each collected water sample in accordance with Regulation .05 of this chapter;

C. Within 60 days after conducting a sample collection in accordance with §B of this regulation, submit the following documents to the Department:

  (a) A complete laboratory report that includes a copy of the laboratory sample acceptance form, sample chain-of-custody, and laboratory analytical results; and

  (b) A site map identifying each site supply well and groundwater monitoring well located at the oil storage facility; and

D. Upon completing the installation, replacement, repair, or upgrade of a UST system and before placing the UST system in operation:

  (1) Test all primary piping that does not contain liquid gasoline, tank top fittings, Stage II piping, riser pipes, and vent piping using a helium pressure test, or other test approved by the Department, in accordance with procedures prescribed by the Department;

  (2) If leaks or deficiencies are found during the testing, make necessary repairs in accordance with COMAR 26.10.04.04; and

  (3) Upon completion of a repair, retest the UST system in accordance with §D(1) of this regulation to ensure the UST system does not leak.

#### Regulation .04 Existing Gasoline UST System.

*COMAR 26.10.07.04*

A. An owner of an existing gasoline UST system in a HRGUA, except for an existing gasoline UST system located in Anne Arundel County, shall:

  (1) Not later than July 25, 2005, implement the following release detection methods:

    (a) Sample each site supply well and any existing groundwater monitoring wells located on the oil storage facility;

    (b) Install a minimum of three groundwater monitoring wells that are:

      (i) Constructed in accordance with COMAR 26.04.04 and Department specifications;

      (ii) Outside of the excavation zone;

      (iii) In locations that will allow for the determination of groundwater flow; and

      (iv) Placed in areas that are most likely to detect a spill, release, or discharge from the UST system;

    (c) Sample each groundwater monitoring well installed pursuant to §A(1)(b) of this regulation; and

    (d) Analyze each water sample collected pursuant to §A(1)(a) and (c) of this regulation in accordance with Regulation .05 of this chapter;

  (2) On an annual basis, collect and analyze water samples from each site supply well and groundwater monitoring well in accordance with §A(1)(a), (c) and (d) of this regulation;

  (3) Within 60 days after conducting a sample collection pursuant to §A(1) or (2) of this regulation, submit the following documents to the Department:

    (a) A complete laboratory report that includes a copy of the laboratory sample acceptance form, sample chain-of-custody, and laboratory analytical results; and

    (b) A site map identifying each site supply well and groundwater monitoring well located on the oil storage facility; and

  (4) Except for a UST system with Stage II piping decommissioned using a method approved by the Department, not later than January 26, 2006, and on a 24-month basis thereafter, test the UST system in accordance with the following procedures:

    (a) Test all primary piping that does not contain liquid gasoline, tank top fittings, Stage II piping, riser pipes, and vent piping using a helium pressure test, or other test approved by the Department, in accordance with procedures prescribed by the Department;

    (b) If leaks or deficiencies are found during the testing, make necessary repairs in accordance with COMAR 26.10.04.04; and

    (c) Upon completion of a repair, retest the UST system in accordance with §A(4)(a) of this regulation to ensure the UST system does not leak.

B. An owner of an existing gasoline UST system in a WHPA shall:

  (1) Not later than January 1, 2010, implement the following release detection methods:

    (a) Sample any existing groundwater monitoring well, and if present, site supply well located on the oil storage facility;

    (b) Install a minimum of three groundwater monitoring wells that are:

      (i) Constructed in accordance with COMAR 26.04.04 and Department specifications;

      (ii) Outside of the excavation zone;

      (iii) In locations that will allow for the determination of groundwater flow; and

      (iv) Placed in areas that are most likely to detect a spill, release, or discharge from the UST system;

    (c) Sample each groundwater monitoring well installed pursuant to §B(1)(b) of this regulation; and

    (d) Analyze each water sample collected pursuant to §B(1)(a) and (c) of this regulation in accordance with Regulation .05 of this chapter;

  (2) On an annual basis, collect and analyze water samples from each groundwater monitoring well, and if present, site supply well in accordance with §B(1)(a), (c) and (d) of this regulation;

  (3) Within 60 days after conducting a sample collection pursuant to §B(1) or (2) of this regulation, submit the following documents to the Department:

    (a) A complete laboratory report that includes a copy of the laboratory sample acceptance form, sample chain-of-custody, and laboratory analytical results; and

    (b) A site map identifying each groundwater monitoring well, and if present, site supply well located on the oil storage facility; and

  (4) Except for a UST system with Stage II piping decommissioned using a method approved by the Department, not later than January 1, 2010, and on a 24-month basis thereafter test the UST system in accordance with the following procedures:

    (a) Test all primary piping that does not contain liquid gasoline, tank top fittings, Stage II piping, riser pipes, and vent piping using a helium pressure test, or other test approved by the Department, in accordance with procedures prescribed by the Department;

    (b) If leaks or deficiencies are found during the testing, make necessary repairs in accordance with COMAR 26.10.04.04; and

    (c) Upon completion of a repair, retest the UST system in accordance with §B(4)(a) of this regulation to ensure the UST system does not leak.

#### Regulation .05 Analytical Testing Methods — New or Existing Gasoline UST Systems.

*COMAR 26.10.07.05*

An owner of a new or existing gasoline UST system shall conduct an analysis for full suite volatile organic compounds, including naphthalene and fuel oxygenates, for each water sample collected from:

A. A groundwater monitoring well in accordance with USEPA Test Method 8260 or another method approved by the Department; and

B. A site supply well in accordance with USEPA Test Method 524.2 or another method approved by the Department.

#### Regulation .06 Detection of Levels of Concern.

*COMAR 26.10.07.06*

If the concentration of benzene, toluene, ethylbenzene, total xylenes, or MTBE is detected at equal to or greater than the levels of concern defined in Regulation .02B of this chapter in a groundwater sample collected and analyzed in accordance with Regulations .03—.05 of this chapter, an owner of a new or existing gasoline UST system shall:

A. Within 24 hours of receiving an analytical laboratory report that shows the detection, report the sampling results to the Department;

B. Within 48 hours of receiving an analytical laboratory report that shows the detection, initiate an investigation both on-site and off-site of the oil storage facility in accordance with COMAR 26.10.08.02—.04; and

C. In accordance with COMAR 26.10.09.07, develop a corrective action plan under the direction of the Department.

#### Regulation .07 High Risk Underground Oil Storage Facility.

*COMAR 26.10.07.07*

A. Defining a High Risk Underground Oil Storage Facility.

  (1) An oil storage facility is defined as a high risk underground oil storage facility under this chapter if the facility has:

    (a) An underground storage capacity that includes:

      (i) One or more UST systems constructed with a single-walled UST or single-walled product piping; and

      (ii) A total underground oil storage capacity of 80,000 gallons or greater, not including underground oil storage capacity used to store heating oil for onsite consumptive use; or

    (b) As determined by a throughput review conducted in accordance with §A(2) of this regulation, a combined monthly oil throughput for all products stored in UST systems of:

      (i) 750,000 gallons or more when averaged over a rolling 12-month period; or

      (ii) 1,000,000 gallons or more in any single month.

  (2) Throughput Review Procedures.

    (a) To determine if an underground oil storage facility meets the definition of a high risk underground oil storage facility on a throughput basis, an owner of an underground oil storage facility shall have a throughput review performed in accordance with §A(2)(b) of this regulation:

      (i) At least once every three years during a certified inspection of a UST system required under COMAR 26.10.03.10; or

      (ii) If directed by the Department to perform a throughput review.

    (b) Using a form provided by the Department, a certified UST system inspector or a person in charge of an underground oil storage facility performing a throughput review shall determine the combined monthly oil throughput for all products by evaluating inventory records that document:

      (i) The average combined monthly oil throughput for all products over the preceding 12 months; and

      (ii) The highest combined monthly oil throughput for all products in the preceding 12 months.

    (c) An owner of an underground oil storage facility shall submit to the Department the throughput review:

      (i) As part of the inspection report required under COMAR 26.10.03.10D if the throughput review was performed during a certified inspection of a UST system; or

      (ii) As directed by the Department.

  (3) An owner of a high risk underground oil storage facility may demonstrate that the oil storage facility no longer meets the definition of a high risk underground oil storage facility by submitting documentation, such as an updated throughput review, to the Department that proves the oil storage facility no longer meets the conditions under §A(1) of this regulation.

  (4) Upon review of documentation provided to the Department pursuant to §A(3) of this regulation, the Department may determine:

    (a) The oil storage facility no longer meets the definition of a high risk underground oil storage facility; and

    (b) The owner of the oil storage facility is no longer required to comply with the requirements of this regulation.

B. Compliance with Monitoring Methods. An owner of a high risk underground oil storage facility shall:

  (1) Select, and upon receipt of Department approval, implement one of the following monitoring methods:

    (a) Groundwater monitoring method specified under §C of this regulation;

    (b) Enhanced testing method specified under §D of this regulation; or

    (c) An alternative monitoring method specified under §E of this regulation; and

  (2) Begin implementing the monitoring method in accordance with the following schedule:

    (a) Within 6 months of June 13, 2022, if the facility meets the size and construction conditions of §A(1)(a) of this regulation;

    (b) Within 6 months of determining that the facility meets the throughput conditions of §A(1)(b) of this regulation; or

    (c) On a schedule determined by the Department.

C. Groundwater Monitoring Method. An owner of a high risk underground oil storage facility choosing to implement the groundwater monitoring method shall:

  (1) Install a minimum of three groundwater monitoring wells:

    (a) That are constructed in accordance with the well construction requirements of COMAR 26.04.04 and Department specifications;

    (b) Outside of the excavation zone;

    (c) In locations that will allow for the determination of groundwater flow; and

    (d) In areas that are most likely to detect a spill, release, or discharge from the UST system;

  (2) Within 60 days of installing the groundwater monitoring wells, and annually thereafter:

    (a) Sample each groundwater monitoring well and analyze collected samples:

      (i) For full suite volatile organic compounds, including naphthalene and fuel oxygenates, in accordance with USEPA Test Method 8260 or another method approved by the Department; and

      (ii) For total petroleum hydrocarbons, including diesel and gasoline range organics, in accordance with USEPA Test Method 8015 or another method approved by the Department; and

    (b) If present at the high risk underground oil storage facility, sample each site supply well and analyze collected samples for full suite volatile organic compounds, including naphthalene and fuel oxygenates, in accordance with USEPA Test Method 524.2 or another method approved by the Department; and

  (3) Within 60 days after conducting a sample collection required under §C(2) of this regulation, submit the following documents to the Department:

    (a) A complete laboratory report that includes a copy of the laboratory sample acceptance form, sample chain-of-custody, and laboratory analytical results; and

    (b) A site map identifying each site supply well and groundwater monitoring well located at the oil storage facility.

D. Enhanced Testing Method.

  (1) This method may only be implemented by an owner of a high risk underground oil storage facility if all of the UST systems at the facility are installed with double-walled USTs and all of the piping systems are installed in accordance with COMAR 26.10.03.02A.

  (2) An owner of a high risk underground oil storage facility choosing to implement the enhanced testing method shall:

    (a) Perform UST and piping release detection by interstitial monitoring and perform at least one additional method of UST release detection in accordance with COMAR 26.10.05;

    (b) Perform annual primary line precision tightness testing;

    (c) Perform annual piping interstice precision tightness testing;

    (d) Equip all containment sumps, except the vent riser containment sump, with sensors programmed for positive UST system dispensing and pumping shut down; and

    (e) Every three years or at an alternative frequency under the direction of the Department, perform precision tightness testing of:

      (i) The UST in a manner that minimizes isolation of UST system components, such as the vent and vapor piping and risers, to the greatest extent possible; and

      (ii) The UST interstice, except for a brine filled interstice.

E. Alternative Monitoring Method. Subject to Department approval, an owner of a high risk underground oil storage facility may implement an alternative monitoring method if the owner demonstrates the alternative method is designed to detect a spill, release, or discharge from the UST system in a manner that is not less protective of human health and the environment than a method described under §C or D of this regulation.

F. If an owner of a high risk underground oil storage facility detects a spill, release, or discharge at the facility, the owner shall comply with the spill, release, or discharge reporting and corrective action requirements of COMAR 26.10.08 and 26.10.09.

#### Regulation .08 Recordkeeping.

*COMAR 26.10.07.08*

An owner of a new or existing gasoline UST system and an owner of a high risk underground oil storage facility shall:

A. Maintain records of all testing required by this chapter for one year at the oil storage facility and for five years at a location designated by the owner; and

B. Make the records maintained pursuant to §A of this regulation available to the Department upon request or as required under this chapter.

### Chapter 08 — Spill, Release, and Discharge Reporting, Investigation, and Confirmation

**Authority:** Environment Article, §§4-401, 4-402, 4-405, 4-407, 4-408, 4-410—4-411.1, 4-417, and 7-201 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: February 4, 1991 (18:2 Md. R. 151)

**Administrative History:** Chapter revised effective November 4, 1996 (23:22 Md. R. 1498)

**Administrative History:** Regulation .03C amended effective February 18, 2002 (29:3 Md. R. 224); January 16, 2006 (33:1 Md. R. 40)

**Administrative History:** Regulations .01—.04 repealed and new Regulations .01—.04 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Reporting of Suspected Spills, Releases, and Discharges.

*COMAR 26.10.08.01*

A. An owner and an operator of a storage tank system, a responsible party, and a person conducting a test on a storage tank system shall report to the Department a suspected spill, release, or discharge immediately, but not later than 2 hours after the discovery, and follow the investigation and confirmation procedures in Regulation .03 of this chapter if any of the following circumstances occur:

  (1) There is evidence of a spill, release, or discharge of oil;

  (2) There is evidence of a spill, release, or discharge of a regulated substance from a UST system;

  (3) A storage tank system fails a precision tightness test;

  (4) A storage tank system has two consecutive inconclusive precision tightness test results;

  (5) A storage tank system is determined to have a leak or there is evidence of a spill, release, or discharge of oil at an oil storage facility or oil handling facility, such as the presence of:

    (a) Dissolved product in groundwater;

    (b) Absorbed product in soils;

    (c) Free product in soils, a basement, a sewer or utility line, or waters of the State; or

    (d) Vapors in soils, a basement, a sewer or utility line, or waters of the State;

  (6) There is evidence of a spill, release, or discharge at a regulated substance storage facility or in the surrounding area, such as the presence of:

    (a) Dissolved product in groundwater;

    (b) Absorbed product in soils;

    (c) Free product in soils, a basement, a sewer or utility line, or waters of the State; or

    (d) Vapors in soils, a basement, a sewer or utility line, or waters of the State;

  (7) Unusual operating conditions exist, such as:

    (a) The erratic behavior of product-dispensing equipment;

    (b) The sudden loss of a regulated substance from a storage tank system;

    (c) An unexplained presence of water in a storage tank;

    (d) Liquid in the interstice space of secondarily contained systems; or

    (e) A failed spill prevention equipment or containment sump test for tightness; and

  (8) Monitoring results, including investigation of an alarm, from a release detection method required under COMAR 26.10.05 indicate a spill, release, or discharge may have occurred, unless:

    (a) The monitoring device is found to be defective and immediately repaired, recalibrated or replaced; and

    (b) Additional monitoring does not confirm the initial result.

B. Additional Reporting Circumstances.

  (1) For the purposes of this section, evidence of a spill, release, or discharge include:

    (a) The visual detection of free product; or

    (b) An analytical laboratory report that shows a detection of a petroleum constituent in a soil, groundwater, drinking water, or soil vapor sample at a concentration equal to or exceeding a cleanup standard or action level published by the Department for the petroleum constituent and media type.

  (2) If evidence of a spill, release, or discharge is discovered during an environmental assessment conducted on a property as part of a due diligence investigation in support of a property transaction or a loan refinancing, the person conducting the environmental assessment and the owner of the property shall report the suspected spill, release, or discharge to the Department:

    (a) Immediately, but not later than 2 hours after the visual detection of free product; or

    (b) Within 48 hours of receiving an analytical laboratory report described under §B(1) of this regulation.

  (3) The person performing an environmental assessment on a property or the owner of the property may not be considered a person responsible for the discharge solely as a result of discovering evidence of a spill, release, or discharge or reporting a suspected spill, release, or discharge to the Department in compliance with §B(1) of this regulation, unless the person performing the environmental assessment or the property owner meets the criteria for a person responsible for the discharge under COMAR 26.10.01.02B.

#### Regulation .02 Investigation Due to Off-Site Impacts.

*COMAR 26.10.08.02*

A. When directed by the Department, an owner and an operator of a storage tank system and a responsible party shall follow the investigation and confirmation procedures in Regulation .03 of this chapter to determine if the storage tank system or another source under the control of the owner and the operator of the storage tank system or the responsible party is the source of off-site impacts that have been:

  (1) Observed by the Department; or

  (2) Brought to the Department’s attention by another party.

B. The off-site impacts subject to an investigation under §A of this regulation include, but are not limited to:

  (1) Dissolved product in groundwater;

  (2) Absorbed product in soils;

  (3) Free product in soils, a basement, a sewer or utility line, or waters of the State; and

  (4) Vapors in soils, a basement, a sewer or utility line, or waters of the State.

#### Regulation .03 Investigation and Confirmation Steps.

*COMAR 26.10.08.03*

A. Unless corrective action is initiated in accordance with COMAR 26.10.09, an owner and an operator of a storage tank system and a responsible party shall use the steps described in §§B and C of this regulation, or other procedures required by the Department to:

  (1) Immediately but not later than 48 hours from the time a suspected spill, release, or discharge is discovered under Regulation .01 of this chapter or from the time an owner and an operator of a storage tank system and a responsible party is directed by the Department under Regulation .02 of this chapter, investigate a suspected spill, release, or discharge of a regulated substance; and

  (2) Within 7 days of beginning the investigation, or another time period specified by the Department, confirm:

    (a) All suspected spills, releases, and discharges of regulated substances requiring reporting under Regulation .01 of this chapter; and

    (b) The source of off-site impacts if directed by the Department, as required under Regulation .02 of this chapter.

B. System Test.

  (1) An owner and an operator of a storage tank system and a responsible party shall conduct a system test to determine whether a leak exists in the storage tank, the piping, the secondary containment, or another component of the storage tank system by conducting:

    (a) Precision tightness testing in accordance with COMAR 26.10.03.05;

    (b) As appropriate, secondary containment testing in accordance with COMAR 26.10.04.04D; or

    (c) A testing procedure required by the Department.

  (2) When a storage tank system fails a system test required by §B(1) of this regulation or another test for tightness, an owner and an operator of a storage tank system and a responsible party shall take the following steps:

    (a) Immediately discontinue use of the storage tank system and notify the Department;

    (b) Within 48 hours, begin an investigation to determine whether the leak is occurring in the storage tank, the piping, the secondary containment, or another component of the storage tank system;

    (c) If the storage tank is determined to be leaking, immediately remove the regulated substance from the storage tank;

    (d) If the piping system is determined to be leaking, immediately drain and discontinue the use of the piping system;

    (e) If the system test confirms a release into the interstice or a spill, release, or discharge to the environment:

      (i) Repair the storage tank system in accordance with COMAR 26.10.04.04;

      (ii) Replace or upgrade the storage tank system in accordance with COMAR 26.10.03; or

      (iii) Close the storage tank system in accordance with COMAR 26.10.10;

    (f) If another component of the storage tank system is determined to be leaking, perform the necessary repairs to the storage tank system in accordance with COMAR 26.10.04.04 within a time period approved by the Department; and

    (g) After repairing or replacing the storage tank system and before placing the storage tank system back in service, conduct a system test on the storage tank system in accordance with §B(1) of this regulation to verify that the condition that caused the original test failure has been corrected.

  (3) In addition to complying with the steps in §B(2) of this regulation, an owner and an operator of a storage tank system and a responsible party shall begin corrective action in accordance with COMAR 26.10.09 if the system test results for the storage tank system, storage tank, or piping indicate the existence of a spill, release, or discharge to the environment.

  (4) An owner and an operator of a storage tank system and a responsible party are not required to conduct further investigation if the system test results for the storage tank system, storage tank, and piping do not indicate the existence of a spill, release, or discharge and environmental contamination was not the basis for suspecting a spill, release, or discharge.

  (5) An owner and an operator of a storage tank system and a responsible party shall conduct a site check as described in §C of this regulation if the system test results for the storage tank system, storage tank, and piping do not indicate the existence of a spill, release, or discharge, but environmental contamination was the basis for suspecting a spill, release, or discharge.

C. Site Check.

  (1) An owner and an operator of a storage tank system and a responsible party shall measure for the presence of a spill, release, or discharge where contamination is most likely to be present.

  (2) In selecting sample types, sample locations, and measurement methods, an owner and an operator of a storage tank system and a responsible party shall consider:

    (a) The nature of the stored substance;

    (b) The type of initial alarm or cause for suspicion;

    (c) The type of backfill;

    (d) The depth to groundwater; and

    (e) Other factors appropriate for identifying the presence and source of a spill, release, or discharge.

  (3) If the test results for the excavation zone or the site indicate that a spill, release, or discharge has occurred, an owner and an operator of a storage tank system and a responsible party shall begin corrective action in accordance with COMAR 26.10.09.

  (4) If the test results for the excavation zone or the site do not indicate that a spill, release, or discharge has occurred, the Department will determine if further investigation is required.

  (5) If required by the Department, an owner and an operator of a storage tank system and a responsible party shall construct observation, monitoring, and recovery wells:

    (a) In compliance with COMAR 26.04.04;

    (b) Of polyvinylchloride or another material approved by the Department;

    (c) With a proper grout seal and locking cap; and

    (d) As required in an approved corrective action plan developed in accordance with COMAR 26.10.09.07.

#### Regulation .04 Reporting and Remediating Spills, Releases, Discharges, and Overfills.

*COMAR 26.10.08.04*

Upon detecting or confirming a spill, release, or discharge or an overfill of a regulated substance, an owner and an operator of a storage tank system and a responsible party shall:

A. Not later than 2 hours after detecting or confirming the spill, release, discharge or the overfill, or within another reasonable time period specified by the Department:

  (1) Contain and immediately remediate the spill, release, or discharge or the overfill of a regulated substance and begin corrective action in accordance with COMAR 26.10.09; and

  (2) Report the spill, release, or discharge or the overfill as follows:

    (a) Report a spill, release, or discharge or an overfill of oil to the Department in accordance with COMAR 26.10.01.05; and

    (b) Report a spill or release, or an overfill that results in a spill or release, of a hazardous substance equal to or greater than its reportable quantity under 40 CFR Part 302 to the Department and the National Response Center in accordance with 40 CFR §§302.6 and 355.40;

B. Determine the cause of the spill, release, or discharge or the overfill of a regulated substance from a storage tank system; and

C. If the spill or overfill prevention equipment of the storage tank system is determined to be the cause of the spill, release, or discharge or overfill of a regulated substance, repair or replace the spill or overfill prevention equipment in accordance with COMAR 26.10.03.03 and 26.10.04.04 prior to receiving a regulated substance delivery.

### Chapter 09 — Spill, Release, and Discharge Response and Corrective Action

**Authority:** Environment Article, §§4-401, 4-402, 4-405, 4-407, 4-408, 4-410, 4-411, 4-417, and 7-201 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: February 4, 1991 (18:2 Md. R. 151)

**Administrative History:** Regulations .01—.07 amended and Regulation .08 adopted effective November 4, 1996 (23:22 Md. R. 1498)

**Administrative History:** Regulation .04A amended effective June 29, 1998 (25:13 Md. R. 997)

**Administrative History:** Regulation .05 amended effective February 18, 2002 (29:3 Md. R. 224)

**Administrative History:** Regulations .01—.08 repealed and new Regulations .01—.08 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 General.

*COMAR 26.10.09.01*

A. In response to a confirmed spill, release, or discharge of a regulated substance from a storage tank system, the following persons shall comply with the requirements of this chapter:

  (1) If a confirmed spill, release, or discharge of a regulated substance from a UST system, the owner and the operator of the UST system and any responsible party; and

  (2) Except as otherwise directed by the Department, if a confirmed spill, release, or discharge of oil from a storage tank system, the owner and the operator of the storage tank system and any responsible party.

B. An owner and an operator of a storage tank system and a responsible party shall continue any required abatement, investigation, removal, remediation, mitigation, monitoring, corrective action, or product recovery activities required under this chapter in response to a spill, release, or discharge of a regulated substance until the required activities are completed to the satisfaction of the Department.

C. Definitions.

  (1) In this section, “discharge” means:

    (a) The addition, introduction, leaking, spilling, or emitting of any pollutant to waters of this State; or

    (b) The placing of a pollutant in a location where the pollutant is likely to pollute.

  (2) In this chapter, “discharge permit” has the following meaning:

    (a) “Discharge permit” means a permit issued by the Department for the discharge of any pollutant or combination of pollutants into the waters of the State; and

    (b) “Discharge permit” includes:

      (i) A State discharge permit issued under Environment Article, §9-323, Annotated Code of Maryland; or

      (ii) A National Pollutant Discharge Elimination System permit issued under the Federal Water Pollution Control Act (33 U.S.C. §§1251 et seq.), its amendments, and all regulations and rules adopted under the Act.

  (3) In this chapter, “permitted discharge” means a discharge conducted under a discharge permit and in compliance with the water pollution control requirements and conditions of COMAR 26.08.01—26.08.04.

#### Regulation .02 Initial Response.

*COMAR 26.10.09.02*

Within 2 hours, or another reasonable time period specified by the Department, of confirming a spill, release, or discharge of a regulated substance in accordance with COMAR 26.10.08.03 or after a spill, release, or discharge of a regulated substance from a storage tank system is identified in any other manner, an owner and an operator of a storage tank system and a responsible party shall perform the following initial response actions:

A. Report the spill, release, or discharge of the regulated substance to the Department in accordance with COMAR 26.10.08.04;

B. Take immediate action to prevent any further spilling, releasing, or discharging of the regulated substance into the environment or secondary containment;

C. Identify and mitigate fire, explosion, and vapor hazards; and

D. Perform any other initial response actions required by the Department.

#### Regulation .03 Initial Abatement Measures and Site Check.

*COMAR 26.10.09.03*

A. Unless directed to do otherwise by the Department, an owner and an operator of a storage tank system and a responsible party shall perform each of the following abatement measures:

  (1) Remove as much of the regulated substance from the storage tank system as is necessary to prevent further spilling, releasing, or discharging of the regulated substance to the environment;

  (2) Visually inspect any aboveground spills, releases, or discharges or exposed belowground spills, releases, or discharges and prevent further migration of the spilled, released, or discharged regulated substance into surrounding soils, surface water, and groundwater;

  (3) Continue to monitor and mitigate any fire and safety hazards posed by vapors or free product that have migrated from a UST excavation zone or a storage tank system site and entered into subsurface structures, such as sewers or basements;

  (4) Remedy hazards posed by contaminated soils that are excavated or exposed as a result of a spill, release, or discharge confirmation, site investigation, abatement, or corrective action activity by:

    (a) Removing contaminated soils from the site within 50 days of excavation for treatment or disposal in compliance with applicable federal, State, and local laws; or

    (b) Treating contaminated soils in accordance with a corrective action plan approved by the Department;

  (5) Unless the location, extent, and source of a spill, release, or discharge were confirmed during a site check conducted in accordance with COMAR 26.10.08.03C or a closure site assessment conducted in accordance with COMAR 26.10.10.03A, perform a site check to determine the location and extent of a spill, release, or discharge by:

    (a) Measuring for the presence of the spill, release, or discharge in the area where contamination is most likely to be present; and

    (b) Selecting sample types, sample locations, and measurement methods for identifying the presence and source of the spill, release, or discharge that consider the:

      (i) Nature of the stored substance;

      (ii) Site soil characteristics;

      (iii) Type of backfill;

      (iv) Depth to groundwater; and

      (v) Other relevant factors for identifying the presence and source of the spill, release, or discharge; and

  (6) Investigate to determine the possible presence of free product and begin free product removal as soon as practicable in accordance with Regulation .05 of this chapter.

B. Within 20 days of confirming a spill, release, or discharge, or within another reasonable time period required by the Department, an owner and an operator of a storage tank system and a responsible party shall submit a report to the Department summarizing the initial abatement steps taken in compliance with §A of this regulation and any resulting information or data.

#### Regulation .04 Initial Site Characterization.

*COMAR 26.10.09.04*

A. Unless directed to do otherwise by the Department, an owner and an operator of a storage tank system and a responsible party shall assemble information about the site and the nature of the spill, release, or discharge that includes:

  (1) Information gained while confirming the spill, release, or discharge and completing the initial abatement measures required in Regulations .02 and .03 of this chapter;

  (2) Data on the nature and estimated quantity of a spill, release, or discharge;

  (3) Data from available sources or site investigations, or both, concerning the following:

    (a) Surrounding populations;

    (b) Water quality;

    (c) A map showing the use and approximate locations of wells potentially affected by the spill, release, or discharge;

    (d) Subsurface soil conditions;

    (e) Locations of subsurface utilities;

    (f) Climatological conditions; and

    (g) Land use at the site and surrounding area;

  (4) The results of the site check performed in compliance with Regulation .03A(5) of this chapter;

  (5) To determine whether free product must be recovered in accordance with Regulation .05 of this chapter, the results of the free product investigation performed in accordance with Regulation .03A(6) of this chapter; and

  (6) Any other information required by the Department.

B. An owner and an operator of a storage tank system and a responsible party shall:

  (1) Prepare a written site characterization report that:

    (a) Includes all of the information required under §A of this regulation regarding the site and the nature of the spill, release, or discharge; and

    (b) Discusses the applicability, reliability, and validity of the information provided; and

  (2) Submit the site characterization report required under §B(1) of this regulation to the Department within:

    (a) 45 days of confirming the spill, release, or discharge; or

    (b) Another reasonable time period required by the Department.

#### Regulation .05 Free Product Removal.

*COMAR 26.10.09.05*

A. At sites where free product is present or an investigation performed in compliance with Regulation .03A(6) of this chapter indicates the presence of free product, an owner and an operator of a storage tank system and a responsible party shall remove free product to the maximum extent practicable as determined by the Department while:

  (1) Continuing, as necessary, to perform any initial corrective action measures initiated under Regulations .02—.04 of this chapter; or

  (2) Preparing to perform the corrective action measures required under Regulations .06 and .07 of this chapter.

B. In meeting the requirements of this regulation, an owner and an operator of a storage tank system and a responsible party shall:

  (1) Before beginning free product removal:

    (a) Provide notification to the Department regarding the proposed free product recovery method to be used; and

    (b) In accordance with the permitting requirements in COMAR 26.08.04, obtain the necessary discharge permit for the proposed free product recovery method;

  (2) Conduct free product removal in a manner that:

    (a) Prevents the spread of contamination from entering previously uncontaminated areas by using recovery and disposal techniques appropriate to the hydrogeologic conditions at the site; and

    (b) Properly treats, disposes, or conducts permitted discharges of recovery byproducts in compliance with applicable federal, State, and local laws;

  (3) Use abatement of free product migration as a minimum initial objective for the design of the free product removal system;

  (4) Handle any flammable products in a safe and competent manner to prevent fires or explosions; and

  (5) Unless directed to do otherwise by the Department, within 45 days after confirming a spill, release, or discharge, prepare and submit to the Department a free product removal report that provides at least the following information:

    (a) The name, address, and phone number of the person or persons responsible for implementing the free product removal measures;

    (b) The estimated quantity, type, and thickness of free product observed or measured in wells, boreholes, and excavations;

    (c) The type of free product recovery system to be used;

    (d) A description of any permitted discharge to take place on-site or off-site during the free product recovery operation including:

      (i) The location of each permitted discharge outfall;

      (ii) The type of treatment applied to the permitted discharge;

      (iii) The effluent quality achieved from the treatment applied to the permitted discharge; and

      (iv) An assessment of compliance with the discharge permit required under §B(1)(b) of this regulation; and

    (e) The disposition of the recovered free product.

#### Regulation .06 Investigations of Soil and Groundwater.

*COMAR 26.10.09.06*

A. In order to determine the full extent and location of soils contaminated by a spill, release, or discharge and the presence and concentrations of dissolved product contamination in the groundwater, an owner and an operator of a storage tank system and a responsible party shall conduct investigations of the spill, release, or discharge, the site, and the surrounding area potentially affected by the spill, release, or discharge if one or more of the following conditions exist:

  (1) There is evidence that groundwater wells have been affected by the spill, release, or discharge;

  (2) Free product is present;

  (3) There is evidence that contaminated soils may contaminate groundwater; or

  (4) The Department requests an investigation.

B. An owner and an operator of a storage tank system and a responsible party shall submit the information collected in compliance with §A of this regulation as soon as practicable, but not later than 90 days after confirming a spill, release, or discharge or in accordance with a schedule established by the Department.

#### Regulation .07 Corrective Action Plan.

*COMAR 26.10.09.07*

A. At any point after reviewing the information submitted in compliance with Regulations .02—.04 of this chapter, the Department may require an owner and an operator of a storage tank system and a responsible party to:

  (1) Submit additional information related to the requirements of this chapter; or

  (2) Develop and submit a corrective action plan for remediating contaminated soil and groundwater, and submit the corrective action plan according to a schedule and in a format established by the Department.

B. After fulfilling the requirements of Regulations .02—.04 of this chapter, an owner and an operator of a storage tank system and a responsible party may choose to submit a corrective action plan for remediating contaminated soil and groundwater.

C. If a corrective action plan is submitted under a scenario described in §A or B of this regulation, an owner and an operator of a storage tank system and a responsible party shall:

  (1) Ensure the corrective action plan provides for the adequate protection of human health and the environment as determined by the Department; and

  (2) Modify a submitted corrective action plan as necessary to maintain adequate protection of human health and the environment as determined by the Department.

D. The Department may approve a corrective action plan submitted by an owner and an operator of a storage tank system and a responsible party only after:

  (1) Ensuring that the implementation of the plan will adequately protect human health, safety, and the environment; and

  (2) Considering the following factors, as appropriate:

    (a) The physical and chemical characteristics of the regulated substance, including its toxicity, persistence, and potential for migration;

    (b) The hydrogeologic characteristics of the site and the surrounding area;

    (c) The proximity, quality, and current and future uses of nearby surface water and groundwater;

    (d) The potential effects of residual contamination at the conclusion of the planned corrective action on nearby surface water and groundwater;

    (e) An exposure assessment; and

    (f) Any information assembled in compliance with this chapter.

E. Upon approval of a corrective action plan or as directed by the Department, an owner and an operator of a storage tank system and a responsible party shall:

  (1) Implement the plan, including modifications to the plan made by the Department; and

  (2) Monitor, evaluate, and report the results of implementing the plan in accordance with a schedule and in a format established by the Department.

F. In the interest of minimizing environmental contamination and promoting more effective remediation, an owner and an operator of a storage tank system and a responsible party may begin remediation of soil and groundwater before the corrective action plan is approved, if the owner and the operator of the storage tank system and the responsible party:

  (1) Notifies the Department of its intention to begin remediation;

  (2) Complies with any conditions imposed by the Department, including halting remediation or mitigating adverse consequences from remediation activities; and

  (3) Incorporates these self-initiated remediation measures into the corrective action plan that is submitted to the Department for approval.

G. In accordance with Regulation .01B of this chapter, an owner and an operator of a storage tank system and a responsible party shall continue remediation activities until removal of the spilled, released, or discharged regulated substance is accomplished to the satisfaction of the Department.

#### Regulation .08 Public Participation.

*COMAR 26.10.09.08*

A. Notice to Affected Public. For each confirmed spill, release, or discharge that requires a corrective action plan, the Department, in cooperation with an owner and an operator of a storage tank system and a responsible party, shall provide notice:

  (1) To those members of the public directly affected by the spill, release, or discharge and the planned corrective action, as determined by the Department; and

  (2) In a manner designed to reach the affected public that may include, but is not limited to:

    (a) Publication in local newspapers;

    (b) Block advertisements;

    (c) Public service announcements;

    (d) Publication in the Maryland Register;

    (e) Letters to individual property owners; or

    (f) Personal contact by the Department.

B. Before approving a corrective action plan, the Department may hold a public meeting to consider comments on the proposed corrective action plan or for any other reason.

C. If the Department considers terminating the remedial work under a corrective action plan before achievement of any goals set forth in the plan, the Department shall notify the affected public in the manner set forth in §A of this regulation.

D. As required by the Public Information Act, the Department shall ensure that information regarding the site of a spill, release, or discharge and decisions concerning a corrective action plan are made available to the public for inspection upon request.

### Chapter 10 — Out-of-Service UST Systems and Closure

**Authority:** Environment Article, §§4-402, 4-405, 4-407, 4-408, 4-410, 4-411, 4-411.1, 4-417, and 7-201 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: February 4, 1991 (18:2 Md. R. 151)

**Administrative History:** Chapter revised effective November 4, 1996 (23:22 Md. R. 1498)

**Administrative History:** Regulation .01D amended effective June 29, 1998 (25:13 Md. R. 997)

**Administrative History:** Regulation .02F amended effective June 29, 1998 (25:13 Md. R. 997)

**Administrative History:** Regulations .01—.05 repealed and new Regulations .01—.05 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Temporary Closure.

*COMAR 26.10.10.01*

A. When a UST system is temporarily closed, an owner and an operator of a UST system shall:

  (1) If a metal UST system, continue operation and maintenance of corrosion protection in accordance with COMAR 26.10.04.02;

  (2) Except as provided in §B(3) of this regulation, maintain a method of release detection in accordance with COMAR 26.10.05 and, if the UST system has a field-constructed tank or is an airport hydrant system, COMAR 26.10.12;

  (3) If a spill, release, or discharge is suspected or confirmed, comply with the reporting, investigation, and corrective action requirements in COMAR 26.10.08 and 26.10.09;

  (4) In accordance with COMAR 26.10.03.09, amend the registration for the UST system not later than 30 days following the temporary closure of the UST system; and

  (5) If a motor fuel, bulk oil storage, used oil, or hazardous substance UST system, perform the UST system inspections required in COMAR 26.10.03.10.

B. When a UST system is temporarily closed and the storage tank system is emptied by having all materials removed using commonly employed practices so that not more than 1 inch of residue or 0.3 percent by weight of the total capacity of the UST remain in the UST system, an owner and an operator of a UST system is not required to perform:

  (1) Operation and maintenance testing and inspections of spill and overfill prevention equipment, as required by COMAR 26.10.03.03;

  (2) Periodic operation and maintenance walkthrough inspections, as required by COMAR 26.10.04.03; and

  (3) Operation and maintenance testing and inspections of release detection equipment, as required by COMAR 26.10.05.

C. When a UST system is temporarily closed for 3 months or more, an owner and an operator of a UST system shall:

  (1) Leave the vent line open and functioning; and

  (2) Cap and secure all other lines, pumps, manways, and ancillary equipment.

D. When a UST system does not meet the performance standards for new UST systems in COMAR 26.10.03.01 or the upgrading requirements in COMAR 26.10.03.08, except for the requirements of COMAR 26.10.03.08F, and the UST system has been temporarily closed for more than 6 months, an owner and an operator of a UST system shall:

  (1) Permanently close the UST system in accordance with Regulations .02—.05 of this chapter; or

  (2) If the Department grants an extension, permanently close the UST system within the time period established by the Department and in accordance with Regulations .02—.05 of this chapter.

E. When a UST system meets the performance standards for new UST systems in COMAR 26.10.03.01 or the upgrading requirements in COMAR 26.10.03.08, and the UST system has been temporarily closed for more than 1 year, an owner and an operator of a UST system shall:

  (1) Permanently close the UST system in accordance with Regulations .02—.05 of this chapter; or

  (2) If the Department grants an extension, permanently close the UST system within the time period established by the Department and in accordance with Regulations .02—.05 of this chapter.

F. An owner and an operator of a temporarily closed UST system required to permanently close the UST system under §D or E of this regulation may apply to the Department for an extension to the required time period for completing the permanent closure by:

  (1) Completing a site assessment in accordance with the procedures in Regulation .03 of this chapter; and

  (2) Submitting a written site assessment report to the Department that includes, at a minimum, the following information:

    (a) The location of the UST system on the property;

    (b) The date the site assessment was performed;

    (c) A summary of any field test and the laboratory analytical results;

    (d) The name of the contractors who performed the work; and

    (e) All analytical data and laboratory reports.

#### Regulation .02 Permanent Closure and Changes-in-Service.

*COMAR 26.10.10.02*

A. An owner and an operator of a UST system, an underground farm tank, an underground residential tank, and an underground residential heating oil tank shall have a permanent closure or change-in-service of a storage tank system performed by or under the supervision of a certified UST system technician or remover.

B. An owner, an operator, and a person in charge of a UST system shall conduct a permanent closure or change-in-service of a storage tank system in accordance with the following documents:

  (1) API Recommended Practice 1604 “Closure of Underground Petroleum Storage Tanks”; and

  (2) PEI/RP 1700 “Recommended Practices for the Closure of Underground Storage Tank and Shop-Fabricated Aboveground Storage Tank Systems”.

C. Notification.

  (1) Unless a permanent closure or change-in-service of a UST system is performed in response to a corrective action, an owner, an operator, and a person in charge of a UST system shall notify the Department of a planned permanent closure or change-in-service of the UST system by submitting a notification:

    (a) In writing on a form provided by the Department; and

    (b) At least 30 days before beginning the permanent closure or change-in-service, or within another reasonable time period determined by the Department.

  (2) An owner and an operator of a UST system shall confirm a planned permanent closure of a UST system with the Department 48 hours in advance of beginning the permanent closure.

  (3) An owner and an operator of a UST system shall perform an assessment of the excavation zone, as required under Regulation .03 of this chapter:

    (a) After notifying the Department of a planned permanent closure or change-in-service of the UST system; and

    (b) Before completion of the permanent closure or change-in-service of the UST system.

  (4) In accordance with COMAR 26.10.03.09, an owner, an operator, and a person in charge of a UST system that was permanently closed or underwent a change-in-service shall amend the registration for the UST system after the permanent closure or change-in-service of the UST system is complete.

D. Permanent Closure.

  (1) When a UST system is permanently taken out-of-service, an owner and an operator of a UST system shall permanently close the UST system by:

    (a) Removing the UST system from the ground; or

    (b) If approved by the Department, abandoning the UST system in place.

  (2) Unless otherwise directed by the Department, an owner, an operator, and a person in charge of a UST system requesting to abandon the UST system in place shall provide the Department with a report signed by a professional engineer that confirms the permanent closure of the UST system by removal would have an adverse effect on a building foundation or other important structures or utilities within the immediate vicinity of the excavation zone.

  (3) To permanently close a UST system by removal or abandonment in place, an owner, an operator, and a person in charge of a UST system shall take the following actions:

    (a) Immediately before closing the UST system, empty and clean the UST and piping by removing all flammable, combustible, and other liquids and accumulated sludge from the UST system;

    (b) Unless otherwise directed by the Department, disconnect and remove all emptied lines;

    (c) Remove all aboveground portions of vent lines and cap the remaining lines at their bases; and

    (d) Remove all regulated substances, sludge, and soil contaminated with a regulated substance found during the UST system closure for treatment or disposal in compliance with applicable federal, State, and local laws.

  (4) If a UST system is permanently closed by removal, an owner, an operator, and a person in charge of a UST system shall take the following actions:

    (a) Purge all explosive vapors from the UST prior to removal from the excavation zone;

    (b) Monitor the UST with an appropriate meter for vapors before and during removal of the UST from the excavation zone;

    (c) Once the UST system has been removed from the excavation zone:

      (i) Retest the UST for flammable vapors and, if necessary, purge all remaining explosive vapors; and

      (ii) Make holes or openings in the UST to render it unfit for further use;

    (d) If the operation poses a threat to public safety, do not crush or cut up the UST on-site;

    (e) Dispose of the UST system materials at a location acceptable to the Department; and

    (f) Fill the former UST system excavation zone to grade with an appropriate fill material.

  (5) If a UST system is permanently closed by abandonment in place, an owner, an operator, and a person in charge of a UST system shall take the following actions:

    (a) Do not fill the UST through a fill or vent pipe;

    (b) Provide proper openings by excavation, or other means, on the UST to facilitate cleaning and filling the UST;

    (c) Completely fill the UST with a solid, inert, and flowable material so there are no voids in the UST;

    (d) Dispose of any removed UST system materials at a location acceptable to the Department; and

    (e) Fill any excavated areas to grade with an appropriate fill material.

E. Change-in-Service. When an owner and an operator of a UST system chooses to store a nonregulated substance in a UST system, the owner and the operator of the UST system shall:

  (1) Notify the Department of the planned change-in-service of the UST system in accordance with §C(1) of this regulation;

  (2) Before completing the change-in-service, perform a site assessment in accordance with Regulation .03 of this chapter; and

  (3) To conduct the change-in-service, empty and clean the UST and piping by removing all flammable, combustible, and other liquids and accumulated sludge from the UST system.

#### Regulation .03 Assessing the Site at Closure or Change-in-Service.

*COMAR 26.10.10.03*

A. Before applying for an extension for temporary closure or completing a permanent closure or change-in-service of a UST system, an owner and an operator of a UST system shall:

  (1) Perform a site assessment to determine if there is evidence of a spill, release, or discharge where contamination would most likely be present; and

  (2) In selecting sample types, sample locations, and measurement methods consider:

    (a) The method of closure;

    (b) The nature of the stored regulated substance;

    (c) The type of backfill;

    (d) The depth to groundwater; and

    (e) Other factors appropriate for identifying the presence of a spill, release, or discharge.

B. If contaminated soil, contaminated groundwater, free product, or vapor is discovered while performing the actions under §A of this regulation or by any other manner during a UST system closure or change-in-service activities, an owner, an operator, and a person in charge of a UST system shall:

  (1) Notify the Department within 2 hours of the discovery, as required in COMAR 26.10.08; and

  (2) Begin performing the response and corrective actions required in COMAR 26.10.09.

#### Regulation .04 Applicability to Previously Closed UST Systems.

*COMAR 26.10.10.04*

When directed by the Department, an owner and an operator of a UST system that was permanently closed before December 22, 1988 shall assess the excavation zone and close the UST system in accordance with this chapter if a spill, release, or discharge from the UST system may, in the judgment of the Department, pose a current or potential threat to human health and the environment.

#### Regulation .05 Closure Records.

*COMAR 26.10.10.05*

A. An owner and an operator of a UST system shall maintain records in accordance with COMAR 26.10.04.05 that demonstrate compliance with closure requirements under this chapter.

B. The owner and the operator of a UST system that took the UST system out-of-service or the current owner and operator of a property where the UST system was taken out-of-service shall:

  (1) Maintain the closure report required in §C of this regulation and the results of the site assessment required in Regulation .03 of this chapter for at least 5 years after completion of a permanent closure or change-in-service; and

  (2) Maintain the records specified in §B(1) of this regulation by:

    (a) Storing the records at the property; or

    (b) If the records cannot be stored at the property, submitting the records to the Department.

C. UST System Closure Report. An owner and an operator of a UST system that underwent a permanent closure or change-in-service shall submit to the Department a written UST system closure report:

  (1) Signed by the certified UST system technician or remover that performed the permanent closure or change-in-service;

  (2) Within 45 days of completing the UST system closure or change-in-service; and

  (3) That includes records documenting:

    (a) The permanent closure or change-in-service of the UST system was conducted in accordance with Regulation .02 of this chapter;

    (b) The site assessment was performed in accordance with Regulation .03 of this chapter; and

    (c) At a minimum, all of the following information:

      (i) The UST size;

      (ii) The location of the UST system on the property;

      (iii) The date of the UST system closure or change-in-service;

      (iv) The method used for the UST system closure or change-in-service;

      (v) A summary of the work performed;

      (vi) A summary of any field test and the laboratory analytical results;

      (vii) The name and certification number of the certified UST system technician or remover, and name of the contractors who performed the work;

      (viii) If permanently closed by removal, a receipt documenting proper disposal of the UST system;

      (ix) A receipt documenting proper treatment or disposal of excavated oil-contaminated soils;

      (x) All analytical data and laboratory reports; and

      (xi) Photographs of each UST system taken out-of-service and each excavation zone.

D. An owner and an operator of an underground farm tank, an underground residential tank, and an underground residential heating oil tank that does not meet the definition of a UST shall submit a written storage tank closure report in accordance with the requirements in §C of this regulation if:

  (1) A spill, release, or discharge occurred at the property that required the owner and the operator of the underground storage tank to notify the Department in compliance with COMAR 26.10.08 and 26.10.09; or

  (2) The Department directs the owner and the operator of the underground storage tank to submit a storage tank closure report.

### Chapter 11 — UST Financial Responsibility

**Authority:** Environment Article, §§4-401, 4-402, 4-405, 4-407—4-411.2, and 4-415.1, 4-417, 4-701 et seq., and 7-201 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: February 4, 1991 (18:2 Md. R. 151)

**Administrative History:** Regulation .01 amended effective March 14, 1994 (21:5 Md. R. 405)

**Administrative History:** Regulation .01B amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .02 adopted effective March 14, 1994 (21:5 Md. R. 405)

**Administrative History:** Regulations .01—.02 repealed and new Regulations .01—.04 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 General.

*COMAR 26.10.11.01*

A. Owners of UST systems described in 40 CFR §280.90, including local governments that own UST systems, shall demonstrate financial responsibility for one or more USTs in accordance with the requirements of this chapter and 40 CFR §§280.90—280.116.

B. The requirements for the “owner or operator” or “owners or operators” of a UST system contained in 40 CFR §§280.90—280.116 are to be assumed solely by the “owner” of a UST system.

#### Regulation .02 Incorporation by Reference.

*COMAR 26.10.11.02*

A. As qualified by §§B and C of this regulation, 40 CFR §§280.90—280.116 (October 13, 2015) is incorporated by reference.

B. For the purposes of this chapter, a person shall make the following substitutions:

  (1) Wherever the words “Director”, “Director of the Implementing Agency”, “EPA Regional Administrator”, or “Director of the EPA” appear, substitute “Secretary of the Environment”; and

  (2) Wherever the words “a state implementing agency” or “implementing agency” appear, substitute “the Maryland Department of the Environment”, “the Department”, or “MDE”.

C. For the purposes of this chapter, a person shall interpret the following cross-references contained in 40 CFR §§280.90—280.116 as follows:

  (1) Interpret a cross-reference to 40 CFR Part 280, Subpart E as COMAR 26.10.08;

  (2) Interpret a cross-reference to 40 CFR Part 280, Subpart F as COMAR 26.10.09; and

  (3) Interpret a cross-reference to 40 CFR Part 280, Subpart G as COMAR 26.10.10.

#### Regulation .03 Additional Mechanism for Local Governments to Demonstrate Financial Responsibility.

*COMAR 26.10.11.03*

A. In addition to the mechanisms for demonstrating financial responsibility listed in 40 CFR §§280.95—280.107, a local government may use the mechanism described in §§B—D of this regulation to demonstrate financial responsibility for one or more USTs.

B. A local government may obtain environmental liability coverage from an insurance pool that:

  (1) Is established under Insurance Article, §§19-602 and 19-603, Annotated Code of Maryland;

  (2) The Secretary of the Environment has determined to be financially sound and at least as equivalent to one or more of the financial assurance mechanisms provided in 40 CFR §§280.95—280.107; and

  (3) On an annual basis, provides any information to the Department considered necessary to assess whether the insurance pool remains financially sound.

C. When determining the financial soundness of an insurance pool, the Secretary of the Environment may consider the certainty of the availability of the insurance pool funds to cover the potential liability of participating local governments to take corrective action or to compensate third parties for bodily injury and property damage, or both, caused by an accidental spill, release, or discharge arising from the operation of petroleum USTs, as set forth in 40 CFR §280.93.

D. A local government using an insurance pool approved under this chapter to demonstrate financial responsibility for one or more USTs shall:

  (1) Obtain a separate endorsement, certificate, or similar document worded in accordance with the forms set forth in 40 CFR §280.97(b); and

  (2) Comply with all applicable provisions of 40 CFR §§280.90—280.116, including those imposing requirements for reporting and recordkeeping.

#### Regulation .04 Reporting Requirements.

*COMAR 26.10.11.04*

A. An owner of a UST system shall provide evidence of financial responsibility for one or more USTs to the Department as follows:

  (1) Submit evidence of financial responsibility in an electronic format determined by the Department according to the following schedule:

    (a) Annually, but not later than 90 days following the initiation of coverage under a financial mechanism or the anniversary date of existing coverage under a financial mechanism; and

    (b) Upon the request of the Department; and

  (2) Submit as evidence of financial responsibility any applicable forms listed in 40 CFR §280.111(b) or any other information relevant to compliance with the provisions of this chapter.

B. Unless otherwise directed by the Department, an owner of a UST system shall:

  (1) Comply with all of the applicable notification provisions of 40 CFR §§280.90—280.116, including any accompanying reporting and recordkeeping requirements; and

  (2) Provide notification to the Department that demonstrates that the financial assurance mechanism is valid.

C. In accordance with the UST system registration requirements in COMAR 26.10.03.09, an owner of a UST system shall:

  (1) Certify compliance with the financial responsibility requirements of this chapter when registering a newly installed or acquired UST system; and

  (2) Amend the registration for a registered UST system if:

    (a) The owner of the UST system is released from the requirement to maintain financial responsibility for the UST system, as provided under 40 CFR §280.113; or

    (b) The owner of the UST system obtains an alternate mechanism of financial responsibility, if required under 40 CFR §280.114.

D. In addition to the requirements in §§A and B of this regulation, an owner of a UST system that uses an insurance policy or risk retention group coverage to demonstrate financial responsibility for one or more USTs shall provide to the Department on an annual basis:

  (1) An endorsement or certificate of insurance;

  (2) Any amendments to the insurance policy or risk retention group coverage, including amendments for additional insured; and

  (3) A UST schedule that includes, at a minimum, the following information:

    (a) The Department issued regulated substance storage facility identification number;

    (b) The registered UST system owner’s name and address as insured;

    (c) The installation date of the UST system;

    (d) The UST system capacity in gallons;

    (e) A statement that the UST construction is single-walled or double-walled; and

    (f) The type of regulated substance stored in the UST system.

### Chapter 12 — UST Systems with Field-Constructed Tanks and Airport Hydrant Fuel Distribution Systems

**Authority:** Environment Article, §§4-401, 4-402, 4-405, 4-407—4-411.2, 4-415.1, 4-417, 4-701 et seq., and 7-201 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: February 15, 1993 (20:3 Md. R. 259)

**Administrative History:** Regulation .01 amended effective February 18, 2002 (29:3 Md. R. 224)

**Administrative History:** Regulation .04F amended effective December 6, 1993 (20:24 Md. R. 1865); July 15, 1996 (23:14 Md. R. 1011)

**Administrative History:** Regulation .04G amended effective July 15, 1996 (23:14 Md. R. 1011)

**Administrative History:** Regulation .05C, D amended effective December 6, 1993 (20:24 Md. R. 1865)

**Administrative History:** Regulation .06D amended effective July 15, 1996 (23:14 Md. R. 1011)

**Administrative History:** Regulation .07B amended effective July 15, 1996 (23:14 Md. R. 1011)

**Administrative History:** Regulation .08A, B amended effective December 6, 1993 (20:24 Md. R. 1865)

**Administrative History:** Regulations .01—.15 repealed and new Regulations .01—.07 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 General Requirements.

*COMAR 26.10.12.01*

A. Implementation of Requirements. Except as otherwise provided in Regulations .02—.05 of this chapter, an owner, an operator, and a person in charge of a UST system with a field-constructed tank or an airport hydrant system shall comply with requirements of this chapter, COMAR 26.10.02—26.10.11 and 26.10.16 in accordance with the following schedule:

  (1) For a UST system installed after June 13, 2022, upon installation of the UST system; and

  (2) For a UST system installed on or before June 13, 2022:

    (a) Comply with the following requirements not later than October 13, 2022:

      (i) Upgrade requirements in Regulation .03 of this chapter;

      (ii) Spill and overfill control requirements in COMAR 26.10.04.01;

      (iii) Operation and maintenance of corrosion protection requirements in COMAR 26.10.04.02;

      (iv) Compatibility requirements in COMAR 26.10.03.07;

      (v) Requirements regarding repairs allowed on UST systems in COMAR 26.10.04.04;

      (vi) Reporting and recordkeeping requirements in Regulation .07 of this chapter and COMAR 26.10.04.05;

      (vii) Spill and overfill prevention equipment and testing requirements in COMAR 26.10.03.03;

      (viii) Periodic operation and maintenance walkthrough inspections requirements in Regulation .04 of this chapter and COMAR 26.10.04.03;

      (ix) Release detection requirements in Regulation .05 of this chapter and COMAR 26.10.05; and

      (x) Operator training requirements in COMAR 26.10.16; and

    (b) Comply with the following requirements on and after June 13, 2022:

      (i) Requirements for reporting, investigating, and confirming a spill, release, or discharge in COMAR 26.10.08;

      (ii) Spill, release, and discharge response and corrective action requirements in COMAR 26.10.09;

      (iii) Closure and change-in-service of a UST system requirements in COMAR 26.10.10;

      (iv) Except as provided in §B of this regulation, UST system registration requirements in COMAR 26.10.03.09; and

      (v) Except as provided in §C of this regulation, financial responsibility requirements in COMAR 26.10.11.

B. Not later than October 13, 2022, an owner, an operator, and a person in charge of a UST system with a field-constructed tank or an airport hydrant system installed before June 13, 2022 shall register the UST system and maintain up-to-date registration of the UST system with the Department in accordance with COMAR 26.10.03.09.

C. An owner of a UST system with a field-constructed tank or an airport hydrant system in use as of June 13, 2022 shall demonstrate financial responsibility for the UST system at the time of submitting a registration form for the UST system, as required in §B of this regulation.

D. In compliance with COMAR 26.10.02.03D, an owner, an operator, and a person in charge of a UST system with a field-constructed tank or an airport hydrant system shall ensure:

  (1) The installation, upgrade, and repair of the UST system is performed by or under the supervision of a certified UST system technician;

  (2) The closure or change-in-service of the UST system is performed by or under the supervision of a certified UST system technician or remover; and

  (3) Inspections required under COMAR 26.10.03.10 are performed by or under the supervision of a certified UST system inspector.

#### Regulation .02 Exception to Piping Secondary Containment Requirements.

*COMAR 26.10.12.02*

A. An owner and an operator of a UST system with a field-constructed tank greater than 50,000 gallons or an airport hydrant system may use single-walled piping when installing or replacing piping associated with the UST system.

B. An owner and an operator of a UST system with a field-constructed tank less than or equal to 50,000 gallons that is not part of an airport hydrant system shall meet the piping performance standards and secondary containment requirements of COMAR 26.10.03.02 when installing or replacing piping.

#### Regulation .03 Upgrade Requirements.

*COMAR 26.10.12.03*

A. Not later than October 13, 2022, an owner and an operator of a UST system with a field-constructed tank or an airport hydrant system installed on or before June 13, 2022 shall comply with the upgrade requirements of this section.

  (1) Corrosion Protection. The owner and the operator of the UST system shall ensure the UST system components in contact with the ground:

    (a) Except as provided in Regulation .02 of this chapter, meet the new and replacement UST system performance standards for USTs in COMAR 26.10.03.01 and piping in COMAR 26.10.03.02; or

    (b) Are constructed of metal and cathodically protected according to a NACE code of practice incorporated by reference under COMAR 26.10.01.03 and meet the following cathodic protection conditions:

      (i) The cathodic protection meets the requirements of COMAR 26.10.03.01B(1)(b) and (3) for USTs and COMAR 26.10.03.02B(1)(b) and (2) for piping; and

      (ii) A UST greater than 10 years old without cathodic protection is assessed to ensure the UST is structurally sound and free of corrosion holes prior to adding cathodic protection through an internal inspection or another method determined by the Department.

  (2) Spill and Overfill Prevention Equipment. To prevent a spill, release, or discharge or an overfill associated with product transfer to a UST system, the owner and the operator of the UST system shall ensure the UST system meets the new UST system spill and overfill prevention equipment requirements specified in COMAR 26.10.03.03.

B. An owner and an operator of a UST system with a field-constructed tank or an airport hydrant system not in compliance with §A of this regulation shall:

  (1) Immediately place the UST system in temporary closure in accordance with COMAR 26.10.10.01; and

  (2) Permanently close the UST system in accordance with COMAR 26.10.10.02—.05 not later than April 13, 2023, or another time period established by the Department.

#### Regulation .04 Walkthrough Inspections.

*COMAR 26.10.12.04*

A. In addition to the operation and maintenance walkthrough inspection requirements in COMAR 26.10.04.03, an owner and an operator of an airport hydrant system shall inspect the following additional areas of the airport hydrant system:

  (1) Inspect hydrant pits by:

    (a) Visually checking for any damage;

    (b) Removing any liquid or debris; and

    (c) Checking for evidence of a spill, release or discharge; and

  (2) Inspect hydrant piping vaults and sumps by checking for evidence of a spill, release or discharge from hydrant piping.

B. An owner and an operator of an airport hydrant system shall inspect the additional areas required in §A of this regulation:

  (1) Monthly if confined space entry according to the Occupational Safety and Health Administration is not required; or

  (2) At least annually if confined space entry according to the Occupational Safety and Health Administration is required.

C. An owner and an operator of an airport hydrant system shall maintain records of the additional areas inspected in accordance with COMAR 26.10.04.03.

#### Regulation .05 Release Detection.

*COMAR 26.10.12.05*

A. Not later than October 13, 2022, an owner and an operator of a UST system with a field-constructed tank or an airport hydrant system shall provide a method of release detection in accordance with the requirements of this regulation.

B. Field-Constructed Tanks.

  (1) An owner and an operator of a UST system with a field-constructed tank with a capacity less than or equal to 50,000 gallons shall meet the UST system release detection requirements in COMAR 26.10.05.

  (2) An owner and an operator of a UST system with a field-constructed tank with a capacity greater than 50,000 gallons shall comply with the following release detection requirements:

    (a) If a metered UST system, perform monthly inventory control in accordance with COMAR 26.10.05.04 or an equivalent procedure that can detect a leak less than or equal to 0.5 percent of the monthly flow-through; and

    (b) Perform release detection in accordance with COMAR 26.10.05 or by using at least one of the following alternative methods of release detection:

      (i) Conduct an annual tank tightness test that can detect a 0.5 gallon per hour (gph) leak rate;

      (ii) Use an automatic tank gauging system to perform monthly release detection that can detect a leak rate of less than or equal to 1.0 gph, and conduct a tank tightness test that can detect a 0.2 gph leak rate at least every 3 years;

      (iii) Use an automatic tank gauging system to perform monthly release detection that can detect a leak rate of less than or equal to 2.0 gph, and conduct a tank tightness test that can detect a 0.2 gph leak rate at least every 2 years;

      (iv) Perform vapor monitoring in accordance with §C(2)(b) of this regulation;

      (v) Perform monthly inventory control in accordance with COMAR 26.10.05.04 or an equivalent procedure that can detect a leak less than or equal to 0.5 percent of the monthly flow-through, and in conjunction perform either a tank tightness test that can detect a 0.5 gph leak rate at least every 2 years or groundwater monitoring as a monthly method of release detection in accordance with COMAR 26.10.05.05F; or

      (vi) Perform another method of release detection approved by the Department if the owner and an operator of the UST system can demonstrate that the method can detect a spill, release, or discharge as effectively as any of the methods allowed under §B(2)(b)(i)—(v) of this regulation.

C. Piping. An owner and an operator of a UST system with a field-constructed tank that has a capacity greater than 50,000 gallons or an airport hydrant system shall comply with the release detection requirements of this section if underground piping is associated with the field-constructed tank or the airport hydrant system.

  (1) If the UST system is metered, the owner and the operator of the UST system shall perform monthly inventory control in accordance with COMAR 26.10.05.04 or an equivalent procedure that can detect a leak less than or equal to 0.5 percent of the monthly flow-through.

  (2) The owner and the operator of the UST system shall perform a method of release detection provided in COMAR 26.10.05 or at least one of the alternative methods of release detection specified in paragraphs(a)—(d) of this subsection.

    (a) Line Tightness Test.

      (i) Perform a semiannual or annual line tightness test at or above the piping operating pressure in accordance with Table 1.

      (ii) If a piping segment with a volume of greater than or equal to 100,000 gallons is not capable of meeting the maximum 3.0 gph leak rate for a semiannual test, perform a line tightness test using a leak rate up to 6.0 gph in accordance with the schedule established in Table 2.

    Agency Note: The leak detection rate for a test section volume may not exceed the maximum leak detection rate identified for the corresponding semiannual test or annual test.

    (b) Vapor Monitoring. Perform vapor monitoring for a tracer compound placed in the UST system that is capable of detecting a 0.1 gph leak rate at least every 2 years according to the following criteria:

      (i) Test for the tracer compound within the soil gas of the excavation zone;

      (ii) Use materials as backfill that are sufficiently porous, such as gravel, sand or crushed rock, to readily allow diffusion of tracer compound vapors released from the UST system into the excavation zone;

      (iii) Place a tracer compound in the UST system that is sufficiently volatile to result in a vapor level that is detectable by the monitoring devices located in the excavation zone in the event the tracer compound vapors are released from the UST system;

      (iv) Use a method to detect tracer compound vapors that is not rendered inoperative by groundwater, rainfall, or soil moisture or other known interferences so that a release could go undetected for more than 30 days;

      (v) Ensure that the level of background contamination in the excavation zone will not interfere with the method used to detect the tracer compound if released from the UST system;

      (vi) Use a method to detect tracer compound vapors in the excavation zone that is designed and operated to detect any significant increase in the concentration of the tracer compound vapor above background;

      (vii) In the excavation zone, assess the site to ensure compliance with the requirements §C(2)(b)(ii)—(v) of this regulation and to establish the number and positioning of testing locations that will detect tracer compound vapors released within the excavation zone from any portion of the UST system; and

      (viii) Clearly mark and secure the testing locations to avoid unauthorized access and tampering.

    (c) Inventory Control. Perform monthly inventory control in accordance with COMAR 26.10.05.04 or an equivalent procedure that can detect a leak less than or equal to 0.5 percent of the flow-through and perform one of the following methods of release detection:

      (i) Perform a line tightness test at least every 2 years in accordance with Table 1 of §C(2)(a)(i) of the regulation using the leak rates for the semiannual test; or

      (ii) Perform groundwater monitoring as a method of monthly release detection in accordance with COMAR 26.10.05.05F.

    (d) An owner and an operator of a UST system with a field-constructed tank or an airport hydrant system may use another release detection method approved by the Department if the owner and an operator of the UST system can demonstrate that the method can detect a spill, release, or discharge as effectively as any of the methods allowed §C(2)(a)—(c) of this regulation.

D. When comparing alternative methods of release detection for approval, as provided in §§B(2)(b)(vi) and C(2)(d) of this regulation, the Department shall consider the size of release that the method can detect and the frequency and reliability of detection.

E. Recordkeeping for Release Detection. An owner and an operator of a UST system with a field-constructed tank or an airport hydrant system shall maintain release detection records in accordance with COMAR 26.10.05.06.

F. Notifications.

  (1) When a release detection method operated in accordance with this regulation indicates that a spill, release, or discharge may have occurred, an owner and an operator of a UST system with a field-constructed tank or an airport hydrant system shall notify the Department in accordance with COMAR 26.10.08.01.

  (2) If an owner, an operator, and a person in charge of a UST system with a field-constructed tank or an airport hydrant system changes the method of release detection used, the owner, the operator, and the person in charge of the UST system shall provide the Department written notification within 30 days of the change.

#### Regulation .06 Applicability of Closure Requirements to Previously Closed UST Systems.

*COMAR 26.10.12.06*

When directed by the Department, an owner and an operator of a UST system with a field-constructed tank or an airport hydrant system that was permanently closed before June 13, 2022 shall assess the excavation zone and permanently close the UST system in accordance with COMAR 26.10.10 if a spill, release, or discharge from the UST system may, in the judgment of the Department, pose a current or potential threat to human health and the environment.

#### Regulation .07 Access, Reporting, and Recordkeeping.

*COMAR 26.10.12.07*

A. An owner, an operator, and a person in charge of a UST system with a field-constructed tank or an airport hydrant system shall comply with the access, reporting, and recordkeeping requirements in COMAR 26.10.04.05.

B. An owner and an operator of an airport hydrant system shall comply with the recordkeeping requirements for the additional areas to be inspected during walkthrough inspections in accordance with Regulation .04C of this chapter and COMAR 26.10.04.03 and 26.10.04.05.

C. An owner and an operator of a UST system with a field-constructed tank or an airport hydrant system shall comply with the recordkeeping requirements for release detection in accordance with Regulation .05E of this chapter and COMAR 26.10.04.05 and 26.10.05.06.

### Chapter 13 — Oil-Contaminated Soil

**Authority:** Environment Article, §§4-401, 4-402, 4-405, 4-407—4-411, and 4-415—4-418, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.15 adopted as an emergency provision effective January 18, 1993 (20:3 Md. R. 256); adopted permanently effective July 18, 1993 (20:13 Md. R. 1050)

**Administrative History:** Regulation .03D amended effective February 18, 2002 (29:3 Md. R. 224)

**Administrative History:** Regulation .04A amended effective February 18, 2002 (29:3 Md. R. 224)

**Administrative History:** Regulations .01—.15 repealed and new Regulations .01—.16 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Scope.

*COMAR 26.10.13.01*

A. This chapter applies to an owner, an operator, and a person in charge of an oil-contaminated soil (OCS) facility.

B. This chapter is not intended to and does not relieve an owner, an operator, and a person in charge of an OCS facility of the duty to comply with all other applicable requirements of COMAR 26.10.

C. This chapter does not affect the Department’s authority to direct a corrective action conducted in response to an oil spill, release, or discharge in accordance with the requirements of COMAR 26.10.01 and 26.10.08—26.10.10.

#### Regulation .02 Definitions.

*COMAR 26.10.13.02*

A. In this chapter:

  (1) A term defined in §B of this regulation has the meaning indicated; and

  (2) A term not defined in §B of this regulation has the meaning given to it in:

    (a) A relevant statute;

    (b) COMAR 26.10.01 or 26.10.02; or

    (c) If not defined in a statute or COMAR 26.10.01 or 26.10.02, the meaning attributed by common use.

B. Terms Defined.

  (1) “Controlled hazardous substance (CHS)” means a hazardous waste as defined in COMAR 26.13.02, except as provided in COMAR 26.13.02.06.

  (2) “Mobile treatment OCS facility” means equipment that is:

    (a) Capable of being moved from place to place;

    (b) Capable of treating OCS after it is excavated; and

    (c) Used on-site.

  (3) OCS.

    (a) “OCS” means excavated soil that has been in contact with oil.

    (b) “OCS” does not include post-treatment soil.

  (4) OCS Facility.

    (a) “OCS facility” means a facility that receives OCS for treatment and storage.

    (b) “OCS facility” includes a mobile treatment OCS facility.

  (5) OCS Treatment Approval.

    (a) “OCS treatment approval” means written permission from the Department that grants an applicant approval to conduct a pilot project to treat OCS.

    (b) “OCS treatment approval” does not include an Individual Oil Operations Permit issued by the Department to an owner, an operator, and a person in charge of an OCS facility.

  (6) “On-site” means the immediate location where the OCS was generated.

  (7) “Pilot project” means an experimental OCS treatment project conducted by an owner, an operator, and a person in charge of an OCS facility under the terms and conditions of an OCS treatment approval.

  (8) “Post-treatment soil” means treated OCS that meets one of the criteria established in Regulation .10 of this chapter.

  (9) “Shelter” means a freestanding structure that includes a roof or an equivalent protective cover and prevents the infiltration of rainwater.

  (10) “TCLP” means the toxicity characteristic leaching procedure, as defined in USEPA Test Method 1311.

  (11) “TPH” means total petroleum hydrocarbons.

  (12) “Treatment” means any activity or process at an OCS facility that decreases or stabilizes, or is intended to decrease or stabilize, the level of oil contaminants in OCS.

#### Regulation .03 Permits, Approvals, and Prohibitions.

*COMAR 26.10.13.03*

A. A person shall only store OCS at an OCS facility covered under an Individual Oil Operations Permit.

B. An owner, an operator, and a person in charge of an OCS facility may not accept OCS for storage or treatment without first obtaining an Individual Oil Operations Permit in accordance with Regulations .04 and .05 of this chapter and COMAR 26.10.01.09 and .11.

C. Before beginning a pilot project to treat OCS, a person shall obtain an OCS treatment approval from the Department in accordance with Regulation .16 of this chapter.

#### Regulation .04 Permit Application Requirements.

*COMAR 26.10.13.04*

A. An owner, an operator, and a person in charge of an OCS facility shall obtain an Individual Oil Operations Permit in accordance with the requirements of this regulation and COMAR 26.10.01.09 and .11.

B. A person applying for an Individual Oil Operations Permit to operate an OCS facility shall include on forms provided by the Department all of the following information:

  (1) A general description of the proposed OCS facility, including a description of the treatment process, anticipated production volume, and OCS acceptance procedures;

  (2) The name, physical address, and mailing address of the owner of the proposed OCS facility;

  (3) If different than the owner specified in §B(2) of this regulation, the name, physical address, and mailing address of the owner of the property on which the OCS facility will be located;

  (4) The size of property on which the OCS facility will be located;

  (5) The name, physical address, and mailing address of each adjoining property owner; and

  (6) One copy of each of the following documents:

    (a) A map that delineates the property and the surrounding ¼ mile area, identifying:

      (i) The location of all potable wells, wetlands, floodplains, special flood hazard areas, and intermittent and other surface waters; and

      (ii) Each property owner identified in §B(5) of this regulation;

    (b) A to-scale diagram of the OCS facility that depicts the:

      (i) Treatment and storage areas for OCS and post-treatment soil;

      (ii) Storm drains and stormwater retention ponds located at the facility;

      (iii) Roads located within the property boundaries of the OCS facility; and

      (iv) Existing and proposed structures;

    (c) A description of the following features and utilities at the facility:

      (i) Vehicle weighing facilities;

      (ii) Both wired and wireless communications equipment, including telephones and radios;

      (iii) Maintenance facilities;

      (iv) Equipment storage facilities;

      (v) The location of the OCS facility site supply well, if one is present; and

      (vi) The location of the sewerage system;

    (d) A description of the proposed soil types and sources of OCS to be accepted and rejected by the OCS facility;

    (e) A description of how the OCS facility will control dust, petroleum vapors, and odors;

    (f) A description of the manner in which OCS and post-treatment soil will be stored at the facility to prevent the contamination of waters of the State while maintaining compliance with the storage requirements of Regulation .07 of this chapter;

    (g) The name, physical address, and mailing address of the laboratory to be used to test OCS and post-treatment soil samples, and a description of the sampling and analytical protocols to be used for testing OCS and post-treatment soil;

    (h) The maximum and anticipated average quantity of:

      (i) OCS to be accepted or stored at the OCS facility at any one time; and

      (ii) Post-treatment soil to be stored at the OCS facility at any one time;

    (i) The proposed method of controlling unauthorized access to the OCS facility;

    (j) The proposed operating procedures, including:

      (i) Hours and days of operation;

      (ii) The type and number of pieces of equipment to be used;

      (iii) The number of employees and description of individual employee duties;

      (iv) The provisions for fire prevention and control;

      (v) The provisions for wet weather operations;

      (vi) The methods for controlling stormwater run-off from the OCS facility and stormwater run-on onto the OCS facility from adjoining areas; and

      (vii) The erosion and sediment control provisions approved by the appropriate approving authority;

    (k) An operations manual that includes:

      (i) Standard operating procedures for the OCS facility;

      (ii) OCS acceptance procedures;

      (iii) Sample collection, storage, and analytical procedures;

      (iv) The names and duties of key personnel;

      (v) Facility maintenance procedures; and

      (vi) A quality assurance/quality control plan to ensure OCS is properly treated and post-treatment soil meets the requirements of Regulation .10 of this chapter;

    (l) Except for an application for a mobile treatment OCS facility, a closure plan for the proposed OCS facility that includes, at a minimum:

      (i) The location and installation details of monitoring wells that will allow for the determination of groundwater flow and that are placed in areas that are most likely to detect a spill, release, or discharge from the OCS facility;

      (ii) Procedures for the removal of all OCS from the OCS facility;

      (iii) Procedures for the removal of post-treatment soil from the OCS facility; and

      (iv) Procedures, schedules, and methods for monitoring the waters of the State at the OCS facility for five years after the closure of the facility;

    (m) For an application for a mobile treatment OCS facility, a closure plan for the proposed mobile treatment OCS facility that includes, at a minimum:

      (i) Procedures for the removal of all OCS not treated by the mobile treatment OCS facility on-site, and

      (ii) Procedures for the removal of post-treatment soil stored on-site; and

    (n) Written consent from the owner of the property on which the proposed OCS facility is to be located, as identified in §B(3) of this regulation, stating the proposed OCS facility may be located and operated on the property.

C. Upon review of an application completed in accordance with this regulation, the Department shall:

  (1) Notify the applicant in writing that the application is not complete and additional information is required to determine whether the proposed OCS facility is consistent with all applicable requirements of this chapter, COMAR 26.10, and other State laws and regulations;

  (2) Issue an Individual Oil Operations Permit to the applicant in accordance with COMAR 26.10.01.11G and H; or

  (3) Deny the application for an Individual Oil Operations Permit in accordance with COMAR 26.10.01.12.

D. Renewal of an Individual Oil Operations Permit.

  (1) An owner, an operator, and a person in charge of an OCS facility shall:

    (a) Except as provided in §D(1)(b) of this regulation, apply to renew an Individual Oil Operations Permit in accordance with §§A and B of this regulation and COMAR 26.10.01.11; and

    (b) Submit an application for renewal at least 90 days before the expiration of an Individual Oil Operations Permit.

  (2) Unless otherwise directed by the Department, an owner, an operator, and a person in charge of an OCS facility is not required to hold an informational meeting in accordance with Regulation .05 of this chapter when renewing an Individual Oil Operations Permit.

#### Regulation .05 Informational Meeting.

*COMAR 26.10.13.05*

A. Informational Meeting Requirement.

  (1) An owner, an operator, and a person in charge of a proposed OCS facility applying for an Individual Oil Operations Permit shall hold an informational meeting.

  (2) The Department may require an owner, an operator, and a person in charge of the OCS facility to hold an informational meeting before:

    (a) Renewing an Individual Oil Operations Permit;

    (b) Reinstating a suspended or revoked Individual Oil Operations Permit; and

    (c) Modifying an Individual Oil Operations Permit.

B. A person responsible for holding an informational meeting shall:

  (1) Secure an approved meeting venue located in the political subdivision and in close proximity to the OCS facility; and

  (2) At least 15 days but not more than 30 days before the date of the meeting, publish a notice advertising the informational meeting:

    (a) At least once a week for two consecutive weeks in a daily or weekly newspaper of general circulation in the geographical area in which the OCS facility is or will be located; and

    (b) That includes the following information:

      (i) The name and address of the owner of the OCS facility;

      (ii) A description of where the OCS facility would be located;

      (iii) The nature of the proposed activity to be performed under the Individual Oil Operations Permit;

      (iv) A reference to the applicable statutes or regulations governing the application process;

      (v) The time and place of the meeting or a description of where this information can be found;

      (vi) A description of where further information about the Individual Oil Operations Permit application or the revoked or suspended Individual Oil Operations Permit can be found; and

      (vii) Any other information that the Department determines is necessary.

C. The Department may consolidate an informational meeting provided in accordance with this regulation with other informational meetings for the OCS facility.

#### Regulation .06 Permit and Operational Requirements.

*COMAR 26.10.13.06*

A. The Department shall specify the following requirements in an Individual Oil Operations Permit for an OCS facility other than a mobile OCS treatment facility:

  (1) The maximum quantities of OCS and post-treatment soil to be stored at the OCS facility at any given time;

  (2) The methods used to store OCS and post-treatment soil;

  (3) The methods of stormwater run-on and run-off control;

  (4) The sampling and testing requirements for accepted OCS;

  (5) The testing requirements for post-treatment soil;

  (6) The recordkeeping requirements for the following records at the OCS facility:

    (a) OCS acceptance documents;

    (b) OCS and post-treatment soil testing records;

    (c) OCS and post-treatment soil laboratory analyses; and

    (d) Documentation for OCS deliveries made to the OCS facility, including refused OCS deliveries, showing:

      (i) The generator’s name and physical and mailing addresses;

      (ii) The OCS source; and

      (iii) The transporter’s name and physical and mailing addresses;

  (7) A closure plan prepared in accordance with Regulation .04B of this chapter;

  (8) A schedule for testing the quality of waters of the State at the OCS facility; and

  (9) A description of the field and laboratory analytical methods that will be used to monitor the quality of waters of the State at the OCS facility, including the location and types of monitoring stations and monitoring well construction method.

B. The Department shall specify the following requirements in an Individual Oil Operations Permit for a mobile treatment OCS facility:

  (1) The requirements listed in §A(3)—(6);

  (2) The method used for staging OCS on-site; and

  (3) Closure plan requirements, including procedures for:

    (a) The removal of OCS not treated by the mobile treatment OCS facility on-site; and

    (b) The removal of post-treatment soil generated on-site.

C. An owner, an operator, and a person in charge of an OCS facility shall comply with the following operational requirements:

  (1) Maintain an up to date operations manual at the OCS facility and make the operations manual available to all OCS facility personnel;

  (2) Train all OCS facility personnel in facility operations, standard operating procedures, and contingency plans;

  (3) Restrict unloading and loading of OCS to approved facility operational hours;

  (4) Maintain adequate personnel and equipment at the OCS facility at all times to ensure proper operation and prompt response to problems associated with loading, unloading, and storage of OCS;

  (5) Keep and make available to the Department upon request all of the records required under this chapter for:

    (a) The duration of an active Individual Oil Operations Permit; and

    (b) An additional five years after the permit has expired or been closed by the Department;

  (6) In accordance with the reporting requirements of COMAR 26.10.01.05, notify the Department of an operational malfunction at the OCS facility that results in a spill, release, or discharge within 2 hours of the operational malfunction;

  (7) At the direction of the Department during the operational life of the facility, sample monitoring wells and analyze the quality of waters of the State at the OCS facility; and

  (8) Submit an annual written report by January 30 of each year to the Department that provides the following information for the preceding calendar year:

    (a) The quantity of OCS received,

    (b) The origin of OCS received, and

    (c) The quantity of OCS treated and converted into post-treatment soil at an OCS facility.

D. In addition to the permit conditions specified in §§A and B of this regulation, the Department may include additional special conditions in an Individual Oil Operations Permit if the Department determines the special conditions are necessary to protect public health or the environment.

#### Regulation .07 Storage Requirements.

*COMAR 26.10.13.07*

A. Unless otherwise approved by the Department as a condition of a new, renewal, or modified Individual Oil Operations Permit, an owner, an operator, and a person in charge of an OCS facility shall store OCS:

  (1) On an impermeable base that has a permeability of 10-7 centimeters/second or less;

  (2) Under a shelter; and

  (3) At a volume that does not exceed a 90-day treatment capacity.

B. An owner, an operator, and a person in charge of an OCS facility may not accept or store OCS that does not meet the requirements of Regulation .08 of this chapter.

#### Regulation .08 Acceptance Requirements.

*COMAR 26.10.13.08*

A. An owner, an operator, and a person in charge of an OCS facility:

  (1) May accept OCS that:

    (a) Contains virgin oil; or

    (b) If the origin of the OCS is unknown, has undergone the laboratory analysis required under §D of this regulation; and

  (2) May not accept OCS that:

    (a) Contains free phase oil product, oil sludge, oil refuse, or oil mixed with other waste that has been mixed with soil;

    (b) Is regulated as a CHS under COMAR 26.13; or

    (c) Does not meet the conditions of an Individual Oil Operations Permit.

B. Except as otherwise provided in §C of this regulation, an owner, an operator, and a person in charge of an OCS facility shall obtain the following documentation prior to accepting OCS at the OCS facility:

  (1) An analytical laboratory report that shows the results of analysis for TPH conducted in accordance with:

    (a) USEPA Test Method 8015; or

    (b) Another method determined by the Department as appropriate for the type of oil that was spilled, released, or discharged; and

  (2) One of the following forms that attest to the origin of the OCS and states that a representative of the Department or another authorized person has reason to believe, based upon evidence presented to the person on-site, that the OCS complies with §A of this regulation:

    (a) A Tank Closure Form or Oil Contaminated Soil Removal Form provided and completed by an authorized representative of the Department;

    (b) Another form similar to a form listed in §B(2)(a) of this regulation provided and completed by an authorized representative of:

      (i) A State or local enforcement agency, such as a local fire department, police agency, or an emergency response unit owned by the enforcement agency or hired by the enforcement agency to conduct a removal of an oil spill, release or discharge; or

      (ii) If the OCS originates from out of state, an enforcement agency of another state enforcing an oil regulatory program;

    (c) If the OCS is related to the closure of a UST system, underground farm tank, underground residential tank, or underground residential heating oil tank performed in accordance with COMAR 26.10.10, a form provided by the owner, the operator, and the person in charge the OCS facility that was completed by the OCS generator that includes the following information:

      (i) The OCS facility name and physical address;

      (ii) The printed name and signature of the OCS facility representative;

      (iii) The printed name, signature, and certification number of the certified UST system technician or remover;

      (iv) The UST owner’s name and physical and mailing addresses;

      (v) The Department assigned case number for the UST closure;

      (vi) The reason for removing the OCS; and

      (vii) A signed statement that the OCS is the result of a spill, release, or discharge of virgin oil and not used oil, oil refuse, or oil mixed with waste; or

    (d) If the OCS is related to a commercial transportation spill, release, or discharge and one of the documents described in §B(2)(a)—(c) of this regulation cannot be provided, an affidavit completed by the owner or knowledgeable representative of the responsible party confirming that the OCS complies with §A of this regulation.

C. If the documentation described under §B of this regulation cannot be provided or the OCS was contaminated by a substance other than virgin oil, an owner, an operator, and a person in charge of an OCS facility shall obtain an analytical laboratory report provided by the generator with the results of an analysis conducted in accordance with §D of this regulation prior to accepting OCS at the OSC facility.

D. An owner, an operator, and a person in charge of an OCS facility accepting OCS of an unknown origin shall ensure the OCS undergoes an analytical laboratory analysis as follows:

  (1) An evaluation for the following oil constituents:

    (a) TPH, in accordance with the procedures of USEPA Test Method 8015 or another method determined by the Department as appropriate for the type of oil that was spilled, released, or discharged; and

    (b) Polychlorinated biphenyls, in accordance with the procedures of USEPA Test Method 8082A or another method approved by the Department; and

  (2) A complete TCLP analysis is conducted in accordance with USEPA Test Method 1311, except that:

    (a) The TCLP analysis may be limited to metals only if the generator of the OCS has certified that:

      (i) If the OCS was generated within the State, the OCS is excluded under COMAR 26.13.02.04A(12); or

      (ii) If the OCS was generated outside the State, the OCS is excluded under 40 CFR §261.4(b)(10) or an equivalent requirement of that state; or

    (b) Pesticides or herbicides may be omitted from the TCLP analysis if the generator of the OCS certifies that pesticides or herbicides are not reasonably expected to be present.

E. An owner, an operator, and a person in charge of an OCS Facility may be found in violation of Environment Article, §7-224, Annotated Code of Maryland if:

  (1) Any person, including the Department, determines through subsequent analytical analyses or a review of records that OCS accepted, stored, or treated at the OCS facility is a CHS; and

  (2) The OCS facility does not operate under a valid CHS Facility Permit issued by the Department under COMAR 26.13.07.

F. An owner, an operator, and a person in charge of an OCS facility shall maintain all records, documents, and analytical laboratory reports required under §§B—D this regulation for:

  (1) The duration of an active Individual Oil Operations Permit; and

  (2) An additional five years after an Individual Oil Operations Permit has expired or been closed by the Department.

#### Regulation .09 Refusal Criteria.

*COMAR 26.10.13.09*

A. An owner, an operator, and a person in charge of an OCS facility shall refuse to accept OCS that does not meet the acceptance requirements of Regulation .08 of this chapter.

B. Upon determination that an OCS facility accepted OCS that does not meet the requirements of Regulation .08 of this chapter, an owner, an operator, and a person in charge of the OCS facility shall:

  (1) Isolate and remove the unacceptable OCS from the OCS facility within 48 hours; and

  (2) Ensure the OCS removed from the OCS facility is disposed of in compliance with applicable federal, State, and local laws and regulations.

C. For each instance of OCS refused in accordance with §§A and B of this regulation, an owner, an operator, and a person in charge of an OCS facility shall provide notification of the refusal to the Department as follows:

  (1) Provide notification by telephone within 24 hours and written notification within five days of the refusal; and

  (2) Include the following information in the notifications:

    (a) The source location and generator of the OCS; and

    (b) The transporter who delivered or attempted to deliver the OCS.

#### Regulation .10 Post-Treatment Requirements.

*COMAR 26.10.13.10*

A. An owner, an operator, and a person in charge of an OCS facility shall treat OCS using a process that generates post-treatment soil meeting one of the following criteria:

  (1) The post-treatment soil has a TPH concentration of 10 mg/kg or less, as measured by USEPA Test Method 8015;

  (2) Remaining oil in the post-treatment soil is determined to be physically and chemically bound with TPH-diesel range organics concentration of less than 0.5 mg/L, determined by:

    (a) Preparing a leachate sample from the post-treatment soil in accordance with USEPA Test Method 1311; and

    (b) Analyzing the leachate sample for TPH-diesel range organics using USEPA Test Method 8015; or

  (3) Post-treatment soil that meets an alternative criterion established by the Department.

B. If treated OCS does not meet one of the criteria established in §A of this regulation, an owner, an operator, and a person in charge of an OCS facility shall:

  (1) Continue the treatment process for the partially treated OCS until one of the criteria established in §A of this regulation is met; or

  (2) Except as otherwise provided in §C of this regulation, dispose of the partially treated OCS in compliance with applicable federal, State, and local laws and regulations.

C. The Department may approve a request to remove partially treated OCS from an OCS facility for use if the Department determines that the proposed use will not adversely affect public health, safety, or welfare or the environment.

#### Regulation .11 Quality Control, Sample Collection, and Analysis.

*COMAR 26.10.13.11*

A. An owner, an operator, and a person in charge of an OCS facility shall maintain a quality control program approved by the Department that establishes an adequate tracking mechanism and verification for OCS received by the facility.

B. For each truckload of OCS received by an OCS facility, an owner, an operator, and a person in charge of the OCS facility shall:

  (1) Collect a grab sample from the incoming truckload of OCS and combine not more than three grab samples to form one composite sample;

  (2) Identify each composite sample by source, date received, and transporter; and

  (3) Unless otherwise directed by the Department, properly maintain each composite sample at the OCS facility for a minimum of 90 days.

C. At least every two weeks, an owner, an operator, and a person in charge of an OCS facility shall have a third-party testing laboratory approved by the Department analyze the composite samples collected in accordance with §B of this regulation as follows:

  (1) The testing laboratory shall randomly select one composite sample and perform:

    (a) An analysis for polychlorinated biphenyls in accordance with USEPA Test Method 8082A or another method approved by the Department; and

    (b) Unless the generator of the OCS certified the OCS is excluded under 40 CFR §261.4(b)(10) and a TCLP analysis limited to metals was performed, a complete TCLP analysis in accordance with USEPA Test Method 1311 or another method approved by the Department; and

  (2) The testing laboratory shall submit the results of the analyses conducted pursuant to §C(1) of this regulation directly to the Department.

D. The Department may excuse an owner, an operator, and a person in charge of an OCS facility from the requirements under §C of this regulation if the owner, the operator, and the person in charge sends a letter to the Department certifying that no OCS was accepted during the relevant 2-week period.

#### Regulation .12 Use of Post-Treatment Soils.

*COMAR 26.10.13.12*

A. The Department may specify in an Individual Oil Operations Permit restrictions on the use of post-treatment soil.

B. An owner, an operator, and a person in charge of an OCS facility shall be responsible for determining the federal, State, and local laws and regulations that apply to the use of post-treatment soil.

#### Regulation .13 Closure Requirements.

*COMAR 26.10.13.13*

A. Closure Plan Modifications. Subject to the approval of the Department, an owner, an operator, and a person in charge of an OCS facility shall modify a closure plan if:

  (1) The operational history of the OCS facility or changes in conditions, such as changes to land use conditions at the site, substantially affect the closure plan in effect;

  (2) Before or after closure activities have commenced, unanticipated events necessitate a revision to the closure plan; or

  (3) The Department determines a modification of the closure plan is necessary.

B. Initiation of Closure. An owner, an operator, and a person in charge of an OCS facility shall initiate the closure of the OCS facility within 90 days of one of the following occurrences:

  (1) An owner, an operator, and a person in charge of an OCS facility determines the OCS facility will no longer be operational;

  (2) The OCS facility has suspended OCS treatment activities for greater than six continuous months; or

  (3) A condition for closure specified in the Individual Oil Operations Permit occurs.

C. Closure Procedures. An owner, an operator, and a person in charge of an OCS facility shall close the OCS facility in accordance with the closure plan approved by the Department and meet the following requirements:

  (1) Remove all OCS from the OCS facility that has not undergone treatment;

  (2) Unless otherwise allowed in the Individual Oil Operations Permit, remove all post-treatment soil from the OCS facility;

  (3) In accordance with a testing schedule and field and laboratory analytical methods specified by the Department under Regulation .06A of this chapter, monitor the quality of the waters of the State for at least 5 years after completing closure; and

  (4) Following the conclusion of the 5-year period for monitoring waters of the State, properly abandon any monitoring wells in accordance with COMAR 26.04.04.

D. Closure of an Individual Oil Operations Permit.

  (1) If an Individual Oil Operations Permit only authorizes the operation of an OCS facility, an owner, an operator, and a person in charge of a closed OCS facility may request the Department close the Individual Oil Operations Permit.

  (2) Upon the request of an owner, an operator, and a person in charge of an OCS facility, the Department shall close an Individual Oil Operations Permit if the Department determines the closure of the OCS facility was satisfactorily completed in accordance with the closure plan, the Individual Oil Operation Permit, this chapter, and, if applicable, COMAR 26.10.09.

#### Regulation .14 Right of Entry.

*COMAR 26.10.13.14*

An owner, an operator, and a person in charge of an OCS facility shall allow, as a prerequisite to the issuance of an Individual Oil Operations Permit, the Department to access the OCS facility and all records related to the operation of the OCS facility in accordance with, and for any of the purposes stated in, COMAR 26.10.01.19.

#### Regulation .15 Denial, Suspension, Revocation, and Modification of an Individual Oil Operations Permit.

*COMAR 26.10.13.15*

A. Denial, Suspension, or Revocation. The Department may deny an application for an Individual Oil Operations Permit or suspend or revoke an Individual Oil Operations Permit in accordance with COMAR 26.10.01.12B.

B. Modification.

  (1) The Department may modify an Individual Oil Operations Permit in accordance with COMAR 26.10.01.12B.

  (2) If an owner, an operator, and a person in charge of an OCS facility requests to modify an Individual Oil Operations Permit, the owner, the operator, and the person in charge shall submit a request for the modification to the Department in accordance with COMAR 26.10.01.12B.

  (3) If the Department determines a proposed modification to an Individual Oil Operations Permit is substantial in nature, an owner, an operator, and a person in charge of an OCS facility shall hold an informational meeting in accordance with Regulation .05 of this chapter.

#### Regulation .16 Oil-Contaminated Soil Treatment Pilot Project.

*COMAR 26.10.13.16*

A. The Department may issue an OCS treatment approval to a person to conduct a pilot project that may deviate from one or more requirements in Regulations .07—.11 of this chapter, if the pilot project will:

  (1) Accept, store, and treat OCS in a manner as protective to the public health, safety, and wellness and the environment as the requirements established in Regulations .07—.11 of this chapter; and

  (2) Comply with all other applicable federal, State, and local government laws and regulations.

B. The Department shall establish the application process and conditions of an OCS treatment approval.

C. A person seeking to conduct a pilot project shall:

  (1) First, obtain an Individual Oil Operations Permit in accordance with Regulation .04 of this chapter; and

  (2) Second, obtain OCS treatment approval from the Department.

D. An OCS treatment approval is valid for the length of time specified by the Department in the OCS treatment approval, but may not exceed one year.

### Chapter 14 — Residential Heating Oil Tank System Site Rehabilitation Reimbursement Program

**Authority:** Environment Article, §§4-401, 4-402, 4-405, 4-407—4-411.2, 4-415, 4-415.1, and 4-701 et seq., Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.11 adopted as an emergency provision effective November 18, 1993 (20:25 Md. R. 1937); adopted permanently effective May 19, 1994 (21:9 Md. R. 753)

**Administrative History:** Chapter revised effective February 24, 1997 (24:4 Md. R. 295)

**Administrative History:** Chapter revised effective July 23, 2001 (28:14 Md. R. 1324)

**Administrative History:** Regulation .02D amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .03B amended effective April 19, 2010 (37:8 Md. R. 621)

**Administrative History:** Regulation .04C amended effective January 16, 2006 (33:1 Md. R. 40)

**Administrative History:** Regulation .05E amended effective January 16, 2006 (33:1 Md. R. 40)

**Administrative History:** Regulation .05F adopted effective January 16, 2006 (33:1 Md. R. 40)

**Administrative History:** Regulation .05F amended effective January 12, 2009 (36:1 Md. R. 25)

**Administrative History:** Regulation .06 amended effective January 16, 2006 (33:1 Md. R. 40)

**Administrative History:** Regulation .07 amended effective January 16, 2006 (33:1 Md. R. 40)

**Administrative History:** Regulation .09C amended effective January 16, 2006 (33:1 Md. R. 40)

**Administrative History:** Regulation .10A amended effective January 16, 2006 (33:1 Md. R. 40)

**Administrative History:** Regulations .01—.11 repealed and new Regulations .01—.10 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Scope.

*COMAR 26.10.14.01*

A. This chapter provides the mechanisms for reimbursing a residential owner of a residential heating oil tank system for certain site rehabilitation costs, as authorized under Environment Article, §4-704(b)(1)(iii), Annotated Code of Maryland.

B. This chapter may not be construed:

  (1) As altering the rights, responsibilities, or liabilities of a person responsible for the discharge; or

  (2) As entitling a residential owner to reimbursement of site rehabilitation costs.

#### Regulation .02 Exclusions.

*COMAR 26.10.14.02*

This chapter does not provide reimbursements for:

A. Site rehabilitation costs for residential heating oil tank systems incurred before October 1, 2000;

B. Site rehabilitation costs that result from a spill, release, or discharge of oil originating from a source other than a residential heating oil tank system;

C. Costs resulting from:

  (1) Residential heating oil tank system closures in place, upgrades, or replacements; or

  (2) Retrofitting of a residential heating oil tank or associated piping;

D. Except as otherwise provided in Regulation .05 of this chapter, costs resulting from a residential heating oil tank system removal;

E. A third-party claim; or

F. Site rehabilitation costs that have been paid or are payable under an insurance policy.

#### Regulation .03 Definitions.

*COMAR 26.10.14.03*

A. In this chapter:

  (1) The terms in §B of this regulation have the meanings indicated; and

  (2) A term not defined in §B of this regulation has the meaning given to it in the relevant statutes and in COMAR 26.10.01.02 or, if not defined there, the meaning in the ordinary dictionary definition of the term.

B. Terms Defined.

  (1) “Approved application” means an application that has been submitted by a qualified residential owner in accordance with Regulation .06 of this chapter and has been approved by the Department for a reimbursement allocation.

  (2) “Department” means the Maryland Department of the Environment.

  (3) “Fund” means the Oil Contaminated Site Environmental Cleanup Fund.

  (4) “Occurrence” means the existence of contamination resulting from a spill, release, or discharge of oil from one or more residential heating oil tank systems at a site.

  (5) “Oil” has the meaning stated in COMAR 26.10.01.02B.

  (6) “Reimbursement allocation” means an amount of money from the Fund set aside for an approved application to reimburse a residential owner for site rehabilitation costs incurred, or to be incurred, during the remediation of the site approved on the application as allowed under this chapter.

  (7) “Residential heating oil tank” means an aboveground or underground heating oil tank that meets the criteria under Environment Article, §4-401(e), Annotated Code of Maryland that is used to store heating oil for use as a fuel in heating a single-family residential property.

  (8) “Residential heating oil tank system” means a residential heating oil tank and all associated piping, including, but not limited to, fill, vent, dispensing, and return line pipes.

  (9) “SDAT” means the State Department of Assessments and Taxation.

  (10) “Site” means a single-family residential property where a person owns one or more residential heating oil tank systems that is the source of a spill, release, or discharge of oil, including any soil, groundwater, or surface water at the single-family residential property or a neighboring property affected by the spill, release, or discharge of oil.

  (11) Site Rehabilitation.

    (a) “Site rehabilitation” means cleanup actions taken in response to a spill, release, or discharge of oil from a residential heating oil tank system.

    (b) “Site rehabilitation” includes investigation, evaluation, planning, design, engineering, construction, or other services undertaken and expenses incurred to investigate or clean up affected soils, groundwater, or surface water.

  (12) “Supervisor” has the meaning stated in Tax-Property Article, §1-101(mm), Annotated Code of Maryland.

  (13) “Value” has the meaning stated in Tax-Property Article, §1-101(qq), Annotated Code of Maryland, as determined by the most recent SDAT assessment in accordance with Tax-Property Article, §§8-101—8-104, Annotated Code of Maryland.

#### Regulation .04 Reimbursement Process.

*COMAR 26.10.14.04*

A. A residential owner of a residential heating oil tank system seeking reimbursement from the Fund shall apply to the Department in accordance with the application requirements in Regulation .06 of this chapter.

B. The Department may reimburse a residential owner with an approved application to the extent there are available revenues in the Fund and in accordance with the reimbursement limitations and deducible requirement in Regulation .08 of this chapter.

C. The Secretary of the Environment or a designee shall:

  (1) Make all final decisions regarding reimbursement matters; and

  (2) Adjust reimbursement allocations if substantial need is demonstrated.

#### Regulation .05 Site Rehabilitation Costs.

*COMAR 26.10.14.05*

A. Eligible Site Rehabilitation Costs. The Department may reimburse a residential owner of a residential heating oil tank system for eligible site rehabilitation costs incurred in performing the following activities if the Department determines they are cost effective, reasonable, and consistent with an application received on or after July 1, 2005:

  (1) Soil treatment, including:

    (a) Excavation, transportation, and proper disposal of oil-contaminated soil; or

    (b) On-site treatment, such as soil vapor extraction;

  (2) Procurement and installation of groundwater remediation equipment, including soil vapor extraction equipment;

  (3) Subsurface investigation, well bailing, recovery system design, operation, monitoring, or a combination of these activities;

  (4) Private supply well replacement;

  (5) Odor abatement activities, such as forced venting and oil saturated material removal and proper disposal, replacement, or restoration to a degree as determined by the Department to return a residence to a habitable condition;

  (6) Closure of a heating oil tank by removal, if the Department determines removal of the heating oil tank is necessary to accomplish soil treatment as described in §A(1)(a) of this regulation; and

  (7) Other site rehabilitation activities performed by a residential owner under the direction and approval of the Department to remediate a spill, release, or discharge of oil from a residential heating oil tank system.

B. Ineligible Costs. The Department may not reimburse a residential owner of a residential heating oil tank system for costs incurred in performing the following activities:

  (1) Closure in place of an underground residential heating oil tank;

  (2) Installation of a new or replacement residential heating oil tank;

  (3) Third-party contractor mobilization or demobilization of equipment, materials, and personnel at a site;

  (4) Preparation of a complete application, including preparing or obtaining support documentation; and

  (5) Performance of activities that are not related to remediation of oil-contaminated soil, groundwater, or surface water at a site so as to mitigate threats to public health, safety, and welfare or the environment, as determined by the Department.

#### Regulation .06 Application Requirements.

*COMAR 26.10.14.06*

A. A residential owner of a residential heating oil tank system may apply to the Department for reimbursement from the Fund:

  (1) Until the date established by Environment Article, §4-705(b), Annotated Code of Maryland;

  (2) Not later than 6 months after the completion of site rehabilitation;

  (3) Only for eligible site rehabilitation costs listed in Regulation .05 of this chapter that were incurred on or after October 1, 2000;

  (4) Once for the entire period of ownership of the single-family residential property where the residential heating oil tank system is located; and

  (5) Once per State fiscal year if the residential heating oil tank system is not located at the primary residence of the residential owner.

B. A residential owner applying for reimbursement from the Fund shall submit to the Department:

  (1) A complete and accurate application on a form supplied by the Department;

  (2) A current W-9 Identification Number and Certification Form from the federal Department of the Treasury, Internal Revenue Service;

  (3) On a form supplied by the Department, a description of the incurred site rehabilitation costs eligible for reimbursement under Regulation .05 of this chapter, including copies of actual invoices and other proofs of payment for site rehabilitation costs; and

  (4) If submitting an application on or after July 1, 2022, a copy of:

    (a) The online SDAT property database’s search results page for the site; or

    (b) The most recent property tax assessment notice mailed to the residential owner of the site by the Supervisor in accordance with Tax-Property Article, §8-401, Annotated Code of Maryland.

C. A residential owner may submit to the Department additional eligible site rehabilitation costs with the supporting documentation required under §B(3) of this regulation:

  (1) Following the approval of the application by the Department; and

  (2) Not later than 6 months after the completion of site rehabilitation.

D. To be eligible for reimbursement from the Fund, a residential owner shall:

  (1) Certify to the Department that the spill, release, or discharge of oil resulted from a residential heating oil tank system;

  (2) Submit to the Department for its approval:

    (a) A corrective action plan;

    (b) An implementation schedule;

    (c) A cost estimate; and

    (d) An estimated completion date;

  (3) Certify to the Department that the spill, release, or discharge of oil is not the result of a willful or deliberate act;

  (4) As determined by the Department, be in substantial compliance with the applicable requirements under Environment Article, §4-420, Annotated Code of Maryland, COMAR 26.10, and all Maryland laws and regulations applicable to residential heating oil tank systems; and

  (5) Certify to the Department that the site rehabilitation costs submitted for reimbursement are:

    (a) True and eligible for reimbursement under Regulation .05 of this chapter;

    (b) Necessary to complete site rehabilitation; and

    (c) Not excluded under Regulation .02 of this chapter.

E. The filing of an application for reimbursement does not relieve the residential owner or any other person from the requirement to take prompt site rehabilitation action as required by law or regulation.

F. If an applicant knowingly submits a false certification of satisfying the eligibility requirements under §D of this regulation, the residential owner is not eligible for reimbursement.

#### Regulation .07 Application Approval.

*COMAR 26.10.14.07*

A. Application Numerical Ranking.

  (1) The Department shall assign each application a numerical rank based on the date the complete application was received by the Department, so that the earliest complete application receives the highest rank.

  (2) Subject to the availability of revenues within the Fund, the Department shall approve reimbursement allocations for approved applications in order of their numerical ranking.

B. A residential owner may submit to the Department, and the Department shall approve not more than one application per State fiscal year for separate single-family residential properties owned by the same person or persons.

C. If the Department determines that an application is ineligible under this chapter:

  (1) The Department shall provide written notification to the residential owner that the application was denied; and

  (2) The residential owner may submit an application for another site for consideration within that State fiscal year.

#### Regulation .08 Reimbursement Limits and Deductibles.

*COMAR 26.10.14.08*

A. A reimbursement of eligible site rehabilitation costs paid from the Fund for an approved application received by the Department on or after July 1, 2005:

  (1) May not exceed a total of $20,000 per occurrence; and

  (2) Is subject to a deductible of $500 per occurrence.

B. If an approved application was received by the Department on or after July 1, 2022, a reimbursement allocation is limited as follows:

  (1) If the value of the residential property is less than or equal to $300,000, the reimbursement allocation is:

    (a) 100 percent of the eligible site rehabilitation costs; and

    (b) Up to a total of $20,000, less the $500 deducible;

  (2) If the value of the residential property is greater than $300,000 and less than or equal to $600,000, the reimbursement allocation is:

    (a) 50 percent of the eligible site rehabilitation costs; and

    (b) Up to a total of $10,000, less the $500 deductible; or

  (3) If the value of the residential property is greater than $600,000, the reimbursement allocation is:

    (a) 25 percent of eligible site rehabilitation costs; and

    (b) Up to a total of $5,000, less the $500 deductible.

#### Regulation .09 Reimbursement Allocations and Payments.

*COMAR 26.10.14.09*

A. Reimbursement Allocation.

  (1) The Department shall make a reimbursement allocation in accordance with:

    (a) A complete application received and approved by the Department;

    (b) The numerical ranking assigned to an approved application in accordance with Regulation .07A of this chapter;

    (c) The reimbursement limit and deductible requirements established in Regulation .08 of this chapter; and

    (d) The availability of revenues within the Fund.

  (2) Upon the approval of a complete application, the Department shall reserve a reimbursement allocation within the Fund in accordance with §A of this regulation to pay for a reimbursement of site rehabilitation costs that are otherwise eligible under this chapter.

B. Payment of an Approved Reimbursement.

  (1) Subject to §B(2) and (3) of this regulation, the Department may issue a reimbursement payment to a residential owner for eligible site rehabilitation costs from allocated funds.

  (2) In order to issue a reimbursement payment from allocated funds, the Department may request that a residential owner provide a recent W-9 Identification Number and Certification Form from the federal Department of the Treasury, Internal Revenue Service.

  (3) The Department reserves the right to deny a reimbursement payment in whole or in part if the Department determines that:

    (a) A residential owner is disregarding or has disregarded the oil pollution control and abatement requirements under Environment Article, §4-401 et seq., Annotated Code of Maryland;

    (b) The reimbursement has been or is being used, or site rehabilitation work has been or is being conducted, in a manner inconsistent with the goals of the site rehabilitation;

    (c) The residential owner is not proceeding with the site rehabilitation or has abandoned the site;

    (d) The residential owner is not in compliance with all Maryland laws and regulations applicable to oil and residential heating oil tank systems;

    (e) The residential owner has not submitted any eligible site rehabilitation costs and supporting documentation of those costs within 6 months of completing the site rehabilitation, unless extended in writing by the Department; or

    (f) Any other good cause exists for denying a reimbursement payment, as determined by the Department.

C. Any reimbursement allocation left unpaid will be released for other Fund uses.

#### Regulation .10 Auditing.

*COMAR 26.10.14.10*

A. Upon request of the Department, a residential owner who applied for reimbursement from the Fund shall submit records that document all costs incurred and monies reimbursed to date for a site rehabilitation within:

  (1) 6 months of completing the site rehabilitation; or

  (2) 3 years of receiving the final payment from the reimbursement allocation.

B. The Department reserves the right to audit all costs, expenses, or files associated with the Fund.

C. A residential owner shall maintain all records associated with a site rehabilitation for at least 3 years after the later of:

  (1) Receiving the final payment from the reimbursement allocation; or

  (2) Completion of the site rehabilitation.

D. If an audit reveals any amount of money was improperly paid from the Fund to a residential owner, the residential owner shall return that amount to the Department within 30 days of notification by the Department of the improper payment from the Fund.

E. A residential owner is liable for any expenses incurred by the Department in collecting money owed under §D of this regulation.

### Chapter 15 — Management of Used Oil

**Authority:** Environment Article, §§4-402, 4-405, and 4-410, Annotated Code of Maryland

**Administrative History:** Effective date: September 7, 1998 (25:18 Md. R. 1438)

**Administrative History:** Regulations .01—.06 repealed and new Regulations .01—.07 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Scope.

*COMAR 26.10.15.01*

A. A person managing used oil shall determine using the conditions in COMAR 26.13.10.05 whether the used oil is:

  (1) Regulated as used oil under this chapter; or

  (2) Regulated as a hazardous waste under COMAR 26.13.

B. Notwithstanding §C of this regulation, a person managing used oil shall comply with all of the applicable oil pollution control and storage tank management provisions of COMAR 26.10.01—26.10.13 and 26.10.16—26.10.18.

C. Exceptions.

  (1) The management of used oil containing polychlorinated biphenyls (PCBs) at concentrations of 50 parts per million (ppm) or greater is:

    (a) Regulated as a hazardous waste under 40 CFR Part 761 and COMAR 26.13; and

    (b) Not regulated as used oil under this chapter.

  (2) Materials Mixed with or Derived from Used Oil.

    (a) A mixture of used oil and diesel fuel mixed on-site by a used oil generator for use in the generator’s own vehicles is not regulated under this chapter once the used oil and diesel fuel have been mixed.

    (b) Materials reclaimed from used oil that are beneficially used and not burned as fuel or used in a manner constituting disposal are not regulated as used oil under this chapter.

  (3) Wastewater, a discharge of which is subject to §402 or 307(b) of the Clean Water Act, contaminated with “de minimis quantities of used oil” as defined in 40 CFR §279.10(f), is not regulated under this chapter.

  (4) Crude Oil Pipeline or Petroleum Refining Facility Process.

    (a) If used oil introduced into a crude oil pipeline or petroleum refining facility process is exempt from the requirements of 40 CFR Part 279 under the conditions of 40 CFR §279.10(g), then the used oil is not regulated under this chapter.

    (b) Notwithstanding the substitution requirement in Regulation .02C(1)(d) of this chapter, a person shall use the used oil specification provided in Table 1 of 40 CFR §279.11 to determine if used oil introduced into a crude oil pipeline or petroleum refining facility process is exempt from the requirements of 40 CFR Part 279 under the conditions of 40 CFR §279.10(g).

  (5) Used Oil on Vessels. Used oil produced on a vessel from normal shipboard operations is not regulated under this chapter until the used oil is transported ashore.

  (6) Used Oil Generators. The following generators of used oil are not subject to the requirements of this chapter:

    (a) An individual that generates household-derived used oil, such as used oil generated through the maintenance of an individual’s personal vehicle; and

    (b) A farmer who generates an average of 25 gallons per month or less of used oil from vehicles or machinery used on the farm in a calendar year.

D. Applicability.

  (1) The requirements of this chapter and 40 CFR Part 279 apply to:

    (a) The following used oil management activities:

      (i) The collection, storage, transportation, processing, re-refining, recycling, or other management of used oil;

      (ii) The transfer of fuel oil blended or mixed with used oil in the State; and

      (iii) The burning of used oil as fuel;

    (b) A used oil burner that burns off-specification used oil;

    (c) A used oil collection center;

    (d) A used oil fuel marketer;

    (e) A used oil generator;

    (f) A used oil processor/re-refiner;

    (g) A used oil transfer facility; and

    (h) A used oil transporter.

  (2) The management of used oil mixed with or contaminating another substance is subject to the requirements of this chapter, unless the used oil is:

    (a) Exempt from being regulated as a used oil under 40 CFR Part 279; or

    (b) Identified under COMAR 26.13.10.05 as regulated under COMAR 26.13 as a hazardous waste.

#### Regulation .02 Incorporation by Reference.

*COMAR 26.10.15.02*

A. As qualified by §§B and C of this regulation, 40 CFR Part 279 (July 1, 2020) is incorporated by reference.

B. Interpretation. As provided in Table 1 of this regulation, for the purposes of this chapter, a person shall interpret a cross-reference in 40 CFR Part 279 to a federal regulation in 40 CFR as the analogous State regulation in COMAR Title 26:

C. Substitutions. For the purposes of this chapter, a person shall make the following substitutions:

  (1) Substitute a federal provision in 40 CFR Part 279 with a state provision in COMAR Title 26 as follows:

    (a) For 40 CFR §279.10(b), substitute COMAR 26.13.10.05C—F;

    (b) For 40 CFR §279.10(c), substitute COMAR 26.13.10.05G;

    (c) For 40 CFR §279.10(e), substitute COMAR 26.13.10.05I and 26.13.02.04-1A(15);

    (d) For Table 1 of 40 CFR §279.11, substitute COMAR 26.11.09.10B;

    (e) For 40 CFR §279.57(b), substitute Regulation .06A of this chapter; and

    (f) For 40 CFR §§279.22(d), 279.45(h), 279.54(g), and 279.64(g), substitute COMAR 26.10.01.05 and 26.10.08;

  (2) Whenever the words “the rebuttable presumption of §279.10(b)(1)(ii)”, “rebuttable presumption provided under §279.10(b)(1)”, or “rebuttable presumption for used oil of §279.10(b)(1)(ii)” appear, substitute with “the rebuttable presumption for used oil of COMAR 26.13.10.05C(2)”;

  (3) Substitute the words that appear in 40 CFR §§279.12(b) and 279.82(a) with “The use of used oil as a dust suppressant is prohibited”;

  (4) Substitute the words that appear in 40 CFR §§279.42(b), 279.51(b), 279.62(b), and 279.73(b) with “Mechanics of Notification. A used oil transporter, processor/re-refiner, or marketer who does not have an EPA identification number may obtain a number by applying online using the MyRCRAId electronic system, or another equivalent online system, or submitting a completed EPA Form 8700-12 to the Department”;

  (5) In 40 CFR §279.52(b)(6)(viii)(C) and (ix), substitute the words “Regional Administrator” with “Secretary”;

  (6) In 40 CFR §279.66(a)(1), substitute the word “EPA” with “the Department”; and

  (7) In 40 CFR §279.75(a)(1), substitute the word “EPA” with “EPA or the corresponding state agency with regulatory authority over the management of used oil”.

#### Regulation .03 Disposal of Used Oil.

*COMAR 26.10.15.03*

A. This regulation applies to the management of used oil that is not recycled, processed, re-refined, or burned as a fuel.

B. Use as a Dust Suppressant. A person may not use used oil as a dust suppressant.

C. Disposal of Hazardous Used Oil. The disposal of used oil identified as a hazardous waste is subject to the hazardous waste management requirements in COMAR 26.13.

D. Disposal of Used Oil.

  (1) Except as provided under Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland or any other provisions of law, a person may not dispose of, or cause to be disposed of, used oil by:

    (a) Discharging, dumping, or depositing the used oil into sewers, drainage systems, surface waters or groundwaters, and any waters of the State;

    (b) Incinerating used oil as refuse, not including the burning of used oil as fuel in accordance with this chapter; or

    (c) Disposing, dumping, or depositing used oil onto public or private land that is not an approved facility, as provided under §D(2) of this regulation.

  (2) A person may dispose of used oil at one of the following approved facilities:

    (a) Pursuant to Environment Article, §5-1001, Annotated Code of Maryland, public or private land designated by the State or an agency or political subdivision of the State as a collection facility for used oil in which used oil is placed in a receptacle or container installed or located on the property; or

    (b) A solid waste acceptance facility permitted under COMAR 26.04.07 as specifically authorized by the Department to handle used oil or waste containing free phase used oil.

#### Regulation .04 Management of Used Oil.

*COMAR 26.10.15.04*

A. General Provisions.

  (1) Spill, Release, or Discharge.

    (a) A person shall report a spill, release, or discharge of used oil to the Department immediately, but not later than 2 hours, after detection of the spill, release, or discharge in accordance with COMAR 26.10.01.05 and 26.10.08.01.

    (b) In response to a confirmed spill, release, or discharge of used oil or an oil-derived product from a storage tank system, an owner and an operator of the storage tank system and any responsible party shall comply with the response and corrective action requirements of COMAR 26.10.09.

  (2) A person transporting used oil in a truck previously used to transport hazardous waste shall comply with the transportation of hazardous waste requirements in COMAR 26.13.04.01D(4).

B. Burning Used Oil.

  (1) A person that proposes to burn used oil in fuel-burning equipment shall submit to the Department the information required in COMAR 26.11.09.10A.

  (2) A person burning used oil as fuel shall comply with:

    (a) Regulation .05B of this chapter;

    (b) COMAR 26.11.09.10;

    (c) If burning on-specification used oil as fuel, 40 CFR §279.23; and

    (d) If burning off-specification used oil as fuel, 40 CFR §§257.12(c) and 257.60—257.66.

C. Storage of Used Oil. A person managing used oil shall only store used oil in a storage unit that meets one of the following criteria:

  (1) A storage tank system that complies with COMAR 26.10.01—26.10.12 and 26.10.16—26.10.18; or

  (2) Depending upon the type of facility where the used oil is stored, a container equipped with a containment system that meets the applicable requirements in 40 CFR §279.22, 279.54, or 279.64.

D. Department Approvals and Registrations. An owner, an operator, and a person in charge of an oil handling facility or oil storage facility that manages used oil shall comply with the following Department approval and registration requirements:

  (1) If the facility has a used oil aboveground aggregate storage capacity of 1,000 gallons or greater, obtain an Individual Oil Operations Permit from the Department in accordance with COMAR 26.10.01.09A and .11;

  (2) If the facility has a used oil aboveground aggregate storage capacity of less than 1,000 gallons, comply with the General Oil Operations Permit conditions in COMAR 26.10.01.09B;

  (3) If used oil is stored in a petroleum UST system, register each UST system at the facility with the Department in accordance with COMAR 26.10.03.09;

  (4) If used oil is stored in an AST system, register each AST system at the facility with the Department in accordance with COMAR 26.10.01.10;

  (5) If transferring fuel oil blended or mixed with processed or re-refined used oil in the State, obtain an Oil Transfer License from the Department in accordance with COMAR 26.10.01.08;

  (6) If a used oil transporter, used oil processor/re-refiner, or used oil marketer, obtain an EPA identification number by:

    (a) Applying for an EPA identification number online using the MyRCRAId electronic system or another equivalent online system; or

    (b) Submitting a completed EPA Form 8700-12 to the Department;

  (7) If burning used oil as fuel, comply with the fuel-burning equipment registration or air quality permitting requirements in COMAR 26.11.02.02; and

  (8) If applicable, obtain a State discharge permit or National Pollutant Discharge Elimination System permit from the Department in accordance with COMAR 26.08.04.

E. An owner, an operator, and a person in charge of a used oil processor/re-refiner facility shall:

  (1) Comply with the general facility standards for preparedness and prevention, prepare a contingency plan, and implement emergency procedures in accordance with 40 CFR §279.52; and

  (2) In accordance with 40 CFR §279.55, develop, follow, and keep at the facility a written analysis plan used to determine:

    (a) The total halogen content of used oil in accordance with Regulation .05A of this chapter; and

    (b) If the used oil is to be burned as fuel, whether the used oil meets the specifications in COMAR 26.11.10.09B in accordance with Regulation .05B of this chapter.

#### Regulation .05 Analytical Requirements.

*COMAR 26.10.15.05*

A. Rebuttable Presumption for Used Oil.

  (1) Used oil containing more than 1,000 ppm total halogens is presumed to be hazardous waste because it has been mixed with halogenated hazardous waste listed in COMAR 26.13.02.16—.19, unless a person rebuts this presumption by demonstrating the used oil does not contain hazardous waste, as specified in COMAR 26.13.02.04-1A(11).

  (2) To determine whether used oil is presumed to be hazardous waste under the rebuttable presumption, a person managing used oil shall determine the total halogen content of the used oil in accordance with COMAR 26.13.10.05C(2) and, depending on the type of facility managing the used oil, the applicable requirements in 40 CFR §279.44, 279.53, or 279.63.

B. Specifications for Used Oil Burned as Fuel. A person that burns used oil as fuel or processes used oil to produce a heating oil shall determine if the used oil or used oil-derived heating oil meets or exceeds the specifications for used oil in COMAR 26.11.09.10B by performing analyses or obtaining documentation demonstrating the used oil or used oil-derived heating oil meets or exceeds the specifications.

#### Regulation .06 Recordkeeping and Reports.

*COMAR 26.10.15.06*

A. On a form provided by the Department, a used oil transporter or used oil processor/re-refiner shall:

  (1) Report on used oil operations conducted during the preceding fiscal year, covering the 12-month period from July 1 to June 30;

  (2) Include in the report all of the following information:

    (a) The name and address of the used oil transporter or used oil processor/re-refiner;

    (b) If a used oil processor/re-refiner, the facility’s EPA identification number;

    (c) The quantity of used oil collected in the State;

    (d) The quantity of used oil exported out of the State;

    (e) The quantity of used oil imported into the State;

    (f) The methods in which used oil was managed or disposed, including burning used oil as fuel; and

    (g) The quantity of used oil managed or disposed using each method; and

  (3) Submit the report to the Department not later than July 31, following the reporting period.

B. Operating Record. An owner and an operator of a used oil processor/re-refiner shall maintain and keep a written operating record at the facility in accordance with 40 CFR §257.57.

C. A used oil transporter and an owner, an operator, and a person in charge of a used oil transfer, processor/re-refiner, burner, or fuel marketer facility shall comply with the applicable tracking, notice, recordkeeping, and record retention requirements in 40 CFR §§279.44, 279.46, 279.56, 279.63, 279.66, 279.72(b), 279.74, and 279.75.

D. A person that burns used oil in fuel-burning equipment shall comply with the annual reporting requirement in COMAR 26.11.09.10D.

#### Regulation .07 Closure Requirements.

*COMAR 26.10.15.07*

A. Upon the termination of used oil operations, an owner, an operator, and a person in charge of an oil handling or oil storage facility that collects, stores, transports, transfers, processes, re-refines, recycles, burns as fuel, or otherwise manages used oil shall comply with the closure requirements of this regulation.

B. Facility Closure. An owner, an operator, and a person in charge an oil handling or oil storage facility described in §A of this regulation shall:

  (1) Remove or decontaminate used oil residues in storage tank systems, containers and contaminated secondary containment system components and used oil-contaminated soils, structures and equipment;

  (2) Unless determined to be nonhazardous waste under COMAR 26.13.02.15—.19 or COMAR 26.13.10.05, manage used oil residuals or used oil-contaminated material as hazardous waste; and

  (3) If the owner, the operator, and the person in charge of the facility demonstrates not all contaminated soils can be practicably removed or decontaminated as required in §B(1) of this regulation, close the storage tank system and perform post-closure care at the facility in accordance with the requirements for a hazardous waste landfill in COMAR 26.13.06.22B(3).

C. Underground Storage Tanks. An owner, an operator, and a person in charge of an oil handling or oil storage facility storing used oil in a UST shall comply with the temporary or permanent closure requirements in COMAR 26.10.10.

D. Aboveground Storage Tanks. An owner, an operator, and a person in charge of an oil handling or oil storage facility storing used oil in an AST shall comply with the temporary or permanent closure requirements in COMAR 26.10.17 or 26.10.18.

E. Containers. An owner, an operator, and a person in charge of an oil handling or oil storage facility storing used oil in containers shall:

  (1) Remove used oil residues from containers;

  (2) Remove containers that stored used oil and any used oil residues from the site; and

  (3) Unless determined to be nonhazardous waste under COMAR 26.13.02.15—.19 or COMAR 26.13.10.05, manage the materials as hazardous waste.

F. An owner, an operator, and a person in charge of an oil handling or oil storage facility conducting a removal or decontamination processes in accordance with this regulation that generates air emissions shall meet all applicable air quality requirements in COMAR 26.11.

### Chapter 16 — Trained Facility Operators

**Authority:** Environment Article, §§4-401, 4-402, 4-405, 4-408<MA>4-411.1, 4-412, 4-415-1—4-419, and 7-201 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: April 19, 2010 (37:8 Md. R. 621)

**Administrative History:** Regulations .01—.08 repealed and new Regulations .01—.09 adopted effective June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Scope.

*COMAR 26.10.16.01*

A. This chapter applies to an owner and an operator of a UST system or group of UST systems located at a regulated substance storage facility.

B. This chapter establishes the Class A operator, the Class B operator, and the Class C operator classifications, and the required knowledge, duties, skills, training requirements, and certification requirements for each operator classification.

C. This chapter:

  (1) Does not apply to an owner and an operator of a UST system that stores only heating oil for consumptive use;

  (2) Does not alter the definition of an operator set forth in COMAR 26.10.01.02B;

  (3) Does not apply to an individual defined as an operator under COMAR 26.10.01.02B, unless an owner and an operator of a UST system or group of UST systems located at a regulated substance storage facility designates that individual to serve as the Class A operator, the Class B operator, or the Class C operator for the UST system or group of UST systems at the regulated substance storage facility;

  (4) Does not relieve an owner and an operator of a UST system of the duty to comply with the legal responsibilities under:

    (a) 40 CFR Part 280;

    (b) Environment Article, Title 4, Annotated Code of Maryland;

    (c) Environment Article, Title 7, Annotated Code of Maryland; and

    (d) COMAR 26.10.01—26.10.12; and

  (5) Does not alter or transfer the legal responsibilities for, between, or among an owner and an operator of a UST system under:

    (a) 40 CFR Part 280;

    (b) Environment Article, Title 4, Annotated Code of Maryland;

    (c) Environment Article, Title 7, Annotated Code of Maryland; and

    (d) COMAR 26.10.01—26.10.12.

#### Regulation .02 Definitions.

*COMAR 26.10.16.02*

A. In this chapter:

  (1) A term in §B of this regulation has the meaning indicated; and

  (2) A term not defined in §B of this regulation has:

    (a) The meaning given to the term in a relevant statute or COMAR 26.10.01 or 26.10.02; or

    (b) If not defined in a relevant statute or COMAR 26.10.01 or 26.10.02, the meaning attributed by common use.

B. Terms Defined.

  (1) “Class A operator” means an individual who:

    (a) Has primary responsibility to operate and maintain a UST system in accordance with applicable requirements established by the Department; and

    (b) Typically manages resources and personnel, such as establishing work assignments, to achieve and maintain compliance with regulatory requirements.

  (2) “Class B operator” means an individual who:

    (a) Has day-to-day responsibility for implementing applicable regulatory requirements for a UST system established by the Department; and

    (b) Typically implements in-field aspects of operation, maintenance, and associated recordkeeping for a UST system.

  (3) “Class C operator” means an individual who:

    (a) Is responsible for initially addressing emergencies presented by a spill, release, or discharge from a UST system; and

    (b) Typically controls or monitors the dispensing or sale of regulated substances.

  (4) “Training Program” means an informational course, class, or set of training instructions approved by the Department for educating and certifying a Class A operator, Class B operator, or Class C operator to comply with this chapter.

#### Regulation .03 Implementation.

*COMAR 26.10.16.03*

A. An owner and an operator of a UST system or group of UST systems shall:

  (1) Designate by a written list one or more individuals to serve as a Class A operator, a Class B operator, and a Class C operator for a UST system or group of UST systems at a regulated substance storage facility;

  (2) Ensure that Class A operators, Class B operators, and Class C operators designated under §A(1) of this regulation are trained and certified in accordance with this chapter;

  (3) Provide written instructions for the UST system or group of UST systems at the regulated substance storage facility that are readily accessible at all times to the Class A operators, the Class B operators, and the Class C operators identified under §A(1) of this regulation and that describe how to:

    (a) Respond to operational or equipment alarms, warnings, or alert mechanisms;

    (b) Implement the emergency shutoff process;

    (c) Respond to a suspected or confirmed spill, release or discharge, unusual operating conditions, emergencies, and equipment failures; and

    (d) Notify the Department of a spill, release, or discharge in accordance with:

      (i) Environment Article, §4-410, Annotated Code of Maryland;

      (ii) COMAR 26.10.01.05; and

      (iii) COMAR 26.10.08.01—.04;

  (4) Provide emergency telephone numbers for contacting emergency response authorities, persons responsible for the regulated substance storage facility, and the Department in the event of a suspected or confirmed spill, release or discharge, unusual operating conditions, an emergency, or an equipment failure;

  (5) Except for an approved unattended motor fuel dispensing facility, ensure that the emergency telephone numbers provided under §A(4) of this regulation are readily accessible on-site to the Class A operators, the Class B operators, and the Class C operators and other facility personnel; and

  (6) For an approved unattended motor fuel dispensing facility, ensure that the emergency telephone numbers provided under §A(4) of this regulation are conspicuously posted on a sign as required by COMAR 26.10.01.20E.

B. An owner and an operator of a UST system or a group of UST systems at a regulated substance storage facility may not:

  (1) Dispense from or store in a UST system a regulated substance unless the Class A operators, the Class B operators, and the Class C operators have been designated, trained, and certified as required by this chapter; and

  (2) Except for an approved unattended motor fuel dispensing facility, dispense a regulated substance from a UST system unless at least one Class A operator, Class B operator, or Class C operator is present at the regulated substance storage facility.

C. An owner and an operator of a UST system or group of UST systems at a regulated substance storage facility shall ensure that:

  (1) A regulated substance storage facility continuously has one or more individuals designated, trained, and certified to serve as a Class A operator, a Class B operator, and a Class C operator as required by this chapter;

  (2) New or replacement Class A operators and Class B operators are trained and certified within 30 days after assuming duties and responsibilities of the designated class;

  (3) New or replacement Class C operators are trained and certified before assuming duties and responsibilities of the class; and

  (4) The following documents are updated within 10 business days of a change:

    (a) The written list set forth in §A(1) of this regulation;

    (b) The written instructions set forth in §A(3) of this regulation; and

    (c) The emergency telephone numbers set forth in §A(4) of this regulation.

D. An owner and an operator of a UST system or group of UST systems at an approved unattended motor fuel dispensing facility shall ensure that:

  (1) A Class A operator, a Class B operator, or a Class C operator inspects the regulated substance storage facility for suspected or confirmed spills, releases or discharges, unusual operating conditions, emergencies, and equipment failures monthly or at another frequency approved by the Department; and

  (2) A written record of inspections required in §D(1) of this regulation are maintained by the owner and the operator of the UST system or group of UST systems and made available upon request by the Department or a UST system inspector certified by the Department under COMAR 26.10.06.

#### Regulation .04 Requirements for Designated Operators.

*COMAR 26.10.16.04*

A. A Class A operator shall:

  (1) Successfully complete Class A operator training required by this chapter and approved by the Department;

  (2) In accordance with this chapter and COMAR 26.10.01—26.10.12, ensure that:

    (a) The installation, upgrade, and repair of a UST system is performed in the continuous on-site presence and under the direction of a UST system technician certified under COMAR 26.10.06;

    (b) The closure or a change-in-service of a UST system is performed in the continuous on-site presence and direction of a UST system technician or remover certified under COMAR 26.10.06;

    (c) A qualified person implements the operation, maintenance, testing, and recordkeeping requirements for a UST system, including requirements related to:

      (i) Spill and overfill prevention;

      (ii) Release detection, reporting, and emergency response;

      (iii) Corrosion protection;

      (iv) Product and equipment compatibility;

      (v) Financial responsibility;

      (vi) Notification and UST system registration;

      (vii) The temporary and permanent closure and change-in-service of a UST system; and

      (viii) Class B operator and Class C operator training and certification; and

    (d) Records required to demonstrate compliance with COMAR 26.10.01—26.10.12 are maintained and made available upon request to the Department or a certified UST system inspector;

  (3) Maintain knowledge of the skills and training requirements for Class B operators and Class C operators; and

  (4) Be available to respond to suspected or confirmed spills, releases or discharges, unusual operating conditions, emergencies, and equipment failures at a regulated substance storage facility by being:

    (a) Immediately accessible for consultation by telephone when the facility is operating; and

    (b) On-site at the regulated substance storage facility within 24 hours of receiving a request from emergency response personnel or the Department, or within another time period approved by the Department.

B. A Class B operator shall:

  (1) Successfully complete Class B operator training required by this chapter and approved by the Department;

  (2) In accordance with this chapter and COMAR 26.10.01—26.10.12, ensure that:

    (a) UST system release detection methods are implemented, and release detection and prevention equipment are operational and tested;

    (b) Release detection reporting requirements are met;

    (c) The inspection and testing of spill prevention, overfill prevention, and corrosion protection equipment for proper operation are conducted;

    (d) Walkthrough inspections are conducted;

    (e) All required UST system equipment tests are conducted;

    (f) UST equipment manufacturer and third-party performance standards are met, and the applicable standards, manuals, and instructions are available at a regulated substance storage facility;

    (g) Records required to demonstrate compliance with COMAR 26.10.01—26.10.12 are maintained and made available upon request to the Department or a certified UST system inspector; and

    (h) A Class C operator is trained in accordance with this chapter to respond properly to a suspected or confirmed spills, releases or discharges, unusual operating conditions, emergencies, and equipment failures;

  (3) Maintain knowledge of the skills and training requirements for a Class C operator; and

  (4) Be available to respond to a suspected or confirmed spills, releases or discharges, unusual operating conditions, emergencies, and equipment failures at a regulated substance storage facility by being:

    (a) Immediately accessible for consultation by telephone when the facility is operating; and

    (b) On-site at the regulated substance storage facility within 24 hours of a receiving request from emergency response personnel or the Department, or within another time period approved by the Department.

C. A Class C operator shall:

  (1) Successfully complete the Class C operator training required by this chapter and approved by the Department; and

  (2) Control and monitor the dispensing or sale of a regulated substance;

  (3) Immediately respond to alarms, equipment failures, or other indications of emergencies caused by a spill, release, or discharge from the UST system;

  (4) Notify a Class A operator or a Class B operator, appropriate emergency response personnel, and the Department of a suspected or confirmed spill, release, or discharge in accordance with the written instructions provided by the owner and the operator of the UST system as set forth in Regulation .03A(3) of this chapter; and

  (5) Be available to respond to suspected or confirmed spills, releases or discharges, unusual operating conditions, emergencies, and equipment failures at a regulated substance storage facility by:

    (a) Except for an approved unattended motor fuel dispensing facility, being on-site and readily available whenever the regulated substance storage facility is operating; or

    (b) For an approved unattended motor fuel dispensing facility:

      (i) Being immediately accessible for consultation by telephone with emergency response personnel or the Department; and

      (ii) Being on-site at the regulated substance storage facility within 2 hours of receiving a request from emergency response personnel or the Department, or within another time period approved by the Department.

#### Regulation .05 Requirements for Operator Training.

*COMAR 26.10.16.05*

A. An owner and an operator of a UST system or a group of UST systems shall ensure each individual designated as Class A operator, Class B operator, and a Class C operator for a regulated substance storage facility is trained in accordance with the requirements of this regulation.

B. An individual designated for more than one operator class shall successfully complete the required training program for each operator class in which the individual is designated.

C. An owner and an operator of a UST system or a group of UST systems shall:

  (1) Ensure any training program meets the minimum training requirements of this regulation for each operator class; and

  (2) Include an evaluation through testing, a practical demonstration, or another approach approved by the Department.

D. Class A Operators.

  (1) An owner and an operator of a UST system or a group of UST systems shall provide a Class A operator training program that meets the requirements in §D(2) and (3) of this regulation.

  (2) At a minimum, the training program for a Class A operator provides general knowledge and teaches a Class A operator about the purpose, methods, and functions of:

    (a) Spill and overfill prevention;

    (b) Release detection;

    (c) Corrosion protection;

    (d) Emergency response;

    (e) Product and equipment compatibility and demonstration of compatibility;

    (f) Financial responsibility;

    (g) Notification and UST system registration;

    (h) The temporary and permanent closure and change-in-service of a UST system;

    (i) Reporting, recordkeeping, testing, and inspections;

    (j) Environmental and regulatory consequences of releases; and

    (k) Training requirements for Class B operators and Class C operators.

  (3) At a minimum, the training program evaluates a Class A operator to determine if the individual has the knowledge and skills in accordance with §D(2) of this regulation to:

    (a) Make informed decisions regarding regulatory compliance; and

    (b) Determine whether appropriate individuals are fulfilling the operation, maintenance, testing, and recordkeeping requirements for UST systems.

E. Class B Operators.

  (1) An owner and an operator of a UST system or group of UST systems shall provide a Class B operator training program that meets the requirements in §E(2)—(4) of this regulation.

  (2) At a minimum, the training program for a Class B operator covers either:

    (a) General requirements that encompass all regulatory requirements and typical equipment used at a regulated substance storage facility; or

    (b) Site-specific requirements that address only the regulatory requirements and equipment specific to a regulated substance storage facility for which the Class B operator has been designated.

  (3) At a minimum, the training program for a Class B operator teaches the Class B operator about the purpose, methods, and functions of:

    (a) Operation and maintenance;

    (b) Spill and overfill prevention;

    (c) Release detection and related reporting;

    (d) Corrosion protection;

    (e) Emergency response;

    (f) Product and equipment compatibility and demonstration of compatibility;

    (g) Reporting, recordkeeping, testing, and inspections;

    (h) Environmental and regulatory consequences of releases; and

    (i) Training requirements for Class C operators.

  (4) At a minimum, the training program evaluates a Class B operator to determine if the individual has the knowledge and skills in accordance with §E(2) and (3) of this regulation to implement applicable UST regulatory requirements in the field on:

    (a) The components of a typical UST system; or

    (b) The site-specific equipment used at a regulated substance storage facility for which the Class B operator has been designated.

F. Class C Operators.

  (1) An owner and an operator of a UST system shall provide a Class C operator training program that meets the requirements in §F(2)—(5) of this regulation and Regulation .07D of this chapter.

  (2) A certified Class A operator or a certified Class B operator designated for a regulated substance storage facility shall train each individual designated as a Class C operator for the same regulated substance storage facility.

  (3) At a minimum, the training program for a Class C operator teaches the Class C operator to take appropriate action, including notifying appropriate authorities, in response to emergencies or alarms caused by spills, releases, and discharges resulting from the operation of a UST system.

  (4) The training program for a Class C operator is specific to a regulated substance storage facility for which the individual has been designated, and the training program is not valid for another regulated substance storage facility.

  (5) At a minimum, the training program evaluates a Class C operator to determine if the individual has the knowledge and skills in accordance with §F(3) and (4) of this regulation to take appropriate action, including notifying appropriate authorities, in response to emergencies or alarms caused by spills, releases, and discharges from a UST system.

#### Regulation .06 Training Programs.

*COMAR 26.10.16.06*

A. The Department shall:

  (1) Review and approve training programs for Class A operators, Class B operators, and Class C operators; and

  (2) Make available a list of approved training programs.

B. The Department may not approve a training program if:

  (1) A person intending to implement a training program has demonstrated a history of noncompliance with the requirements of COMAR 26.10;

  (2) The training program does not meet the minimum requirements established in Regulation .05 of this chapter;

  (3) Department-required changes to training materials are not made; or

  (4) The person implementing the training program has not demonstrated a process to keep records in accordance with this regulation.

C. A person implementing a training program shall:

  (1) Obtain approval for a training program in writing from the Department by;

    (a) Ensuring the training program meets the minimum requirements established in Regulation .05 of this chapter;

    (b) Ensuring the certification requirements in Regulation .07A and B of this chapter are met;

    (c) Submitting training program materials, including a program outline, presentation materials, and testing materials to the Department for review;

    (d) Making any changes required by the Department; and

    (e) Demonstrating that the recordkeeping requirements of this regulation will be met;

  (2) Provide operator training in accordance with a Department-approved training program;

  (3) Obtain approval for a change to an approved training program in writing from the Department;

  (4) Provide a dated certificate to each trainee that successfully completes a training program;

  (5) Maintain the following training records:

    (a) Date and location of training;

    (b) Names of trainers providing training;

    (c) Names of trainees in attendance;

    (d) Names of trainees certified as Class A operators, Class B operators, and Class C operators; and

    (e) A copy of the dated certificate required in §C(4) of this regulation;

  (6) Make records available upon request by the Department or a UST system inspector certified under COMAR 26.10.06; and

  (7) Allow the Department to audit a training program.

D. Reauthorization of Currently Approved Training Programs.

  (1) Upon the effectiveness of a new or revised regulation under this chapter or COMAR 26.10.01—26.10.12, the Department shall provide notice to a person implementing a currently approved training program that the person is required to update an approved training program.

  (2) Upon receiving notice from the Department, a person shall revise a currently approved training program and submit the revised training program materials to the Department for approval.

  (3) A person may not implement an updated training program that has not been approved by the Department.

#### Regulation .07 Certification.

*COMAR 26.10.16.07*

A. An owner and an operator of a UST system or a group of UST systems at a regulated substance storage facility shall have:

  (1) An individual designated to be a Class A operator or a Class B operator, or both, successfully complete a training program in accordance with §B or C of this regulation; and

  (2) An individual designated to be a Class C operator successfully complete a training program in accordance with §D of this regulation.

B. The Department shall consider an individual to have successfully completed a Class A operator or a Class B operator training program if the following requirements are met:

  (1) An individual designated as a Class A operator was trained and evaluated in accordance with Regulation .05D of this chapter;

  (2) An individual designated as a Class B operator was trained and evaluated in accordance with Regulation .05E of this chapter;

  (3) An individual attended 100 percent of the training program;

  (4) An individual achieved a score of 80 percent or better on a written competency test of the information presented; and

  (5) The trainer provided a dated certificate to an individual that successfully completed the training.

C. With approval from the Department, an owner and an operator of a UST system or a group of UST systems at a regulated substance storage facility may conduct a training program at the regulated substance storage facility for an individual designated to serve as the Class A operator or the Class B operator, or both, at the facility provided the following requirements are met:

  (1) An individual designated as a Class A operator is trained and evaluated in accordance with Regulation .05D of this chapter;

  (2) An individual designated as a Class B operator is trained and evaluated in accordance with Regulation .05E of this chapter;

  (3) An individual demonstrates to the satisfaction of the trainer:

    (a) For a Class A operator, the individual has the knowledge and skills in accordance with Regulation .05D(2) of this chapter to:

      (i) Make informed decisions regarding regulatory compliance for a UST system at the regulated substance storage facility; and

      (ii) Determine whether appropriate individuals are fulfilling the operation, maintenance, testing, and recordkeeping requirements for a UST system at the regulated substance storage facility;

    (b) For a Class B operator, that the individual has the knowledge and skills in accordance with Regulation .05E(2) and (3) of this chapter to implement applicable UST system regulatory requirements for the site-specific equipment used at the facility; and

  (4) The trainer provides a dated certificate to an individual that successfully completes the on-site training.

D. A certified Class A operator or a certified Class B operator designated for a regulated substance storage facility shall train and certify an individual to be a Class C operator for that regulated substance storage facility by:

  (1) Training and evaluating the individual in accordance with Regulation .05F of this chapter;

  (2) Having the individual demonstrate an understanding of the written instructions required by Regulation .03A(3) of this chapter; and

  (3) Upon successful completion of the training, completing and signing a form provided by the Department that certifies the Class C operator has been successfully trained.

E. In addition to §D of this regulation, an owner and an operator of a UST system or group of UST systems at a regulated substance storage facility may provide an off-site or on-site training program to an individual designated to serve as a Class C operator.

F. Reciprocity.

  (1) The Department may allow a Class A operator or a Class B operator certification from another state to satisfy the requirements of this chapter.

  (2) An individual certified as a Class A operator or a Class B operator in another state shall request reciprocity as a Class A operator or a Class B operator on a form provided by the Department.

  (3) An individual requesting reciprocity shall demonstrate to the satisfaction of the Department that the operator training requirements and the UST system regulations where the individual is presently certified are at least as stringent as this chapter and COMAR 26.10.01—26.10.12.

#### Regulation .08 Sanctions.

*COMAR 26.10.16.08*

A. Retraining.

  (1) If the Department determines that a Class A operator or a Class B operator is not in compliance with a regulation in this chapter, or that a regulated substance storage facility is not in compliance with any regulations in COMAR 26.10.01—26.10.12, the Department shall document the deficiency.

  (2) Upon notice of a documented deficiency provided under §A(1) of this regulation, the owner and the operator of the UST system and regulated substance storage facility shall implement one or more of the following options as directed by the Department for the designated Class A operator or Class B operator, or both:

    (a) Have the Class A operator or the Class B operator complete a full training program and meet the certification requirements of this chapter;

    (b) Have the Class A operator or the Class B operator complete a training program tailored to the areas the Department determined were deficient and demonstrate the duties, skills, and knowledge areas in compliance with the requirements of this chapter or in a manner specified by the Department; or

    (c) Have the Class A operator or the Class B operator complete partial on-site training given by a Department representative in the areas the Department determined were deficient and demonstrate the duties, skills, and knowledge areas to the satisfaction of the Department representative.

  (3) In providing a notice under §A(2) of this regulation, the Department may require a Class A operator or a Class B operator, or both, receive training from an alternate training program rather than the training program in which the operator originally or most recently received training from.

  (4) Not later than 30 days after receiving a notice from the Department under §A(2) of this regulation, an owner and an operator of a UST system shall ensure that a Class A operator or a Class B operator, or both, completes the retraining required by the Department, unless the Department waives the retraining requirement for either the Class A operator or the Class B operator, or both.

  (5) Within 60 days of the Department’s directive to retrain a Class A operator or a Class B operator, or both, an owner and an operator of a UST system shall submit written verification to the Department that retraining was completed.

  (6) In addition to the retaining requirements in §A(1)—(5) of this regulation, the Department may require an owner and an operator of a UST system and a regulated substance storage facility to retrain designated Class C operators.

B. Training Programs. The Department may suspend or revoke its approval of a training program if the Department determines that a person implementing a training program or a trainer for the training program has done one or more of the following:

  (1) Demonstrated a willful or negligent disregard or repeated violations of the regulations in COMAR 26.10; or

  (2) Willfully or negligently submitted false information to the Department.

C. A person violating a provision of this chapter is subject to sanctions under:

  (1) Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland;

  (2) Environment Article, Title 7, Subtitle 2, Part VIII, Annotated Code of Maryland; and

  (3) Any other sanctions provided by federal or State statutes or regulations.

#### Regulation .09 Recordkeeping.

*COMAR 26.10.16.09*

An owner and an operator of a UST system or a group of UST systems at a regulated substance storage facility shall:

A. Maintain records in accordance with COMAR 26.10.04.05 that demonstrate compliance with this chapter;

B. Maintain the following records:

  (1) A list of certified Class A operators, Class B operators, and Class C operators designated for a regulated substance storage facility by the owner and the operator as required by Regulation .03A(1) of this chapter that:

    (a) Identifies all Class A operators, Class B operators, and Class C operators currently designated for the facility; and

    (b) Includes for each currently designated operator:

      (i) The operator’s name, mailing address, and emergency contact number;

      (ii) The date the operator assumed duties for the operator class at the facility; and

      (iii) The name of the initial training program and any required retraining programs and the date of completion for each training program;

  (2) Paper or electronic records verifying the completion of a training or a retraining program for each currently designated Class A operator, Class B operator, and Class C operator that:

    (a) Identifies the name of the trainee, the date trained, and the name of the operator training class that was completed;

    (b) Lists the name of the trainer and the training company name, address, and telephone number; and

    (c) Includes a copy of the training certificate issued to the operator;

  (3) Written verification from the Class A operator or the Class B operator that designates a Class C operator demonstrating the Class C operator’s understanding of the written instructions required by Regulation .03A(3) of this chapter; and

  (4) Copies of the inspection records required in Regulation .03D(2) of this chapter;

C. Ensure compliance with the following training record requirements:

  (1) A trainer shall sign records from classroom or field training programs, including Class C operator training provided by a Class A operator or a Class B operator;

  (2) Records from computer-based training programs, at a minimum, indicate the name of the training program and the web address; and

  (3) Records of retraining include those areas on which the Class A operator or the Class B operator, or both, were retrained;

D. Keep the records required by §B of this regulation at a location designated by the owner for the following durations:

  (1) Records required by §B(1)—(3) of this regulation for as long as a Class A operator, Class B operator, and Class C operator is designated; and

  (2) Records required by §B(4) of this regulation for 5 years; and

E. Ensure the records required to be maintained under this chapter are available upon request by the Department or a UST system inspector certified by the Department under COMAR 26.10.06.

### Chapter 17 — Shop-Fabricated Aboveground Storage Tanks

**Authority:** Environment Article, §§4-401—4-403, 4-405, 4-406, 4-408, 4-410—4-412, 4-415-1—4-418, 4-501, and 4-502, Annotated Code of Maryland

**Administrative History:** Effective date: June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Scope.

*COMAR 26.10.17.01*

A. This chapter applies to an owner, an operator, and a person in charge of an AST system with a shop-fabricated AST that is used or may be used to store oil at an oil storage facility or oil handling facility.

B. An owner, an operator, and a person in charge of an AST system subject to the requirements in this chapter shall meet all applicable requirements under COMAR 26.10.01 for an oil storage facility or oil handling facility.

C. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST used for storing asphalt only is exempt from the following requirements of this chapter:

  (1) Unless otherwise directed by the Department, the secondary containment requirements in Regulation .07 of this chapter;

  (2) The spill and overfill prevention requirements in Regulation .08 of this chapter;

  (3) The release detection requirements in Regulation .09 of this chapter; and

  (4) The emergency venting requirement in Regulation .11B of this chapter if the AST system has a capacity greater than 12,000 gallons and is not located in:

    (a) A secondary containment dike with another AST system storing a Class I liquid or Class II liquid; or

    (b) The drainage path of another AST system storing a Class I liquid or Class II liquid.

#### Regulation .02 Definitions.

*COMAR 26.10.17.02*

A. In this chapter:

  (1) A term in §B of this regulation has the meaning indicated; and

  (2) A term not defined in §B of this regulation has:

    (a) The meaning given to the term in a relevant statute or COMAR 26.10.01 or 26.10.02; or

    (b) If not defined in a relevant statute or COMAR 26.10.01 or 26.10.02, the meaning attributed by common use.

B. Terms Defined.

  (1) “AST” has the meaning stated in COMAR 26.10.01.02B.

  (2) “AST system” has the meaning stated in COMAR 26.10.01.02B.

  (3) “Certified inspector” includes one of the following individuals certified to perform an inspection on a shop-fabricated AST:

    (a) An authorized inspector, as defined in COMAR 26.10.18.02B, with an adjunct certification, as specified in STI/SPFA SP001 “Standard for the Inspection of Aboveground Storage Tanks”; or

    (b) A certified AST tank system inspector, as specified in STI/SPFA SP001 “Standard for the Inspection of Aboveground Storage Tanks”.

  (4) “Double-walled AST” means an AST that:

    (a) Is manufactured as a storage tank within a storage tank; and

    (b) Has an interstitial space between the primary storage tank and secondary storage tank walls that allows for:

      (i) Tightness testing of both storage tank walls; and

      (ii) Monitoring of the interstitial space for a release from the primary storage tank.

  (5) “Elevated AST” means an AST that is not in direct contact with soil by either:

    (a) Being raised above the surface of the ground or bottom of a vault using supports designed to secure and support the AST from collapse when containing oil; or

    (b) Resting on a surface material that does not allow moisture penetration or corrosion, such as concrete or steel.

  (6) “Existing” means the installation or construction of an AST, an AST system, or a secondary containment dike was complete before June 13, 2022.

  (7) “External inspection” means a formal inspection of an AST conducted by a certified inspector in accordance with STI/SPFA SP001 “Standard for the Inspection of Aboveground Storage Tanks” to assess the condition of the AST to determine its suitability for continued service without entry into the AST interior.

  (8) “Formal inspection” means a documented external inspection or internal inspection of an AST conducted by a certified inspector in accordance with STI/SPFA SP001 “Standard for the Inspection of Aboveground Storage Tanks”.

  (9) Internal Inspection.

    (a) “Internal inspection” means a formal inspection of an AST conducted by a certified inspector in accordance with STI/SPFA SP001 “Standard for the Inspection of Aboveground Storage Tanks” to assess the internal and external condition of the AST to determine its suitability for continued service.

    (b) “Internal inspection” includes the requirements of an external inspection in STI/SPFA SP001 “Standard for the Inspection of Aboveground Storage Tanks”.

  (10) Interstitial Space.

    (a) “Interstitial space” means:

      (i) The space in a double-walled AST between the primary and secondary storage tank walls; or

      (ii) The space in a double-bottom AST that provides an open or closed void to allow monitoring for a release between two storage tank bottoms.

    (b) “Interstitial space” includes an interstice and an annular space.

  (11) “Maximum working level” means the liquid level of a shop-fabricated AST that should not be exceeded during normal filling procedures and is below the activation level of any overfill prevention equipment.

  (12) “New” means the installation or construction of an AST, an AST system, or a secondary containment dike was complete on or after June 13, 2022.

  (13) Out-of-Service.

    (a) “Out-of-service” means an AST system in which the owner, the operator, and the person in charge of the AST system has:

      (i) Emptied the AST system of all oil and sludge; and

      (ii) Designated the AST system as out-of-service in accordance with Regulation .13 of this chapter.

    (b) “Out-of-service” includes a change-in-service in which an AST system is emptied of all oil and sludge in order to store a non-oil product.

  (14) “Overfill” means an occurrence when an AST is filled beyond the overfill level and may result in a spill, release, or discharge of oil.

  (15) “Overfill level” means the maximum design capacity of a shop-fabricated AST as determined by the AST manufacturer.

  (16) “Repair” means work necessary to maintain or restore an AST system to a safe operating condition using industry approved standards.

  (17) Secondary Containment Dike.

    (a) “Secondary containment dike” means a secondary containment system that confines a spill, release, or discharge of oil from an AST or piping within the secondary containment system.

    (b) “Secondary containment dike” includes diking and a dike.

  (18) “Secured area” means an area of an oil storage facility or oil handling facility where the owner, the operator, and the person in charge of the facility protects oil storage operations and oil handling operations from unauthorized access by:

    (a) Providing appropriate security around an AST system, including fencing;

    (b) Marking an AST system with the fire hazard category for the type of product stored;

    (c) Posting “No Trespassing” signs; and

    (d) Providing an adequate security lighting system to:

      (i) Prevent acts of vandalism; and

      (ii) Assist in the detection of spills, releases, and discharges.

  (19) “Shop-fabricated AST” means a welded carbon steel or stainless steel AST fabricated in a manufacturing facility, or an AST not otherwise identified as field-erected.

  (20) “Vault” means an enclosure that:

    (a) May be located above or below grade;

    (b) Consists of four walls, a floor, and a top for the purpose of containing an AST;

    (c) Allows for the inspection, repair, or maintenance of the vault and an AST; and

    (d) Is not intended to be occupied by an individual for an extended period of time.

  (21) “Vaulted AST” means an AST enclosed within a vault.

#### Regulation .03 General Requirements.

*COMAR 26.10.17.03*

A. An owner, an operator, and a person in charge of a new or relocated AST system with a shop-fabricated AST shall ensure the new or relocated AST system meets the requirements of this chapter.

B. Unless otherwise specified in this chapter, an owner, an operator, and a person in charge of an existing AST system with a shop-fabricated AST shall ensure the existing AST system meets the requirements of this chapter not later than:

  (1) 2 years after June 13, 2022; or

  (2) Another time period approved by the Department.

C. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall comply with the following permit, license, or approval requirements, when applicable:

  (1) Obtain an Individual Oil Operations Permit or comply with the General Oil Operations Permit conditions, in accordance with COMAR 26.10.01.09;

  (2) Obtain a State discharge permit or National Pollution Discharge Elimination System permit, in accordance with COMAR 26.08.04;

  (3) Obtain an Oil Transfer License, in accordance with COMAR 26.10.01.08;

  (4) Obtain an Air Quality Permit to Construct, in accordance with COMAR 26.11.02;

  (5) Obtain a State Air Quality Permit to Operate, in accordance with COMAR 26.11.02; and

  (6) Comply with any other applicable federal, State, or local government permit, license, or approval requirements.

D. Notwithstanding the compliance schedule in §B of this regulation, an owner, an operator, and a person in charge of an AST system shall register and maintain up-to-date registration of the AST system with the Department in accordance with the procedures and schedule in COMAR 26.10.01.10.

E. Wetlands and Waterways. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall:

  (1) Prior to installing a new or replacement AST system or secondary containment dike, obtain any applicable wetland and waterways authorization stated in COMAR 26.10.01.04E; and

  (2) If installing the AST system in a location subject to flooding, protect the shop-fabricated AST from flotation by anchoring the storage tank in accordance with NFPA 30A “Code for Motor Fuel Dispensing Facilities and Repair Garages”.

#### Regulation .04 Performance Standards for Vaulted Shop-Fabricated ASTs.

*COMAR 26.10.17.04*

An owner, an operator, and a person in charge of an AST system that installs a shop-fabricated AST in a vault shall:

A. Construct a UL listed vault;

B. Ensure the vault and the vaulted AST comply with the design, construction, installation, and operation requirements of:

  (1) This regulation;

  (2) NFPA 30 “Flammable and Combustible Liquids Code”;

  (3) If the vaulted AST is used as part of a motor fuel dispensing facility, NFPA 30A “Code for Motor Fuel Dispensing Facilities and Repair Garages”; and

  (4) NFPA 70 “National Electrical Code” for all electrical wiring;

C. Ensure the vaulted AST is:

  (1) UL listed for aboveground use and for the type of product being stored;

  (2) Completely enclosed in the vault; and

  (3) Not partially or entirely covered by backfill;

D. Provide venting for the vault and the vaulted AST according to the following requirements:

  (1) If the AST stores a Class I liquid, vent the vault in accordance with NFPA 30 “Flammable and Combustible Liquids Code”;

  (2) Terminate a normal vent for the vaulted AST:

    (a) Outside of the vault;

    (b) At least 12 feet above ground level; and

    (c) At least 5 feet from a building opening;

  (3) A normal vent for the vaulted AST may not terminate in a location that allows vapors to be trapped by the eaves of a building;

  (4) Ensure that an emergency vent for the vaulted AST is vapor-tight and allows for the venting of vapors inside of the vault; and

  (5) Do not use a long-bolt manhole cover as an emergency vent for the vaulted AST;

E. Install vapor and liquid detection systems in the vault that meet the following requirements:

  (1) The vapor detection system:

    (a) Is equipped with an on-site alarm that has a battery backup;

    (b) Has vapor detectors located not higher than 12 inches above the lowest point in the vault; and

    (c) Is set to alarm when vapors reach or exceed 25 percent of the lower flammable limit of the oil stored;

  (2) The liquid detection system is:

    (a) Set to alarm upon detection of a liquid; and

    (b) Located in accordance with the liquid detection system manufacturer’s instructions; and

  (3) The vapor and liquid detection systems required under §E(1) and (2) of this regulation are designed so that if either system alarms, a signal alerts the owner, the operator, and the person in charge of the AST system:

    (a) At a constantly attended location where the vaulted AST is located; or

    (b) At another location that is continually monitored; and

F. Ensure the vaulted shop-fabricated AST complies with the spill and overfill prevention requirements in Regulation .08 of this chapter.

#### Regulation .05 Performance Standards for AST Systems with a Shop-Fabricated AST.

*COMAR 26.10.17.05*

An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall:

A. Ensure the AST system is:

  (1) Properly selected for the oil storage application and type of oil stored; and

  (2) Constructed to an industry standard, including a UL, STI or API standard;

B. Ensure the foundation for a stationary shop-fabricated AST is:

  (1) Constructed to:

    (a) Support the AST;

    (b) Prevent movement and uneven settlement of the foundation and the AST; and

    (c) Provide positive drainage of water away from the foundation;

  (2) Capable of supporting the soil-bearing pressure of the AST and its contents; and

  (3) Designed by a qualified professional engineer using field and laboratory testing and analyses, if the AST system is located in an area subject to flooding;

C. Install an elevated AST system, unless:

  (1) An alternate AST system is approved by the Department in writing; and

  (2) The owner, the operator, and the person in charge of the alternate AST system installs, tests, and maintains a cathodic protection system in accordance with Regulation .10 of this chapter; and

D. Test a new, repaired, or relocated AST system for tightness in accordance with NFPA 30 “Flammable and Combustible Liquids Code”:

  (1) Upon completing the installation or repair of the AST system; and

  (2) Before placing the AST system in-service.

#### Regulation .06 Performance Standards for Piping.

*COMAR 26.10.17.06*

An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall:

A. If installing or relocating a shop-fabricated AST on or after June 13, 2022, install piping that does not penetrate a secondary containment dike, unless otherwise approved by the Department;

B. Ensure an existing shop-fabricated AST meets the following requirements:

  (1) For piping connected to an AST penetrating a secondary containment dike:

    (a) Obtain approval from the Department to leave the piping in place; or

    (b) Properly abandon and replace the piping not later than 1 year after June 13, 2022 with piping that does not penetrate the secondary containment dike; and

  (2) For underground piping connected to an AST, ensure the piping complies with the underground piping requirements in §E of this regulation not later than 1 year after June 13, 2022;

C. Ensure an aboveground piping system connected to a shop-fabricated AST is:

  (1) Constructed of carbon steel, alloy steel, or stainless steel piping;

  (2) Compatible with the type of oil transferred in the piping;

  (3) Designed and constructed in accordance with recognized industry standards;

  (4) Liquid tight;

  (5) Properly supported by permanent bracing to prevent structural weaknesses; and

  (6) Protected against physical damage;

D. Ensure a piping system installed aboveground or inside of a building is not constructed with:

  (1) Low melting point materials, such as aluminum, copper, or brass;

  (2) Materials that soften on fire exposure, such as plastics; or

  (3) Non-ductile materials, such as cast iron;

E. If installing an underground piping system, comply with the following requirements:

  (1) Install the piping system, including containment sumps, in accordance with the performance standards in COMAR 26.10.03.02 and .03A(3);

  (2) Installation of the piping system is performed in the continuous on-site presence and under the direction of a certified UST system technician, as required under COMAR 26.10.02.03D;

  (3) Test the piping system for tightness in accordance with COMAR 26.10.03.05 and 26.10.05.02D;

  (4) Test the containment sumps for tightness in accordance with COMAR 26.10.03.03A(3);

  (5) Provide a method of leak detection in accordance with COMAR 26.10.05.02D;

  (6) Maintain the containment sumps clean and free of liquid; and

  (7) If a test for tightness conducted in accordance with §E(3) or (4) of this regulation results in a failed test result or a leak is found:

    (a) Report the failed test result to the Department within 2 hours in accordance with COMAR 26.10.08.01; and

    (b) Follow the investigation and confirmation procedures in COMAR 26.10.08.03, including making repairs and retesting the piping system and containment sumps for tightness.

#### Regulation .07 Secondary Containment.

*COMAR 26.10.17.07*

A. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall surround the AST system with a continuous secondary containment dike that meets the requirements of this regulation if:

  (1) The shop-fabricated AST is a single-walled AST with a capacity of 10,000 gallons or greater;

  (2) The shop-fabricated AST is a double-walled AST with a capacity of 10,000 gallons or greater, unless the double-walled shop-fabricated AST meets the conditions in §B of this regulation; or

  (3) The Department determines that the AST system poses a water pollution hazard due to its size, nature, or location.

B. An owner, an operator, and a person in charge of an AST system with a double-walled shop-fabricated AST is exempt from the requirement to install a secondary containment dike around the double-walled shop-fabricated AST provided the AST system:

  (1) Has overfill prevention equipment in accordance with Regulation .08 of this chapter;

  (2) Has a method of release detection in accordance with Regulation .09 of this chapter;

  (3) Is located within a secured area; and

  (4) Meets one of the following conditions:

    (a) The AST system is part of a motor fuel dispensing facility, has a storage capacity not greater than 12,000 gallons, and stores a Class I liquid;

    (b) The AST system is part of a motor fuel dispensing facility, has a storage capacity not greater than 15,000 gallons, and stores a Class II liquid; or

    (c) The AST system is not part of a motor fuel dispensing facility, has a storage capacity not greater than 20,000 gallons, and stores a Class II liquid or Class III liquid.

C. Compliance Schedule.

  (1) An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST that has a new secondary containment dike shall meet the requirements in §§D—J of this regulation upon installation of the secondary containment dike.

  (2) Unless otherwise provided in this regulation, an owner, an operator, and a person in charge of an AST system with a shop-fabricated AST that has an existing secondary containment dike shall meet the requirements in §§D—J of this regulation not later than:

    (a) 2 years after June 13, 2022; or

    (b) Another time period approved by the Department.

D. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST required under §A of this regulation to have a secondary containment dike shall ensure the secondary containment dike:

  (1) Can contain a spill, release, or discharge from an AST and connected piping within the secondary containment dike surrounding the AST until the spill, release, or discharge is detected and removed;

  (2) Is designed by a professional engineer;

  (3) Is approved by the Department;

  (4) Is designed with consideration given to the soil and groundwater conditions at the oil storage facility or oil handling facility;

  (5) Prevents movement of oil into, near, or in an area likely to pollute waters of the State;

  (6) Provides safe ingress and egress for an individual;

  (7) Prevents water accumulation at an AST foundation;

  (8) If the secondary containment dike surrounds two or more ASTs, is subdivided in accordance with NFPA 30 “Flammable and Combustible Liquids Code”;

  (9) If the secondary containment dike is exposed to precipitation, is designed and constructed to effectively hold 110 percent of the maximum capacity of the largest AST in the area enclosed by the secondary containment dike; and

  (10) Is constructed so that the secondary containment dike, upon testing, meets one of the following permeability criteria:

    (a) A permeability of less than 10-4 centimeters per second; or

    (b) A product level drop rate of less than 1 centimeter per 3 hours.

E. Within 90 days of conducting a permeability test on a secondary containment dike or another time period approved by the Department, an owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall repair or replace a secondary containment dike that does not meet one of the permeability criteria listed in §D(10) of this regulation.

F. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST that has an earthen secondary containment dike shall conduct permeability testing on the earthen secondary containment dike according to the following requirements:

  (1) For an existing earthen secondary containment dike that has not been previously tested for permeability, test the existing earthen secondary containment dike for permeability using an industry standard approved by the Department not later than 1 year after June 13, 2022;

  (2) Test a new earthen secondary containment dike for permeability using an industry standard approved by the Department upon completing the construction of the earthen secondary containment dike and prior to placing the AST in-service; and

  (3) Submit the results of the permeability testing to the Department not later than 60 days after the test.

G. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST that has a secondary containment dike shall maintain written verification that the secondary containment dike meets the applicable requirements in §D—F of this regulation in accordance with Regulation .14 of this chapter.

H. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST that has a secondary containment dike shall ensure a drain valve installed in the secondary containment dike is:

  (1) Not a flapper-type valve; and

  (2) Except when being used to drain trapped water in accordance with §I of this regulation, kept completely closed and locked at all times.

I. When draining trapped water from a secondary containment dike, an owner, an operator, and a person in charge of an AST system with a shop-fabricated AST that has the secondary containment dike shall:

  (1) Ensure the drainage leaving the secondary containment dike does not have any visible evidence of oil sheen;

  (2) Designate a representative to supervise, monitor, and document each drainage event from the secondary containment dike;

  (3) Keep a log that includes the following information for each secondary containment dike drainage event:

    (a) The name of the employee supervising, monitoring, and documenting the drainage;

    (b) The date of drainage event;

    (c) The time the drainage event started and ended;

    (d) The estimated volume of water drained; and

    (e) A description of the water quality, such as the presence of an oil sheen; and

  (4) Maintain the log required by §I(3) of this regulation in accordance with Regulation .14 of this chapter.

J. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST that has a secondary containment dike shall maintain the secondary containment dike clear and free of:

  (1) Vegetation; and

  (2) Flammable and combustible materials, including oil.

#### Regulation .08 Spill and Overfill Prevention.

*COMAR 26.10.17.08*

A. To prevent a spill, release, or discharge of oil due to an overfill of a shop-fabricated AST, an owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall:

  (1) Establish written procedures for filling the AST and maintain the procedures at the oil storage facility or oil handling facility;

  (2) Ensure the AST is:

    (a) Normally filled to a level that does not exceed the maximum working level of the AST; and

    (b) Never filled to the overfill level of the AST; and

  (3) If required under NFPA 30 “Flammable and Combustible Liquids Code” or §G of this regulation, install, operate, inspect, maintain, and test overfill prevention equipment in accordance with:

    (a) The requirements of this regulation and Regulation .12 of this chapter;

    (b) NFPA 30 “Flammable and Combustible Liquids Code”; and

    (c) PEI RP 600 “Recommended Practices for Overfill Prevention for Shop-Fabricated Aboveground Tanks”.

B. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST may not use overfill prevention equipment:

  (1) To control AST filling operations at an oil storage facility or oil handling facility; or

  (2) That restricts or interferes with the functioning of the normal or emergency vent of the AST.

C. In accordance with COMAR 26.10.08.04, an owner, an operator, and a person in charge of an AST system with a shop-fabricated AST and a responsible party shall:

  (1) Report and investigate a spill, release, or discharge from the AST system or an overfill; and

  (2) Remediate the spill, release, or discharge or the overfill.

D. Delivery and Transfer Operations. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall:

  (1) Confirm that the ullage available in the AST is greater than the volume of oil to be transferred to the AST before a delivery or transfer begins;

  (2) During a delivery or transfer operation, ensure:

    (a) A spill, release, or discharge of oil does not occur due to overfilling the AST or spilling oil during the transfer; and

    (b) The delivery or transfer operation is constantly monitored to prevent overfilling of the AST and spilling of oil;

  (3) Ensure the delivery or transfer operation is conducted in accordance with the requirements in COMAR 26.10.01.16—.18 and NFPA 385 “Standard for Tank Vehicles for Flammable and Combustible Liquids”; and

  (4) If the delivery is by truck tank or transport with a cargo tank capacity of 500 gallons or greater, confirm the company making an oil delivery or transfer holds a valid Individual Oil Operations Permit from the Department in accordance with COMAR 26.10.01.09.

E. Liquid Level Measurements. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall:

  (1) Gauge the liquid level and record the measurements in writing before filling the AST; and

  (2) Maintain the records required under §E(1) of this regulation in accordance with Regulation .14 of this chapter.

F. Tank Gauge. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall:

  (1) Equip the shop-fabricated AST with a tank gauge or other equivalent monitoring device that is:

    (a) Directly visible during a transfer operation;

    (b) Accurately measures the level or quantity of oil in the AST;

    (c) Independent of any overfill prevention equipment; and

    (d) Maintained in working order;

  (2) Install and maintain the tank gauge or other equivalent monitoring device in accordance with the manufacture’s specifications; and

  (3) Inspect and calibrate the tank gauge or other equivalent monitoring device at least once per year.

G. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST that has a storage capacity of 10,000 gallons or greater and is not located within a secondary containment dike shall install the following overfill prevention equipment on the AST system:

  (1) An overfill alarm that:

    (a) Has a test function to allow the operability of the device to be confirmed prior to each delivery or transfer of oil;

    (b) Consists of a visual alarm and an audible alarm that alerts an individual involved in the oil delivery or transfer operation; and

    (c) Goes into alarm when the liquid level in the AST reaches 90 percent of the overfill level and upon failure or malfunction of the overfill device; and

  (2) An automatic shut-off device that:

    (a) Has a test function to allow the operability of the device to be confirmed prior to each delivery or transfer of oil;

    (b) Automatically shuts off the flow of oil into the AST when the liquid level reaches 95 percent of the overfill level; and

    (c) Is equipped with a fail-safe mechanism that will trigger an alarm and shut off the flow of oil into the AST in the event of a device failure or malfunction.

H. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST using overfill prevention equipment shall:

  (1) At least monthly, inspect and perform maintenance of overfill protection equipment in accordance with the manufacturer’s instructions; and

  (2) At least annually, perform functional testing of overfill protection equipment in accordance with the manufacturer’s instructions.

I. Labeling. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall:

  (1) Provide the following labeling on the AST system:

    (a) The storage capacity of the AST in gallons;

    (b) The type of oil stored or last stored in the AST prior to being placed out-of-service;

    (c) A proper NFPA 704 “Standard System for the Identification of the Hazards of Materials for Emergency Response” placard; and

    (d) If the AST system was placed out-of-service in accordance with Regulation .13 of this chapter, the words “OUT-OF-SERVICE” or “EMPTY”; and

  (2) Permanently and clearly mark the shop-fabricated AST with the information listed in §I(1) of this regulation on, not less than two sides of the AST and in locations that are highly visible to employees of an oil storage facility or oil handling facility, contractors, government representatives, and emergency response personnel.

J. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall maintain records related to spill and overfill prevention measures required under this regulation in accordance with Regulation .14 of this chapter.

#### Regulation .09 Release Detection.

*COMAR 26.10.17.09*

A. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall provide a method or combination of release detection methods that detect a spill, release, or discharge from the AST system through:

  (1) Visual inspections of the AST system in accordance with Regulation .12 of this chapter;

  (2) A continuous electronic release detection system; or

  (3) A continuous mechanical release detection system.

B. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST using a continuous electronic or mechanical release detection system shall:

  (1) Install, calibrate, operate, and maintain the release detection system in accordance with the manufacturer’s instructions; and

  (2) At least annually:

    (a) Perform routine maintenance on the release detection system;

    (b) Check the release detection system for operability at scheduled service checks; and

    (c) Per the manufacturer’s specifications, inspect, field-test, or calibrate the release detection system to verify that the selected release detection method is being maintained and operated properly to detect a spill, release, or discharge.

C. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall monitor underground piping connected to the AST for spill, releases, and discharges in accordance with COMAR 26.10.05.02D.

#### Regulation .10 Corrosion Protection.

*COMAR 26.10.17.10*

A. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST that has a capacity less than 10,000 gallons shall install an elevated AST so that the storage tank is not in direct contact with soil or another material that may allow moisture penetration or corrosion.

B. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST that has a capacity of 10,000 gallons or greater, is not an elevated AST, and in direct contact with soil or another material that may allow moisture penetration or corrosion shall:

  (1) Provide one of the following cathodic protection systems:

    (a) An impressed current system;

    (b) A galvanic system; or

    (c) Subject to the approval of the Department, an alternative method of corrosion protection that is:

      (i) Designed to prevent a spill, release, or discharge of oil or a threatened spill, release, or discharge of oil in a manner determined by the Department to be not less protective of human health and the environment than the methods in §B(1)(a) and (b) of this regulation; and

      (ii) Approved by a corrosion expert; and

  (2) Provide a cathodic protection system that is:

    (a) Designed by a corrosion expert;

    (b) Designed and tested, at a minimum, in accordance with the following industry standards and recommended practices:

      (i) NACE SP0169-2013 “Control of External Corrosion on Underground or Submerged Metallic Piping Systems”;

      (ii) NACE SP0193-2016 “Application of Cathodic Protection to Control External Corrosion of Carbon Steel On-Grade Storage Tank Bottoms”;

      (iii) NACE TM0497-2018 “Measurement Techniques Related to Criteria for Cathodic Protection on Underground or Submerged Metallic Piping Systems”; and

      (iv) API Recommended Practice 651 “Cathodic Protection of Aboveground Petroleum Storage Tanks”;

    (c) Designed and installed to provide continuous corrosion protection to the external portion of the AST and other metal components of the AST system in contact with soil or other materials that may allow corrosion;

    (d) Installed with easily identifiable test stations, access points, or other methods to monitor the operation and functionality of the cathodic protection system; and

    (e) Continuously operated and maintained for the in-service and out-of-service life of the AST system.

C. Impressed Current System. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST system protected by an impressed current system shall:

  (1) Install, operate, maintain, inspect, and test the impressed current system in accordance with the requirements of this section;

  (2) Ensure the impressed current source is not de-energized at any time except to perform service work on the AST system;

  (3) Ensure the impressed current source is equipped with a continuously operating meter that displays the voltage, amperage, and operating (run) time;

  (4) At least once every 60 days:

    (a) Inspect the impressed current system to ensure the cathodic protection system is functioning properly by:

      (i) Verifying the power source to the impressed current system is on; and

      (ii) Recording the voltage, amperage, and operating time; and

    (b) Record and maintain the inspection results in accordance with Regulation .14 of this chapter;

  (5) At least annually:

    (a) Have a cathodic protection tester inspect and test:

      (i) The impressed current system for electrical shorts, ground connections, meter accuracy, and circuit resistance; and

      (ii) The condition of the impressed current system’s isolating devices, continuity bonds, and insulators; and

    (b) Record and maintain the results of the inspection and test in accordance with Regulation .14 of this chapter;

  (6) Have a corrosion expert inspect the impressed current system in accordance with an industry standard or recommended practice listed in §B(2) of this regulation:

    (a) When the impressed current system is 5 years of age; and

    (b) Every 5 years thereafter;

  (7) Provide a complete report for an inspection performed pursuant to §C(6) of this regulation to the Department and maintain a copy of the report in accordance with Regulation .14 of this chapter;

  (8) Except as provided in §C(9) of this regulation, if the protection provided by an impressed current system is determined to be inadequate to properly protect the AST system:

    (a) Employ a corrosion expert to determine the cause of the inadequacy within 30 days of the discovery; and

    (b) Either:

      (i) Complete repairs of the impressed current system within 60 days of the discovery or on a schedule approved by the Department; or

      (ii) If repairs cannot return the impressed current system to adequate performance, replace the impressed current system within 120 days of the discovery or on a schedule approved by the Department; and

  (9) If an impressed current system determined to be inadequate to provide proper protection to the AST system cannot be repaired or replaced in accordance with §C(8) of this regulation:

    (a) Empty all oil in contact with the portion of the AST system inadequately protected by the impressed current system; and

    (b) Place the AST system out-of-service in accordance with Regulation .13 of this chapter.

D. Galvanic System. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST system protected by a galvanic system shall:

  (1) Install, operate, maintain, inspect, and test the galvanic system in accordance with the requirements of this section;

  (2) Comply with the following inspection and test requirements:

    (a) A cathodic protection tester shall inspect and test the galvanic system in accordance with an industry standard or recommended practice listed in §B(2) of this regulation:

      (i) Within 6 months of installing the galvanic system; and

      (ii) At least annually thereafter;

    (b) A cathodic protection tester conducting an annual inspection shall make and record a sufficient number of AST-to-soil and underground piping-to-soil potential measurements to determine if the AST system is completely protected in accordance with an industry standard or recommended practice listed in §B(2) of this regulation; and

    (c) Maintain records of the AST-to-soil and underground piping-to-soil potential measurements in accordance with Regulation .14 of this chapter;

  (3) Except as provided under §D(4) of this regulation, if the protection provided by a galvanic system is determined to be inadequate to properly protect the AST system:

    (a) Employ a corrosion expert to determine the cause of the inadequacy within 30 days of the discovery; and

    (b) Either:

      (i) Complete repairs of the galvanic system within 60 days of the discovery or on a schedule approved by the Department; or

      (ii) If repairs cannot return the galvanic system to adequate performance, replace the galvanic system within 120 days of the discovery or on a schedule approved by the Department; and

  (4) If a galvanic system determined to be inadequate to provide proper protection to the AST system cannot be repaired or replaced in accordance with §D(3) of this regulation:

    (a) Empty all oil in contact with the portion of the AST system inadequately protected by the galvanic system; and

    (b) Place the AST system out-of-service in accordance with Regulation .13 of this chapter.

#### Regulation .11 Normal and Emergency Venting.

*COMAR 26.10.17.11*

A. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall ensure the normal venting for the shop-fabricated AST meets the following requirements:

  (1) Design and construct the normal venting in accordance with one of the following industry standards:

    (a) UL 142 “Standard for Safety, Steel Aboveground Tanks for Flammable and Combustible Liquids”; or

    (b) API Standard 2000 “Venting Atmospheric and Low-pressure Storage Tanks”;

  (2) The normal venting requirements for ASTs listed in NFPA 30 “Flammable and Combustible Liquids Code”; and

  (3) Vent an atmospheric pressure AST to prevent the development of vacuum or pressure above a 1.0 psi (6.9 kPa) maximum operating pressure.

B. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall ensure the emergency venting for the shop-fabricated AST meets the following requirements:

  (1) Design and construct emergency venting in accordance with one of the following industry standards:

    (a) UL 142 “Standard for Safety, Steel Aboveground Tanks for Flammable and Combustible Liquids”; or

    (b) API Standard 2000 “Venting Atmospheric and Low-pressure Storage Tanks”; and

  (2) Emergency venting meets the requirements in NFPA 30 “Flammable and Combustible Liquids Code”.

#### Regulation .12 Inspection Requirements for an AST System.

*COMAR 26.10.17.12*

A. Periodic Visual Inspections.

  (1) An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall conduct periodic visual inspections in accordance with:

    (a) The inspection procedures under §A(2) or (3) of this regulation; and

    (b) The recordkeeping requirements under §A(4) and (5) of this regulation.

  (2) An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST may meet the visual inspections requirement in §A(1) of this regulation by, at a minimum:

    (a) Inspecting for the following conditions monthly:

      (i) Signs of spills, releases, or discharges from any portion of the AST system;

      (ii) Water in the secondary containment dike and AST or, if a double-walled AST, the primary storage tank and interstice;

      (iii) The condition of the secondary containment dike, including drain valves;

      (iv) Signs of shell distortion;

      (v) Signs of settlement;

      (vi) Signs of corrosion;

      (vii) The condition of the AST foundation or supports;

      (viii) The condition of the exterior coating of the AST system;

      (ix) The condition of seams, rivets, and nozzle connections;

      (x) The condition of valves, pumps, piping, and other appurtenances directly connected to the AST;

      (xi) The condition of the tank gauge or an equivalent monitoring device;

      (xii) The condition of release detection systems; and

      (xiii) The condition of overfill protection equipment;

    (b) Inspecting containment sumps associated with an underground piping system monthly by:

      (i) Checking for evidence of a spill, release or discharge; and

      (ii) Removing any liquid or debris; and

    (c) Removing any water found during the monthly inspection from the secondary containment dike and AST or, if a double-walled AST, the primary storage tank and interstice.

  (3) An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST may meet the periodic visual inspections requirement in §A(1) of this regulation by conducting periodic AST inspections in accordance with STI/SPFA SP001 “Standard for the Inspection of Aboveground Storage Tanks”.

  (4) An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall maintain the following records related to periodic visual inspections:

    (a) If the AST system was inspected in accordance with §A(2) of this regulation, a written log or electronic record that includes:

      (i) The date of the inspection;

      (ii) The name and title of the individual performing the inspection;

      (iii) A description of each deficiency found;

      (iv) The name and title of the individual notified of the deficiencies found; and

      (v) A record of how and when the deficiencies were corrected; and

    (b) If the AST system was inspected in accordance with §A(3) of this regulation, the completed monthly and annual inspection checklists in STI/SPFA SP001 “Standard for the Inspection of Aboveground Storage Tanks”.

  (5) An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall maintain the records required in §A(4) of this regulation in accordance with Regulation .14 of this chapter.

B. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall conduct corrosion protection system inspections in accordance with Regulation .10 of this chapter.

C. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall:

  (1) Inspect and clean normal and emergency vents for the shop-fabricated AST annually; and

  (2) Maintain records of the vent inspection and cleaning required in §C(1) of this regulation in accordance with Regulation .14 of this chapter.

D. Formal Inspections and Leak Testing. In accordance with the procedures in STI/SPFA SP001 “Standard for the Inspection of Aboveground Storage Tanks”, an owner, an operator, and a person in charge of an oil storage facility or oil handling facility operating under an Individual Oil Operations Permit required under COMAR 26.10.01.09A shall:

  (1) As described in Section 5.0 of STI/SPFA SP001 “Standard for the Inspection of Aboveground Storage Tanks”, determine the formal inspection and leak testing schedule by the shop-fabricated AST size and category;

  (2) Have a certified inspector conduct formal external inspections and formal internal inspections on a shop-fabricated AST;

  (3) Have properly trained personnel conduct leak tests on a shop-fabricated AST in conjunction with a certified inspector conducting formal inspections on the shop-fabricated AST; and

  (4) Comply with the formal inspection report requirements under §E of this regulation.

E. Formal Inspection Report.

  (1) The certified inspector that conducts a formal external inspection or formal internal inspection of a shop-fabricated AST in accordance with §D of this regulation shall complete a final report for the formal inspection that, at a minimum:

    (a) Includes field data, measurements, pictures, drawings, tables, and an inspection summary;

    (b) Identifies unacceptable conditions and recommends corrective actions;

    (c) Determines the suitability of the AST for continued service per Section 10.0 of STI/SPFA SP001 “Standard for the Inspection of Aboveground Storage Tanks”;

    (d) Includes the date of the next scheduled formal external inspection or formal internal inspection; and

    (e) Includes the name and STI SP001 certification number of the certified inspector.

  (2) An owner, an operator, and a person in charge of an oil storage facility described in §D of this regulation shall:

    (a) Include the leak test results and supporting data in the final report for a shop-fabricated AST required under §E(1) of this regulation; and

    (b) Maintain the final reports completed for each formal inspection and leak test conducted on a shop-fabricated AST in accordance with Regulation .14 of this chapter.

#### Regulation .13 Out-of-Service and Permanent Closure.

*COMAR 26.10.17.13*

A. The requirements of this regulation apply to an owner, an operator, and a person in charge of an AST system with a shop-fabricated AST required under COMAR 26.10.01.10 to register the AST system with the Department.

B. Out-of-Service. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall complete each of the following steps to place the AST system out-of-service:

  (1) Remove all oil from the AST system;

  (2) Isolate all piping connected to the AST;

  (3) Remove all waste materials from the AST system, including storage tank-bottom sludge, and dispose of these materials in compliance with applicable federal, State, and local laws;

  (4) Purge all petroleum vapors and maintain the AST system vapor free;

  (5) Secure the AST system to prevent unauthorized entrance or tampering;

  (6) Protect the AST system from flotation;

  (7) Continue the operation and maintenance of corrosion protection on the AST system in accordance with Regulation .10 of this chapter;

  (8) Lock the fill port;

  (9) Label the AST using lettering at least 3 inches high, in a readily visible location on the AST, with the following information:

    (a) Date the AST was placed out-of-service;

    (b) Name of product last stored; and

    (c) The words “OUT-OF-SERVICE” or “EMPTY”; and

  (10) Notify the Department in writing 30 days before placing the AST system out-of-service.

C. Return to In-Service. An owner, an operator, and a person in charge of an out-of-service AST system with a shop-fabricated AST shall complete each of the following steps prior to placing the AST system in-service:

  (1) If a formal inspection and leak test was due to occur while the AST system was out-of-service, conduct a formal inspection and leak test of the AST system in accordance with Regulation .12 of this chapter;

  (2) Test all connected piping and appurtenances to ensure a spill, release, or discharge will not occur;

  (3) Maintain a copy of all corrosion protection system and formal inspection and testing reports, including the findings of inspections and tests and repairs performed, and provide a copy to the Department upon request; and

  (4) Notify the Department in writing 30 days before placing the AST system in-service.

D. Permanent Closure. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall permanently close the AST system in accordance with the following requirements:

  (1) At least 30 days before beginning the permanent closure of the AST system:

    (a) Notify the Department in writing of the planned AST system permanent closure; and

    (b) Submit to the Department for approval a proposed sampling plan for a site assessment to determine if there is evidence of a spill, release, or discharge where contamination is most likely to be present, which includes the sampling of, at a minimum, the following areas of the AST site:

      (i) Within and immediately outside of the secondary containment dike, if present;

      (ii) Within the footprint of the removed AST; and

      (iii) Beneath underground piping associated with the removed AST;

  (2) Place the AST system out-of-service in accordance with §B of this regulation;

  (3) Comply with PEI RP 1700 “Recommended Practices for the Closure of Underground Storage Tank and Shop-Fabricated Aboveground Storage Tank Systems”;

  (4) Disconnect and remove all aboveground piping associated with the AST system;

  (5) Disconnect and remove all underground piping associated with the AST system:

    (a) Under the continuous on-site presence and direction of a certified UST system technician or remover; and

    (b) In accordance with the UST system permanent closure procedures in COMAR 26.10.10.02D;

  (6) Remove the AST and associated piping from the site; and

  (7) Within 45 days of completing the permanent closure and approved site assessment, submit a closure report to the Department detailing:

    (a) The AST closure activities; and

    (b) The results of the sampling event, including a map identifying sample locations, laboratory results, summary of findings, and conclusions.

E. Change-in-Service. An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST placing the AST system out-of-service in order to store a non-oil product in the AST system shall:

  (1) Notify the Department in writing at least 30 days before placing the AST system out-of-service; and

  (2) Place the AST system out-of-service in accordance with the requirements of the Department.

F. Upon completing an out-of-service activity specified §§B—E of this regulation, an owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall:

  (1) Within 30 days, amend the AST system registration with the Department in accordance with COMAR 26.10.01.10; and

  (2) If the oil storage facility or oil handling facility is required under COMAR 26.10.01.09 to be operated under an Individual Oil Operation Permit, submit a request to modify the Individual Oil Operations Permit in accordance with COMAR 26.10.01.12.

#### Regulation .14 Recordkeeping.

*COMAR 26.10.17.14*

An owner, an operator, and a person in charge of an AST system with a shop-fabricated AST shall:

A. Maintain the records required under this chapter at the oil storage facility or oil handling facility, or another a readily accessible location;

B. Provide the records to the Department upon request;

C. Retain the following records for a minimum of 5 years:

  (1) Records of periodic visual inspections conducted in accordance with Regulation .12A of this chapter;

  (2) Records of annual normal and emergency vent inspections and cleaning conducted in accordance with Regulation .12C of this chapter;

  (3) Inventory control records;

  (4) Overfill prevention equipment testing records;

  (5) Release detection records;

  (6) Secondary containment dike drainage logs;

  (7) Tank gauging device calibration records; and

  (8) Testing records for aboveground and underground piping; and

D. Retain the following AST system records for the operational life of an AST system and for at least 5 years after an AST system was permanently closed in accordance with Regulation .13 of this chapter:

  (1) Construction records, including records of:

    (a) The AST name plate information;

    (b) The original as-built specifications and drawings and any modifications made to the AST system during the operational life of the AST system;

    (c) Applicable manufacturer’s documentation for ancillary equipment;

    (d) Tests conducted upon completing an installation or repair of an AST system component, including hydrostatic testing and pressure tightness testing;

    (e) Material tests and analyses, including secondary containment dike permeability tests; and

    (f) The names of the companies performing construction activities and a description of the work performed;

  (2) Cathodic protection system inspections records for impressed current and galvanic systems, including records of:

    (a) Cathodic protection system design description;

    (b) Inspection findings and conclusions;

    (c) Recommendations; and

    (d) Testing and repair records;

  (3) A complete copy of each final report for a formal inspection;

  (4) Records of AST system repairs and alteration history, including names of companies completing repair work;

  (5) Records of secondary containment dike testing and evaluation;

  (6) Records of spills, releases, and discharges and written reports of the occurrences required by COMAR 26.10.01.05E; and

  (7) A closure report for an AST system permanently closed in accordance with Regulation .13 of this chapter.

### Chapter 18 — Field-Erected Aboveground Storage Tanks

**Authority:** Environment Article, §§4-401—4-403, 4-405, 4-406, 4-408, 4-410—4-412, 4-415-1—4-418, 4-501, and 4-502, Annotated Code of Maryland

**Administrative History:** Effective date: June 13, 2022 (49:12 Md. R. 642)

#### Regulation .01 Scope.

*COMAR 26.10.18.01*

A. This chapter applies to an owner, an operator, and a person in charge of an AST system with a field-erected AST that is used or may be used to store oil at an oil storage facility or oil handling facility.

B. An owner, an operator, and a person in charge of an AST system subject to the requirements in this chapter shall meet all applicable requirements under COMAR 26.10.01 for an oil storage facility or an oil handling facility.

C. An owner, an operator, and a person in charge of an AST system with a field-erected AST used for storing asphalt only is exempt from the following requirements of this chapter:

  (1) The spill and overfill prevention requirements in Regulation .07 of this chapter;

  (2) The release detection requirements in Regulation .08 of this chapter; and

  (3) The emergency venting requirement in Regulation .10B of this chapter if the AST system larger than 12,000 gallon capacity and is not located in:

    (a) A secondary containment dike with another AST system storing a Class I liquid or Class II liquid; or

    (b) The drainage path of another AST system storing a Class I liquid or Class II liquid.

#### Regulation .02 Definitions.

*COMAR 26.10.18.02*

A. In this chapter:

  (1) A term in §B of this regulation has the meaning indicated; and

  (2) A term not defined in §B of this regulation has:

    (a) The meaning given to the term in a relevant statute or COMAR 26.10.01 or 26.10.02; or

    (b) If not defined in a relevant statute or COMAR 26.10.01 or 26.10.02, the meaning attributed by common use.

B. Terms Defined.

  (1) “AST” has the meaning stated in COMAR 26.10.01.02B.

  (2) “AST system” has the meaning stated in COMAR 26.10.01.02B.

  (3) “Authorized inspector” means an individual qualified and certified to inspect an AST under API Standard 653 “Tank Inspection, Repair, Alteration, and Reconstruction”.

  (4) “Coating” means a protective material applied to or bonded to an internal or external AST surface, including paint, protective metals, adhered plastic, or polyolefin materials.

  (5) Critical High Level.

    (a) “Critical high level” means the highest level in a field-erected AST that oil can reach without detrimental impacts, such as an overflow of oil from the AST or damage to the AST.

    (b) “Critical high level” includes the design liquid level of a field-erected AST as determined by the AST manufacturer.

  (6) “Existing” means the installation or construction of an AST, an AST system, or a secondary containment dike was complete before June 13, 2022.

  (7) “External inspection” means a formal inspection of an AST to assess all aspects of the storage tank possible without suspending operations or requiring an AST shutdown, performed by or under the supervision of an authorized inspector in accordance with API Standard 653 “Tank Inspection, Repair, Alteration, and Reconstruction” and Regulation .11F of this chapter.

  (8) Field-erected AST.

    (a) “Field-erected AST” means an AST that is:

      (i) Welded carbon steel or stainless steel;

      (ii) Erected or constructed by assembling the AST on-site at an oil storage facility; and

      (iii) Erected or constructed for the purpose of storing oil.

    (b) “Field-erected AST” includes an AST that:

      (i) Has a nameplate or other identifier that indicates it is a field-erected AST; or

      (ii) Is not identified as a shop-fabricated AST.

  (9) “Formal inspection” means a documented external inspection or internal inspection of an AST conducted by or under the supervision of an authorized inspector in accordance with API Standard 653 “Tank Inspection, Repair, Alteration, and Reconstruction” and Regulation .11 of this chapter.

  (10) “High-high level” means a level in a field-erected AST established under Regulation .07 of this chapter that:

    (a) Is sufficiently below the critical high level of the AST; and

    (b) Enables the termination of an oil delivery or transfer before the critical high level in the AST is reached.

  (11) “Internal inspection” means a formal and complete inspection of an emptied and cleaned AST performed under the supervision of an authorized inspector in accordance with API Standard 653 “Tank Inspection, Repair, Alteration, and Reconstruction” and Regulation .11H of this chapter.

  (12) Maximum Working Level.

    (a) “Maximum working level” means a liquid level of a field-erected AST that should not be exceeded during normal filling procedures and is at least 3 inches below the high-high level of the AST.

    (b) “Maximum working level” includes the normal fill level.

  (13) “New” means the installation or construction of an AST, an AST system, or a secondary containment dike was complete on or after June 13, 2022.

  (14) Out-of-Service.

    (a) “Out-of-service” means an AST system in which the owner, the operator, and the person in charge of the AST system has:

      (i) Emptied the AST system of all oil and sludge; and

      (ii) Designated the AST system as out-of-service in accordance with Regulation .12 of this chapter.

    (b) “Out-of-service” includes a change-in-service in which an AST system is emptied of all oil and sludge in order to store a non-oil product.

  (15) “Overfill” means an occurrence when an AST is filled beyond its critical high level and may result in a spill, release, or discharge of oil.

  (16) Repair.

    (a) “Repair” means work necessary to maintain or restore an AST system to a safe operating condition using industry approved standards.

    (b) “Repair” may include

      (i) Removing and replacing the roof, shell, or bottom material to maintain AST integrity or ancillary AST equipment;

      (ii) Re-leveling of an AST’s shell, bottom, or roof;

      (iii) Adding or replacing reinforcing plates to existing shell penetrations; and

      (iv) Correcting flaws, such as tears or gouges, by grinding or gouging followed by welding.

  (17) Secondary Containment Dike.

    (a) “Secondary containment dike” means a secondary containment system that confines a spill, release, or discharge of oil from an AST or piping within the secondary containment system.

    (b) “Secondary containment dike” includes diking and a dike.

  (18) “Storage tank strapping record” means a current, up-to-date storage tank record for a field-erected AST that:

    (a) Is developed by an owner, an operator, and a person in charge of an AST system; and

    (b) Identifies, by calculations, the following levels of concern:

      (i) Maximum working level;

      (ii) High-high level; and

      (iii) Critical high level.

#### Regulation .03 General Requirements.

*COMAR 26.10.18.03*

A. An owner, an operator, and a person in charge of a new or relocated AST system with a field-erected AST shall ensure that the AST system meets the requirements of this chapter.

B. Unless otherwise specified in this chapter, an owner, an operator, and a person in charge of an existing AST system with a field-erected AST shall ensure the AST system meets the requirements of this chapter not later than:

  (1) 2 years after June 13, 2022; or

  (2) Another time period approved by the Department.

C. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall comply with the following permit, license, or approval requirements, when applicable:

  (1) Obtain an Individual Oil Operations Permit or comply with the General Oil Operations Permit conditions, in accordance with COMAR 26.10.01.09;

  (2) Obtain a State discharge permit or National Pollution Discharge Elimination System permit, in accordance with COMAR 26.08.04;

  (3) Obtain an Oil Transfer License, in accordance with COMAR 26.10.01.08;

  (4) Obtain an Air Quality Permit to Construct, in accordance with COMAR 26.11.02;

  (5) Obtain a State Air Quality Permit to Operate, in accordance with COMAR 26.11.02; and

  (6) Comply with any other applicable federal, State, or local government permit, license, or approval requirements.

D. Notwithstanding the compliance schedule in §B of this regulation, an owner, an operator, and a person in charge of an AST system with a field-erected AST shall register and maintain up-to-date registration of the AST system with the Department in accordance with the procedures and schedule in COMAR 26.10.01.10.

E. Wetlands and Waterways. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

  (1) Prior to installing a new or replacement AST system or secondary containment dike, obtain any applicable wetland and waterways authorization stated in COMAR 26.10.01.04E; and

  (2) If installing the AST system in a location subject to flooding, protect the field-erected AST from flotation by anchoring the storage tank in accordance with NFPA 30A “Code for Motor Fuel Dispensing Facilities and Repair Garages”.

#### Regulation .04 Performance Standards for a Field-Erected AST System.

*COMAR 26.10.18.04*

An owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

A. Ensure the field-erected AST is:

  (1) Properly designed for the oil storage application and type of oil to be stored;

  (2) Constructed of welded carbon steel or stainless steel; and

  (3) Constructed to an industry standard, including an API standard for field-erected ASTs incorporated by reference in COMAR 26.10.01.03;

B. Ensure the foundation of the field-erected AST:

  (1) Is designed and constructed in accordance with Annexes B and I of API Standard 650 “Welded Tanks for Oil Storage” to prevent settlement of the foundation and the AST due to soil bearing capacity and other site conditions using:

    (a) Field and laboratory testing; and

    (b) Analyses and other sound engineering practices performed by a professional engineer;

  (2) Is capable of supporting the load of the AST and its contents without excessive differential settlement; and

  (3) Provides positive drainage of water away from the AST base; and

C. Test a new, repaired, or relocated AST system for tightness in accordance with NFPA 30 “Flammable and Combustible Liquids Code”:

  (1) Upon completion of the installation or repair of the AST system; and

  (2) Before placing the AST system in-service

#### Regulation .05 Performance Standards for Piping.

*COMAR 26.10.18.05*

An owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

A. If installing or relocating a field-erected AST on or after June 13, 2022, install piping that does not penetrate a secondary containment dike, unless otherwise approved by the Department;

B. Ensure an existing field-erected AST meets the following requirements:

  (1) For piping connected to an AST penetrating a secondary containment dike:

    (a) Obtain approval of the Department to leave the piping in place; or

    (b) Properly abandon and replace the piping not later than 1 year after June 13, 2022 with piping that does not penetrate the secondary containment dike; and

  (2) For underground piping connected to an AST, ensure the piping complies with the underground piping requirements in §E of this regulation not later than 1 year after June 13, 2022;

C. Ensure an aboveground piping system connected to a field-erected AST is:

  (1) Constructed of carbon steel, alloy steel, or stainless steel piping;

  (2) Compatible with the type of oil being transferred;

  (3) Designed and constructed in accordance with industry recognized standards;

  (4) Liquid tight;

  (5) Properly supported by permanent bracing to prevent structural weaknesses; and

  (6) Protected against physical damage;

D. Ensure a piping system installed aboveground or inside of a building is not constructed with:

  (1) Low melting point materials, such as aluminum, copper, or brass;

  (2) Materials that soften on fire exposure, such as plastics; or

  (3) Non-ductile materials, such as cast iron; and

E. If installing an underground piping system, comply with the following requirements:

  (1) Install the piping system, including containment sumps, in accordance with the performance standards in COMAR 26.10.03.02 and .03A(3);

  (2) Installation of the piping system is performed in the continuous on-site presence and under the direction of a certified UST system technician, as required under COMAR 26.10.02.03D;

  (3) Test the piping system for tightness in accordance with COMAR 26.10.03.05 and 26.10.05.02D;

  (4) Test the containment sumps for tightness in accordance with COMAR 26.10.03.03A(3);

  (5) Provide a method of leak detection in accordance with COMAR 26.10.05.02D;

  (6) Maintain the containment sumps clean and free of liquid; and

  (7) If a test for tightness conducted in accordance with §E(3) or (4) of this regulation results in a failed test result or a leak is found:

    (a) Report the failed test result to the Department within 2 hours in accordance with COMAR 26.10.08.01; and

    (b) Follow the investigation and confirmation procedures in 26.10.08.03, including making repairs and retesting the piping system and containment sumps for tightness.

#### Regulation .06 Secondary Containment.

*COMAR 26.10.18.06*

A. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall surround the AST system with a continuous secondary containment dike that meets the requirements of this regulation.

B. Compliance Schedule.

  (1) An owner, an operator, and a person in charge of an AST system with a field-erected AST that has a new secondary containment dike shall meet the requirements in §§C—H of this regulation upon installation of the secondary containment dike.

  (2) Unless otherwise provided in this regulation, an owner, an operator, and a person in charge of an AST system with a field-erected AST that has an existing secondary containment dike shall meet the requirements in §§C—H of this regulation not later than:

    (a) 2 years after June 13, 2022; or

    (b) Another time period approved by the Department.

C. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall ensure a secondary containment dike:

  (1) Can contain a spill, release, or discharge from an AST and connected piping within the secondary containment dike surrounding the AST until the spill, release, or discharge is detected and removed;

  (2) Is designed by a professional engineer;

  (3) Is approved by the Department;

  (4) Is designed with consideration given to the soil and groundwater conditions at the oil storage facility or oil handling facility;

  (5) Prevents movement of oil into, near, or in an area likely to pollute waters of the State;

  (6) Provides safe ingress and egress for an individual;

  (7) Prevents water accumulation at an AST foundation;

  (8) If the secondary containment dike surrounds two or more ASTs, is subdivided in accordance with NFPA 30 “Flammable and Combustible Liquids Code”;

  (9) If a secondary containment dike for an AST is exposed to precipitation, is designed and constructed to effectively hold 110 percent of the maximum capacity of the largest AST in the area enclosed by the secondary containment dike; and

  (10) Is constructed so that the secondary containment dike, upon testing, meets one of the following permeability criteria:

    (a) A permeability of less than 10-4 centimeters per second; or

    (b) A product level drop rate of less than 1 centimeter per 3 hours.

D. Within 90 days of conducting a permeability test on a secondary containment dike or another time period approved by the Department, an owner, an operator, and a person in charge of an AST system with a field-erected AST shall repair or replace a secondary containment dike that does not meet the permeability criteria listed in §C(10) of this regulation.

E. An owner, an operator, and a person in charge of an AST system with a field-erected AST that has an earthen secondary containment dike shall conduct permeability testing on the earthen secondary containment dike according to the following requirements:

  (1) For an existing earthen secondary containment dike that has not been previously tested for permeability, test the existing earthen secondary containment dike for permeability using an industry standard approved by the Department not later than 1 year after June 13, 2022;

  (2) Test a new earthen secondary containment dike for permeability using an industry standard approved by the Department upon completing the construction of the earthen secondary containment dike and prior to placing the AST in-service; and

  (3) Submit the results of the permeability testing to the Department not later than 60 days after the test.

F. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall maintain written verification that a secondary containment dike meets the requirements in §§C—E of this regulation in accordance with Regulation .13 of this chapter.

G. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall ensure a drain valve installed in a secondary containment dike is:

  (1) Not a flapper-type valve; and

  (2) Except when being used to drain trapped water in accordance with §H of this regulation, kept completely closed and locked at all times.

H. When draining trapped water from a secondary containment dike, an owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

  (1) Ensure the drainage leaving the secondary containment dike does not have any visible evidence of oil sheen;

  (2) Designate an individual to supervise, monitor, and document each drainage event from the secondary containment dike;

  (3) Keep a log that includes the following information for each secondary containment dike drainage event:

    (a) The name of employee supervising, monitoring, and documenting the drainage event;

    (b) The date of the discharge event;

    (c) The time discharge event started and ended;

    (d) The estimated volume of water drained; and

    (e) A description of the water quality, such as the presence of an oil sheen; and

  (4) Maintain the log required by §H(3) of this regulation in accordance with Regulation .13 of this chapter.

I. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall maintain a secondary containment dike clear and free of:

  (1) Vegetation; and

  (2) Flammable and combustible materials, including oil.

#### Regulation .07 Spill and Overfill Prevention.

*COMAR 26.10.18.07*

A. To prevent a spill, release, or discharge of oil due to an overfill of a field-erected AST, an owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

  (1) Establish written procedures for filling the AST and maintain the procedures at the oil storage facility or oil handling facility;

  (2) Ensure the AST is:

    (a) Normally filled to a level that does not exceed the maximum working level of the AST;

    (b) If filled to or in excess of the high-high level, emptied to the maximum working level as soon as practical; and

    (c) Never filled to the critical high level; and

  (3) Install, operate, inspect, maintain, and test overfill prevention equipment in accordance with:

    (a) The requirements of this regulation and Regulation .11 of this chapter;

    (b) NFPA 30 “Flammable and Combustible Liquids Code”; and

    (c) If an oil storage facility meets the conditions in §H of this regulation, ANSI/API Standard 2350 “Overfill Prevention for Storage Tanks in Petroleum Facilities”.

B. An owner, an operator, and a person in charge of an AST system with a field-erected AST may not use overfill prevention equipment:

  (1) To control AST filling operations at an oil storage facility or oil handling facility; or

  (2) That restricts or interferes with the functioning of the AST’s normal or emergency vent.

C. In accordance with COMAR 26.10.08.04, an owner, an operator, and a person in charge of an AST system with a field-erected AST and a responsible party shall:

  (1) Report and investigate a spill, release, or discharge from the AST system or an overfill; and

  (2) Remediate the spill, release, or discharge or the overfill.

D. Delivery and Transfer Operations. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

  (1) Confirm that the ullage available in the AST is greater than the volume of oil to be transferred to the AST before a delivery or transfer begins;

  (2) During a delivery or transfer operation, ensure:

    (a) A spill, release, or discharge of oil does not occur due to overfilling the AST or spilling oil during the transfer; and

    (b) The delivery or transfer operation is constantly monitored to prevent overfilling of the AST and spilling of oil;

  (3) Ensure the delivery or transfer operation is conducted in accordance with the requirements in COMAR 26.10.01.16—.18 and NFPA 385 “Standard for Tank Vehicles for Flammable and Combustible Liquids”; and

  (4) If the delivery is by truck tank or transport with a cargo tank capacity of 500 gallons or greater, confirm the company making an oil delivery or transfer holds a valid Individual Oil Operations Permit from the Department in accordance with COMAR 26.10.01.09.

E. Liquid Level Measurements. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

  (1) Gauge the liquid level and record the measurements in writing before filling the AST; and

  (2) Maintain the records required under §E(1) of this regulation in accordance with Regulation .13 of this chapter.

F. Tank Gauge. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

  (1) Equip the field-erected AST with a tank gauge or other equivalent monitoring device that is:

    (a) Directly visible during a transfer operation;

    (b) Accurately measures the level or quantity of oil in the AST;

    (c) Independent of any overfill prevention equipment; and

    (d) Maintained in working order;

  (2) Install and maintain the tank gauge or other equivalent monitoring device in accordance with manufacture’s specifications; and

  (3) Inspect and calibrate the tank gauge or other equivalent monitoring device at least once per year.

G. Overfill Prevention Equipment. Except as provided in §H of this regulation, an owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

  (1) Install the following overfill prevention equipment on the AST:

    (a) A high-high level alarm that:

      (i) Has a test function to allow the operability of the device to be confirmed prior to each delivery or transfer of oil;

      (ii) Consists of a visual alarm and an audible alarm that alerts an individual involved in the oil delivery or transfer; and

      (iii) Goes into alarm when the liquid level reaches the high-high level of the AST established in §G(2) of this regulation and upon the failure or malfunction of the device; and

    (b) An automatic shut-off device that:

      (i) Has a test function to allow the operability of the device to be confirmed prior to each delivery or transfer of oil;

      (ii) Automatically shuts off the flow of oil into an AST when the liquid level reaches the automatic shut off level of the AST established in §G(2) of this regulation; and

      (iii) Is equipped with a fail-safe mechanism that will trigger an alarm and shut off the flow of oil into an AST in the event of a device failure or malfunction;

  (2) Set the levels at which the overfill prevention equipment activates as follows:

    (a) For a field-erected AST with a capacity of less than 200,000 gallons:

      (i) The high-high level may not be greater than 90 percent of the critical high level of the AST; and

      (ii) The automatic shut off level may not be greater than 95 percent of the critical high level of the AST;

    (b) For a field-erected AST with a capacity of 200,000 gallons or greater but less than 1,000,000 gallons:

      (i) The high-high level may not be greater than 95 percent of the critical high level of the AST; and

      (ii) The automatic shut off level may not be greater than 98 percent of the critical high level of the AST; and

    (c) For a field-erected AST with a capacity of 1,000,000 gallons or greater:

      (i) The high-high level may not be less than 6 inches below the critical high level of the AST; and

      (ii) The automatic shut off level may not be less than 3 inches below the critical high level of the AST;

  (3) At least monthly, inspect and perform maintenance of overfill protection equipment in accordance with the manufacturer’s instructions; and

  (4) At least annually, perform functional testing of overfill protection equipment in accordance with the manufacturer’s instructions.

H. Overfill Prevention System.

  (1) An owner, an operator, and a person in charge of the following AST systems with a field-erected AST shall comply with the requirements of this section:

    (a) An AST system that receives Class I liquids or Class II liquids by interstate pipeline, intrastate pipeline, or marine vessel transfers; or

    (b) An AST system that is otherwise subject to the requirements of ANSI/API Standard 2350 “Overfill Prevention for Storage Tanks in Petroleum Facilities”.

  (2) In accordance with ANSI/API Standard 2350 “Overfill Prevention for Storage Tanks in Petroleum Facilities”, an owner, an operator, and a person in charge of a AST system with a field-erected AST listed in §H(1) of this regulation shall create and implement a comprehensive overfill prevention system that incorporates the following components:

    (a) A documented management system;

    (b) A risk assessment for each AST subject to an overfill;

    (c) Defined operational parameters, including levels of concern within the AST, response times, and periodic reviews of the levels of concern and response times;

    (d) Written procedures for:

      (i) Receiving and terminating transfers;

      (ii) Emergencies and abnormal conditions;

      (iii) Training personnel on the overfill prevention system;

      (iv) Testing, inspecting, and maintaining overfill prevention equipment and associated training of personnel; and

      (v) Maintenance of records, including records for testing and maintenance of overfill prevention equipment, storage tank alarm history, actuation of overfill prevention equipment, and overfills; and

    (e) The physical overfill prevention equipment.

I. Labeling. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

  (1) Provide the following labeling on the AST system:

    (a) The storage capacity of the AST in gallons;

    (b) The type of oil stored or last stored in the AST prior to being placed out-of-service;

    (c) A proper NFPA 704 “Standard System for the Identification of the Hazards of Materials for Emergency Response” placard; and

    (d) If the AST system was placed out-of-service in accordance with Regulation .12 of this chapter, the words “OUT-OF-SERVICE” or “EMPTY”; and

  (2) Permanently and clearly mark the field-erected AST with the information listed in §I(1) of this regulation on, not less than two sides of the AST and in locations that are highly visible to employees of the oil storage facility or oil handling facility, contractors, government representatives, and emergency response personnel.

J. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall maintain records related to spill and overfill prevention measures required under this regulation in accordance with Regulation .13 of this chapter.

#### Regulation .08 Release Detection.

*COMAR 26.10.18.08*

A. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall provide a method or combination of release detection methods that detect a spill, release, or discharge from the AST system through:

  (1) Visual inspections of the AST system in accordance with Regulation .11 of this chapter;

  (2) A continuous electronic release detection system; or

  (3) A continuous mechanical release detection system.

B. An owner, an operator, and a person in charge of an AST system with a field-erected AST using a continuous electronic or mechanical release detection system shall:

  (1) Install, calibrate, operate, and maintain the release detection system in accordance with the manufacturer’s instructions; and

  (2) At least annually:

    (a) Perform routine maintenance on the release detection system;

    (b) Check the release detection system for operability at scheduled service checks; and

    (c) Per the manufacturer’s specifications, inspect, field-test, or calibrate the release detection system to verify that the selected release detection method is being maintained and operated properly to detect a spill, release, or discharge.

C. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall monitor underground piping connected to the AST for spill, releases, and discharges in accordance with COMAR 26.10.05.02D.

#### Regulation .09 Corrosion Protection.

*COMAR 26.10.18.09*

A. An owner, an operator, and a person in charge of an AST system with a field-erected AST that has a capacity less than 10,000 gallons shall install an elevated AST so that the storage tank is not in direct contact with soil or another material that may allow moisture penetration or corrosion.

B. An owner, an operator, and a person in charge of an AST system with a field-erected AST that has a capacity of 10,000 gallons or greater, is not an elevated AST, and in direct contact with soil or another material that may allow moisture penetration or corrosion shall:

  (1) Provide one of the following cathodic protection systems:

    (a) An impressed current system;

    (b) A galvanic system; or

    (c) Subject to the approval of the Department, an alternative method of corrosion protection that is:

      (i) Designed to prevent a spill, release, or discharge of oil or a threatened spill, release, or discharge of oil in a manner determined by the Department to be not less protective of human health and the environment than the methods in §B(1)(a) and (b) of this regulation; and

      (ii) Approved by a corrosion expert; and

  (2) Provide a cathodic protection system that is:

    (a) Designed by a corrosion expert;

    (b) Designed and tested, at a minimum, in accordance with the following industry standards and recommended practices:

      (i) NACE SP0169-2013 “Control of External Corrosion on Underground or Submerged Metallic Piping Systems”;

      (ii) NACE SP0193-2016 “Application of Cathodic Protection to Control External Corrosion of Carbon Steel On-Grade Storage Tank Bottoms”;

      (iii) NACE TM0497-2018 “Measurement Techniques Related to Criteria for Cathodic Protection on Underground or Submerged Metallic Piping Systems”; and

      (iv) API Recommended Practice 651 “Cathodic Protection of Aboveground Petroleum Storage Tanks”;

    (c) Designed and installed to provide continuous corrosion protection to the external portion of the AST and other metal components of the AST system in contact with soil or other materials that may allow corrosion;

    (d) Installed with easily identifiable test stations, access points, or other methods to monitor the operation and functionality of the cathodic protection system; and

    (e) Continuously operated and maintained for the in-service and out-of-service life of the AST system.

C. Impressed Current System. An owner, an operator, and a person in charge of an AST system with a field-erected AST protected by an impressed current system shall:

  (1) Install, operate, maintain, inspect, and test the impressed current system in accordance with the requirements of this section;

  (2) Ensure the impressed current source is not de-energized at any time except to perform service work on the AST system;

  (3) Ensure the impressed current source is equipped with a continuously operating meter that displays the voltage, amperage, and operating (run) time;

  (4) At least once every 60 days:

    (a) Inspect the impressed current system to ensure the cathodic protection system is functioning properly by:

      (i) Verifying the power to the impressed current system is on; and

      (ii) Recording the voltage, amperage, and operating time; and

    (b) Record and maintain the inspection results in accordance with Regulation .13 of this chapter;

  (5) At least annually:

    (a) Have a cathodic protection tester inspect and test:

      (i) The impressed current system for electrical shorts, ground connections, meter accuracy, and circuit resistance; and

      (ii) The condition of the impressed current system’s isolating devices, continuity bonds, and insulators; and

    (b) Record and maintain the results of the inspection and test in accordance with Regulation .13 of this chapter;

  (6) Have a corrosion expert inspect the impressed current system in accordance with an industry standard or recommended practice listed in §B(2) of this regulation:

    (a) When the impressed current system is 5 years of age; and

    (b) Every 5 years thereafter;

  (7) Provide a completed report for an inspection performed pursuant to §C(6) of this regulation to the Department and maintain a copy of the report in accordance with Regulation .13 of this chapter;

  (8) Except as provided in §C(9) of this regulation, if the protection provided by an impressed current system is determined to be inadequate to properly protect the AST system:

    (a) Employ a corrosion expert to determine the cause of the inadequacy within 30 days of the discovery; and

    (b) Either:

      (i) Complete repairs of the impressed current system within 60 days of the discovery or on a schedule approved by the Department; or

      (ii) If repairs cannot return the impressed current system to adequate performance, replace the impressed current system within 120 days of the discovery or on a schedule approved by the Department; and

  (9) If an impressed current system determined to be inadequate to provide proper protection to the AST system cannot be repaired or replaced in accordance with §C(8) of this regulation:

    (a) Empty all oil in contact with the portion of the AST system inadequately protected by the impressed current system; and

    (b) Place the AST system out-of-service in accordance with Regulation .13 of this chapter.

D. Galvanic System. An owner, an operator, and a person in charge of an AST system with a field-erected AST protected by a galvanic system shall:

  (1) Install, operate, maintain, inspect, and test the galvanic system in accordance with the requirements of this section;

  (2) Comply with the following inspection and test requirements:

    (a) A cathodic protection tester shall inspect and test the galvanic system in accordance with an industry standard or recommended practice listed in §B(2) of this regulation:

      (i) Within 6 months of installing the galvanic system; and

      (ii) At least annually thereafter;

    (b) A cathodic protection tester conducting an annual inspection shall make and record a sufficient number of AST-to-soil and underground piping-to-soil potential measurements to determine if the AST system is completely protected in accordance with an industry standard or recommended practice listed in §B(2) of this regulation; and

    (c) Maintain records of the AST-to-soil and underground piping-to-soil potential measurements in accordance with Regulation .13 of this chapter;

  (3) Except as provided under §D(4) of this regulation, if the protection provided by a galvanic system is determined to be inadequate to properly protect the AST system:

    (a) Employ a corrosion expert to determine the cause of the inadequacy within 30 days of the discovery; and

    (b) Either:

      (i) Complete repairs of the galvanic system within 60 days of the discovery or on a schedule approved by the Department; or

      (ii) If repairs cannot return the galvanic system to adequate performance, replace the galvanic system within 120 days of the discovery or on a schedule approved by the Department; and

  (4) If a galvanic system determined to be inadequate to provide proper protection to the AST system cannot be repaired or replaced in accordance with §D(3) of this regulation:

    (a) Empty all oil in contact with the portion of the AST system inadequately protected by the galvanic system; and

    (b) Place the AST system out-of-service in accordance with Regulation .12 of this chapter.

#### Regulation .10 Normal and Emergency Venting.

*COMAR 26.10.18.10*

A. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall ensure the normal venting for the field-erected AST meets the following requirements:

  (1) Design and construct normal venting in accordance with the following industry standards:

    (a) NFPA 30 “Flammable and Combustible Liquids Code”; and

    (b) An API standard applicable to field-erected ASTs incorporated by reference in COMAR 26.10.01.03; and

  (2) Vent an atmospheric pressure AST to prevent the development of vacuum or pressure above a 1.0 psi (6.9 kPa) maximum operating pressure.

B. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall ensure the emergency venting for the field-erected AST meets the following requirements:

  (1) Design and construct emergency venting in accordance with the following industry standards:

    (a) NFPA 30 “Flammable and Combustible Liquids”; and

    (b) API Standard 2000 “Venting Atmospheric and Low-pressure Storage Tanks”; and

  (2) The field-erected AST has one of the following emergency relief venting designs:

    (a) A floating roof;

    (b) A lifter roof;

    (c) A weak roof-to-shell seam; or

    (d) Another industry approved pressure-relieving device.

#### Regulation .11 Inspection Requirements for an AST System.

*COMAR 26.10.18.11*

A. Definitions.

  (1) In this regulation, the following terms have the meanings stated.

  (2) Terms Defined.

    (a) “Remaining corrosion allowance” or “RCA” means the difference between the measured shell thickness and the minimum required thickness of an AST, measured in millimeters.

    (b) “N” means the shell corrosion rate of an AST, measured in millimeters per year.

B. Periodic Visual Inspections.

  (1) An owner, an operator, and a person in charge of an AST system with a field-erected AST shall conduct periodic visual inspections in accordance with:

    (a) The inspection procedures under §B(2) or (3) of this regulation; and

    (b) The recordkeeping requirements under §B(4) and (5) of this regulation.

  (2) An owner, an operator, and a person in charge of an AST system with a field-erected AST may meet the visual inspections requirement in §B(1) of this regulation by, at a minimum:

    (a) Inspecting for the following conditions monthly:

      (i) Signs of spills, releases, or discharges from any portion of the AST system;

      (ii) Water in the secondary containment dike and AST or, if a double-walled AST, the primary storage tank and interstice;

      (iii) The condition of the secondary containment dike, including drain valves;

      (iv) Signs of shell distortion;

      (v) Signs of settlement;

      (vi) Signs of corrosion;

      (vii) The condition of the AST foundation or supports;

      (viii) The condition of the exterior coating of the AST system;

      (ix) The condition of seams, rivets, and nozzle connections;

      (x) The condition of valves, pumps, piping, and other appurtenances directly connected to the AST;

      (xi) The condition of the tank gauge or an equivalent monitoring device;

      (xii) The condition of release detection systems; and

      (xiii) The condition of overfill protection equipment;

    (b) Inspecting containment sumps associated with an underground piping system monthly by:

      (i) Checking for evidence of a spill, release or discharge; and

      (ii) Removing any liquid or debris; and

    (c) Removing any water found during the monthly inspection from the secondary containment dike and AST or, if a double-bottomed AST, the primary storage tank and interstice.

  (3) An owner, an operator, and a person in charge of an AST system with a field-erected AST may meet the periodic visual inspections requirement in §B(1) of this regulation by conducting periodic AST inspections in accordance with:

    (a) STI/SPFA SP001 “Standard for the Inspection of Aboveground Storage Tanks” if the AST does not exceed:

      (i) 30 feet in diameter; and

      (ii) 40 feet in height; or

    (b) Tank In-service Inspection Checklist in Annex C of API Standard 653 “Tank Inspection, Repair, Alteration, and Reconstruction”.

  (4) An owner, an operator, and a person in charge of an AST system with a field-erected AST shall maintain the following records related to periodic visual inspections:

    (a) If the AST system was inspected in accordance with §B(2) of this regulation, a written log or electronic record that includes:

      (i) The date of the inspection;

      (ii) The name and title of the individual performing the inspection;

      (iii) A description of each deficiency found;

      (iv) The name and title of the individual notified of the deficiencies found; and

      (v) A record of how and when the deficiencies were corrected; and

    (b) If the AST system was inspected in accordance with §B(3) of this regulation, the completed monthly and annual inspection checklists in STI/SPFA SP001 “Standard for the Inspection of Aboveground Storage Tanks”.

  (5) An owner, an operator, and a person in charge of an AST system with a field-erected AST shall maintain the records required in §B(4) of this regulation in accordance with Regulation .13 of this chapter.

C. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall conduct corrosion protection system inspections in accordance with Regulation .10 of this chapter.

D. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

  (1) Inspect and clean normal and emergency vents for the field-erected AST annually; and

  (2) Maintain records of the vent inspection and cleaning required in §D(1) of this regulation in accordance with Regulation .13 of this chapter.

E. Ultrasonic Thickness Inspections. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall use ultrasonic thickness measurements of the external AST shell to determine shell integrity according to the following requirements:

  (1) If the corrosion rate is unknown for a field-erected AST, complete an initial ultrasonic thickness inspection not later than 2 years after June 13, 2022;

  (2) Perform ultrasonic thickness inspections at the lesser of the following intervals:

    (a) RCA/2N years; or

    (b) 15 years;

  (3) Include the following information in the inspection records for each ultrasonic thickness inspection performed on an AST:

    (a) The date of the inspection;

    (b) The name and title of individual performing the inspection; and

    (c) The ultrasonic thickness measurements; and

  (4) Maintain the records for ultrasonic thickness inspections required under §E(3) of the regulation in accordance with Regulation .13 of this chapter.

F. External Inspections. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall have an external inspection performed on the field-erected AST according to the following requirements:

  (1) An authorized inspector conducts external inspection on the field-erected AST.

  (2) Perform external inspections at the lesser of the following intervals:

    (a) RCA/4N years; or

    (b) 5 years;

  (3) Inspect the following components of a field-erected AST during an external inspection:

    (a) The AST foundation;

    (b) The shell and roof of the AST, including shell and roof appurtenances;

    (c) The AST accessways;

    (d) The AST grounding system;

    (e) The wall and roof of an AST having an insulated covering;

    (f) Connected aboveground piping; and

    (g) The secondary containment dike;

  (4) At a minimum, the authorized inspector conducting an external inspection of the field-erected AST shall complete the Tank In-service Inspection Checklist in Annex C of API Standard 653 “Tank Inspection, Repair, Alteration, and Reconstruction”;

  (5) Submit a copy of the final external inspection report to the Department within 60 days of completing the external inspection; and

  (6) Maintain records of completed external inspections in accordance with Regulation .13 of this chapter.

G. Risk-based Inspection Program.

  (1) An owner, an operator, and a person in charge of an AST system with a field-erected AST may implement a risk-based inspection program to develop an inspection plan for conducting internal inspections on the field-constructed AST.

  (2) If implementing a risk-based inspection program, an owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

    (a) Establish and implement the risk-based inspection program in accordance with API Recommended Practice 580 “Risk-based Inspection”;

    (b) Prior to implementation, have the risk-based inspection program, including the risk-based inspection assessment and inspection plan, reviewed and approved by an authorized inspector and a storage tank engineer.

  (3) An owner, an operator, and a person in charge of an AST system with a field-erected AST shall maintain records related to the risk-based inspection program, including copies of the risk-based inspection assessment, inspection plan, and authorized inspector and storage tank engineer approvals, in accordance with the recordkeeping requirements in Regulation .13 of this chapter.

H. Internal Inspections. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall have an internal inspection of a field-erected AST performed on the field-erected AST according to the following requirements:

  (1) An authorized inspector shall complete an internal inspection of a field-erected AST;

  (2) Complete an initial internal inspection on a new field-erected AST not later than:

    (a) 10 years from the date the AST first contained oil; or

    (b) A maximum inspection interval established in accordance with API Standard 653 “Tank Inspection, Repair, Alteration, and Reconstruction” if the following conditions are met:

      (i) The maximum interval is determined under a risk-based inspection program; and

      (ii) The AST has one or more of the leak prevention, detection, corrosion mitigation, or containment safeguards listed in Table 6.1–Tank Safeguard in API Standard 653 “Tank Inspection, Repair, Alteration, and Reconstruction”;

  (3) Complete an initial internal inspection on an existing field-erected AST that contains oil not later than 2 years after June 13, 2022;

  (4) Complete subsequent internal inspections on a new or existing field-erected AST not later than:

    (a) 20 years after the date the initial internal inspection required in §H(2) or (3) of this regulation was completed; or

    (b) A maximum inspection interval determined in accordance with the corrosion rate procedures and the additional risk-based inspection requirements in API Standard 653 “Tank Inspection, Repair, Alteration, and Reconstruction”;

  (5) An internal inspection of a field-erected AST includes:

    (a) An evaluation of, at a minimum, 75 percent of the storage tank bottom plates using magnetic flux leakage scanning;

    (b) An evaluation of 100 percent of floor plate welds and shell-to-floor welds using one or more of the following testing methods:

      (i) Vacuum box;

      (ii) Magnetic particle; and

      (iii) Liquid penetrant;

    (c) Verification of a storage tank bottom’s integrity to ensure the storage tank bottom is not severely corroded or there is evidence of a spill, release, or discharge;

    (d) The collection of data necessary to assess the minimum storage tank bottom and shell thickness, including evaluating data from previous inspections;

    (e) Identification and evaluation of any storage tank bottom settlement; and

    (f) Assessment of all external and internal aspects of an AST while the storage tank is out-of-service, including an examination and test of the following AST components:

      (i) Storage tank exterior and interior;

      (ii) Storage tank bottom, including the liquid side and soil side;

      (iii) Shell seams, plates, and overflows;

      (iv) The fixed roof interior, including the surface, support structure, and appurtenances;

      (v) A floating roof, including the deck, pontoons, cutouts and supports, seal assemblies, and appurtenances;

      (vi) Common AST appurtenances; and

      (vii) Access structures;

  (6) At a minimum, an authorized inspector conducting an internal inspection of an AST shall complete the Tank Out-of-service Inspection Checklist in Annex C of API Standard 653 “Tank Inspection, Repair, Alteration, and Reconstruction” in addition to other forms used;

  (7) Submit a copy of the final internal inspection report to the Department within 60 days of completing the internal inspection; and

  (8) Maintain records of each internal inspection conducted for on a field-erected AST in accordance with Regulation .13 of this chapter.

#### Regulation .12 Out-of-Service and Permanent Closure.

*COMAR 26.10.18.12*

A. Out-of-Service. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall complete each of the following steps to place the AST system out-of-service:

  (1) Notify the Department in writing 30 days before placing the AST system out-of-service;

  (2) Remove all oil from the AST system;

  (3) Isolate all piping connected to the AST;

  (4) Remove all waste materials from the AST system, including storage tank-bottom sludge, and dispose of these materials in compliance with applicable federal, State, and local laws;

  (5) Purge all petroleum vapors and maintain the AST system vapor free;

  (6) Secure the AST system to prevent unauthorized entrance or tampering;

  (7) Protect the AST system from flotation;

  (8) Continue the operation and maintenance of corrosion protection on the AST system in accordance with Regulation .09 of this chapter;

  (9) Lock the fill port; and

  (10) Label the AST using lettering at least 3 inches high, in a readily visible location on the AST, with the following information:

    (a) Date the AST system was placed out-of-service;

    (b) Name of product last stored; and

    (c) The words “OUT-OF-SERVICE” or “EMPTY”.

B. Return to In-Service. An owner, an operator, and a person in charge of an out-of-service AST system with a field-erected AST shall complete the following steps prior to placing the AST system in-service:

  (1) Notify the Department in writing 30 days before placing the AST system in-service;

  (2) If an external or internal inspection required under Regulation .11 of this chapter was due to occur while the AST system was out of service, conduct the external or internal inspection of the AST system in accordance with the inspection procedures in Regulation .11F or H of this chapter.

  (3) Test all connected piping and appurtenances to ensure a spill, release, or discharge will not occur; and

  (4) Maintain a copy of all corrosion protection system and formal inspection and testing reports, including the findings of inspections and tests and repairs performed, and provide a copy to the Department upon request.

C. Permanent Closure. An owner, an operator, and a person in charge of an AST system with a field-erected AST shall permanently close the AST system in accordance with the following requirements:

  (1) At least 30 days before permanently closing the AST system:

    (a) Notify the Department in writing of the planned AST system permanent closure; and

    (b) Submit to the Department for approval a proposed sampling plan for a site assessment to determine if there is evidence of a spill, release, or discharge where contamination is most likely to be present, including sampling of, at a minimum, the following areas of the AST site:

      (i) Within and immediately outside of the secondary containment dike, if present;

      (ii) Within the footprint of the removed AST; and

      (iii) Beneath underground piping associated with the removed AST;

  (2) Place the AST system out-of-service in accordance with §A of this regulation;

  (3) Disconnect and remove all aboveground piping associated with the AST system;

  (4) Disconnect and remove all underground piping associated with the AST system:

    (a) Under the continuous on-site presence and direction of a certified UST system technician or remover; and

    (b) In accordance with the procedures in COMAR 26.10.10.02D;

  (5) Remove the AST and associated piping from the site; and

  (6) Within 45 days of completing the permanent closure and approved site assessment, submit a closure report to the Department detailing:

    (a) The AST closure activities; and

    (b) The results of the sampling event, including a map identifying sample locations, laboratory results, summary of findings, and conclusions.

D. Change-in-Service. An owner, an operator, and a person in charge of an AST system with a field-erected AST placing the AST system out-of-service in order to store a non-oil product shall:

  (1) Notify the Department in writing at least 30 days before placing the AST system out-of-service; and

  (2) Place the AST system out-of-service in accordance with the requirements of the Department.

E. Upon completing an out-of-service activity specified §§A—D of this regulation, an owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

  (1) Within 30 days, amend the AST system registration with the Department in accordance with COMAR 26.10.01.10; and

  (2) If the oil storage facility or oil handling facility is required under COMAR 26.10.01.09 to be operated under an Individual Oil Operation Permit, submit a request to modify the Individual Oil Operations Permit in accordance with COMAR 26.10.01.12.

#### Regulation .13 Recordkeeping.

*COMAR 26.10.18.13*

An owner, an operator, and a person in charge of an AST system with a field-erected AST shall:

A. Maintain the records required under this chapter at the oil storage facility or oil handling facility, or another a readily accessible location;

B. Provide the records to the Department upon request;

C. Retain the following records for a minimum of 5 years:

  (1) Records of periodic visual inspections conducted in accordance with Regulation .11B of this chapter;

  (2) Records of annual normal and emergency vent inspections and cleaning conducted in accordance with Regulation .11D of this chapter;

  (3) Inventory control records;

  (4) Overfill prevention equipment testing records;

  (5) Release detection records;

  (6) Secondary containment dike drainage logs;

  (7) Storage tank gauging device calibration records; and

  (8) Testing records for aboveground and underground piping; and

D. Retain the following AST system records for the operational life of an AST system and for at least 5 years after an AST system has been permanently closed in accordance with Regulation .12 of this chapter:

  (1) Construction records, including records of:

    (a) The AST name plate information;

    (b) The original as-built specifications and drawings and any modifications made to the AST system during the operational life of the AST system;

    (c) Applicable manufacturer’s documentation for ancillary equipment;

    (d) Tests conducted upon completing an installation or repair of an AST system component, including hydrostatic testing and pressure tightness testing;

    (e) Material tests and analyses, including secondary containment dike permeability tests;

    (f) Tank strapping record; and

    (g) The names of the companies performing construction activities and a description of the work performed;

  (2) Cathodic protection system inspections records for impressed current and galvanic systems, including records of:

    (a) Cathodic protection system design description;

    (b) Inspection findings and conclusions;

    (c) Recommendations; and

    (d) Testing and repair records;

  (3) A complete copy of each final formal inspection report;

  (4) A complete copy of each ultrasonic thickness inspection report;

  (5) Records of AST system repairs and alteration history, including names of companies completing repair work;

  (6) Records of secondary containment dike testing and evaluation;

  (7) Records of spills, releases, and discharges and written reports of the occurrences required by COMAR 26.10.01.05E; and

  (8) A closure report for an AST system permanently closed in accordance with Regulation .12 of this chapter.

## Subtitle 11 — Air Quality

### Chapter 01 — General Administrative Provisions

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1980 (7:12 Md. R. 1148)

**Administrative History:** Regulation .01A-1, F-1 adopted effective October 10, 1981 (8:18 Md. R. 1480)

**Administrative History:** Regulation .01H amended effective July 10, 1981 (8:11 Md. R. 974)

**Administrative History:** Regulation .01I amended effective June 8, 1981 (8:9 Md. R. 800); July 2, 1985 (12:11 Md. R. 1049); October 14, 1985 (12:18 Md. R. 1766); August 11, 1986 (13:13 Md. R. 1492); January 5, 1988 (14:24 Md. R. 2555)

**Administrative History:** Regulation .01K amended effective June 8, 1981 (8:9 Md. R. 800); August 16, 1983 (10:14 Md. R. 1263); December 3, 1984 (11:22 Md. R. 1899); October 14, 1985 (12:18 Md. R. 1766); August 11, 1986 (13:13 Md. R. 1492); January 5, 1988 (14:24 Md. R. 2555)

**Administrative History:** Regulation .01O-1, V-1, and Y adopted effective August 16, 1983 (10:14 Md. R. 1262)

**Administrative History:** Regulation .01O-1 amended effective January 5, 1988 (14:24 Md. R. 2555)

**Administrative History:** Regulation .01V-1 and Y amended, and X-1 adopted effective August 10, 1987 (14:14 Md. R. 1572)

**Administrative History:** Regulation .01X amended effective July 10, 1981 (8:11 Md. R. 974); August 16, 1983 (10:14 Md. R. 1262)

**Administrative History:** Regulation .04C amended effective February 10, 1984 (10:26 Md. R. 2341); July 2, 1985 (12:11 Md. R. 1049)

**Administrative History:** Regulation .04D repealed and .05 amended effective February 10, 1984 (10:26 Md. R. 2341)

**Administrative History:** Regulation .08 repealed effective December 3, 1984 (11:22 Md. R. 1899)

**Administrative History:** Regulation .08 adopted effective March 24, 1987 (14:4 Md. R. 419)

**Administrative History:** Figure 1 moved to COMAR 10.18.01 from COMAR 10.18.06 effective August 16, 1983 (10:14 Md. R. 1262); recodified as Regulation .09

**Administrative History:** On July 18, 1980, Subtitle 18 Air Quality was reorganized and recodified from 7 chapters to 22 chapters. Citation tables listing the codification changes appear at 7:5 Md. R. 501. The administrative histories of the original 7 chapters are given on the following pages.

**Administrative History:** Chapter recodified from COMAR 10.18.01 to COMAR 26.11.01

**Administrative History:** Regulation .01 amended effective December 7, 1992 (19:24 Md. R. 2128)

**Administrative History:** Regulation .01A—Y recodified to Regulation .01A—DD

**Administrative History:** Regulation .01A and A-1 recodified to Regulation .01A-1 and A-2, respectively, and new Regulation .01A and A-3 adopted effective May 8, 1991 (18:6 Md. R. 688)

**Administrative History:** Regulation .01A-1 adopted effective September 27, 1988 (15:18 Md. R. 2148)

**Administrative History:** Regulation .01C-1 adopted effective July 22, 1991 (18:13 Md. R. 1484)

**Administrative History:** Regulation .01E amended effective June 20, 1989 (16:9 Md. R. 995)

**Administrative History:** Regulation .01E-1, F-1, and G-1 adopted effective July 22, 1991 (18:13 Md. R. 1484)

**Administrative History:** Regulation .01J amended effective April 26, 1993 (20:8 Md. R. 724)

**Administrative History:** Regulation .01K, M amended effective September 26, 1988 (15:17 Md. R. 2049); March 31, 1991 (18:4 Md. R. 450); February 17, 1992 (19:3 Md. R. 306)

**Administrative History:** Regulation .01L amended effective March 21, 1989 (16:3 Md. R. 347); May 8, 1991 (18:6 Md. R. 688); April 26, 1993 (20:8 Md. R. 724)

**Administrative History:** Regulation .01M-1 adopted effective April 26, 1993 (20:8 Md. R. 724)

**Administrative History:** Regulation .01O-1 adopted effective July 22, 1991 (18:13 Md. R. 1484)

**Administrative History:** Regulation .01P-1, P-2, P-3 adopted effective March 21, 1989 (16:3 Md. R. 347)

**Administrative History:** Regulation .01Q-1 and Q-2 adopted effective May 8, 1991 (18:6 Md. R. 688)

**Administrative History:** Regulation .01R amended effective March 21, 1989 (16:3 Md. R. 347); March 31, 1991 (18:4 Md. R. 450); February 17, 1992 (19:3 Md. R. 306)

**Administrative History:** Regulation .01U amended effective May 8, 1991 (18:6 Md. R. 688)

**Administrative History:** Regulation .01U-1 adopted effective July 22, 1991 (18:13 Md. R. 1484)

**Administrative History:** Regulation .01X-1 adopted effective September 27, 1988 (15:18 Md. R. 2148)

**Administrative History:** Regulation .01DD amended effective May 8, 1991 (18:6 Md. R. 688); August 19, 1991 (18:16 Md. R. 1813); February 17, 1992 (19:3 Md. R. 306)

**Administrative History:** Regulation .01B amended effective June 20, 1994 (21:12 Md. R. 1063 and 21:12 Md. R. 1064); May 8, 1995 (22:9 Md. R. 647); May 22, 1995 (22:10 Md. R. 708); June 30, 1997 (24:13 Md. R. 932); September 22, 1997 (24:19 Md. R. 1343); October 5, 1998 (25:20 Md. R. 1533); March 22, 1999 (26:6 Md. R. 487); October 16, 2000 (27:20 Md. R. 1842); December 10, 2001 (28:24 Md. R. 2130); November 24, 2003 (30:23 Md. R. 1653); September 12, 2005 (32:18 Md. R. 1521); October 8, 2007 (34:20 Md. R. 1741); June 16, 2008 (35:12 Md. R. 1121); July 16, 2009 (36:14 Md. R. 985); May 17, 2010 (37:10 Md. R. 724); July 26, 2010 (37:15 Md. R. 1000); September 20, 2010 (37:19 Md. R. 1285)

**Administrative History:** Regulation .01B amended as an emergency provision effective January 2, 2011 (38:4 Md. R. 263); amended permanently effective May 16, 2011 (38:10 Md. R. 617)

**Administrative History:** Regulation .01B amended effective March 5, 2012 (39:4 Md. R. 339 - two actions); July 8, 2013 (40:13 Md. R. 1076 - two actions); February 15, 2016 (43:3 Md. R. 273); May 9, 2016 (43:9 Md. R. 531); April 23, 2018 (45:8 Md. R. 422); December 6, 2018 (45:24 Md. R. 1163)

**Administrative History:** Regulation .01C amended effective June 30, 1997 (24:13 Md. R. 932); October 16, 2000 (27:20 Md. R. 1842); December 10, 2001 (28:24 Md. R. 2130); October 8, 2007 (34:20 Md. R. 1741)

**Administrative History:** Regulation .01D amended effective December 10, 2001 (28:24 Md. R. 2130); November 24, 2003 (30:23 Md. R. 1653); September 12, 2005 (32:18 Md. R. 1521); October 8, 2007 (34:20 Md. R. 1741)

**Administrative History:** Regulation .04C amended effective July 16, 1990 (17:11 Md. R. 1344); August 19, 1991 (18:16 Md. R. 1813); February 17, 1992 (19:3 Md. R. 306); February 15, 1993 (20:3 Md. R. 260); November 2, 1998 (25:22 Md. R. 1653); June 19, 2006 (33:12 Md. R. 999); March 5, 2012 (39:4 Md. R. 339)

**Administrative History:** Regulation .05 amended effective June 30, 1997 (24:13 Md. R. 932); December 10, 2001 (28:24 Md. R. 2130)

**Administrative History:** Regulation .05C, D adopted effective May 17, 2010 (37:10 Md. R. 724)

**Administrative History:** Regulation .05-1 adopted effective December 7, 1992 (19:24 Md. R. 2128)

**Administrative History:** Regulation .07C amended effective May 8, 1995 (22:9 Md. R. 648)

**Administrative History:** Regulation .08A, B amended effective September 27, 1988 (15:18 Md. R. 2148)

**Administrative History:** Regulation .10 adopted effective July 22, 1991 (18:13 Md. R. 1484)

**Administrative History:** Regulation .10 amended effective September 22, 1997 (24:19 Md. R. 1343)

**Administrative History:** Regulation .10 repealed and new Regulation .10 adopted effective May 17, 2010 (37:10 Md. R. 724)

**Administrative History:** Regulation .10A, B amended effective February 15, 2016 (43:3 Md. R. 273)

**Administrative History:** Regulation .10A, C amended effective August 22, 2011 (38:17 Md. R. 1014)

**Administrative History:** Regulation .10A, F amended effective July 20, 2015 (42:14 Md. R. 884)

**Administrative History:** Regulation .10F amended effective August 22, 2011 (38:17 Md. R. 1014)

**Administrative History:** Regulation .10F repealed effective February 15, 2016 (43:3 Md. R. 273)

**Administrative History:** Regulation .11 adopted effective July 22, 1991 (18:13 Md. R. 1484)

**Administrative History:** Regulation .11 amended effective April 27, 1992 (19:8 Md. R. 806); September 22, 1997 (24:19 Md. R. 1343)

**Administrative History:** Regulation .11 repealed and new Regulation .11 adopted effective May 17, 2010 (37:10 Md. R. 724)

**Administrative History:** Regulation .11A, B amended effective August 22, 2011 (38:17 Md. R. 1014)

**Administrative History:** Regulation .11D amended effective August 22, 2011 (38:17 Md. R. 1014)

**Administrative History:** Regulation .11E adopted effective August 22, 2011 (38:17 Md. R. 1014)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Effective date: May 28, 1968

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Amended effective January 28, 1969; September 29, 1970; January 4, 1971; January 17, 1972; May 12, 1973; December 2, 1973

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .01AA adopted effective December 16, 1977 (4:26 Md. R. 2024)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation  .01Y, AA amended effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .01W, DD, SS adopted effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulations .01P, WW, .03B amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .01F, G, X, XX adopted effective June 28, 1977 (4:11 Md. R. 866)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .01ZZ adopted effective September 10, 1978 (5:18 Md. R. 1387)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .01AAA, BBB adopted effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulations .03B and .04 amended effective December 10, 1979 (6:21 Md. R. 1708)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .04 adopted effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .04A, G amended effective January 2, 1979 (5:23 Md. R. 1740)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .04I amended effective August 21, 1978 (5:14 Md. R. 1137)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulations .04F, .05E, .06A amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .11 amended effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .11B, C, H, I amended effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .11G, H, K amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .11G, J, K amended effective December 16, 1977 (4:26 Md. R. 2024)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .11H amended effective January 2, 1979 (5:23 Md. R. 1740)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .11J amended effective September 10, 1978 (5:18 Md. R. 1387)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Regulation .13 adopted effective September 10, 1978 (5:18 Md. R. 1387); repealed effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.01 before June 13, 1980:** Chapter repealed effective July 18, 1980 (7:12 Md. R. 1148)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Effective date: May 28, 1968

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Amended effective January 28, 1969; January 17, 1972; May 12, 1972; December 2, 1973

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulation .01D amended effective June 25, 1975 (2:14 Md. R. 1015) and March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulation .02A—D amended effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulation .02E, F adopted effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulation .02F amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulations .02 and .03 amended effective December 10, 1979 (6:21 Md. R. 1708)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulation .03A—E amended effective June 25, 1975 (2:14 Md. R. 1015) and March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulation .04A—G amended effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulation .04B, D, G, I amended effective December 10, 1979 (6:21 Md. R. 1708)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulation .04I, J adopted effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulation .04B, C, F, G, H, I amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulation .05 adopted effective December 16, 1977 (4:26 Md. R. 2024); amended effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulation .06D amended effective December 10, 1979 (6:21 Md. R. 1708)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulation .06D, E amended effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulations .06D, .07A, B amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Regulation .07 repealed and new Regulation .07 adopted effective September 10, 1978 (5:18 Md. R. 1387); amended effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.02, 10.18.03, 10.18.06, and 10.18.07 before June 13, 1980:** Chapter repealed effective July 18, 1980 (7:12 Md. R. 1148)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Effective date: May 28, 1968

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Amended effective January 28, 1969; September 29, 1970; February 21, 1971; January 17, 1972; May 12, 1972; December 2, 1973; February 12, 1974

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .01B, D amended effective June 25, 1975 (2:14 Md. R. 1015) and March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .02B amended effective June 25, 1975 (2:14 Md. R. 1015) and January 2, 1979 (5:23 Md. R. 1740)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .02C, D adopted effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .02D amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .02B, E amended effective June 28, 1977 (4:11 Md. R. 866)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .03A amended effective January 2, 1979 (5:23 Md. R. 1740)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .03A—D amended effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .03A—C, E amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .03B, E amended effective June 28, 1977 (4:11 Md. R. 866)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .03G adopted effective June 28, 1977 (4:11 Md. R. 866)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .04B—G, J amended effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .04B amended effective June 28, 1977 (4:11 Md. R. 866)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .04B, G amended effective December 10, 1979 (6:21 Md. R. 1708)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .04C, F—J amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .04D amended effective March 31, 1980 (7:4 Md. R. 347)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .04I amended effective January 2, 1979 (5:23 Md. R. 1740)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .04J amended effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .04K adopted effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .05 adopted effective December 16, 1977 (4:26 Md. R. 2024); amended effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .06C, E, F, G amended effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .06C, E, G amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .06G, H amended effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Regulation .07 adopted effective September 10, 1978 (5:18 Md. R. 1387); amended effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.04 before June 13, 1980:** Chapter repealed effective July 18, 1980 (7:12 Md. R. 1148)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Effective date: May 28, 1968

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Amended effective March 24, 1970; January 4, 1971; January 17, 1972; May 12, 1972; December 2, 1973; February 12, 1974

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .01B, D amended effective June 25, 1975 (2:14 Md. R. 1015) and March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .02B amended effective June 25, 1975 (2:14 Md. R. 1015); January 2, 1979 (5:23 Md. R. 1740)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .02C, D adopted effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .02D amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .02E amended effective June 28, 1977 (4:11 Md. R. 866)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .03A amended effective January 2, 1979 (5:23 Md. R. 1740)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .03A—D amended effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .03A—C, E amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .03B, E amended effective June 28, 1977 (4:11 Md. R. 866)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .03G adopted effective June 28, 1977 (4:11 Md. R. 866)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .04B—G, J amended effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .04B amended effective June 28, 1977 (4:11 Md. R. 816)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .04B, G amended effective December 10, 1979 (6:21 Md. R. 1708)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .04C, F—J amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .04D amended effective March 31, 1980 (7:4 Md. R. 347)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .04I amended effective January 2, 1979 (5:23 Md. R. 1740)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .04J amended effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .04K adopted effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .05 adopted effective December 16, 1977 (4:26 Md. R. 2024); amended effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .06C, E, F, G amended effective June 25, 1975 (2:14 Md. R. 1015)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .06C, E, G amended effective March 30, 1977 (4:7 Md. R. 579)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .06G, H amended effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Regulation .07 adopted effective September 10, 1978 (5:18 Md. R. 1387); amended effective January 2, 1980 (6:23 Md. R. 1839)

**Administrative History of COMAR 10.18.05 before June 13, 1980:** Chapter repealed effective July 18, 1980 (7:12 Md. R. 1148)

#### Regulation .01 Definitions.

*COMAR 26.11.01.01*

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

  (1) Actual Emissions.

    (a) “Actual emissions” means the average rate, in tons per year, at which a source discharged a pollutant during a 2-year period which precedes the date of a completed application for an NSR source or other specified date, and which is representative of normal source operation. The Department may allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the source's operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

    (b) For the purpose of submitting emissions statements under Regulation .05-1 of this chapter, “actual emissions” means the emissions, in tons per year, which a source discharged during a calendar year or other specified period of time.

  (2) “Air pollution” as defined in Environment Article, §2-101, Annotated Code of Maryland, means the presence in the outdoor atmosphere of substances in quantities, having characteristics, and being of a duration which, from any single source or in combination with other sources, are, or may be predicted with reasonable certainty to be, injurious to human, plant, or animal life or to property, or which unreasonably interfere with the proper enjoyment of the property of others by reason of the emission of odors, solids, vapors, liquids, or gases, throughout the State and in such areas of the State that are affected by them.

  (3) “Air pollution control equipment” means equipment whose primary purpose is to reduce the discharge of emissions into the atmosphere in order to comply with air pollution control requirements.

  (4) “Allowable emissions” means the maximum emissions a source or installation is capable of discharging after consideration of any physical, operational, or emissions limitations required by this subtitle or by federally enforceable conditions which restrict operations and which are included in an applicable air quality permit to construct, permit to operate, secretarial order, plan for compliance, consent agreement, court order, or applicable federal requirement.

  (5) “Capture efficiency” means the weight per unit time of a pollutant entering a capture system and delivered to a control device, divided by the weight per unit time of the total pollutant generated by a source of the pollutant, expressed as a percentage. The capture efficiency reflects how much of the pollutant is captured and routed to the control device.

  (6) “Certifying individual” means the person responsible for the completion and certification of the emissions statement required in Regulation .05-1 of this chapter.

  (6-1) CO2 Equivalent Emissions (CO2e).

    (a) “CO2 equivalent emissions (CO2e)” means the amount of GHGs emitted.

    (b) “CO2 equivalent emissions (CO2e)”shall be computed as follows:

      (i) Except as stated in §B(6-1)(b)(iii) of this regulation, multiply the mass amount of emissions (tpy), for each of the six greenhouse gases in the pollutant GHGs, by the gas‘s associated global warming potential published at Table A–1 to Subpart A of 40 CFR Part 98 — Global Warming Potentials (74 FR 56395);

      (ii) Sum the resultant values from §B(6-1)(b)(i) of this regulation for each gas to compute a tpy CO2e; and

      (iii) Prior to July 21, 2014, the mass of the greenhouse gas carbon dioxide shall not include carbon dioxide emissions resulting from the combustion or decomposition of nonfossilized and biodegradable organic material originating from plants, animals, or micro-organisms (including products, by-products, residues and waste from agriculture, forestry and related industries as well as the nonfossilized and biodegradable organic fractions of industrial and municipal wastes, including gases and liquids recovered from the decomposition of nonfossilized and biodegradable organic material).

  (6-2) “Commercial bakery oven” (bakery oven) means an oven with a rated heat input capacity of 2,000,000 Btu per hour or greater, that is used to bake bread, rolls, or other yeast-raised products.

  (7) “Confined emissions” means emissions which are discharged into the outdoor atmosphere through a stack, duct, hood, flue, or other conduit.

  (8) “Confined source” means an installation that discharges into the atmosphere through a stack, duct, hood, flue, or other conduit.

  (9) “Continuous emission monitor (CEM)” means a system of instruments installed, operated, and calibrated in accordance with the procedures in this subtitle to continuously measure and record the emission rate or concentration of a substance in a gas stream.

  (9-1) “Continuous opacity monitor (COM)” means a system of instruments installed, operated, and calibrated in accordance with the procedures in this subtitle to continuously measure and record the opacity of emissions as six-minute averages of not greater than 15 second increments.

  (10) “Control efficiency” means the ratio of the emissions released by a control device and the emissions introduced to the control device, expressed as a percentage.

  (11) “Control equipment” means any device or contrivance which prevents or reduces emissions.

  (12) “Control officer” means:

    (a) The health officer of Allegany, Anne Arundel, Calvert, Caroline, Carroll, Cecil, Charles, Dorchester, Frederick, Garrett, Harford, Howard, Kent, Prince George's, Queen Anne's, St. Mary's, Somerset, Talbot, Washington, or Wicomico County;

    (b) The Commissioner of Health of the City of Baltimore, the Director of the Baltimore County Department of Environmental Protection and Resource Management, the Director of the Montgomery County Department of Environmental Protection, or the Chief of the Environmental Programs Section of Worcester County Department of Planning, Permits, and Inspections; or

    (c) Any employee of the Department designated by the Secretary.

  (13) Reserved.

  (14) “Department” means the Department of the Environment.

  (15) “Distillate fuel oil” means all American Society for Testing and Materials numbered fuel oils other than residual fuel oil.

  (16) “Emissions” means any substance, other than water in an uncombined form, discharged directly or indirectly into the atmosphere including, but not limited to, odors, particulate matter, vapors, gases, or any combination of these substances.

  (17) “Fuel-burning equipment” means any:

    (a) Boiler that has the primary function of heating air, water, or any other medium through indirect heat transfer from the burning of fuels; or

    (b) Stationary internal combustion engine or stationary combustion turbine used to produce mechanical or electrical energy.

  (18) “Fugitive emissions” means emissions which escape into the outdoor atmosphere through openings such as windows, doors, vents, roof monitors, poorly fitting closures, or poorly maintained equipment.

  (18-1) “Greenhouse gases (GHGs)”means the aggregate group of six greenhouse gases:

    (a) carbon dioxide (CO2);

    (b) methane (CH4);

    (c) nitrous oxide (N2O);

    (d) sulfur hexafluoride (SF6);

    (e) hydrofluorocarbons (HFCs); and

    (f) perfluorocarbons (PFCs).

  (19) “Installation” means any article, machine, equipment, or other contrivance, including, but not limited to, emission control equipment, processing equipment, manufacturing equipment, fuel-burning equipment, incinerators, or any equipment or construction, capable of generating, causing, or reducing emissions.

  (20) Modification.

    (a) “Modification” means any physical change in, or change in the operation of, a source or installation which causes a change in the quantity, nature or characteristics of emissions from the source or installation. However, this term excludes routine maintenance and routine repair, and increases in the hours of operation or in the production rate, unless these increases would be prohibited under any permit or approval conditions adopted by the Department.

    (b) In the context of New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants adopted or enforced by the Department, the federal definition of the term “modification” is controlling.

    (c) “Modify” means to make a modification.

    (d) In the context of Prevention of Significant Deterioration regulations adopted or enforced by the Department, the federal definitions of the terms “modification” and “major modification” are controlling.

  (20-1) “Motor vehicle” means a vehicle registered with the Maryland Motor Vehicle Administration or the equivalent agency of another state.

  (21) “National Emission Standards for Hazardous Air Pollutants source (NESHAP source)” means any:

    (a) Source of asbestos, beryllium, mercury, vinyl chloride, benzene, or inorganic arsenic which is subject to the provisions of 40 CFR Part 61 (excluding Subparts B, H, I, K, Q, R, T, and W), as amended; or

    (b) Source which is subject to the provisions of 40 CFR Part 63, as amended.

  (22) Reserved.

  (23) “New Source Performance Standard source (NSPS source)” means any source which is subject to 40 CFR Part 60, as amended.

  (24) “New Source Review source (NSR source)” means any major stationary source or major modification subject to the requirements of COMAR 26.11.17.

  (25) “Odor” means that property of an emission which stimulates the sense of smell.

  (26) “Opacity” means the degree to which emissions reduce the transmission of light and obscure the view of an object in the background.

  (27) “Operating day” means a 24-hour period beginning midnight of one day and ending the following midnight, or an alternative 24-hour period approved by the Department, during which time an installation being monitored is operating, consuming fuel, processing or producing a material, or causing emissions.

  (28) “Oxides of nitrogen (NOx)” means compounds of nitrogen comprised of nitric oxide (NO) and nitrogen dioxide (NO2), expressed as equivalent molecular weight of NO2.

  (29) “Particulate matter (PM)” means any material, except water in uncombined form, that is or has been airborne, and exists as a liquid or a solid at standard conditions.

  (30) “Particulate matter emissions” means all finely divided solid or liquid material, other than uncombined water, discharged into the ambient air.

  (30-1) “PM2.5” means particulate matter with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers.

  (30-2) “PM2.5 emissions” means finely divided solid or liquid materials with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers, discharged into the ambient air.

  (31) “PM10” means particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers.

  (32) “PM10 emissions” means finely divided solid or liquid materials with an aerodynamic diameter less than or equal to a nominal 10 micrometers, discharged into the ambient air.

  (33) “Percent seasonal throughput” means percent of annual throughput conducted during each of the 4 seasonal periods (December—February, March—May, June—August, September—November).

  (34) “Person” means any individual, group of individuals, firm, partnership, voluntary association, or private, public or municipal corporation, or agency, bureau, department or an instrumentality of federal, State, or local government responsible for the use of property.

  (35) “Potential to emit” means the maximum capacity of a stationary source to discharge a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is federally enforceable through a permit condition, compliance plan, or administrative or court order.

  (36) “Premises” means all the installations or other sources that are located on contiguous or adjacent properties and that are under the control of one person or under common control of a group of persons.

  (37) “Prevention of Significant Deterioration (PSD) source” means any new or modified source subject to the provisions of 40 CFR §52.21, as amended.

  (38) “Process weight” means the total weight of all materials introduced into any specific process which may cause emissions. Solid fuels charged will be considered as part of the process weight, but liquid and gaseous fuels and combustion air will not.

  (39) “Process weight per hour” means the rate established as follows:

    (a) For continuous or long-run steady-state operations, the total process weight for the entire period of continuous operation or for a typical portion of operation, divided by the number of hours of the period or portions of operation;

    (b) For cyclical or batch operations, the total process weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during the period; and

    (c) When the nature of any process or operation or the design of any equipment permits more than one interpretation of this definition, the interpretation that results in the minimum value for allowable emission shall apply.

  (40) “Reasonably Available Control Technology (RACT)” means the lowest emissions limit that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.

  (41) “Residual fuel oil” means that fuel oil that meets the specifications of the American Society for Testing and Materials for Numbers 4, 5, or 6 (bunker C) oils or crude oils when used as a fuel.

  (42) “Secretary” means the Secretary of the Environment.

  (43) “Source” as defined in Environment Article, §2-101(i), Annotated Code of Maryland, means any property, real or personal, or person contributing to air pollution.

  (44) “Stack or chimney” means any flue, conduit, or duct arranged to conduct emissions.

  (45) “Stack height” means the height of a stack measured from the ground elevation to the top of the stack, not including caps, nozzles, or other encumbrances.

  (46) “Standard conditions” means at a temperature of 77°F (25°C) and a pressure of 29.92 inches (760 mm) of mercury.

  (47) “Standard industrial classification (SIC) code” means a series of codes devised by the federal Office of Management and Budget (OMB) to classify establishments according to the type of economic activity in which they are engaged.

  (48) "True vapor pressure (TVP)" means the vapor pressure of a material at storage temperature, where storage temperature is the maximum monthly average temperature of the material or 77°F (25°C), whichever is the higher.

  (49) “Typical ozone season day (TOSD)” means a day typical of that period of the year during which conditions for photochemical ozone formation are most favorable, which is generally during sustained periods of direct sunlight (that is, long days, little cloud cover) and warm temperatures.

  (50) “Unconfined source” means an installation that causes emissions which are not enclosed in a stack, duct, hood, flue, or other conduit but which escape into the atmosphere through openings such as windows, vents or doors, ill fitting closures, or poorly maintained equipment.

  (51) “Vapor balance line” means any connection closed to the atmosphere between the vapor space of two storage containers that will allow the vapors to be displaced as the liquid is transferred from one tank to the other.

  (52) “Vapor pressure” means the total equilibrium partial pressure or pressures for any given chemical or mixture at a given temperature.

  (53) “Volatile organic compound (VOC)” means any organic compound which participates in atmospheric photochemical reactions, excluding those compounds which have been determined to have negligible photochemical reactivity by the U.S. Environmental Protection Agency and which are listed in 40 CFR §51.100(s), as amended.

#### Regulation .02 Relationship of Provisions in this Subtitle.

*COMAR 26.11.01.02*

Unless otherwise expressly provided in this subtitle, the provisions of this subtitle are cumulative and each provision applies to each applicable source or installation and to each person in control of the source or installation.

#### Regulation .03 Delineation of Areas.

*COMAR 26.11.01.03*

A. Area I means the western area of the State comprising the counties of Allegany, Garrett, and Washington.

B. Area II means the central area of the State composed of Frederick County.

C. Area III means the Baltimore metropolitan area of the State comprising Baltimore City and the counties of Anne Arundel, Baltimore, Carroll, Harford, and Howard.

D. Area IV means the Washington metropolitan area of the State comprising the counties of Montgomery and Prince George's.

E. Area V means the southern area of the State comprising the counties of Calvert, Charles, and St. Mary's.

F. Area VI means the eastern shore area of the State comprising the counties of Caroline, Cecil, Dorchester, Kent, Queen Anne's, Somerset, Talbot, Wicomico, and Worcester.

#### Regulation .04 Testing and Monitoring.

*COMAR 26.11.01.04*

A. Requirements for Testing.

  (1) The Department may require any person to conduct or have conducted testing to determine compliance with this subtitle. The Department, at its option, may witness or conduct these tests. This testing will be done at a reasonable time, and all information gathered during a testing operation will be provided to both parties.

  (2) Compliance with this subtitle shall be determined by the test methods designated and described in §C of this regulation and shall be applicable to both new and existing stationary emission sources. These test methods may be modified or adjusted by the Department to meet the requirements at certain types of sources, specific sampling conditions, and the need to incorporate advances and other new information relating to testing technology.

  (3) When the Department conducts or has these tests conducted, the person shall provide the sampling facilities, exclusive of instruments and sensing devices, that are necessary to determine the quantity of emissions.

  (4) Any registerable installation constructed after January 4, 1971, shall be provided with openings in the exhaust gas ductwork or in the stack or chimney as required by the test methods specified in §A(2) of this regulation to enable the collection of samples of the effluent to the atmosphere from this installation. Upon request of the Department, the owner or operator of this installation shall provide appropriate scaffolding which meets OSHA standards as set forth in 29 CFR Chapter XVII Part 1910.

B. Requirements for Monitoring.

  (1) The Department or the control officer may require a person responsible for any installation to install, use, and maintain monitoring equipment or employ other methods as specified by the Department or the control officer to determine the quantity or quality, or both, of emissions discharged into the atmosphere and to maintain records and make reports on these emissions to the Department or the control officer in a manner and on a schedule approved by the Department or the control officer.

  (2) The Department or the control officer, at reasonable times, shall have access to and be permitted to copy any records, inspect any monitoring equipment or methods required under this section.

  (3) Except when otherwise specified by the Department or the control officer, records required under this regulation shall be available for inspection by the Department and the control officer for a period of not less than 90 days.

  (4) All records and reports submitted to the Department or the control officer required under this regulation shall be available for public inspection.

C. Emission Test Methods. The following test methods are incorporated by reference:

  (1) 40 CFR Part 60, Appendix A, as amended;

  (2) The Department's Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources”, January, 1991, as amended through Supplement 3 (October 1, 1997); and

  (3) For PM10 stack tests, the following EPA approved test methods shall be used:

    (a) Test Methods 201 A and 202 in 40 CFR Part 51, Appendix M, as amended;

    (b) Test Method 5 (40 CFR Part 60, Appendix A, as amended) and Test Method 202 in 40 CFR Part 51, Appendix M, as amended;

    (c) Test Method 5 (40 CFR Part 60, Appendix A, as amended) using front half and back half procedure;

    (d) EPA Conditional Test Method 39 may be substituted for Test Method 202 in 40 CFR Part 51, Appendix M, as amended; or

    (e) Alternative test methods may be used for PM10 if they are approved by the Department and the EPA.

#### Regulation .05 Records and Information.

*COMAR 26.11.01.05*

A. The Department may require a person who owns or operates an installation or source to establish and maintain records sufficient to provide the information necessary to:

  (1) Assist the Department in the development of an implementation plan, air emissions standard, equipment performance standard, or material formulation standard;

  (2) Determine compliance with an air emissions standard, equipment performance standard, material formulation standard, or permit condition;

  (3) Verify or update registration information; or

  (4) Update Maryland's air emissions inventory.

B. A person who is required pursuant to §A of this regulation to establish and maintain records shall:

  (1) Maintain the necessary information in a format approved by the Department; and

  (2) Submit written reports, when requested by the Department, summarizing the information in a format approved by the Department and on a schedule specified by the Department.

C. Whenever a provision in this subtitle requires submission or reporting of test results, reports, or other information to the Department, unless otherwise specified, the information shall be submitted to:

D. Unless otherwise specified, all records, documentation or other information required by this subtitle, shall be maintained on-site and made available to the Department upon request.

#### Regulation .05-1 Emissions Statements.

*COMAR 26.11.01.05-1*

A. Applicability. This regulation applies to a person who owns or operates any installation, source, or premises that is located in:

  (1) Baltimore City, or in Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles, Frederick, Harford, Howard, Kent, Montgomery, Prince George's or Queen Anne's counties, and has total actual emissions of either VOC or NOx from all installations and sources on a premises of 25 tons or more during a calendar year;

  (2) Allegany, Caroline, Dorchester, Garrett, St. Mary's, Somerset, Talbot, Washington, Wicomico, or Worcester counties, and has total actual emissions of either VOC or NOx from all installations and sources on a premises of 50 tons or more of VOC or 100 tons or more of NOx during a calendar year.

B. General Requirements.

  (1) By April 1 of each year, beginning with April 1, 1993, a person subject to this regulation shall submit to the Department an emissions statement for the previous calendar year that meets the requirements of this regulation.

  (2) A person submitting an emissions statement shall certify that the information in the emissions statement is accurate to the person's best knowledge. The certifying individual shall be:

    (a) Familiar with each installation and source for which the statement is submitted; and

    (b) Responsible for the accuracy of the statement.

  (3) If actual emissions from a source or premises for any year after calendar year 1992 equal or exceed the applicable emission levels prescribed in §A(1) or (2) of this regulation, an emissions statement is required for that year and each following year unless the source demonstrates, to the satisfaction of the Department, that emissions have been permanently reduced and the source no longer has the potential to emit emissions that exceed the applicable levels.

C. Emissions Statement Content. Emissions statements required by §B of this regulation shall be organized by premises, submitted on a form obtained from the Department, and include the following information:

  (1) Identification of each installation or source at the premises that discharges VOC or NOx, and the actual daily and annual emissions from each installation or source;

  (2) An explanation of the method used to determine emissions from each installation or source and operating schedules and production data that were used to determine emissions;

  (3) Beginning with the emissions statement for calendar year 1993, an explanation for any increases or decreases in emissions for each installation or source if reported emissions differ from the emissions reported in the previous year's emissions statement; and

  (4) Other relevant information as required by the Department.

#### Regulation .06 Circumvention.

*COMAR 26.11.01.06*

A person may not install or use any article, machine, equipment or other contrivance, the use of which, without resulting in a reduction in the total weight of emissions, conceals or dilutes an emission which would otherwise constitute a violation of any applicable air pollution control regulation.

#### Regulation .07 Malfunctions and Other Temporary Increases of Emissions.

*COMAR 26.11.01.07*

A. Definitions.

  (1) “Excess emissions” means an emission rate which exceeds any applicable emission standard set forth in this subtitle unless the emission rate is in compliance with an approved plan for compliance, departmental order, consent order, or condition of a permit.

  (2) “Malfunction” means sudden and unavoidable failure of an installation to operate in a normal and usual manner. Failures that are caused entirely or in part by inadequate design, poor maintenance, careless operation, preventable upset conditions, or preventable equipment breakdown may not be considered malfunctions.

B. Unless otherwise required by law, the Department will consider any period of excess emissions to be a violation of law, regardless of the cause. Information submitted pursuant to §§C and D of this regulation will be considered, however, in determining whether the excess emissions are the result of a malfunction and whether to commence an administrative or judicial proceeding authorized by State and federal law.

C. Report of Excess Emissions.

  (1) In the case of any occurrence of excess emissions, expected to last or actually lasting for 1 hour or more, from any installation required by COMAR 26.11.02.13 to obtain a State permit to operate, the owner or operator shall report the onset and shall report the termination of the occurrence to the Department by telephone.

  (2) Telephone reports of excess emissions shall include the following information:

    (a) The identity of the installation and the person reporting;

    (b) The nature or characteristics of the emissions (for example, hydrocarbons, fluorides);

    (c) The time of occurrence of the onset of the excess emissions and the actual or expected duration of the occurrence; and

    (d) The actual or probable cause of the excess emissions.

D. Written Report of Excess Emissions.

  (1) When requested by the Department, the owner or operator of any installation from which excess emissions have occurred shall submit a written report to the Department within 10 days of receiving the request.

  (2) The report shall set forth the following information:

    (a) The identity of the installation;

    (b) The nature or characteristics of the emissions (for example, hydrocarbon, fluorides);

    (c) The time of occurrence of the onset of the excess emissions and the duration of the occurrence;

    (d) The actual or estimated quantity of excess emissions during the occurrence, and operating data and calculations used in determining the quantity;

    (e) The actual or probable cause of the occurrence and whether the owner or operator contends that the cause is a malfunction;

    (f) The method of correcting the cause of the excess emissions and minimizing the duration and magnitude of the occurrence, including, if applicable, the use of overtime or contractual assistance to make repairs as expeditiously as possible;

    (g) A listing of all occurrences of excess emissions from the installation, the duration of each occurrence, and the cause of each occurrence for the last 1-year period or since the effective date of this regulation, whichever is less;

    (h) A copy of the maintenance plan for the installation and documentation that the plan is appropriate for the installation;

    (i) Documentation that the maintenance plan was being carried out before the occurrence of excess emissions;

    (j) The steps taken or planned to prevent the reoccurrence of the excess emissions; and

    (k) Any other information requested by the Department which is relevant to the occurrence of excess emissions or a claim by the owner or operator that the excess emissions were the result of a malfunction.

E. Notwithstanding any provisions to §§A—D, of this regulation, a decision by the Department not to commence enforcement proceedings for an occurrence of excess emissions is not intended to preclude the Department from considering all past periods of excess emissions in determining whether to revoke or suspend a current operating permit or not to issue an operating permit for a future period of time.

F. The Department may exempt the owner or operator of any installation from the reporting requirements of §C, of this regulation, if it determines that other information submitted to the Department meets the requirements of §C of this regulation, or the information is of insignificant use to the Department.

#### Regulation .08 Determination of Ground Level Concentrations — Acceptable Techniques.

*COMAR 26.11.01.08*

A. Definitions.

  (1) “Major modification” means any modification as defined in 40 CFR Parts 51 and 52, 1985 edition.

  (2) “State Implementation Plan” means the plan required by the Federal Clean Air Act, 42 U.S.C §7410, which the State adopts and submits to the United States Environmental Protection Agency showing attainment and maintenance of National Ambient Air Quality Standards.

  (3) “Unacceptable dispersion technique” means any dispersion technique as defined in 40 CFR Part 51, 1985 edition, as amended, 50 FR 27906—27907 (July 8, 1985: Stack Height Regulation).

B. Exemptions.

  (1) This regulation does not apply to any stack height in existence or dispersion technique implemented on or before December 31, 1970, except when a source using a stack or dispersion technique undergoes a major modification after December 31, 1970.

  (2) This regulation does not apply to the calculation of ground level concentrations of toxic air pollutants for the purpose of demonstrating compliance with COMAR 26.11.15.06.

C. Dispersion Technique. A person may not use an unacceptable dispersion technique to determine the ground level concentrations of air pollutants discharged from a source in order to obtain:

  (1) An approval or permit under this subtitle;

  (2) A revision to the State Implementation Plan; or

  (3) A Certificate of Public Convenience and Necessity under Article 78, §§54A and B, or H, Annotated Code of Maryland.

#### Regulation .09 Vapor Pressure of Gasoline.

*COMAR 26.11.01.09*

See Figure 1.

#### Regulation .10 Continuous Opacity Monitoring Requirements.

*COMAR 26.11.01.10*

A. Applicability and Exceptions.

  (1) The provisions of this regulation apply to:

    (a) Fuel burning equipment burning coal, fuel oil, tars, or waste combustible fluid at any time and that has a rated heat input capacity of 250 million Btu per hour or greater;

    (b) Fuel burning equipment burning coal with a rated heat input capacity of 100 million Btu per hour or greater but less than 250 million Btu per hour and was constructed on or before June 19, 1984;

    (c) A cement kiln;

    (d) A fluidized bed combustor of any size; and

    (e) A municipal waste combustor with a burning capacity of 35 tons or greater per day.

  (2) The owner or operator of an installation subject to this regulation may also be subject to the requirements of 40 CFR Parts 60 and 75, as amended.

  (3) This regulation does not apply to fuel burning equipment that:

    (a) Burns only distillate fuel oil or a mixture of gas and distillate fuel oil;

    (b) Is able to comply with the applicable particulate matter and opacity emission limitations without using particulate matter control equipment; and

    (c) Has never been found in a final order to be in violation of any visible emissions standard.

  (4) The owner or operator of fuel burning equipment subject to this regulation may, with approval by the Department, discontinue use of a COM only in accordance with the provisions in COMAR 26.11.09.05C.

  (5) The owner or operator of a cement manufacturing installation may discontinue use of a COM when a PM CPMS is installed and operated in accordance with the requirements of COMAR 26.11.30.

  (6) Sources may request for approval by the Department and EPA an alternate limit for specific operating conditions in which the technological limitations of the control equipment adversely affects the ability of the source to comply with visible emissions limits by following the recommendations at 80 FR 33980. The alternate limit shall be submitted to EPA as a SIP revision and included in 40 CFR Part 52 Subpart V 52.1070(d) for Maryland Source Specific SIP revisions.

B. General Requirements for COMs.

  (1) The owner or operator of an installation subject to this regulation shall:

    (a) Install and continuously operate a COM that complies with a plan approved by the Department and EPA in accordance with §B(1)(b) of this regulation; and

    (b) Before installing a COM, submit to the Department for approval, a plan containing the COM design specifications, proposed location, and a description of a proposed alternative measurement method consisting of a schedule for utilizing the EPA Reference Method 9 observational procedures.

  (2) The Department shall submit the plan to EPA for review and approval.

  (3) A COM shall comply with the applicable requirements in 40 CFR Part 51, Appendix P, as amended, which is incorporated by reference.

  (4) The owner or operator of fuel burning equipment that is required by this regulation to install and operate a COM is subject to the provisions in COMAR 26.11.09.05.

  (5) The owner or operator of a cement kiln or clinker cooler that is operating a COM is subject to the following requirements.

    (a) The owner or operator of a cement kiln or clinker cooler may not cause or permit the discharge of emissions which exceed the visibility standards in COMAR 26.11.30.05B.

    (b) The visibility standards in COMAR 26.11.30.05B(1) and (2) do not apply to emissions as specified in COMAR 26.11.06.02A(2) during EPA reference Method 9 observations.

    (c) For the purpose of demonstrating compliance with COMAR 26.11.30.05B(2) when using a COM, emissions that are visible to a human observer are those that are equal to or greater than 10 percent opacity.

    (d) For the owner or operator of a cement kiln or clinker cooler that is operating a COM, compliance with visible emission standards is achieved if visible emissions do not exceed the applicable visible emission limitations in 26.11.30.05B(1) or (2) as applicable.

    (e) Notwithstanding the requirements in §B(5)(a)—(d) of this regulation, the Department may determine compliance and non-compliance with the visible emission limitations by performing EPA reference Method 9 observations.

    (f) The owner or operator of a cement kiln or clinker cooler that is operating a COM shall meet the quality assurance requirements under COMAR 26.11.31.

  (6) The owner or operator of a municipal waste combustor that is required to install and operate a COM is subject to the following requirements.

    (a) The owner or operator of a municipal waste combustor may not cause or permit the discharge of emissions which exceed the visibility standards in COMAR 26.11.08.04 as determined by EPA reference Method 9 observations.

    (b) For the purpose of demonstrating compliance with COMAR 26.11.08.04 when using a COM, emissions that are visible to a human observer are those that are equal to or greater than 10 percent opacity.

    (c) For the owner or operator of a municipal waste combustor that is required to install and operate a COM, compliance with visible emission standards is achieved if visible emissions do not exceed 10 percent opacity for a 6-minute block average during the unit's operating time.

    (d) Notwithstanding the requirements in §B(6)(a)—(c) of this regulation, the Department may determine compliance and non-compliance with the visible emission limitations by performing EPA reference Method 9 observations.

    (e) The owner or operator of a municipal waste combustor that is operating a COM shall meet the quality assurance requirements under COMAR 26.11.31.

C. Certification and Quality Assurance Procedures.

  (1) All certification testing, including certification performance tests and audits, shall be performed in accordance with 40 CFR Part 60, Appendix B, as amended, which is incorporated by reference.

  (2) For fuel burning equipment subject to the federal Acid Rain Program, all certification testing, including certification performance tests and audits, shall be performed in accordance with 40 CFR Part 75, Appendix A, as amended.

  (3) Certification testing shall be repeated when the Department determines that the data are invalid because of component replacement or other conditions that affect the accuracy of generated data.

  (4) The owner or operator that is required to perform a certification performance test shall:

    (a) At least 60 days before the test, submit a test protocol to the Department for review and approval;

    (b) Schedule the test at a reasonable time and notify the Department at least 10 days before the test is to be conducted; and

    (c) Submit the test results to the Department not later than 45 days after the completion of the test.

  (5) The owner or operator of fuel-burning equipment required to install and operate a COM shall meet the quality assurance procedures contained in COMAR 26.11.31.

D. Record Keeping and Reporting Requirements.

  (1) System Downtime Reporting Requirements.

    (a) All COM downtime that lasts or is expected to last more than 24 hours shall be reported to the Department by telephone before 10 a.m. of the first regular business day following the first day on which downtime occurs.

    (b) The COM downtime report shall include the reason, if known, for the breakdown and the estimated period of time that the COM will be down. The owner or operator shall notify the Department by telephone when the COM has met performance specifications for accuracy, reliability, and durability of acceptable monitoring systems, as provided in 40 CFR Part 51 Appendix P, and is producing data.

    (c) Except as otherwise approved by the Department and the EPA, a COM shall operate in compliance with the requirements of §B(2) of this regulation and collect data for at least 95 percent of the source's operating time during any calendar quarter. The alternative measurement plan required in §B(1)(b) of this regulation shall be used at all times when the COM fails to conform to performance standards required by §B(2) of this regulation during data collection.

  (2) Data Reporting Requirements.

    (a) A COM shall automatically reduce all data to six-minute block averages calculated from 24 or more equally spaced data points.

    (b) All COM data shall be reported in a format approved by the Department.

    (c) A quarterly summary report shall be submitted to the Department not later than 30 days following each calendar quarter. The report shall be in a format approved by the Department, and shall include the following:

      (i) The cause, time periods, and the opacity of all emissions which exceed the applicable quarterly, daily and hourly emission standards as provided in COMAR 26.11.09.05A(4);

      (ii) The COM and installation downtimes, including the time and date of the beginning and end of each downtime period, and whether the downtime was scheduled;

      (iii) The cause of all COM downtime;

      (iv) The total operating time for the quarter, and the total time and percent of the operating time during the quarter that excess emissions occurred, and the percentage of COM downtime, during the calendar quarter;

      (v) Quarterly quality assurance activities;

      (vi) Daily calibration activities that include reference values, actual values, absolute or percent of span differences, and drift status;

      (vii) Other information that the Department determines is necessary to evaluate the data or to ensure that compliance is achieved.

E. All information required by this regulation to be maintained or reported to the Department shall be retained and made available for review by the Department for a minimum of 5 years from the time the report is submitted.

#### Regulation .11 Continuous Emission Monitoring Requirements.

*COMAR 26.11.01.11*

A. Applicability and Exemptions.

  (1) The provisions of this regulation apply to:

    (a) Fuel-burning equipment burning coal that has a rated heat input capacity of 100 million Btu per hour or greater;

    (b) Municipal waste combustors with a burning capacity of 35 tons or greater per day;

    (c) Fluidized bed combustors; and

    (d) Kraft pulp mills.

  (2) An owner or operator that is required to install a CEM under any federal requirement is also subject to all of the provisions of this regulation.

B. General Requirements for CEMs.

  (1) An owner or operator subject to this regulation shall:

    (a) Before installing a CEM, submit to the Department, for approval by the Department and EPA, a plan containing the CEM design specifications, proposed location, and a description of a proposed alternative measurement method; and

    (b) Install and operate a CEM in accordance with the plan approved by the Department and EPA under the provisions of §B(1)(a) of this regulation.

  (2) The owner or operator of fuel-burning equipment burning coal, with a heat input capacity of 100 million Btu per hour or greater, shall install CEMs to measure and record sulfur dioxide, nitrogen oxide, either oxygen or carbon dioxide, and flow.

  (3) The owner or operator of:

    (a) A municipal waste combustor (MWC) shall install CEMs to measure and record SOx, NOx, carbon monoxide emissions and either CO2 or oxygen;

    (b) A Kraft pulp mill shall install a CEM to measure and record SO2 and flow; and

    (c) A fluidized bed combustor of any size shall install CEMs to measure and record sulfur dioxide, nitrogen oxide and either oxygen or carbon dioxide.

  (4) Except as otherwise approved by the Department, if the owner or operator is unable to obtain emissions data from CEMs because of a malfunction of the CEM for more than 2 hours in duration, the owner or operator shall use the alternative measurement method approved by the Department and EPA.

C. Quality Assurance for CEMs. A CEM used to monitor a gas concentration shall meet the quality assurance criteria of 40 CFR Part 60, Appendix F, as amended, which is incorporated by reference, or, if applicable, the quality assurance criteria of 40 CFR Part 75, Appendix B, as amended.

D. Monitoring and Determining Compliance.

  (1) General. A CEM required by this regulation is the primary method used by the Department to determine compliance or non-compliance with the applicable emission standards established in any permit or approval, administrative or court order, Certificate of Public Convenience and Necessity, or regulation in this subtitle.

  (2) Data Reduction. A CEM used to monitor a gas concentration shall record not less than four equally spaced data points per hour and automatically reduce data in terms of averaging times consistent with the applicable emission standard.

E. Record Keeping and Reporting Requirements.

  (1) CEM System Downtime Reporting Requirements.

    (a) All CEM system downtime that lasts or is expected to last more than 24 hours shall be reported to the Department by telephone before 10 a.m. of the first regular business day following the breakdown.

    (b) The system breakdown report required by §E(1)(a) of this regulation shall include the reason, if known, for the breakdown and the estimated period of time that the CEM will be down. The owner or operator of the CEM shall notify the Department by telephone when an out-of-service CEM is back in operation and producing data that has met performance specifications for accuracy, reliability, and durability of acceptable monitoring systems, as provided in COMAR 26.11.31, and is producing data.

  (2) CEM Data Reporting Requirements.

    (a) All test results shall be reported in a format approved by the Department.

    (b) Certification testing shall be repeated when the Department determines that the CEM data may not meet performance specifications because of component replacement or other conditions that affect the quality of generated data.

    (c) A quarterly summary report shall be submitted to the Department not later than 30 days following each calendar quarter. The report shall be in a format approved by the Department, and shall include the following:

      (i) The cause, time periods, and magnitude of all emissions which exceed the applicable emission standards;

      (ii) The source downtime including the time and date of the beginning and end of each downtime period and whether the source downtime was planned or unplanned;

      (iii) The time periods and cause of all CEM downtime including records of any repairs, adjustments, or maintenance that may affect the ability of the CEM to meet performance specifications of emission data;

      (iv) Quarterly totals of excess emissions, installation downtime, and CEM downtime during the calendar quarter;

      (v) Quarterly quality assurance activities;

      (vi) Daily calibration activities that include reference values, actual values, absolute or percent of span differences, and drift status; and

      (vii) Other information required by the Department that is determined to be necessary to evaluate the data, to ensure that compliance is achieved, or to determine the applicability of this regulation.

    (d) All information required by this regulation to be reported to the Department shall be retained and made available for review by the Department for a minimum of 2 years from the time the report is submitted.

### Chapter 02 — Permits, Approvals, and Registration

**Authority:** Environment Article, §§1-101, 1-404, 1-601—1-606, 2-101—2-103, 2-301—2-303, and 2-401—2-404, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1980 (7:12 Md. R. 1148)

**Administrative History:** Regulations .01C and E repealed effective February 10, 1984 (10:26 Md. R. 2341)

**Administrative History:** Regulation .03A amended effective November 7, 1980 (7:20 Md. R. 1878); July 10, 1981 (8:11 Md. R. 974); August 16, 1983 (10:14 Md. R. 1226); February 10, 1984 (10:26 Md. R. 2341); March 25, 1984 (11:3 Md. R. 202)

**Administrative History:** Regulation .03B amended effective August 16, 1983 (10:14 Md. R. 1262)

**Administrative History:** Regulation .03G amended effective July 10, 1981 (8:11 Md. R. 974)

**Administrative History:** Regulation .03H amended effective November 7, 1980 (7:20 Md. R. 1878); July 10, 1981 (8:11 Md. R. 974); March 24, 1987 (14:4 Md. R. 419); January 5, 1988 (14:24 Md. R. 2555)

**Administrative History:** Regulation .03I amended effective July 10, 1981 (8:11 Md. R. 974); February 25, 1983 (10:1 Md. R. 30); July 2, 1985 (12:11 Md. R. 1049)

**Administrative History:** For the history of this subtitle before June 18, 1980, see the Administrative History of COMAR 26.11.01.

**Administrative History:** Chapter recodified from COMAR 10.18.02 to COMAR 26.11.02

**Administrative History:** Regulation .01 amended effective November 23, 1992 (19:25 Md. R. 2208 and 19:23 Md. R. 2042)

**Administrative History:** Regulation .01D amended effective November 28, 1989 (16:21 Md. R. 2264)

**Administrative History:** Regulation .03A—N recodified to Regulations .03—.16, respectively

**Administrative History:** Regulation .03A amended effective May 8, 1991 (18:6 Md. R. 688)

**Administrative History:** Regulation .03A, B amended effective April 26, 1993 (20:8 Md. R. 724)

**Administrative History:** Regulation .04A amended effective March 1, 1993 (20:4 Md. R. 373); September 13, 1993 (20:18 Md. R. 1432)

**Administrative History:** Regulation .04B repealed, new Regulation .04B, C, D adopted effective November 28, 1989 (16:21 Md. R. 2264)

**Administrative History:** Regulation .04B amended effective March 1, 1993 (20:4 Md. R. 373); September 13, 1993 (20:18 Md. R. 1432)

**Administrative History:** Regulation .06C amended effective November 28, 1989 (16:21 Md. R. 2264); September 13, 1993 (20:18 Md. R. 1432)

**Administrative History:** Regulation .06E adopted effective November 23, 1992 (19:25 Md. R. 2208 and 19:23 Md. R. 2042)

**Administrative History:** Regulation .09A amended effective April 26, 1993 (20:8 Md. R. 724)

**Administrative History:** Regulation .10C amended effective March 21, 1989 (16:3 Md. R. 347); May 8, 1991 (18:6 Md. R. 688); April 26, 1993 (20:8 Md. R. 724); June 20, 1994 (21:12 Md. R. 1064)

**Administrative History:** Regulation .11A amended effective April 26, 1993 (20:8 Md. R. 724)

**Administrative History:** Regulations .17—.21 adopted effective November 28, 1989 (16:21 Md. R. 2264)

**Administrative History:** Regulation .17A, B amended effective September 13, 1993 (20:18 Md. R. 1432)

**Administrative History:** Regulation .17B-1 adopted effective November 23, 1992 (19:25 Md. R. 2208 and 19:23 Md. R. 2042)

**Administrative History:** Regulation .18 amended effective October 12, 1992 (19:20 Md. R. 1819)

**Administrative History:** Regulation .18B amended effective April 26, 1993 (20:8 Md. R. 724)

**Administrative History:** Regulation .19 amended effective October 12, 1992 (19:20 Md. R. 1819)

**Administrative History:** Regulation .20B—E amended effective March 1, 1993 (20:4 Md. R. 373)

**Administrative History:** Regulation .20 repealed and new Regulation .20 adopted effective September 13, 1993 (20:18 Md. R. 1432)

**Administrative History:** Regulation .21 repealed effective September 13, 1993 (20:18 Md. R. 1432)

**Administrative History:** Regulations .01—.20 repealed and new Regulations .01—.19 adopted effective May 8, 1995 (22:9 Md. R. 648)

**Administrative History:** Editor's note: The Part 70 permit requirements of this chapter and of COMAR 26.11.03 were effective on August 2, 1996, the date the EPA approved Maryland's program (24:5 Md. R. 413).

**Administrative History:** Regulation .01B amended effective June 16, 1997 (24:12 Md. R. 866); January 29, 2007 (34:2 Md. R. 138)

**Administrative History:** Regulation .01B amended as an emergency provision effective January 2, 2011 (38:4 Md. R. 263); amended permanently effective May 16, 2011 (38:10 Md. R. 617)

**Administrative History:** Regulation .01B amended effective August 22, 2011 (38:17 Md. R. 1014); March 5, 2012 (39:4 Md. R. 339); February 12, 2018 (45:3 Md. R. 158)

**Administrative History:** Regulation .01C amended effective December 10, 2001 (28:24 Md. R. 2130)

**Administrative History:** Regulation .01C amended as an emergency provision effective January 2, 2011 (38:4 Md. R. 263); amended permanently effective May 16, 2011 (38:10 Md. R. 617)

**Administrative History:** Regulation .02I amended effective December 10, 2001 (28:24 Md. R. 2130)

**Administrative History:** Regulation .06B amended effective June 16, 1997 (24:12 Md. R. 866)

**Administrative History:** Regulation .07 amended effective December 10, 2015 (42:24 Md. R. 1506)

**Administrative History:** Regulation .09A amended effective November 16, 2009 (36:23 Md. R. 1818); December 24, 2012 (39:25 Md. R. 1615)

**Administrative History:** Regulation .09C amended effective May 4, 1998 (25:9 Md. R. 680)

**Administrative History:** Regulation .10A amended effective November 16, 2009 (36:23 Md. R. 1818)

**Administrative History:** Regulation .10 amended effective June 16, 1997 (24:12 Md. R. 866); March 22, 1999 (26:6 Md. R. 488)

**Administrative History:** Regulation .10D repealed effective November 24, 2003 (30:23 Md. R. 1653)

**Administrative History:** Regulation .10E amended effective September 22, 1997 (24:19 Md. R. 1343); November 24, 2003 (30:23 Md. R. 1653); May 18, 2009 (36:10 Md. R. 718); June 13, 2011 (38:12 Md. R. 708); February 12, 2018 (45:3 Md. R. 158)

**Administrative History:** Regulation .10E-1 adopted February 12, 2018 (45:3 Md. R. 158)

**Administrative History:** Regulation .10X amended effective August 22, 2011 (38:17 Md. R. 1014)

**Administrative History:** Regulation .11 amended effective December 10, 2015 (42:24 Md. R. 1506)

**Administrative History:** Regulation .11A amended effective June 16, 1997 (24:12 Md. R. 866)

**Administrative History:** Regulation .12 amended effective December 10, 2015 (42:24 Md. R. 1506)

**Administrative History:** Regulation .12A amended effective June 16, 1997 (24:12 Md. R. 866); March 22, 1999 (26:6 Md. R. 487)

**Administrative History:** Regulation .12A amended as an emergency provision effective January 2, 2011 (38:4 Md. R. 263); amended permanently effective May 16, 2011 (38:10 Md. R. 617)

**Administrative History:** Regulation .13 amended effective August 22, 2011 (38:17 Md. R. 1014)

**Administrative History:** Regulation .13A amended effective April 30, 2012 (39:8 Md. R. 536)

**Administrative History:** Regulation .14A amended effective June 16, 1997 (24:12 Md. R. 866)

**Administrative History:** Regulation .16A amended effective June 16, 1997 (24:12 Md. R. 866); December 10, 2001 (28:24 Md. R. 2130)

**Administrative History:** Regulation .17 amended effective August 19, 2013 (40:16 Md. R. 1345)

**Administrative History:** Regulation .17A amended effective August 29, 2016 (43:17 Md. R. 959)

**Administrative History:** Regulation .19 amended effective June 16, 1997 (24:12 Md. R. 866); December 10, 2001 (28:24 Md. R. 2130)

**Administrative History:** Regulation .19A amended effective August 19, 2013 (40:16 Md. R. 1345)

**Administrative History:** Regulation .19B amended effective October 1, 2008 (35:19 Md. R. 1717)

**Administrative History:** Regulation .19B amended as an emergency provision effective November 3, 2008 (35:24 Md. R. 2073); amended permanently effective February 23, 2009 (36:4 Md. R. 356); March 30, 2026 (53:6 Md. R. 292)

#### Regulation .01 Definitions.

*COMAR 26.11.02.01*

A. In this chapter and in COMAR 26.11.03, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Acid rain source” means a new or modified source subject to the provisions of 40 CFR 72, as amended.

  (1-1) “Administrative permit amendment” means a revision to a Part 70 permit that satisfies the requirements of COMAR 26.11.03.15.

  (2) “Affected source” means a source that includes one or more affected units.

  (3) “Affected states” means all states including the District of Columbia:

    (a) Whose air quality may be affected and that are contiguous to Maryland; or

    (b) That are within 50 miles of the permitted source.

  (4) “Affected unit” means a fossil fuel-fired combustion device that is subject to any acid rain emissions reduction requirement or acid rain emissions limitation as provided in 40 CFR Parts 72, 73, 75, and 76 as applicable to 40 CFR Part 70.

  (5) Alternate Operating Scenarios.

    (a) “Alternate operating scenarios” means those provisions in a Part 70 permit that allow the permittee to make choices about how the source is operated, as provided in the permit, but without any requirement to revise the permit.

    (b) “Alternate operating scenarios” may be included in a Part 70 permit as provided for in COMAR 26.11.03.06A(9).

  (6) “Applicable requirement of the Clean Air Act” means all of the following as they apply to emissions units in a Part 70 source, including requirements that have been promulgated or approved by EPA through rule making, at the time of issuance of the permit but have future effective compliance dates:

    (a) A standard or other requirement provided for in the Maryland State Implementation Plan (SIP);

    (b) A federally enforceable term or condition of a preconstruction permit and permit to construct issued pursuant to regulations approved or promulgated through rule making under Title I, including those concerning Prevention of Significant Deterioration under Part C or those concerning Nonattainment under Part D of the federal Clean Air Act, as amended, 42 U.S.C. §7401 et seq.;

    (c) A standard or other requirement concerning New Source Performance Standards under §111 of the Clean Air Act, including standards of performance for existing sources under §111(d);

    (d) A standard or other requirement concerning hazardous air pollutants under §112 of the Clean Air Act, including any requirement concerning accidental release prevention under §112(r)(7) of the Clean Air Act;

    (e) A standard or other requirement of the acid rain program under Title IV of the Clean Air Act or the regulations promulgated under it, including 40 CFR Parts 72, 73, 75, and 76 as applicable to 40 CFR Part 70;

    (f) A requirement concerning monitoring and analysis established pursuant to §504(b) of the Clean Air Act or concerning enhanced monitoring and compliance certification under §114(a)(3) of the Clean Air Act;

    (g) A standard or other requirement governing solid waste combustion under §129 of the Clean Air Act;

    (h) A standard or other requirement for the control of emissions from consumer and commercial products under §183(e) of the Clean Air Act;

    (i) A standard or other requirement for the control of emissions from tank vessels under §183(f) of the Clean Air Act;

    (j) A standard or other requirement of the program to control air pollution from outer continental shelf sources under §328 of the Clean Air Act;

    (k) A standard or other requirement of the regulations promulgated to protect stratospheric ozone, under Title VI of the Clean Air Act, unless EPA has determined that this requirement need not be contained in a Part 70 permit; and

    (l) A national ambient air quality standard or increment or visibility requirement under Part C of Title I of the Clean Air Act, but only as it would apply to temporary sources permitted pursuant to §504(e) of the Clean Air Act.

  (7) “Applicable requirement of State air pollution control law” means all of the following as they apply to a source:

    (a) Environment Article, Title 2, Annotated Code of Maryland; and

    (b) All regulations that the Department has adopted under the authority of Environment Article, Title 2, including COMAR 26.11.

  (8) “Applicant” means a person who submits an application for a permit.

  (9) “Application” means a written request for a permit required by this chapter or by COMAR 26.11.03.

  (10) Application Shield.

    (a) “Application shield” means that a source for which a timely and complete application for a Part 70 permit has been submitted may continue to be operated until the permit is issued or denied, if the requirements of COMAR 26.11.03.01D are satisfied.

    (b) “Application shield” applies to a Part 70 permit only.

  (11) “Approval” means a special category of permit from the Department for a PSD source or an NSR source.

  (12) “Clean Air Act” means the federal Clean Air Act, as amended, 42 U.S.C. §7401 et seq.

  (13) “Complete application” means an application that:

    (a) Contains all the information required by the Department under Regulation .11, .12, or .14 of this chapter or COMAR 26.11.03.02 and .03 in sufficient detail that allows the Department to begin review of the application; and

    (b) Includes additional information that the Department, in its final review of the application, may require to assure that emissions estimates are reasonably accurate and that all applicable requirements will be met.

  (14) “Contested case hearing” means a hearing that meets the requirements of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

  (15) “Designated representative” has the meaning stated in the provisions concerning acid rain emissions under §402(26) of the Clean Air Act and the regulations promulgated under it including 40 CFR Parts 72, 73, 75, and 76 as applicable to 40 CFR Part 70.

  (16) Draft Permit.

    (a) “Draft permit” means the version of a Part 70 permit for which the Department offers public notice and an opportunity for public comment and nonadjudicatory hearing in accordance with 40 CFR §70.7(h) or affected state review under 40 CFR §70.8.

    (b) “Draft permit” also means a draft approval, permit to construct, or State permit to operate.

  (17) “EPA” means the Administrator of the U.S. Environmental Protection Agency or the Administrator's designee.

  (17-1) “Emergency stationary internal combustion engine” is defined in 40 CFR Part 60, Subpart IIII or JJJJ, as amended.

  (17-2) “Emergency stationary reciprocating internal combustion engine (RICE)” is defined in 40 CFR Part 63, Subpart ZZZZ, as amended.

  (18) Emissions Unit.

    (a) “Emissions unit” means a part or activity of a stationary source, including an installation, that emits or has the potential to emit a regulated air pollutant or hazardous air pollutant listed under §112(b) of the Clean Air Act.

    (b) “Emissions unit” does not alter or affect the definition of the term “unit” for purposes of Title IV of the Clean Air Act.

  (19) “Federally enforceable requirements of a permit to construct or State permit to operate” means the provisions of a permit to construct or State permit to operate that meet the requirements of Regulation .03 of this chapter.

  (20) “Final permit” means the version of a permit issued after the Department has completed all review procedures required, with respect to the permit, by this chapter and by COMAR 26.11.03.

  (21) “Fugitive emissions” means those emissions that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

  (22) “General Part 70 permit” means a Part 70 permit that meets the requirements of COMAR 26.11.03.21.

  (23) “General permit” means a general Part 70 permit, a general permit to construct, or a general State permit to operate.

  (24) “General permit to construct” means a permit that meets the requirements of Regulation .09D of this chapter.

  (25) “General State permit to operate” means a permit that meets the requirements of Regulation .13H of this chapter.

  (26) “Informational meeting” means a meeting that meets the requirements of Environment Article, §1-101(g), Annotated Code of Maryland.

  (27) “Major source” has the meaning stated in §C of this regulation.

  (28) “Maryland State Implementation Plan (SIP)” means the Maryland plan required by §110 of the Clean Air Act, as approved by EPA.

  (29) “Minor permit modification” means a revision to a Part 70 permit that satisfies the requirements of COMAR 26.11.03.16.

  (30) “Off-permit change” means a change to a source covered by a Part 70 permit that meets the requirements of COMAR 26.11.03.19.

  (31) “On-permit change” means a change to a source covered by a Part 70 permit that meets the requirements of COMAR 26.11.03.18.

  (32) “Part 70 permit” means an individual Part 70 permit or group of Part 70 permits covering a Part 70 source, that is issued, renewed, or revised pursuant to COMAR 26.11.03.

  (33) Part 70 Source.

    (a) “Part 70 source” means a stationary source required to have a Part 70 permit pursuant to COMAR 26.11.03.01.

    (b) A “Part 70 source” may contain one or more emission units.

  (34) “Permit” means a written authorization from the Department issued pursuant to this chapter or COMAR 26.11.03, including a Part 70 permit, a State permit to operate, a permit to construct, a general permit, or an approval of a PSD or NSR source.

  (35) Permit to Construct.

    (a) “Permit to construct” means a permit to construct issued, renewed, or revised pursuant to this chapter.

    (b) “Permit to construct” does not mean a Part 70 permit.

  (36) “Permittee” means a person who has obtained a permit from the Department.

  (37) “Permit modification” means a revision to a Part 70 permit that is a minor permit modification under COMAR 26.11.03.16 or a significant permit modification under COMAR 26.11.03.17.

  (38) “Permit revision” means a revision to the terms and conditions of a permit or approval.

  (39) Permit Shield.

    (a) “Permit shield” means a provision in a Part 70 permit that satisfies the requirements of COMAR 26.11.03.23.

    (b) “Permit shield” does not apply to a State permit.

  (40) Portable Emission Unit.

    (a) “Portable emission unit” means an emission unit that is designed to be moved from site to site, including portable asphalt plants, portable stone crushers and screens, and portable stills.

    (b) “Portable emission unit” includes other emission units that are designed to be moved from site to site and that are not major sources as defined in the Clean Air Act.

    (c) “Portable emission unit” may be a temporary source subject to COMAR 26.11.03.22.

  (41) “Potential to emit” means the maximum capacity of a stationary source to emit an air pollutant under its physical and operational design. A physical or operational limitation on the capacity of a source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation is enforceable by the EPA. This term does not alter or affect the use of this term for any other purposes under the Clean Air Act or the term “capacity factor” as used concerning acid rain emissions in Title IV of the Clean Air Act or the regulations promulgated under it.

  (42) “Proposed permit” means the version of a permit that the Department proposes to issue and, if a Part 70 permit, forwards to the EPA for review, as prescribed in COMAR 26.11.03.09A.

  (43) “Public hearing” means a hearing that meets the requirements of Environment Article, §1-101(j), Annotated Code of Maryland, and that is held in the county where a proposed source would be located.

  (44) “Regulated air pollutant” means the following:

    (a) Nitrogen oxides (NOx) or any volatile organic compound (VOC);

    (b) A pollutant for which a national ambient air quality standard has been promulgated;

    (c) A pollutant that is subject to any new source performance standard promulgated under §111 of the Clean Air Act;

    (d) A Class I or II substance subject to a standard concerning stratospheric ozone protection promulgated under or established by Title VI of the Clean Air Act;

    (e) A hazardous air pollutant subject to a standard promulgated under §112 or other requirements established under §112 of the Clean Air Act, including provisions for modifications under §112(g), provisions for equivalent emissions limitations by permit under §112(j), and provisions for prevention of accidental releases under §112(r) of the Clean Air Act, including the following:

      (i) A pollutant subject to requirements under §112(j) of the Clean Air Act; if the EPA fails to promulgate a standard by the date established pursuant to §112(e) of the Clean Air Act, a pollutant for which a subject source would be major shall be considered to be regulated on the date 18 months after the applicable date established pursuant to §112(e) of the Clean Air Act, and

      (ii) A pollutant for which the requirements of §112(g)(2) of the Clean Air Act have been met, but only with respect to the individual source subject to the §112(g)(2) requirement; or

    (f) A greenhouse gas (GHG) as defined in COMAR 26.11.01.01B(18-1) and subject to regulation under the “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” (75 FR 31514) and the “Deferral for CO2 Emissions from Bioenergy and Other Biogenic Sources under the Prevention of Significant Deterioration and Title V Programs” (76 FR 43490).

  (45) “Renewal” means the process by which a permit is reissued at the end of its term.

  (46) “Reopen” means a decision by the Department, pursuant to COMAR 26.11.03.20, to reopen a Part 70 permit issued under COMAR 26.11.03 so that it may be revised or revoked.

  (47) “Responsible official” means one of the following:

    (a) For a corporation: a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or another person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of that person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either:

      (i) The facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25,000,000 in second quarter 1980 dollars, or

      (ii) The delegation of authority to the representative is approved in advance by the Department;

    (b) For a partnership or sole proprietorship: a general partner or the proprietor, respectively;

    (c) For a municipal, State, federal, or other public agency: either a principal executive officer or ranking elected official; for the purposes of this chapter and COMAR 26.11.03, a principal executive officer of a federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency, for example a regional administrator of EPA; or

    (d) For affected sources:

      (i) The designated representative insofar as actions, standards, requirements, or prohibitions concerning acid rain emissions under Title IV of the Clean Air Act or the regulations promulgated under it; and

      (ii) The designated representative for any other purpose under this chapter or COMAR 26.11.03.

  (48) “Revocation” or “revoke” means a decision by the Department or the EPA to take away a permit before the end of its term or to suspend a permit for a specified period of time.

  (49) “Significant permit modification” means a revision to a Part 70 permit that satisfies the requirements of COMAR 26.11.03.17.

  (50) “Solvent-based materials” means any material that contains 25 percent or more VOC by volume as applied, in the volatile portion of the material.

  (51) “State-only enforceable” means terms and conditions of a Part 70 permit that the Department has designated to be governed by State law and enforceable only by the State.

  (52) “State permit” means an approval, permit to construct, or State permit to operate.

  (53) “State permit to operate” means a permit to operate issued, renewed, or revised pursuant to this chapter and which is not a Part 70 permit.

  (54) “Stationary source” means a building, structure, facility, or installation that emits or may emit a regulated air pollutant or a pollutant listed under §112(b) of the Clean Air Act.

  (55) “Temporary source” means a source subject to COMAR 26.11.03.22.

  (56) “Title I modification” means a physical change or change in operation to a source that qualifies as a:

    (a) Modification under §111 of Title I of the Clean Air Act concerning new source performance standards or §112 NESHAP including §112(g) of Title I of the Clean Air Act concerning hazardous air pollutants; or

    (b) Major modification concerning the provisions related to prevention of significant deterioration under Part C or the provisions concerning nonattainment review under Part D of Title I of the Clean Air Act.

C. Major Source.

  (1) “Major source” means a stationary source or group of stationary sources that are located on one or more contiguous or adjacent properties, and are under common control of the same person, or persons under common control, belonging to a single major industrial grouping and that is described as follows:

    (a) A major source under §112 of the Clean Air Act concerning hazardous air pollutants, defined as:

      (i) For pollutants other than radionuclides, a stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit, in the aggregate, 10 tons per year or more of a hazardous air pollutant which has been listed pursuant to §112(b) of the Clean Air Act, 25 tons per year or more of any combination of hazardous air pollutants, or a lesser quantity that the EPA may establish by rule;

      (ii) Notwithstanding §C(1)(a)(i) of this regulation, emissions from an oil or gas exploration or production well, with its associated equipment, and emissions from a pipeline compressor or pump station may not be aggregated with emissions from similar devices, whether or not the devices are in a contiguous area or under common control, to determine whether the devices or stations are major sources; or

      (iii) For radionuclides, a major source has the meaning specified by EPA by rule;

    (b) Except as provided in §C(1)(d) of this regulation, a major stationary source of air pollutants, as defined in §302 of the Clean Air Act, that directly emits, or has the potential to emit, 100 tons per year or more of any air pollutant including a major source of fugitive emissions of the pollutant, as determined by rule by the EPA; or

    (c) A major stationary source as defined in Part D of Title I of the Clean Air Act, concerning nonattainment areas, including any stationary source which emits or has the potential to emit:

      (i) 25 tons per year or more of VOC or NOx for sources located in Baltimore City or Anne Arundel, Baltimore, Carroll, Cecil, Harford, Howard, Calvert, Charles, Frederick, Montgomery, or Prince George's counties;

      (ii) 50 tons per year or more of VOC for sources located in Allegany, Caroline, Dorchester, Garrett, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Washington, Wicomico, or Worcester counties;

      (iii) 100 tons per year or more of NOx for sources located in Allegany, Caroline, Dorchester, Garrett, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Washington, Wicomico, or Worcester counties; or

      (iv) 100 tons per year or more of carbon monoxide for sources located in the areas designated as nonattainment for carbon monoxide in 40 CFR §81.321 (1992 edition);

    (d) A GHG source shall not be considered a major stationary source of any GHG under §C(1)(b) of this regulation unless it is subject to regulation under paragraphs (1) and (2) of the definition of “Subject to regulation” in 40 CFR 70.2, as amended by “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” (75 FR 31514) and the “Deferral for CO2 Emissions from Bioenergy and Other Biogenic Sources under the Prevention of Significant Deterioration and Title V Programs” (76 FR 43490).

  (2) Under §C(1)(b) of this regulation, the fugitive emissions of a stationary source may not be considered in determining whether it is a major stationary source for the purposes of §302(j) of the Clean Air Act unless the source belongs to one of the following categories of stationary source:

    (a) Coal cleaning plants (with thermal dryers);

    (b) Kraft pulp mills;

    (c) Portland cement plants;

    (d) Primary zinc smelters;

    (e) Iron and steel mills;

    (f) Primary aluminum ore reduction plants;

    (g) Primary copper smelters;

    (h) Municipal incinerators capable of charging more than 250 tons of refuse per day;

    (i) Hydrofluoric, sulfuric, or nitric acid plants;

    (j) Petroleum refineries;

    (k) Lime plants;

    (l) Phosphate rock processing plants;

    (m) Coke oven batteries;

    (n) Sulfur recovery plants;

    (o) Carbon black plants (furnace process);

    (p) Primary lead smelters;

    (q) Fuel conversion plants;

    (r) Sintering plants;

    (s) Secondary metal production plants;

    (t) Chemical process plants;

    (u) Fossil fuel boilers, or combination of them, totaling more than 250 million British thermal units per hour heat input;

    (v) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;

    (w) Taconite ore processing plants;

    (x) Glass fiber processing plants;

    (y) Charcoal production plants;

    (z) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; or

    (aa) All other stationary source categories regulated by a standard promulgated under §111, concerning New Source Performance Standards, or §112, concerning hazardous air pollutants, of the Clean Air Act, but only with respect to those air pollutants that have been regulated for that category.

  (3) For the purpose of defining the term “major source”, a stationary source or group of stationary sources is considered part of a single industrial grouping if all of the pollutant emitting activities at the source or group of sources on contiguous or adjacent properties belong to the same major group; that is, all have the same two-digit code, as described in the Standard Industrial Classification Manual, 1987.

#### Regulation .02 General Provisions.

*COMAR 26.11.02.02*

A. Registration.

  (1) Requirement for Registration. The owner or operator of a source, except as provided in §A(3) of this regulation, shall register that source with the Department in the manner prescribed by the Department. Registration does not imply approval by the Department of the source.

  (2) Change in Ownership. A change of ownership terminates the registration of a source. The new owner shall register the source with the Department within 30 days of the change of ownership.

  (3) Sources Not Required to be Registered. Existing sources listed in Regulation .10 of this chapter are not required to be registered. This provision does not authorize or permit the creation of or maintenance of air pollution.

B. Permits to Construct and Approvals.

  (1) A permit to construct and an approval from the Department is required before construction or modification of a source, except as specified in Regulation .10 of this chapter.

  (2) When an approval is required for a source, the approval is in addition to any other permit that is required for that source. At the option of the applicant, an approval of a source may be sought before or simultaneously with a permit to construct or a Part 70 permit that is required for the same source.

C. State Permits to Operate. A State permit to operate from the Department is required for a source listed in Regulation .13 of this chapter.

D. Part 70 Permits. A Part 70 permit from the Department is required for a source listed in COMAR 26.11.03.01. For a source for which a State permit to operate is required, as provided in Regulation .13 of this chapter, a Part 70 permit that applies to that source also constitutes a State permit to operate for that source.

E. Transfers. A permit to construct, State permit to operate, or approval may not be transferred either from one source to another or from one person to another, except as approved by the Department. Transfers of Part 70 permits may be made as provided in COMAR 26.11.03.15.

F. Certification. An application form, report, or compliance certification submitted pursuant to this chapter or COMAR 26.11.03, including supplementary information, shall be certified by a responsible official as to truth, accuracy, and completeness. The owner or operator of a source shall expeditiously notify the Department of an appointment of a new responsible official. The certification shall be in the following form: “I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.”

G. Confidential Information. All information submitted in an application shall be considered to be part of the public record and available for inspection and copying under State Government Article, §10-611 et seq., Annotated Code of Maryland, unless the applicant claims that the information is confidential when it is submitted to the Department and the Department, at the time of a request for inspection or copying, determines that the information is confidential, in accordance with the provisions of State Government Article, §10-611 et seq., Annotated Code of Maryland. An applicant who requests the Department to keep information confidential shall identify the information in a manner specified by the Department and, when requested by the Department, promptly provide specific reasons supporting the claim of confidentiality. Information provided to the Department without a request that the information be deemed confidential may be made available to the public. Subject to approval of the Department, the applicant may provide a summary of confidential information that is suitable for public review. The contents of a Part 70 permit are not subject to confidential treatment.

H. Terms and Conditions. The Department may include terms and conditions in any permit or approval issued under this chapter or COMAR 26.11.03 to ensure continuous compliance with this subtitle.

I. A permit cannot be obtained because of failure of the Department to act on an application within an applicable time limit prescribed by this chapter, COMAR 26.11.03, or 40 CFR §71.7. Failure of the Department to make a decision within a time limit for issuing or denying a permit, permit renewal, or permit modification constitutes final agency action solely for the purpose of seeking judicial review to compel the Department to make a decision.

J. To the extent required by the Clean Air Act or authorized by the EPA, the Department may administer and enforce a permit issued by the EPA, including treating that permit as if it were a permit issued by the Department.

K. To the extent required by the Clean Air Act or authorized by the EPA, the Department may include an applicable requirement of the Clean Air Act in a permit that it issues regardless of whether the applicable requirement has been adopted as a regulation by the Department.

L. Portable Emissions Units.

  (1) The owner or operator of a portable emissions unit shall obtain a separate permit to construct for each site at which the unit is located, in accordance with the procedures in Regulation .11 or .14 of this chapter, as appropriate. An application for each site may be submitted at different times or applications may be submitted simultaneously, at the option of the applicant. A permit to construct that is issued for a site expires if the portable emissions unit has not been located at the site for 3 years, as provided in Regulation .04E of this chapter.

  (2) Simultaneously with submitting an application for a permit to construct a portable emissions unit at the first site on which the unit is to be located, the applicant may submit an application for a State permit to operate the unit at that site. If the Department issues the permit to construct the portable emissions unit, the Department may simultaneously issue a temporary start-up permit to operate the unit at the same site. The temporary start-up permit may be issued or extended by the Department so that it is effective for up to 1 year from each date that operation commences of the portable emissions unit, as provided at Regulation .04D of this chapter. When it has been demonstrated to the satisfaction of the Department that the unit is capable of complying continuously with all applicable requirements, the Department shall issue an operating permit for the unit.

  (3) At any time a temporary start-up permit or a State permit to operate has been issued for a portable emissions unit at the first site on which the unit is located, the owner or operator may apply for and the Department may issue a State permit to operate the unit at any other site for which a permit to construct has been issued for the unit.

#### Regulation .03 Federally Enforceable Permits to Construct and State Permits to Operate.

*COMAR 26.11.02.03*

A. The Department may include a condition in a permit to construct, an approval, or a State permit to operate that limits emissions from a source and that is federally enforceable so that the source is not subject to a Part 70 permit or an applicable requirement of the Clean Air Act.

B. Conditions of a permit to construct are federally enforceable if the conditions are based upon applicable requirements of the Clean Air Act.

C. A State permit to operate is federally enforceable if the permit so states and if the permit was processed in accordance with the procedures set forth in 54 FR 27274—27288 (June 28, 1989) or other procedures acceptable to EPA for making a permit federally enforceable.

#### Regulation .04 Duration of Permits.

*COMAR 26.11.02.04*

A. Unless a permit to construct, State permit to operate, or an approval is revoked by the Department or superseded by another permit, it remains in effect as provided in this regulation.

B. Permits to Construct and Approvals. A permit to construct or an approval expires if, as determined by the Department:

  (1) Substantial construction or modification is not commenced within 18 months after the date of issuance of the permit or approval, unless the Department specifies a longer period in the permit or approval;

  (2) Construction or modification is substantially discontinued for a period of 18 months after the construction or modification has commenced; or

  (3) The source for which the permit or approval was issued is not completed within a reasonable period after the date of issuance of the permit or approval.

C. State Permits to Operate.

  (1) Except as provided by State Government Article, §10-226(b), Annotated Code of Maryland, a State permit to operate expires 5 years from the date of issuance by the Department, unless an earlier expiration date is specified in the permit.

  (2) A State permit to operate for a source may be superseded by the issuance of a Part 70 permit covering that source.

D. Temporary Start-Up State Permit to Operate. Notwithstanding §§B and C of this regulation, the Department may issue a temporary start-up State permit to operate for a source or emission unit within the source for a period not to exceed 90 days. In the case of a newly constructed or modified source, the Department may issue a temporary start-up State permit to operate for a period not to exceed 1 year.

E. Portable Emission Units. A permit to construct a portable emission unit at a specific site expires if the Department determines that the portable emission unit has not been located at the site for 3 years.

F. Duration of Part 70 Permits. The duration of Part 70 permits is located in COMAR 26.11.03.05D.

G. Effect of Permit Expiration. Except as otherwise provided in this chapter or COMAR 26.11.03, the expiration of a permit to operate for a source terminates the right of the owner and operator to operate the source.

#### Regulation .05 Violation of Permits and Approvals.

*COMAR 26.11.02.05*

A. A person may not violate or cause to be violated any term or conditions of a permit issued under this chapter or COMAR 26.11.03. The Department may bring any action authorized by law for violation of a permit or any term or condition of a permit. These actions include revocation of a permit or any other actions specified in Environment Article, §2-601 et seq., Annotated Code of Maryland. Under Environment Article, §2-609, Annotated Code of Maryland, the Department may seek immediate injunctive relief against a person who violates a permit in such a manner as to cause a threat to human health or the environment. Unless they provide otherwise, the terms and conditions of a permit remain in effect until the permit expires or is revised, revoked, or superseded by the issuance of a later permit, order, plan for compliance, or other consent agreement which is inconsistent with the earlier permit, either expressly or by necessary implication.

B. Each day of violation of each provision of a permit is a separate violation, as provided by Environment Article, §§2-609.1, 2-610, and 2-610.1, Annotated Code of Maryland. Each day of construction, modification, or operation without a permit which is in current effect, as required by this chapter and COMAR 26.11.03, is a separate violation.

C. In addition to or in lieu of bringing an administrative or judicial enforcement action against a person responsible for construction, modification, or operation of a source for which a permit has expired or has been revoked, the Department, at its option, may treat the permit as remaining in effect for the purpose of administrative or judicial enforcement for violation of the provisions of the permit.

D. Except as provided in a permit shield issued under COMAR 26.11.03.23 for a Part 70 source, the issuance of a permit for a particular source does not alter the requirement for the source to comply with all other applicable requirements of the Clean Air Act and State air pollution control law. In addition to or in lieu of an administrative or judicial action that may result from violation of the permit and approval requirements of this chapter or COMAR 26.11.03, the Department may commence an administrative or judicial action authorized by law for violation of applicable requirements of the Clean Air Act or State air pollution control law.

#### Regulation .06 Denial of Applications for State Permits and Approvals.

*COMAR 26.11.02.06*

A. Applicability. This regulation applies to all permits and approvals except Part 70 permits and general permits.

B. All Permits to Construct and Approvals. The Department shall deny an application if the applicant does not demonstrate to the satisfaction of the Department that the source:

  (1) Shall comply with all applicable emission standards set forth in this subtitle, including but not limited to:

    (a) New Source Performance Standards (NSPS) contained in COMAR 26.11.06.12,

    (b) Requirements for National Emission Standards for Hazardous Air Pollutants sources (NESHAP sources) contained in COMAR 26.11.15.02,

    (c) Requirements for toxic air pollutants contained in COMAR 26.11.15;

  (2) Shall comply with the requirements for the Prevention of Significant Deterioration (PSD) contained in COMAR 26.11.06.14;

  (3) In the case of an emission unit or other source which is part of a PSD source, shall comply with the conditions of the approval by the Department of the PSD source under this regulation which relate to the emission unit or other source;

  (4) Shall comply with the requirements for New Source Review (NSR) sources contained in COMAR 26.11.17;

  (5) Does not interfere with the attainment or maintenance of ambient air quality standards contained in COMAR 26.11.04, except as permitted in COMAR 26.11.17;

  (6) Shall comply with the State Workers' Compensation laws as required by Environment Article, §1-202, Annotated Code of Maryland; and

  (7) Shall pay all fees and penalties to the Department that are related to the State air pollution control law.

C. State Permits to Operate. The Department may deny the application for a State permit to operate for a source if the Department determines that the applicant has not demonstrated that the applicant and the source shall:

  (1) Comply with all applicable emission standards contained in this subtitle, including but not limited to:

    (a) New Source Performance Standards (NSPS) contained in COMAR 26.11.06.12,

    (b) National Emission Standards for Hazardous Air Pollutants (NESHAPS) contained in COMAR 26.11.15.02,

    (c) Requirements for toxic air pollutants contained in COMAR 26.11.15;

  (2) Comply with the terms and conditions of all approvals, permits, orders, and plans for compliance or other consent agreements previously issued or adopted by the Department which are applicable to the source, including approvals and permits which have expired or have been revoked or suspended, but whose terms and conditions are intended to be incorporated into subsequent operating permits;

  (3) Comply with the State Workers' Compensation laws, as required by Environment Article, §1-202, Annotated Code of Maryland; and

  (4) Pay all fees and penalties owed to the Department that are related to the State air pollution control law.

D. State Permits and Approvals. The Department may deny an application for a permit to construct, an approval, or a State permit to operate if:

  (1) The applicant has not complied with all procedural requirements of this regulation; or

  (2) Based on past history of the applicant or source, the Department determines that the source is not expected to comply with all applicable requirements of the State air pollution control law.

#### Regulation .07 Procedures for Denying, Revoking, or Reopening and Revising a Permit or Approval.

*COMAR 26.11.02.07*

A. Denial of Approvals, State Permits to Operate or State-Only Enforceable Provisions of a Part 70 Permit.

  (1) Denial is final unless the applicant requests a hearing before the Department within 15 days after service.

  (2) When a hearing is requested by the applicant, it shall be held pursuant to the contested case provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

  (3) Denials shall be served as summonses are served, or by certified mail upon the applicant.

B. Denial of Permits to Construct.

  (1) A denial of a permit to construct a source, except for a permit to construct a source subject to Regulation .12 of this chapter, is a final determination subject to judicial review in accordance with Regulation .11M of this chapter.

  (2) Notice of the denial of a permit to construct shall be given in accordance with the notice of final determination provisions in Regulation .11L of this chapter.

C. Revoking or Reopening a Permit. Except as protected by a permit shield provided in accordance with COMAR 26.11.03.23, the Department may issue an order revoking or reopening a State permit to operate, or the State-only enforceable provisions of a Part 70 permit, for violation of a provision of the permit or this subtitle. An order revoking or reopening a permit shall be served as summonses are served or by certified mail upon the permittee, and is final unless the permittee requests a contested case hearing within 15 days after service. When a hearing is requested by the permittee, it shall be held pursuant to the contested case provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

#### Regulation .08 Late Applications and Delays in Acting on Applications.

*COMAR 26.11.02.08*

A. The Department does not issue retroactive permits for sources which are constructed, modified, or operated before being covered by a valid permit or approval. Processing and evaluation of late applications follow the requirements of this chapter and COMAR 26.11.03. In determining the appropriate penalty to seek in an administrative or judicial enforcement action, the Department shall consider, among other things:

  (1) The length of time that a source was not permitted;

  (2) Whether the person responsible for the source had actual or constructive knowledge of the requirements of this chapter and COMAR 26.11.03; and

  (3) Whether and to what extent the source was in violation of the other applicable requirements of the State air pollution control law or of the Clean Air Act.

B. As required by the Clean Air Act and State Government Article, §10-226(b), Annotated Code of Maryland, continued operation of a source pending final action on an application for the renewal of a State permit to operate or a Part 70 permit is not by itself a basis for administrative or judicial enforcement action if the source has submitted a timely and complete application and is in compliance with the prior State permit to operate or Part 70 permit. This protection ceases to apply if, subsequent to a timely submission of a complete application, the applicant fails to submit by the deadline specified in writing by the Department any additional information identified as being needed to process the application.

#### Regulation .09 Sources Subject to Permits to Construct and Approvals.

*COMAR 26.11.02.09*

A. A person may not construct or modify or cause to be constructed or modified any of the following sources without first obtaining, and having in current effect, the specified permits to construct and approvals:

  (1) New Source Review Source (NSR source), as defined at COMAR 26.11.01.01—approval required, except for electric generating stations that receive a certificate of public convenience and necessity (CPCN) under Public Utilities Article, §§7-207 and 7-208, Annotated Code of Maryland;

  (2) Prevention of Significant Deterioration (PSD) Source, as defined at COMAR 26.11.01.01—approval required, except for electric generating stations that receive a certificate of public convenience and necessity (CPCN) under Public Utilities Article, §§7-207 and 7-208, Annotated Code of Maryland;

  (3) New Source Performance Standard Source (NSPS source), as defined at COMAR 26.11.01.01 — permit to construct required, except for electric generating stations that receive a certificate of public convenience and necessity (CPCN) under Public Utilities Article, §§7-207 and 7-208, Annotated Code of Maryland;

  (4) National Emission Standards for Hazardous Air Pollutants Source (NESHAP source), as defined at COMAR 26.11.01.01B(21)(a) — permit to construct required, except for electric generating stations that receive a certificate of public convenience and necessity (CPCN) under Public Utilities Article, §§7-207 and 7-208, Annotated Code of Maryland;

  (5) Stationary source of lead that discharges 1 ton per year or more of lead or lead compounds measured as elemental lead—permit to construct required;

  (6) All sources, including installations and air pollution control equipment, except as listed in Regulation .10 of this chapter—permit to construct required.

B. In the event of a conflict between the applicability of §A(1)—(5) of this regulation and an exemption listed in Regulation .10 of this chapter, the provision that requires a permit applies.

C. Approval of a PSD or NSR source by the Department does not relieve the person obtaining approval from also obtaining all permits to construct required by §A(3)—(6) of this regulation.

D. General Permits to Construct. The Department may issue a general permit to construct covering similar sources, emissions units, or control equipment.

#### Regulation .10 Sources Exempt from Permits to Construct and Approvals.

*COMAR 26.11.02.10*

A person may construct or modify or cause to be constructed or modified any of the following sources without first obtaining, and having in current effect, a permit to construct:

A. Electric generating stations that receive a certificate of public convenience and necessity (CPCN) under Public Utilities Article, §§7-207 and 7-208, Annotated Code of Maryland;

B. Motor vehicles, steamships, tugs, and railroad locomotives;

C. Fuel-burning equipment and space heaters using gaseous fuels or No. 1 or No. 2 fuel oil with a heat input less than 1,000,000 Btu (1.06 gigajoules) per hour;

D. Repealed.

E. Emergency stationary internal combustion engines or emergency stationary reciprocating internal combustion engines (RICE) with an output less than 500 brake horsepower (373 kilowatts);

E-1. Stationary internal combustion engines or stationary reciprocating internal combustion engines (RICE) that serve as a primary source of power for agricultural equipment or industrial equipment, with an output less than 500 brake horsepower (373 kilowatts);

F. Bench scale laboratory equipment used exclusively for chemical or physical analysis or experimentation;

G. Portable brazing, soldering, or welding equipment;

H. Comfort air conditioning or comfort ventilating systems which are not designed to remove emissions generated by or released from specific units of equipment;

I. Water cooling towers and water cooling ponds unless used for evaporative cooling of water from barometric jets or barometric condensers, or used in conjunction with an installation requiring a permit to operate;

J. Equipment used exclusively for steam cleaning;

K. Grain, metal, plastic, or mineral extrusion presses;

L. Porcelain enameling drying ovens;

M. Unheated VOC dispensing containers or unheated VOC rinsing containers of 60 gallons (227 liters) capacity or less;

N. Equipment used for hydraulic or hydrostatic testing;

O. The following equipment or an exhaust system or collector servicing exclusively this equipment:

  (1) Blast cleaning equipment using a suspension of abrasive in water;

  (2) Commercial bakery ovens with a rated heat input capacity of less than 2,000,000 Btu per hour;

  (3) Kilns used for firing ceramic ware, heated exclusively by natural gas, liquefied petroleum gas, electricity, or any combination of these;

  (4) Confection cookers where the products are edible and intended for human consumption;

  (5) Drop hammers or hydraulic presses for forging or metal working;

  (6) Die casting machines;

  (7) Photographic process equipment used to reproduce an image upon sensitized material through the use of radiant energy;

  (8) Equipment for drilling, carving, cutting, routing, turning, sawing, planing, spindle sanding, or disc sanding of wood or wood products;

  (9) Equipment for surface preparation of metals by use of aqueous solutions, except for acid solutions;

  (10) Equipment for washing or drying products fabricated from metal or glass, provided that no VOC is used in the process and that no oil or solid fuel is burned;

  (11) Laundry dryers, extractors, or tumblers for fabrics cleaned with only water solution or bleach or detergents;

  (12) Containers, reservoirs, or tanks used exclusively for electrolytic plating work, or electrolytic polishing, or electrolytic stripping of brass, bronze, cadmium, copper, iron, lead, nickel, tin, zinc, and precious metals;

  (13) Breweries with an annual beer production less than 60,000 barrels; and

  (14) Municipal solid waste landfills that have a design capacity of less than 500,000 tons of municipal solid waste and that are not major sources;

P. Natural draft hoods or natural draft ventilators;

Q. Containers, reservoirs, or tanks used exclusively for:

  (1) Dipping operations for coating objects with oils, waxes, or greases, where no VOC is used;

  (2) Dipping operations for applying coatings of natural or synthetic resins which contain no VOC;

  (3) Storage of butane, propane or liquefied petroleum, or natural gas;

  (4) Storage of lubricating oils;

  (5) Unheated storage of VOC with an initial boiling point of 300°F (149°C) or greater;

  (6) Storage of Numbers 1, 2, 4, 5, and 6 fuel oil and aviation jet engine fuel;

  (7) Storage of motor vehicle gasoline, having an individual tank capacity of 2,000 gallons or less;

  (8) The storage of VOC normally used as solvents, diluents, thinners, inks, colorants, paints, lacquers, enamels, varnishes, liquid resins, or other surface coatings and having a capacity of 2,000 gallons (7.6 cubic meters) or less;

R. Gaseous fuel-fired or electrically heated furnaces for heat-treating glass or metals, the use of which does not involve molten materials;

S. Crucible furnaces, pot furnaces, or induction furnaces, with a capacity of 1,000 pounds (454 kilograms) or less each, in which no sweating or distilling is conducted, or any fluxing conducted, using chloride, fluoride, or ammonium compounds and from which only the following metals are poured or in which only the following metals are held in a molten state:

  (1) Aluminum or any alloy containing over 50 percent aluminum, if no gaseous chloride compounds, chlorine, aluminum chloride, or aluminum fluoride is used;

  (2) Magnesium or any alloy containing over 50 percent magnesium;

  (3) Lead or any alloy containing over 50 percent lead;

  (4) Tin or any alloy containing over 50 percent tin;

  (5) Zinc or any alloy containing over 50 percent zinc;

  (6) Copper; or

  (7) Precious metals;

T. Vacuum cleaning systems used exclusively for industrial, commercial, or residential house-keeping purposes;

U. Charbroilers and pit barbecues as defined in COMAR 26.11.18.01 with a total cooking area of 5 square feet (0.46 square meter) or less;

V. Hazardous waste incinerators, as defined in COMAR 26.13.01.03B(33), and for which a hazardous waste facility permit has been applied or issued by the Department under COMAR 26.13.07;

W. Sheet-fed letter or lithographic printing presses with a cylinder width of less than 18 inches; and

X. Other installations if:

  (1) The proposed installation is not subject to any source-specific State or federal limitation or emissions standard, including any mass emissions rate limitation, pollutant concentration limitation, material formulation standard, equipment performance standard, or work practice standard;

  (2) The emissions contain not more than 1 pound per day of a Class I toxic air pollutant, as defined in COMAR 26.11.15.01B(4); and

  (3) The pre-control potential-to-emit from the proposed installation, combined with any potential increase in emissions from other installations that could be caused by the proposed installation, is less than 1 ton per calendar year for:

    (a) Volatile organic compounds;

    (b) Each pollutant for which there is a federal ambient air quality standard; and

    (c) Each Class II toxic air pollutant, as defined in COMAR 26.11.15.01B(5).

#### Regulation .11 Procedures for Obtaining Permits to Construct Certain Significant Sources.

*COMAR 26.11.02.11*

A. Applicability.

  (1) The owner or operator of a source shall comply with the procedures in this regulation when applying for a permit to construct for any of the activities listed in §A(2) of this regulation at any source:

    (a) For which a State permit to operate is required, as provided in Regulation .13 of this chapter;

    (b) Subject to federal new source performance standards at 40 CFR 60, national emission standards for hazardous air pollutants at 40 CFR 61, or prevention of significant deterioration requirements at 40 CFR §52.21;

    (c) That, after control, will discharge 25 tons per year or more of a pollutant regulated under Environment Article, Title 2, Annotated Code of Maryland, in the areas of Baltimore City designated by the United States Post Office as zip code numbers 21225, 21226, and 21230; or

    (d) Of lead that will discharge 5 tons per year or more of lead or lead compounds measured as elemental lead.

  (2) This regulation applies to applications for permits to construct for the following activities at the sources listed in §A(1) of this regulation:

    (a) Construction of a new source;

    (b) Replacement of components of an existing permitted source, if the fixed capital cost of the replacement components exceeds 1/2 of the fixed capital cost that would be required to construct a new source comparable in process to the existing source; and

    (c) Modification of an existing permitted source by making a physical or operational change to the source that will result in a significant net increase in emissions of any pollutant from that source.

  (3) Before issuing a permit to construct for any of the activities listed in §A(2) of this regulation, at a source that is subject to federal new source performance standards under 40 CFR 60, the Department shall either comply with the provisions of §§E—N of this regulation, or with the following procedures:

    (a) Electronically post a notice of an application for the permit on the Department’s website in accordance with Environment Article, §1-602(B)(2), Annotated Code of Maryland;

    (b) Give notice to the chief executive of any county or municipal corporation in which any portion of the source is located or is proposed to be located; and

    (c) Receive comments from the public on the permit application.

B. Exception for an Approval and for Certain Control Equipment. Notwithstanding the requirements of §A, this regulation does not apply to:

  (1) The approval phase of a source for which an approval is required; and

  (2) The construction or installation of air pollution control equipment for which a permit to construct is required, as provided in Regulation .09 of this chapter, and that will control an existing source.

C. Consolidated Procedures. For a source that is subject to this regulation and is also a Part 70 source, the Department may authorize special procedures, at the applicant's request, for the applicant to apply simultaneously, to the extent possible, for a permit to construct and a Part 70 permit, or a revision to a Part 70 permit. These procedures may provide for combined public notices, informational meetings, and public hearings for both permits but may not adversely affect the rights of a person, including the EPA and affected states, to obtain information about the application for a permit, to comment on an application, or to challenge a permit that is issued. In addition, these procedures may not alter any existing Part 70 permit procedures or time frames.

D. Application. The owner or operator of a source subject to this regulation shall submit a complete application on forms provided by the Department. The information that the Department requires may vary depending on the type of source. The applicant shall provide information sufficient to enable the Department to determine whether the source can be constructed so that it can comply with all applicable requirements of the Clean Air Act and State air pollution control law. An application shall include evidence of compliance with State Workers' Compensation laws as required by Environment Article, §1-202, Annotated Code of Maryland. Unless otherwise required by the Department, the application forms shall be complete and include the following information:

  (1) For process or manufacturing equipment or operations:

    (a) Drawings that depict the layout of the equipment or operations;

    (b) Flow sheets that depict how the equipment or operations relate to each other;

    (c) Material balance sheets;

    (d) Equipment drawings and literature; and

    (e) Purchase specifications;

  (2) For air pollution control equipment:

    (a) Vendor proposals or quotations;

    (b) Vendor guarantees;

    (c) Equipment drawings and literature; and

    (d) Purchase specifications;

  (3) For a source that will be located at a new facility:

    (a) An area map; and

    (b) If requested, additional information regarding the nature of the area, including distances to residences and other buildings.

E. Notice of Application; Informational Meeting.

  (1) The Department shall require the applicant to send to a newspaper for publication a notice regarding the application that satisfies the requirements of Environment Article, §1-602(a), Annotated Code of Maryland. As determined by the Department, the notice shall provide for an informational meeting or an opportunity for the public to request an informational meeting within 10 days of publication of the notice. If the Department decides to hold an informational meeting because of requests for a meeting, the Department shall publish or require the applicant to publish a notice regarding the informational meeting that satisfies the requirements of Environment Article, §1-602(a), Annotated Code of Maryland. Unless the Department determines otherwise, notice of an informational meeting shall be published not later than 10 days before the meeting is held.

  (2) In addition to the requirements under §E(1) of this regulation, on receipt of an application for a permit to construct subject to this regulation, the Department shall give notice immediately or require the applicant to give notice immediately of the application, by certified mail, to:

    (a) The governing body of each county or municipal corporation in which any portion of the source is located or is proposed to be located;

    (b) The governing body of each county or municipal corporation within 1 mile of the property line of the source or the proposed location of the source;

    (c) Each member of the General Assembly representing any part of a county in which any portion of the source is located or proposed to be located; and

    (d) Each member of the General Assembly representing any part of each county within 1 mile of the property line of the source or the proposed location of the source.

F. The Department shall ensure that the application is available to the public for inspection and copying.

G. If an informational meeting is held regarding the application, the applicant shall attend the meeting and present information concerning the application.

H. Tentative Determination.

  (1) The Department shall prepare a tentative determination regarding the application. The content of the tentative determination shall include:

    (a) A proposal to issue or deny the permit;

    (b) Any proposed permit terms and conditions;

    (c) A brief explanation of the Department's tentative determination;

    (d) Any proposed schedule of compliance;

    (e) If the tentative determination is to issue the permit, a draft permit, which shall be available to the public for inspection and copying.

  (2) In addition to the content of the tentative determination, the following documents shall be made available to the public for inspection and copying no later than the date of issuance of the tentative determination:

    (a) The permit application and all supporting documents submitted with the application;

    (b) All nonprivileged documents the Department relied upon in making the tentative determination; and

    (c) A privilege log that identifies all withheld documents and states the reasons for withholding each document.

I. Notice of Tentative Determination; Public Comment; Public Hearing. The Department shall publish or require the applicant to publish a notice regarding the tentative determination that satisfies the requirements of Environment Article, §1-602, Annotated Code of Maryland. The notice shall provide the opportunity for written public comment for a period of 30 days, which may be extended no more than once by an additional 60 days, upon written request received by the Department within the original comment period. As determined by the Department, the notice shall provide either that a public, nonadjudicatory hearing will be held regarding the tentative determination or that the public may request in writing within 20 days that a public hearing be held. If the Department decides to hold a public hearing because of requests for a hearing from the general public filed in writing within the 20-day request period, or from the applicant, the Department shall publish or require the applicant to publish a notice regarding the hearing that satisfies the requirements of Environment Article, §1-602(a), Annotated Code of Maryland.

J. Public Comments. If a public hearing is held regarding the tentative determination, the applicant shall attend the hearing and present information concerning the application. Written public comments will be accepted if they are received by the Department at the public hearing or within 5 days after the public hearing or before the close of the public comment period. Oral public comments may be made at the public hearing. The Department shall consider all public comments that raise issues of law or material fact regarding an application for a permit or a tentative determination, but only if the issues are pertinent to requirements of the Clean Air Act or State air pollution control law applicable to the proposed permit to construct. Comments raising issues that relate to the location or nature of a proposed source may be considered only if the commenter first demonstrates to the satisfaction of the Department that the Department is required by law to consider the issues.

K. Final Determination.

  (1) The Department shall prepare a final determination if:

    (a) Timely and pertinent written comments are received during the public comment period, or not later than 5 days after the public hearing, that are adverse to the tentative determination;

    (b) Oral comments are received at the public hearing that are adverse to the tentative determination and the Department prepared a transcript of those comments; or

    (c) The final determination is substantively different from the tentative determination.

  (2) The final determination shall constitute the Department’s final decision.

L. Notice of Final Determination.

  (1) If the Department is required to prepare a final determination, as provided in §K of this regulation:

    (a) Subject to the requirements of §L(1)(b)(i)—(iii) of this regulation, the Department shall publish or require the applicant to publish a Notice of Final Determination that satisfies the requirements of Environment Article, §1-602(a), Annotated Code of Maryland; and

    (b) If the final determination differs substantively from the tentative determination, then prior to publishing a Notice of Final Determination pursuant to §L(1)(a) of this regulation the Department may:

      (i) Publish a Notice of Intent to Issue a Final Determination that includes a proposed final determination, and provides the opportunity for written public comment for a period of 30 days on the portion of the proposed final determination that differs substantively from the tentative determination;

      (ii) Consider all public comments submitted on the portion of the proposed final determination that differs substantively from the tentative determination, subject to the criteria set forth in COMAR 26.11.02.11J; and

      (iii) Prepare written responses to public comments submitted on the proposed final determination.

  (2) If the Department is not required to prepare a final determination under §K of this regulation, the Department shall issue or deny the permit and the tentative determination becomes the final determination and shall constitute the Department’s final decision.

  (3) The Department shall electronically post notice that the tentative determination has become the final determination on the Department’s website.

M. Judicial Review.

  (1) In accordance with Environment Article, §1-601(c), Annotated Code of Maryland, a final determination by the Department to issue or deny a permit to construct subject to Environment Article, §2-404, Annotated Code of Maryland, shall be subject to judicial review at the request of any person who:

    (a) Meets the threshold standing requirements under federal law; and

    (b) Is the applicant or participated in a public participation process through the submission of written or oral comments, unless an opportunity for public participation was not provided.

  (2) Judicial review shall be on the administrative record before the Department and limited to objections raised during the public comment period, unless the petitioner demonstrates that:

    (a) The objections were not reasonably ascertainable during the comment period; or

    (b) Ground for objections arose after the comment period.

  (3) Unless otherwise required by statute, a petition for judicial review shall be filed with the circuit court for the county where the application for the permit states that the proposed activity will occur.

  (4) A person submitting a petition for judicial review shall file the petition within 30 days after publication of a Notice of Final Determination.

  (5) Except as expressly provided in Environment Article, §1-605(d), Annotated Code of Maryland, a party to the judicial review action may not challenge a facility’s compliance with zoning and land use requirements.

  (6) Judicial review under this regulation shall be limited to a record compiled by the Department consisting of:

    (a) Any permit application and any data submitted to the Department in support of the application;

    (b) Any draft permit issued by the Department;

    (c) Any notice of intent from the Department to deny the application or to terminate the permit;

    (d) A statement or fact sheet explaining the basis for the determination by the Department;

    (e) All documents referenced in the statement or fact sheet explaining the basis for the determination by the Department;

    (f) All documents, except documents for which disclosure is precluded by law or that are subject to privilege, contained in the supporting file for any draft permit;

    (g) All comments submitted to the Department during the public comment period, including comments made on the draft application;

    (h) Any tape or transcript of any public hearings held on the application; and

    (i) Any response to any comments submitted to the Department.

N. For the purposes of this regulation, a notice that satisfies the requirements of Environment Article, §1-602(a), Annotated Code of Maryland, is a notice that is published at least once a week for 2 consecutive weeks in a daily newspaper of general circulation in the geographic area in which the source is, or will be, located. The Department may also require the applicant to mail notice to any other person who has requested the notice, or to the person's authorized representative, and may require the applicant to post the notice in the vicinity of the proposed source or at public facilities in the geographic area of the proposed source. The applicant shall bear all costs related to providing the notice.

#### Regulation .12 Procedures for Obtaining Approvals of PSD Sources and NSR Sources, Certain Permits to Construct, and Case-by-Case MACT Determinations in Accordance with 40 CFR Part 63, Subpart B.

*COMAR 26.11.02.12*

A. Applicability. The owner or operator of a source shall comply with the procedures in this regulation when applying for the following:

  (1) Approval for a source that is a Prevention of Significant Deterioration (PSD) source or a New Source Review (NSR) source;

  (2) Unless it is subject to Regulation .11 of this chapter:

    (a) A permit to construct a source that, after the source is in compliance with all other applicable requirements of the State air pollution control law, has the potential to discharge to the atmosphere 100 tons per year (91,000 kilograms) or more of any pollutant except for greenhouse gases;

    (b) A permit to construct a source that, after the source is in compliance with all other applicable requirements of the State air pollution control law, is a GHG source to which 40 CFR 52.21(b)(49)(iv) or (v) applies;

  (3) A permit to construct a lead source that will discharge 5 tons per year or more of lead or lead compounds measured as elemental lead; or

  (4) A case-by-case MACT determination for a source, in accordance with 40 CFR Part 63, Subpart B.

B. Procedures. The owner or operator of a source subject to this regulation shall comply with the procedures in §§C—L of this regulation.

C. Application. The owner or operator of a source subject to this regulation shall submit a complete application on forms provided by the Department. The information that the Department requires may vary depending on the type of the source and whether PSD or NSR approval or a permit to construct is sought. The applicant shall provide sufficient information to enable the Department to determine whether the source can comply with the requirements of COMAR 26.11.06.14 for a PSD source, or COMAR 26.11.17 for an NSR source.

D. Within 10 working days, the Department shall acknowledge receipt of an application for an approval or permit to construct.

E. After receipt of a complete application, the Department shall:

  (1) Make a determination to proceed with the application or deny the approval or permit to construct;

  (2) Upon a determination to proceed with the application, make available for public inspection in at least one location in the region in which the proposed source is to be constructed, a copy of the information submitted by the applicant and a copy or summary of other information considered by the Department.

F. Notice of Opportunity to Submit Written Comments and to Request a Public Hearing. The applicant shall publish a notice in at least one newspaper of general circulation in the area concerned. The applicant shall file a copy of the public notice and a certification of publication with the Department. The notice shall be made at the applicant's expense, in a format approved by the Department, and include:

  (1) A summary of the nature and location of the proposed source;

  (2) The place where the information required by §E(2) of this regulation is available for public inspection;

  (3) A statement that a person has 10 days after the publication date of the notice to submit a written request for a public, nonadjudicatory hearing on the application;

  (4) A statement that a person has 30 days after the publication date of the notice to submit written comments on the application; and

  (5) The address to which the request for a public hearing and written comments shall be sent.

G. Notice of Public Hearing. If the Department schedules a public hearing on an application, the applicant shall publish a notice in at least one newspaper of general circulation in the area concerned. The applicant shall file a copy of the public notice and a certification of publication with the Department. The notice shall:

  (1) Be made at the applicant's expense in a format approved by the Department;

  (2) Include the date, time, location, and subject of the hearing; and

  (3) Be published at least 30 days before the scheduled hearing.

H. The Department may decide to proceed directly to a public hearing, in which event the requirements of §§F and G of this regulation will be combined as appropriate to ensure that the public has 30 days notice of the public hearing and 30 days opportunity to provide written comments.

I. The Department shall consider all public comments that raise issues of law or material fact regarding an application for an approval or permit to construct, but only if the issues are pertinent to requirements applicable to PSD and NSR approvals or permits to construct. Comments raising issues that relate to the location or nature of a proposed source for which approval or permit to construct is sought may not be considered unless the commenter first demonstrates to the satisfaction of the Department that the Department is required by law to consider the comments.

J. Not later than 60 days after the conclusion of a public comment period or the public hearing, whichever is later, the Department shall issue or deny the approval or permit to construct.

K. A source for which an approval is obtained under this regulation may not be constructed until a permit to construct is obtained for the source.

L. In place of all or any portion of the procedures set forth in this regulation, the Department may use all or any portion of the procedures set forth in 40 CFR §52.21 to process an application for approval of a PSD source.

#### Regulation .13 Sources Subject to State Permits to Operate.

*COMAR 26.11.02.13*

A. Except for a source that is covered by a Part 70 permit, a person may not operate or cause to be operated any of the following sources without first obtaining, and having in current effect, a State permit to operate as required by this regulation:

  (1) General and by-product waste incinerators of 2,000 pounds (907 kilograms) or more per hour rated capacity, crematoriums, pathological incinerators, incinerators burning special medical waste as defined in COMAR 26.13.11.02B, and sewage sludge incinerators;

  (2) Fuel-burning equipment, hot oil heaters, and stationary combustion turbines with a maximum rated heat input capacity of 50 million Btu (52.8 gigajoules) or more per hour;

  (3) Glass melting furnaces of 1 ton (907 kilograms) or more per hour throughput, or 1 ton (907 kilograms) or more capacity;

  (4) Metallurgical furnaces involving molten metal holding 1 ton (907 kilograms) or more of metal or having a throughput greater than 500 pounds (227 kilograms) per hour;

  (5) Metal reclamation furnaces;

  (6) By-product recovery furnaces of 1 ton (907 kilograms) or more capacity or 1 ton (907 kilograms) or more per hour throughput;

  (7) Lime kilns;

  (8) Cement kilns;

  (9) Other kilns of 1 ton (907 kilograms) or more per hour throughput;

  (10) Rendering cookers and offal dryers;

  (11) Wood digesters;

  (12) Sulfuric acid plants;

  (13) Installations associated with chemical production facilities, including reactors, distillation columns, evaporators, and strippers, that have:

    (a) A pre-control potential-to-emit for VOC of 20 pounds or more per day; and

    (b) Are located at a premises that has a total pre-control potential-to-emit for VOC of 100 pounds or more per day from all chemical production processes subject to COMAR 26.11.19.30;

  (14) Mineral products or metallic ore through-circulation dryers of 5 tons (4540 kilograms) or more per hour throughput or 5 tons (4540 kilograms) or more capacity;

  (15) Spray dryers of 1 ton (907 kilograms) or more capacity or 1 ton (907 kilograms) or more per hour dry product throughput;

  (16) Crushers, hammermills, shredders, grinders, classifying screens of 5 tons (4540 kilograms) or more per hour throughput;

  (17) Dry type ball and roller mills of 2 tons (1810 kilograms) or more per hour throughput;

  (18) VOC storage tanks required by State or federal regulations to have VOC recovery or control devices, except gasoline storage tanks at gasoline dispensing facilities not located at a bulk gasoline plant or a bulk gasoline terminal, as those terms are defined by COMAR 26.11.13.01B;

  (19) Motor vehicle fuel storage tanks, except for diesel fuel, with a capacity of 40,000 gallons (151 cubic meters) or more;

  (20) Gasoline tank truck loading racks outloading 20,000 gallons (75.7 cubic meters) or more per day;

  (21) VOC recovery installations, including distillation units and condensers, used to recover VOC for reuse in processes at a premises that has a total pre-control potential-to-emit for VOC of 100 pounds or more per day from all VOC recovery installations;

  (22) Inorganic chemical or pigment production installations of 1 ton (907 kilograms) or more per hour rated product throughput;

  (23) Coating, decorating, and impregnating lines with integral drying ovens at which solvent-based materials are applied by automatic equipment to surfaces at a premises that has a total pre-control potential-to-emit for VOC emissions of 100 or more pounds per day from all coating, decorating, and impregnating lines;

  (24) “Web printing” press lines with integral drying ovens as defined in COMAR 26.11.19.01B;

  (25) Grain elevators and terminals of 10,000 bushels or more per hour grain leg capacity;

  (26) Frit smelters;

  (27) Portland cement clinker coolers;

  (28) Benzene storage tanks of 500 gallons (1.9 cubic meters) or more capacity;

  (29) Benzene truck loading racks;

  (30) Galvanizing operations using fluxes and pre-fluxes;

  (31) Coal tar or petroleum pitch impregnating operations;

  (32) Gypsum calcining kettles;

  (33) Pulverized material separators with 1 ton (907 kilograms) or more per hour capacity;

  (34) Honeycomb core manufacturing installations;

  (35) Yeast production installations;

  (36) Plastic credit card manufacturing installations;

  (37) Magnetic tape manufacturing installations;

  (38) Coal or ore export loading or unloading installations;

  (39) Petroleum-contaminated soil treatment installations;

  (40) Stainless steel manufacturing installations including electric arc furnaces, argon-oxygen decarbonization vessels, re-heat furnaces, pickling lines, or slab and billet grinding;

  (41) Catalyst manufacturing installations including reactors, calciners, dryers, crushers, or classifying systems;

  (42) Primary aluminum production installations including potlines, anode bake ovens, reverbatory furnaces, or alumina handling systems;

  (43) Installations associated with titanium dioxide production facilities, including chlorination reactors, oxidation reactors, and spray driers, of 1 ton (907 kilograms) or more per hour physical capacity or 1 ton (907 kilograms) or more per hour throughput capacity;

  (44) Automobile or truck production and assembly premises;

  (45) Stationary internal combustion engines located at natural gas pumping stations or electric generating stations;

  (46) Waste oil disposal, treatment, or recovery installations located at commercial premises that collect or consolidate materials containing waste oil from more than one premises unless:

    (a) The total pre-control potential-to-emit for VOC from all such installations is less than 20 pounds per day;

    (b) The total pre-control potential-to-emit for Class I toxic air pollutants from all such installations is 1 pound or less per day, and for Class II toxic air pollutants is less than 1 ton per year;

    (c) Incoming waste materials, and any recovered oils, are not heated to a temperature greater than 212°F during any phase of transfer, processing or storage; and

    (d) Such installations do not require control equipment to comply with any Maryland air pollution control regulation, including regulations that prohibit odor and nuisance beyond facility boundaries;

  (47) Synthetic fuel, rocket fuel, or explosives production premises of 500 pounds (227 kilograms) or more per hour product throughput;

  (48) Synthesized pharmaceutical manufacturing installations that:

    (a) Have a pre-control potential-to-emit for VOC of 15 or more pounds per day; or

    (b) Are located at a premises that has a total pre-control potential-to-emit for VOC of 33 pounds or more per day from all synthesized pharmaceutical manufacturing processes;

  (49) Specialty footwear manufacturing installations;

  (50) Asphalt blowing and asphalt building products saturation or roll coating installations;

  (51) Slab, billet, or ingot re-heat furnaces with a maximum rated heat input capacity of 50 million Btu (52.8 gigajoules) or more per hour;

  (52) Polyester resin products manufacturing installations, including installations manufacturing reinforced plastic products such as fiberglass, at a premises with a total polyester resin consumption of more than 50 tons per year;

  (53) All alkyd resin reactors and alkyd resin thin-down tanks;

  (54) Solvent-based paint manufacturing installations with a potential product throughput of 250 or more gallons per hour;

  (55) Fluoropolymer material (FPM) process installations that treat FPM so that its shape or form is permanently changed, and have total actual uncontrolled VOC emissions of 20 pounds or more on any operating day;

  (56) Hot-mix asphalt concrete production installations;

  (57) Installations used to treat wood with creosote or chrome copper arsenate (CCA) by impregnation in a pressurized vessel;

  (58) Iron and steel production installations as defined in COMAR 26.11.10.01B;

  (59) Solvent-based adhesive manufacturing installations located at a premises with a total pre-control potential-to-emit for VOC of 50 pounds or more per day from all such installations;

  (60) A source for which the owner or operator requests a State permit to operate in order to make the permit federally enforceable under Regulation .03 of this chapter; or

  (61) Any other source that the Department determines has the potential to have a significant impact on air quality.

B. In determining whether a source has the potential to have a significant impact on air quality, for purposes of §A(61) of this regulation, the Department shall consider the following:

  (1) The quality, quantity, or characteristics of the pollutants discharged, including their toxicity;

  (2) The location of the source, including its affects on an area that has not met ambient air quality standards; and

  (3) Whether permit conditions are necessary to ensure that the source complies continuously with the requirements of the State air pollution control law.

C. Section A of this regulation requires a State permit to operate for each emissions unit at a source covered by a Part 70 permit if the emissions unit is not provided for in the Part 70 permit and is a source listed in §A of this regulation. When the Part 70 permit is revised to include the emissions unit, the Part 70 permit constitutes the State permit to operate for that emissions unit.

D. The Department, on a case-by-case basis, may exempt a source from the requirement for a State permit to operate on the basis of capacity, nature of equipment or materials, amount of emissions, or other evidence that the source has a limited potential to cause air pollution.

E. The Department may issue a single State permit to operate for two or more sources located at a single facility or the Department may issue two or more State permits to operate for emission units within a source.

F. A State permit to operate issued by the Department under §A(60) of this regulation is not a required permit to operate under Environment Article, §2-404(a)(1), Annotated Code of Maryland.

G. Unless it is not practical to do so, a permittee shall maintain all permits in the vicinity of the source for which the permit was issued and make the permit immediately available to officials of the Department upon request.

H. The Department may issue a general State permit to operate covering similar sources.

#### Regulation .14 Procedures for Obtaining State Permits to Operate and Permits to Construct Certain Sources and Permits to Construct Control Equipment on Existing Sources.

*COMAR 26.11.02.14*

A. Applicability. The owner or operator of a source shall comply with the procedures in this regulation for any source or activity:

  (1) That is not listed in Regulation .11A or .12 of this chapter;

  (2) That constitutes air pollution control equipment for which a permit to construct is required, as provided in Regulations .09 and .10 of this chapter, and that will control an existing source.

B. Notwithstanding the requirements of §A of this regulation, the procedures of this regulation do not apply to a source for which a general permit to construct is required, as provided in Regulation .09D of this chapter.

C. The owner or operator of a source subject to this regulation shall submit a complete application on forms provided by the Department. The information that the Department requires may vary depending on the type of source and whether the application is for a permit to construct or State permit to operate. The applicant shall provide information sufficient to enable the Department to begin to determine whether the source can be operated in continuous compliance with all applicable requirements of the Clean Air Act and State air pollution control law. Each application shall include evidence of compliance with the State Workers' Compensation law as required by Environment Article, §1-202, Annotated Code of Maryland. Unless otherwise required by the Department, the application forms for a permit to construct shall be complete and include the following information:

  (1) For process or manufacturing equipment or operations:

    (a) Drawings that depict the layout of the equipment or operations;

    (b) Flow sheets that depict how the equipment or operations relate to each other;

    (c) Material balance sheets;

    (d) Equipment drawings and literature; and

    (e) Purchase specifications;

  (2) For air pollution control equipment:

    (a) Vendor proposals or quotations;

    (b) Vendor guarantees;

    (c) Equipment drawings and literature; and

    (d) Purchase specifications;

  (3) For a source that will be located at a new facility:

    (a) An area map; and

    (b) If requested, additional information regarding the nature of the area, including distances to residences and other buildings.

D. An application for a permit to construct may be submitted at any time. A complete application for an initial State permit to operate shall be submitted not later than 60 days before the source is to commence operating. A complete application for the renewal of a State permit to operate shall be submitted not later than 60 days before the expiration date in a State permit to operate. If a timely application for a renewal has been submitted, the current State permit to operate remains in effect until the Department makes a final decision to issue or deny the permit.

E. Permits subject to this regulation are not subject to public notice, informational meetings, public hearings, or other public participation procedures which pertain to permits to construct and approvals subject to Regulations .11 and .12 of this chapter and to Part 70 permits.

F. Not later than 15 days after a permit is denied or a permit is issued with terms or conditions unacceptable to the applicant, the applicant may appeal the denial or the unacceptable terms and conditions. The Department shall refer the appeal to the Office of Administrative Hearings to conduct a contested case hearing. As provided in Environment Article, §1-601(b), Annotated Code of Maryland, only the permit applicant is entitled to a contested case hearing on a permit subject to this regulation. A permit to construct that is appealed is not in effect until the Department makes a final decision following the contested case hearing. Notwithstanding any other provision of this chapter, the procedures of this section also apply to the State-only enforceable conditions of a Part 70 permit.

#### Regulation .15 Part 70 Permits.

*COMAR 26.11.02.15*

Additional provisions for Part 70 permits appear in COMAR 26.11.03.

#### Regulation .16 Permit Fees.

*COMAR 26.11.02.16*

A. General Requirements for Sources Requiring a Permit to Construct or Permit to Operate.

  (1) Fees for Permit to Construct. Upon receiving an application for a permit to construct, the Department shall determine the appropriate permit fee and bill the applicant. The fee shall be as prescribed in Regulation .17 or .18 of this chapter.

  (2) Fees for Permits to Operate.

    (a) The fees for State permits to operate and permits issued pursuant to Title V of the federal Clean Air Act Amendments of 1990, 42 U.S.C. §§7661—7661f, including Part 70 permits, are as prescribed in Regulation .19 of this chapter.

    (b) Initial Permits. Upon receiving an application for an initial permit to operate, the Department shall determine the appropriate permit fee covering the first and second 12-month periods of the permit and bill the applicant. For subsequent years, the Department shall determine the appropriate annual permit fee in accordance with Regulation .19 of this chapter.

    (c) Subsequent Periods. For permits to operate that expire more than 12 months after issuance by the Department, the Department shall determine the appropriate permit fee covering each successive 12-month or shorter period of the permit, after the first 12-month period, and bill the applicant or person having the permit in current effect 60 days before the date that the permit fee is due. The permit fee is due on and shall be paid on or before each 12-month anniversary of the date of the permit issuance by the Department.

  (3) Time Period Covered by Fees. Except as provided by Regulation .04 of this chapter or if the Department prescribes a shorter period of time, a fee prescribed in Regulation .19 of this chapter covers a period of 12 months from the date the permit is issued or from a subsequent anniversary of the date.

  (4) Temporary or Start-Up Permits for New or Modified Sources.

    (a) The Department may issue a temporary or start-up permit to operate in accordance with Regulation .04D of this chapter. There is no fee for the issuance of a temporary or start-up permit to operate.

    (b) When a temporary or start-up permit expires, the Department may amend an existing permit to operate to include the new or modified sources covered by the temporary or start-up permit or may require the owner or operator to apply for a new permit to operate.

  (5) Failure to Pay Fees.

    (a) The Department may not issue a permit to construct, an initial permit to operate, or a renewal of a permit to operate until all appropriate fees are paid in full.

    (b) Failure to pay the annual permit to operate fee constitutes cause for revocation of the permit by the Department.

  (6) Permit fees are not refundable.

  (7) When assessing the permit fees under this chapter, the Department shall ensure that the fee for a source does not exceed the maximum fees authorized by Environment Article, §2-403, Annotated Code of Maryland.

B. New or Modified Electric Generating Stations Constructed by Electric Companies. An electric company applying for a Certificate of Public Convenience and Necessity for a new or modified electric generating station under Article 78, §54A or 54B, Annotated Code of Maryland, or for a modification to an electric generating station under Article 78, §54I, Annotated Code of Maryland, shall pay a fee to the Department when it submits the application to the Public Service Commission. The fee shall be as prescribed in Regulation .18 of this chapter.

C. Permits and Fees for Portable Equipment.

  (1) A person who owns or operates portable equipment shall obtain a permit to construct and pay a fee for each location at which the portable equipment is to be constructed and operated.

  (2) The permit to construct fee for portable equipment for any other location is 50 percent of the fee prescribed in Regulation .17 of this chapter.

D. Permit fees shall be paid by check made payable to the Department of the Environment Clean Air Fund.

#### Regulation .17 Fee Schedule: Permit to Construct.

*COMAR 26.11.02.17*

A. A person who submits an application for a permit to construct shall pay one of the following:

  (1) A fee of $100 for charbroilers and pit barbecues;

  (2) A fee of $200 for tank farms at motor vehicle or off-road vehicle refueling facilities;

  (3) A fee of $400 for fuel-burning equipment with a rated heat input capacity of less than 10 million Btu per hour; or

  (4) A base fee of $500 for all other sources, plus any applicable additional fees listed in §B of this regulation.

B. Additional Fees.

  (1) Fuel-burning equipment burning gas with a rated heat input capacity of at least 30 million Btu per hour but less than 50 million Btu per hour or fuel-burning equipment burning No. 2 fuel  oil with a rated heat input capacity of at least 10 million Btu per hour but less than 50 million Btu per hour — $300 each;

  (2) A source that:

    (a) Does not discharge a Class I TAP;

    (b) Has emissions of less than 25 pounds per day; and

    (c) Is not constructed at an existing premises that has total emissions of greater than 35 pounds per day — $300;

  (3) A source subject to T-BACT but not required to obtain a State permit to operate — $800;

  (4) A source required to obtain a State permit to operate but not covered by §B(5), (6), (7) or (8)  of this regulation — $1,000;

  (5) A NESHAP or NSPS source, except fuel-burning equipment with a rated heat input capacity of less than 50 million Btu per hour burning either gas or No. 2 fuel oil, but not covered by §B(6), (7), or (8) of this regulation — $1,500;

  (6) A source that requests a limitation on emissions to preclude applicability of major source regulations, and is not covered by §B(7) or (8) of this regulation — $1,500;

  (7) A source that demonstrates compliance with COMAR 26.11.15 using a dispersion model other than a screening model, and is not covered by §B(8) of this regulation — $5,000; or

  (8) A source applying for a PSD approval, an NSR approval (including a Plantwide Applicability Limit (PAL) permit), or a special permit under COMAR 26.11.15 — $20,000 each.

#### Regulation .18 Fee Schedule for New or Modified Electric Generating Stations.

*COMAR 26.11.02.18*

New or modified electric generating stations shall pay a fee of $20,000.

#### Regulation .19 Fee Schedule: Title V Permit or a State Permit to Operate.

*COMAR 26.11.02.19*

A. Annual Fees.

  (1) The owner or operator of a source that is required to obtain, and have in current effect, a permit issued under Title V of the federal Clean Air Act Amendments of 1990, 42 U.S.C. §§7661—7661f, including a Part 70 permit, shall pay an annual fee consisting of a base fee of $5,000 plus an emission-based fee for each ton of regulated emissions from all installations at the plant or facility.

  (2) The owner or operator of a Synthetic minor source that is required to obtain, and have in current effect, a State permit to operate, shall pay an annual fee consisting of a base fee of $1,000, plus an emission-based fee for each ton of regulated emissions from all installations at the plant or facility.

  (3) The owner or operator of all other sources required to obtain, and have in current effect, a State permit to operate, shall pay an annual fee consisting of a base fee of $500, plus an emission-based fee for each ton of regulated emissions from all installations at the plant or facility.

B. Method of Calculating Fees.

  (1) The emission-based fee prescribed in §A of this regulation shall be calculated by multiplying the total weight of actual annual emissions in tons of regulated emissions times an amount in dollars per ton as prescribed below:

    (a) From October 1, 2008 through May 31, 2025: $50 per ton as increased pursuant to §B(5) of this regulation;

    (b) From June 1, 2025 through December 31, 2026: $200 per ton; and

    (c) Beginning January 1, 2027: $200 per ton as increased pursuant to §B(5) of this regulation.

  (2) For the purposes of this regulation, “regulated emissions” means the actual rate of emissions, in tons per year, of a regulated air pollutant except for carbon monoxide and carbon dioxide emitted by a source, to be calculated using criteria consistent with 40 CFR 70 (operating permit program).

  (3) Except as provided in §B(4) of this regulation, the total weight of annual emissions used to calculate the annual permit fee is based on the total actual emission tonnages as certified by the source and verified by the Department. Annual emissions shall be rounded off to the nearest ton.

  (4) Basis for Annual Emissions. The annual emissions to be used to calculate the fee in §§A and B of this regulation shall be as prescribed below:

    (a) For sources that certify emissions of less than 10,000 tons for calendar year 2008, the annual emissions shall be based on the emissions certification required under §D of this regulation which was submitted the previous calendar year; and

    (b) For sources that certify emissions of 10,000 tons or greater for calendar year 2008, the annual emissions shall be based on the actual emissions of the same calendar year as the annual fee.

  (5) Consumer Price Index.

    (a) The annual dollar per ton amount prescribed in §B(1) of this regulation shall be increased on January 1 of each year by the percentage, if any, by which the Consumer Price Index for the most recent calendar year exceeds the Consumer Price Index of the previous calendar year.

    (b) The Consumer Price Index for any calendar year is the 12-month average of the Consumer Price Index for all urban consumers published by the U.S. Department of Labor, as of the close of the 12-month period ending on August 31 of each calendar year.

C. Information Required to be Maintained by a Source.

  (1) Beginning January 1, 1994, the owner or operator of a source for which a permit to operate is required shall maintain records necessary to support the emission certification, including the following information:

    (a) The total amount of actual emissions of each regulated pollutant and the total of all regulated pollutants;

    (b) An explanation of the methods used to quantify the emissions and the operating schedules and production data that were used to determine emissions, including significant assumptions made;

    (c) Amounts, types, and analyses of all fuels used;

    (d) Emission data from continuous emission monitors that are required by this subtitle or EPA regulations, including monitor calibration and malfunction information;

    (e) Identification, description, and use records of all air pollution control equipment and compliance monitoring equipment, including significant maintenance performed, malfunctions and downtime, and episodes of reduced efficiency of this equipment;

    (f) Limitations on source operation or any work practice standards that significantly affect emissions; and

    (g) Other relevant information as required by the Department.

  (2) The logs and other records of information required by §C(1) of this regulation shall be retained for a period of 5 years and made available to the Department upon request.

  (3) If the owner or operator of a source for which a permit to operate is required fails to maintain or provide the data required by this section, which the Department requests in order to verify the emissions during the previous calendar year, the annual emission-based fee for that source shall be based on the estimated allowable emissions, as defined in COMAR 26.11.01.01B(4), of that source, as determined by the Department.

D. Emission Certification.

  (1) Beginning January 1, 1994, the responsible official designated by the owner or operator of a source for which a permit to operate is required shall certify, as provided at Regulation .02F of this chapter, the actual emissions of regulated air pollutants from all installations at the plant or facility.

  (2) Certification shall be on a form obtained from the Department and shall be submitted to the Department not later than April 1 of the year following the year for which certification is required.

  (3) An emission certification submitted pursuant to this section and which contains all information required by COMAR 26.11.01.05-1, for NOx and VOC, satisfies the requirements of COMAR 26.11.01.05-1.

E. The owner or operator of a source for which a permit to operate is required is responsible for the timely and complete payment of all permit fees required by this chapter.

### Chapter 03 — Permits, Approvals, and Registration — Title V Permits

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 2-401, 2-403, and 2-404, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Chapter, State-Adopted National Ambient Air Quality Standards and Guidelines, recodified from COMAR 26.11.03.01—.07 to COMAR 26.11.04.03—.09, effective May 8, 1995 (22:9 Md. R. 648)

**Administrative History:** Editor's note: Regulations .01—.24, Permits, Approvals, and Registration—Part 70 Permits, as well as the Part 70 permit requirements of COMAR 26.11.02 were effective on August 2, 1996, the date the EPA approved Maryland's program (24:5 Md. R. 413).

**Administrative History:** Regulation .01B amended and .01M adopted effective June 16, 1997 (24:12 Md. R. 866)

**Administrative History:** Regulation .01M amended effective October 16, 2000 (27:20 Md. R. 1843)

**Administrative History:** Chapter revised effective July 9, 2001 (28:13 Md. R. 1217)

**Administrative History:** Regulation .01B amended effective December 10, 2001 (28:24 Md.2130)

**Administrative History:** Regulation .01M amended effective January 29, 2007 (34:2 Md. R. 138)

**Administrative History:** Regulation .06C amended effective November 11, 2002 (29:22 Md. R. 1724)

**Administrative History:** Regulation .12D amended effective November 11, 2002 (29:22 Md. R. 1724)

**Administrative History:** Regulation .18A amended effective December 10, 2001 (28:24 Md.2130)

**Administrative History:** Regulation .19D amended effective December 10, 2001 (28:24 Md.2130)

#### Regulation .01 Applicability and General Requirements.

*COMAR 26.11.03.01*

A. The owner or operator of the following sources shall apply for and obtain a Part 70 permit unless exempted under §B of this regulation:

  (1) A major source;

  (2) A source, including an area source, subject to a standard, limitation, or other requirement under §111 of the Clean Air Act;

  (3) A source, including an area source, subject to a standard or other requirement under §112 of the Clean Air Act, except that a source is not required to obtain a Part 70 permit solely because it is subject to regulations or requirements under §112(r) of the Clean Air Act;

  (4) An affected source; and

  (5) A source in a source category designated by the EPA pursuant to 40 CFR §70.3.

B. Exempted Sources. The following sources are exempt from the requirement for a Part 70 permit:

  (1) A source or source category for which a Part 70 permit would be required solely because it is subject to standards of performance for new residential wood heaters under 40 CFR Part 60, Subpart AAA;

  (2) A source or source category for which a Part 70 permit would be required solely because it is subject to 40 CFR Part 61, Subpart M, concerning National Emission Standards for Hazardous Air Pollutants for Asbestos under 40 CFR §61.145; and

  (3) A source listed in §A of this regulation that is not a major source, affected source, or solid waste incineration unit for which a permit is required by §129(e) of the Clean Air Act, until the EPA determines in a final rule that the applicable source is required to obtain a Part 70 permit.

C. Requirement for a Part 70 Permit. Except as provided in §D of this regulation, and Regulations .15, .16, .18, and .19 of this chapter, an owner or operator of a Part 70 source may not operate the source after the time that it is required to submit a timely and complete application unless the source is in compliance with a Part 70 permit issued under this chapter.

D. Application Shield.

  (1) If the owner or operator of a Part 70 source submits a timely and complete application for a permit, including an application for renewal, as provided in Regulations .02 and .03 of this chapter, the failure to obtain a Part 70 permit is not a violation of this chapter and the source may continue to be operated in compliance with a permit issued under this chapter until the Department takes final action. This application shield ends if the applicant fails to submit by the deadline specified in writing by the Department any additional information pertaining to applicable requirements of the Clean Air Act needed to process the application, as provided by Regulation .02C(3) of this chapter.

  (2) Information required under §L of this regulation does not affect the status of the application shield.

E. The owner or operator of a source for which a Part 70 permit is not required under §A of this regulation may elect to apply to the Department for a Part 70 permit.

F. The owner or operator of a source that is not covered by a Part 70 permit shall obtain a State permit to operate from the Department, if this permit is required by COMAR 26.11.02.13.

G. The owner or operator of a source for which a Part 70 permit has been issued by the Department is not required to apply for or obtain a State permit to operate from the Department for those emission units covered by the Part 70 permit.

H. If the owner or operator of a source agrees to a federally enforceable permit to construct, State permit to operate, or other federally enforceable requirement that limits emissions from the source, a Part 70 permit is not required for the source. This may be accomplished, as provided in COMAR 26.11.02.03, by any means acceptable to the EPA.

I. Any other applicable requirement of the Clean Air Act or State air pollution control law may apply to a source for which a Part 70 permit is not required.

J. The Part 70 permit requirements of this chapter and of COMAR 26.11.02 are effective on the date the EPA approves Maryland's Part 70 permit program, including interim or full program approval, to the extent of that approval. The Department will publish notice in the Maryland Register that the EPA has approved the program and the date of approval.

K. Notwithstanding any other provision of this chapter that requires applying for or obtaining a permit to construct at a different time than applying for or obtaining an initial, renewed, or revised Part 70 permit, the owner or operator of a source for which a Part 70 permit is required may elect, with the approval of the Department, to apply for both permits simultaneously. In this event, the Department shall establish procedures to be followed consistent with the requirements of this chapter and COMAR 26.11.02 so that the public, affected states, and EPA are afforded any notice, comment, and participation rights provided by this chapter and COMAR 26.11.02.

L. The owner or operator of a source for which a Part 70 permit is required shall submit additional information based upon applicable requirements of the State air pollution control law in addition to the Part 70 permit application. This information shall be submitted on forms provided by the Department. This requirement is State-only enforceable.

M. Acid Rain Provisions.

  (1) The Department incorporates by reference the provisions of 40 CFR 72, as amended, with the exception that the “permitting authority” means the Department.

  (2) A person who constructs, modifies, or operates, or causes to be constructed, modified, or operated, an acid rain source, as defined in COMAR 26.11.02.01B(1) shall comply with 40 CFR 72, as amended.

N. The owner or operator of a source for which a Part 70 permit is required is subject to the compliance assurance monitoring (CAM) requirements under 40 CFR Part 64 (2000 edition) which is incorporated by reference.

#### Regulation .02 Applications for Part 70 Permits.

*COMAR 26.11.03.02*

A. A person who owns or operates a source for which a Part 70 permit is required by Regulation .01 of this chapter shall submit a timely and complete application for an initial permit or renewal of an existing permit on forms provided by the Department and in accordance with this regulation.

B. Timely Application.

  (1) An application for a Part 70 permit is timely if the application meets the requirements of this section.

  (2) Initial Part 70 Permits.

    (a) For existing sources for which a Part 70 permit is required on the effective date of these regulations, the applicant shall submit a complete permit application to the Department not later than as provided in the following schedule:

      (i) For sources in SIC codes major groups 40 through 89, 4 months after the effective date of the Part 70 permit requirements, unless otherwise approved by the Department;

      (ii) For sources in SIC codes major groups 01 through 17, 8 months after the effective date of the Part 70 permit requirements, unless otherwise approved by the Department;

      (iii) For all remaining sources for which a Part 70 permit is required, 12 months after the effective date of the Part 70 permit requirements.

    (b) If more than one SIC code describes the activities at a source, the SIC code that represents the primary type of activity is controlling.

  (3) Part 70 Permit Renewal.

    (a) Except as provided in §B(3)(b) of this regulation, the permittee shall submit a complete application for renewal of a Part 70 permit to the Department not later than 6 months before the expiration date of the current Part 70 permit.

    (b) The Department may require in a Part 70 permit that a complete application for renewal be submitted earlier than 6 months, but not earlier than 12 months, before the expiration date.

  (4) The owner or operator of a source that becomes subject to the requirement to obtain a Part 70 permit, as provided in Regulation .01 of this chapter, after the effective date of the Part 70 permit program, shall submit a complete application to the Department not later than 12 months after the date that the source commences operations or becomes subject to the requirements for a Part 70 permit, whichever is later. If an existing Part 70 permit prohibits construction or change in operation, the source shall obtain a permit revision before commencing operation.

  (5) For a change to a source that is covered by a Part 70 permit, the permittee shall submit an application for a permit revision, as provided in Regulations .14—.17 of this chapter, unless this chapter allows the change to be made without revising the permit.

  (6) Acid Rain Sources. The owner or operator of a source subject to the requirements for Phase II acid rain permits, under Title IV of the Clean Air Act, shall submit an acid rain permit application to the Department by January 1, 1996 for sulfur dioxide, and by January 1, 1998 for nitrogen oxides.

C. Complete Application.

  (1) An application for a Part 70 permit is complete if the application includes all information required by this regulation and Regulation .03 of this chapter pertaining to applicable requirements of the Clean Air Act, except that applications for revisions to Part 70 permits need only include information that is related to a proposed change at the source covered by the permit. The application shall be sufficient for the Department to begin to evaluate the source for which the permit is sought, including all emissions units within the source, and to determine all applicable requirements of the Clean Air Act.

  (2) Except as otherwise provided in §B(3) of this regulation, an application for a Part 70 permit is considered complete unless the Department determines that the application is not complete within 60 days of its receipt. If the Department determines that the application is not complete, it shall notify the applicant in writing of the basis for this determination.

  (3) If, while reviewing an application that has been determined to be complete, the Department determines that additional information pertaining to applicable requirements of the Clean Air Act is necessary to evaluate or take final action on that application, the Department may request that information in writing and set a reasonable deadline for a response. If the applicant does not respond to a request for additional information within the time period specified by the Department, as provided in Regulation .01D of this chapter, the application shield for the source ends. If the time for submitting a timely application has expired, the Department will not determine that an application is incomplete without providing notice to the applicant and at least 10 days to provide additional information.

D. An applicant for a Part 70 permit who submits information to the Department under a claim of confidentiality shall also submit a copy of the information directly to the EPA.

E. Duty to Supplement or Correct Application.

  (1) An applicant who fails to submit any relevant information or who has submitted incorrect information in a permit application shall, not later than 10 days after becoming aware that this has occurred, submit the additional or corrected information to the Department.

  (2) An applicant for a Part 70 permit shall provide supplemental information to the Department to address any new requirement that is adopted after the application is filed but before the release of a draft permit. This information shall be provided not later than 20 days after a new requirement is adopted.

F. Certification by a Responsible Official. Using the format at COMAR 26.11.02.02F, a responsible official shall certify to the truth, accuracy, and completeness of:

  (1) Each application, report, and compliance certification required by this chapter; or

  (2) A Part 70 permit to be submitted to the Department.

G. The applicant for a Part 70 permit shall submit a list of emissions units and activities located at a source for which the permit is sought that are exempt under Regulation .04 of this chapter because of size, production rate, or emission rate. This list shall be submitted to the Department on a form provided by the Department at the same time that the Part 70 permit application is submitted.

#### Regulation .03 Information Required as Part of Application for a Part 70 Permit.

*COMAR 26.11.03.03*

A. The applicant for a Part 70 permit shall provide all information relating to applicable requirements of the Clean Air Act, including information claimed to be confidential, that is necessary for the Department to decide whether to issue or deny a Part 70 permit. The information shall be submitted on permit application forms provided by the Department.

B. Except as otherwise provided in this chapter, the information shall be full and complete for each emission unit at the Part 70 source and include:

  (1) Information that fully identifies the source, including:

    (a) Company and source name and address,

    (b) All owner and operator names and addresses,

    (c) Plant telephone number and emergency 24-hour telephone number of the facility at which the source is located, and

    (d) Names of all of the facility managers and other contacts;

  (2) A description of the processes and products related to the source, including SIC codes, and any alternate operating scenarios;

  (3) All emissions of pollutants for which the source is major and type and quantity of all emissions of regulated air pollutants, calculated as required by the Department, including:

    (a) Sufficient information to verify which requirements are applicable to each emission unit and to collect any permit fees owed, and

    (b) Fugitive emissions in the same manner as stack and other confined emissions;

  (4) A description and location of all emissions units within the source, including a plot plan of the entire source;

  (5) Emissions rate in tons per year and in such terms as are necessary to establish compliance consistent with the applicable standard reference test method;

  (6) A description of all fuels, including the quantities used of each type of fuel, raw materials, production rates, and operating schedules;

  (7) A description and location of all air pollution control equipment, continuous emission monitoring (CEM) devices, compliance monitoring devices or activities, and all other equipment or devices at the source used to monitor, capture, control, contain, or prevent emissions;

  (8) A description of all maintenance schedules, preventative measures, work practices, and any other actions, that are applicable requirements of the Clean Air Act, taken to assure proper operation and prevent malfunctions of process and control equipment;

  (9) All limitations on source operation affecting emissions and any work practice standards, that are applicable requirements of the Clean Air Act, for all regulated pollutants;

  (10) All other emissions information required to demonstrate compliance with all applicable requirements of the Clean Air Act, including:

    (a) Stack or vent discharge parameters, including stack height, stack diameter, and plume temperature,

    (b) Fugitive emission discharge parameters,

    (c) Flow rates, and

    (d) Building dimensions;

  (11) Calculations on which the information required in §B(1)—(10) of this regulation is based;

  (12) A citation to and description of all applicable requirements of the Clean Air Act;

  (13) A listing for each emissions unit within the source required to be covered by a Part 70 permit, or for which a source is opting to seek coverage under Regulation .01E of this chapter, and of any applicable test methods for determining compliance with each applicable requirement of the Clean Air Act;

  (14) Any other information that may be necessary to implement and enforce any standard or other applicable requirement of the Clean Air Act or to determine the applicability of these requirements;

  (15) An explanation of proposed exemptions from otherwise applicable requirements of the Clean Air Act;

  (16) All information that the Department determines is necessary regarding alternative operating scenarios that the applicant requests to include in the Part 70 permit pursuant to Regulation .06A(9) of this chapter or to define permit terms and conditions implementing the provisions of Regulations .06A(8) and (10), .06B(3), .06F, and .18 of this chapter;

  (17) A compliance plan description and schedule for the Part 70 sources that contain the following:

    (a) A description of the compliance status of the source with respect to all applicable requirements of the Clean Air Act,

    (b) For applicable requirements of the Clean Air Act for which the source will be in compliance when the permit is issued, a statement that the source will continue to comply with these requirements,

    (c) For applicable requirements of the Clean Air Act that will become effective during the permit term, a statement that the source will meet the requirements on the effective dates, unless a more detailed schedule is expressly required by the applicable requirement,

    (d) For applicable requirements of the Clean Air Act for which the source will not be in compliance at the time of permit issuance, a description of how the applicant will achieve compliance with the requirements and a schedule of compliance as described in §C of this regulation,

    (e) A schedule for submission of certified progress reports, at least quarterly, to the Department for sources required to have a schedule of compliance to remedy a violation;

  (18) A certification of compliance with all applicable requirements of the Clean Air Act by a responsible official, as provided in Regulation .02F of this chapter and §114(a)(3) of the Clean Air Act;

  (19) A schedule for submission of compliance certifications during the permit term, to be submitted annually or more frequently if specified by an applicable requirement of the Clean Air Act or a permit condition determined by the Department;

  (20) The applicant's compliance status with any applicable enhanced monitoring and compliance certification requirements of the Clean Air Act;

  (21) The use of nationally standardized forms for acid rain portions of permit applications and compliance plans, as required by 40 CFR Parts 72, 73, 75, and 76 as applicable to 40 CFR Part 70;

  (22) A proposed monitoring, testing, record keeping, and reporting protocol for each emission unit;

  (23) A statement certifying that a risk management plan has or will be submitted, if a plan is required under §112(r) of the Clean Air Act;

  (24) Additional information that the Department determines is required to determine whether a Part 70 permit should provide for emissions trading among the emissions units within a source, as provided in Regulation .06A(8) and (10) of this chapter.

C. Under §B(17)(d) of this regulation, the schedule of compliance shall include a schedule of remedial measures, including an enforceable sequence of actions with milestones, leading to compliance with each applicable requirement for which the source will be in noncompliance at the time of permit issuance. This compliance schedule shall resemble and be at least as stringent as that contained in any judicial consent decree or administrative order to which the source is subject. The schedule of compliance shall be supplemental to, and may not sanction noncompliance with, the applicable requirements on which it is based. The schedule of compliance shall begin at the time that the application is submitted, but the applicant may project the compliance status of the source to the time that the permit should be issued.

D. The compliance plan required by §B(17) of this regulation applies to and shall include the acid rain portion of a compliance plan for an affected source, except as otherwise provided by 40 CFR Parts 72, 73, 75, and 76 as applicable to 40 CFR Part 70 regarding how the source will comply with acid rain emission limitations.

E. Additional Information.

  (1) Notwithstanding the other provisions of this chapter, the applicant for a Part 70 permit shall include in the application all information needed:

    (a) To determine if the source is subject to all applicable requirements of the Clean Air Act;

    (b) To ensure that all applicable requirements of the Clean Air Act are included in the permit; and

    (c) To determine the annual permit fee required by COMAR 26.11.02.16—.19.

  (2) The applicant may include in the application only an aggregate estimate of emissions from all collective emission units and activities exempt as provided in Regulation .04 of this chapter together with the assumptions used to estimate those emissions.

#### Regulation .04 Emissions Units and Activities Exempt from the Part 70 Permit Application.

*COMAR 26.11.03.04*

A. The following emission units and activities need not be included in the permit application, except to the extent required by COMAR 26.11.03.02G:

  (1) Space heaters operating by direct heat transfer and used solely for comfort heat;

  (2) Brazing, soldering, welding equipment and cutting torches related to manufacturing and construction activities that emit HAP metals and not directly related to plant maintenance upkeep and repair or maintenance shop activities;

  (3) Lubricating oil storage tanks;

  (4) Unheated storage tanks containing VOC with an initial boiling point of 300°F (149°C) or greater;

  (5) Storage tanks containing Numbers 1, 2, 4, 5, and 6 fuel oil and aviation jet engine fuel;

  (6) First aid and emergency medical care provided at the facility, including related activities such as sterilization and medicine preparation used in support of a manufacturing or production process;

  (7) Certain recreational equipment and activities, such as fireplaces, barbecue pits and cookers, fireworks displays, and kerosene fuel use;

  (8) Potable water treatment equipment, not including air stripping equipment;

  (9) Noncontact water (i.e., water that has not been in direct contact with process fluids) cooling towers except as regulated under §112 of the Clean Air Act;

  (10) Firing and testing of military weapons and explosives;

  (11) Emission resulting from the use of explosives for blasting at quarrying operations and from the required disposal of boxes used to ship the explosive;

  (12) All sources listed in COMAR 26.11.02.10 except §§A, B, F, J, N, O(1), O(5), O(11), T, and V;

  (13) Laboratory fume hoods and vents; and

  (14) After identification of the emissions unit and agreement by the Department, any other emissions unit that is not subject to an applicable requirement of the Clean Air Act.

B. Potential emissions from all exempt emission units and activities shall be included in the determination of whether a source is a major source.

C. A permit applicant may not omit information on an emissions unit that is necessary to determine the applicability of, or to impose, an applicable requirement of the Clean Air Act.

D. The listing of emissions units and activities in §A of this regulation does not exempt an emissions unit or activity from any requirement of this subtitle except as specified in this regulation.

E. Emissions units or activities that use Class I or Class II ozone-depleting substances subject to an applicable requirement established under Title VI of the Clean Air Act are not exempt from the Part 70 permit application.

#### Regulation .05 Content of Part 70 Permits — General Requirements.

*COMAR 26.11.03.05*

A. For all major sources, the Department shall include in the Part 70 permit for a source all applicable requirements of the Clean Air Act for all relevant emission units at the major source.

B. For a nonmajor source for which a Part 70 permit is required as provided in Regulation .01 of this chapter, the Department shall include in the permit all applicable requirements of the Clean Air Act for all emission units that cause the source to be subject to this regulation.

C. Fugitive Emissions. Fugitive emissions from a Part 70 source shall be included in the permit application and the Part 70 permit in the same manner as stack or other confined emissions, regardless of whether the source is within a category included in the list of sources contained in the definition of major source.

D. Duration of Part 70 Permits.

  (1) The duration of a Part 70 permit for an electric generating station that is an affected source shall be for a fixed term of 5 years.

  (2) For a municipal waste combustor, as defined in COMAR 26.11.08.01B(7), subject to standards under §129(e) of the Clean Air Act, the Department shall issue a Part 70 permit for a term not to exceed 12 years with a review of the permit every 5 years.

  (3) The duration of all other Part 70 permits shall be for a term not to exceed 5 years.

E. State-Only Enforceable Conditions. The Department may include conditions in a Part 70 permit to be designated in the permit as being “State-only enforceable” if they are based upon applicable requirements of the State air pollution control law that are not federally enforceable. As provided at Regulation .13A(2) of this chapter, the criteria for issuing or denying the State-only enforceable condition of a Part 70 permit are specified at COMAR 26.11.02.06C. As provided at Regulation .11G of this chapter, only the applicant may challenge the State-only enforceable conditions of a Part 70 permit. These State-only enforceable conditions are not otherwise subject to the requirements of Regulations .07—.12 of this chapter.

#### Regulation .06 Content of Part 70 Permits — Specific Requirements.

*COMAR 26.11.03.06*

A. At a minimum, the Department shall include in each Part 70 permit the following terms and conditions that are based upon applicable requirements of the Clean Air Act:

  (1) Emission limitations and standards, including those operational limitations and other requirements that assure compliance with all applicable requirements of the Clean Air Act at the time of permit issuance, as described in §B of this regulation;

  (2) The duration of the permit;

  (3) Provisions related to monitoring, record keeping, and reporting as described in §C of this regulation;

  (4) A provision prohibiting emissions that exceed any allowances that the source lawfully holds under Title IV of the Clean Air Act or the regulations promulgated under it, as described in §D of this regulation;

  (5) A severability clause to ensure the continued validity of the remainder of the requirements of a permit if any portion of the permit is challenged;

  (6) Miscellaneous provisions described in §E of this regulation;

  (7) A provision to ensure that the annual permit fee is paid to the Department, as prescribed in COMAR 26.11.02.16;

  (8) A provision stating that a permit revision is not required for a change that is provided for in the permit relating to approved economic incentives, marketable permits, emissions trading, and other similar programs;

  (9) Reasonably anticipated operating scenarios identified in the application and approved by the Department, which:

    (a) Require the permittee, contemporaneously with making a change from one approved scenario to another, to record in a log maintained at the permitted source each scenario under which the source is operating and the date and time that the scenario started and ended,

    (b) May extend the permit shield in Regulation .23 of this chapter to the terms under each approved scenario, and

    (c) Ensure that the terms and conditions of each approved scenario meet all applicable requirements of the Clean Air Act;

  (10) As provided in 40 CFR §70.4(b)(12) and as described in §F of this regulation, provisions, if requested by the applicant, for the trading of emissions increases and decreases among the emissions units at the permitted source, to the extent that the applicable requirements of the Clean Air Act provide for this trading without a case-by-case approval of each trade, and if the application includes proposed replicable procedures and permit terms and conditions to ensure that the trades are quantifiable and enforceable;

  (11) A provision that all terms and conditions in a Part 70 permit, including provisions designed to limit a source's potential to emit, are enforceable by the EPA and citizens under the Clean Air Act, except for any terms and conditions that are identified as State-only enforceable;

  (12) Compliance requirements as described in §G of this regulation;

  (13) Provisions establishing the permit shield, if a permit shield is allowed pursuant to Regulation .23 of this chapter;

  (14) Other provisions that the Department may reasonably require.

B. Emission Limitations and Standards.

  (1) The permit shall specify and reference the origin of and authority for each term or condition, and identify any difference in form as compared to the applicable requirement of the Clean Air Act upon which the term or condition is based.

  (2) The permit shall state that, if another applicable requirement of the Clean Air Act is more stringent than an applicable requirement of regulations promulgated under Title IV of the Clean Air Act, both provisions shall be incorporated into the permit and shall be enforceable by the EPA.

  (3) If the Maryland SIP allows a determination of an alternative emission limit at a Part 70 source, equivalent to that contained in the SIP, to be made in the permit issuance, renewal, or significant modification process, and the Department elects to use this process, the permit shall contain provisions to ensure that a resulting emissions limit has been demonstrated to be quantifiable, accountable, enforceable, and based on replicable procedures.

C. Monitoring, Record Keeping, and Reporting.

  (1) The permit shall contain general provisions requiring that the permittee monitor, create, and maintain records, and submit reports to the Department, and if appropriate to EPA, to assure compliance with the permit. This provision shall include requirements that the permittee use consistent terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable emission standards and other requirements contained in the permit.

  (2) The permit shall contain provisions with respect to monitoring that incorporate into the permit all applicable emissions monitoring and analysis procedures or test methods required by the applicable requirements, including any procedures and methods promulgated pursuant to §504(b) or 114(a)(3) of the Clean Air Act.

  (3) If the applicable requirements of the Clean Air Act do not require periodic testing or instrumental or noninstrumental monitoring, which may consist of record keeping designed to serve as monitoring, the permit shall require periodic monitoring of emissions or operating parameters relevant to each applicable requirement contained in the permit of sufficient type and frequency to yield data that is timely, reliable, and representative of the compliance status of the source with the permit. The Department may determine the record-keeping requirements, as described in §C(5) of this regulation, may be sufficient to satisfy this requirement.

  (4) As necessary, the permit shall specify procedures for the installation, use, and maintenance of monitoring equipment or methods.

  (5) The permit shall contain provisions with respect to creating, maintaining, and retaining records, including the following requirements:

    (a) The location, as specified in the permit, date, and time that samples and measurements are taken;

    (b) All pertinent operating conditions existing at the time that samples and measurements are taken;

    (c) The date that each analysis of a sample is performed and the name of the person taking the sample;

    (d) The identity of the company, individual, or other entity that performed the analysis;

    (e) The analytical techniques and methods used;

    (f) The results of each analysis;

    (g) The retention of records of all monitoring data and support information for a period of 5 years or longer, as specified by the Department, from the date of the monitoring sample, measurement, application, or report.

  (6) Support information under §C(5)(g) of this regulation includes:

    (a) All calibration and maintenance records;

    (b) All original data collected from continuous monitoring instrumentation; and

    (c) Copies of all reports required by the permit.

  (7) Reporting Requirements.

    (a) The permit shall contain provisions with respect to all applicable reporting requirements, including requiring the permittee to:

      (i) Submit reports of required monitoring at least every six months;

      (ii) Report any deviation from permit requirements that could endanger human health or the environment, by orally notifying the Department immediately upon discovery of the deviation; and

      (iii) Promptly report all other deviations from permit requirements, including those attributable to upset conditions as defined in the permit, within 5 days of discovery of the deviation or a shorter time that the Department may specify in the permit, by submitting a written description of the deviation to the Department, including the cause and dates and times of the onset and termination of the deviation.

    (b) All instances of deviations from permit requirements shall be clearly identified in the reports required by §C(7)(a)(i) of this regulation. All required reports shall be certified by a responsible official, as provided in COMAR 26.11.02.02F and Regulation .02F of this chapter.

    (c) If a deviation under §C(7)(a)(iii) of this regulation is continuing, the permittee shall submit the action taken or planned to reduce, eliminate, and prevent reoccurrence of the deviation.

D. Lawful Allowance.

  (1) A permit revision is not required for increases in emissions that are authorized by allowances acquired pursuant to the acid rain program, if the increases do not require a permit revision under another applicable requirement of the Clean Air Act.

  (2) A limit may not be included in the permit on the number of allowances that may be held by the permittee. The permittee may not, however, use allowances as a defense to noncompliance with another applicable requirement of the Clean Air Act.

  (3) Allowances shall be accounted for according to the procedures established in regulations promulgated under Title IV of the Clean Air Act.

E. Miscellaneous Provisions.

  (1) Duty to Comply. The permit shall contain a provision requiring the permittee to comply with all terms and conditions of the Part 70 permit and providing that noncompliance with the federally enforceable conditions constitutes a violation of the Clean Air Act and is subject to:

    (a) Enforcement action;

    (b) Permit revocation or revision;

    (c) Denial of an application for renewal of the permit; or

    (d) Any combination of these actions.

  (2) Need to Halt or Reduce Activity Not a Defense. The permit shall contain a provision that it is not a defense in an enforcement action for the permittee to establish that it would have been necessary to halt or reduce activity related to the permitted source in order to comply with the conditions of the permit.

  (3) Permit Actions. The permit shall contain a provision that the permit may be revoked or reopened and revised for cause. The filing of an application by the permittee for a permit revision or renewal, or termination, or of a notification of planned changes to a permitted source or anticipated noncompliance does not stay a term or condition of a Part 70 permit.

  (4) Property Rights. The permit shall contain a provision that the permit does not convey any property rights or any exclusive privilege.

  (5) Duty to Provide Information. The permit shall contain a provision that the permittee shall furnish to the Department, within a reasonable time specified by the Department, information that the Department may request in writing to determine whether the permittee is in compliance with the federally enforceable provisions of the permit or whether cause exists for revising or revoking the permit. Upon request, the permittee shall also furnish to the Department records required to be kept under the permit. For information claimed by the permittee to be confidential and therefore potentially not disclosable to the public, the Department may require the permittee to provide a copy of the records directly to the EPA along with the claim of confidentiality.

F. Emissions Trading. Provisions for emissions trading:

  (1) Shall include all terms and conditions required by this regulation to determine compliance;

  (2) May extend the permit shield in Regulation .23 of this chapter to all terms and conditions related to emissions trading;

  (3) Shall meet all applicable federally enforceable regulatory and permit requirements and the requirements of this chapter;

  (4) Shall be solely for the purpose of complying with a federally enforceable emissions limit that is established in the permit independent of otherwise applicable requirements of the Clean Air Act; and

  (5) Do not allow trading that involves an emissions unit for which the Department determines that replicable procedures have not been identified by the applicant to ensure that the proposed trades are quantifiable and enforceable.

G. Compliance Requirements.

  (1) All Part 70 permits shall contain provisions with respect to compliance as described in this section.

  (2) The permit shall contain compliance certification, testing, monitoring, reporting, and record-keeping requirements sufficient to assure compliance with the permit. A report or other document that a Part 70 permit requires to be submitted to the Department shall contain a certification by a responsible official that meets the requirements of COMAR 26.11.02.02F and Regulation .02F of this chapter.

  (3) The permit shall contain entry and inspection provisions that require the permittee to allow employees and authorized representatives of the Department and the EPA, upon presentation of credentials and other documents as may be required by law, to:

    (a) Enter at any reasonable time without delay and without prior notice the permittee's property where a Part 70 source is located, emission-related activity is conducted, or records required by the permit are kept;

    (b) Have access to and copy records required by the permit;

    (c) Inspect the source, all emissions units within the source, and all related monitoring, air pollution control equipment, practices, or operations regulated or required under the permit; and

    (d) Sample or monitor any substances or parameters at or related to the source for the purpose of determining compliance with the permit.

  (4) The permit shall contain a schedule of compliance consistent with Regulation .03B(17) of this chapter.

  (5) The permit shall require progress reports consistent with an applicable schedule of compliance and Regulation .03B(17) of this chapter to be submitted quarterly, or more frequently, as specified in the applicable requirement of the Clean Air Act or by the Department. A progress report includes:

    (a) The date when each requirement in the schedule of compliance was or will be met; and

    (b) An explanation of why a date in the schedule of compliance was or will not be met and those actions taken to avoid not meeting the date.

  (6) The permit shall contain the following provisions for compliance certification with the terms and conditions of the permit, including emission limits, standards, and work practices which are based upon applicable requirements of the Clean Air Act:

    (a) The frequency of submission, which will be annually or more frequent as specified in the applicable requirement of the Clean Air Act or by the Department; and

    (b) In accordance with §C(3) of this regulation, the methods for monitoring and assessing compliance of the source with the permit.

  (7) The permit shall contain a provision that the compliance certification include:

    (a) The identification of each federally enforceable term or condition of the permit that is the basis of the certification;

    (b) The compliance status;

    (c) Whether compliance was continuous or intermittent;

    (d) The methods used for determining the compliance status of the source, currently and over the reporting period; and

    (e) Other information the Department requires to determine the compliance status of the source.

  (8) The permit shall contain requirements that all compliance certifications be submitted simultaneously to the Department and EPA.

  (9) The permit shall contain additional requirements as specified pursuant to §§114(a)(3) and 504(b) of the Clean Air Act.

#### Regulation .07 Public Participation Procedures.

*COMAR 26.11.03.07*

A. Applicability.

  (1) The applicant for a Part 70 permit, a significant permit modification to a Part 70 permit, or a Part 70 permit renewal shall provide public notification of the permit proceeding in accordance with the provisions of this regulation.

  (2) A permittee whose Part 70 permit is reopened under Regulation .20 of this chapter shall provide public notification of the reopening of the permit, in accordance with the requirements of this regulation. This notification shall apply only to those portions of the permit for which cause to reopen exists.

  (3) A person who applies to be covered by a general Part 70 permit, as provided by Regulation .21 of this chapter, is not subject to the requirements of this regulation if the general Part 70 permit has already completed all the public, affected State, and EPA notification, comment, and review procedures required by this regulation.

  (4) Except as expressly provided otherwise, this regulation does not apply to the State-only enforceable conditions of a Part 70 permit.

B. Public Notice Requirements.

  (1) For Part 70 permit proceedings subject to this regulation, the Department shall:

    (a) Direct the applicant or permittee to provide the public notice as required by this regulation;

    (b) Provide opportunity for public comment and opportunity for a nonadjudicatory public hearing on the draft Part 70 permit;

    (c) Make available for public inspection:

      (i) The complete application, except for information qualifying as confidential information,

      (ii) The draft Part 70 permit, and

      (iii) Other relevant supporting information; and

    (d) Provide a copy of the draft Part 70 permit to the applicant.

  (2) For Part 70 permit proceedings subject to this regulation, the applicant or permittee shall provide, at its own expense, a public notice, in a format approved by the Department, that includes the information listed in §C of this regulation:

    (a) By publication in a newspaper of general circulation in the area where the source is located;

    (b) As directed by the Department, to any person who has made a timely request to the Department in accordance with procedures established by the Department for making the requests; and

    (c) By other means if required by the Department to assure adequate notice to the affected public.

C. Format for Public Notice. The public notice required by §B of this regulation shall include the following minimum information:

  (1) The Part 70 permit or application number as assigned by the Department;

  (2) The location and a description of the source for which the Part 70 permit is sought and the operations conducted at the source;

  (3) The name and address of the applicant;

  (4) The name and address of the Department;

  (5) The change to emissions involved in any significant permit modification;

  (6) Information on the location and availability of copies of the draft permit, the complete application, and relevant supporting information;

  (7) The name, address, and telephone number of a person representing the applicant and of a person representing the Department from whom interested persons may obtain additional information;

  (8) A brief description of the public participation procedures required by this regulation; and

  (9) The time and place of any nonadjudicatory hearing that has been scheduled or the procedures to request a hearing if a hearing has not been scheduled.

D. The Department shall provide at least 30 days for public comment on a draft Part 70 permit, renewal, or revision subject to this regulation. During the 30-day public comment period, a person may submit written comments and may submit a written request for a nonadjudicatory public hearing if a hearing has not been scheduled. The Department shall consider all public comments that raise issues of law or material fact regarding an application for a Part 70 permit, renewal, or revision, but only if the issues are germane to applicable requirements of Title V of the Clean Air Act, and the regulations implementing the Title V program in Maryland. Comments raising issues that relate to the location or nature of a source or an emissions unit subject to a Part 70 permit may not be considered unless the commenter demonstrates to the satisfaction of the Department that the Department is required by law to consider the issues in issuing or denying the Part 70 permit.

E. A request for a public hearing shall include the following information:

  (1) The name, mailing address, and telephone number of the person making the request;

  (2) The names and addresses of persons whom the person making the request is representing; and

  (3) The reason why a hearing is requested, including the air quality concern that forms the basis for the request and how this concern relates to the person making the request.

F. The Department will hold a public nonadjudicatory hearing if the Department determines, on the basis of requests, that there is significant public interest in the draft Part 70 permit, renewal, or revision. The Department or the applicant shall give notice of a nonadjudicatory public hearing at least 30 days before the hearing.

G. The Department shall keep a record of the identity of the commenters, to the extent that they identified themselves, and a summary of the issues raised during the public comment period so that the EPA may fulfill its obligation under §505(b)(2) of the Clean Air Act to determine whether a citizen petition may be granted. This information shall be available to the public. Reasonable limits may be set on the time allowed for oral statements made at a public hearing.

#### Regulation .08 Review by Affected States of Part 70 Permits.

*COMAR 26.11.03.08*

A. The Department shall provide notice of each draft Part 70 permit, significant permit modification, and draft permit renewal to each affected state not later than the date that the public notification required by Regulation .07 of this chapter is provided. Notification of a minor permit modification shall be sent within 5 days of receipt of a complete application, as provided in Regulation .16E of this chapter. As provided in Regulation .15 of this chapter, administrative permit amendments are not subject to this regulation. Notice of a reopened permit shall also be provided to affected states for review not later than the date that the public notification is required by Regulation .07 of this chapter.

B. An affected state shall have 30 days from the date of notification provided in §A of this regulation to provide comments to the Department.

C. The Department shall notify in writing the EPA and any affected state that submitted comments within the 30-day comment period of a decision by the Department not to incorporate any recommendation from that affected state into the proposed permit. This notice shall be sent with the proposed permit to the EPA, or as soon as possible after the submittal of minor permit modifications, as provided at Regulation .16 of this chapter, and shall include the Department's reasons for not accepting the recommendations. The Department shall refuse to accept a recommendation that is not based on the requirements of 40 CFR Part 70 or other applicable requirement of the Clean Air Act.

#### Regulation .09 Review by EPA of Part 70 Permits.

*COMAR 26.11.03.09*

A. The Department shall provide the EPA with a copy of each application for a Part 70 permit, including an application for a permit revision, each proposed permit, and each final Part 70 permit, unless the EPA agrees to accept a summary of the application and related information. The Department may require the applicant to submit a copy of the permit application, including the compliance plan directly to the EPA.

B. Except for administrative permit amendments for which notice to the EPA is not required, the Department may not issue or revise the federally enforceable provisions of a Part 70 permit if the EPA:

  (1) Objects to its issuance or revision in writing within 45 days of EPA's receipt of the proposed permit or revision and any necessary supporting information; and

  (2) Specifies the basis for its objection and a description of the terms and conditions that must be included in the permit to respond to the objection.

#### Regulation .10 Public Petitions for Review to EPA Regarding Part 70 Permits.

*COMAR 26.11.03.10*

A. If the EPA does not object in writing to a proposed permit under Regulation .09 of this chapter, a person may petition EPA, within 60 days after the expiration of EPA's 45-day review period, to make this objection. The petition for review shall be based only on objections to the federally enforceable provisions of the draft permit that were raised with reasonable specificity during the public comment period provided in Regulation .07D of this chapter, unless:

  (1) The petitioner demonstrates that it was impracticable to raise the objections within the public comment period; or

  (2) The grounds for the objection arose after the public comment period.

B. A person submitting a petition for review to the EPA under this regulation shall provide the Department and the applicant with a copy of the petition when it is provided to the EPA.

C. If the EPA objects to a Part 70 permit as a result of a petition for review filed under this regulation, the Department may not issue the permit until EPA's objection has been resolved. A petition for review does not stay the effectiveness of a Part 70 permit or its requirements if the permit was issued after the end of the 45-day review period and before an EPA objection.

D. If the Department has issued a Part 70 permit before receipt of an EPA objection under this regulation, the Department has 90 days from receipt of the EPA objection to resolve the objection and to reopen and revise or revoke the permit. If the Department fails to resolve the EPA objection and EPA then reopens and revises or revokes the permit in accordance with 40 CFR §70.8(d), the Department thereafter may issue only a revised Part 70 permit that satisfies the EPA's objection. In this event, the owner or operator of the source is not in violation of the requirement to have submitted a timely and complete application if the owner or operator timely provides the Department with all information necessary to revise the permit.

#### Regulation .11 Hearing Procedures.

*COMAR 26.11.03.11*

A. Request for a Contested Case Hearing. If the Department denies a Part 70 permit or issues it with terms and conditions that are objectionable to the applicant, the applicant may request that a contested case hearing be held regarding the permit. This request shall be made to the Department in writing not later than 15 days after the applicant receives notice that the permit has been denied or of the objectionable terms and conditions. The request shall include the basis for the request and refer to any objectionable terms and conditions.

B. Referral to Office of Administrative Hearings. The Department shall refer the applicant's request to the Office of Administrative Hearings (OAH) for a contested case hearing regarding the denial of the permit or the objectionable terms and conditions. If objectionable terms and conditions are the basis for the request, the referral is limited to the objectionable terms and conditions and any others that are necessarily implicated by a challenge to the objectionable terms and conditions.

C. Notice to Other Persons. After referral to OAH, the applicant shall provide notice of the contested case hearing, at the applicant's expense, to the EPA, any affected state that commented on the draft or proposed permit, and any other person who has requested notice. The applicant shall also provide notice in a newspaper of general circulation in the area of the source for which the Part 70 permit is sought. Before the notices required by this section are sent or published, the form and content of the notices shall be submitted by the applicant to the administrative law judge for approval.

D. Rights of Other Persons to Participate. The EPA has the right, at its discretion, to participate as a party in a contested case hearing held under this regulation. Any other person may move to participate in the contested case hearing in accordance with the requirements of Maryland law.

E. Additional Notice and Final Decision. If the EPA did not participate in the contested case hearing, the Department shall provide the EPA with a copy of the proposed decision of the administrative law judge and 45 days opportunity to comment before the Department issues its final decision in the contested case. If the EPA comments within 45 days, the Department shall provide a copy of those comments to all parties to the contested case hearing and 10 days to respond to those comments. After the end of this comment period, or without a comment period if EPA participated in the contested case hearing, the Department shall issue its final decision in the contested case.

F. Determination that an Application is Incomplete. A determination by the Department that an application for an initial or renewed Part 70 permit is incomplete is also subject to the procedures for contested cases in §§A and B of this regulation, if the determination is made after the time for submitting a timely application. The requirements of §§C—E of this regulation do not apply to a contested case hearing held under this section.

G. State-only Enforceable Conditions. Sections A, B, and F of this regulation apply to the federally enforceable and the State-only enforceable conditions of a Part 70 permit.

#### Regulation .12 Judicial Review.

*COMAR 26.11.03.12*

A. Final Decisions. Final decisions of the Department regarding Part 70 permits are subject to judicial review as provided in this regulation. The following decisions are final:

  (1) A final decision of the Department regarding a Part 70 permit following a contested case hearing requested by the applicant, as provided in Regulation .11 of this chapter;

  (2) Failure of the Department to make a decision regarding a Part 70 permit within the time limits specified in Regulation .13A(3) of this chapter;

  (3) A decision to issue a Part 70 permit followed by a petition to the EPA, pursuant to Regulation .10 of this chapter, which has been denied by the EPA;

  (4) A decision to issue a Part 70 permit before a petition to the EPA, pursuant to Regulation .10 of this chapter, which has been denied by the EPA;

  (5) The adoption of a regulation establishing a general permit, as provided in Regulation .21 of this chapter.

B. Notwithstanding §A of this regulation, a decision by the Department regarding a Part 70 permit is not final if a petition pursuant to Regulation .10 of this chapter is pending before the EPA, if an EPA objection to the permit has not been resolved, or if any other action is pending before the EPA, if the action was initiated with EPA or by EPA not later than 90 days after the Department's decision to issue a permit. A person who is uncertain whether a decision of the Department is not final because action is pending before the EPA shall request the Department to determine whether the action is pending. The Department shall consult with the EPA and respond in writing to a request within 20 days of receiving it.

C. Form of Judicial Review.

  (1) A final decision by the Department in a contested case requested by the applicant is subject to judicial review as provided in Environment Article, §2-607, and State Government Article, §10-222, Annotated Code of Maryland.

  (2) Failure of the Department to make a decision within the time limits specified in Regulation .13A(3) of this chapter, or to reopen a permit as provided in Regulation .20C(3)(c) of this chapter is subject to an action for mandamus or any other action provided by law to compel the Department to make a decision. As provided in COMAR 26.11.02.02I, a Part 70 permit may not be considered to be issued because of the failure of the Department to make a decision within a time limit prescribed in this chapter.

  (3) The adoption of a regulation establishing a general permit is subject to judicial review as provided in State Government Article, §10-125, Annotated Code of Maryland.

  (4) Final decisions to issue Part 70 permits, as provided in §A(3) and (4) of this regulation, are subject to an action for judicial review brought by any person other than the applicant, as provided in the Maryland Environmental Standing Act (MESA), Natural Resources Article, §1-501 et seq., Annotated Code of Maryland.

D. Time Limit for and Scope of Judicial Review.

  (1) As provided in Maryland Rule §7-203, appeal of a contested case decision regarding a Part 70 permit shall be filed not later than 30 days after the final decision of the Department.

  (2) A judicial action to compel the Department to make a decision regarding a Part 70 permit shall be filed before the Department makes a final decision to issue or deny the permit.

  (3) As provided for at 40 CFR §70.4(b)(3)(xii), and except as provided in §D(4) of this regulation, an action for judicial review of a decision regarding a Part 70 permit that is not subject to §D(1) or (2) of this regulation shall be filed not later than 90 days after the decision of the Department is final.

  (4) An action for judicial review under §D(3) of this regulation may be filed later than 90 days after a final decision of the Department if the action is based solely on grounds arising later than 90 days after the final decision. This action shall be filed not later than 90 days after the new grounds for review arise and is limited to the new grounds.

  (5) An action for judicial review under §D(3) of this regulation is limited to issues that are germane and material to the Part 70 permit and that were raised by or on behalf of the person seeking review in written or oral comments made during the time for making comments, except if the person seeking review was not afforded an opportunity to comment on the draft permit.

E. Record for Judicial Review.

  (1) For cases involving judicial review of a final decision regarding a Part 70 permit in a case that is a contested case, the record for judicial review shall be compiled in accordance with COMAR 28.02.01 and other law that pertains to contested cases.

  (2) For cases involving judicial review of the final decision regarding a Part 70 permit in a case that is not a contested case, the record for judicial review shall consist of those records and other significant information considered by the Department when it decided whether to issue or deny the permit or, for the cases in which it is alleged that the Department has failed to make a timely decision, the information before the Department regarding the pending application. Except in cases that are based on new grounds provided for in §D(4) of this regulation, the record also consists of all comments and information submitted to the Department during the period to consider the permit. In cases that arise because of new grounds, the record includes the new grounds.

#### Regulation .13 Issuance and Renewal of Part 70 Permits.

*COMAR 26.11.03.13*

A. Action on Applications for a Part 70 Permit.

  (1) The Department shall issue a Part 70 permit, permit revision, or permit renewal only if it determines that all of the following requirements have been met:

    (a) The Department has received a complete application for a Part 70 permit, permit revision, or permit renewal, except that a complete application need not be received before a determination that a particular source is covered by a general permit under Regulation .21 of this chapter unless required by the general permit;

    (b) If applicable, the public participation requirements under Regulation .07 of this chapter;

    (c) If applicable, the procedures for notifying and responding to affected states under Regulation .08 of this chapter;

    (d) The federally enforceable conditions of the permit provide for compliance with all applicable requirements of the Clean Air Act or the permit includes a schedule to achieve compliance that is acceptable to the Department;

    (e) The EPA has received a copy of the proposed permit and any other information required by Regulation .09A of this chapter, and has either not objected to issuance of the permit under Regulation .09B of this chapter within a 45-day period or has objected within the time period but the objection has been resolved; and

    (f) The applicant has paid all fees owed to the Department that are related to the State air pollution control law.

  (2) The criteria for issuing or denying the State-only enforceable conditions of a Part 70 permit are those criteria specified in COMAR 26.11.02.06C and D.

  (3) Except as provided in 40 CFR §70.4(b)(4)(ii) regarding program approval and initial applications, Regulations .14 — .17 of this chapter regarding revisions to Part 70 permits, Regulation .21 of this chapter regarding general Part 70 permits, or in regulations promulgated by EPA under Title IV and Title V of the Clean Air Act for the permitting of affected sources under the acid rain program, the Department shall take final action on each Part 70 permit application, including a request for renewal, within 18 months after receiving a complete application. The Department shall take final action on an application within:

    (a) 60 days for an administrative permit amendment, as provided in Regulation .15D of this chapter;

    (b) 90 days for a minor permit modification, or 15 days after the end of EPA's 45-day review period under Regulation .09 of this chapter, whichever is later, as provided in Regulation .16F of this chapter; or

    (c) 9 months for a significant permit modification, as provided in Regulation .17G of this chapter.

  (4) Final action on an application for a general Part 70 permit shall be taken as specified in the general permit. Final action on a reopened permit shall be taken as specified in Regulation .20C of this chapter.

  (5) The Department shall provide a statement that sets forth the legal and factual basis for the draft federally enforceable permit conditions, including references to the applicable statutory or regulatory provisions. The Department shall provide this statement to the EPA, affected states, and to any other person who requests it.

  (6) The submittal of a complete application does not affect the requirement that the owner or operator of a source obtain a preconstruction permit under Title I of the Clean Air Act or a permit to construct or approval required under COMAR 26.11.02.

B. Part 70 Permit Renewal and Expiration.

  (1) The procedures for renewal of a Part 70 permit are the same as provided in Regulations .02, .03, and .07—.12 of this chapter for initial Part 70 permits, including procedures for applications, public participation, and affected state and EPA review.

  (2) The expiration of a Part 70 permit for a source terminates the right of the owner or operator to operate the source unless a timely and complete renewal application has been submitted, as provided in Regulation .02B and C of this chapter.

  (3) After a timely and complete application for a Part 70 permit renewal has been submitted, the permittee shall continue to operate under the terms and conditions of the current Part 70 permit until the Department has taken final action on the permit renewal.

C. No Default Issuance. As provided in COMAR 26.11.02.02I, failure of the Department to act on a Part 70 permit application is not deemed issuance by default.

#### Regulation .14 Revision of Part 70 Permits — General Requirements.

*COMAR 26.11.03.14*

A. The permittee shall submit an application to the Department to revise a Part 70 permit when required under Regulations .15—.17 of this chapter.

B. The applicant for a revision to a Part 70 permit shall comply with the requirements of Regulations .02 and .03 of this chapter and this regulation except that the application need include only information listed that is related to the proposed change to the source and revision to the permit. This information shall be sufficient to evaluate the proposed change and to determine whether it will comply with all applicable requirements of the Clean Air Act.

C. A permittee may not change any provision of a compliance plan or schedule in a Part 70 permit as an administrative permit amendment or a minor permit modification unless the change has been approved by the Department in writing.

D. On-permit and off-permit changes made to a Part 70 source, in accordance with Regulations .19 and .20 of this chapter, do not result in a revision to a Part 70 permit because the terms and conditions of the permit are not revised to reflect the change to the source.

#### Regulation .15 Administrative Permit Amendments.

*COMAR 26.11.03.15*

A. A permittee may apply to the Department to make an administrative permit amendment to a Part 70 permit, as provided in this regulation. The application shall:

  (1) Be in writing;

  (2) Include a statement certified by a responsible official, in accordance with Regulation .02F of this chapter and COMAR 26.11.02.02F, that the proposed amendment meets the criteria for an administrative permit amendment; and

  (3) Identify those provisions of the Part 70 permit for which the amendment is requested and the basis for the request.

B. An administrative permit amendment is a Part 70 permit revision that:

  (1) Corrects typographical errors;

  (2) Identifies a change in the name, address, or phone number of a person identified in the permit, or a similar administrative change involving the permittee or other matters not directly related to the control of air pollution;

  (3) Requires more frequent monitoring or reporting by the permittee;

  (4) Allows for a change in ownership or operational control of a source for which the Department determines that no other revision to the permit is necessary, if a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the Department;

  (5) Incorporates into the Part 70 permit the requirements from preconstruction review permits or approvals issued by the Department in accordance with the requirements of this subtitle, but only if the procedures for preconstruction review satisfy the requirements of 40 CFR §70.7(d)(1)(v);

  (6) Incorporates any other type of change, as approved by the EPA, which is similar to those in §B(1)—(4) of this regulation;

  (7) Incorporates any change to a term or condition specified as State-only enforceable, if the permittee has obtained all necessary permits to construct and approvals that apply to the change.

C. The Department may approve an administrative permit amendment to a Part 70 permit, consistent with the requirements of this regulation, except for a permit modification for the acid rain portion of a Part 70 permit which is governed by regulations promulgated under Title IV of the Clean Air Act.

D. The Department shall take final action to approve or deny an administrative permit amendment within 60 days of receipt of a complete application. An amendment to a Part 70 permit under this regulation may be made without providing notice to the public or affected states. The Department shall identify in the permit an amendment made under this regulation.

E. The Department shall submit a copy of the revised Part 70 permit to the EPA.

F. The permittee may make the change addressed in the application for an administrative amendment upon receipt by the Department of the application, if all permits to construct or approvals otherwise required by this chapter with respect to the change have first been obtained from the Department.

G. The permit shield in Regulation .23 of this chapter applies to administrative permit amendments made under §B(5) of this regulation but only after the Department takes final action to revise the permit.

H. The permittee is subject to enforcement action if it is determined at any time that a change made under this regulation is not within the scope of this regulation.

#### Regulation .16 Minor Permit Modifications.

*COMAR 26.11.03.16*

A. A permittee may apply to the Department to make a minor modification to the federally enforceable provisions of a Part 70 permit, as provided in this regulation.

B. A minor permit modification is a Part 70 permit revision that:

  (1) Does not result in a violation of any applicable requirement of the Clean Air Act;

  (2) Does not significantly revise existing federally enforceable monitoring, including test methods, reporting, record keeping, or compliance certification requirements except by:

    (a) Adding new requirements,

    (b) Eliminating the requirements if they are rendered meaningless because the only emissions to which the requirements apply will no longer occur, or

    (c) Changing from one approved test method for a pollutant and source category to another;

  (3) Does not require or modify a:

    (a) Case-by-case determination of a federally enforceable emission standard,

    (b) Source-specific determination for temporary sources of ambient impacts, or

    (c) Visibility or increment analysis;

  (4) Does not seek to establish or modify a federally enforceable permit term or condition for which there is no corresponding underlying applicable requirement of the Clean Air Act, but that the permittee has assumed to avoid an applicable requirement to which the source would otherwise be subject;

  (5) Is not a Title I modification; and

  (6) Is not required under Regulation .17 of this chapter to be processed as a significant modification to a Part 70 permit.

C. The terms and conditions described in §B(4) of this regulation include:

  (1) A federally enforceable emission standard applied to the source pursuant to COMAR 26.11.02.03 to avoid classification as a Title I modification; and

  (2) An alternative emission standard applied to the source pursuant to regulations promulgated under §112(i)(5) of the Clean Air Act.

D. Application for a Minor Permit Modification. The permittee shall submit to the Department an application for a minor permit modification that satisfies the requirements of Regulation .03 of this chapter, and which includes the following:

  (1) A description of the proposed change, the emissions resulting from the change, and any new applicable requirements that will apply if the change is made;

  (2) The proposed minor permit modification;

  (3) Certification by a responsible official, in accordance with Regulation .02F of this chapter and COMAR 26.11.02.02F that:

    (a) The proposed change meets the criteria for a minor permit modification, and

    (b) The permittee has obtained or applied for all required permits to construct required by this chapter with respect to the proposed change; and

  (4) Completed forms for the Department to use to notify the EPA and affected states, as required by Regulations .07—.12 of this chapter.

E. EPA and Affected State Notification. Not later than 5 working days after receipt of a complete application, the Department shall notify EPA and affected states of an application for a minor permit modification, as required by Regulations .08A and .09A of this chapter. The Department shall promptly send to EPA any notice required under Regulation .08C of this chapter.

F. Timetable for Issuance.

  (1) The Department may not issue a final minor permit modification until the 45-day period for EPA review has ended or until the EPA has notified the Department that EPA does not object to issuance of the minor permit modification, whichever occurs first.

  (2) Not later than 90 days after the Department's receipt of a complete application for a minor permit modification or 15 days after the end of the 45-day period for EPA review, whichever is later, the Department shall:

    (a) Issue the minor permit modification as proposed;

    (b) Deny the minor permit modification;

    (c) Determine that the change as described in the application does not meet the criteria for a minor permit modification and should be reviewed under the significant modification procedures in Regulation .17 of this chapter; or

    (d) Revise the draft permit modification and transmit to EPA and affected states the new proposed minor permit modification, as required by Regulation .16E of this chapter.

G. Permittee's Ability to Make Change.

  (1) If a change proposed in an application for a minor permit modification requires a permit to construct, the permittee may make the change only after the permit to construct has been issued by the Department.

  (2) If a change proposed in an application for a minor permit modification does not require a permit to construct, the permittee may make the change at any time after receipt of the application by the Department.

  (3) After the permittee makes a change allowed by this section and before the Department takes any of the actions specified in §F(2) of this regulation, the permittee shall comply with both the applicable requirements of the Clean Air Act that relate to the change and the permit terms and conditions described in the application for the modification. During this period of time, the permittee is not required to comply with the terms and conditions in the permit that it seeks to modify. If the permittee fails to comply with the permit terms and conditions in the application during this period of time, the terms and conditions in both the permit and in the application may be enforced against it.

H. Permit Shield. The permit shield in Regulation .23 of this chapter does not apply to minor permit modifications.

I. The permittee is subject to enforcement action if it is determined at any time that a change made under this regulation is not within the scope of this regulation.

J. Notwithstanding any provision of this chapter, minor permit modification procedures may be used for Part 70 permit modifications involving the use of economic incentives, marketable permits, emissions trading, and other similar approaches, but only to the extent that the minor permit modification procedures are explicitly provided for in regulations approved by the EPA as part of that Maryland SIP or in other applicable requirements of the Clean Air Act.

#### Regulation .17 Significant Permit Modifications.

*COMAR 26.11.03.17*

A. As provided in this regulation, a permittee may apply to the Department to make a significant modification to a Part 70 permit.

B. A significant permit modification is a revision to the federally enforceable provisions of a Part 70 permit that does not qualify as an administrative permit amendment under Regulation .15 of this chapter or as a minor permit modification under Regulation .16 of this chapter. A significant change or relaxation in a monitoring requirement and a relaxation of a reporting or record-keeping requirement in a Part 70 permit is a significant modification.

C. This regulation does not preclude a permittee from making changes, consistent with the provisions of this chapter, that would make a permit or particular terms and conditions of a permit irrelevant, such as by shutting down or reducing the level of operation of a source or of an emission unit within the source. Air pollution control equipment may not be shut down or its level of operation reduced if doing so would violate any term of a permit or approval.

D. Significant permit modifications are subject to all requirements of this chapter as they apply to permit issuance and renewal, including the requirements for applications, public participation, and review by affected states and EPA, except:

  (1) An application need include only information pertaining to the proposed change to the source and modification of the permit, including a description of the change and modification, the emissions resulting from the change and modification, and any new applicable requirements of the Clean Air Act that will apply if the change occurs;

  (2) Public participation, and review by affected states and EPA, is limited to only the application and those federally enforceable terms and conditions of the Part 70 permit that are affected by the significant permit modification.

E. As provided at Regulation .15B(5) of this chapter, an administrative permit amendment may be used to make a change that would otherwise require a significant permit modification if procedures for enhanced preconstruction review of the change are followed that satisfy the requirements of 40 CFR §70.7(d)(1)(v).

F. Permittee's Ability to Make Change.

  (1) Before making a change that qualifies as a significant permit modification, a permittee shall obtain all permits to construct and approvals if required by COMAR 26.11.02.09A, or shall obtain a certificate of public convenience and necessity (CPCN) from the Public Service Commission if required under Public Utilities Article, Title 7, Subtitle 2, Annotated Code of Maryland.

  (2) For modifications that require a permit to construct and, if applicable, approval by COMAR 26.11.02, or a CPCN from the Public Service Commission, the permittee may make the change only after the permittee has received the required permit to construct, and, if applicable, approval or CPCN and has submitted a complete application for a significant modification to its Part 70 permit.

  (3) For modifications that do not require a permit to construct, and, if applicable, approval, the permittee may not make the change until the Department issues a revised Part 70 permit that includes the requirements that apply to the modification.

G. The Department shall make its final decision to issue or deny a significant permit modification within 9 months after receipt of a complete application, but may extend that date for cause.

H. A permittee may not make a significant permit modification that results in a violation of any applicable requirement of the Clean Air Act.

I. Permit Shield. The permit shield in Regulation .23 of this chapter applies to a final significant permit modification that has been issued by the Department, to the extent applicable under Regulation .23 of this chapter.

#### Regulation .18 On-Permit Changes to Sources.

*COMAR 26.11.03.18*

A. A permittee may make a change to a permitted source without obtaining a revision to the Part 70 permit, if:

  (1) The change is not a Title I modification;

  (2) The change does not result in emissions in excess of those expressly allowed under the federally enforceable provisions of the Part 70 permit for the permitted source or for an emissions unit within the source, whether expressed as a rate of emissions or in terms of total emissions;

  (3) The permittee has obtained all permits and approvals required by this chapter and COMAR 26.11.02;

  (4) The change does not violate an applicable requirement of the Clean Air Act;

  (5) The change does not violate a federally enforceable permit term or condition related to monitoring, including test methods, record keeping, reporting, or compliance certification requirements;

  (6) The change does not violate a federally enforceable permit term or condition limiting hours of operation, work practices, fuel usage, raw material usage, or production levels if the term or condition has been established to limit emissions allowable under the permit;

  (7) The change does not modify a federally enforceable provision of a compliance plan or schedule in a Part 70 permit unless the Department has approved the change in writing; and

  (8) The permit does not expressly prohibit the change under this regulation.

B. The permittee shall notify the Department and the EPA in writing of a proposed change under this regulation not later than 7 days before the change is made.

C. The written notification required by §B of this regulation shall include:

  (1) The following information:

    (a) A description of the proposed change,

    (b) The date on which the change is proposed to be made,

    (c) Any change in emissions resulting from the change, including the pollutants emitted,

    (d) Any new applicable requirement of the Clean Air Act, and

    (e) Any permit term or condition that would no longer apply; and

  (2) Certification by a responsible official, in accordance with Regulation .02F of this chapter and COMAR 26.11.02.02F, that the proposed change meets the criteria for the use of on-permit changes under this regulation and a request that these procedures be used.

D. The permittee, the Department, and EPA shall attach each notice required by §B of this regulation to their copy of the Part 70 permit.

E. Changes that qualify under this regulation are not subject to the requirements for Part 70 permit revisions.

F. Upon satisfying the requirements of this regulation, the permittee may make the proposed change.

G. Permit Shield. The permit shield in Regulation .23 of this chapter does not apply to changes made under this regulation.

H. The permittee is subject to enforcement action if it is determined that a change made under this regulation is not within the scope of this regulation or violates any requirement of the State air pollution control law.

#### Regulation .19 Off-Permit Changes to Sources.

*COMAR 26.11.03.19*

A. A permittee may make a change to the permitted source that is not addressed or prohibited by the federally enforceable conditions of a Part 70 permit without obtaining a Part 70 permit revision if:

  (1) The owner or operator has obtained all permits and approvals required by this chapter;

  (2) The change is not subject to any requirements under Title IV of the Clean Air Act;

  (3) The change is not a Title I modification; and

  (4) The change does not violate an applicable requirement of the Clean Air Act or a federally enforceable term or condition of the permit.

B. For a change that qualifies under this regulation, the permittee shall provide contemporaneous written notice to the Department and the EPA, except for a change to an emission unit or an activity that is exempt from the Part 70 permit application, as provided in Regulation .04 of this chapter. This written notice shall describe the change, including the date it was made, any change in emissions, including the pollutants emitted, and any new applicable requirements of the Clean Air Act that apply as a result of the change.

C. Upon satisfying the requirements of this regulation, the permittee may make the proposed change.

D. The permittee shall keep a record describing:

  (1) Changes made at the source that result in emissions of an air pollutant subject to an applicable requirement of the Clean Air Act, but not otherwise regulated under the permit; and

  (2) The emissions resulting from those changes.

E. Changes that qualify under this regulation are not subject to the requirements for Part 70 permit revisions.

F. The permittee shall include each change made under this regulation in the application for the next renewal of the Part 70 permit.

G. Permit Shield. The permit shield in Regulation .23 of this chapter does not apply to changes made under this regulation.

H. The permittee is subject to enforcement action if it is determined that a change made under this regulation is not within the scope of this regulation.

#### Regulation .20 Reopening Part 70 Permits.

*COMAR 26.11.03.20*

A. Reopening a Part 70 Permit by the Department.

  (1) Mandatory Reopening by the Department. The Department shall reopen and revise or revoke the federally enforceable conditions of a Part 70 permit under the following circumstances:

    (a) Additional requirements of the Clean Air Act become applicable to a major Part 70 source with a remaining permit term of 3 or more years;

    (b) Additional requirements, including excess emissions requirements, become applicable to an affected source under the acid rain program;

    (c) The Department or the EPA determines that the permit contains a material mistake or is based on false or inaccurate information supplied by or on behalf of the applicant; or

    (d) The Department or the EPA determines that the permit must be revised or revoked to assure compliance with the applicable requirements of the Clean Air Act.

  (2) A reopening and revision under §A(1)(a) of this regulation shall be completed not later than 18 months after promulgation of the new applicable requirement. A reopening is not required if the effective date of the new requirement is later than the date on which the permit is due to expire, unless the original permit or any of the original permit's terms and conditions have been extended pursuant to Regulation .13B of this chapter.

  (3) Upon approval by the EPA, excess emission offset plans under §A(1)(b) of this regulation are deemed to be incorporated into the permit.

  (4) Discretionary Reopening by the Department. The Department may reopen and revise the federally enforceable conditions of a Part 70 permit under any of the following circumstances:

    (a) The Department determines that the permit must be revised or revoked to assure compliance with an applicable national ambient air quality standard or increment; or

    (b) The Department receives information previously unavailable to the Department that shows that the terms and conditions of the permit do not accurately reflect the actual circumstances relating to the permitted facility.

B. Discretionary Reopening by EPA. The EPA may reopen a Part 70 permit as prescribed in 40 CFR §70.7(g).

C. Procedures for Reopening a Part 70 Permit by the Department.

  (1) Not later than 30 days before reopening a permit under this regulation, unless the Department determines that a shorter period is necessary to protect public health, the Department shall notify the permittee and the EPA of:

    (a) The Department's intention to reopen the permit;

    (b) Which provisions of the permit will be reopened or that revocation is proposed;

    (c) The proposed revision;

    (d) The basis for the decision; and

    (e) The procedures that apply to the reopening.

  (2) Not later than 20 days after receiving notice, unless a shorter time is specified by the Department, the permittee shall respond to the notice by providing the Department with all information that the permittee considers relevant to the notice of proposed reopening. A copy of this response shall be sent simultaneously to the EPA. Failure to timely respond or submit relevant information constitutes a waiver by the permittee of its right to respond to the notice.

  (3) Notice of Reopening or Decision Not to Reopen.

    (a) Except as provided in §C(3)(b) of this regulation, not sooner than 30 days after the permittee received the notice required by this section, unless the Department determines that a shorter time is required to protect public health, the Department shall notify the permittee and the EPA:

      (i) That the permit has been reopened;

      (ii) Which provisions are reopened and the proposed revision if the proposed revisions can be determined, or that revocation is proposed; and

      (iii) Of the procedures that apply to the reopening.

    (b) At any time before notifying the permittee of a decision to reopen the permit, the Department may notify the permittee and the EPA of a decision to not reopen the permit.

    (c) A decision to reopen a permit is not a final decision of the Department.

  (4) Procedures to be Followed for a Reopened Permit. The procedures to be followed if a permit is reopened shall be the same procedures that were used for the initial permit issuance as specified in Regulations .07, .08, and .09 of this chapter.

  (5) Application for Reopened Permit and Effective Date of Reopening. Not later than 30 days after it receives notice of a decision to reopen a permit, unless the Department specifies a shorter time, the permittee shall submit a complete application for a revised permit, following the procedures specified by the Department. The permit is considered to be reopened on the day that the Department receives a complete application for the revised permit, except that if a complete application is not received within 30 days after the permittee receives notice of the reopening, the permittee waives the right to participate in the reopened permit and the date of reopening is the date 30 days after the applicant received notice of the reopening. In this event, the Department may proceed to revise or revoke the permit without the participation of the permittee using, to the extent practicable, the procedures specified under §C(4) of this regulation, including billing the permittee for any costs of public notice or other costs for which an applicant is responsible under Regulation .07 of this chapter.

  (6) Decision to Revise or Revoke Permit. Not later than 90 days after the effective date of reopening, unless the Department determines that a longer period is required to satisfy the procedures specified for the reopening, the Department shall revise or revoke the permit. A decision to revise or revoke a Part 70 permit is subject to the review provisions at Regulations .11 and .12 of this chapter.

D. Extension of Expiration Date of Permit. This regulation does not apply to an extension of the expiration date of a Part 70 permit unless the entire permit is reopened and the requirements of this chapter for renewal of a Part 70 permit are followed.

E. Other Actions Not Limited. This regulation is not a limitation on the authority of the Department to bring or pursue at any time any administrative, civil, or criminal judicial action authorized by law for violation of a Part 70 permit, including actions for penalties and injunctive relief. The Department may reopen and revise or revoke a Part 70 permit while administrative or judicial enforcement action is pending or after it has ended.

F. Summary Revocation of a Permit. Notwithstanding any other provision of this chapter, in order to protect the public health, the Department may initiate administrative action to revoke a permit using the minimum procedures necessary to protect the rights of the permittee. These procedures may include summary revocation by the Department of a Part 70 permit and, if necessary, judicial actions to enforce the summary revocation pending administrative proceedings and judicial review to determine whether the permit should be revoked permanently or revised, or other appropriate action taken.

#### Regulation .21 General Part 70 Permits.

*COMAR 26.11.03.21*

A. The Department may, after its review, review by the EPA and affected states, and after notice and opportunity for public comment and hearing as required by the rulemaking provisions of the Administrative Procedure Act, State Government Article, §10-101 et seq., Annotated Code of Maryland, and Environment Article, §2-301, Annotated Code of Maryland, issue a general Part 70 permit covering numerous similar sources or emissions units. Any general permit shall comply with all requirements applicable to other Part 70 permits and shall identify criteria by which sources may qualify for the general permit.

B. The Department shall maintain records of the public comments and issues raised during the public participation process.

C. Notwithstanding the shield provisions of Regulation .23 of this chapter, a person responsible for a source that the person contends is subject to a general permit is subject to an enforcement action for operating without a Part 70 permit if it is determined that the source does not qualify for the general permit.

D. General permits may not be authorized for affected sources under the acid rain program unless otherwise provided in regulations promulgated under Title IV of the Clean Air Act.

E. The owner or operator of a Part 70 source that qualifies for a general permit may apply to the Department for coverage under the terms of a general permit.

F. The Department may in a general permit provide for applications and procedures to identify those sources that are subject to that permit that differ from the application requirements of Regulations .02 and .03 of this chapter if these applications and procedures meet the requirements of Title V of the Clean Air Act and include all information necessary to determine qualification for and to assure compliance with the general permit.

G. The Department may grant an application for a determination that a general permit applies to a particular source without repeating the notice, comment, and review procedures of Regulations .07—.12 of this chapter. However, such a grant may not be a final permit action for the purpose of judicial review.

H. A response to each general permit application may not be provided. The general permit may specify a reasonable period of time after which an application is deemed approved and the applicant may operate under the general permit.

I. The applicant for a general Part 70 permit may be issued an individual permit or a letter or other document indicating that the application has been approved or denied.

J. If the Department provides an individual response, as provided in §H of this regulation, the permittee shall retain that response and make it available on request to authorized officials of the Department.

K. An applicant for and a permittee subject to a general permit is subject to the requirements of COMAR 26.11.02.16 and shall pay the annual fee in accordance with COMAR 26.11.02.17—.19.

L. Notwithstanding any other provision of this chapter, the provisions of Regulations .14—.19 of this chapter, regarding revisions, apply to a general permit.

#### Regulation .22 Part 70 Permits for Temporary Sources.

*COMAR 26.11.03.22*

A. A temporary source is a Part 70 source that the applicant intends to relocate from one site to another site at least once during the term of the permit. The owner or operator of a temporary source that is required to obtain a Part 70 permit, under Regulation .01 of this chapter, shall apply for the Part 70 permit in accordance with the requirements of this chapter.

B. The Department may issue a single Part 70 permit that authorizes operation of a temporary source at multiple sites.

C. The Department may not issue a permit as a temporary source to an affected source under the acid rain program.

D. Part 70 permits for temporary sources shall include:

  (1) Conditions to assure compliance with all applicable requirements of the Clean Air Act at all authorized sites;

  (2) A requirement that the owner or operator notify the Department at least 10 days in advance of each change in site;

  (3) State-only enforceable conditions that assure compliance with all other applicable requirements of the State air pollution control law; and

  (4) Conditions that assure compliance with all other provisions of this regulation.

E. The owner or operator of a temporary source shall create and maintain records of the duration of its stay at a site, in addition to the other records required under this subtitle.

#### Regulation .23 Permit Shield in Part 70 Permits.

*COMAR 26.11.03.23*

A. Except as provided in this chapter, the Department may expressly include in a Part 70 permit a provision stating that compliance with the federally enforceable conditions of the permit is deemed to be in compliance with all applicable requirements of the Clean Air Act as of the date of permit issuance.

B. The permit shield shall cover only the following:

  (1) Applicable requirements of the Clean Air Act that are included and are specifically identified in the permit; and

  (2) Any applicable requirement of the Clean Air Act specifically identified by the Department as being not applicable to the source, but only if the permit includes that determination or a summary of the determination.

C. The permit shield does not apply to terms and conditions of a permit that were based on erroneous information submitted by the permittee in its application.

D. A Part 70 permit that does not expressly state that a permit shield exists is not subject to the shield.

E. This regulation or a Part 70 permit does not alter or affect the following:

  (1) The emergency order provisions of §303 of the Clean Air Act, including the authority of the EPA under that section;

  (2) The liability of an owner or operator of a source for a violation of an applicable requirement of the Clean Air Act before or when a permit is issued or for a violation that continues after issuance;

  (3) The requirements of the acid rain program, consistent with §408(a) of the Clean Air Act;

  (4) The ability of the Department or the EPA to obtain information from a source pursuant to Maryland law and §114 of the Clean Air Act; or

  (5) The authority of the Department to enforce an applicable requirement of the State air pollution control law that is not an applicable requirement of the Clean Air Act.

F. The permit shield does not apply to and is not affected by any conditions in a Part 70 permit designated as “State-only enforceable”.

### Chapter 04 — Ambient Air Quality Standards

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1980 (7:12 Md. R. 1148)

**Administrative History:** Regulation .01 amended effective January 18, 1982 (8:25 Md. R. 1995)

**Administrative History:** Regulation .01B amended effective July 2, 1985 (12:11 Md. R. 1050)

**Administrative History:** For the history of this subtitle before June 18, 1980, see the Administrative History of COMAR 26.11.01.

**Administrative History:** Chapter recodified from COMAR 10.18.04 to COMAR 26.11.04

**Administrative History:** Regulation .01C amended effective February 17, 1992 (19:3 Md. R. 306)

**Administrative History:** Regulation .01 amended, Regulation .02 adopted, and Regulations .01—.07 under COMAR 26.11.03 recodified as Regulations .03—.09 under COMAR 26.11.04 Ambient Air Quality Standards effective May 8, 1995 (22:9 Md. R. 648)

**Administrative History:** The following is a history of Regulations .03—.09 before May 8, 1995, as codified under COMAR 26.11.03.01—.07:

**Administrative History:** Regulation .01 amended effective October 14, 1985 (12:18 Md. R. 1766)

**Administrative History:** Regulation .04 amended effective January 5, 1988 (14:24 Md. R. 2555)

**Administrative History:** Regulation .08 repealed effective October 14, 1985 (12:18 Md. R. 1766)

**Administrative History:** Chapter recodified from COMAR 10.18.03 to COMAR 26.11.03

**Administrative History:** Regulation .01 amended effective March 21, 1989 (16:3 Md. R. 347)

**Administrative History:** Regulation .02 amended effective March 21, 1989 (16:3 Md. R. 347)

**Administrative History:** Regulation .03 amended effective February 28, 2005 (32:4 Md. R. 411)

**Administrative History:** Regulation .04 amended effective February 28, 2005 (32:4 Md. R. 411)

**Administrative History:** Regulation .05 amended effective February 28, 2005 (32:4 Md. R. 411)

**Administrative History:** Regulation .07 amended effective February 28, 2005 (32:4 Md. R. 411)

**Administrative History:** Regulation .08 amended effective February 28, 2005 (32:4 Md. R. 411)

**Administrative History:** Chapter revised effective September 17, 2012 (39:18 Md. R. 1197)

#### Regulation .01 State Ambient Air Quality Standards — Fluorides.

*COMAR 26.11.04.01*

A. “Fluorides” means any matter containing the element fluorine in a combined form.

B. Ambient air quality standards for fluorides are those concentrations in the ambient air or in other substances which result in the following values being exceeded:

  (1) Field Crops. Field crops at any stage or growth may not exceed 35 micrograms F per gram dry tissue in washed samples.

  (2) Forage.

    (a) Running averages of 12 monthly samples of forage or hay or silage grown in the area as feed may not exceed 35 micrograms F per gram dry tissue in unwashed samples.

    (b) The average of any 2 consecutive months' samples of forage or hay or silage grown in the area as feed may not exceed 60 micrograms F per gram dry tissue in unwashed samples.

    (c) A monthly sample of forage or hay or silage grown in the area as feed may not exceed 80 micrograms F per gram dry tissue in unwashed samples.

  (3) Fruit Trees, Berries, and Other Commercial Crops. Fully expanded functional leaves may not exceed 50 micrograms F per gram dry tissue in washed samples.

  (4) Deciduous Trees and Shrubs. Fully expanded functional leaves may not exceed 100 micrograms F per gram dry tissue in washed samples.

  (5) Conifers and Evergreen Trees and Shrubs. Fully expanded leaves or needles of the current year may not exceed 50 micrograms F per gram dry tissue in washed samples. Leaves and needles of prior seasons may not exceed 75 micrograms F per gram dry tissue in washed samples.

  (6) Grasses and Herbs. Grasses and herbs not subject to browsing, grazing, or harvest for use in feeds or food may not exceed 150 micrograms F per gram dry tissue in washed samples.

  (7) Ornamental Planting. Ornamental plants, except trees, shrubs, and turf where §B(4)—(7) applies, may not exceed 40 micrograms F per gram dry tissue in fully expanded leaves in washed samples at any period during the growing season.

  (8) Other Values. If it considers vegetation sampling to be not practicable, the Department may assume unsatisfactory conditions exist when either:

    (a) Static limed filter paper samples of 28 to 32 days exposure exceed 2 micrograms F per 100 square centimeters per day for a yearly average of monthly samples; or

    (b) Gaseous fluorides exceed 1.2 micrograms F per cubic meter of air in any 24 hour sample or any 72 hour average exceeds 0.4 microgram F per cubic meter of air.

C. Monitoring and Measurement of Fluoride. The methodologies to be used for the monitoring and measurement of fluoride shall be those specified in Method 1005 of the Department's Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” (January 1991), which is incorporated by reference in COMAR 26.11.01.04C.

#### Regulation .02 Ambient Air Quality Standards, Definitions, Reference Conditions, and Methods of Measurement.

*COMAR 26.11.04.02*

For the purposes of this chapter, the ambient air quality standards, definitions, reference conditions, and methods of measurement are those specified in 40 CFR Parts 50, 51, 53, and 58, as amended.

### Chapter 05 — Air Pollution Episode System

**Authority:** Environment Article, Title 2, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1980 (7:12 Md. R. 1148)

**Administrative History:** For the history of this subtitle before June 18, 1980, see the Administrative History of COMAR 26.11.01.

**Administrative History:** Tables codified as Regulation .06

**Administrative History:** Chapter recodified from COMAR 10.18.05 to COMAR 26.11.05

**Administrative History:** Regulation .01 amended effective June 18, 1990 (17:9 Md. R. 1092)

**Administrative History:** Regulation .02B, C amended effective June 18, 1990 (17:9 Md. R. 1092)

**Administrative History:** Regulation .03A amended effective June 18, 1990 (17:9 Md. R. 1092)

**Administrative History:** Regulation .03B amended effective March 21, 1989 (16:3 Md. R. 347); June 18, 1990 (17:9 Md. R. 1092)

**Administrative History:** Regulation .03D amended effective June 18, 1990 (17:9 Md. R. 1092)

**Administrative History:** Regulation .05 amended effective June 18, 1990 (17:9 Md. R. 1092)

#### Regulation .01 Definitions.

*COMAR 26.11.05.01*

A. “Air Stagnation Advisory (ASA)” means a forecasted atmospheric stagnation that is expected to last 36 hours or more.

B. “Atmospheric stagnation” means a measure of the inability of the atmosphere to adequately dilute and disperse pollutants emitted into it, based on values of specific meteorological parameters of the microscale, mesoscale, and macroscale features, and which satisfies the criteria established by the National Meteorological Center set forth in Environmental Science Service Administration Technical Memorandum WBTM-NMC 47 published by the Department of Commerce, May, 1970.

C. “Chemical and allied products industries” means establishments engaged in the manufacture of:

  (1) Basic chemicals such as acids, alkalies, salts, industrial gases, and organic chemicals;

  (2) Chemical products to be used in further manufacturing such as synthetic fibers, plastics, dry colors, and pigments;

  (3) Finished chemical products to be used for ultimate consumption such as drugs, cosmetics, soap, paints, fertilizers, and explosives (Standard Industrial Classification, Major Group 28).

D. “Emergency” means a sudden, unexpected, and unforeseen condition of such public gravity and exigency as to require immediate action, or a condition which is predicted with reasonable certainty to require immediate action to carry out the purposes of this subtitle.

E. “Glass, clay and concrete products industries” means establishments engaged in the manufacture of glass, glassware, textile fibers, glass insulation, wool, structured clay products, concrete products, gypsum and plastic products, lime abrasives, and asbestos (Standard Industrial Classification, Major Group 32).

F. “Paper and allied products industries” means establishments engaged in manufacturing wood pulp from wood or other materials and the manufacture of paper, paperboard, and building paper (Standard Industrial Classification, Major Group 26).

G. “Petroleum refining and related industries” means establishments engaged in petroleum refining, the manufacture of paving and roofing materials from petroleum products, and compounding paving and building materials and petroleum products (Standard Industrial Classification, Major Group 29).

H. “Pollutant Standards Index (PSI)” means a standardized reporting system for advising the public of possible adverse health effects due to air pollution. PSI is a reporting tool that converts measured air pollutant concentrations to a simple number on a scale of 0 to 500. A level of 100 on the PSI scale corresponds to the National Ambient Air Quality Standard for ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide, or particulate matter. Only the highest PSI is reported for any one period. The levels between 0 and 100 correspond to a percentage of the standard, while the levels between 100 and 500 are uniform intervals between the National Ambient Air Quality Standard and the “significant harm level”, as defined by the U.S. Environmental Protection Agency.

I. “Primary metals industries” means establishments engaged in the:

  (1) Smelting, refining, sintering, and alloying of ferrous and nonferrous metals from ore, pig or scrap; and

  (2) Manufacture of castings, forging, powdered metals, and other basic products of ferrous and nonferrous metals, including the production of coke (Standard Industrial Classification, Major Group 33).

J. “Special Dispersion Statement (SDS)” means a forecasted atmospheric stagnation that is expected to last more than 12 hours but less than 36 hours.

#### Regulation .02 General Requirements.

*COMAR 26.11.05.02*

A. An air pollution episode system establishes standards and procedures to be followed whenever pollution of the air has the potential of reaching an emergency condition if allowed to go unchecked.

B. Whenever the Governor, the Secretary, or the Secretary's designee determines that the accumulation of air pollution may attain, is attaining, or has attained a level or levels considered injurious to human health, conditions of air pollution designated as Standby Watch, Health Advisory, Alert, Warning, and Emergency shall be declared. In making a determination, the Governor, the Secretary, or the Secretary's designee shall be guided by criteria defined in Regulation .03 of this chapter.

C. To assure compliance with this chapter, sources designated by the Secretary or the Secretary's designee shall submit standby emission reduction plans in accordance with Regulation .04 of this chapter. In accordance with the standby emission reduction plans, standby orders as specified in Regulation .05 of this chapter shall be implemented as a designated level is reached.

D. Nothing contained in these regulations shall be construed as allowing, permitting, or maintaining an emission from any installation in the State to be subject to a lesser degree of control as may be required for existing or new regulations adopted by the Secretary.

E. During air pollution episodes, sources having an interstate air pollution potential shall be governed by the following:

  (1) Air pollution emissions within the jurisdiction of the State shall be controlled to the extent that neighboring state requirements are not compromised.

  (2) Provisions of these regulations shall apply to installations within the State when a receptor state demonstrates, to the satisfaction of the Secretary, that a source or sources within Maryland is substantially affecting established emergency episode criteria in the receptor state.

#### Regulation .03 Air Pollution Episode Criteria.

*COMAR 26.11.05.03*

A. A condition justifying the proclamation of a Standby Watch, Health Advisory, Alert, Warning, or Emergency shall be deemed to exist whenever the Governor, the Secretary, or the Secretary's designee determines that the accumulation of air pollutants in any place, locality, county, or other area in the State may attain, is attaining, or has attained levels which, if sustained or exceeded, would lead to a threat to the health of the public. In making this determination, the Secretary or his designee shall be guided by the specified conditions in §§B, C, and D, of this regulation.

B. Episode Criteria.

  (1) Standby Watch Stage. The Department shall declare a standby watch stage whenever one or more of the following conditions exists:

    (a) Forecasted meteorological conditions that are expected to last at least 12 hours and may inhibit pollutant dispersion or increase pollutant concentration.

    (b) A Special Dispersion Statement (SDS) has been issued by the Department.

    (c) An Air Stagnation Advisory (ASA) has been issued by the Department. Upon declaration of an Air Stagnation Advisory, the Department shall make a public announcement of this declaration within 2 hours.

    (d) Measured air pollutant concentrations exceed a PSI of 83.

  (2) Health Advisory Stage. The Department shall declare a Health Advisory when measured air pollutant concentrations cause the PSI to exceed 100.

  (3) Alert Stage. An Alert shall be declared by the Secretary or his designee when any one or more of the following pollutant levels in §B(3)(c), of this regulation, is attained concurrent with:

    (a) A judgment by the Department that the pollutant level is representative of air quality in a significant portion of the region. The Department shall consult the air pollution control agencies of the affected jurisdictions to help evaluate local situations.

    (b) Meteorological conditions are such that pollutant dispersion is expected to be inhibited for 12 or more hours.

    (c) Pollutant levels:

  (4) Warning Stage. A Warning shall be declared by the Secretary or his designee when any one or more of the following pollutant levels in §B(4)(c), of this regulation, is attained concurrent with:

    (a) A judgment by the Department that the pollutant level is representative of air quality in a significant portion of the region. The Department shall consult the air pollution control agencies of the affected jurisdictions to help evaluate local situations.

    (b) Meteorological conditions are such that pollutant dispersion is expected to be inhibited for 12 or more hours.

    (c) Pollutant levels:

  (5) Emergency Stage. An Emergency shall be declared by the Governor when any one or more of the following pollutant levels in §B(5)(c), of this regulation, is attained concurrent with:

    (a) A judgment by the Department that the pollutant level is representative of air quality in a significant portion of the region. The Department shall consult the air pollution control agencies of the affected jurisdictions to help evaluate local situations.

    (b) Meteorological conditions are such that this condition can be expected to continue for 12 or more hours.

    (c) Pollutant levels:

  (6) Termination. Termination of all stages of the Air Pollution Episode System shall be called by the Secretary or his designee or by the Governor based on:

    (a) Consultation with the federal or Department meteorologist which indicates that the atmospheric conditions justify termination; and

    (b) Appropriate reduction in pollutant levels below the Alert Stage criteria.

C. An episode condition has been reached if ambient air quality is measured to be in excess of the designated levels at any monitoring site in the State, except when elevated pollution levels exist in an area that may be reduced by controlling emissions from one or a few individual sources contributing to the condition. The localized condition shall be known as an incident, and the involved individual sources shall be subject to the same provisions as listed for the abatement of episodes.

D. All episode stages may be activated on the basis of deteriorating air quality alone; that is, an atmospheric stagnation forecast need not be in effect. (Subject to the conditions specified in §B(2), (3), (4), and (5) of this regulation.)

#### Regulation .04 Standby Emission Reduction Plans.

*COMAR 26.11.05.04*

A. When requested by the Department, any person responsible for the operation of an installation specifically identified in Table I, II, or III of this chapter shall prepare in writing, standby emission reduction plans, consistent with good industrial practice and safe operating procedures, for reducing emissions creating air pollution during periods of Alert, Warning, and Emergency. Standby emission reduction plans shall be designed to reduce or eliminate emissions in accordance with the objectives set forth in Tables I, II, and III as applicable.

B. When requested by the Department, any person responsible for the operation of a source of emissions not specifically identified under §A shall prepare, in writing, standby emission reduction plans, consistent with good industrial practice and safe operating procedures, for reducing emissions creating air pollution during periods of Alert, Warning, and Emergency. Standby emission reduction plans shall be designed to reduce or eliminate emissions in accordance with the objectives set forth in Tables I, II, and III as applicable.

C. Standby emission reduction plans as required in §§A and B, of this regulation, shall be in writing and show the source of emissions, the approximate amount of reduction of emissions to be achieved, the time necessary to achieve the reduction after being notified to implement the plan, and a description of the manner in which the reduction will be achieved during an Alert, Warning, and Emergency period in accordance with the objectives set forth in Tables I, II, and III. These plans shall be submitted in the form specified by the Department.

D. During a condition of Alert, Warning, or Emergency, standby emission reduction plans as required by this regulation shall be made immediately available on the premises to any person authorized to enforce regulations promulgated under terms of the Air Quality Control Act.

E. Standby emission reduction plans as required by this regulation shall be submitted to the Department upon request within 30 days of receipt of the request. Standby emission reduction plans shall be subject to review and approval by the Department. If, in the opinion of the Department, the standby emission reduction plans do not carry out the objectives set forth in Tables I, II, and III, the Department may disapprove of the standby emission reduction plans, state its reason for disapproval, and recommend specific amendments to the proposed standby emission reduction plans. The revised plans shall be resubmitted within a time period specified by the Department.

F. Any person aggrieved by an order requiring the preparation of a revised plan shall be entitled to a hearing, upon written request filed within 10 days after the receipt of the order. When a hearing is requested by the aggrieved, it shall be held pursuant to Environment Article, §2-605, Annotated Code of Maryland.

G. If any person fails to submit a standby emission reduction plan within the time period specified, or if, in the opinion of the Department, a submitted plan does not carry out the objectives set forth in Tables I, II, and III, the Department shall promulgate such standby emission reduction as will meet the objectives set forth in Tables I, II, and III. The plan shall thereafter be the standby emission reduction plan which the person responsible shall put into effect upon the declaration by the Secretary or the Governor of an air pollution Alert, Warning, or Emergency.

#### Regulation .05 Control Requirements and Standby Orders.

*COMAR 26.11.05.05*

The following are standby orders which are hereby established according to specific action stages of the Air Pollution Episode System which may be deemed appropriate for use by the Secretary or the Governor upon the declaration that the specified stage has been reached. When announced by the Secretary or the Governor, through public communications media or otherwise, that the specified stage of the Air Pollution Episode System exists, the following respective actions shall be taken when requested in the geographical areas included in the episode announcement:

A. Standby Watch Stage and Health Advisory Stage. Specified open burning and all public insecticide and herbicide spraying shall cease, if so requested by the cognizant local government control officer in public announcements or otherwise.

B. Alert Stage.

  (1) Open burning or public pesticide or herbicide spraying may not be carried on.

  (2) All on-site incineration shall be eliminated.

  (3) Any person responsible for a source of air pollution as set forth in Table I in Regulation .06 shall take all Alert Stage actions as required for the source of air pollution, and shall particularly put into effect the standby emission reduction plan for an Alert Stage. These persons shall prepare to put into effect the standby emission reduction plan for an air pollution Warning.

C. Warning Stage.

  (1) Open burning or public pesticide or herbicide spraying may not be carried on.

  (2) All incineration shall be eliminated.

  (3) Any person responsible for a source of air pollution as set forth in Table II in Regulation .06 shall take all Warning Stage actions as required for the source of air pollution, and shall particularly put into effect the standby emission reduction plan for a Warning Stage. These persons shall prepare to put into effect the standby emission reduction plan for an air pollution Emergency.

D. Emergency Stage.

  (1) The Governor shall announce that an air pollution Emergency has been declared and specify appropriate action to be taken. Radio and television stations shall be requested to repeat the declaration at least once per hour.

  (2) Open burning or public pesticide or herbicide spraying may not be carried on.

  (3) All incineration shall be eliminated.

  (4) Any person responsible for the operation of a source of air pollution as set forth in Table III in Regulation .06 shall take all Emergency Stage actions as specified for the source of air pollution, and shall particularly put into effect the standby emission reduction plans for an air pollution Emergency stage.

  (5) All manufacturing establishments except those included in §D(4) of this regulation shall institute action that will eliminate or result in maximum reduction of emissions from their operations by ceasing, curtailing, or postponing operations which cause emissions, to the extent possible without causing injury to persons or damage to equipment.

  (6) All places of business, employment, and education described below shall immediately cease operations, unless special permission is obtained from a police officer or a governmental public health agency:

    (a) Mining and quarrying of nonmetallic materials;

    (b) All contract construction work except that which must proceed to avoid physical harm, hazardous conditions, or excessive economic loss;

    (c) Wholesale trade establishments, that is, places of business primarily engaged in selling merchandise to retailers, to industrial, commercial, institutional, or professional users, or to other wholesalers, or agents in buying merchandise for or selling merchandise to those persons or companies;

    (d) All offices of federal, local, county, and State government, except to the extent that the offices must continue to operate in order to carry out the requirements of this plan, and those offices which provide essential services for maintenance of public health and safety;

    (e) All retail trade establishments except pharmacies and stores primarily engaged in the sale of foods;

    (f) Banks, credit agencies other than banks, securities and commodities brokers, dealers, exchanges and services, offices or insurance carriers, agents, and brokers, real estate offices;

    (g) Wholesale and retail laundries, laundry services and cleaning and drying establishments, photographic studios, beauty shops, barber shops, and shoe repair shops;

    (h) Advertising offices, consumer credit reporting, adjustment and collection agencies, duplicating, addressing, blueprinting, photocopying, mailing list, and stenographic services, equipment rental services, garages;

    (i) All wholesale and retail handling of gasoline;

    (j) Establishments rendering amusement and recreation services including motion picture theaters;

    (k) Elementary and secondary schools, colleges, universities, professional schools, junior colleges, vocational schools, public and private libraries;

    (l) Others deemed necessary to protect the public health and welfare and as announced by the Governor.

  (7) All aircraft shall be grounded with the exception of emergency flights.

  (8) A person may not use a motor vehicle, with the exception of emergency and governmental vehicles. Persons will be allowed to return to their residences from work or locations other than their residences and to make other trips essential to protect health and safety.

  (9) Rail, bus, and ship travel and all other forms of transportation shall be regulated and halted, where possible, and appropriate times for curtailing or ceasing operations allowed.

  (10) Sources of pollution involved in military training, smoke school training, fire department training, rocket fuel testing, etc. shall be stopped.

  (11) Every person shall do such acts or refrain from such acts as shall be specified in the Governor's declaration that an air pollution Emergency exists and as shall be specified in other announcements made or authorized by the Governor.

#### Regulation .06 Tables.

*COMAR 26.11.05.06*

A. Table IEMISSION REDUCTION OBJECTIVES FOR THE ALERT STAGE*
          
          
            Source of Emissions
            Alert Stage Actions
          
        
        
          
            (1) Coal or oil-fired electrical power generating facilities
            (a) Substantial reduction of emissions by utilizing fuels having low ash and sulfur content (use gaseous fuels where possible) (b) Substantial reduction of emissions by diverting loads to electric power generating facilities outside of Alert area
          
          
            (2) Coal or oil-fired steam producing facilities having a capacity to burn in excess of 4 tons (3630 kilograms) of coal per hour or 600 gallons (2.34 cubic meters) of fuel oil per hour
            (a) Substantial reduction of emissions by utilization of fuels having low ash and sulfur content (use gaseous fuels where possible) (b) Substantial reduction of steam load demands consistent with continuing plant operations
          
          
            (3) Manufacturing industries of the following classification which employ more than 20 employees at any one location:      Standard Industrial Classification, Major Groups         26 Paper and allied products industry         28 Chemical and allied products industry         29 Petroleum refining and related industry         32 Glass, clay, and concrete products         33 Primary metal industry
            (a) Substantial reduction of emissions from manufacturing operations by curtailing, postponing, or deferring production and allied operations (b) Substantial reduction of emissions by deferring by-product or trade waste disposal processes which emit air pollution (c) Substantial reduction of heat load demands
          
          
            (4) On-site incineration
            Stop all incineration except that resulting from public collection of refuse
          
          
            (5) Any source of air pollutants, not covered above, upon written request of the Department may be required to submit standby plans describing emission cutbacks to be taken if an Alert is called
            All possible substantial reductions consistent with requirements for safety of people and preservation of property

* Actions specified under source of emissions categories 1, 2, 3, and 4 are primarily for control of particulate matter and/or oxides of sulfur emissions, and will be instituted only when the Alert stage is called for these pollutants, unless otherwise specified in a specific emission reduction plan.

B. Table IIEMISSION REDUCTION OBJECTIVES FOR THE WARNING STAGE*
          
          
            Source of Emissions
            Warning Stage Actions
          
        
        
          
            (1) Coal or oil-fired electrical power generating facilities
            (a) Maximum reduction of emissions to provide essential power needs by utilization of fuels having lowest ash and sulfur content (use gaseous fuels where possible)(b) Maximum reduction of emissions by diverting electric power generation to facilities outside of Warning area
          
          
            (2) Coal or oil-fired steam producing facilities having a capacity to burn  in excess of 4 tons (3630 kilograms) of coal per hour or 600 gallons (2.34 cubic meters) of fuel oil per hour
            (a) Substantial reduction of emissions by utilization of fuels having low ash and sulfur content (use gaseous fuels where possible)(b) Substantial reduction of steam load demands consistent with continuing plant operations

(3) Manufacturing industries of the following classification which employ more than 20 employees at any one location:      Standard Industrial Classification, Major Groups         26 Paper and allied products industry         28 Chemical and allied products industry         29 Petroleum refining and related industry          32 Glass, clay, and concrete products         33 Primary metal industry
            (a) Maximum reduction of emissions by utilization fuels having the lowest available ash and sulfur content (use gaseous fuels where possible)(b) Maximum reduction of heat and steam demands to absolute necessities consistent with preventing equipment damage(c) Make ready for emergency action if Emergency stage declared
          
          
            (4) Refuse incinerators
            Complete elimination of the use of all incinerators
          
          
            (5) Any source of air pollutants, not covered above, upon  written request of the Department may be required to submit standby plans describing emission cutbacks to be taken if an Alert is called
            Maximum reduction possible consistent with requirements for safety of people and preservation of property

* Actions specified under source of emissions categories 1, 2, 3, and 4 are primarily for control of particulate matter and/or oxides of sulfur emissions, and will be instituted only when the Warning stage is called for these pollutants, unless otherwise specified in a specific emissions reduction plan.

C. Table IIIEMISSION REDUCTION OBJECTIVES FOR THE EMERGENCY STAGE*
          
          
            Source of Emissions
            Emergency Stage Actions
          
        
        
          
            (1) Coal or oil-fired electric power generating facilities
            (a) Maximum reduction of emissions to provide essential power needs by utilization of fuels having lowest ash and sulfur content (use gaseous fuels where possible)(b) Maximum reduction of emissions by diverting electric power generation to facilities outside of Emergency area
          
          
            (2) Coal or oil-fired steam producing facilities having a capacity to burn in excess 4 tons (3630 kilograms) of coal per hour or 600 gallons (2.34 cubic meters) of fuel oil per hour
            (a) Maximum reduction of heat and steam demands to absolute necessities consistent with preventing equipment damage(b) Take actions called for in the Emergency portions of the standby emission reduction plan
          
          
            (3) Manufacturing industries of the following classification which employ more than 20 employees at any one location:    Standard Industrial Classification, Major Groups         26 Paper and allied products industry         28 Chemical and allied products industry         29 Petroleum refining and related industry          32 Glass, clay, and concrete products          33 Primary metal industry
            (a) Elimination of emissions from manufacturing operations by ceasing, curtailing, postponing, or deferring production and allied operations to the extent possible without causing injury to persons or damage to equipment(b) Elimination of emissions from by-product or trade waste disposal processes which emit air pollutionc) Maximum reduction of heat load demand
          
          
            (4) Refuse incinerators
            Complete elimination of the use of all incinerators
          
          
            (5) All standby emission reduction plans required by the Department and not already in effect or described above, shall be implemented

* Actions specified under source of emissions categories 1, 2, 3, and 4 are primarily for control of particulate matter and/or oxides of sulfur emissions and will be instituted only when the Emergency stage is called for these pollutants, unless otherwise specified in a specific emissions reduction plan.

### Chapter 06 — General Emission Standards, Prohibitions, and Restrictions

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1980 (7:12 Md. R. 1148)

**Administrative History:** Regulation .01 amended effective August 16, 1983 (10:14 Md. R. 1262)

**Administrative History:** Regulation .01B, D amended effective June 8, 1981 (8:9 Md. R. 800)

**Administrative History:** Regulation .02 amended effective December 3, 1984 (11:22 Md. R. 1899)

**Administrative History:** Regulation .02C amended effective January 5, 1988 (14:24 Md. R. 2555)

**Administrative History:** Regulations .02D amended effective October 10, 1981 (8:18 Md. R. 1480); February 10, 1984 (10:26 Md. R. 2341)

**Administrative History:** Regulation .03B amended effective October 10, 1981 (8:18 Md. R. 1480); July 2, 1985 (12:11 Md. R. 1049)

**Administrative History:** Regulation .03C amended effective October 10, 1981 (8:18 Md. R. 1480

**Administrative History:** Regulation .03D amended effective January 5, 1988 (14:24 Md. R. 2555)

**Administrative History:** Regulation .04 repealed and new Regulation .04 adopted effective January 5, 1988 (14:24 Md. R. 2555)

**Administrative History:** Regulation .06A repealed effective June 8, 1981 (8:9 Md. R. 800)

**Administrative History:** Regulation .06 repealed and new Regulation .06 adopted effective August 16, 1983 (10:14 Md. R. 1262)

**Administrative History:** Regulation .06A amended effective August 19, 1984 (11:14 Md. R. 1250)

**Administrative History:** Regulation .06B amended effective August 10, 1987 (14:14 Md. R. 1572)

**Administrative History:** Regulation .06E adopted effective August 10, 1987 (14:14 Md. R. 1572)

**Administrative History:** Regulation .07 repealed and new Regulation .07 adopted effective February 10, 1984 (10:26 Md. R. 2341)

**Administrative History:** Regulation .07C amended effective July 2, 1985 (12:11 Md. R. 1049)

**Administrative History:** Regulation .11D amended effective August 16, 1983 (10:14 Md. R. 1262)

**Administrative History:** Regulation .12 amended effective June 8, 1981 (8:9 Md. R. 800); August 16, 1983 (10:14 Md. R. 1263); December 3, 1984 (11:22 Md. R. 1899); October 14, 1985 (12:18 Md. R. 1766); August 11, 1986 (13:13 Md. R. 1492); January 5, 1988 (14:24 Md. R. 2555)

**Administrative History:** Regulation .13 amended effective June 8, 1981 (8:9 Md. R. 800); repealed effective February 25, 1983 (10:1 Md. R. 30)

**Administrative History:** Regulation .14 adopted effective July 10, 1981 (8:11 Md. R. 974)

**Administrative History:** Regulation .14 amended effective January 5, 1988 (14:24 Md. R. 2555)

**Administrative History:** Tables codified as Regulation .16

**Administrative History:** For the history of this subtitle before June 18, 1980, see the Administrative History of COMAR 26.11.01.

**Administrative History:** Chapter recodified from COMAR 10.18.06 to COMAR 26.11.06

**Administrative History:** Regulation .01 adopted effective May 8, 1991 (18:6 Md. R. 688)

**Administrative History:** Regulation .02A amended effective August 11, 1997 (24:16 Md. R. 1160); November 11, 2002 (29:22 Md. R. 1724); November 24, 2003 (30:23 Md. R. 1653)

**Administrative History:** Regulation .02B amended effective July 3, 1995 (22:13 Md. R. 969)

**Administrative History:** Regulation .02C amended effective November 11, 2002 (29:22 Md. R. 1724)

**Administrative History:** Regulation .03C amended effective November 11, 2002 (29:22 Md. R. 1724)

**Administrative History:** Regulation .05A amended effective November 11, 2002 (29:22 Md. R. 1724)

**Administrative History:** Regulation .05B, C amended effective September 22, 1997 (24:19 Md. R. 1343)

**Administrative History:** Regulation .06A amended effective May 8, 1991 (18:6 Md. R. 688); April 26, 1993 (20:8 Md. R. 726); June 30, 1997 (24:13 Md. R. 932)

**Administrative History:** Regulation .06B amended effective May 8, 1991 (18:6 Md. R. 688); April 26, 1993 (20:8 Md. R. 726)

**Administrative History:** Regulation .06E amended effective May 8, 1991 (18:6 Md. R. 688); April 26, 1993 (20:8 Md. R. 724); May 8, 1995 (22:9 Md. R. 648)

**Administrative History:** Regulation .07B amended effective February 17, 1992 (19:3 Md. R. 306); February 15, 1993 (20:3 Md. R. 260)

**Administrative History:** Regulation .07C amended effective August 19, 1991 (18:16 Md. R. 1813); February 17, 1992 (19:3 Md. R. 306)

**Administrative History:** Regulation .11 amended effective March 21, 1989 (16:3 Md. R. 347); May 8, 1991 (18:6 Md. R. 688)

**Administrative History:** Regulation .11 repealed effective April 26, 1993 (20:8 Md. R. 724)

**Administrative History:** Regulation .12 amended effective September 26, 1988 (15:17 Md. R. 2049); March 31, 1991 (18:4 Md. R. 450); February 17, 1992 (19:3 Md. R. 306); June 20, 1994 (21:12 Md. R. 1064); June 30, 1997 (24:13 Md. R. 932); October 16, 2000 (27:20 Md. R. 1842); December 10, 2001 (28:24 Md. R. 2130); November 24, 2003 (30:23 Md. R. 1653); September 12, 2005 (32:18 Md. R. 1521); October 8, 2007 (34:20 Md. R. 1741); March 5, 2012 (39:4 Md. R. 339)

**Administrative History:** Regulation .14 amended effective March 21, 1989 (16:3 Md. R. 347); March 31, 1991 (18:4 Md. R. 450); February 17, 1992 (19:3 Md. R. 306); June 20, 1994 (21:12 Md. R. 1064); May 8, 1995 (22:9 Md. R. 647); June 30, 1997 (24:13 Md. R. 932); October 16, 2000 (27:20 Md. R. 1842); December 10, 2001 (28:24 Md. R. 2130); November 24, 2003 (30:23 Md. R. 1653); June 16, 2008 (35:12 Md. R. 1121); July 16, 2009 (36:14 Md. R. 985)

**Administrative History:** Regulation .14B amended as an emergency provision effective January 2, 2011 (38:4 Md. R. 263); amended permanently effective May 16, 2011 (38:10 Md. R. 617)

**Administrative History:** Regulation .14B amended effective March 5, 2012 (39:4 Md. R. 339); July 8, 2013 (40:13 Md. R. 1076)

#### Regulation .01 Definitions.

*COMAR 26.11.06.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Installation”, for the purpose of Regulation .06 of this chapter, means an installation as defined in COMAR 26.11.01.01 that can operate independently and that causes VOC emissions to the atmosphere. If equipment at a premises does not operate independently but operates as part of a process line, the process line is considered to be the installation.

  (2) “Process line” means a combination of equipment that operates as a unit to perform a specific function, which either generates VOC or to which VOC is added, and which discharges VOC to the atmosphere through one or more discharge points.

#### Regulation .02 Visible Emissions.

*COMAR 26.11.06.02*

A. General Exceptions.

  (1) The visible emission standards set forth in §C of this regulation, do not apply to emissions from the installations or sources listed below:

    (a) The burning of wood in fireplaces;

    (b) Open fires (except salamanders) permitted under provisions of COMAR 26.11.07.03, .04, and .05;

    (c) Fugitive emissions from iron and steel production installations in compliance with COMAR 26.11.10.03B;

    (d) Fugitive emissions from metallurgical, slot-type, byproduct coke ovens in compliance with COMAR 26.11.10.03C;

    (e) Emissions from grain drying and grain-handling installations in compliance with COMAR 26.11.18.03;

    (f) Fugitive emissions from skull cracker oxygen lancing in compliance with COMAR 26.11.10.04C;

    (g) Fugitive emissions from batch-type hot-dip galvanizing installations in compliance with COMAR 26.11.12.04;

    (h) Confined emissions from glass melting furnaces and fugitive emissions from forming and post-forming equipment in compliance with COMAR 26.11.25.03;

    (i) Emissions from food preparation installations subject to COMAR 26.11.18.06;

    (j) Emissions at a federal facility or other facility under contract with a federal facility that result from testing, training, or demonstrations of explosives, obscurant materials, propellants, or other incendiary devices; or

    (k) Sources in compliance with Regulation .03C and D of this chapter.

  (2) The visible emissions standards in §C of this regulation do not apply to emissions during start-up and process modifications or adjustments, or occasional cleaning of control equipment, if:

    (a) The visible emissions are not greater than 40 percent opacity; and

    (b) The visible emissions do not occur for more than 6 consecutive minutes in any 60 minute period.

B. Case-by-Case Exception to Visible Emissions Standards.

  (1) Except as provided in §B(5) of this regulation, a person who owns or operates an existing installation subject to a visible emissions standard in §C of this regulation may request an exception. The request shall be submitted to the Department in writing and shall include the following:

    (a) A description of the installation and all associated air pollution control devices;

    (b) Process information, including operating parameters and the substances that cause or the substances that are suspected of causing the visible emissions;

    (c) A demonstration, based on stack tests, a material balance, or other method of equivalent certainty that all other applicable regulations are met when the visible emissions occur;

    (d) An analysis of any methods that may be available to reduce the visible emissions, the cost effectiveness of the methods, and the economic burden that would result from the use of these methods; and

    (e) Any other information requested by the Department and relating to its determination to grant or deny an exception.

  (2) The application for an exception to a visible emissions standard will be processed as follows:

    (a) Within 10 working days, the Department will acknowledge receipt of an application for an exception to a visible emissions standard.

    (b) Within 60 days after receipt of a completed application, the Department shall notify the applicant of its intent to proceed with the application or deny the request. The Department will make a determination to proceed if the conditions in §B(2)(c)(i)—(iii) and (d) of this regulation are met.

    (c) Conditions.

      (i) The applicant has provided an adequate demonstration that the installation for which a visible emissions exception is requested meets all other applicable air pollution control requirements within this subtitle when the visible emissions occur.

      (ii) The applicant has demonstrated to the satisfaction of the Department that complying with the applicable visible emission standard would cause an unreasonable economic burden.

      (iii) The applicant has demonstrated to the satisfaction of the Department that the applicant has sufficient control of the installation to be capable of meeting an alternative visible emission limit established by the Department.

    (d) Test Methods. A person shall demonstrate compliance with all other applicable regulations, as required by §B(1)(c) of this regulation, through the use of:

      (i) Applicable federally approved test methods in the Department's TM 91-01 “Test Methods and Equipment Specifications for Stationary Sources”, which is incorporated by reference in COMAR 26.11.01.04C; or

      (ii) Other compliance methods required under this subtitle that are federally enforceable.

    (e) Test Methods for Visible Emissions. Compliance with any visible emissions or opacity standard in this subtitle, including any alternative opacity standard established pursuant to this section, shall be determined using applicable federally approved test methods in the Department's TM 91-01 “Test Methods and Equipment Specification for Stationary Sources”, which is incorporated by reference in COMAR 26.11.01.04C, or any other applicable federally approved test method.

  (3) Opportunity for Public Comment.

    (a) Within 10 days after notification by the Department of a determination to proceed, the applicant shall notify the public, by local notice and by prominent advertisement in at least one newspaper of general circulation in the region where the applicant's source is located, of the opportunity to comment on the application.

    (b) The advertisement shall be made at the applicant's expense and in a format approved by the Department, and shall include a summary of all the information in the application that was considered by the Department.

  (4) Final Action on a Request for an Application.

    (a) The Department will make a final determination on the application after considering any public comments.

    (b) If an exception is granted, the Department will issue an order which establishes an alternative opacity standard applicable to the installation receiving the exception. The order may also include any conditions or requirements determined by the Department to be necessary to insure continuous compliance with the alternative standard.

    (c) Exceptions may not be granted for a period of more than 5 years and may be renewed. In requesting a renewal of a visible emissions exception, the applicant shall submit an application and satisfy all the requirements in this regulation that relate to an initial exception request, including the opportunity for public comment required in §B(3) of this regulation.

  (5) The Department or control officer may bypass the procedure above and may grant exceptions to visible emission requirements if the:

    (a) Application of a visible emission requirement to a residential building housing two or fewer families creates undue economic hardship on individuals residing in it; or

    (b) Equipment's primary way of transferring heat is by the radiant method rather than a piped fluid system such as forced hot air, hot water, or steam. Equipment in this category would include stoves, room heaters, floor or wall-mounted circulating heaters, or similar devices.

C. Visible Emission Standards.

  (1) In Areas I, II, V, and VI a person may not cause or permit the discharge of emissions from any installation or building, other than water in an uncombined form, which is greater than 20 percent opacity.

  (2) In Areas III and IV a person may not cause or permit the discharge of emissions from any installation or building, other than water in an uncombined form, which is visible to human observers.

#### Regulation .03 Particulate Matter.

*COMAR 26.11.06.03*

A. Calculations. All calculations of particulate matter emissions shall be made in terms of grains per standard cubic foot (milligrams per standard cubic meter) of dry exhaust gas (gr/SCFD) (mg/dscm).

B. Particulate Matter from Confined Sources.

  (1) Areas I, II, V and VI.

    (a) Installations Constructed On or After January 17, 1972. A person may not cause or permit particulate matter to be discharged from any installation constructed on or after January 17, 1972 in excess of 0.05 gr/SCFD (115 mg/dscm).

    (b) Installations Constructed Before January 17, 1972.

      (i) A person may not cause or permit particulate matter to be discharged from any installation constructed before January 17, 1972 in excess of the values determined from Table 1. When the process weight per hour falls between two values in the table, the maximum weight discharged per hour shall be determined by linear interpolation. When the process weight exceeds 60,000 pounds (27,200 kilograms) per hour, the maximum allowable weight discharged per hour will be determined by use of the following equation:

      (ii) For those processes in which the process weight per hour exceeds 60,000 pounds (27,200 kilograms), the maximum allowable weight of particulate matter discharged per hour may exceed that calculated by the above equation provided that the concentration of particulate matter in the gases discharged to the atmosphere is less than 0.05 gr/SCFD (115 mg/dscm).

    (c) Exception. For any premises for which the Department determines that compliance with §B(1)(a) will cause or exacerbate a violation of the National Ambient Air Quality Standards or Federal Prevention of Significant Deterioration increments, the applicable emission standard is 0.03 gr/SCFD (68.7 mg/dscm).

  (2) Areas III and IV.

    (a) A person may not cause or permit to be discharged into the outdoor atmosphere from any other installation, particulate matter in excess of 0.03 gr/SCFD (68.7 mg/dscm).

    (b) Exceptions. Section B(2)(a) does not apply to the following:

      (i) Iron and steel production installations;

      (ii) Glass melting furnaces in compliance with COMAR 26.11.25.

C. Particulate Matter from Unconfined Sources.

  (1) A person may not cause or permit emissions from an unconfined source without taking reasonable precautions to prevent particulate matter from becoming airborne. These reasonable precautions shall include, when appropriate as determined by the Department, the installation and use of hoods, fans, and dust collectors to enclose, capture, and vent emissions. In making this determination, the Department shall consider technological feasibility, practicality, economic impact, and the environmental consequences of the decision.

  (2) Exceptions. The following are exempt from the provisions of §C(1):

    (a) Iron and steel production installations which are subject to COMAR 26.11.10.04B and C;

    (b) Grain drying and grain handling installations;

    (c) Batch-type hot-dip galvanizing installations which are subject to COMAR 26.11.12.

D. Particulate Matter from Materials Handling and Construction. A person may not cause or permit any material to be handled, transported, or stored, or a building, its appurtenances, or a road to be used, constructed, altered, repaired, or demolished without taking reasonable precautions to prevent particulate matter from becoming airborne. These reasonable precautions shall include, but not be limited to, the following when appropriate as determined by the control officer:

  (1) Use of water or chemicals for control of dust in the demolition of existing buildings or structures, construction operations, the grading of roads, or the clearing of land.

  (2) Application of asphalt, oil, water, or suitable chemicals on dirt roads, materials stockpiles, and other surfaces which can create airborne dusts.

  (3) Installation and use of hoods, fans, and dust collectors to enclose and vent the handling of dusty materials. Adequate containment methods shall be employed during sandblasting of buildings or other similar operations.

  (4) Covering, at all times when in motion, open-bodied vehicles transporting materials likely to create air pollution. Alternate means may be employed to achieve the same results as would covering the vehicles.

  (5) The paving of roadways and their maintenance in clean condition.

  (6) The prompt removal from paved streets of earth or other material which has been transported there by trucks or earth moving equipment or erosion by water.

#### Regulation .04 Carbon Monoxide in Areas III and IV.

*COMAR 26.11.06.04*

A. Applicability and Exceptions.

  (1) This regulation is applicable only in Areas III and IV.

  (2) This regulation applies to any person who owns or operates any installation that discharges carbon monoxide gas at a rate exceeding 500 pounds (227 kilograms) per day and at a concentration exceeding 12 percent by volume.

  (3) This regulation does not apply to any person who owns or operates:

    (a) Coking process equipment used directly in the manufacture of metallurgical coke by the pyrolysis of coal in the absence of air;

    (b) Process equipment subject to COMAR 26.11.11.04B; or

    (c) Installations subject to COMAR 26.11.10.06.

  (4) A person is exempt from the requirements of this regulation if he demonstrates to the satisfaction of the Department that the:

    (a) Gas mixture containing the carbon monoxide will not support combustion due to the presence of noncombustible gases; and

    (b) Carbon monoxide emissions will not cause or contribute to a violation of the National Ambient Air Quality Standard or Prevention of Significant Deterioration requirement for carbon monoxide.

B. General Requirements.

  (1) A person may not cause or permit the discharge of carbon monoxide gas into the atmosphere from any installation unless it is burned in a direct flame afterburner with excess oxygen for at least 0.3 second at a temperature of at least 1,300°F.

  (2) The direct flame afterburner shall be equipped with a properly functioning recording pyrometer located and positioned in the work area so that it is readily visible to the operator of the installation.

#### Regulation .05 Sulfur Compounds from Other than Fuel-Burning Equipment.

*COMAR 26.11.06.05*

A. General Conditions. All calculations of emissions governed by this regulation shall be adjusted to standard conditions and 7 percent oxygen. “PPM” means parts per million by volume.

B. Areas I, II, V and VI.

  (1) A person may not cause or permit the discharge into the atmosphere from installations other than fuel-burning equipment of gases containing more than 500 ppm of sulfur dioxide. Installations constructed before January 17, 1972, are limited to not more than 2,000 ppm sulfur dioxide.

  (2) A person may not cause or permit the discharge into the atmosphere from installations other than fuel-burning equipment of gases containing sulfuric acid, sulfur trioxide, or any combination of them greater than 35 milligrams per cubic meter reported as sulfuric acid. Any installation constructed before January 17, 1972, is limited to not more than 70 milligrams per cubic meter of sulfuric acid, sulfur trioxide, or any combination of them, reported as sulfuric acid.

C. Areas III and IV.

  (1) A person may not cause or permit the discharge into the atmosphere from installations other than fuel-burning equipment of gases containing more than 500 ppm of sulfur dioxide. Installations constructed before February 21, 1971, are limited to not more than 2,000 ppm sulfur dioxide.

  (2) A person may not cause or permit the discharge into the atmosphere from installations other than fuel-burning equipment of gases containing sulfuric acid, sulfur trioxide, or any combination of them, greater than 35 milligrams per cubic meter reported as sulfuric acid. Any installation constructed before February 21, 1971, is limited to not more than 70 milligrams per cubic meter of sulfuric acid, sulfur trioxide, or any combination of them, reported as sulfuric acid.

D. Exceptions. The Secretary may authorize the operation of a scavenger or recovery plant to reclaim sulfur compounds which would otherwise be emitted into the air, provided the operation of the scavenger or recovery plant would reduce total emissions of sulfur compounds at least 95 percent with the plant in operation, compared to emissions when the plant is not operating. This authorization may result in emissions of sulfur compounds whose concentrations exceed those permitted by §§B and C of this regulation. This section does not apply to sulfuric acid manufacturing operations.

#### Regulation .06 Volatile Organic Compounds.

*COMAR 26.11.06.06*

A. Applicability.

  (1) The provisions of this regulation do not apply to the following:

    (a) Tar heaters;

    (b) Coke ovens;

    (c) Operations subject to the provisions of COMAR 26.11.08, 26.11.09, 26.11.11, 26.11.13, and 26.11.19.02G;

    (d) Installations or sources that are subject to COMAR 26.11.19, beginning with Regulation .03; and

    (e) Installations subject to an emissions limitation which specifies the lowest achievable emission rate for VOC under COMAR 26.11.17.03B(2).

  (2) The requirements of §B of this regulation apply to any person that discharges or causes to be discharged VOC with a vapor pressure greater than 0.002 pound per square inch (0.013 kilonewton/square meter) absolute.

B. Control of VOC from Installations.

  (1) The following requirements apply in Baltimore City and Anne Arundel, Baltimore, Carroll, Harford, Howard, Montgomery, and Prince George's counties:

    (a) Installations Constructed Before May 12, 1972. A person may not cause or permit the discharge of VOC from any installation constructed before May 12, 1972 in excess of 200 pounds (90.7 kilograms) per day unless the discharge is reduced by 85 percent or more overall.

    (b) Installations Constructed On or After May 12, 1972. Except as provided in §E of this regulation, a person may not cause or permit the discharge of VOC from any installation constructed on or after May 12, 1972, in excess of 20 pounds (9.07 kilograms) per day unless the discharge is reduced by 85 percent or more overall.

  (2) The following requirements apply in Calvert, Cecil, Charles, and Frederick counties:

    (a) Installations Constructed Before November 15, 1992. A person may not cause or permit the discharge of VOCs from any installation constructed before November 15, 1992 in excess of 200 pounds (90.7 kilograms) per day unless the discharge is reduced by 85 percent or more overall.

    (b) A person who owns or operates an existing installation that is not in compliance with §B(2)(a) of this regulation shall submit a plan for compliance for approval by the Department. The plan for compliance shall be submitted not later than April 15, 1993 and include an expeditious schedule of compliance so that compliance is achieved not later than May 15, 1995.

    (c) Installations Constructed On or After November 15, 1992. Except as provided in §E of this regulation, a person may not cause or permit the discharge of VOC from any installation constructed on or after November 15, 1992 in excess of 20 pounds (9.07 kilograms) per day unless the discharge is reduced by 85 percent or more overall.

  (3) Compliance with §B(1) and (2) of this regulation may be achieved by the following:

    (a) Use of an air pollution control system that is demonstrated to achieve 85 percent overall control, using approved test methods as referenced in COMAR 26.11.19;

    (b) Use of waterborne materials that have a total VOC content of less than 25 percent by volume as applied; or

    (c) Other operating or production limitations or process modifications that maintain emissions below the applicable limits established in §B(1) and (2) of this regulation.

C. VOC-Water Separators. A person may not cause or permit the discharge of VOC from single or multiple compartment VOC-water separators that receive effluent water containing 200 gallons (757 liters) of VOC or more per day with a true vapor pressure of 1.5 psi (10 kilonewtons/square meter) or greater unless one or more of the following vapor control devices are properly installed and operated:

  (1) A floating roof resting on the surface of the liquid equipped with a closure seal, or seals, to close the space between the roof edge and tank wall. All tank gauging and sampling devices shall be gas tight except when in use.

  (2) A vapor recovery system capable of collecting the VOC emitted from the tank and disposing of the VOC so as to prevent discharge to the atmosphere. All tank gauging and sampling devices shall be gas tight except when in use.

  (3) Other equally effective devices as approved by the Department.

D. VOC Disposal.

  (1) Applicability and Exemptions.

    (a) This section applies to any person that disposes of or treats waste containing VOC in the outside atmosphere in a manner that may cause evaporation of greater than 20 pounds per day.

    (b) This section does not apply to:

      (i) The operation of a municipal waste water treatment plant; and

      (ii) The disposal of waste in a landfill in accordance with the requirements established by the Waste Management Administration.

  (2) General Requirements. A person may not treat or dispose of waste containing VOC in a manner that results in evaporation of greater than 20 pounds per day VOC to the atmosphere.

E. Exceptions.

  (1) A person who proposes to construct an installation that is not subject to NSR Source requirements in COMAR 26.11.17 and who is unable to comply with the requirements of §§B(1)(b) or B(2)(c) of this regulation, may request an exception from the Department.

  (2) A person may request an exception under this section by submitting an application to the Department in writing. A completed application for an exception shall include the following:

    (a) A detailed description of the proposed installation and any associated air pollution control devices;

    (b) A description of the intended use of the installation, its maximum rated capacity, and the capacity for which a permit is requested, if different from the maximum rated capacity;

    (c) A description of VOC emission points and an estimate of the VOC emissions from each emission point, along with calculations and supporting data;

    (d) A description of the air pollution control methods or equipment that may be available to achieve compliance with §§B(1)(b) or B(2)(c) of this regulation, the cost of the equipment or control methods, and information showing why the control methods are not reasonable for this installation;

    (e) A description of the operating procedures, production rate controls, or other methods that shall be used to meet an alternative VOC emission standard if an exception is granted; and

    (f) Other information that is requested by the Department and that relates to the Department's determination to grant or deny an exception to the requirements of §§B(1)(b) or B(2)(c) of this regulation.

  (3) The Department may grant an exception to §§B(1)(b) or B(2)(c) of this regulation if it determines that:

    (a) Control methods, if any, necessary to meet the requirements of §§B(1)(b) or B(2)(c) are not reasonable for the installation;

    (b) The applicant has the ability to operate and maintain the equipment and has the production controls necessary to meet the alternative VOC emission standard established by the Department instead of the requirements of §§B(1)(b) or B(2)(c); and

    (c) Emissions from the installation will not interfere with reasonable further progress if the exception is granted.

  (4) Procedures to be Used to Process an Application for an Exception and to Establish an Alternative Emission Standard.

    (a) The Department will acknowledge receipt of an application for an exception within 10 working days after receiving the application.

    (b) Not later than 90 days after receiving a completed application for an exception, the Department will complete its review and either:

      (i) Deny the request for an exception because it does not meet the requirements of §E(3) of this regulation; or

      (ii) Make a determination to proceed with the exception and establish an alternative VOC emission standard in accordance with the procedures in §E(4)(c)—(h) of this regulation.

    (c) A determination to proceed with the exception will be proposed as a departmental order and permit to construct setting forth the alternative VOC emission standard, including any conditions determined by the Department to be necessary.

    (d) An applicant who is aggrieved by the Department's determination may request a contested case hearing before the Department. Any hearing under this paragraph will be held in accordance with the State Administrative Procedure Act.

    (e) If the applicant does not request reconsideration of the Department's determination to proceed with an exception, the Department will schedule a public hearing on the exception. The applicant shall publish a prominent advertisement in at least one newspaper of general circulation in the area concerned notifying the public of the hearing. The notice shall be made at the applicant's expense and in a form stipulated by the Department.

    (f) The notice shall be placed not later than 10 days after the Department makes its determination to proceed with the exception and at least 30 days before the scheduled hearing.

    (g) The hearing required by §E(4)(e) of this regulation satisfies the requirement for an opportunity for public comment or hearing on the permit to construct application under COMAR 26.11.02.09—.14.

    (h) If no information is presented at the hearing that would affect the issuance of the exception, and if the Department has no other basis for denying the exception, the Order and the permit will be issued not later than 10 days after the conclusion of the hearing.

  (5) The Department shall submit an exception to the U.S. Environmental Protection Agency for approval as a revision to the State Implementation Plan.

#### Regulation .07 Control of Sources of Fluoride Emissions.

*COMAR 26.11.06.07*

A. Definitions.

  (1) “Anode bake plant” means a facility which produces carbon anodes for use in a primary aluminum production plant.

  (2) “Potline” means a building or buildings which contain potrooms with electrolytic cells electrically in series.

  (3) “Potroom” means a group of electrolytic cells in which aluminum is produced.

  (4) “Primary aluminum production plant” means a facility manufacturing aluminum by electrolytic reduction.

  (5) “Total fluoride” means elemental fluorine and all fluoride compounds measured by the Department's procedures referenced in this regulation.

B. Control of Sources of Fluoride Emissions.

  (1) General Requirements.

    (a) A person may not cause or permit the discharge of fluorides into the atmosphere that causes a violation of any applicable ambient air quality standards for fluorides set forth in COMAR 26.11.04.

    (b) The Department, after written notice to a person discharging fluorides to the atmosphere, may require the person to conduct a surveillance program to determine whether ambient air quality standards for fluorides are violated. The manner, scope, and duration of the surveillance program will be determined by the Department.

    (c) The procedures for measuring total fluorides shall be Method 1010 of the Department's Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” (January 1991), which is incorporated by reference in COMAR 26.11.01.04C.

  (2) Emission Standards for Primary Aluminum Production Plants. A person may not cause or permit the operation of any primary aluminum production plant unless the plant is equipped with a control system to achieve the following emission standards:

    (a) Potline Emissions. The amount of total fluorides discharged from all potlines may not exceed a quarterly average of 2.5 pounds per ton of aluminum produced as determined by the procedures in §C of this regulation.

    (b) Anode Bake Plant Emissions. The amount of total fluorides discharged from an anode bake plant may not exceed a quarterly average of 0.1 pound per ton of aluminum produced as determined by the procedures in §C of this regulation.

C. Testing and Determination of Compliance.

  (1) Testing Requirements.

    (a) All testing shall be conducted in accordance with the procedures established in COMAR 26.11.01.04C.

    (b) Potline dry scrubber control systems shall be tested at a frequency of at least one stack per dry scrubber per month. Each stack on a dry scrubber control system shall be tested at least once within any 6-month period.

    (c) Emissions from the potroom roof monitors shall be tested at a frequency of at least two emission points per potroom per month. The emission points to be tested within each potroom shall be alternated each quarter until all emission points are tested and then the procedure repeated.

    (d) The anode bake oven control system stack shall be tested once per quarter.

  (2) Determination of Compliance for Primary Aluminum Production Plants. Compliance with the requirements of §B(2)(a) of this regulation shall be determined as follows:

    (a) TF = total plant potline emissions of total fluoride in pounds of fluorides per ton of aluminum produced per quarter;

    (b) d = number of days of operation per quarter;

    (c) a = the average of the dry scrubber emission rates for all potlines in pounds/day as determined using Method 14 of Appendix A of the Department's Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” (January 1991), which is incorporated by reference in COMAR 26.11.01.04C.

    (d) f = the average number of dry scrubbers in use for all potlines during the quarter;

    (e) b = the average rate of emissions of the roof monitor emission points for all potlines in use during the quarter in pounds/day as determined using Method 14 of Appendix A of the Department's Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” (January 1991), which is incorporated by reference in COMAR 26.11.01.04C;

    (f) s = the average number of roof monitor emission points in use for all potlines during the quarter;

    (g) C = the total tons of aluminum produced by all potlines during the quarter.

D. Maintenance of Records.

  (1) The owner or operator of a primary aluminum production plant shall submit to the Department within 60 days following the effective date of this regulation a procedure describing the method of determining aluminum production.

  (2) All data pertaining to the surveillance program required by §B(1) of this regulation shall be submitted to the Department in a manner and schedule approved by the Department. Stack testing data for total fluorides as required by §C(1) of this regulation shall be maintained and made available to the Department upon request.

#### Regulation .08 Nuisance.

*COMAR 26.11.06.08*

An installation or premises may not be operated or maintained in such a manner that a nuisance or air pollution is created. Nothing in this regulation relating to the control of emissions may in any manner be construed as authorizing or permitting the creation of, or maintenance of, nuisance or air pollution.

#### Regulation .09 Odors.

*COMAR 26.11.06.09*

A person may not cause or permit the discharge into the atmosphere of gases, vapors, or odors beyond the property line in such a manner that a nuisance or air pollution is created.

#### Regulation .10 Refuse Burning Prohibited in Certain Installations.

*COMAR 26.11.06.10*

A person may not burn refuse in any plant, installation, or equipment not specifically designed, constructed, or modified for that purpose.

#### Regulation .11 Repealed.

*COMAR 26.11.06.11*

#### Regulation .12 Control of NSPS Sources.

*COMAR 26.11.06.12*

A person may not construct, modify, or operate, or cause to be constructed, modified, or operated, a New Source Performance Standard (NSPS) source as defined in COMAR 26.11.01.01B(23), which results or will result in violation of the provisions of 40 CFR 60, as amended.

#### Regulation .13 Repealed.

*COMAR 26.11.06.13*

#### Regulation .14 Control of PSD Sources.

*COMAR 26.11.06.14*

A. Definition.

  (1) In the following provisions, “Administrator” has the meaning set forth in §A(2) of this regulation:

    (a) 40 CFR §52.21(b)(3)(iii)(a), (17), (37)(i) and (iii), (43), (48)(ii), (50)(i), (51);

    (b) 40 CFR §52.21(g)(1), (2), (4), (5), and (6);

    (c) 40 CFR §52.21(i)(1)(x);

    (d) 40 CFR §52.21(l)(2);

    (e) 40 CFR §52.21(o)(3);

    (f) 40 CFR §52.21(p)(1) and (2);

    (g) 40 CFR §52.21(s);

    (h) 40 CFR §52.21(t); and

    (i) 40 CFR §52.21(u)(1)(3) and (4).

  (2) Term Defined. “Administrator” means the Administrator of the United States Environmental Protection Agency.

B. General Requirements.

  (1) A person may not construct, modify, or operate, or cause to be constructed, modified, or operated, a Prevention of Significant Deterioration (PSD) source, as defined in COMAR 26.11.01.01B(37), which will result in violation of any provision of 40 CFR §52.21, as amended.

  (2) The reviewing authority is the Department instead of the Administrator unless otherwise specified in 40 CFR §52.1116, and the applicable procedures are those set forth in COMAR 26.11.02.

#### Regulation .15 Nitrogen Oxides from Nitric Acid Plants.

*COMAR 26.11.06.15*

A person may not cause or permit the discharge into the atmosphere from any nitric acid plant, nitrogen oxides in excess of 3 pounds per ton (1.50 kilograms per 1000 kilograms) of acid (100 percent basis) produced.

#### Regulation .16 Tables.

*COMAR 26.11.06.16*

Table 1 Maximum Allowable Weight of Particulate Matter Discharged Per Hour
          
          
            ProcessWt/hr(lbs)
            MaximumWeightDisch/hr(lbs)
            ProcessWt/hr(lbs)
            MaximumWeightDisch/hr(lbs)
            ProcessWt/hr(lbs)
            MaximumWeightDisch/hr(lbs)
          
        
        
          
            50 or less
            0.24
            1900
            4.03
            4700
            6.45
          
          
            100
            0.46
            2000
            4.14
            4800
            6.52
          
          
            150
            0.66
            2100
            4.24
            4900
            6.60
          
          
            200
            0.85
            2200
            4.34
            5000
            6.67
          
          
            250
            1.03
            2300
            4.44
            5500
            7.03
          
          
            300
            1.20
            2400
            4.55
            6000
            7.37
          
          
            350
            1.35
            2500
            4.64
            6500
            7.71
          
          
            400
            1.50
            2600
            4.74
            7000
            8.05
          
          
            450
            1.63
            2700
            4.84
            7500
            8.39
          
          
            500
            1.77
            2800
            4.92
            8000
            8.71
          
          
            550
            1.89
            2900
            5.02
            8500
            9.03
          
          
            600
            2.01
            3000
            5.10
            9000
            9.36
          
          
            650
            2.12
            3100
            5.18
            9500
            9.67
          
          
            700
            2.24
            3200
            5.27
            10000
            10.00
          
          
            750
            2.34
            3300
            5.36
            11000
            10.63
          
          
            800
            2.43
            3400
            5.44
            12000
            11.28
          
          
            850
            2.53
            3500
            5.52
            13000
            11.89
          
          
            900
            2.62
            3600
            5.61
            14000
            12.50
          
          
            950
            2.72
            3700
            5.69
            15000
            13.13
          
          
            1000
            2.80
            3800
            5.77
            16000
            13.74
          
          
            1100
            2.97
            3900
            5.85
            17000
            14.36
          
          
            1200
            3.12
            4000
            5.93
            18000
            14.97
          
          
            1300
            3.26
            4100
            6.01
            19000
            15.58
          
          
            1400
            3.40
            4200
            6.08
            20000
            16.19
          
          
            1500
            3.54
            4300
            6.15
            30000
            22.22
          
          
            1600
            3.66
            4400
            6.22
            40000
            28.30
          
          
            1700
            3.79
            4500
            6.30
            50000
            34.30
          
          
            1800
            3.91
            4600
            6.37
            60000 *
            40.00
          
          
            Relates to Regulation .03B.
          
          
            *Process weight in excess governed by equation presented in
          
          
            Regulation .03B(2).

Table 1 BMaximum Allowable Weight of Particulate MatterDischarged Per Hour (SI Units)
          
          
            ProcessWeightkg/hr
            MaximumDischargeWeight(kg/hr)
            ProcessWeight(kg/hr)
            MaximumDischargeWeight(kg/hr)
          
        
        
          
            22.7 or less
            .11
            1500
            2.43
          
          
            25.0
            .12
            1550
            2.47
          
          
            50
            .23
            1600
            2.51
          
          
            75
            .325
            1650
            2.56
          
          
            100
            .417
            1700
            2.60
          
          
            125
            .505
            1750
            2.64
          
          
            150
            .585
            1800
            2.68
          
          
            175
            .661
            1850
            2.72
          
          
            200
            .728
            1900
            2.75
          
          
            225
            .798
            1950
            2.79
          
          
            250
            .859
            2000
            2.82
          
          
            275
            .918
            2050
            2.86
          
          
            300
            .975
            2100
            2.90
          
          
            325
            1.03
            2150
            2.94
          
          
            350
            1.08
            2200
            2.97
          
          
            375
            1.13
            2250
            3.01
          
          
            400
            1.17
            2500
            3.19
          
          
            425
            1.22
            2750
            3.36
          
          
            450
            1.26
            3000
            3.53
          
          
            475
            1.32
            3250
            3.70
          
          
            500
            1.36
            3500
            3.87
          
          
            550
            1.42
            3750
            4.03
          
          
            600
            1.49
            4000
            4.19
          
          
            650
            1.56
            4250
            4.35
          
          
            700
            1.63
            4500
            4.51
          
          
            750
            1.69
            4750
            4.67
          
          
            800
            1.75
            5000
            4.83
          
          
            850
            1.81
            5500
            5.15
          
          
            900
            1.87
            6000
            5.47
          
          
            950
            1.92
            6500
            5.76
          
          
            1000
            1.97
            7000
            6.08
          
          
            1050
            2.02
            7500
            6.38
          
          
            1100
            2.07
            8000
            6.69
          
          
            1150
            2.12
            8500
            6.99
          
          
            1200
            2.17
            9000
            7.30
          
          
            1250
            2.21
            10000
            7.90
          
          
            1300
            2.26
            15000
            10.9
          
          
            1350
            2.30
            20000
            14.0
          
          
            1400
            2.34
            25000
            16.9
          
          
            1450
            2.38
            27216*
            18.14
          
        
        
          
            *Larger amounts governed by equation presented in Regulation .03B(2).

This table relates to Regulation .03B.

### Chapter 07 — Open Fires

**Authority:** Environment Article, Title 2, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1980 (7:12 Md. R. 1148)

**Administrative History:** Regulation .05 amended effective February 10, 1984 (10:26 Md. R. 2341)

**Administrative History:** For the history of this subtitle before June 18, 1980, see the Administrative History of COMAR 26.11.01.

**Administrative History:** Chapter recodified from COMAR 10.18.07 to COMAR 26.11.07

**Administrative History:** Regulations .01—.05 amended effective May 22, 1995 (22:10 Md. R. 709)

**Administrative History:** Regulation .01B amended effective August 11, 1997 (24:16 Md. R. 1160)

**Administrative History:** Regulation .03B amended effective August 11, 1997 (24:16 Md. R. 1160)

**Administrative History:** Regulation .06 adopted effective August 11, 1997 (24:16 Md. R. 1160)

#### Regulation .01 Definitions.

*COMAR 26.11.07.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Excessive lodging” means a condition of farmland where embedding of the previous crop causes the normal use of harvesting, tillage, or planting equipment to be impossible or impracticable.

  (2) “Forest resource management practices” means the technical application of scientific objectives that conserve, protect, and enhance the quality, quantity, productivity, and biological diversity of the forest resources of Maryland.

  (3) “Open fire” means a fire where any material is burned in the open or in a receptacle other than a furnace, incinerator, or other equipment connected to a stack or chimney.

  (4) “Public collection of refuse” means the service provided by any governmental agency or commercial enterprise for the pickup on a regularly scheduled basis of refuse from groups of individual homes, businesses, apartment buildings, or other establishments.

  (5) “Safety determinations” means the testing, training, or demonstrations with explosives, propellants, incendiaries, or military devices involving an open flame.

#### Regulation .02 General.

*COMAR 26.11.07.02*

A person may not cause or permit an open fire except as provided in Regulations .03—.05 of this chapter.

#### Regulation .03 Control Officer May Authorize Certain Open Fires.

*COMAR 26.11.07.03*

A. In Allegany, Caroline, Dorchester, Garrett, Kent, Queen Anne's, Somerset, St. Mary's, Talbot, Washington, Wicomico, and Worcester counties:

  (1) Subject to review by the Department, the control officer, upon receipt of an application made on forms provided by the Department or local fire control agency, may issue or approve a permit in writing allowing an open fire, provided all of the following conditions are met:

    (a) The control officer is satisfied that there is no practical alternate method to dispose of the material to be burned or to conduct the desired activities;

    (b) A hazardous condition or air pollution or nuisance will not be created;

    (c) Fire control laws or regulations of other governmental agencies will not be violated;

    (d) Materials which produce dense smoke when burned, including, but not limited to, tires and roofing material, will not be burned;

    (e) The material to be burned shall have originated on the premises on which it is to be burned;

  (2) The control officer may impose other conditions to minimize creation of smoke, to prevent nuisances and air pollution, and to protect the health, safety, comfort, and property of any persons.

B. In Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles, Frederick, Harford, Howard, Montgomery, and Prince George's counties and Baltimore City during the period September 1 through May 31 of the following year:

  (1) Subject to review by the Department, the control officer, upon receipt of an application made on forms provided by the Department or local fire control agency, may issue or approve a permit in writing allowing an open fire, provided all of the following conditions are met:

    (a) The control officer is satisfied that there is no practical alternate method for the disposal of the material to be burned or to conduct the desired activity;

    (b) A hazardous condition or air pollution or nuisance will not be created;

    (c) In Anne Arundel, Baltimore, Carroll, Harford, Howard, Montgomery, and Prince George's counties and Baltimore City, burning may not be done within 500 yards (457 meters) of one or more occupied buildings or heavily travelled public roadway;

    (d) Fire control laws or regulations of other governmental agencies will not be violated;

    (e) Materials which produce dense smoke when burned, including, but not limited to, tires and roofing material, will not be burned,

    (f) All other conditions the control officer may impose to minimize creation of smoke, to prevent nuisances and air pollution, and to protect the health, safety, comfort, and property of any persons shall be satisfied;

    (g) The material to be burned shall have originated on the premises on which it is to be burned;

  (2) The following exceptions apply:

    (a) Methods of disposal by burning acceptable to the Department may be approved for use when distance limitations cannot be met;

    (b) A permit may be granted for fires set in the course of agricultural operations in growing crops or raising fowl or animals or in accepted forestry practice, when distance limitations cannot be met; this provision may not be construed as allowing the burning of ordinary household or barnyard trash in areas where provision is made for public collection of refuse.

C. Prohibition on Open Burning.

  (1) In Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles, Frederick, Harford, Howard, Montgomery, and Prince George's counties and Baltimore City, open burning is prohibited during the period from June 1 through August 31 of each year, beginning June 1, 1995.

  (2) Exceptions. The provisions of §C(1) of this regulation do not apply to:

    (a) Cooking of food on other than commercial premises or cooking of food which is subject to COMAR 26.11.18.06;

    (b) Open fires for recreational purposes such as campfires;

    (c) Fires authorized under Regulation .04 of this chapter.

#### Regulation .04 Public Officers May Authorize Certain Fires.

*COMAR 26.11.07.04*

Public officers, in the performance of their official duties, may set an open fire or give permission for an open fire, with concurrence of the control officer, if:

A. All reasonable means are employed to minimize smoke; and

B. The fire is necessary for one or more of the following reasons or purposes:

  (1) For the prevention of a fire hazard that cannot be abated by other means;

  (2) For the instruction of public fire fighters or industrial employees under supervision of the appropriate fire control official;

  (3) For the protection of public health or safety when other means for disposing of hazardous waste materials are not available including the burning of hazardous waste authorized under federal law or COMAR 26.13.02.07;

  (4) For burning pest-infested crops or products and agricultural burning that is necessary for animal disease control;

  (5) For good forest resource management practices as approved by the Department of Natural Resources-Forest Service;

  (6) For burning excessive lodging for the purpose of recropping as approved by the Department of Agriculture or local extension offices;

  (7) For the purpose of testing fire fighter training systems fueled by natural gas or propane provided that the:

    (a) Source maintains records of the total amount of fuel used and the date of the open fire,

    (b) Total combined fuel usage for all systems at the premises does not exceed 5,000 gallons of propane and natural gas combined per week, and

    (c) Open fire does not constitute a major source of VOC or NOx.

#### Regulation .05 Open Fires Allowed Without Authorization of Control Officer or Public Officer.

*COMAR 26.11.07.05*

A. Except as provided in Regulation .03C of this chapter, in Allegany, Calvert, Caroline, Cecil, Charles, Dorchester, Garrett, Frederick, Kent, Queen Anne's, Somerset, St. Mary's, Talbot, Washington, Wicomico, and Worchester counties, open fires, in conformance with other governmental fire control ordinances and provided no nuisance or air pollution is created, are allowed without permission under Regulation .03 or .04 of this regulation as follows:

  (1) In those areas where no provision is made for public collection of leaves, burning of leaves originating on the premises, by householders, is permitted, provided that leaves are not burned at locations closer than 200 feet (61 meters) from any neighboring habitable dwelling or place where people work or congregate;

  (2) In those areas where no provision is made for public collection of refuse, burning of ordinary household trash originating on the premises, excluding commercial establishments, by householders is permitted provided that:

    (a) Materials are not burned which create dense smoke (emissions of greater than 40 percent opacity); and

    (b) Refuse may not be burned at locations closer than 200 feet (61 meters) from any neighboring habitable dwelling or place where people work or congregate;

  (3) Cooking of food on other than commercial premises or cooking of food which is subject to COMAR 26.11.18.06;

  (4) Fires set in the course of agricultural operations in growing crops or raising fowl or animals or in accepted forestry practice; this provision may not be construed as allowing the burning of ordinary household or barnyard trash in areas where provision is made for public collection of refuse;

  (5) Recreational purposes, such as campfires;

  (6) Oil or gas fired salamanders or similar devices designated specifically for space heating or warming outdoor workers, etc., provided no visible emissions are created;

  (7) Warming fires for outdoor workers, provided smoke emissions are not darker in shade or appearance than those designated as greater than 40 percent opacity, and the fires are located no closer than 200 feet (61 meters) from any neighboring habitable building.

B. In Anne Arundel, Baltimore, Carroll, Harford, Howard, Montgomery, and Prince George's counties and Baltimore City and during the period from September 1 of any year through May 31 of the following year, open fires otherwise conforming to other governmental fire control ordinances, provided no nuisance or air pollution is created, are allowed without permission under Regulation .03 or .04 of this chapter as follows:

  (1) In those areas where no provision is made for public collection of leaves, the open burning of leaves originating on the premises, by householders, is permitted, provided that no nuisance is created and that the fires are located no closer than 300 feet (91.4 meters) from any neighboring habitable dwelling or place where people work or congregate;

  (2) In those areas where no provision is made for public collection of refuse, burning of ordinary household trash originating on the premises, excluding commercial establishments, by householders is permitted provided that:

    (a) Materials are not burned which create dense smoke (emissions of greater than 40 percent opacity);

    (b) The fires are located no closer than 300 feet (91.4 meters) from any neighboring habitable dwelling or place where people work or congregate;

  (3) Cooking of food on other than commercial premises or cooking of food which is subject to COMAR 26.11.18.06;

  (4) Recreational purposes, such as campfires;

  (5) Oil or gas fired salamanders or similar devices designated specifically for space heating or warming of outdoor workers, etc., provided no visible emissions are created.

#### Regulation .06 Safety Determinations at Federal Facilities.

*COMAR 26.11.07.06*

A. A person who performs safety determinations at federal facilities or other facilities under contract with the federal government shall:

  (1) Take all responsible precautions to minimize emissions during any safety determination;

  (2) Schedule safety determinations, whenever possible, during days when maximum dispersion of pollutants will be achieved;

  (3) Notify the control officer at least 24 hours in advance when a safety determination is to be performed that has a duration of 2 hours or longer; and

  (4) Submit a report of anticipated or expected safety determinations to the control officer semiannually beginning with the period July 1, 1997, to December 31, 1997.

B. The report required in §A(4) of this regulation shall be submitted to the control officer by not later than 15 days before each semiannual period. For safety determinations that are not anticipated 6 months in advance, the control officer shall be notified as far in advance as possible but not less than 1 week before the safety determination.

C. The semiannual report required in §A(4) of this regulation shall include:

  (1) The time frame during which each known safety determination is to occur;

  (2) The duration of each safety determination; and

  (3) General information relating to each safety determination.

### Chapter 08 — Control of Incinerators

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 2-406, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1980 (7:12 Md. R. 1148)

**Administrative History:** Regulations .01B, .04A and B, and .05A and B amended; .01D and .06 adopted effective March 25, 1984 (11:3 Md. R. 202)

**Administrative History:** Regulations .01C, .03A, .04C, and .05A amended effective June 8, 1981 (8:9 Md. R. 800)

**Administrative History:** Regulations .01, .03, .04, and .05 amended effective December 3, 1984 (11:22 Md. R. 1899)

**Administrative History:** Regulation .05A amended effective January 18, 1982 (8:25 Md. R. 1995)

**Administrative History:** For the history of this subtitle before June 18, 1980, see the Administrative History of COMAR 26.11.01.

**Administrative History:** Chapter recodified from COMAR 10.18.08 to COMAR 26.11.08

**Administrative History:** Regulation .01 amended effective December 2, 1988 (15:22 Md. R. 2556); April 22, 1991 (18:6 Md. R. 689); November 23, 1992 (19:23 Md. R. 2042); November 17, 1997 (24:23 Md. R. 1612)

**Administrative History:** Regulation .01B amended effective April 17, 2000 (27:7 Md. R. 707); September 12, 2005 (32:18 Md. R. 1522); October 8, 2007 (34:20 Md. R. 1741); April 2, 2012 (39:6 Md. R. 411); February 15, 2016 (43:3 Md. R. 273); December 6, 2018 (45:24 Md. R. 1163); May 4, 2020 (47:9 Md. R. 476)

**Administrative History:** Regulation .02 amended effective December 2, 1988 (15:22 Md. R. 2556); November 17, 1997 (24:23 Md. R. 1612); December 6, 2018 (45:24 Md. R. 1163)

**Administrative History:** Regulation .02B amended effective November 23, 1992 (19:23 Md. R. 2042); September 12, 2005 (32:18 Md. R. 1522)

**Administrative History:** Regulation .02D, E amended effective October 8, 2007 (34:20 Md. R. 1741)

**Administrative History:** Regulation .02G amended effective April 17, 2000 (27:7 Md. R. 707)

**Administrative History:** Regulation .02H adopted effective April 17, 2000 (27:7 Md. R. 707)

**Administrative History:** Regulation .02I adopted effective April 2, 2012 (39:6 Md. R. 411)

**Administrative History:** Regulation .03 amended effective November 23, 1992 (19:23 Md. R. 2042)

**Administrative History:** Regulation .03C amended effective December 2, 1988 (15:22 Md. R. 2556); April 22, 1991 (18:6 Md. R. 689)

**Administrative History:** Regulation .04A amended effective November 23, 1992 (19:23 Md. R. 2042); April 17, 2000 (27:7 Md. R. 707); December 6, 2018 (45:24 Md. R. 1163)

**Administrative History:** Regulation .04C amended effective November 23, 1992 (19:23 Md. R. 2042); November 24, 2003 (30:23 Md. R. 1653)

**Administrative History:** Regulation .04D adopted effective February 15, 2016 (43:3 Md. R. 273)

**Administrative History:** Regulation .05 amended effective December 2, 1988 (15:22 Md. R. 2556); November 23, 1992 (19:23 Md. R. 2042); April 17, 2000 (27:7 Md. R. 707); September 12, 2005 (32:18 Md. R. 1522); December 6, 2018 (45:24 Md. R. 1163)

**Administrative History:** Regulation .05B amended effective April 22, 1991 (18:6 Md. R. 689)

**Administrative History:** Regulation .07 adopted effective December 2, 1988 (15:22 Md. R. 2556)

**Administrative History:** Regulation .07 amended effective November 23, 1992 (19:23 Md. R. 2042)

**Administrative History:** Regulation .07, Requirements for Certain Municipal Waste Combusters, renamed, Requirements for Municipal Waste Combustors with a Capacity of 35 Tons or Greater Per Day and Less Than or Equal To 250 Tons Per Day, effective February 15, 2016 (43:3 Md. R. 273)

**Administrative History:** Regulation .07A amended effective November 17, 1997 (24:23 Md. R. 1612)

**Administrative History:** Regulation .07D amended effective July 22, 1991 (18:13 Md. R. 1484)

**Administrative History:** Regulation .07E amended effective July 16, 1990 (17:11 Md. R. 1344); July 22, 1991 (18:13 Md. R. 1484); August 19, 1991 (18:16 Md. R. 1813); November 17, 1997 (24:23 Md. R. 1612)

**Administrative History:** Regulation .07 repealed and new Regulation .07 adopted effective September 12, 2005 (32:18 Md. R. 1522)

**Administrative History:** Regulation .07 amended effective December 6, 2018 (45:24 Md. R. 1163)

**Administrative History:** Regulation .08 adopted effective November 9, 1990 (17:19 Md. R. 2322); recodified to Regulation .09 and amended effective November 23, 1992 (19:23 Md. R. 2042)

**Administrative History:** Regulation .08 adopted effective November 23, 1992 (19:23 Md. R. 2042)

**Administrative History:** Regulation .08 repealed and new Regulation .08 adopted effective November 17, 1997 (24:23 Md. R. 1612)

**Administrative History:** Regulation .08 amended effective October 8, 2007 (34:20 Md. R. 1741); February 15, 2016 (43:3 Md. R. 273)

**Administrative History:** Regulation .08C, D amended effective September 7, 1998 (25:18 Md. R. 1438)

**Administrative History:** Regulation .08-1 adopted effective April 17, 2000 (27:7 Md. R. 707)

**Administrative History:** Regulation .08-1 repealed effective December 6, 2018 (45:24 Md. R. 1163)

**Administrative History:** Regulation .08-1A, B amended effective April 2, 2012 (39:6 Md. R. 411)

**Administrative History:** Regulation .08-2 adopted effective April 2, 2012 (39:6 Md. R. 411)

**Administrative History:** Regulation .08-2 amended effective December 6, 2018 (45:24 Md. R. 1163)

**Administrative History:** Regulation .08-2E amended as an emergency provision effective July 4, 2012 (39:17 Md. R. 1146); amended permanently effective November 26, 2012 (39:23 Md. R. 1533)

**Administrative History:** Regulation .09B, C amended effective April 17, 2000 (27:7 Md. R. 707)

**Administrative History:** Regulation .09D amended effective January 1, 1996 (22:26 Md. R. 2032)

**Administrative History:** Regulation .09F amended effective November 17, 1997 (24:23 Md. R. 1612)

**Administrative History:** Regulation .09H amended effective September 7, 1998 (25:18 Md. R. 1438)

**Administrative History:** Regulation .10 adopted effective November 23, 1992 (19:23 Md. R. 2042)

**Administrative History:** Regulation .10 repealed effective November 17, 1997 (24:23 Md. R. 1612)

**Administrative History:** Regulation .10 adopted effective December 6, 2018 (45:24 Md. R. 1163)

**Administrative History:** Regulation .10 amended effective May 4, 2020 (47:9 Md. R. 476)

#### Regulation .01 Definitions.

*COMAR 26.11.08.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) Bag Leak Detection System.

    (a) “Bag leak detection system” means an instrument that is capable of monitoring PM loadings in the exhaust of a fabric filter in order to detect bag failures.

    (b) “Bag leak detection system” includes, but is not limited to, an instrument that operates on triboelectric, light scattering, light-transmittance, or other effects to monitor relative PM loadings.

  (1-1) “Batch HMIWI” means an HMIWI that is designed so that neither waste charging nor ash removal can occur during combustion.

  (2) “Biologicals” means preparations made from living organisms and their products, including vaccines and cultures, intended for use in diagnosing, immunizing, or treating humans or animals or in research pertaining thereto.

  (3) “Blood products” means any product derived from human blood, including blood plasma, platelets, red or white blood corpuscles, and other derived licensed products, such as interferon.

  (4) “Body fluids” means liquid emanating or derived from humans and limited to blood, dialysate, amniotic, cerebrospinal, synovial, pleural, peritoneal, and pericardial fluids, and semen and vaginal secretions.

  (5) “Bypass stack” means a device used for discharging combustion gases to avoid severe damage to the air pollution control device or other equipment.

  (6) “Chemotherapeutic waste” means waste material resulting from the production or use of antineoplastic agents used for the purpose of stopping or reversing the growth of malignant cells.

  (7) “Co-fired combustor” is defined at 40 CFR §60.51c.

  (7-1) “Commercial HMIWI” means a HMIWI which offers incineration services for hospital/medical/infectious waste generated off site by firms unrelated to the firm that owns the HMIWI.

  (7-2) Continuous Burning.

    (a) “Continuous burning” means the continuous, semi-continuous, or batch feeding of municipal solid waste for purposes of waste disposal, energy production, or providing heat to the combustion system in preparation for waste disposal or energy production.

    (b) “Continuous burning” begins once municipal solid waste is fed to the combustor.

  (8) “Continuous emission monitoring (CEMS)” means a monitoring system for continuously measuring and recording the emissions of a pollutant from an affected facility.

  (9) “Continuous HMIWI” means an HMIWI that is designed to allow waste charging and ash removal during combustion.

  (9-1) “Crematory” means a furnace where a human or animal corpse is burned with:

    (a) The container or bag in which the human or animal corpse is placed or transported; and

    (b) The animal bedding, if applicable.

  (10) “Dioxin/furans” means the combined emissions of tetra through octa chlorinated dibenzo-para-dioxins and dibenzofurans as measured by EPA Reference Method 23.

  (11) “Dry scrubber” means an add-on air pollution control system that injects dry alkaline sorbent (dry injection) or sprays an alkaline sorbent (spray dryer) to react with and neutralize acid gases in the HMIWI exhaust stream forming a dry powder material.

  (12) “Existing municipal waste combustor (existing MWC)” means a municipal waste combustor for which the Department issued a permit to construct or for which construction began on or before September 20, 1994.

  (13) “Fabric filter or baghouse” means an add-on air pollution control system that removes particulate matter (PM) and nonvaporous metal emissions by passing flue gas through filter bags.

  (14) “Facilities manager” means the individual in charge of purchasing, maintaining, and operating the HMIWI or the owner's or operator's representative responsible for the management of the HMIWI. Alternative titles may include director of facilities or vice president of support services.

  (15) “Hazardous waste incinerator” means a hazardous waste incinerator as defined in COMAR 26.13.01.03B(33).

  (16) “High-air phase” means the stage of the batch operating cycle when the primary chamber reaches and maintains maximum operating temperatures.

  (17) “Hospital” is defined at 40 CFR §60.51c.

  (18) “Hospital, medical and infectious waste incinerator (HMIWI)” means a special medical waste incinerator that combusts any amount of hospital, medical, and infectious waste.

  (19) Hospital waste.

    (a) “Hospital waste” means discards generated at a hospital, except unused items returned to the manufacturer.

    (b) “Hospital waste” does not include human corpses, remains, and anatomical parts that are intended for interment or cremation.

  (20) Incinerator.

    (a) “Incinerator” means a furnace or combustion unit that uses controlled flame combustion for the thermal destruction of municipal solid waste, industrial waste, special medical waste, or sewage sludge.

    (b) “Incinerator” does not mean a hazardous waste incinerator.

    (c) “Incinerator” does not mean any unit owned or operated by a government agency to destroy illegal or prohibited goods. The exclusion does not apply to items either confiscated or incinerated by private, industrial, or commercial entities.

  (21) “Incinerator operator” means:

    (a) For a municipal waste combustor (MWC), the facility manager (chief facility operator), shift foreman (supervisor), and incinerator control room personnel;

    (b) For any other incinerator, the person who controls the waste feed and performs the necessary equipment adjustments to ensure efficient performance.

  (22) “Industrial waste” means any solid, liquid, or semiliquid waste, generated by a manufacturing industry, that does not contain hazardous waste.

  (23) “Infectious agent” means any organism (such as a virus or bacteria) that is capable of being communicated by invasion and multiplication in body tissues and capable of causing disease or adverse health impacts in humans.

  (24) “Intermittent HMIWI” means an HMIWI that is designed to allow waste charging, but not ash removal, during combustion.

  (25) Large HMIWI.

    (a) “Large HMIWI” means:

      (i) an HMIWI that has a maximum design waste burning capacity of more than 500 pounds per hour;

      (ii) A continuous or intermittent HMIWI that has a maximum charge rate of more than 500 pounds per hour; or

      (iii) A batch HMIWI that has a maximum charge rate of more than 4,000 pounds per day.

    (b) “Large HMIWI” does not mean:

      (i) A continuous or intermitent HMIWI that has a maximum charge rate of less than or equal to 500 pounds per hour; or

      (ii) A batch HMIWI that has a maximum charge rate of less than or equal to 4,000 pounds per day.

  (26) “Large MWC” means an existing municipal waste combustor that has a capacity greater than 250 tons per day.

  (27) “Low-level radioactive waste” means:

    (a) A waste material which contains radioactive nuclides emitting primarily beta or gamma radiation, or both, in concentrations or quantities that exceed applicable federal or State standards for unrestricted release; or

    (b) A low-level radioactive waste that is not high-level radioactive waste, spent nuclear fuel, or by-product material as defined by the Atomic Energy Act of 1954 (42 U.S.C. §2014(e)(2)).

  (28) “Malfunction” is defined at 40 CFR §60.51c.

  (29) “Maximum charge rate” means:

    (a) For a continuous and intermittent HMIWI, 110 percent of the lowest 3-hour average charge rate measured during the most recent performance test demonstrating compliance with all applicable emission limits; or

    (b) For a batch HMIWI, 110 percent of the lowest daily charge rate measured during the most recent performance test demonstrating compliance with all applicable emission limits.

  (30) “Maximum design waste burning capacity” means:

    (a) For an intermittent and continuous HMIWI, the waste burning capacity as determined by the following formula:

      (i) C = HMIWI capacity, pounds/hour

      (ii) PV = primary chamber volume, cubic feet

      (iii) 15,000 = primary chamber heat release rate factor, Btu/cubic foot/hour

      (iv) 8,500 = standard waste heating value, Btu/pound;

    (b) For a batch HMIWI, the waste burning capacity as determined by the following formula: C = PV × 4.5/8 where:

      (i) C = HMIWI capacity, pounds/hour

      (ii) PV = primary chamber volume, cubic feet

      (iii) 4.5 = waste density, pounds/cubic foot

      (iv) 8 = typical hours of operation of a batch HMIWI, hours.

  (31) “Maximum fabric filter inlet temperature” means 110 percent of the lowest 3-hour average temperature at the inlet to the fabric filter (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with the dioxin/furan emission limit.

  (32) “Maximum flue gas temperature” means 110 percent of the lowest 3-hour average temperature at the outlet from the wet scrubber (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with the mercury (Hg) emission limit.

  (33) “Medical, infectious waste” is defined at 40 CFR Part 60.51c, Subpart Ec.

  (34) Medium HMIWI.

    (a) “Medium HMIWI” means:

      (i) An HMIWI that has a maximum design waste burning capacity of more than 200 pounds per hour, but less than or equal to 500 pounds per hour;

      (ii) A continuous or intermittent HMIWI that has a maximum charge rate more than 200 pounds per hour, but less than or equal to 500 pounds per hour; or

      (iii) A batch HMIWI that has a maximum charge rate more than 1,600 pounds per day, but less than or equal to 4,000 pounds per day.

    (b) “Medium HMIWI” does not mean:

      (i) A continuous or intermittent HMIWI whose maximum charge rate is less than or equal to 200 pounds per hour or more than 500 pounds per hour; or

      (ii) A batch HMIWI that has a maximum charge rate more than 4,000 pounds per day or less than or equal to 1,600 pounds per day.

  (35) “Minimum dioxin/furan sorbent flow rate” means 90 percent of the highest 3-hour average dioxin/furan sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent performance test demonstrating compliance with the dioxin/furan emission limit.

  (36) “Minimum Hg sorbent flow rate” means 90 percent of the highest 3-hour average Hg sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent performance test demonstrating compliance with the Hg emission limit.

  (37) “Minimum hydrogen chloride (HCl) sorbent flow rate” means 90 percent of the highest 3-hour average HCl sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent performance test demonstrating compliance with the HCl emission limit.

  (38) “Minimum horsepower or amperage” means 90 percent of the highest 3-hour average horsepower or amperage to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with the applicable emission limits.

  (39) “Minimum pressure drop across the wet scrubber” means 90 percent of the highest 3-hour average pressure drop across the wet scrubber PM control device (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with the PM emission limit.

  (40) “Minimum reagent flow rate” means 90 percent of the highest 3-hour average reagent flow rate at the inlet to the selective noncatalytic reduction technology (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with the NOx emissions limit.

  (40-1) “Minimum scrubber liquor flow rate” means 90 percent of the highest 3-hour average liquor flow rate at the inlet to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with all applicable emission limits.

  (41) “Minimum scrubber liquor pH” means 90 percent of the highest 3-hour average liquor pH at the inlet to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with the HCl emission limit.

  (42) “Minimum secondary chamber temperature” means 90 percent of the highest 3-hour average secondary chamber temperature (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with the PM, CO, and dioxin/furan emission limits.

  (43) “Modification or modified HMIWI” is defined at 40 CFR §60.51c.

  (44) Municipal Solid Waste.

    (a) “Municipal solid waste (MSW)” means municipal-type solid waste as defined in 40 CFR Part 60, Subpart Eb (Standards of Performance for Municipal Waste Combustors) as amended, which is incorporated by reference.

    (b) “Municipal solid waste” does not include special medical waste.

  (45) “Municipal waste combustor (MWC)” means an incinerator that burns only municipal solid waste.

  (46) “Operating day” means a 24-hour period beginning midnight of one day and ending the following midnight, or an alternate 24-hour period approved by the Department, during which time an installation consumes fuel or causes emissions.

  (47) “Operation” means the period during which waste is combusted in the incinerator excluding periods of startup or shutdown.

  (48) “Particulate matter (PM)” means the total particulate matter emitted from an HMIWI as measured by EPA Reference Method 5 or EPA Reference Method 29.

  (49) “Pathological waste” means waste material consisting of only human or animal remains, anatomical parts or tissue, the bags or containers used to collect and transport the waste material, and animal bedding (if applicable).

  (50) “Primary chamber” means the chamber in an HMIWI that receives waste material, in which the waste is ignited, and from which ash is removed.

  (51) “Pyrolysis” means the endothermic gasification of hospital, medical, or infectious waste, or a combination of hospital, medical, and infectious waste using external energy.

  (52) “Secondary chamber” means a component of the HMIWI that receives combustion gases from the primary chamber and in which the combustion process is completed.

  (53) “Sewage sludge” means a waste containing accumulated semiliquid suspension, settled solids, or dried residue of these solids from sewage in a waste water treatment plant.

  (54) Shutdown.

    (a) “Shutdown” means the period of time after all waste has been combusted in the primary chamber.

    (b) “Shutdown” for a continuous HMIWI commences not less than 2 hours after the last charge to the incinerator.

    (c) “Shutdown” for an intermittent HMIWI commences not less than 4 hours after the last charge to the incinerator.

    (d) “Shutdown” for a batch HMIWI commences not less than 5 hours after the high-air phase of combustion has been completed.

    (e) “Shutdown” for the Montgomery County Resource Recovery Facility commences 30 minutes after the chute to the loading hopper of the combustion train is closed and ends no later than 3 hours thereafter.

    (f) “Shutdown” for the Wheelabrator Baltimore Inc. facility commences 30 minutes after municipal solid waste feed to the loading hopper has ceased and ends no later than 3 hours thereafter.

  (55) Small HMIWI.

    (a) “Small HMIWI” means:

      (i) An HMIWI that has a maximum design waste burning capacity less than or equal to 200 pounds per hour;

      (ii) A continuous or intermittent HMIWI that has a maximum charge rate less than or equal to 200 pounds per hour; or

      (iii) A batch HMIWI that has a maximum charge rate less than or equal to 1,600 pounds per day.

    (b) “Small HMIWI” does not mean:

      (i) A continuous or intermittent HMIWI that has a maximum charge rate more than 200 pounds per hour; or

      (ii) A batch HMIWI that has a maximum charge rate more than 1,600 pounds per day.

  (55-1) “Small MWC” means a municipal waste combustor which has a capacity of at least 35 tons and less than or equal to 250 tons per day.

  (56) “Small rural area HMIWI” means a small HMIWI that is located more than 50 miles from the boundary of the nearest standard metropolitan statistical area and which burns less than 2,000 pounds per week of hospital, medical, and infectious waste (excluding those wastes burned during performance tests).

  (57) Special medical waste.

    (a) “Special medical waste” means:

      (i) Any combination of organic and inorganic liquid or solid waste as defined in COMAR 26.13.11; or

      (ii) Hospital general waste, when burned in conjunction with special medical waste generated at that hospital.

    (b) “Special medical waste” includes hospital, medical, and infectious waste.

  (58) “Standard conditions” means a temperature of 20°C and a pressure of 101.3 kilopascals.

  (59) “Standard metropolitan statistical area (SMSA)” means any area listed in OMB Bulletin No. 93-17 entitled “Revised Statistical Definitions for Metropolitan Areas” dated June 30, 1993.

  (60) Startup.

    (a) “Startup” means the period of time between the activation of the system and the first charge to the unit.

    (b) “Startup” for a batch HMIWI means the period of time between activation of the system and ignition of the waste.

    (c) “Startup” for a Large MWC commences when the unit begins the continuous burning of municipal solid waste and continues for a period of time not to exceed 3 hours, but does not include any warm-up period when the particular unit is combusting fossil fuel or other non-municipal solid waste fuel, and no municipal solid waste is being fed to the combustor.

  (61) “30-day rolling average emission rate” means a value of NOx emissions in ppmv, corrected to 7 percent oxygen, calculated by:

    (a) Summing the total hourly ppmv of NOx averages emitted from the unit during the current operating day and all hourly NOx ppmv averages for the previous 29 operating days, excluding periods of warm-up, startup, and shutdown; and

    (b) Dividing the total hourly ppmv of NOx emitted from the unit during the 30 operating days summed in §B(61)(a) of this regulation by the total number of hourly averages in the 30-day period.

  (62) “24-hour block average emission rate” means a value of NOx emissions in ppmv, corrected to 7 percent oxygen, calculated by:

    (a) Summing the hourly average ppmv of NOx emitted from the unit during 24 hours between midnight of one day and ending the following midnight, excluding periods of warm-up, startup, and shutdown; and

    (b) Dividing the total sum of hourly NOx ppmv values emitted during 24 hours between midnight of one day and ending the following midnight by 24, excluding periods of warm-up, startup, and shutdown.

  (63) “Warm-up period” means a period of time that:

    (a) Commences when a unit at a Large MWC is combusting fossil fuel or other nonmunicipal solid waste fuel, and no municipal solid waste is being fed to the combustor; and

    (b) Ends for a unit at a Large MWC when municipal solid waste is being fed to the combustor.

  (64) “Wet scrubber” means an add-on air pollution control device that utilizes an alkaline scrubbing liquor to collect particulate matter (including nonvaporous metals and condensed organics) or to absorb and neutralize acid gases, or both.

#### Regulation .02 Applicability.

*COMAR 26.11.08.02*

A. Any source which is subject to the provisions of this chapter is also subject to the provisions of any other chapter. However, when this chapter establishes an emission standard for a specific installation which differs from the general emission standards in COMAR 26.11.06.01—.09, this chapter takes precedence.

B. Regulation .07 of this chapter applies to a Small MWC that was constructed on or before August 30, 1999.

C. Regulation .08 of this chapter applies to an existing MWC with a capacity greater than 250 tons per day as determined in accordance with 40 CFR §60.58b(j).

D. An MWC with a capacity greater than 250 tons per day for which construction began after December 20, 1989, and on or before September 20, 1994, and modification or reconstruction began after December 20, 1989, and on or before June 19, 1996, is also subject to the requirements of 40 CFR Part 60, Subpart Ea, Standards of Performance for Municipal Waste Combustors, as amended, incorporated by reference at COMAR 26.11.06.12.

E. An MWC with a capacity greater than 250 tons per day for which construction began after September 20, 1994, or modification or reconstruction began after June 19, 1996, is also subject to the requirements of 40 CFR Part 60 Subpart Eb, Standards of Performance for Municipal Waste Combustors, as amended, incorporated by reference at COMAR 26.11.06.12.

F. A person who owns an existing MWC with a total capacity greater than 250 tons per day which was not in operation on or after December 19, 1995, may not operate the MWC unless the applicable requirements of this chapter are met.

G. Repealed

H. Repealed

I. All provisions of Regulation .08-2 of this chapter and the related 111(d)/129 plan approval, 40 CFR Part 62, Subpart V, apply to HMIWIs.

J. Regulation .10 of this chapter applies to Large MWCs.

#### Regulation .03 Prohibition of Certain Incinerators in Areas III and IV.

*COMAR 26.11.08.03*

A. A person may not cause or permit the construction or use of any flue-fed, chute-fed, or single chamber incinerator.

B. Any incinerator, the use of which is prohibited under provisions of this regulation, shall be made inoperable in a manner approved by the control officer or the Department.

C. A person may not cause or permit the construction or use of any other incinerator except as listed below:

  (1) An incinerator that has a capacity of 5 tons (4,540 kilograms) per hour or greater and that is used to burn municipal solid waste;

  (2) Crematory incinerators;

  (3) An incinerator that has a capacity of 500 pounds (227 kilograms) per hour or greater and that is used to burn industrial waste;

  (4) Special medical waste incinerators that are approved for that purpose by the Department, although municipal solid waste generated at the site of a permitted special medical waste incinerator may be burned in combination with a special medical waste; and

  (5) Sewage sludge incinerators.

D. Householders are permitted to burn ordinary household trash originating on the premises, in incinerators, in those areas where public collection of municipal solid waste is not provided.

#### Regulation .04 Visible Emissions.

*COMAR 26.11.08.04*

A. In Areas I, II, V, and VI, the following apply:

  (1) Except as provided in Regulations .08 and .08-2 of this chapter, a person may not cause or permit the discharge of emissions from any incinerator, other than water in an uncombined form, which is greater than 20 percent opacity;

  (2) A person may not cause or permit the discharge of emissions from any hazardous waste incinerator, other than water in an uncombined form, which is visible to human observers.

B. In Areas III and IV, a person may not cause or permit the discharge of emissions from any incinerator or hazardous waste incinerator, other than water in an uncombined form, which is visible to human observers.

C. Exceptions. The requirements of §§A and B of this regulation do not apply to emissions during start-up, or adjustments or occasional cleaning of control equipment if:

  (1) The visible emissions are not greater than 40 percent opacity; and

  (2) The visible emissions do not occur for more than 6 consecutive minutes in any 60 minute period.

D. The owner or operator of a municipal waste combustor that is required to install and operate a COM is subject to the requirements in COMAR 26.11.01.10.

#### Regulation .05 Particulate Matter.

*COMAR 26.11.08.05*

A. Requirements for Areas I, II, V, and VI.

  (1) Calculations. Except as provided in Regulations .08 and .08-2 of this chapter, incinerator or hazardous waste incinerator emissions shall be adjusted to 12 percent carbon dioxide.

  (2) Incinerators Constructed Before January 17, 1972. Except as provided in Regulations .08 and .08-2 of this chapter, a person may not cause or permit the discharge into the outdoor atmosphere from any incinerator constructed before January 17, 1972, particulate matter to exceed the following limitations:

    (a) Incinerators burning less than 200 pounds (90.7 kilograms) of municipal solid waste per hour, 0.3 gr/SCFD (687 mg/dscm);

    (b) Incinerators burning 200 pounds (90.7 kilograms) or more pounds of municipal solid waste per hour, 0.2 gr/SCFD (458 mg/dscm).

  (3) Incinerators Constructed on or After January 17, 1972. Except as provided in Regulations .07, .08, and .08-2 of this chapter, a person may not cause or permit the discharge of particulate matter into the outdoor atmosphere from any incinerator or crematory constructed on or after January 17, 1972, to exceed 0.10 grains per standard cubic foot dry 0.10 gr/SCFD (229 mg/dscm).

  (4) Hazardous Waste Incinerators. A person may not cause or permit to be discharged into the outdoor atmosphere from any hazardous waste incinerator, particulate matter to exceed 0.03 gr/SCFD (68.7 mg/dscm).

B. Requirements for Areas III and IV.

  (1) Calculations. Except as provided in Regulations .08 and .08-2 of this chapter, incinerator or hazardous waste incinerator emissions shall be adjusted to 12 percent carbon dioxide.

  (2) Except as provided in Regulations .07, .08, and .08-2 of this chapter, a person may not cause or permit the discharge of particulate matter into the outdoor atmosphere from any incinerator, hazardous waste incinerator, or crematory to exceed the following limitations:

    (a) Special medical waste incinerators burning less than 1 ton of refuse per hour and less than 8 tons of refuse per day and crematories, 0.10 grains per standard cubic foot dry 0.10 gr/SCFD (229 mg/dscm);

    (b) All other incinerators and hazardous waste incinerators, 0.03 gr/SCFD (68.7 mg/dscm).

#### Regulation .06 Prohibition of Unapproved Hazardous Waste Incinerators.

*COMAR 26.11.08.06*

A person may not cause or permit the construction or use of any hazardous waste incinerator except in accordance with COMAR 26.13.05.15 and this chapter.

#### Regulation .07 Requirements for Small Municipal Waste Combustors.

*COMAR 26.11.08.07*

A person may not operate a Small MWC that was constructed on or before August 30, 1999 which results in violation of the provisions of 40 CFR 62 Subpart JJJ.

#### Regulation .08 Requirements for an Existing Large MWC with a Capacity Greater Than 250 Tons Per Day.

*COMAR 26.11.08.08*

A. Emission Standards and General Requirements.

  (1) A person who owns or operates an existing large MWC subject to this regulation may not violate any of the emission standards or general requirements in §A(2) of this regulation after the compliance date in §§A and D of this regulation.

  (2) Emission Standards and General Requirements.

  (3) The standards in §A(2) of this regulation apply at all times except during periods of startup, shutdown, or malfunction as provided in 40 CFR §60.58b(a).

* Corrected to 7 percent oxygen on dry basis. If a CO2 monitor is selected as the dilutent monitor it must meet the requirements of 40CFR §60.58b(b)(6).

B. Monitoring Requirements.

  (1) A person who owns or operates an existing MWC subject to this regulation shall:

    (a) Install, calibrate, operate, and maintain continuous monitors for carbon monoxide, oxygen, opacity, oxides of nitrogen, and sulfur dioxide;

    (b) Locate monitors downstream of the final air pollution control device to measure concentrations of oxygen, oxides of nitrogen, sulfur dioxide, and opacity of the exhaust gases;

    (c) Install, operate, and maintain at a minimum, one temperature monitor to measure the temperature of the flue gas as it enters the particulate matter air pollution control device; and

    (d) Meet the specifications in §A(2) of this regulation if an alternative monitoring or sampling method of compliance is selected in lieu of a stack test.

  (2) If the percent removal option is to be used to show compliance with §B(1)(b) of this regulation, sulfur dioxide and oxygen monitors shall also be located upstream of the pollution control device. Monitors shall be located at the combustor outlet exit to measure concentrations of carbon monoxide.

  (3) The monitors required by §B(1)(a) and (b) of this regulation shall meet the installation, certification, reporting, record-keeping, and other requirements of COMAR 26.11.01.10, and 26.11.01.11, performance specifications in 40 CFR Part 60, Appendix B, the quality assurance procedures in 40 CFR Part 60, Appendix F, all requirements in 40 CFR §60.58b, COMAR 26.11.31.

  (4) A person shall apply for and receive written approval from the Department before installing any of the monitors required in this chapter.

C. Reporting and Record-Keeping Requirements.

  (1) A person who owns an existing MWC subject to this regulation shall report and maintain records in accordance with 40 CFR §60.59b of Subpart Eb, as applicable, except for the siting requirements under §60.59b(a), (b)(5), and (d)(11) of 40 CFR Part 60, Subpart Eb;

  (2) Continuous monitoring data reduction and data availability shall be as prescribed in COMAR 26.11.01.10 and 26.11.01.11. If there is any inconsistency between COMAR 26.11.01.10 and 26.11.01.11 and 40 CFR 60, the requirements of 40 CFR 60 govern.

D. Compliance Schedule and Date.

  (1) A person who owns or operates an existing large MWC subject to this chapter shall comply with the standards in §A(2) of this regulation, according to the applicable schedule in §D(2)—(6).

  (2) A person who owns or operates an existing large MWC subject to this chapter and is not planning an extensive emission control system upgrade shall submit a plan by October 1, 2007, to the Department that describes the increments of progress to be achieved as follows:

    (a) Not later than December 1, 2007 — release purchase orders for initial testing and modifications;

    (b) Not later than April 1, 2008 — begin modification and testing of control systems;

    (c) Not later than September 1, 2008 — end modifications and debug system;

    (d) Not later than December 1, 2008 — submit stack test protocol and test schedule; and

    (e) On and after April 28, 2009 — achieve full compliance with the standards.

  (3) A person who owns or operates an existing large MWC subject to this chapter and is planning an extensive emission control system upgrade shall submit a plan, containing an expeditious compliance schedule, for review and approval by the Department, that:

    (a) Describes the control method to be used to achieve compliance with the applicable requirements;

    (b) Includes a complete application for a permit to construct the control system and compliance schedule to the Department not later than September 1, 2008; and

    (c) If approved, includes in the compliance schedule a schedule which is no less stringent than the increments of progress in §D(4) of this regulation.

  (4) The following increments of progress shall be achieved if an extensive emission control system upgrade is planned:

    (a) Not later than April 1, 2008 — complete control system and cost analysis;

    (b) Not later than December 1, 2008 — release purchase orders for the purchase of primary components;

    (c) Not later than April 1, 2009 — begin construction of control systems;

    (d) Not later than September 1, 2010 — end construction, startup and debug system;

    (e) Not later than December 1, 2010 — submit stack test protocol and test schedule; and

    (f) Not later than March 10, 2011 — achieve full compliance.

  (5) The interim dates in §D(2) and (4) of this regulation may be delayed upon approval by the Department and the U.S. EPA if the compliance dates of April 28, 2009, and March 10, 2011, are met.

  (6) An affected facility subject to the provisions in §D of this regulation shall demonstrate compliance with the emission standards and requirements using the test methods in §A(2) of this regulation within 180 days after start up of the new or modified control device.

#### Regulation .08-1 Emission Standards and Requirements for HMIWIs — Repealed

*COMAR 26.11.08.08-1*

#### Regulation .08-2 Emission Standards and Requirements for HMIWIs Under 40 CFR 60 Subpart Ce as Revised October 6, 2009.

*COMAR 26.11.08.08-2*

A. Applicability and Emission Standards. The emission standards and requirements of §B(1)—(7) and §C(1)—(6) of this regulation apply to a person who owns or operates an HMIWI subject to 40 CFR Part 60, Subpart Ce, as revised, October 6, 2009.

B. Emission Limits and Requirements for Small, Medium, and Large HMIWIs.

  (1) A person who owns or operates a small, medium, or large HMIWI for which construction was commenced on or before June 20, 1996 or for which modification commenced on or before March 16, 1998 shall comply with the following emission limits.

  (2) A person who owns or operates a small, medium, or large HMIWI for which construction was commenced after June 20, 1996 but no later than December 1, 2008, or for which modification commenced after March 16, 1998 but no later than April 6, 2010, shall comply with the following emission limits.

  (3) Waste Management Plan.

    (a) A person who owns or operates an HMIWI subject to §B of this regulation shall prepare a Waste Management Plan that identifies the feasibility and the approach to solid waste segregation or material substitution to reduce the amount of toxics emissions.

    (b) The Waste Management Plan shall meet the requirements of 40 CFR §60.55c.

    (c) A revised Waste Management Plan shall be submitted to the Department within 60 days of completion of the required initial compliance tests under this regulation.

  (4) Compliance and Performance Testing.

    (a) A person who owns or operates an HMIWI subject to §B of this regulation shall complete the initial and subsequent tests which meet the conditions and requirements using test methods and procedures listed under 40 CFR §§60.56c(b)(1) to (b)(6) and (b)(9) to (b)(14), except for annual fugitive and CO emissions testing requirements, which shall comply with 40 CFR §§60.56c(c)(3) and (4).

    (b) In addition to the specified test method, compliance with the emissions limits in §B may be demonstrated by use of CEMS or any approved alternative non-EPA test methods allowed under 40 CFR §60.56c(b).

  (5) Monitoring Requirements. A person who owns or operates an HMIWI subject to §B of this regulation shall comply with the monitoring requirements under 40 CFR §60.57c.

    (a) Exemptions. A person may elect to use the exemptions listed under 40 CFR §§60.56c(c)(5)(ii) through (v), (c)(6), (c)(7), (e)(6) through (10), (f)(7) through (10), (g)(6) through (10), and (h) for HMIWI units subject to .08-2B(1).

    (b) Alternative Compliance Option. A person may elect to use CO CEMS as specified under 40 CFR §60.56c(c)(4) or bag leak detection systems as specified under 40 CFR §60.57c(h).

  (6) Reporting and Record-Keeping Requirements. A person who owns or operates an HMIWI subject to §B of this regulation shall report to the Department and EPA and maintain records in accordance with the requirements listed in 40 CFR Part 60.58c(b)through (g), excluding 40 CFR §§60.58c(b)(2)(viii) and (b)(2)(xvii),(b)(2)(xviii) and (b)(2)(xix).

1Except as allowed under 40 CFR §60.56c(c) for HMIWI equipped with CEMS.

C. Emission Limits and Requirements for Small Rural Area HMIWIs.

  (1) A person who owns or operates a small rural area HMIWI for which construction was commenced on or before June 20, 1996, or for which modification commenced on or before March 16, 1998, shall comply with the following emission limits.

  (2) A person who owns or operates a small rural area HMIWI for which construction commenced after June 20, 1996 but no later than December 1, 2008, or for which modification was commenced after March 16, 1998 but no later than April 6, 2010, shall comply with the following emission limits.

  (3) Waste Management Plan.

    (a) A person who owns or operates a small rural area HMIWI subject to §C of this regulation shall prepare a Waste Management Plan that identifies the feasibility and the approach to solid waste segregation or material substitution to reduce the amount of toxics emissions.

    (b) The Waste Management Plan shall meet the requirements of 40 CFR Part §60.55c.

    (c) A revised Waste Management Plan shall be submitted to the Department within 60 days of completion of the required initial compliance tests under this regulation.

  (4) Compliance and Performance Testing.

    (a) A person who owns or operates a small rural area HMIWI shall conduct the performance test in accordance with 40 CFR Part §60.56c, with the following requirement and exemptions:

      (i) The compliance test load and frequency shall be conducive to meeting the 2000 lbs/week limitation.

      (ii) For an HMIWI subject to §C(1) of this regulation, the test methods listed in 40 CFR §§60.56c(b)(7),(8), (12),(13)(Pb and Cd), and (14) and the annual PM, CO, and HCl emissions testing requirements under 40 CFR §60.56c(c)(2) and the fugitive emissions testing requirements under 40 CFR §60.56c(c)(3) do not apply.

      (iii) For an HMIWI subject to §C(2) of this regulation the annual fugitive emissions testing requirements under 40 CFR §60.56c(c)(3) do not apply.

    (b) A person who owns or operates a small rural area HMIWI not equipped with an air pollution control device shall:

      (i) Establish the maximum charge rate and minimum secondary chamber temperature as site-specific operating parameters during the initial performance test to determine compliance with applicable emission limits as required in 40 CFR §60.37e(b)(2).

      (ii) Following the date on which the initial performance test is completed, an owner operator may not operate above the maximum charge rate or below the minimum secondary chamber temperature measured as 3-hour rolling averages (calculated each hour as the average of the previous 3 operating hours) at any time, except during performance tests.

      (iii) Except as provided in §C(5)(b)(iii) of this regulation, operation of a small rural area HMIWI above the maximum charge rate and below the minimum secondary chamber temperature (each measured on a 3-hour rolling average) simultaneously shall constitute a violation of the PM, CO, and dioxin/furan emission limits.

      (iv) Operation above the maximum charge rate or below the minimum secondary chamber temperature shall constitute a violation of the established operating parameters.

      (v) The owner or operator may conduct a repeat performance test within 30 days of violation of any applicable operating parameter to demonstrate that the HMIWI is not in violation of the applicable emission limit.

      (vi) Repeat performance tests conducted pursuant to §C(4)(b)(v) of this regulation shall be conducted after notification to the Department.

    (c) In addition to the specified test method, compliance with the emissions limits in §C may be demonstrated by use of CEMS or any approved alternative non-EPA test methods allowed under 40 CFR §60.56c(b).

  (5) Monitoring Requirements.

    (a) A person who owns or operates a small rural area HMIWI shall comply with 40 CFR Part §60.57c.

    (b) A person who owns or operates a small rural area HMIWI without an air pollution control device shall comply with the following requirements:

      (i) Install, calibrate (to manufacturers' specifications), maintain, and operate a device for measuring and recording the temperature of the secondary chamber on a continuous basis, the output of which shall be recorded, at a minimum, once every minute throughout operation;

      (ii) Install, calibrate (to manufacturers' specifications), maintain, and operate a device which automatically measures and records the date, time, and weight of each charge fed into the HMIWI; and

      (iii) At a minimum, valid monitoring data shall be obtained for 75 percent of the operating hours per day and 90 percent of the operating hours per calendar quarter that the HMIWI is combusting hospital waste or medical/infectious waste, or both.

    (c) Exemptions.

      (i) For an HMIWI subject to the requirements of §C(1) of this regulation, the CO CEMS requirements under 40 CFR §60.56c(c)(4), and the compliance requirements for monitoring listed in 40 CFR §§60.56c(c)(5) through (7) and (d) through (k) do not apply.

      (ii) For an HMIWI subject to the requirements of §C(2) of this regulation, CO CEMS requirements under 40 CFR §60.56c(c)(4), and the compliance requirements for monitoring listed in 40 CFR §§60.56c(c)(5)(ii) through (v), (c)(6) through (10), (e)(6) through (10), (f)(7) through (10), and g(6) through (10) do not apply.

  (6) Reporting and Record-Keeping. A person who owns or operates a small rural area HMIWI shall:

    (a) Maintain records of the annual equipment inspections, any required maintenance, and any repairs not completed within10 days of an inspection or the time frame established by the Department; and

    (b) Submit a report signed by the facility manager containing the information recorded under §B(6)(a) of this regulation in accordance with the following schedule:

      (i) For a source subject to the permitting requirements under Title V of the federal Clean Air Act, the report shall be submitted semiannually.

      (ii) For a source other than one subject to Title V of the federal Clean Air Act, the report shall be submitted annually, and not later than 60 days following the year in which the data was collected.

    (c) Those records required by 40 CFR §§60.58c(b)(2)(viii) and (b)(2)(xvii), (b)(2)(xviii), and (b)(2)(xix), and (b)(7) are not required under §C(6) of this regulation.

1Except as allowed under 40 CFR §60.56c(c) for HMIWI equipped with CEMS.

D. Equipment Inspection Requirements.

  (1) Each HMIWI shall undergo by June 15, 2012 an initial equipment inspection and subsequent annual inspections that at a minimum include the following:

    (a) Inspect all burners, pilot assemblies, and pilot sensing devices for proper operation and clean pilot flame sensor, as necessary;

    (b) Ensure proper adjustment of primary and secondary chamber combustion air, and adjust as necessary;

    (c) Inspect hinges and door latches, and lubricate as necessary;

    (d) Inspect dampers, fans, and blowers for proper operation;

    (e) Inspect HMIWI door and door gaskets for proper sealing;

    (f) Inspect motors for proper operation;

    (g) Inspect primary chamber refractory lining; clean and repair or replace lining as necessary;

    (h) Inspect incinerator shell for corrosion or hot spots, or both;

    (i) Inspect secondary/tertiary chamber and stack and clean as necessary;

    (j) Inspect mechanical loader, including limit switches, for proper operation, if applicable;

    (k) Visually inspect waste bed (grates), and repair or seal, as appropriate;

    (l) For the burn cycle that follows the inspection, document that the incinerator is operating properly and make any necessary adjustments;

    (m) Inspect air pollution control device or devices for proper operation, if applicable;

    (n) Inspect waste heat boiler systems to ensure proper operation, if applicable;

    (o) Inspect bypass stack components;

    (p) Ensure proper calibration of thermocouples, sorbent feed systems and any other monitoring equipment; and

    (q) Generally observe that the equipment is maintained in good operating condition.

  (2) Within 10 operating days following an equipment inspection, all necessary repairs shall be completed unless the owner or operator obtains written approval from the Department for a different date to complete all necessary repairs.

  (3) Each HMIWI shall undergo an equipment inspection annually (within 12 months following the previous annual equipment inspection), in accordance with the requirements of §D(1) of this regulation.

  (4) The control device of an HMIWI shall undergo by June 15, 2012, an initial inspection that at a minimum includes the following:

    (a) Inspect air pollution control device(s) for proper operation, if applicable;

    (b) Ensure proper calibration of thermocouples, sorbent feed systems, and any other monitoring equipment;

    (c) Generally observe that the equipment is maintained in good operating condition; and

    (d) Within 10 operating days following an air pollution control device inspection, all necessary repairs shall be completed unless the owner or operator obtains written approval from the Department establishing a date whereby all necessary repairs of the designated facility shall be completed.

  (5) The control device of HMIWI shall undergo an inspection annually (within 12 months following the previous annual inspection), in accordance with the requirements of §D(4) of this regulation.

E. Compliance Schedules.

  (1) A person who owns or operates a HMIWI subject to this regulation shall:

    (a) Comply with all the requirements of §E of this regulation and related 40 CFR Part 62, Subpart V revision requirements by June 15, 2012 or as expeditiously as practicable; or

    (b) Submit to the Department and the EPA for approval, a compliance plan by December 15, 2011 that includes the following increments of progress:

      (i) Award contracts for control systems or process modifications or orders for purchase of components no later than June 15, 2012;

      (ii) Initiate on-site construction or installation of the air pollution control device(s) or process changes no later than December 15, 2012;

      (iii) Complete on-site construction or installation of control equipment or process changes by no later than December 15, 2013;

      (iv) Comply with the requirements of this regulation and related 40 CFR Part 62, Subpart V revision as expeditiously as practicable, but no later than October 6, 2014; and

      (v) Complete the compliance testing within 180 days after the final compliance date.

  (2) A person who anticipates an inability to comply with the interim compliance dates described in §E(1)(b)(i)—(iii) of this regulation may submit to the Department and the EPA an alternative compliance plan designed to achieve compliance with §E(1)(b)(iv)—(v) of this regulation, and shall be bound by such plan upon the Department’s and the EPA's approval.

F. Compliance Based on Previous Test Results. A person who owns or operates an HMIWI or a small rural area HMIWI subject to this regulation may use previous emissions tests to demonstrate compliance with the requirements of this regulation provided:

  (1) The test was conducted using the applicable procedures and test methods listed in 40 CFR §60.56c(b) or EPA-accepted voluntary consensus standards;

  (2) The HMIWI is to be operated in a manner (e.g., with charge rate, secondary chamber temperature, etc.) that would be expected to result in the same or lower emissions than observed during the previous emissions test(s);

  (3) The HMIWI has not been modified such that emissions would be expected to exceed (notwithstanding normal test-to-test variability) the results from previous emissions test(s); and

  (4) The previous emissions test(s) were conducted in 1996 or later.

G. HMIWI Shutdown.

  (1) A person who owns or operates a HMIWI and plans to shutdown rather than comply with the requirements of this regulation and amended 40 CFR Part 60 Subpart Ce shall cease operations by June 15, 2012, but not later than October 6, 2014, as provided in §G(2) of this regulation.

  (2) A request for an extension of the June 15, 2012 cease operation deadline shall be submitted to the Department by April 30, 2012 and contain the following information:

    (a) Documentation of the analysis undertaken to support the need for an extension, including a justification for the length of the period of the extension;

    (b) An evaluation of the option to transport the waste off site to a commercial medical waste treatment and disposal facility on a temporary or permanent basis; and

    (c) A plan that documents measurable and enforceable incremental steps of progress to be taken towards permanent facility closure no later than October 6, 2014.

H. Shut-Down Extension Requests for the Installation of Alternative Treatment Technologies. A person who owns or operates an HMIWI and requests an extension to install alternative treatment technologies shall:

  (1) Submit by April 30, 2012 a request to the Department to install alternative treatment technology;

  (2) Initiate onsite construction or installation of alternative technology by December 15, 2012;

  (3) Complete onsite construction or installation by December 15, 2013;

  (4) Shut down the existing HMIWI as expeditiously as practicable but no later than October 6, 2014; and

  (5) Render the existing HMIWI inoperative as expeditiously as practicable.

#### Regulation .09 Incinerator Operator Training.

*COMAR 26.11.08.09*

A. Applicability. This regulation applies to any person in this State who owns or operates an incinerator.

B. Certification and Operation. A person may not operate or allow an incinerator to be operated unless the owner certifies to the Department on a form provided by the Department that the incinerator operator:

  (1) Has completed an initial training course approved by the Department which meets the requirements of §C or D of this regulation;

  (2) Annually, after initial certification, completes a review course approved by the Department; and

  (3) Is present at all times whenever the incinerator is in operation.

C. Training Course for Operators of Special Medical Waste or Industrial Waste Incinerators.

  (1) For any incinerator operator who operates a special medical waste incinerator or an industrial waste incinerator, the training course shall be the “Hospital Incinerator Operator Training Course” Volumes I—III (EPA-450/3-89-003, EPA-450/3-89-004, and EPA-450/3-89-010, respectively), Control Technology Center, March 1989, which is incorporated by reference, and “Operation and Maintenance of Hospital Medical Waste Incinerators” (EPA-450/3-89-002), Control Technology Center, March 1989, which is incorporated by reference.

  (2) For the operator of any special medical waste incinerator or an industrial waste incinerator, completing a training course means:

    (a) Completing an initial training course approved by the Department of at least 3 days (24 hours) duration; and

    (b) Passing a written test approved by the Department.

  (3) The certified operator shall, after initial training, complete and pass an annual review course approved by the Department of at least 1 day (8 hours) duration.

  (4) For an HMIWI subject to the requirements of this chapter, a person is qualified to operate an HMIWI if the person passes the training course required in §C(2) and (3) of this regulation and complies with the requirements in 40 CFR §60.53(c)(d).

  (5) An owner or operator of an HMIWI shall maintain documentation of training (operator training manual) on site and update the documentation annually at the time of the annual review course. The documentation shall be as specified in 40 CFR §60.53c(h).

  (6) The requirements of §C(5) of this regulation shall be effective March 1, 2001.

D. Training Course for Operators of Municipal Waste Combustors, Sewage Sludge Incinerators, and Hazardous Waste Incinerators.

  (1) For any incinerator operator who operates a municipal waste combustor (MWC), sewage sludge incinerator (SSI), or hazardous waste incinerator (HWI), the training course shall address the following subjects in detail:

    (a) Overall operation, maintenance, and performance of the facility;

    (b) Start-up and shut-down of the facility;

    (c) Applicable federal, State, and local environmental regulations, and sanctions for violation;

    (d) Policies and procedures for proper and safe plant operations;

    (e) Maintaining records of facility operations;

    (f) Actions to correct upsets or emergencies;

    (g) Control room operations;

    (h) Ash handling and disposal;

    (i) Combustion theory;

    (j) Air pollution control technology; and

    (k) Continuous emission monitors and their calibration, and quality assurance requirements.

  (2) For the operator of any municipal waste combustor (MWC) or hazardous waste incinerator (HWI), completing a training course means:

    (a) Completing an initial training course approved by the Department of at least 5 days (40 hours) duration; and

    (b) Passing a written test approved by the Department.

  (3) For the operator of any sewage sludge incinerator (SSI), completing a training course means:

    (a) Completing an initial training course approved by the Department of at least 3 days (24 hours) duration; and

    (b) Passing a written test approved by the Department.

  (4) The certified operator shall, after initial training, complete and pass an annual review course approved by the Department of at least 1 day (8 hours) duration.

E. Application for Approval of a Training Course.

  (1) A person may apply for approval of a training course for operators of a special medical waste incinerator or an industrial waste incinerator by submitting a written application to the Department on a form provided by the Department.

  (2) A person may apply for approval of a training course for operators of a municipal waste combustor, sewage sludge incinerator, or hazardous waste incinerator by submitting a written application to the Department and a copy of the training materials which meet the requirements of §D(1) of this regulation.

  (3) The application shall include the following:

    (a) The names and qualifications of persons who will conduct the training and evaluate test results;

    (b) A description of the training facilities and equipment to be used in conducting the training;

    (c) A copy of the test to be administered; and

    (d) A description of the curriculum satisfying the requirements of §C(1) or D(1) of this regulation.

F. Action on an Application for a Training Course.

  (1) The Department shall acknowledge receipt of an application for approval of a training course within 10 days after receiving the application.

  (2) The Department shall act on an application within 60 days after the application is complete.

  (3) The Department shall approve a training course if it meets the following:

    (a) The course substantially satisfies the course contents described in §C or D of this regulation and is updated annually;

    (b) The test to be administered is adequate to show that the operator is capable of operating an incinerator safely and properly;

    (c) The person who conducts the training course owns or has access to a classroom facility to conduct classroom training;

    (d) The applicant owns or has access to incineration equipment that is similar in design to the equipment for which operators will be trained;

    (e) The applicant provides staff that is experienced in training or teaching or experienced in organizing and coordinating technical training courses;

    (f) The applicant has direct knowledge of the principles of combustion and incineration or a similar technical field;

    (g) The applicant is familiar with the design, operation, and maintenance of air pollution control devices and equipment and instruments used to monitor air pollutants;

    (h) The applicant provides staff that is capable of conducting hands-on training and a staff that is familiar with incinerator design features and variability in design parameters; and

    (i) The applicant has the ability to evaluate test results and hands-on training to determine whether a person is adequately trained to operate an incinerator.

  (4) The Department may deny or revoke approval of a training course under the following conditions:

    (a) The course does not substantially satisfy the required course contents;

    (b) The Department determines that the course instructors are not qualified to conduct the training; or

    (c) The documentation or other information provided by the applicant pertaining to training or testing is fraudulent.

G. Records and Notification. Within 10 days after training is complete, the person who conducts an approved incinerator operator training course shall:

  (1) Notify the Department, in writing, of the names, employee identification numbers, and employer of those incinerator operators who have successfully completed the training course; and

  (2) Provide a certificate to each incinerator operator who has satisfactorily completed the training course and has passed the required examination.

H. Operations and Maintenance Manual.

  (1) The owner or operator of a large MWC as defined in Regulation .01B(5-1) of this chapter shall develop and maintain on-site an operations and maintenance manual that contains, at a minimum, all of the course content requirements in §D(1) of this regulation and in 40 CFR §60.54b(e).

  (2) The operations and maintenance manual shall be updated annually.

#### Regulation .10 NO

*COMAR 26.11.08.10*

A. The owner and operator of a Large MWC shall minimize NOx emissions by operating and optimizing the use of all installed pollution control technology and combustion controls consistent with the technological limitations, manufacturers’ specifications, good engineering and maintenance practices, and good air pollution control practices for minimizing emissions (as defined in 40 CFR §60.11(d)) for such equipment and the unit at all times the unit is in operation, including periods of startup, shutdown, and warm-up.

B. As of May 1, 2019, the owner or operator of a Large MWC shall meet the following applicable NOx emission rates, except for periods of startup, shutdown, and warm-up:

C. As of May 1, 2020, the owner or operator of a Large MWC shall meet the requirements of §B of this regulation and the following applicable NOx emission rates, except for periods of startup, shutdown, and warm-up:

D. Startup, Shutdown, and Warm-Up NOx Emission Limitations.

  (1) As of May 1, 2019, a facility-wide NOx emission limit of 202 lbs/hr timed average mass loading over a 24-hour period shall apply during periods of startup and shutdown for the Montgomery County Resource Recovery Facility.

  (2) As of May 1, 2019, a facility-wide NOx emission limit of 252 lbs/hr timed average mass loading over a 24-hour period shall apply during periods of startup and shutdown for Wheelabrator Baltimore Inc.

  (3) As of May 1, 2019, on days when the unit is in startup, the NOx 24-hour block average emission rate under §B of this regulation will apply for the 24-hour period after startup is completed.

  (4) As of May 1, 2019, on days when the unit is in shutdown, the NOx 24-hour block average emission rate under §B of this regulation will apply for the 24-hour period prior to the commencement of shutdown.

  (5) As of January 1, 2020, a facility-wide NOx emission limit of 202 lbs/hr timed average mass loading over the warm-up period shall apply for the Montgomery County Resource Recovery Facility.

  (6) As of January 1, 2020, a unit-specific NOx emission limit of 84 lbs/hr timed average mass loading over the warm-up period shall apply for Wheelabrator Baltimore Inc.

E. Additional NOx Emission Control Requirements.

  (1) Not later than January 1, 2020, the owner or operator of Wheelabrator Baltimore Inc. shall submit a feasibility analysis for additional control of NOx emissions from the Wheelabrator Baltimore Inc. facility to the Department. This analysis shall be prepared by an independent third party and include the following:

    (a) A written narrative and schematics detailing existing facility operations, boiler design, NOx control technologies, and relevant emission performance;

    (b) A written narrative and schematics detailing various state-of-the-art NOx control technologies for achieving additional NOx emission reductions from existing MWCs, including technologies capable of achieving NOx emission levels comparable to those for a new source in consideration of the overall facility design at Wheelabrator Baltimore Inc.;

    (c) An analysis of whether each state-of-the-art control technology identified under §E(1)(b) of this regulation could technically be implemented at the Wheelabrator Baltimore Inc. facility;

    (d) Capital and operating costs, NOx emission benefits, and air quality impacts resulting from installation of each state-of-the-art control technology as identified under §E(1)(b) of this regulation; and

    (e) An estimated timeline for installation of each state-of-the-art control technology as identified under §E(1)(b) of this regulation which shall include design time, construction, operational testing, and start up.

  (2) Upon written request, Wheelabrator Baltimore Inc. shall submit any other information that the Department determines is necessary to evaluate the feasibility analysis.

  (3) Not later than January 1, 2020, based upon the results of the feasibility analysis as required under §E(1) of this regulation, the owner or operator of Wheelabrator Baltimore Inc. shall propose and submit a NOx 24-hour block average emission rate, NOx 30-day rolling average emission rate, and NOx mass loading emission limitation for periods of startup, shutdown, malfunction, and warm-up.

F. The owner or operator of a Large MWC shall continuously monitor NOx emissions with a continuous emission monitoring system in accordance with COMAR 26.11.01.11.

G. Not later than 45 days after the effective date of this regulation, the owner or operator of a Large MWC shall submit a plan to the Department and EPA for approval that demonstrates how the Large MWC will operate installed pollution control technology and combustion controls to meet the requirements of §A of this regulation. The plan shall summarize the data that will be collected to demonstrate compliance with §A of this regulation. The plan shall cover all modes of operation, including but not limited to normal operations, startup, shutdown, and warm-up.

H. Beginning July 1, 2019, the owner or operator of a Large MWC shall submit a quarterly report to the Department containing:

  (1) Data, information, and calculations which demonstrate compliance with the NOx 24-hour block average emission rate as required in §B of this regulation;

  (2) Data, information, and calculations, including NOx continuous emission monitoring data and stack flow data, which demonstrate compliance with the startup, shutdown, and warm-up mass NOx emission limits as required in §D of this regulation;

  (3) Flagging of periods of startup, shutdown, and warm-up and exceedances of emission rates;

  (4) NOx continuous emission monitoring data and total urea flow rate to the boiler averaged over a 1-hour period, in a Microsoft Excel format; and

  (5) Documented actions taken during periods of startup, shutdown, and warm-up in signed, contemporaneous operating logs.

I. Beginning July 1, 2020, the quarterly report to be submitted pursuant to §H of this regulation shall also include data, information, and calculations which demonstrate compliance with the NOx 30-day rolling average emission rate as required in §C of this regulation.

J. No less than 2 weeks advance notice and the opportunity to observe activities shall be provided to the Department prior to any optimization procedure, including installation or operation of NOx emission control technology, for the express purpose of complying with the requirements of §E(1) of this regulation.

K. Compliance with the NOx emission standards in §§B, C, and D of this regulation shall be demonstrated with a continuous emission monitoring system.

L. Compliance with the NOx Mass Loading Emission Limitation for the Montgomery County Resource Recovery Facility.

  (1) Compliance with the NOx mass loading emission limitation for periods of startup and shutdown in §D(1) of this regulation shall be demonstrated by calculating the 24-hour average of all hourly average NOx emission concentrations from continuous emission monitoring systems.

  (2) The calculations in §L(1) of this regulation shall utilize stack flow rates derived from flow monitors, for all the hours during the 3-hour startup or shutdown period and the remaining 21 hours of the 24-hour period.

  (3) Compliance with the NOx mass loading emission limitations for warm-up periods in §D(5) of this regulation shall be demonstrated by calculating the average of all hourly average NOx emission concentrations during the warm-up period from continuous emission monitoring systems.

  (4) The calculations in §L(3) of this regulation shall utilize stack flow rates derived from flow monitors, for all the hours during the warm-up period.

M. Compliance with the NOx Mass Loading Emission Limitation for the Wheelabrator Baltimore Inc.

  (1) Compliance with the NOx mass loading emission limitation for periods of startup and shutdown in §D(2) of this regulation shall be demonstrated by calculating the 24-hour average of all hourly average NOx emission concentrations from continuous emission monitoring systems.

  (2) The calculations in §M(1) of this regulation shall utilize the applicable Prevention of Significant Deterioration calculation methodology, for all the hours during the 3-hour startup or shutdown period and the remaining 21 hours of the 24-hour period.

  (3) Compliance with the NOx mass loading emission limitations for warm-up periods in §D(6) of this regulation shall be demonstrated by calculating the average of all hourly average NOx emission concentrations during the warm-up period from continuous emission monitoring systems.

  (4) The calculations in §M(3) of this regulation shall utilize the applicable Prevention of Significant Deterioration calculation methodology, for all the hours during the warm-up period.

### Chapter 09 — Control of Fuel-Burning Equipment, Stationary Internal Combustion Engines, and Certain Fuel-Burning Installations

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1980 (7:12 Md. R. 1148)

**Administrative History:** Regulations .04A, B, .06B, and .08B, and Table 1, amended effective June 8, 1981 (8:9 Md. R. 800)

**Administrative History:** Regulations .04, .05A, .06, .07B, .08C, Table 1, and Figure 2 amended effective April 16, 1984 (11:5 Md. R. 463)

**Administrative History:** Regulation .05A amended effective December 3, 1984 (11:22 Md. R. 1899)

**Administrative History:** For the history of this subtitle before June 18, 1980, see the Administrative History of COMAR 26.11.01

**Administrative History:** Tables and Diagrams codified as Regulation .09

**Administrative History:** Chapter recodified from COMAR 10.18.09 to COMAR 26.11.09

**Administrative History:** Regulation .01 amended effective May 10, 1993 (20:9 Md. R. 781); June 20, 1994 (21:12 Md. R. 1063); May 8, 1995 (22:9 Md. R. 648); September 7, 1998 (25:18 Md. R. 1438); September 18, 2000 (27:18 Md. R. 1665); November 11, 2002 (29:22 Md. R. 1724)

**Administrative History:** Regulation .01B amended effective June 21, 2004 (31:12 Md. R. 914); September 12, 2005 (32:18 Md. R. 1522)

**Administrative History:** Regulation .01B amended as an emergency provision effective February 4, 2009 (36:5 Md. R. 420); amended permanently effective June 15, 2009 (36:12 Md. R. 839)

**Administrative History:** Regulation .01B amended effective May 18, 2009 (36:10 Md. R. 718); May 17, 2010 (37:10 Md. R. 724); September 20, 2010 (37:19 Md. R. 1285); June 13, 2011 (38:12 Md. R. 708); August 22, 2011 (38:17 Md. R. 1014); September 19, 2011 (38:19 Md. R. 1148); April 28, 2014 (41:8 Md. R. 474); February 12, 2018 (45:3 Md. R. 158)

**Administrative History:** Regulation .02 amended effective September 19, 2011 (38:19 Md. R. 1148)

**Administrative History:** Regulation .02B, C adopted effective September 7, 1998 (25:18 Md. R. 1438)

**Administrative History:** Regulation .03C amended effective June 21, 2004 (31:12 Md. R. 914)

**Administrative History:** Regulation .04A, B amended as an emergency provision effective February 4, 2009 (36:5 Md. R. 420); amended permanently effective June 15, 2009 (36:12 Md. R. 839)

**Administrative History:** Regulation .04A, B amended effective February 12, 2018 (45:3 Md. R. 158)

**Administrative History:** Regulation .04C amended effective April 28, 2014 (41:8 Md. R. 474)

**Administrative History:** Regulation .05 amended effective November 11, 2002 (29:22 Md. R. 1724); May 17, 2010 (37:10 Md. R. 724)

**Administrative History:** Regulation .05A amended effective November 24, 2003 (30:23 Md. R. 1653)

**Administrative History:** Regulation .05A, E amended effective August 22, 2011 (38:17 Md. R. 1014)

**Administrative History:** Regulation .06 amended effective November 11, 2002 (29:22 Md. R. 1724)

**Administrative History:** Regulation .06C adopted effective June 21, 2004 (31:12 Md. R. 914)

**Administrative History:** Regulation .06D adopted as an emergency provision effective February 4, 2009 (36:5 Md. R. 420); adopted permanently effective June 15, 2009 (36:12 Md. R. 839)

**Administrative History:** Regulation .06D amended effective April 28, 2014 (41:8 Md. R. 474); February 12, 2018 (45:3 Md. R. 158)

**Administrative History:** Regulation .07B amended effective April 28, 2014 (41:8 Md. R. 474)

**Administrative History:** Regulation .08 repealed and new Regulation .08 adopted effective May 10, 1993 (20:9 Md. R. 781)

**Administrative History:** Regulation .08 amended effective June 20, 1994 (21:12 Md. R. 1063); May 8, 1995 (22:9 Md. R. 648); October 18, 1999 (26:21 Md. R. 1631); September 18, 2000 (27:18 Md. R. 1665); November 11, 2002 (29:22 Md. R. 1724)

**Administrative History:** Regulation .08A amended effective November 24, 2003 (30:23 Md. R. 1653)

**Administrative History:** Regulation .08C amended effective March 3, 2014 (41:4 Md. R. 306)

**Administrative History:** Regulation .08H amended effective July 20, 2015 (42:14 Md. R. 884)

**Administrative History:** Regulation .08H repealed effective December 6, 2018 (45:24 Md. R. 1163)

**Administrative History:** Regulation .08I amended effective July 20, 2015 (42:14 Md. R. 884)

**Administrative History:** Regulation .08-1 adopted effective May 18, 2009 (36:10 Md. R. 718)

**Administrative History:** Regulation .08-1 amended effective September 20, 2010 (37:19 Md. R. 1285)

**Administrative History:** Regulation .08-1 repealed effective June 13, 2011 (38:12 Md. R. 708)

**Administrative History:** Regulation .09 amended effective November 11, 2002 (29:22 Md. R. 1724); April 28, 2014 (41:8 Md. R. 474)

**Administrative History:** Regulation .10 adopted effective September 7, 1998 (25:18 Md. R. 1438)

**Administrative History:** Regulation .10 amended effective September 19, 2011 (38:19 Md. R. 1148)

**Administrative History:** Regulation .10A amended effective April 28, 2014 (41:8 Md. R. 474)

**Administrative History:** Regulation .11 adopted as an emergency provision effective February 4, 2009 (36:5 Md. R. 420); adopted permanently effective June 15, 2009 (36:12 Md. R. 839)

**Administrative History:** Regulation .11 repealed effective February 12, 2018 (45:3 Md. R. 158)

**Administrative History:** Regulation .12 adopted effective April 28, 2014 (41:8 Md. R. 474)

#### Regulation .01 Definitions.

*COMAR 26.11.09.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Annual combustion analysis” means the measurement of CO and O2 in the flue gas at the normal operating load and calculation of minimum excess air.

  (1-1) Biomass.

    (a) “Biomass” means solid organic material that can be combusted for use as fuel including the following:

      (i) Wood residue and wood products such as trees, tree stumps, tree limbs, bark, lumber, sawdust, sander dust, chips, scraps, slabs, millings, and shavings;

      (ii) Animal manure, including litter and other bedding materials;

      (iii) Vegetative agricultural and silvicultural materials, such as logging residues (slash), nut and grain hulls and chaff (e.g., almond, walnut, peanut, rice, and wheat), bagasse, orchard prunings, corn stalks, coffee bean hulls and ground; and

      (iv) Any solid organic material that has been approved by the Department, on a case-by-case basis, utilizing the criteria established by EPA and set forth in 40 C.F.R. 241.3, as amended.

    (b) This definition of biomass is not intended to suggest that these materials are or are not solid waste.

  (1-2) “Capacity factor” means:

    (a) The ratio between the actual heat input to fuel burning equipment from the fuels burned during a year and the potential heat input if it had been operating for 8,760 hours during the year at the maximum steady state design heat input capacity; or

    (b) The ratio of the unit's actual annual electric output, in megawatt hours, to the unit's name plate capacity multiplied by 8,760 hours.

    (c) For the purpose of this chapter, the selected method of determining the capacity factor of a unit shall apply continuously and is determined on a monthly rolling basis for each consecutive 12-month period.

    (d) When either of the procedures in §B(1-1)(a) or (b) of this regulation is selected to determine the capacity factor of a unit, that same procedure shall apply for that unit.

  (2) “Clean wood” means wood that has no paint, stains, or other types of coatings, and wood that has not been treated with any substance.

  (3) “Distillate fuel oil” means all American Society for Testing and Materials numbered fuel oils other than residual.

  (4) “Fuel” means:

    (a) Coal or any other fossil fuel;

    (b) Waste combustible fluid or used oil that has been approved by the Department to be burned as a fuel in accordance with Regulation .10 of this chapter; and

    (c) Biomass as defined in this regulation, or approved by the Department.

  (5) “Gas” means any gaseous fuel that can be used to create useful heat or mechanical energy including:

    (a) Natural gas or propane;

    (b) Gaseous fuels produced synthetically;

    (c) Gaseous substances derived from the decomposition of organic matter; or

    (d) Gaseous substances derived as a byproduct of a manufacturing process.

  (6) “High heat release unit” means fuel burning equipment that is designed with an area heat release rate of 1,400,000 Btu per hour per square foot or greater.

  (7) “Interruptible gas service” means a gas service negotiated between the user and a utility company under the jurisdiction of the Maryland Public Service Commission in which the utility company reserves the right upon determining that gas supplies are inadequate for normal distribution:

    (a) To interrupt the gas supply after notification; or

    (b) To limit the gas supply by automatic interruption.

  (8) “Operating time” means, for the purpose of determining compliance or non-compliance with this chapter, the actual time in hours that an affected unit operates, beginning when operation of the draft fans is established and ending when feed of the primary fuel to the combustion chamber is discontinued.

  (9) “Manufacturer” means a person who imports, manufactures, assembles, or produces a small wood boiler.

  (10) “Off-specification used oil” means used oil that exceeds one or more of the specifications in Regulation .10B of this chapter.

  (11) “On-specification used oil” means used oil that meets all of the specifications in Regulation .10B of this chapter.

  (12) “Residual fuel oi” means that fuel oil that meets the specifications of the American Society for Testing and Materials for Numbers 4, 5, or 6 (bunker C) oils or crude oils when used as a fuel.

  (13) “Rotary cup burner” means a fuel oil burner which employs a rotating cup to atomize and mix fuel oil with air for combustion.

  (14) “Small wood boiler” means a fuel-burning device:

    (a) With a rated thermal output of less than 350,000 Btu per hour;

    (b) Designed to burn clean wood, wood pellets, or wood chips;

    (c) That the manufacturer specifies for outdoor installation or indoor installation; and

    (d) That distributes heated fluid through pipes for the purpose of supplying heat and/or hot water to building spaces.

  (15) “Space heater” means fuel-burning equipment that consumes more than 60 percent of its annual fuel during the period from October 31 of one year through March 31 of the following year. For the purpose of this regulation, annual fuel use is the total fuel consumed during the period October 1 of one year to September 30 of the following year, beginning October 1, 1989.

  (16) “System” means all combustion equipment owned or operated by a single business entity.

  (17) “Used oil” means oil that has been refined from crude oil, or any synthetic oil, that has been used and, as result of the use, is contaminated by physical or chemical impurities.

  (18) “Waste combustible fluid (WCF)” means a fluid waste material that:

    (a) Is not used oil;

    (b) Has been approved by the Department in accordance with the requirements in COMAR 26.13.02 to be burned as fuel in any fuel-burning equipment or other installation; and

    (c) Has a heating value of 6,000 Btu or more per pound.

#### Regulation .02 Applicability.

*COMAR 26.11.09.02*

A. Any source which is subject to the provision of this chapter is also subject to the provisions of any other chapter. However, when this chapter establishes an emission standard for a specific installation which differs from the general emission standards in COMAR 26.11.06.01—.09, this chapter takes precedence.

B. A person who proposes to burn as fuel any used oil or WCF that contains quantifiable levels of PCB (2ppm) may also be subject to federal requirements under 40 CFR 761.

#### Regulation .03 General Conditions for Fuel-Burning Equipment.

*COMAR 26.11.09.03*

A. When two or more fuel-burning equipment units are connected to a single stack, the combined heat input of all units connected to the stack shall be used to determine the allowable emissions for the stack.

B. When a single fuel-burning equipment unit is connected to two or more stacks, the allowable emissions from all the stacks combined may not exceed that allowable for the same unit if connected to a single stack.

C. Calculations.

  (1) All calculations of particulate matter emissions to determine compliance with a concentration requirement expressed as grains per standard cubic foot or milligrams per cubic meter of dry exhaust gas, shall be corrected to 50 percent excess air.

  (2) All calculations of particulate matter emissions to determine compliance with a mass emissions requirement expressed as pounds particulate matter per million Btu, shall be made in accordance with the procedures for determining particulate matter emission rates in 40 CFR Part 60 Appendix A, Method 19.

#### Regulation .04 Prohibition of Certain New Fuel-Burning Equipment.

*COMAR 26.11.09.04*

A. Areas I, II, V, and VI. The following apply in Areas I, II, V, and VI:

  (1) A person may not construct fuel-burning equipment designed for use of residual fuel oil in which any individual furnace has a rated heat input of less than 13 million Btu (13.7 gigajoules) per hour. Residual oil may not be used at any time in any of this fuel-burning equipment having a rated heat input of less than 13 million Btu (13.7 gigajoules) per hour.

  (2) Except as provided in §C, of this regulation:

    (a) A person may not construct solid fuel-burning equipment that has a rated heat input of less than 13 million Btu (13.7 gigajoules) per hour.

    (b) A solid fuel may not be used at any time in any fuel-burning equipment constructed after January 17, 1972, having a rated heat input of less than 13 million Btu (13.7 gigajoules) per hour.

  (3) A person may not construct fuel-burning equipment fitted with a rotary cup burner or replace a burner with a rotary cup burner.

B. Areas III and IV. The following apply in Areas III and IV:

  (1) A person may not construct fuel-burning equipment designed for use of residual fuel oil in which any individual furnace has a heat input of less than 13 million Btu (13.7 gigajoules) per hour. Residual fuel oil may not be used at any time in any such furnace having a heat input rate of less than 13 million Btu (13.7 gigajoules) per hour.

  (2) Except as provided in §C, of this regulation:

    (a) A person may not construct solid fuel-burning equipment that has a rated heat input of less than 35 million Btu (37 gigajoules) per hour.

    (b) A solid fuel may not be used at any time in any fuel-burning equipment constructed after January 17, 1972 having a rated heat input of less than 35 million Btu (37 gigajoules) per hour.

  (3) A person may not construct fuel-burning equipment designed to burn fuel oil with a rotary cup burner or replace a burner on fuel-burning equipment with a rotary cup burner.

C. Exceptions.

  (1) Fuel-Burning Equipment on Ships and Biomass Fuel-Burning Equipment.

    (a) New fuel-burning equipment on ships is exempt from §§A(1) and B(1) of this regulation.

    (b) The provisions of §§A and B of this regulation do not apply to fuel-burning equipment installed after May 1, 2014 that burns only biomass fuels.

  (2) General. The Department may grant an exception to the prohibitions in §A(2) or §B(2), of this regulation, if the Department determines that:

    (a) There will be no violation of ambient air quality standards or Prevention of Significant Deterioration (PSD) requirements;

    (b) There will be no violation of applicable emission standards;

    (c) There is minimum potential for creation of a nuisance; and

    (d) There is reasonable assurance of fuel quality control.

  (3) Application.

    (a) A person may request exception under this section by submitting an application in writing.

    (b) The application shall include the following information:

      (i) Description of the proposed construction or modification, including the type and manufacturer of the fuel-burning equipment, fuel specifications, expected annual fuel consumption, type and manufacturer of any control equipment, and stack height.

      (ii) A contour map of the area (such as a U.S.G.S. 7.5 minute quadrangle map), a drawing of the property lines, the distance to the closest building not owned by the applicant, and a description of the surrounding area including major terrain features and building heights within 500 meters of the proposed construction.

      (iii) Any other information requested by the Department.

  (4) Action on an Application. Within 30 days after receipt of a completed application, the Department will either deny the request for an exception or notify the applicant of its determination to proceed.

  (5) Opportunity for Public Comment.

    (a) Within 10 days after notification by the Department of a determination to proceed with the application for an exception, the applicant shall notify the public by prominent advertisement in at least one newspaper of general circulation in the area affected.

    (b) The advertisement shall be at the expense of the applicant, in a format approved by the Department, and shall include a brief summary of the nature of the proposed source and a statement that an exception has been requested to allow the use of solid fuel, a statement that the public has 30 days to comment on the request for an exception after the advertisement publication date, the place where the relevant documents may be inspected, the name of a person to contact for further information, and the address to which the comments may be sent.

  (6) Denial or Approval of an Application.

    (a) Within 60 days after the comment period, the Department will issue its final determination in the form of an order.

    (b) The Department will deny an application for an exception if it determines that the proposed use of solid fuel will not satisfy the criteria in §C(2), of this regulation. The Department will specify the reasons for the denial.

    (c) If the application is approved, the order will specify any reasonable conditions or special control measures to be taken by the source to minimize emissions.

#### Regulation .05 Visible Emissions.

*COMAR 26.11.09.05*

A. Fuel Burning Equipment.

  (1) Areas I, II, V, and VI. In Areas I, II, V, and VI, a person may not cause or permit the discharge of emissions from any fuel burning equipment, other than water in an uncombined form, which is greater than 20 percent opacity.

  (2) Areas III and IV. In Areas III and IV, a person may not cause or permit the discharge of emissions from any fuel burning equipment, other than water in an uncombined form, which is visible to human observers except that, for the purpose of demonstrating compliance using COM data, emissions that are visible to a human observer are those that are equal to or greater than 10 percent opacity.

  (3) Exceptions. Section A(1) and (2) of this regulation do not apply to emissions during load changing, soot blowing, startup, or adjustments or occasional cleaning of control equipment if:

    (a) The visible emissions are not greater than 40 percent opacity; and

    (b) The visible emissions do not occur for more than 6 consecutive minutes in any sixty minute period.

  (4) Fuel Burning Equipment Required to Operate a COM. The owner or operator of fuel burning equipment that is subject to the requirement to install and operate a COM shall demonstrate compliance with the applicable visible emissions limitation specified in §A(1) and (2) of this regulation as follows:

    (a) For units with a capacity factor greater than 25 percent, until December 31, 2009, compliance is achieved if visible emissions do not exceed the applicable visible emissions limitation in §A(1) and (2) of this regulation for more than 4 percent of the unit's operating time in any calendar quarter, during which time visible emissions:

      (i) Do not exceed 40.0 percent opacity, except for 5.0 hours or 0.5 percent of the unit's operating time, whichever is greater;

      (ii) Do not exceed 70.0 percent opacity for more than four (4) 6-minute periods, except that coal-fired units equipped with electrostatic precipitators may exceed 70.0 percent opacity for no more than 2.2 hours; and

      (iii) On any calendar day, do not exceed the applicable visible emissions limitation in §A(1) and (2) of this regulation for more than 4.1 hours, during which time visible emissions do not exceed 40.0 percent opacity for more than 1.4 hours and do not exceed 70.0 percent opacity for more than two (2) six-minute periods;

    (b) For units with a capacity factor greater than 25 percent, beginning January 1, 2010, compliance is achieved if visible emissions do not exceed the applicable visible emissions limitation in §A(1) and (2) of this regulation for more than 2 percent of the unit's operating time in any calendar quarter, during which time visible emissions:

      (i) Do not exceed 40.0 percent opacity, except for 5.0 hours or 0.5 percent of the unit's operating time, whichever is greater;

      (ii) Do not exceed 70.0 percent opacity for more than four (4) six-minute periods, except that coal-fired units equipped with electrostatic precipitators may exceed 70.0 percent opacity for no more than 2.2 hours; and

      (iii) On any calendar day, do not exceed the applicable visible emissions limitation in §A(1) and (2) of this regulation for more than 4.1 hours, during which time visible emissions do not exceed 40.0 percent opacity for more than 1.4 hours and do not exceed 70.0 percent opacity for more than two 6-minute periods;

    (c) For units with a capacity factor equal to or less than 25 percent that operate more than 300 hours per quarter, beginning July 1, 2009, compliance with the applicable visible emissions limitation in §A(1) and (2) of this regulation is achieved if, during a calendar quarter, visible emissions do not exceed the applicable standard for more than 20.0 hours, during which time visible emissions:

      (i) Do not exceed 40.0 percent opacity for more than 2.2 hours;

      (ii) Do not exceed 70 percent for more than four 6-minute periods; and

      (iii) On any calendar day, do not exceed the applicable visible emissions limitation in §A(1) and (2) of this regulation for more than 4.1 hours, during which time visible emissions do not exceed 40.0 percent opacity for more than 1.4 hours and do not exceed 70.0 percent opacity for more than two 6-minute periods; and

    (d) For units with a capacity factor equal to or less than 25 percent that operate 300 hours or less per quarter, beginning July 1, 2009, compliance with the applicable visible emissions limitation in §A(1) and (2) of this regulation is achieved if, during a calendar quarter, visible emissions do not exceed the applicable standard for more than 12.0 hours, during which time visible emissions:

      (i) Do not exceed 40.0 percent opacity for more than 2.2 hours;

      (ii) Do not exceed 70.0 percent opacity for more than four 6-minute periods; and

      (iii) On any calendar day, do not exceed the applicable visible emissions limitation in §A(1) and (2) of this regulation for more than 4.1 hours, during which time visible emissions do not exceed 40.0 percent opacity for more than 1.4 hours and do not exceed 70.0 percent opacity for more than two 6-minute periods.

  (5) Notwithstanding the requirements in §A(4) of this regulation, the Department may determine compliance and noncompliance with the visible emissions limitations specified in §A(1) and (2) of this regulation by performing EPA reference Method 9 observations.

  (6) In no instance shall excess emissions exempted under this regulation cause or contribute to a violation of any ambient air quality standard in 40 CFR Part 50, as amended, or any applicable requirements of 40 CFR Part 60, 61, or 63, as amended.

B. Determining Violations.

  (1) For each unit required to operate a COM pursuant to COMAR 26.11.01.10A(1)(a) and (b), each day during a calendar quarter when the opacity of emissions from that unit during the calendar quarter or calendar day, as applicable, exceeds the emission limitations in §A(4)(a), (b), (c) and (d) of this regulation shall constitute a separate day of violation.

  (2) A violation of §A(4)(a)(i), (ii), or (iii), §A(4)(b)(i), (ii) or (iii), §A(4)(c)(i), (ii) or (iii), or §A(4)(d)(i), (ii) or (iii), of this regulation, as applicable, that occur on the same day shall constitute separate violations.

  (3) A daily violation that occurs during the same calendar quarter as a quarterly violation is a separate violation.

C. Fuel Burning Equipment Subject to Federal COM Requirements. Except for owners or operators of fuel burning equipment subject to any federal requirement that mandates operation of a COM and as provided in §D of this regulation, the owner or operator of fuel burning equipment required to install and operate a COM may discontinue the operation of the COM on fuel burning equipment that is served by a flue gas desulfurization device:

  (1) When emissions from the equipment do not bypass the flue gas desulfurization device serving the equipment;

  (2) When the flue gas desulfurization device serving the equipment is in operation;

  (3) If the owner or operator has demonstrated to the Department's satisfaction, in accordance with 40 CFR §75.14, as amended, and all other applicable State and federal requirements, that water vapor is present in the flue gas from the equipment and would impede the accuracy of opacity measurements; and

  (4) If the owner or operator has fully implemented an alternative plan, approved by the Department, for monitoring opacity levels and particulate matter emissions from the stack that includes:

    (a) A schedule for monthly observations of visible emissions from the stack by a person trained to perform Method 9 observations; and

    (b) Installation and operation of a particulate matter CEM that complies with all applicable State and federal requirements for particulate matter CEMs.

D. If, for units equipped with a flue gas desulfurization device, emissions bypass the device and are discharged through a bypass stack, the bypass stack shall be equipped with a COM approved by the Department.

E. Stationary Internal Combustion Engine Powered Equipment.

  (1) Definitions. For the purpose of this section:

    (a) “Idle” means the condition during which the engine is not performing the useful net work that enables the piece of equipment to accomplish its designated purpose.

    (b) “Internal combustion engine” (hereafter “engine”) means all engines except those used for propulsion of ships or vehicles licensed to operate upon the public highway within the State, or engines employed solely for agricultural and recreational purposes unless they are an integral part of a stationary installation.

  (2) Emissions During Idle Mode. A person may not cause or permit the discharge of emissions from any engine, operating at idle, greater than 10 percent opacity.

  (3) Emissions During Operating Mode. A person may not cause or permit the discharge of emissions from any engine, operating at other than idle conditions, greater than 40 percent opacity.

  (4) Exceptions.

    (a) Section E(2) of this regulation does not apply for a period of 2 consecutive minutes after a period of idling of 15 consecutive minutes for the purpose of clearing the exhaust system.

    (b) Section E(2) of this regulation does not apply to emissions resulting directly from cold engine start-up and warm-up for the following maximum periods:

      (i) Engines that are idled continuously when not in service: 30 minutes;

      (ii) All other engines: 15 minutes.

    (c) Section E(2) and (3) of this regulation do not apply while maintenance, repair, or testing is being performed by qualified mechanics.

#### Regulation .06 Control of Particulate Matter.

*COMAR 26.11.09.06*

A. Areas I, II, V, and VI. The following apply in Areas I, II, V, and VI:

  (1) Fuel Burning Equipment Constructed Before January 17, 1972. A person may not cause or permit particulate matter caused by the combustion of solid fuel or residual oil in the fuel burning equipment erected before January 17, 1972, to be discharged into the atmosphere in excess of the amounts shown in Figure 1 in Regulation .09 of this chapter.

  (2) New Fuel Burning Equipment. A person may not cause or permit particulate matter caused by the combustion of solid fuel or residual oil in any fuel burning equipment erected on or after January 17, 1972, to be discharged into the atmosphere in excess of the amounts shown in Figure 2 in Regulation .09 of this chapter.

  (3) Exceptions.

    (a) The control officer may grant exceptions to §A(1) of this regulation under the following conditions:

      (i) When the application of §A(1), of this regulation, to a residential building housing two or less families creates undue economic hardship on individuals residing in it; or

      (ii) When the equipment's primary way of transferring heat is by the radiant method rather than a piped fluid system such as forced hot air, hydronic, or steam. Equipment in this category would include stoves, room heaters, floor or wall mounted circulating heaters, fireplaces, or similar devices.

    (b) Fuel burning equipment on ships is exempt from the provisions of this regulation.

    (c) The requirements in Figure 1 and Figure 2 in Regulation .09 of this chapter do not apply to fuel-burning equipment burning gas or distillate oil.

B. Areas III and IV. The following apply in Areas III and IV:

  (1) Dust-Collector Devices Required.

    (a) A person may not cause or permit the combustion of residual fuel oil in fuel burning equipment unless the equipment is fitted with a dust collector which is so designed that it can reasonably be expected to produce sufficient dust particle force, residence time, and particle retention to satisfy the requirements of Table 1 in Regulation .09 of this chapter. This paragraph does not apply to fuel burning equipment where by-product gases or by-product gases in combination with residual fuel oil are burned and where the effluent gases do not contain particulate matter in excess of the requirements of Table 1 (see Regulation .09 of this chapter), as applicable to residual oil burning.

    (b) A person may not cause or permit the combustion of solid fuel in fuel burning equipment unless the equipment is fitted with a dust collector which is so designed that it can reasonably be expected to produce sufficient dust particle force, residence time, and particle retention to meet the emission requirements of Table 1 in Regulation .09 of this chapter.

  (2) Residual Fuel-Oil-Burning Equipment. A person may not cause or permit particulate matter caused by the combustion of residual fuel oil to be discharged into the atmosphere in excess of the amounts shown in Table 1 in Regulation .09 of this chapter.

  (3) Solid Fuel Burning Equipment. A person may not cause or permit particulate matter caused by the combustion of solid fuel to be discharged into the atmosphere in excess of the amounts shown in Table 1 in Regulation .09 of this chapter.

  (4) Gas or Distillate Fuel-Oil-Burning Equipment. The requirements in Table 1 in Regulation .09 of this chapter do not apply to gas or distillate oil fuel-burning equipment.

  (5) Rotary Cup Burners. A person may not cause or permit the operation of a rotary cup burner on fuel-oil burning equipment having a maximum rated heat input of 13.0 million BTU (13.7 gigajoules) per hour or less, unless the fuel burning equipment operates on less than 60 days per calendar year.

  (6) Exceptions.

    (a) Fuel burning equipment burning gas with an interruptible gas service is exempt from the provisions of §B(1) and (2) of this regulation.

    (b) Fuel oil burning equipment which has been fitted with a dust collector or for which a dust collector contract has been let before July 1, 1974, is exempt from the provisions of §B(5) of this regulation.

    (c) The control officer may grant exceptions to §B(3) and (4) of this regulation under the following conditions:

      (i) When the application of either requirement to a residential building housing two or less families creates undue economic hardship on individual families residing there; or

      (ii) When the equipment's primary way of transferring heat is by the radiant method rather than a piped fluid system such as forced hot air, hydronic, or steam. Equipment in this category would include stoves, room heaters, floor or wall mounted circulating heaters, fireplaces, or similar devices.

    (d) Fuel burning equipment on ships is exempt from the provisions of this regulation.

C. Determination of Compliance. Compliance with the particulate matter emissions standards in this regulation shall be calculated as the average of 3 test runs using EPA Test Method 5 or other United States Environmental Protection Agency test method approved by the Department.

D. Small Wood Boilers and Biomass Fuel-Burning Equipment.

  (1) Small wood boilers are exempt from the provisions of §§A and B of this regulation.

  (2) The provisions of §§A and B of this regulation shall not apply to fuel-burning equipment installed after May 1, 2014 that burns only biomass fuels; however, the particulate matter requirements of Regulation .12 of this chapter apply.

#### Regulation .07 Control of Sulfur Oxides From Fuel Burning Equipment.

*COMAR 26.11.09.07*

A. Sulfur Content Limitations for Fuel. A person may not burn, sell, or make available for sale any fuel with a sulfur content by weight in excess of or which otherwise exceeds the following limitations:

  (1) In Areas I, II, V, and VI:

    (a) The combustion of all solid fuels on a premises where the sum total maximum rated heat input of all fuel burning equipment located on the premises is 100 million Btu (106 gigajoules) per hour or greater may not result in a total emission of oxides of sulfur in excess of 3.5 pounds per million Btu (1.50 kilograms per gigajoule) actual heat input per hour;

    (b) Residual fuel oils, 2.0 percent;

    (c) Distillate fuel oils, 0.3 percent;

    (d) Process gas used as fuel, 0.3 percent.

  (2) In Areas III and IV:

    (a) All solid fuels, 1.0 percent;

    (b) Distillate fuel oils, 0.3 percent;

    (c) Residual fuel oils, 1.0 percent.

B. Exceptions.

  (1) Fuel containing sulfur in excess of the amounts specified in §A of this regulation may be burned, sold, or made available for sale provided control equipment to desulfurize stack gases has been installed or other methods or devices are employed by the user or purchaser such that the discharge of sulfur dioxide to the atmosphere does not exceed that which would occur if fuels meeting the sulfur requirements of §A of this regulation were burned.

  (2) Fuel burning installations on ships and the sale of fuel for these installations are exempt from the provisions of this regulation pertaining to the burning of fuel of specified sulfur content.

  (3) For any premises located in Area I, for which the Department determines that compliance with this regulation will cause or exacerbate a violation of the National Ambient Air Quality Standards or federal Prevention of Significant Deterioration of Air Quality increments, the applicable emission standard is as follows:

    (a) For solid fuel, 1.8 pounds oxides of sulfur per million Btu (0.75 kilogram per gigajoule) actual heat input per hour;

    (b) For residual oil, 1.0 percent sulfur content by weight.

  (4) In Areas III and IV, for any existing fuel-burning equipment of the cyclone type in excess of 1000 million Btu (1055 gigajoules) actual heat input per hour, the emission standard for solid fuel is 3.5 pounds oxides of sulfur per million Btu (1.6 kilograms per gigajoule) actual heat input.

  (5) The provisions of §§A(1)(a) and A(2)(a) of this regulation shall not apply to fuel-burning equipment installed after May 1, 2014 that burns only biomass fuels.

C. Request for Analyses. Any person offering to sell or deliver fuel or any person responsible for equipment in which fuel or process gas is burned, upon request, shall submit to the Department or control officer such analyses of fuel or process gas as may be required to determine compliance with this regulation.

#### Regulation .08 Control of NO

*COMAR 26.11.09.08*

A. Applicability.

  (1) This regulation applies to a person who owns or operates an installation that causes emissions of NOx and is located at premises that have total potential to emit:

    (a) 25 tons or more per year of NOx and is located in Baltimore City, or Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles, Frederick, Harford, Howard, Montgomery, or Prince George's counties; or

    (b) 100 tons or more per year of NOx and is located in Allegany, Caroline, Dorchester, Garrett, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Washington, Wicomico, or Worcester counties.

  (2) Except as otherwise indicated, the emissions standards and requirements in this regulation apply at all times.

B. General Requirements and Conditions.

  (1) Emission Standards and Requirements.

    (a) A person who owns or operates an installation that causes NOx emissions subject to this regulation is in compliance with this regulation if the person establishes compliance with the emissions standards in §B(1)(c) of this regulation.

    (b) Any other person subject to this regulation shall comply with the applicable source specific requirements in §§C—J of this regulation.

    (c) Emission Standards in Pounds of NOx per Million Btu of heat input.

  (2) Demonstration of Compliance.

    (a) A person subject to a NOx emission standard in this regulation shall demonstrate compliance as follows:

      (i) For installations equipped with a CEM, compliance with the NOx emissions standards in this regulation shall be established using CEM data; or

      (ii) For all other installations, compliance with the NOx emissions standards in this regulation shall be established by stack tests using Method 07 of the test methods referenced in COMAR 26.11.01.04C(1) or other test methods approved by the Department and the EPA.

    (b) CEMs shall be certified in accordance with 40 CFR Part 60, Appendix B, or Part 75, Appendix A.

    (c) CEMs shall meet the quality assurance criteria in 40 CFR Part 60, Appendix F, or, for sources subject to Title IV of the Clean Air Act (Acid Rain), the quality assurance criteria in 40 CFR Part 75, Appendix B.

    (d) Except as otherwise established by the Department and approved by the EPA, for a person who establishes compliance with the NOx emissions standards in this regulation using a CEM, compliance shall be determined as 30-day rolling averages.

    (e) For a person who establishes compliance using a stack test, compliance shall be determined as averages of the stack test duration.

  (3) Alternative Standard.

    (a) A person who is subject to a source specific NOx emission standard under this regulation may propose an alternative standard for approval by the Department. Approval by the EPA is also required for an alternative standard approved by the Department.

    (b) A person who proposes an alternative emission standard for approval shall provide the following information to the Department:

      (i) Uncontrolled NOx emissions for the installation established with a CEM, or stack tests obtained during steady state operation;

      (ii) Stack tests or other data from an existing similar installation demonstrating that the applicable standard cannot be met;

      (iii) Identification of all proposed combustion modifications, fuel conversions, or other equipment or process modifications proposed for implementation to meet the alternative standard; and

      (iv) Equipment vendor costs from other facilities and other information that demonstrates, to the satisfaction of the Department, that the cost of complying with the emission standard in this regulation is unreasonable as compared to the cost of meeting an alternative standard.

  (4) Emissions Averaging.

    (a) Instead of meeting the source specific emission standards set forth in §§C—F of this regulation, a person who owns or operates more than one installation subject to this regulation may achieve compliance by meeting an overall source or system-wide NOx emission reduction that is equivalent to or greater than the NOx emission reduction that would be achieved if each individual installation complied with applicable requirements.

    (b) A person who proposes to comply with this regulation by averaging the emissions of two or more installations (separate stacks) shall submit a proposal to the Department for approval.

    (c) Any proposal for emissions averaging approved by the Department is not an acceptable means of compliance until the proposal is also approved by the EPA as a revision to the State Implementation Plan (SIP).

    (d) A person who proposes to average emissions to comply with this regulation shall:

      (i) Have the capability to continuously monitor NOx emissions for each installation to be included in the emissions averaging; and

      (ii) Demonstrate to the Department that on each day of operation the total plant or system-wide NOx emissions are equal to or less than the NOx emissions that would be discharged if each installation met the applicable emission standard in this regulation.

  (5) Operator Training.

    (a) For purposes of this regulation, the equipment operator to be trained may be the person who maintains the equipment and makes the necessary adjustments for efficient operation.

    (b) The operator training course sponsored by the Department shall include an in-house training course that is approved by the Department.

C. Requirements for Fuel-Burning Equipment with a Rated Heat Input Capacity of 250 Million Btu Per Hour or Greater.

  (1) A person who owns or operates fuel-burning equipment with a rated heat input capacity of 250 Million Btu per hour or greater shall equip each installation with combustion modifications or other technologies to meet the NOx emission rates in §C(2) of this regulation.

  (2) The maximum NOx emission rates as pounds of NOx per Million Btu per hour are:

    (a) 0.45 for tangentially coal fired units located at an electric generating facility (excluding high heat release units);

    (b) 0.50 for wall coal fired units located at an electric generating facility (excluding high heat release units);

    (c) 0.30 for oil fired or gas/oil fired units located at an electric generating facility;

    (d) 0.70 for coal fired cyclone fuel burning equipment located at an electric generating facility from May 1 through September 30 of each year and 1.5 during the period October 1 through April 30 of each year;

    (e) 0.70 for a tangentially coal fired high heat release unit located at an electric generating facility;

    (f) 0.80 for a wall coal fired high heat release unit located at an electric generating facility; and

    (g) 0.6 for coal fired cell burners at an electric generating facility.

  (3) A person who owns or operates fuel burning equipment with a rated heat input capacity of 250 Million Btu per hour or greater shall install, operate, calibrate, and maintain a certified NOx CEM or an alternative NOx monitoring method approved by the Department and the EPA on each installation.

D. Requirements for Fuel-Burning Equipment with a Rated Heat Input Capacity of Less than 250 Million Btu Per Hour and Greater than 100 Million Btu Per Hour.

  (1) Equipment Specifications and Standards.

    (a) A person who owns or operates coal fired fuel-burning equipment with a rated heat input capacity of less than 250 Million Btu per hour and greater than 100 Million Btu per hour shall install and operate in accordance with the manufacturer's specifications, combustion modifications, or other technologies to meet an emission rate of 0.65 pounds of NOx per Million Btu per hour.

    (b) All other fuel burning equipment with a rated heat input capacity of less than 250 Million Btu per hour and greater than 100 Million Btu per hour shall meet the NOx emission rates set forth in §B(1)(c) of this regulation.

  (2) Exceptions. The requirements in §D(1) of this regulation do not apply to a space heater as defined in Regulation .01B of this chapter or to fuel-burning equipment subject to §G of this regulation.

E. Requirements for Fuel-Burning Equipment with a Rated Heat Input Capacity of 100 Million Btu Per Hour or Less. A person who owns or operates fuel-burning equipment with a rated heat input capacity of 100 Million Btu per hour or less shall:

  (1) Submit to the Department an identification of each affected installation, the rated heat input capacity of each installation, and the type of fuel burned in each;

  (2) Perform a combustion analysis for each installation at least once each year and optimize combustion based on the analysis;

  (3) Maintain the results of the combustion analysis at the site for at least 2 years and make this data available to the Department and the EPA upon request;

  (4) Once every 3 years, require each operator of the installation to attend operator training programs on combustion optimization that are sponsored by the Department, the EPA, or equipment vendors; and

  (5) Prepare and maintain a record of training program attendance for each operator at the site, and make these records available to the Department upon request.

F. Requirements for Space Heaters.

  (1) A person who owns or operates a space heater as defined in Regulation .01B of this chapter shall:

    (a) Submit to the Department a list of each affected installation on the premises and the types of fuel used in each installation;

    (b) Develop an operating and maintenance plan to minimize NOx emissions based on the recommendations of equipment vendors and other information including the source's operating and maintenance experience;

    (c) Implement the operating and maintenance plan and maintain the plan at the premises for review upon request by the Department;

    (d) Require installation operators to attend in-State operator training programs once every 3 years on combustion optimization that are sponsored by the Department, the EPA, or equipment vendors; and

    (e) Prepare and maintain a record of training program attendance for each operator at the site and make these records available to the Department upon request.

  (2) A person who owns or operates an installation that no longer qualifies as a space heater shall inform the Department not later than 60 days after the date when the fuel-burning equipment did not qualify, and shall meet the applicable fuel-burning equipment RACT requirement in this regulation.

G. Requirements for Fuel-Burning Equipment with a Capacity Factor of 15 Percent or Less, and Combustion Turbines with a Capacity Factor Greater than 15 Percent.

  (1) A person who owns or operates fuel-burning equipment with a capacity factor (as defined in 40 CFR Part 72.2) of 15 percent or less shall:

    (a) Provide certification of the capacity factor of the equipment to the Department in writing;

    (b) For fuel-burning equipment that operates more than 500 hours during a calendar year, perform a combustion analysis and optimize combustion at least once annually;

    (c) Maintain the results of the combustion analysis at the site for at least 2 years and make these results available to the Department and the EPA upon request;

    (d) Require each operator of an installation, except combustion turbines, to attend operator training programs at least once every 3 years, on combustion optimization that are sponsored by the Department, the EPA, or equipment vendors; and

    (e) Maintain a record of training program attendance for each operator at the site, and make these records available to the Department upon request.

  (2) A person who owns or operates a combustion turbine with a capacity factor greater than 15 percent shall meet an hourly average NOx emission rate of not more than 42 ppm when burning gas or 65 ppm when burning fuel oil (dry volume at 15 percent oxygen) or meet applicable Prevention of Significant Deterioration limits, whichever is more restrictive.

H. Repealed.

I. Requirements for Glass Melting Furnaces.

  (1) A person who owns or operates a glass melting furnace shall optimize combustion by performing daily oxygen tests and maintaining excess oxygen at 4.5 percent or less.

  (2) Records on the daily oxygen tests shall be maintained on site for at least 2 years and made available to the Department upon request.

J. Requirements for Industrial Furnaces and Other Miscellaneous Installations that Cause Emissions of NOx. A person who owns or operates any installation other than fuel-burning equipment that causes NOx emissions shall:

  (1) Maintain good operating practices as recommended by the equipment vendor to minimize NOx emissions;

  (2) Prepare and implement a written in-house training program for all operators of these installations that include instruction on good operating and maintenance practices for the particular installation;

  (3) Maintain and make available to the Department, upon request, the written in-house operator training program;

  (4) Burn only gas in each installation, where gas is available, during the period May 1 through September 30 of each year; and

  (5) Maintain operator training attendance records for each operator at the site for at least 2 years and make these records available to the Department upon request.

K. Reporting Requirements.

  (1) When demonstration of compliance with the NOx emission standards in this regulation is based on CEM data, quarterly emission reports shall be submitted to the Department on or before the thirtieth day of the month following the end of each calendar quarter.

  (2) When compliance with this regulation is demonstrated by a stack test, the results of the stack tests required by this regulation shall be submitted to the Department within 45 days after completion of the test.

  (3) A person subject to this regulation shall maintain annual fuel use records on site for not less than 3 years, and make these records available to the Department upon request.

#### Regulation .09 Tables and Diagrams.

*COMAR 26.11.09.09*

Table 1 Emission Standards and Dust Collector Performance Standards for Fuel-Burning Equipment
          
          
            Equipment Description
            Max. Rated Heat Inputin million Btu (gigajoules)per hour per furnace
            Max. Allowable Emissionsof Part. Matter—gr/scfd(mg/dscm)
          
        
        
          
            Existing and new equipmentburning residual oil
            Less than 13 (13.7)13—50 (13.7—52.8)50—250 (52.8—265)
            No Requirement (a)0.03 (69)0.020 (46)
          
          
            Existing and modifiedequipment (b) burningresidual oil
            Greater than 250 (265)
            0.020 (46)
          
          
            New equipment burningresidual oil
            Greater than 250 (265)
            0.01 (23)
          
          
            Equipment burningsolid fuel (c):Existing (b)NewNew and Existing
            Less than 250 (264)Less than 250 (264)250 (264) and Greater
            0.05 (114)0.03 (69)0.03 (69)

(a) Construction of residual oil fired units of less than 13 million Btu (13.7 gigajoules) per hour prohibited (see Regulation .04).

(b) Built before July 1, 1975.

(c) Construction of new solid fuel fired units of less than 35 million Btu (37 gigajoules) per hour prohibited (see Regulation .04B).

See Figures 1 & 2.

Notes:

1. The construction of new residual oil fuel-burning equipment under 13 MM Btu (13.7 gigajoules) per hour is prohibited under Regulation .04.

2. The construction of new solid fuel-burning equipment under 13 MM Btu (13.7 gigajoules) per hour is prohibited unless an exception has been approved by the Department (see Regulation .04).

3. New fuel-burning equipment over 250 MM Btu (263.8 gigajoules) per hour are regulated by NSPS source regulations COMAR 26.11.06.12.

4. Depending on load factor, fuel ash content, and control equipment, fuel-burning equipment which has a heat input greater than approximately 25 MM Btu (26.4 gigajoules) per hour may be subject to Prevention of Significant Deterioration Review (40 U.S.C. Part §52.21) and consequent additional control requirement.

#### Regulation .10 Requirements to Burn Used Oil and Waste Combustible Fluid as Fuel.

*COMAR 26.11.09.10*

A. General Requirements.

  (1) A person who proposes to burn used oil in fuel-burning equipment shall submit the following information to the Department:

    (a) A description of any fuel-burning equipment in which used oil is to be burned, including the unit’s location and rated heat input capacity;

    (b) The type and amount of fuel currently being used in any fuel-burning equipment in which used oil is to be burned and the gallons of used oil expected to be burned annually;

    (c) The maximum blend (percent) of used oil to be burned as fuel in any fuel-burning equipment at any time; and

    (d) An analysis by an independent laboratory of a representative sample of the used oil, which shall include the concentration of each of the materials listed in §B of this regulation, the sulfur content, the PCB concentration, and the flash point.

  (2) A person who burns fuel oil in fuel-burning equipment with a rated heat input capacity less than 50 million Btu per hour in accordance with a permit to construct or a registration pursuant to COMAR 26.11.02.02A may burn on-specification used oil in that equipment after submitting the information in §A(1) of this regulation.

  (3) A person who is burning used oil or WCF under a current written approval from the Department may continue to burn the approved material if:

    (a) The person demonstrates that any WCF being burned satisfies the definition of that term in Regulation .01B of this chapter;

    (b) The used oil or WCF is being burned in an authorized installation;

    (c) The conditions of the approval are continuously met; and

    (d) The sulfur requirement in §B(1)(g) of this regulation is not exceeded.

  (4) A person shall obtain written approval from the Department before burning:

    (a) On-specification used oil in any fuel-burning equipment that has not been registered or previously issued a permit to construct pursuant to COMAR 26.11.02.02 to burn fuel oil;

    (b) On-specification used oil in any fuel-burning equipment that has a rated heat input capacity of 50 million Btu per hour or greater;

    (c) On-specification used oil in any installation other than fuel-burning equipment; or

    (d) Waste combustible fluid or off-specification used oil as fuel in any installation.

  (5) A person who obtains written approval from the Department to burn used oil or WCF shall burn only those materials for which approval has been obtained.

  (6) Except as provided in §A(7) of this regulation and notwithstanding any applicable conditions in permits issued by the Department, a person may burn off-specification used oil only in those installations listed at 40 CFR §279.12(c).

  (7) The requirement to burn off-specification used oil only in those installations listed at 40 CFR §279.12(c) does not apply if the used oil is off-specification only because of the sulfur content.

B. Specifications for Used Oil.

  (1) Except as provided in §B(2) of this regulation, used oil specifications are as follows:

  (2) For used oil that satisfies the rebuttable presumption for halogens at 40 CFR §279.10(b)(1)(ii) and 40 CFR §279.63, the maximum allowable level for halogens is 4,000 ppm.

C. Additional Requirements for Burning Used Oil or WCF Containing Polychlorinated Biphenyls (PCBs).

  (1) Used oil or WCF containing quantifiable levels of PCB (i.e. 2 ppm or greater, but less than 50 ppm) may be burned only in those installations listed at 40 CFR §279.12(c) or 40 CFR §761.

  (2) Used oil or WCF with a PCB concentration of 50 ppm or greater is hazardous waste and may only be burned in accordance with the requirements in COMAR 26.13.07 and 40 CFR §761.

D. Reporting Requirements. By April 1of each year, a person subject to this regulation shall submit a report, in accordance with COMAR 26.11.01.05C, that provides information on:

  (1) The quantity of used oil or WCF burned during the previous year; and

  (2) The equipment in which the used oil or WCF was burned.

#### Regulation .11 Control of Particulate Matter from Small Wood Boilers — Repealed.

*COMAR 26.11.09.11*

#### Regulation .12 Standards for Biomass Fuel-Burning Equipment Equal to or Greater Than 350,000 Btu/hr.

*COMAR 26.11.09.12*

A. Applicability. The requirements of this regulation apply to a person who owns or operates biomass fuel-burning equipment equal to or greater than 350,000 Btu/hr heat input capacity.

B. Federal Requirements. The requirements of 40 CFR 63 Subparts DDDDD and JJJJJJ, as amended, are applicable.

C. Requirements for Biomass Fuel-Burning Equipment Greater Than or Equal to 10 MMBtu/hr Heat Input Capacity. A person subject to the requirements of this regulation may not install or operate new biomass fuel-burning equipment, unless the following standards and requirements are met:

  (1) A particulate matter emission standard of 0.07 lb/MMBtu heat input if the total heat input capacity is less than 30 MMBtu/hr;

  (2) A particulate matter emission standard of 0.03 lb/MMBtu heat input if the total heat input capacity is equal to or greater than 30 MMBtu/hr;

  (3) A NOx emission standard of 0.30 lb/MMBtu heat input, if the heat input capacity is less than or equal to 250 MMBtu/hr;

  (4) A NOx emission standard of 0.25 lb/MMBtu heat input, if the heat input capacity is greater than 250 MMBtu/hr; and

  (5) An initial and biennial tune-ups are conducted.

D. Requirements for Biomass Fuel-Burning Equipment Greater Than 1.5 MMBtu/hr and Less Than 10 MMBtu/hr Heat Input Capacity. A person subject to the requirements of this regulation may not install or operate new biomass fuel-burning equipment unless the following standards and requirements are met:

  (1) A particulate matter emission standard of 0.23 lb/MMBtu heat input in Areas I, II, V and VI;

  (2) A particulate matter emission standard of 0.1 lb/MMBtu heat input in Areas III and IV;

  (3) A NOx emission standard of 0.30 lb/MMBtu heat input; and

  (4) An initial and biennial tune-ups are conducted.

E. Requirements for Biomass Fuel-Burning Equipment Less Than or Equal to 1.5 MMBtu/hr and Greater than 350,000Btu/hr Heat Input Capacity. A person subject to the requirements of this regulation may not install or operate new biomass fired fuel-burning equipment that is less than equal to 1.5 MMBtu/hr heat input and greater than 350,000 Btu/hr heat input unless the following standards are met:

  (1) A particulate matter emission standard of 0.35 lb/MMBtu heat input in Areas I, II, V and VI;

  (2) A particulate matter emission standard of 0.1 lb/MMBtu heat input in Areas III and IV;

  (3) A NOx emission standard of 0.30 lb/MMBtu heat input; and

  (4) An initial and biennial tune-ups are conducted.

F. A person subject to the requirements of this regulation may not operate biomass fuel-burning equipment installed prior to May 1, 2014 unless:

  (1) An initial and biennial tune-ups are conducted; and

  (2) All the standards and requirements of Regulations .03 and .05—.09 of this chapter are met.

G. A person subject to the requirements of this regulation shall operate the fuel-burning equipment in accordance with the design and maintenance specifications of the manufacturer in order to meet and maintain compliance with the applicable emission standards and performance requirements.

H. Startup and Shutdown Requirements. A person subject to the requirements of §§C, D and E of this regulation shall minimize the boiler's startup and shutdown periods following the:

  (1) Manufacturer's recommended procedures, if available; or

  (2) Recommended procedures for a unit of similar design for which manufacturer's recommended procedures are available if manufacturer's recommended procedures for the actual unit are not available.

I. Compliance. A person subject to the requirements of:

  (1) Section C of this regulation shall demonstrate compliance with the emissions standards by following 40 CFR Part 60, Appendix A, as amended.

  (2) Sections D and E of this regulation shall demonstrate compliance by providing certification, on a form provided by the Department, from the manufacturer that the fuel-burning equipment is designed and tested to meet the applicable particulate matter and NOx standards including a copy of test results with EPA approved test methods on fuel-burning equipment in the same model line as the new fuel-burning equipment.

  (3) The particulate matter emission standards of §C, D or E of this regulation who owns or operates biomass fuel-burning equipment subject to the requirements of 40 CFR 63 Subparts DDDDD and JJJJJJ, as amended, shall:

    (a) Demonstrate continuous compliance with the work practice and management practice standards as specified in 40 CFR 63; and

    (b) Comply with the monitoring, installation, operation, and maintenance requirements as specified in 40 CFR 63.

  (4) The NOx emission standards of §C of this regulation and who owns or operates biomass fuel-burning equipment subject to the requirements of 40 CFR 63 Subparts DDDDD and JJJJJJ, as amended, shall meet the following requirements:

    (a) For fuel-burning equipment with a heat-input capacity greater than or equal to 100 MMBtu/hr and less than 250 MMBtu/hr, demonstrate compliance with the NOx emission standards of §C of this regulation in accordance with Regulation .08B(2) of this chapter; and

    (b) For fuel-burning equipment with a heat-input capacity greater than or equal to 250 MMBtu/hr subject to the requirements of §C of this regulation shall demonstrate compliance with the NOx emission standards of Regulation .12C of this chapter in accordance with Regulation .08B(2) of this chapter by installing, operating, calibrating, and maintaining a certified NOx CEM in accordance with Regulation .08C(3) of this chapter.

J. Reporting and Record-Keeping Requirements.

  (1) A person subject to the particulate matter emission standards of §C, D or E of this regulation who owns or operates biomass fuel-burning equipment subject to the requirements of 40 CFR 63 Subparts DDDDD and JJJJJJ, as amended, shall comply with the notification, reporting, and record-keeping requirements of 40 CFR 63.

  (2) A person subject to the NOx emission standards of §C of this regulation and who owns or operates biomass fuel-burning equipment subject to the requirements of 40 CFR 63 Subparts DDDDD and JJJJJJ, as amended, shall comply with the reporting requirements of Regulation .08K of this chapter.

  (3) A person subject to the to the emission standards of §C, D or E of this regulation who owns or operates biomass fuel-burning equipment not subject to the requirements of 40 CFR 63 Subparts DDDDD and JJJJJJ shall:

    (a) Keep records for each boiler that identify:

      (i) The date of tune-up operations;

      (ii) The procedures followed for tune-up;

      (iii) The manufacturer's specifications to which the boiler was tuned;

      (iv) The occurrence and duration of each malfunction of the boiler, or of the associated air pollution control, or monitoring equipment; and

      (v) Actions taken during periods of malfunction to minimize emissions including corrective actions to restore the malfunctioning boiler, air pollution control, or monitoring equipment to its normal or usual manner of operation; and

    (b) Maintain records on site for not less than 3 years, and make these records available to the Department upon request.

### Chapter 10 — Control of Iron and Steel Production Installations

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1980 (7:12 Md. R. 1148)

**Administrative History:** Regulation .04B amended effective June 8, 1981 (8:9 Md. R. 800)

**Administrative History:** Chapter revised effective October 10, 1981 (8:18 Md. R. 1480)

**Administrative History:** Regulation .02B amended effective February 25, 1983 (10:1 Md. R. 30)

**Administrative History:** Regulation .03B amended effective March 24, 1987 (14:4 Md. R. 419); January 5, 1988 (14:24 Md. R. 2555)

**Administrative History:** Regulation .07 amended effective February 10, 1984 (10:26 Md. R. 2341); July 2, 1985 (12:11 Md. R. 1049)

**Administrative History:** For the history of this subtitle before June 18, 1980, see the Administrative History of COMAR 26.11.01.

**Administrative History:** Chapter recodified from COMAR 10.18.10 to COMAR 26.11.10

**Administrative History:** Regulation .07 amended effective August 19, 1991 (18:16 Md. R. 1813); February 17, 1992 (19:3 Md. R. 306)

**Administrative History:** Chapter revised effective November 2, 1998 (25:22 Md. R. 1653)

**Administrative History:** Regulation .01 amended effective December 25, 2000 (27:25 Md. R. 2285)

**Administrative History:** Regulation .01B amended effective January 29, 2007 (34:2 Md. R. 138)

**Administrative History:** Regulation .03A amended effective November 24, 2003 (30:23 Md. R. 1653); January 29, 2007 (34:2 Md. R. 138)

**Administrative History:** Regulation .03C amended effective October 2, 2000 (27:19 Md. R. 1731)

**Administrative History:** Regulation .03D adopted effective January 29, 2007 (34:2 Md. R. 138)

**Administrative History:** Regulation .03D amended effective June 29, 2009 (36:13 Md. R. 901)

**Administrative History:** Regulation .05-1 adopted effective September 12, 2005 (32:18 Md. R. 1522)

**Administrative History:** Regulation .06 amended and recodified to Regulation .07, and new Regulation .06 adopted effective December 25, 2000 (27:25 Md. R. 2285)

**Administrative History:** Regulation .06C amended effective May 9, 2016 (43:9 Md. R. 531)

#### Regulation .01 Definitions.

*COMAR 26.11.10.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Cold rolling operation” means an installation that rolls steel that is not preheated.

  (2) “Continuous casting” means a method of pouring liquid steel into semifinished shapes.

  (3) “Good management practices” means operating and maintenance practices for controlling processes within design conditions and minimizing air pollution to the extent practicable with existing equipment.

  (4) “Hot dip coating” means a molten inorganic formulation used for coating on strip steel.

  (5) “Hot rolling operation” means an installation that rolls preheated steel.

  (6) Iron and Steel Production Installations.

    (a) “Iron and steel production installations” means those installations and buildings used in the production of iron and steel.

    (b) As used in this chapter, the term “installation” means an iron and steel production installation.

    (c) “Iron and steel production installations” include the following:

      (i) Materials-handling systems, including systems for iron ore, ore pellets, coal, limestone, fluxes, sinter, coke, steel-alloying ingredients, slag, and dust handling;

      (ii) Blast furnace iron making;

      (iii) Sintering plants;

      (iv) Basic oxygen furnace, open hearth furnace, and electric furnace steel-making equipment;

      (v) Coke ovens;

      (vi) Molten material transfer and process operations, including teeming, tapping, reladling, and casting;

      (vii) Continuous casting equipment;

      (viii) Scarfing and other surface defect removal equipment;

      (ix) Blast furnace pig-casting equipment;

      (x) Scrap preparation equipment, including scrap melting and burning equipment;

      (xi) Molten metal desulfurization equipment;

      (xii) Raw material drying system;

      (xiii) Steel-cleaning equipment, including pickling; and

      (xiv) Steel-coating equipment.

  (7) “Opacity record” means the highest average of any 6 consecutive minutes of readings measured and calculated in the manner described in the Department's Technical Memorandum (TM) 91-01 Method 1004I.

  (8) “Tons of sinter produced” means the weight of sinter that is transferred to the blast furnace stockhouse during a calendar day.

  (9) “Venturi scrubber flow rate” means the water flow rate through the venturi scrubber.

  (10) “Venturi scrubber pressure drop” means the arithmetic difference between the static pressures of the gas stream at the inlet and the outlet of the venturi scrubber.

#### Regulation .02 Applicability.

*COMAR 26.11.10.02*

A. Any source which is subject to the provisions of this chapter is also subject to the applicable provisions of any other chapter. Except as provided in §B of this regulation, if there is any inconsistency between the emission standards for specific installations in this chapter and those set forth elsewhere in the subtitle, the emission standards in this chapter are controlling.

B. The following emission standards set forth elsewhere in this subtitle supersede any less restrictive emission standard in this chapter:

  (1) COMAR 26.11.06.12 (New Source Performance Standards);

  (2) COMAR 26.11.15.02 (National Emission Standards for Hazardous Air Pollutants);

  (3) COMAR 26.11.17 Requirements for Major New Sources and Modifications; and

  (4) COMAR 26.11.06.14 (Prevention of Significant Deterioration).

C. This chapter is only applicable in Area III.

#### Regulation .03 Visible Emissions.

*COMAR 26.11.10.03*

A. General.

  (1) A person may not cause or permit the discharge of emissions from any installation, other than water in an uncombined form, which is visible to human observers.

  (2) Exceptions. Section A(1) of this regulation does not apply to the following:

    (a) Fugitive emissions from iron and steel production installations in compliance with §B of this regulation and listed in Regulation .04B(2) of this chapter;

    (b) Fugitive emissions from metallurgical slot-type by-product coke ovens;

    (c) Fugitive emissions from skull cracker oxygen lancing to the extent addressed by Regulation .04C of this chapter;

    (d) Fugitive emissions from batch-type hot dip galvanizing installations in compliance with COMAR 26.11.12;

    (e) Confined emissions resulting from start-ups, process modifications or adjustments, or occasional cleaning of control equipment if:

      (i) The visible emissions are not greater than 40 percent opacity; and

      (ii) The visible emissions do not occur for more than 6 consecutive minutes in any 60 minute period; and

    (f) Visible emissions from sintering plant scrubbers that are in compliance with the conditions in §D of this regulation.

B. Visible Emissions from Certain Installations. After complying with the requirements of Regulation .04B of this chapter, a person may not cause or permit the discharge of visible fugitive emissions into the outdoor atmosphere, other than water in an uncombined form, which is greater than the following specified visible emission standards:

  (1) Blast furnaces constructed before January 1, 1977 (casthouse building): 50 percent opacity as averaged over any consecutive 60-minute period;

  (2) Blast furnaces constructed on or after January 1, 1977 (casthouse building): 5 percent opacity as averaged over any consecutive 6-minute period, except for 20 percent opacity as averaged over any consecutive 6-minute period during drilling, oxygen lancing, and plugging of the furnace tapholes;

  (3) Electric arc furnace shop building: no visible emissions, except for 20 percent opacity during charging and 40 percent opacity during tapping;

  (4) Sinter plant building: 10 percent opacity as averaged over any consecutive 6-minute period;

  (5) Basic oxygen furnace shop building: 15 percent opacity from the basic oxygen furnace shop roof monitor based on a 3-observation rolling arithmetic average of the opacity records recorded on each of 3 calendar days of observation.

C. 15 Percent Standard.

  (1) The provision described in §B(5) of this regulation is referred to as the 15 percent standard. The first exceedance of the 15 percent standard during each calendar year, from January 1 through December 31, does not constitute a violation of the 15 percent standard. The second exceedance and all subsequent exceedances of the 15 percent standard during the calendar year are prohibited.

  (2) Any source subject to §B(5) of this regulation shall, at a minimum, schedule one observation on each of three different calendar days per calendar week, and perform the observations on the days scheduled, unless weather or other conditions on one or more of those days prevent observations to be made in accordance with Method 9.

  (3) If weather or other conditions prevent Method 9 observations from being made, a person shall perform the missing observation or observations during that week or in the following 2 calendar weeks in addition to the minimum three observations required for each calendar week, unless prevented by weather or other conditions.

D. Sintering Plant.

  (1) The owner or operator of a sintering plant equipped with a two stack wet scrubber system and subject to the particulate matter requirement in Regulation .04A of this chapter, shall assure continuous compliance with the particulate matter requirement in Regulation .04A of this chapter by maintaining the hourly average scrubber pressure drop and water flow rate to each scrubber in accordance with the operating conditions in §D(2) of this regulation.

  (2) Scrubber1 Operating Conditions and Requirements.

  (3) One or more of the scrubbers shall be in operation whenever the sintering plant is in operation.

  (4) Compliance with particulate matter requirements is achieved if at any time the hourly block average of the scrubber pressure drop and water flow rate are not less than the values in §D(2) of this regulation.

  (5) The scrubber pressure drop and water flow rate shall be monitored by a continuous monitoring system and the monitoring system data made available to the Department upon request.

  (6) Stack Testing Requirements.

    (a) The affected sintering plant shall be stack tested for particulate matter at a frequency of not less than once each 2.5 years. During a compliance stack test, the scrubber pressure drop and water flow rate shall be recorded as hourly block averages.

    (b) If the scrubber pressure drop and water flow rate determined during a compliance stack test differ from the values in §D(2) of this regulation, the owner or operator may request the Department to change the values in §D(2) of this regulation to reflect the revised values.

    (c) Upon receiving a request, the Department may propose amending the regulation to include the revised values. Any amendment shall be submitted to the EPA to be included in the approved SIP.

#### Regulation .04 Particulate Matter.

*COMAR 26.11.10.04*

A. Confined Emissions. A person may not cause or permit the discharge of confined emissions of particulate matter in excess of 0.03 gr/scfd (68.7 mg/dscm) from any iron or steel production installation.

B. Fugitive Emissions.

  (1) A person may not cause or permit the discharge of fugitive emissions of particulate matter from an iron and steel production installation unless reasonable control methods are employed to minimize emissions. These methods include the use of hoods and control equipment to capture emissions, other control techniques, and process restrictions.

  (2) Reasonable Control Methods Required to Satisfy §B(1) of this Regulation. Reasonable control methods required to satisfy §B(1) of this regulation are listed below for the installation specified, grouped by major buildings or structures. No other control methods are required for those buildings, structures, or installations. The reasonable control methods are:

    (a) Blast furnaces constructed before January 1, 1977 (casthouse building): regular maintenance of iron notches, troughs, and slag runners;

    (b) Blast furnaces constructed on or after January 1, 1977 (casthouse building): iron notch, trough, and slag runners—hoods and control equipment;

    (c) Basic oxygen furnace shop building:

      (i) Hot metal reladling—hoods and control equipment on the normal hot metal pit and flame suppression on the emergency pit,

      (ii) Oxygen lance hole—suppression maintained on all furnace oxygen lance openings;

      (iii) Furnace charging, refining, and tapping—use of a primary hood and control equipment with good operating practices and regular maintenance of all system components and ductwork;

    (d) Top-charged electric arc furnaces: furnace charging, metal melting, refining, and tapping—hoods and control equipment;

    (e) Argon-oxygen decarbonization vessels: vessel charging, refining, tapping, and alloy addition—hoods and control equipment;

    (f) Sinter plant building: breaker box, windbox, hot and cold screens, entrance and exit from the sinter cooler, and material handling transfer points—hooded and exhausted into control equipment.

  (3) All required reasonable control methods shall be designed to represent good engineering practice and constructed in accordance with the Department's permit to construct approval. The reasonable control methods employed shall be operated and maintained to comply with the visible emission standards set forth in Regulation .03A and B of this chapter and in accordance with any conditions imposed in the Department's permit to operate for that installation.

  (4) Emissions from control equipment constructed pursuant to §B(1) and (2) of this regulation, shall meet the requirements of §A of this regulation and Regulation .03A(1) of this chapter.

  (5) The discharge of emissions from air pollution control equipment constructed to capture coke oven pushing emissions in accordance with §B(2)(e) of this regulation may not exceed either 0.03 gr/scfd (68.7 mg/dscm) or 0.1 pound/ton (0.05 gram/kilometer) coke pushed, whichever is more restrictive. The pushing period is defined as commencing with the initial movement of coke and terminating with the hot car entering the quench tower.

C. Skull Cracker Oxygen Lancing. A person may not cause or permit the oxygen lancing of iron and steel scrap in excess of 400 tons each year. This oxygen lancing is limited to the months of December, January, and February.

#### Regulation .05 Sulfur Content Limitations for Coke Oven Gas.

*COMAR 26.11.10.05*

Coke oven process gas used as fuel may not contain a plant-wide average of greater than 1.0 percent sulfur by weight in any 2-hour period.

#### Regulation .05-1 Control of Carbon Monoxide Emissions from Basic Oxygen Furnaces.

*COMAR 26.11.10.05-1*

A. Emission Standard. A person who owns or operates a basic oxygen furnace may not cause or allow carbon monoxide emissions in the exhaust gases to exceed 1 percent by volume of the total exhaust gases discharged into the air.

B. Testing Requirements.

  (1) Stack tests shall be performed using the EPA Test Method 10 or an alternative test method approved by the Department and the EPA.

  (2) An initial stack test shall be performed on or before May 1, 2006.

  (3) Additional stack tests shall be performed not later than 2-1/2 years after the previous test. Upon request, the specific dates on which each additional test is to be performed may be adjusted by the Department so that the testing is performed consistent with the schedules for other testing at the facility.

C. Determination of Compliance.

  (1) In order to determine the total carbon monoxide being discharged from the basic oxygen furnaces, tests shall be performed simultaneously at each stack through which the gases from the basic oxygen furnaces are exhausted.

  (2) Each test, with a duration of at least 1 hour, shall be considered a test run.

  (3) Compliance with the 1 percent standard shall be determined as the average of three test runs.

#### Regulation .06 Control of Volatile Organic Compounds from Iron and Steel Production Installations.

*COMAR 26.11.10.06*

A. Applicability.

  (1) This regulation applies to a person who owns or operates an installation that has actual VOC emissions of 20 pounds or more per day located at an iron and steel production facility that has the potential to emit total plant wide VOC emissions of 25 tons or more per year.

  (2) Roll coaters at hot dip coating installations located at an iron and steel production facility are subject to COMAR 26.11.19.05 and federal New Source Performance Standards incorporated by reference at COMAR 26.11.06.12.

B. Control of VOC Emissions from Installations That Use Rolling Oils or Rust Preventive Oils. The following installations may not use oils or rust preventive oils that have a vapor pressure greater than 1 millimeter of mercury at 25° Celsius:

  (1) Hot rolling operations;

  (2) Cold rolling operations; and

  (3) Coating operations including both hot dip coating and electrolytic plating installations.

C. Control of VOC Emissions from Sintering Plants.

  (1) A person who owns or operates a sintering plant subject to this regulation shall meet an emissions standard calculated on a daily average basis of 0.25 pound of VOC per ton of sinter produced.

  (2) Until May 1, 2002, a person who owns or operates a sintering plant subject to this regulation shall demonstrate compliance with §C(1) of this regulation by conducting stack tests during the months of June 2001 and December 2001 in accordance with a test protocol approved by the Department.

  (3) A person who owns or operates a sintering plant subject to this regulation shall:

    (a) By August 1, 2001, install a CEM system, including flow meters, approved by the Department to continuously measure VOC emissions and gas flow rates from each of the sintering plant scrubber stacks in order to calculate daily average VOC emissions;

    (b) By December 31, 2001, certify and operate the CEM system in accordance with COMAR 26.11.01.11;

    (c) Based on the certification results and other data generated by the CEM system, conduct a review of plant operations to enable compliance with the standard in §C(1) of this regulation to be achieved;

    (d) By March 1, 2002, perform sufficient analyses to determine the non-VOC content of the discharge from the scrubber stacks to establish a VOC correction factor to be used with CEM data to calculate daily VOC emissions from the scrubber stacks;

    (e) Beginning May 1, 2002, utilize the CEM system and other necessary data to demonstrate continuous compliance with §C(1) of this regulation; and

    (f) Beginning January 1, 2002, provide quarterly reports to the Department summarizing:

      (i) Daily average VOC emissions from the sinter plant stacks; and

      (ii) Daily sinter production.

  (4) After the CEM system has been in operation for at least 24 months, the CEM data, emission standard, compliance rate and other information relative to the operation of the sinter plant shall be reviewed to determine if revisions are necessary.

D. Control of VOC Emissions for Continuous Casters. A person who owns or operates a continuous caster shall skim oil and grease from the cooling water at the continuous caster waste water treatment facility.

E. Control of VOC Emissions from Miscellaneous Production Installations. A person who owns or operates a basic oxygen furnace or a blast furnace shall:

  (1) Develop and maintain a good management practices plan for each installation;

  (2) By January 1, 2002, implement the good management practices plan to reduce VOC emissions; and

  (3) Make the plan available to the Department upon request.

#### Regulation .07 Testing and Observation Procedures.

*COMAR 26.11.10.07*

For the purpose of demonstrating compliance with these regulations, the Department's Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” (January 1991), which is incorporated by reference in COMAR 26.11.01.04C, shall be used. Installations causing intermittent or noncontinuous emissions shall be stack tested by a procedure which provides for sampling only during the discharge of emissions.

### Chapter 11 — Control of Petroleum Products Installations, including Asphalt Paving and Asphalt Concrete Plants

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1980 (7:12 Md. R. 1148)

**Administrative History:** Regulation .02 amended effective June 8, 1981 (8:9 Md. R. 800)

**Administrative History:** Regulations .02A and .04C amended effective August 16, 1983 (10:14 Md. R. 1262)

**Administrative History:** Regulation .04C amended effective June 8, 1981 (8:9 Md. R. 800)

**Administrative History:** Regulation .05 repealed effective June 8, 1981 (8:9 Md. R. 800)

**Administrative History:** For the history of this subtitle before June 18, 1980, see the Administrative History of COMAR 26.11.01.

**Administrative History:** Chapter recodified from COMAR 10.18.11 to COMAR 26.11.11

**Administrative History:** Regulation .02B, C amended effective April 26, 1993 (20:8 Md. R. 726)

**Administrative History:** Regulation .04C amended effective April 26, 1993 (20:8 Md. R. 726)

**Administrative History:** Regulation .04 repealed effective October 5, 1998 (25:20 Md. R. 1533)

**Administrative History:** Regulation .06 repealed effective September 7, 1998 (25:18 Md. R. 1438)

#### Regulation .01 Applicability.

*COMAR 26.11.11.01*

Any source which is subject to the provisions of this chapter is also subject to the provisions of any other chapter. However, when this chapter establishes an emission standard for a specific installation which differs from the general emission standard in COMAR 26.11.06.01--.09, this chapter takes precedence.

#### Regulation .02 Asphalt Paving.

*COMAR 26.11.11.02*

A. Definitions.

  (1) “Asphalt” means a black to dark brown solid or semisolid material which liquefies when heated and the predominating constituents of which are bitumens which occur in the solid or semisolid form in nature or are obtained by petroleum refining.

  (2) “Asphalt paving” means the applying of an asphaltic material to a surface.

  (3) “Cutback asphalt” means an asphalt cement which has been liquefied by blending with VOC.

  (4) “Emulsified asphalt” means a suspension or emulsion of asphalt and water as designated in ASTM or AASHTO Specifications as amended through November 14, 1980.

  (5) “Penetrating prime coat” means an application of liquid asphalt to prepare an untreated base for an asphalt paving operation.

B. A person may not cause or permit the use or application of cutback asphalt for asphalt paving. Emulsified asphalt or other materials upon approval of the Department is acceptable.

C. Exemptions. The provisions of §B of this regulation do not apply to the use or application of cutback asphalt where:

  (1) Long-life stockpile storage is necessary;

  (2) The use or application from October 15 through April 15 is necessary; or

  (3) Cutback asphalt is used solely as a penetrating prime coat.

#### Regulation .03 Asphalt Concrete Plants in Areas I, II, V, and VI.

*COMAR 26.11.11.03*

A person may not cause or permit particulate matter to be discharged from any asphalt concrete plant constructed before June 11, 1973 in excess of 0.05 gr/SCFD (92 kg/dscm).

### Chapter 12 — Control of Batch Type Hot-Dip Galvanizing Installations

**Authority:** Environment Article, Title 2, Annotated Code of Maryland

**Administrative History:** Effective date: June 8, 1981 (8:9 Md. R. 800)

**Administrative History:** Regulation .04B amended effective July 2, 1985 (12:11 Md. R. 1050)

**Administrative History:** Chapter recodified from COMAR 10.18.12 to COMAR 26.11.12

**Administrative History:** Regulation .01 amended effective May 8, 1995 (22:9 Md. R. 648)

**Administrative History:** Regulation .02 amended effective May 8, 1995 (22:9 Md. R. 648)

**Administrative History:** Regulation .03 amended effective May 8, 1995 (22:9 Md. R. 648)

#### Regulation .01 Definitions.

*COMAR 26.11.12.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Batch type hot-dip galvanizing installation” means an installation in which clean, oxide-free iron or steel items are coated on a non-continuous basis with a thin layer of zinc by immersion in a bath of molten zinc.

  (2) “Flux” means any chemical substance used in a hot-dip galvanizing installation to help metals fuse together by preventing oxidation.

#### Regulation .02 Applicability.

*COMAR 26.11.12.02*

A. Any source which is subject to the provisions of this chapter is also subject to the provisions of any other chapter. However, when this chapter establishes an emissions standard for a specific installation which differs from the general emission standards in COMAR 26.11.06.01—.09, this chapter takes precedence.

B. This chapter applies to a person who owns or operates a batch type hot-dip galvanizing installation.

C. This chapter applies Statewide.

#### Regulation .03 Prohibitions and Exemptions.

*COMAR 26.11.12.03*

A. Except as provided in §B of this regulation, a person operating a batch type hot-dip galvanizing installation is prohibited from:

  (1) Using ammonium chloride (sal ammoniac) in prefluxes and top fluxes except where it is contained in a prepackaged flux compound of which the ammonium chloride content does not exceed 69 percent; and

  (2) Applying a flux to a galvanized end product (dusting).

B. A person operating a batch-type hot dip galvanizing installation using an emission control device approved by the Department is exempt from the requirements of §A of this regulation if the visible emissions requirement in Regulation .04 of this chapter is met.

#### Regulation .04 Visible Emissions.

*COMAR 26.11.12.04*

A. A person may not cause or permit the discharge of emissions from any batch type hot-dip galvanizing installation or a building containing such an installation, other than water in an uncombined form, which is greater than 20 percent opacity.

B. A person operating a batch type hot-dip galvanizing installation is not eligible for a visible emission exception under COMAR 26.11.06.02B.

#### Regulation .05 Particulate Matter.

*COMAR 26.11.12.05*

For the purpose of these regulations, batch type hot-dip galvanizing installations are not subject to COMAR 26.11.06.03B and are exempt from COMAR 26.11.06.03C.

#### Regulation .06 Reporting Requirements.

*COMAR 26.11.12.06*

The owner or operator of a batch type hot-dip galvanizing installation shall provide to the Department, as part of the annual permit-to-operate application, a complete listing of all fluxes used at the galvanizing installation during the previous calendar year. The listing shall include the type of flux, manufacturer's identification, chemical composition, and the amount consumed for that year.

### Chapter 13 — Control of Gasoline and Volatile Organic Compound Storage and Handling

**Authority:** Environment Article,§§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: June 8, 1981 (8:9 Md. R. 800)

**Administrative History:** Regulations .01B and .03B amended, .02C adopted, and .05F repealed effective August 16, 1983 (10:14 Md. R. 1262)

**Administrative History:** Regulation .02C amended effective August 10, 1987 (14:14 Md. R. 1572)

**Administrative History:** Regulation .04A amended effective August 10, 1987 (14:14 Md. R. 1572)

**Administrative History:** Chapter recodified from COMAR 10.18.13 to COMAR 26.11.13

**Administrative History:** Regulation .01B amended effective December 3, 1989 (16:21 Md. R. 2266)

**Administrative History:** Regulations .01—.05 repealed and new Regulations .01—.05 adopted effective May 8, 1991 (18:6 Md. R. 688)

**Administrative History:** Regulation .01B amended effective October 26, 1992 (19:22 Md. R. 1991 and 19:21 Md. R. 1894); April 26, 1993 (20:8 Md. R. 726); August 11, 1997 (24:16 Md. R. 1161); October 8, 2007 (34:20 Md. R. 1741)

**Administrative History:** Regulation .02 amended effective April 26, 1993 (20:8 Md. R. 726); July 19, 1993 (20:14 Md. R. 1170)

**Administrative History:** Regulation .02C amended effective August 19, 1991 (18:16 Md. R. 1813)

**Administrative History:** Regulation .04A amended effective February 17, 1992 (19:3 Md. R. 306); February 15, 1993 (20:3 Md. R. 260); April 26, 1993 (20:8 Md. R. 726); July 19, 1993 (20:14 Md. R. 1170); July 21, 2014 (41:14 Md. R. 800)

**Administrative History:** Regulation .04C amended effective April 26, 1993 (20:8 Md. R. 726); August 11, 1997 (24:16 Md. R. 1161)

**Administrative History:** Regulation .04E adopted effective July 21, 2014 (41:14 Md. R. 800)

**Administrative History:** Regulation .05B, C amended effective February 15, 1993 (20:3 Md. R. 260); July 21, 2014 (41:14 Md. R. 800)

**Administrative History:** Regulation .06 adopted effective December 3, 1989 (16:21 Md. R. 2266)

**Administrative History:** Regulation .06C amended effective May 8, 1991 (18:6 Md. R. 688)

**Administrative History:** Regulation .06 repealed effective October 26, 1992 (19:22 Md. R. 1991 and 19:21 Md. R. 1894)

**Administrative History:** Regulation .07 adopted effective April 26, 1993 (20:8 Md. R. 726) (Recodified as Regulation .06)

**Administrative History:** Regulation .07 adopted effective January 21, 2002 (29:1 Md. R. 25)

**Administrative History:** Regulation .07 amended effective June 18, 2007 (34:12 Md. R. 1068)

**Administrative History:** Regulation .08 adopted effective October 8, 2007 (34:20 Md. R. 1741)

#### Regulation .01 Definitions.

*COMAR 26.11.13.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Bulk gasoline plant” means a gasoline storage and distribution facility with a maximum daily throughput of 20,000 gallons (75,500 liters) or less which receives gasoline from bulk terminals, stores it in tanks, then dispenses the gasoline via trucks to local farms, businesses, and gasoline dispensing facilities.

  (2) “Bulk gasoline terminal” means a gasoline storage facility with a minimum daily throughput greater than 20,000 gallons (75,500 liters) which receives gasoline by pipeline, ship, or barge and delivers gasoline to bulk gasoline plants or to commercial or retail accounts by tank truck.

  (3) “External floating roof” means a double deck or a pontoon single deck cover in an open top tank which rests upon, and is supported by, the liquid being contained.

  (4) “Gasoline” means a petroleum distillate or alcohol, or their mixtures, having a true vapor pressure within the range of 1.5 to 11 pounds per square inch absolute (psia) (10.3 to 75.6 kilonewtons/square meter) that is used as fuel for internal combustion engines or aircraft.

  (5) “Gasoline leak” means a reading equal to or greater than 100 percent of the lower explosive limit measured as propane at a distance of 1 inch from any point on the perimeter of a potential leak source.

  (6) “Internal floating roof” means a double deck or a pontoon single deck cover which rests upon and is supported by the liquid being contained in a closed top tank.

  (6-1) “Marine vessel” means any tank ship or barge that transports volatile organic compounds (VOCs) in bulk as cargo.

  (7) “Motor vehicle” means a vehicle registered with the Maryland Motor Vehicle Administration or the equivalent agency of any other state.

  (8) “Pipeline breakout station” means a facility that receives gasoline from a main pipeline and distributes the gasoline by smaller spur pipelines to bulk gasoline terminals.

  (9) “Primary seal” means a continuous seal in a storage tank that extends from a floating roof to the tank wall to prevent the escape of vapors into the atmosphere.

  (10) “Secondary seal” means a continuous seal in a storage tank that extends from the floating roof to the tank wall covering the entire primary seal.

  (11) “Tank truck” means a truck or trailer equipped with storage tanks and used for the transport of gasoline or volatile organic compounds (VOC) from sources of supply to stationary storage tanks.

  (12) “Vapor balance system” means coaxial or dual piping that creates a closed system between a tank truck and a stationary storage tank and contains the vapors during the transfer of gasoline.

  (13) “Vapor control system” means any piping, hoses, equipment, and devices that collect and process gasoline or VOC vapor, using a vapor processing system.

  (14) “Vapor processing system” means any equipment used for recovering or oxidizing VOC vapors.

#### Regulation .02 Applicability and Exemptions.

*COMAR 26.11.13.02*

A. A source which is subject to the provisions of this chapter is also subject to the provisions of any other chapter. However, when this chapter establishes an emission standard for a specific installation which differs from the general emission standard in COMAR 26.11.01—.09, this chapter takes precedence.

B. This chapter applies throughout the State. The NSPS requirements under 40 CFR Part 60, Subpart K (effective June 11, 1973), Subpart Ka (effective May 18, 1978), Subpart Kb (effective July 23, 1984), and Subpart XX apply throughout the State.

C. Exemptions for Large Storage Tanks.

  (1) A welded tank is exempt from the secondary seal requirements of Regulation .03B(2)(a) of this chapter if it contains gasoline or VOC with a TVP less than 4 psia (2.75 kilonewton/square meter) and has a primary seal.

  (2) The secondary seal requirements under Regulation .03A(1)(b)(i) of this chapter do not apply if the storage tank is equipped with a liquid mounted seal.

D. The provisions of this chapter do not apply to the filling of a motor vehicle's fuel tank.

E. If a source becomes subject to any requirement in this chapter because it exceeds a regulation applicability level, the source shall continue to be subject to all applicable requirements, regardless of whether future throughput is below the regulation threshold.

#### Regulation .03 Large Storage Tanks.

*COMAR 26.11.13.03*

A. Closed Top Tanks.

  (1) Equipment Requirements. A person may not place or store gasoline or VOC having a TVP between 1.5 psia (10.3 kilonewton/square meter) and 11 psia (75.6 kilonewton/square meter), inclusive, in any closed top tank with a capacity of 40,000 gallons (151,400 liters) or greater unless the:

    (a) Tank's gauging and sampling devices are gas tight except when in use; and

    (b) Tank is equipped with one of the following properly installed, operating, and well maintained emission control systems:

      (i) An internal floating roof equipped with a primary and secondary seal;

      (ii) A pressure tank system that maintains a pressure at all times to prevent loss of vapors to the atmosphere; or

      (iii) A vapor control system capable of collecting the vapors from the tank and disposing of these vapors to prevent their emission to the atmosphere.

  (2) Seal Requirements.

    (a) There shall be no visible holes, tears, or other openings in a seal or seal fabric.

    (b) Each seal shall be intact and uniformly in place around the circumference of the floating roof between the floating roof and the tank wall.

    (c) The accumulated area of the gaps between the secondary seal and the tank wall and between the seal and other obstructions inside the tank (that is, ladder, roof supports) that are greater than 1/8 inch in width may not exceed 1.0 square inch per foot of tank diameter.

    (d) The secondary seal requirement in §A(1)(b) of this regulation is waived until completion of an internal inspection as required in §A(3)(b) and (c)  of this regulation. However, the secondary seal shall be installed not later than 5 years after the effective date of this regulation.

  (3) Inspection Requirements. A person owning a gasoline or VOC storage tank subject to §A(1)(b)(i) of this regulation shall:

    (a) Perform an annual visual inspection of the internal floating roof and seals from the roof hatch and record the findings;

    (b) If the visual inspection shows noncompliance with the seal requirements in §A(2)(a) and (b) of this regulation, or liquid gasoline or VOC on the roof, perform an internal inspection of the floating roof and seals;

    (c) After installing the secondary seal as required in §A(2)(d) of this regulation, conduct an internal inspection of each tank and its seals within 10 years from the date of the last internal inspection; and

    (d) Notify the Department of an intended internal tank inspection at least 15 days before the proposed inspection date.

  (4) Inspection Procedures. A person owning or operating a gasoline or VOC storage tank shall determine the total seal gap by summing the areas of the individual gaps. The lengths and widths of the gaps are measured by passing a 1/8 inch diameter probe between the seal and the tank wall and other obstructions in the tank. (The probe should move freely without forcing or binding against the seal.)

B. Open Top Tanks.

  (1) Applicability.

    (a) The use of open top tanks is prohibited for gasoline or VOC having a TVP exceeding 11 psia (75.6 kilonewton/square meter).

    (b) Open top storage tanks at pipeline breakout stations are exempt from the secondary seal requirements in §B(2)(a) of this regulation.

  (2) Equipment Requirements. A person may not place or store gasoline or VOC having a TVP of 1.5 psia (10.3 kilonewton/square meter) or greater in any open top tank with a capacity of 40,000 gallons (151,400 liters) or greater unless it is equipped with a properly installed and maintained external floating roof that meets all the following requirements:

    (a) The external floating roof shall be equipped with a primary and secondary seal.

    (b) Openings in the external floating roof, except for automatic bleeder vents, rim space vents, and leg sleeves, shall be equipped with a projection below the liquid surface. The opening with projections shall also be equipped with a cover, seal, or lid, which shall be maintained in a closed position at all times, except when the device is in actual use.

    (c) Automatic bleeder vents shall be closed at all times except when the roof is resting on the roof supports. Rim vents shall be set to the open position when the roof is being floated off the leg supports or at the manufacturer's recommended setting.

    (d) Roof drains shall be provided with a slotted membrane fabric or equivalent cover that encapsulates at least 90 percent of the area of the drain opening.

  (3) Seal Requirements.

    (a) There shall be no visible holes, tears, or other openings in a seal or seal fabric.

    (b) Each seal shall be intact and uniformly in place around the circumference of the floating roof between the floating roof and the tank wall.

    (c) The accumulated area of the gaps between the secondary seal and the tank wall that are greater than 1/8 inch in width may not exceed 1.0 square inch per foot of tank diameter.

  (4) Inspection Requirements. A person who owns or operates an open top gasoline or VOC storage tank shall meet all of the following requirements:

    (a) Perform semiannual routine visual inspections of the primary and secondary seals.

    (b) Once a year, determine the total secondary seal gap by summing the areas of the individual gaps between the secondary seal and the tank wall over the entire circumference of the tank. The lengths and widths of the gaps are measured by passing a 1/8 inch uniform diameter probe between the seal and tank wall. (The probe shall move freely without forcing or binding against the seal.)

    (c) Notify the Department of an intended tank inspection at least 15 days before the proposed inspection date.

  (5) Requirements for Pipeline Breakout Stations. A person may not transfer gasoline through an open top gasoline storage tank at a pipeline breakout station unless the vapor space between the floating roof and the tank bottom is reduced to less than or equal to 20 inches (0.457 meter) in height.

C. Record Keeping for Large Storage Tanks. The owner or operator shall:

  (1) Record the results of all inspections of floating roofs and seals;

  (2) Record all repairs or replacement of the seals, and include in the record the date and the action taken;

  (3) For each tank, record the average monthly storage temperature and throughput; and

  (4) Maintain all records for at least 2 years, and make these records available to the Department upon request.

#### Regulation .04 Loading Operations.

*COMAR 26.11.13.04*

A. Bulk Gasoline Terminals.

  (1) Standards. The owner or operator of a bulk gasoline terminal shall:

    (a) Equip the loading system with a vapor control system designed to collect all vapors and control at least 90 percent of all vapors from the loading racks, and emissions from the loading rack may not exceed:

      (i) 0.29 pound of VOC per 1,000 gallons (35 milligrams per liter) of gasoline or VOC loaded in Areas III and IV and Calvert, Cecil, Charles, and Frederick counties; or

      (ii) 0.67 pounds of VOC per 1,000 gallons (80 milligrams per liter) of gasoline or VOC loaded in Area I and Caroline, Dorchester, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Wicomico, and Worcester counties.

    (b) Design and operate the vapor control system and the gasoline loading equipment so that during loading:

      (i) The gasoline tank truck pressure does not exceed 18 inches of water, and vacuum does not exceed 6 inches of water; and

      (ii) There are no gasoline leaks in the system when tested by the method referenced in §A(3)(a) of this regulation during loading or unloading operations.

    (c) Equip the loading rack with a top submerged or bottom loading system.

  (2) Compliance and Record Keeping.

    (a) Testing.

      (i) Vapor control systems shall be tested for compliance with §A(1)(a) of this regulation once every 5 years, during the period between May and September 15.

      (ii) The owner or operator shall notify the Department not less than 15 days before the scheduled test date, and notification shall contain a copy of the test protocol.

      (iii) A copy of the test results shall be submitted to the Department not more than 60 days after the test date.

    (b) The owner or operator shall keep a record of all maintenance and repairs performed on the vapor recovery unit for 2 years, and make these records available upon request by the Department.

  (3) Test Procedures.

    (a) Testing for leak-tight conditions, as required in §A(1)(b)(ii) of this regulation, shall be conducted as prescribed in Method 1008 of the Department’s Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” January 1991, as amended through Supplement 3 (October 1, 1997), which is incorporated by reference in COMAR 26.11.01.04C.

    (b) The test procedures to determine mass emission rate compliance as required in §A(1)(a) of this regulation, shall be as prescribed in Method 1009 of the Department’s Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” January 1991, as amended through Supplement 3 (October 1, 1997), which is incorporated by reference in COMAR 26.11.01.04C.

B. Bulk Gasoline Plants.

  (1) Applicability. Section B(2) of this regulation applies to a person owning or operating a bulk gasoline plant with a daily throughput of 4,000 gallons (15,140 liters) or greater.

  (2) Equipment Standards.

    (a) The owner or operator of a bulk gasoline plant shall:

      (i) Equip the loading rack with a vapor balance system which shall be properly installed, maintained, and used;

      (ii) Equip the loading rack with a top submerged or bottom loading system; and

      (iii) Comply with the leak-tight requirements as specified in §A(1)(b) of this regulation.

    (b) Stage I Vapor Recovery. A person who owns or operates a bulk plant may not cause or permit gasoline to be unloaded from a tank truck or trailer into a stationary storage tank unless the loading system is equipped with a vapor balance line that shall be properly installed, maintained, and used.

C. Small Storage Tanks.

  (1) Applicability. This section applies to a person who owns or operates:

    (a) A gasoline storage tank that has a tank capacity greater than 2,000 gallons but less than 40,000 gallons; or

    (b) A gasoline tank truck used to transfer gasoline into a storage tank that is listed in §C(1)(a) of this regulation.

  (2) Stage I Vapor Recovery. An owner or operator of a gasoline tank truck or an owner or operator of a stationary storage tank subject to this regulation may not cause or permit gasoline to be loaded into a stationary tank unless the loading system is equipped with a vapor balance line that is properly installed, maintained, and used.

D. General Standards. A person may not cause or permit gasoline or VOC having a TVP of 1.5 psia (10.3 kilonewtons/square meter) or greater to be loaded into any tank truck, railroad tank car, or other contrivance unless the:

  (1) Loading connections on the vapor lines are equipped with fittings that have no leaks and that automatically and immediately close upon disconnection to prevent release of gasoline or VOC from these fittings; and

  (2) Equipment is maintained and operated in a manner to prevent avoidable liquid leaks during loading or unloading operations.

E. Alternative Compliance Procedures. In lieu of satisfying the requirements of §D(1) of this regulation, a person may instead utilize:

  (a) An overhead loading rack installation which transfers VOC other than gasoline having a TVP of 1.5 psia (10.3 kilonewtons/square meter) from railroad tank car to tank trucks, or vice versa, using drip pans and other spill control equipment to limit the release of any product during post loading disconnections and any one of the following control practices or combination thereof:

    (i) Walking the hose clear of fluids;

    (ii) Running a pump to clear the line of fluids; or

    (iii) Application of inert gas to clear the line of fluids; or

  (b) An alternative equivalent vapor containment method approved by the Department and the EPA as a revision to the Maryland State Implementation Plan.

#### Regulation .05 Gasoline Leaks from Tank Trucks.

*COMAR 26.11.13.05*

A. Equipment Standards. A person may not allow a gasoline tank truck to be filled or emptied unless the tank has been certified as capable of sustaining a pressure change of not more than 3 inches of water in 5 minutes when pressurized to a gauge pressure of 18 inches of water (4,479 kilonewtons/square meter), or evacuated to a gauge pressure of 6 inches of water (1,493 kilonewtons/square meter), during a test, according to the procedure referenced in §B(2) of this regulation.

B. Method of Compliance. A person who owns or operates a gasoline tank truck subject to this regulation shall:

  (1) Conduct a certification test annually, in accordance with the test method referenced in §B(2) of this regulation;

  (2) Use the certification test procedures as prescribed in Method 1007 of the Department’s Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” January 1991, as amended through Supplement 3 (October 1, 1997), which is incorporated by reference in COMAR 26.11.01.04C; and

  (3) Complete any needed repairs, and retest within 15 days of the original test date.

C. Determination of Compliance.

  (1) A person who owns or operates a gasoline tank truck shall display the certification test expiration date on the truck. This expiration date shall be placed near the Department of Transportation Certification plate required by 40 CFR §178.340-10B.

  (2) The Department may at any time monitor gasoline tank trucks for leak-tight conditions using the procedures described in Method 1008 of the Department’s Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” January 1991, as amended through Supplement 3 (October 1, 1997),which is incorporated by reference in COMAR 26.11.01.04C.

D. Record Keeping and Reporting.

  (1) A person who owns or operates a gasoline tank truck shall:

    (a) Maintain records of all tests, repairs, and retests for at least 2 years after the respective dates of completion;

    (b) Submit to the Department, upon request, copies of certification test records from tests required in Regulation .04A(3)(a) of this chapter.

  (2) The records shall contain the following information:

    (a) Gasoline tank truck tank number;

    (b) Date of test;

    (c) Date and type of repair, if applicable;

    (d) Date of retest, if applicable;

    (e) The initial test pressure and the time of the reading;

    (f) The final test pressure and the time of the reading;

    (g) The initial test vacuum and the time of the reading;

    (h) The final test vacuum and the time of the reading.

#### Regulation .06 Plans for Compliance.

*COMAR 26.11.13.06*

A person who is not in compliance with this chapter and owns or operates an installation located in Allegany, Caroline, Dorchester, Garrett, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Washington, Wicomico, or Worcester counties shall submit a Plan for Compliance for approval by the Department. The plan for compliance shall be submitted not later than April 15, 1993, and include an expeditious schedule to achieve compliance not later than May 15, 1995.

#### Regulation .07 Control of VOC Emissions from Portable Fuel Containers.

*COMAR 26.11.13.07*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) Distributor.

    (a) “Distributor” means a person to whom a portable fuel container or spout or both portable fuel container and spout is sold or supplied for the purpose of resale or distribution in commerce.

    (b) “Distributor” does not include a manufacturer, retailer, or consumer.

  (2) “Fuel” means all gasoline, gasoline-alcohol mixtures or blends, or petroleum derivatives, having a true vapor pressure within the range of 1.5 to 11 pounds per square inch absolute (psia) (10.3 to 75.6 kilonewtons/square meter) for use in internal combustion engines or aircraft.

  (3) “Kerosene” means any light petroleum distillate having a true vapor pressure within the range of 0.0041 to 0.029 pounds per square inch absolute (psia) (0.028 to 0.2 kilonewtons per square meter) for use in space heaters, cooking stoves, water heaters, or wick-fed lamps.

  (4) “Manufacturer” means a person who imports, manufactures, assembles, produces, packages, repackages, or relabels a portable fuel container or spout or both portable fuel container and spout.

  (5) “Nominal capacity” means the volume indicated by the manufacturer that represents the maximum recommended filling level.

  (6) “Outboard engine” means a spark-ignition marine engine that, when properly mounted on a marine watercraft in the position to operate, houses the engine and drive unit external to the hull of the marine watercraft.

  (7) “Permeation” means the process by which individual fuel molecules may penetrate the walls and various assembly components of a portable fuel container directly to the outside ambient air.

  (8) Portable Fuel Container.

    (a) “Portable fuel container” means a container or vessel with a nominal capacity of 10 gallons or less intended for reuse, that is designed or used primarily for receiving, transporting, storing, and dispensing fuel.

    (b) “Portable fuel container” does not include containers or vessels permanently embossed or permanently labeled, meeting the requirements of 49 CFR §172.407(a) and intended for use with non-fuel or non-kerosene products.

  (9) “Retail outlet” means an establishment at which portable fuel containers or spouts or both portable fuel containers and spouts are sold, supplied, or offered for sale.

  (10) “Spill-proof spout” means a spout that complies with all of the performance standards set forth in §C(2) of this regulation.

  (11) “Spill-proof system” means a configuration of portable fuel container and firmly attached spout that complies with all of the performance standards as set forth in §C(1) of this regulation.

  (12) Spout.

    (a) “Spout” means a device that can be firmly attached to a portable fuel container for conducting pouring through which the contents of a portable fuel container can be dispensed.

    (b) “Spout” does not include lengthening devices that can be used to accommodate necessary applications.

  (13) “Target fuel tank” means a receptacle that receives fuel from a portable fuel container.

B. Applicability and Exemptions.

  (1) This regulation applies to a person who manufactures, sells, advertises, or makes available for use portable fuel containers or spouts or both portable fuel containers and spouts in the State.

  (2) This regulation does not apply to a person or manufacturer who sells, advertises, or makes available for use:

    (a) Portable fuel container or spouts or both portable fuel containers and spouts manufactured in the State for shipment, sale, and use outside of the State;

    (b) Safety cans meeting the requirements of 29 CFR Chapter 17, Part 926, Subpart F;

    (c) Portable fuel containers with a nominal capacity less than or equal to 1 quart;

    (d) Rapid refueling devices with nominal capacities greater than or equal to 4 gallons, if these devices are:

      (i) Designed for use in officially sanctioned off-highway motor sports such as car racing or motorcycle competitions; or

      (ii) Either create a leak-proof seal against a stock target fuel tank or are designed to operate in conjunction with a receiver permanently installed on the target fuel tank;

    (e) Portable fuel tanks manufactured specifically to deliver fuel through a hose attached between the portable fuel tank and the outboard engine for the purpose of operating the outboard engine; or

    (f) Closed-system portable fuel containers that are used exclusively for fueling remote control model airplanes.

  (3) This regulation does not apply to a manufacturer or distributor who does not comply with the performance standards specified in §C of this regulation if the manufacturer or distributor demonstrates that:

    (a) The portable fuel container or spout or both portable fuel container and spout is intended for shipment and use outside of the State; and

    (b) The manufacturer or distributor has taken reasonable prudent precautions to ensure that the portable fuel container or spout or both portable fuel container and spout is not distributed within the State.

  (4) The exemption in §B(3) of this regulation does not apply to a person who sells, supplies, or offers for sale portable fuel containers or spouts or both portable fuel containers and spouts to retail outlets in the State.

  (5) The performance standards specified in §C of this regulation do not apply to portable fuel containers or spouts or both portable fuel containers and spouts that are certified for use and sale by the manufacturer through CARB and covered by a CARB Executive Order before June 30, 2007.

  (6) This regulation does not exempt spill-proof systems or spill-proof spouts from compliance with other applicable federal and State statutes and regulations such as State fire codes, safety codes, and other safety regulations, nor will the Department test for or determine compliance with such other statutes or regulations.

C. Performance Standards for Portable Fuel Containers and Spill-Proof Spouts.

  (1) Except as provided in §B(2) of this regulation, a person may not manufacture, sell, or make available for use after June 30, 2007, a portable fuel container or a portable fuel container and spout that does not meet all of the following performance standards:

    (a) Contains an automatic shut-off that stops the fuel flow before the target fuel tank overflows;

    (b) Automatically closes and seals when removed from the target fuel tank and remains completely closed when not dispensing fuel;

    (c) Contains only one opening for both filling and pouring;

    (d) Does not exceed a permeation rate of 0.4 grams per gallon per day; and

    (e) Is warranted by the manufacturer for a period of not less than 1 year against defects in materials and workmanship.

  (2) Except as provided in §B(2) of this regulation, a person may not manufacture, sell, or make available for use after June 30, 2007, any spout that does not meet all of the following performance standards:

    (a) Contains an automatic shut-off that stops the fuel flow before the target fuel tank overflows;

    (b) Automatically closes and seals when removed from the target fuel tank and remains completely closed when not dispensing fuel; and

    (c) Is warranted by the manufacturer for a period of not less than 1 year against defects in materials and workmanship.

  (3) Notwithstanding the provisions of §C(1) and (2) of this regulation, a portable fuel container or spout or both portable fuel container and spout manufactured 30 days after the effective date of this regulation, may be sold, supplied, or offered for sale until 1 year after the time period beginning 30 days after the effective date of this regulation, if it is labeled or designated for use solely with kerosene and if the date of manufacture or a date code representing the date of manufacture is clearly displayed on the portable fuel container or spout.

  (4) Except as provided in §B of this regulation, a portable fuel container, spout, or portable fuel container and spout produced on or after July 1, 2007, that is manufactured for sale, advertised for sale, sold, or offered for sale in Maryland or that is introduced, delivered, or imported into Maryland for commerce and that is subject to any of the standards specified in this regulation and documents incorporated by reference, shall be certified for use and sale by the manufacturer through CARB and covered by a CARB Executive Order.

D. Innovative Products.

  (1) Portable fuel containers or spouts or both portable fuel containers and spouts which have been granted an innovative product exemption by the California Air Resources Board (CARB) are exempt from the requirements in §C of this regulation for the period of time that the CARB Innovative Products exemption remains in effect. Any manufacturer claiming such an exemption on this basis shall submit to the Department a copy of the CARB exemption decision (i.e., the Executive Order), including all conditions established by CARB applicable to the exemption.

  (2) For any portable fuel container or spout or both portable fuel container and spout for which an innovative product exemption has been granted under this regulation, the manufacturer shall notify the Department in writing at least 30 days before the manufacturer changes a product's design, delivery system, or other factors that may effect the VOC emissions during recommended usage. The manufacturer shall also notify the Department within 30 days after the manufacturer learns of any information that would alter the emissions estimates submitted to the Department in support of the exemption application.

  (3) If the performance standards specified in §C of this regulation are amended for a product category, all innovative product exemptions granted for products in the product category have no effect as of the effective date of the amended performance standards.

E. Labeling and Notification.

  (1) A manufacturer shall clearly display on each spill proof system:

    (a) The phrase “Spill-Proof System”;

    (b) The date of manufacture or representative date; and

    (c) A representative code identifying the portable fuel container or portable fuel container and spout as subject to and complying with §C(1) of this regulation.

  (2) A manufacturer shall clearly display on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto:

    (a) The phrase “Spill-Proof Spout”;

    (b) The date of manufacture or representative date; and

    (c) A representative code identifying the spout as subject to and complying with §C(2) of this regulation.

  (3) A manufacturer subject to §C(4) of this regulation shall clearly display on each portable fuel container or portable fuel container and spout:

    (a) The phrase “Spill-Proof Spout”;

    (b) The date of manufacture or representative date; and

    (c) A representative code identifying the Executive Order Number issued by CARB for the portable fuel container or portable fuel container and spout.

  (4) A manufacturer subject to §E(1) or (2) of this regulation shall file an explanation of both the date code and representative code with the Department not later than the later of 3 months after the effective date of this regulation or within 3 months of production, and within 3 months after any change in coding.

  (5) A manufacturer subject to §E(2) of this regulation shall clearly display the make, model number, and size of only those portable fuel containers the spout is designed to accommodate and demonstrate compliance with §C(1) of this regulation on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout, or a label affixed thereto.

  (6) A manufacturer not subject to or not in compliance with §C of this regulation may not display the phrase “Spill-Proof System” or “Spill-Proof Spout” on the portable fuel container or spout, respectively, on any sticker or label affixed thereto, or on any accompanying package.

  (7) A manufacturer subject to and complying with §C of this regulation that due to its design or other features cannot be used to refuel one or more on-road motor vehicles shall clearly display the phrase “Not Intended For Refueling On-Road Motor Vehicles” in type of 34 point or greater on each of the following:

    (a) For a portable fuel container or portable fuel container and spout sold together as a spill-proof system, on the system or on a label affixed thereto, and on the accompanying package, if any; and

    (b) For a spill-proof spout sold separately from a spill-proof system, on either the spill-proof spout, or a label affixed thereto, and on the accompanying package, if any.

F. Variances.

  (1) Portable fuel containers and spouts or both portable fuel containers and spouts which have been granted a variance by CARB are exempt from the requirements in §C of this regulation for the period of time that the CARB variance remains in effect. A manufacturer claiming a variance on this basis shall submit to the Department a copy of the CARB variance decision (that is, the Executive Order), including all conditions established by CARB applicable to the variance.

  (2) A person or manufacturer who cannot comply with the requirements set forth in §C of this regulation, due to extraordinary reasons beyond the person's reasonable control, may apply in writing to the Department for a variance. The variance application shall set forth:

    (a) The specific grounds upon which the variance is sought;

    (b) The proposed date or dates by which compliance with the provisions of §C of this regulation will be achieved; and

    (c) A compliance report detailing the methods by which compliance will be achieved.

  (3) A variance may not be granted unless:

    (a) Due to reasons beyond the reasonable control of the applicant, required compliance with §C of this regulation would result in extraordinary economic hardship;

    (b) The public interest in mitigating the extraordinary hardship to the applicant by issuing the variance outweighs the public interest in avoiding any increased emissions of air contaminants that would result from issuing the variance; and

    (c) The compliance report proposed by the applicant can reasonably be implemented, and will achieve compliance as expeditiously as possible.

  (4) The Department may hold a public comment hearing to receive comments on a request for a variance.

  (5) An approval of a variance shall specify a final date by which compliance with the provisions of §C of this regulation shall be achieved. An approved variance shall:

    (a) Specify a compliance date;

    (b) Contain conditions that the Department finds necessary to carry out the purposes of this regulation; and

    (c) Cease to be effective upon failure of the party to whom the variance is granted to comply with a term or condition of the variance.

  (6) Upon the application of any person, the Department may review, and for good cause, modify or revoke a variance from requirements of §C of this regulation after holding a public comment hearing in accordance with the provisions of §F(4) of this regulation.

G. Testing Requirements and Record Keeping.

  (1) Testing Requirements.

    (a) Testing to determine compliance with §C(2) of this regulation shall be performed using the following test methods approved by CARB which are incorporated by reference:

      (i) “Test Method 510, Automatic Shut-Off Test Procedure For Spill-Proof Systems And Spill-Proof Spouts”, amended by CARB on July 26, 2006; and

      (ii) “Test Method 511, Automatic Closure Test Procedure For Spill-Proof Systems And Spill-Proof Spouts”, adopted by CARB on July 6, 2000.

    (b) Testing to determine compliance with §C(1) of this regulation shall be performed using all test methods in §G(1)(a) and “Test Method 513, Determination Of Permeation Rate For Spill-Proof Systems”, adopted by CARB on July 6, 2000, which is incorporated by reference.

    (c) Testing to determine compliance with §C(4) of this regulation shall be performed by using the test methods in “CP-501, Certification Procedure for Portable Fuel Containers and Spill-Proof Spouts”, adopted by CARB on July 26, 2006, which is incorporated by reference.

    (d) A manufacturer shall perform tests for determining compliance as set forth in this section to show that their product meets and complies with the performance standards before allowing the product to be offered for sale.

    (e) Alternative test methods that are shown to be accurate, precise, and appropriate may be used upon written approval of the Department and the Environmental Protection Agency (EPA).

  (2) Record Keeping. A manufacturer subject to this regulation shall keep all records of compliance tests for as long as the product is available for sale in the State, and make the records available to the Department within 60 days of a request.

#### Regulation .08 Control of VOC Emissions from Marine Vessel Loading.

*COMAR 26.11.13.08*

A. Applicability.

  (1) In Allegany, Caroline, Dorchester, Garrett, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Washington, Wicomico, or Worchester counties, the requirements in §B of this regulation apply to the transfer of VOCs from a stationary storage tank into a marine vessel if the total emissions from all marine vessel loading at the premises during a calendar year are equal to or exceed 50 tons.

  (2) In Baltimore City or Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles, Frederick, Harford, Howard, Montgomery, or Prince George's counties, the requirements in §B of this regulation apply to the transfer of VOCs from a stationary storage tank into a marine vessel if the total emissions from all marine vessel loading at the premises during a calendar year are equal to or exceed 25 tons.

  (3) The reporting requirements in §C of this regulation apply to all transfers of any amount of VOCs, except fuel oils, from a stationary storage tank into a marine vessel.

B. General Requirements.

  (1) The transfer of VOCs into a marine vessel subject to this regulation is prohibited unless:

    (a) The marine vessel is equipped with a vapor return line; and

    (b) The vapor is vented into an air pollution control device that is demonstrated to recover or destroy at least 90 percent of the captured vapor.

  (2) The vapor control system shall be constructed, operated, and maintained so that VOC vapor leaks are minimized during the transfer of VOCs into a marine vessel.

  (3) VOCs may not be transferred into a marine vessel unless the vessel has been leak tested or pressure tested within the past 2 years using the Coast Guard requirements at 33 CFR §156.150.

C. Record Keeping Requirements.

  (1) The owner or operator of a premises subject to this regulation shall record and maintain the following information:

    (a) The date and time when each marine vessel commenced and completed the loading of VOCs;

    (b) Identification of the product that was loaded into the marine vessel and the total volume loaded; and

    (c) The date when each marine vessel used was leak tested or pressure tested.

  (2) The records shall be maintained for a period of not less than 5 years and made available to the Department upon request and to members of the public subject to the provisions of the Maryland Public Information Act, State Government Article, §§10-611—628, Annotated Code of Maryland.

### Chapter 14 — Control of Emissions from Kraft Pulp Mills

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: June 8, 1981 (8:9 Md. R. 800)

**Administrative History:** Chapter recodified from COMAR 10.18.14 to COMAR 26.11.14

**Administrative History:** Regulation .05A and B amended effective August 19, 1991 (18:16 Md. R. 1813); February 17, 1992 (19:3 Md. R. 306)

**Administrative History:** Regulation .01 amended effective January 8, 2001 (27:26 Md. R. 2359); October 15, 2001 (28:20 Md. R. 1783)

**Administrative History:** Regulation .02 amended effective January 8, 2001 (27:26 Md. R. 2359)

**Administrative History:** Regulation .03 amended effective January 8, 2001 (27:26 Md. R. 2359)

**Administrative History:** Regulation .04 amended effective January 8, 2001 (27:26 Md. R. 2359)

**Administrative History:** Regulation .05 amended effective January 8, 2001 (27:26 Md. R. 2359)

**Administrative History:** Regulation .06 adopted effective January 8, 2001 (27:26 Md. R. 2359)

**Administrative History:** Regulation .06 amended effective October 15, 2001 (28:20 Md. R. 1783)

**Administrative History:** Regulation .06B, D amended effective March 3, 2014 (41:4 Md. R. 306)

**Administrative History:** Regulation .07 adopted effective July 26, 2010 (37:15 Md. R. 1000)

**Administrative History:** Regulation .07 amended effective March 3, 2014 (41:4 Md. R. 306); April 23, 2018 (45:8 Md. R. 422)

**Administrative History:** Regulation .07C, D amended effective May 9, 2016 (43:9 Md. R. 531)

#### Regulation .01 Definitions.

*COMAR 26.11.14.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Brown stock washer” means an installation that removes spent cooking liquor from raw pulp to maximize chemical recovery and minimize carry over of cooking liquor into the bleaching plant.

  (2) “Black liquor” means a combination of spent “cooking liquor” (water solution of sodium sulfate and sodium hydroxide) and pulp wash water containing dissolved wood compounds which is the byproduct of cooking wood chips at an elevated temperature and pressure.

  (3) “Clean condensates” means all condensates from the pulp mill and evaporators that are not specifically identified in the definition of “foul condensates,” including the condensates which have been processed through a condensate stripper to remove 90 percent or more of the VOC contaminants.

  (4) “Combusted” means burned in a boiler or thermal oxidizer with a minimal temperature of 1,200°F and a residence time not less than 0.5 seconds or in a flare.

  (5) “Condensate” means condensed process steam from the digester and evaporator areas that contain VOCs and other process chemicals, including both foul and clean condensates.

  (6) “Condensate steam stripper” means a multi-stage distillation unit that uses steam to remove organics and TRS compounds from process condensate streams.

  (7) “Digester” means an installation that uses cooking chemicals and heat to separate fiber from other organics in wood chips.

  (8) “Digester blow tank system” means all the process equipment, including accumulators and condensers, used to separate the cooked pulp and spent cooking liquor from non-condensable gases and condensates.

  (8-1) “Evaporator” means equipment that is used primarily to increase the solids content of spent cooking liquor from the pulp washing systems.

  (9) “Foul condensates” means condensed process steam from the digester blow tank systems and the primary and secondary condensates generated from the evaporator effect when liquor is introduced.

  (10) “Knotters” means a mechanical device used to separate uncooked knots from the pulp and spent cooking liquor mixture prior to brownstock washing.

  (11) “Kraft pulp mill” means a group of installations which use an alkaline sulfide solution containing sodium hydroxide and sodium sulfide for a cooking liquor in its wood pulping process.

  (12) “Oven-dried pulp (ODP)” means oven-dried, unbleached kraft pulp.

  (12-1) “Recovery boiler” means an enclosed combustion device in which concentrated spent liquor is burned to:

    (a) Recover sodium and sulfides;

    (b) Dispose of unwanted dissolved wood components; and

    (c) Generate steam.

  (13) “Smelt dissolving tank” means an installation that processes the fluid discharge from a recovery boiler.

  (14) “Total reduced sulfur (TRS)” means any compound of sulfur in a reduced state discharged from a kraft pulp mill consisting primarily of hydrogen sulfide, methyl mercaptan, dimethyl sulfide, and dimethyl disulfide.

#### Regulation .02 Applicability.

*COMAR 26.11.14.02*

A. The requirements of this chapter apply to a person who owns or operates a kraft pulp mill.

B. Any source which is subject to the provisions of this chapter is also subject to the provisions of any other chapter. However, when this chapter establishes an emissions standard for a specific installation which differs from the general emission standards in COMAR 26.11.06.01--.09, this chapter takes precedence.

#### Regulation .03 Control of Total Reduced Sulfur Emissions.

*COMAR 26.11.14.03*

A person may not cause or permit the discharge of TRS from a kraft pulp mill in excess of 0.6 pound/ton of ODP. This requirement includes the combined emissions from recovery boilers, digesters, evaporators, and smelt tanks.

#### Regulation .04 Determination of Compliance for TRS Emission.

*COMAR 26.11.14.04*

A. General. A person who owns or operates a kraft pulp mill is in compliance with the emission standard in Regulation .03 of this chapter if the requirements in §B of this regulation are met.

B. Equipment Requirements.

  (1) The TRS emissions from the digesters and evaporators are burned in the recovery boilers, power boilers, or a separate incinerator;

  (2) The recovery boilers have a 12-hour average TRS emission of not more than 20 ppm by volume corrected to 8 percent oxygen; and

  (3) The TRS emissions from the smelt tanks are not more than 8 ppm except when the mass emission is less than 0.03 pound/ton ODP.

#### Regulation .05 Monitoring and Reporting Requirements for Total Reduced Sulfur.

*COMAR 26.11.14.05*

A. TRS emissions from kraft pulp mill recovery boilers shall be monitored continuously, using Method 16B of the Department's Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” (January 1991), which is incorporated by reference in COMAR 26.11.01.04C.

B. TRS emissions from smelt tanks will be sampled once a month using grab samples collected and analyzed using Method 16B of the Department's Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” (January 1991), which is incorporated by reference in COMAR 26.11.01.04C.

C. Quarterly reports shall be submitted to the Department summarizing the monitoring data.

#### Regulation .06 Control of Volatile Organic Compounds.

*COMAR 26.11.14.06*

A. Applicability. This regulation applies to a person who owns or operates an installation that has actual VOC emissions of 20 pounds or more per day that is located at a kraft pulp mill that has a potential to emit total plantwide VOC emissions of 25 tons or more per year.

B. Control of VOC Emissions from Specific Installations.

  (1) Condensate steam strippers. Off gases from condensate steam strippers shall be collected and combusted.

  (2) Digester Blow Tank Systems and Knotters.

    (a) Condensates from digester blow tank systems shall be collected and treated in a condensate steam stripper or other control system.

    (b) The non-condensable exhaust from a digester blow tank system shall be collected and combusted.

  (3) Evaporators.

    (a) All non-condensable gases from evaporators shall be collected and combusted.

    (b) Condensates from the evaporators shall be segregated so that the foul condensates are collected and treated in a condensate steam stripper or other control system.

  (4) Brown Stock Washers.

    (a) Wash water for brown stock washers shall consist of any combination of fresh or clean water and clean condensates.

    (b) Air emissions from the brown stock washers shall be collected and combusted.

  (5) Recovery Boilers.

    (a) A recovery boiler that burns black liquor as fuel shall be equipped with a black liquor oxidation unit.

    (b) At least 50 percent of the flue gas generated annually from recovery boilers shall be treated with a dry bottom precipitator with a salt cake mix tank.

  (6) Smelt Dissolving Tanks. Only clean water or clean condensates shall be used in the scrubbing solution makeup liquids.

  (7) The evaporators, digester blow tank systems, and brown stock washers shall be controlled by removing 90 percent or greater of the condensate VOC loading by demonstrating:

    (a) That the VOC removal or destruction efficiencies of the condensate stream stripper is 90 percent or greater; or

    (b) Through a system analysis of the condensate stripper, evaporators, digester blow system tanks, and brown stock washers that VOC removal or destruction efficiency is 90 percent or greater.

C. Control of VOC Emissions from Miscellaneous Sources. VOC emissions from all other miscellaneous sources at a kraft pulp mill including screen rooms, black liquor oxidizer, black liquor storage tanks, pulp storage tanks, pulp mill sewer vents, bleach rooms, and paper machines, shall be reduced by processing pulp from the brown stock washers in conformance with §B(4) of this regulation.

D. Testing and Record Keeping.

  (1) Tests shall be performed annually using EPA Test Method 25D found in 40 CFR Part 60 or other approved methods by the Department as part of a State Implementation Plan (SIP) revision to demonstrate the collective VOC removal efficiency of the condensate steam stripper and other control systems as required.

  (2) All other VOC emissions tests shall be performed using EPA test methods 25, 25A, or 25B which are found in 40 CFR Part 60.

  (3) On or before March 1, 2001, a person who owns or operates a kraft pulp mill shall submit a test protocol to the Department for approval.

  (4) The test results of each test shall be submitted to the Department within 60 days following completion of each test.

  (5) Stack test reports and other records relating to compliance with the requirements in this chapter shall be maintained for not less than 5 years and made available to the Department upon request.

#### Regulation .07 Control of NO

*COMAR 26.11.14.07*

A. Applicability and NOx Emission Standards.

  (1) This regulation applies to any fuel burning equipment with a maximum design heat input capacity of greater than 250 million Btu per hour located at any Kraft pulp mill.

  (2) The total combined NOx emissions of all fuel burning equipment at the Luke Kraft pulp mill to which this regulation applies may not exceed the following:

    (a) An emission rate of 0.70 pounds of NOx per million Btu during the period May 1 through September 30 of each year;

    (b) An emission rate of 0.99 pounds of NOx per million Btu during the period October 1 through April 30 of each year; and

    (c) The NOx ozone season emission cap in COMAR 26.11.40.03.

B. Demonstrating Compliance.

  (1) Compliance with the NOx emission rates in §A(2)(a) and (b) of this regulation and the NOx ozone season emission cap in COMAR 26.11.40.03 shall be demonstrated with a continuous emission monitoring system that is installed, operated, and certified in accordance with 40 CFR Part 75.

  (2) Compliance with the emission rates in §A(2)(a) and (b) of this regulation shall be demonstrated as a 30-day rolling average.

C. Monitoring and Reporting Requirements.

  (1) For boilers or combustion units at a Kraft pulp mill subject to this regulation, the owner or operator of the Kraft pulp mill shall:

    (a) Continuously monitor NOx emissions with a CEM system in accordance with 40 CFR Part 75, Subpart H and 40 CFR §51.121(i)(4); and

    (b) Maintain records and submit reports in accordance with 40 CFR Part 75.

  (2) The owner or operator of a Kraft pulp mill subject to this regulation shall include emissions data obtained from a CEM pursuant to §C(1) of this regulation in the CEM quarterly reports submitted to the Department pursuant to COMAR 26.11.01.11E(2).

### Chapter 15 — Toxic Air Pollutants

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: February 25, 1983 (10:1 Md. R. 30)

**Administrative History:** Regulations .01E and .02 amended effective July 2, 1985 (12:11 Md. R. 1049); October 14, 1985 (12:18 Md. R. 1766); August 11, 1986 (13:13 Md. R. 1492)

**Administrative History:** Regulations .01 and .03 repealed effective April 6, 1987 (14:5 Md. R. 579) (Provisions transferred to COMAR 10.18.23)

**Administrative History:** Regulation .02 amended effective January 5, 1988 (14:24 Md. R. 2555)

**Administrative History:** Annotation: Attorney General Opinion No. 83-015 (May 2, 1983) found that the Department of Health and Mental Hygiene has ample statutory authority to adopt the asbestos project cleanliness measurement found in COMAR 10.18.15.03B(1)(d)(ii).

**Administrative History:** Chapter recodified from COMAR 10.18.15 to COMAR 26.11.15

**Administrative History:** Regulation .01 adopted effective September 27, 1988 (15:18 Md. R. 2148)

**Administrative History:** Regulation .01B amended effective November 19, 1989 (16:20 Md. R. 2185); July 2, 1990 (17:10 Md. R. 1221); May 2, 1991 (18:6 Md. R. 689); November 23, 1992 (19:23 Md. R. 2042); August 11, 1997 (24:16 Md. R. 1161)

**Administrative History:** Regulation .02 amended effective September 26, 1988 (15:17 Md. R. 2049); March 31, 1991 (18:4 Md. R. 450); February 17, 1992 (19:3 Md. R. 306); June 20, 1994 (21:12 Md. R. 1064); August 11, 1997 (24:16 Md. R. 1161)

**Administrative History:** Regulations .03—.13 adopted effective September 27, 1988 (15:18 Md. R. 2148)

**Administrative History:** Regulation .03A amended effective November 19, 1989 (16:20 Md. R. 2185); May 8, 1995 (22:9 Md. R. 653); August 11, 1997 (24:16 Md. R. 1161)

**Administrative History:** Regulation .04A, B amended effective May 8, 1995 (22:9 Md. R. 653)

**Administrative History:** Regulation .07C amended effective June 20, 1989 (16:9 Md. R. 995)

**Administrative History:** Regulation .09B amended effective May 8, 1995 (22:9 Md. R. 653)

**Administrative History:** Regulation .10D amended effective August 11, 1997 (24:16 Md. R. 1161)

**Administrative History:** Regulation .11 amended effective November 9, 1992 (19:22 Md. R. 1990)

**Administrative History:** Regulation .12 amended effective November 9, 1992 (19:22 Md. R. 1990)

**Administrative History:** Regulation .13 amended effective May 2, 1991 (18:6 Md. R. 689)

**Administrative History:** Regulation .14 adopted effective August 11, 1997 (24:16 Md. R. 1161)

**Administrative History:** Regulations .01—.07A amended and Regulations .07B—.14 recodified to COMAR 26.11.16 effective October 5, 1998 (25:20 Md. R. 1533)

**Administrative History:** Regulation .01B amended effective December 25, 2000 (27:25 Md. R. 2285)

**Administrative History:** Regulation .02 amended effective December 25, 2000 (27:25 Md. R. 2285)

#### Regulation .01 Definitions.

*COMAR 26.11.15.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Acceptable ambient level (AAL)” means a concentration of a toxic air pollutant in the atmosphere that the Department determines will provide a margin of safety to protect the public health from toxic, noncarcinogenic effects that may be caused by the toxic air pollutant and that is used to evaluate the air quality impacts of all premises within a 5-kilometer (3.1-mile) radius. AALs are listed in COMAR 26.11.16.09.

  (2) “Allowable emissions” means the maximum emissions a source or installation is capable of discharging after consideration of any physical or operational limitations required by this subtitle or by enforceable conditions included in an applicable air quality permit to construct, permit to operate, secretarial order, plan for compliance, consent agreement, or court order.

  (3) Best Available Control Technology for Toxics (T-BACT).

    (a) “T-BACT” means control technology that results in the maximum degree of emission reduction that the Department determines, on a case-by-case basis, is available for each toxic air pollutant discharged by the installation, taking into account the potency and toxicity of each toxic air pollutant and the technical and economic feasibility of control.

    (b) “T-BACT” includes production, operation, and maintenance procedures, emission control technology, and other emission reduction technologies or a combination of these technologies and procedures.

    (c) “T-BACT”, as applicable to a MACT source, means:

      (i) A requirement that has been adopted by the US EPA under 40 CFR 63 and that applies to the installation, source, source category, or subcategory;

      (ii) A new source MACT as established by the Department in accordance with the provisions of 40 CFR §§63.40—63.44;

      (iii) Alternative standard approved by the EPA Administrator; or

      (iv) Alternative emission limitation approved by the Department in accordance with 40 CFR Part 63, Subpart D.

  (4) “Class I toxic air pollutant (Class I TAP)” means a substance or group of substances that is listed in COMAR 26.11.16.06.

  (5) “Class II toxic air pollutant (Class II TAP)” means any substance that is not a Class I TAP, for which there is no ambient air quality standard under this subtitle, that is not a simple asphyxiant or nuisance particulate, and that is:

    (a) A health hazard as that term is defined at 29 CFR §1915.1200 (July 1, 1994); or

    (b) Listed in COMAR 26.11.16.07B as an existing source Class II TAP, either individually or as a member of a group of substances.

  (6) “EPA's Risk Assessment Guidelines” means the U.S. Environmental Protection Agency's Guidelines for Carcinogenic Risk Assessment, 51 FR 33992 (September 24, 1986).

  (7) “Existing installation, existing source, or existing premises” means an installation, source, or premises, respectively, constructed before July 1, 1988, or for which the Department issued an air quality permit to construct before July 1, 1988. Any existing installation that is modified but that is not reconstructed after July 1, 1988, remains an existing installation.

  (7-1) “Hazardous air pollutant (HAP)” means any of the hazardous air pollutants listed in §112(b) of the federal Clean Air Act of 1990, 42 U.S.C. §§7401—7671.

  (8) “Insignificant risk concentration (IRC)” means a concentration of a Class I toxic air pollutant in the atmosphere that would result in an excess individual lifetime cancer risk of not more than 1 in 100,000 (1 × 10 superscript -5) assuming continuous exposure for 70 years and using procedures consistent with EPA's Risk Assessment Guidelines. IRCs are listed in COMAR 26.11.16.09.

  (9) “Installation” has the meaning given in COMAR 26.11.01.01, except that for purposes of this chapter, installation does not include air pollution control equipment as defined in COMAR 26.11.01.01.

  (9-1) “MACT source” means a NESHAP source that is subject to the requirements in 40 CFR 63;

  (9-2) “Maximum achievable control technology (MACT)”, as applicable, means:

    (a) MACT emission limitation for existing sources as defined in 40 CFR §63.51; or

    (b) MACT emission limitation for new sources as defined in 40 CFR §63.51.

  (10) “New installation, new source, or new premises” means an installation, source, or premises, respectively, constructed or reconstructed on or after July 1, 1988, except as provided under §B(7) of this regulation.

  (10-1) “New source MACT” means maximum achievable control technology (MACT) emission limitation for new sources as defined in 40 CFR §63.41.

  (11) “Nuisance particulate” means dust that, when inhaled, causes a potentially reversible lung tissue reaction in which the architecture of the lung's air spaces remains intact, and collagen (scar tissue) is not formed to a significant extent. Examples of nuisance particulates are listed in COMAR 26.11.16.08.

  (12) “Premises” means all the installations or other sources that are located on contiguous or adjacent properties and that are under the control of one person or under common control of a group of persons.

  (13) “Reconstruct” means to replace components of an existing installation, or add components to an existing installation, to such an extent that the fixed capital cost of the new components exceeds 50 percent of the fixed capital cost that would be required to construct a comparable entirely new installation. Reconstruct does not include replacement or additions that do not:

    (a) Cause the discharge of different toxic air pollutants;

    (b) Cause applicable screening levels to be exceeded; and

    (c) Increase the ambient concentration of any Class I toxic air pollutant.

  (14) “Screening analysis” means an optional procedure for demonstrating compliance with Regulation .06 of this chapter that compares maximum incremental ambient impacts with applicable screening levels.

  (15) “Screening level” means a concentration of a toxic air pollutant in the atmosphere used to evaluate the air quality impacts of a single premises. Screening level includes the following:

    (a) “Risk-based screening level” means a concentration of a Class I toxic air pollutant in the atmosphere as determined under COMAR 26.11.16.03;

    (b) “Special screening level (SSL)” means a concentration of a toxic air pollutant in the atmosphere that replaces a TLV or threshold-based screening level. Special screening levels are listed in COMAR 26.11.16.09;

    (c) “TLV-based screening level” means a concentration of a Class I or Class II toxic air pollutant in the atmosphere as determined under COMAR 26.11.16.03;

    (d) “Threshold-based screening level” means a concentration of a Class I or Class II toxic air pollutant in the atmosphere as determined under COMAR 26.11.16.03 when a TAP has neither a TLV-based nor a special screening level.

  (16) “Second tier analysis” means an optional procedure for demonstrating compliance with Regulation .06 of this chapter using an acceptable ambient level or an insignificant risk concentration, as provided in COMAR 26.11.16.02, instead of a screening level.

  (17) “Simple asphyxiant” means a physiologically inert gas or vapor that acts primarily by diluting atmospheric oxygen below the level required to maintain proper levels of oxygen in the blood. Examples of simple asphyxiants are listed in COMAR 26.11.16.08.

  (18) “Threshold limit value (TLV)” means the airborne concentration of a substance that, according to the American Conference of Governmental Industrial Hygienists (ACGIH), represents conditions to which nearly all workers may be exposed without adverse effect and that is published in the chapter titled "1991—1992 Threshold Limit Values for Chemical Substances in the Work Environment" (Adopted by ACGIH with Intended Changes for 1991—1992), which is incorporated by reference. This chapter is found in the TLV booklet, defined in §B(19) of this regulation. TLV includes the following:

    (a) “Ceiling TLV (TLV-C)” means a concentration that ACGIH indicates should not be exceeded even instantaneously in a workplace;

    (b) “Short term exposure limit (TLV-STEL or STEL)” means a 15-minute time-weighted average concentration that ACGIH indicates should not be exceeded at any time during a workday;

    (c) “Threshold limit value—time weighted average (TLV-TWA)” means a concentration recommended by ACGIH for a normal 8-hour workday and 40-hour workweek.

  (19) “TLV booklet” means "1991—1992 Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices" (American Conference of Governmental Industrial Hygienists, 1991).

  (20) Toxic Air Pollutant.

    (a) “Toxic air pollutant (TAP)” means any Class I or Class II toxic air pollutant, as defined in §B(4) and (5) of this regulation.

    (b) “Toxic air pollutant” does not include particulate matter and volatile organic compounds as generic classes of substances, but an individual substance or a group of substances within either of these classes is a TAP if it meets a criterion in §B(4) or (5) of this regulation.

  (21) “Upper bound unit risk factor” means the 95 percent upper confidence limit of an estimate of the extra risk of cancer associated with a continuous 70-year exposure to 1 microgram/cubic meter of a Class I toxic air pollutant.

#### Regulation .02 Control of NESHAP and MACT Sources.

*COMAR 26.11.15.02*

A. A person may not construct, modify, operate, or cause to be constructed, modified, or operated any NESHAP source as defined in COMAR 26.11.01.01B(21), which results or will result in violation of any provisions of 40 CFR Part 61 (excluding Subparts B, H, I, K, Q, R, T, and W).

B. A NESHAP source controlled under the requirements of §A of this regulation is not subject to the requirements of Regulations .05 and .06 of this chapter to the extent that emissions from the source are regulated under 40 CFR 61 (NESHAP), except that a source is subject to any applicable requirement under 40 CFR 63, or MACT or new source MACT established by the Department in accordance with the provisions of 40 CFR Part 63, Subpart B.

C. A person may not construct, reconstruct, or operate, or cause to be constructed, reconstructed, or operated, a MACT source which results, or will result, in violation of any provisions of 40 CFR 63.

D. A person may not construct, reconstruct, or operate, or cause to be constructed, reconstructed, or operated, any MACT source which results, or will result, in a violation of a MACT or new source MACT established by the Department in accordance with the provisions of 40 CFR Part 63, Subpart B.

E. The applicability of a requirement under 40 CFR 63, a MACT, or a new source MACT to a source does not change the applicability of this chapter to that source.

F. MACT sources may request from the Department a compliance extension for certain 40 CFR 63 requirements following the procedures set forth in 40 CFR Part 63, Subpart D.

#### Regulation .03 Applicability and Exemptions.

*COMAR 26.11.15.03*

A. Applicability.

  (1) Sources Subject to Permit Requirements. Except as provided in this regulation and in Regulation .06 of this chapter, any installation or source that discharges a Class I or Class II TAP into the ambient air is subject to the requirements of this chapter if the installation or source:

    (a) Is required to obtain a permit to construct or approval under COMAR 26.11.02.09; or

    (b) Either has obtained, or was required to obtain, a State permit to operate on or before March 1, 1993.

  (2) Certain Electric Generating Stations. An installation that burns refuse-derived fuel that is part of a generating station constructed by an electric company is subject to the requirements of this chapter.

  (3) Hazardous Waste Incinerators. A hazardous waste incinerator, as defined in COMAR 26.13.01.03B(33), for which a hazardous waste facility permit has been requested or issued is subject to the requirements of this chapter.

  (4) Sources Subject to Requirements Under 40 CFR 63. Regardless of the applicability of this chapter, a person that causes emissions of HAPs may be subject to the requirements of 40 CFR 63.

  (5) Other. The Department may require any installation or source not otherwise subject to this chapter to meet the requirements of this chapter if the Department determines that the installation or source has the potential to discharge toxic air pollutants in quantities that may unreasonably endanger the public health.

B. Exempt Installations or Sources.

  (1) This section does not mean that a source is exempt from an applicable requirement under 40 CFR 63, or MACT or new source MACT established by the Department in accordance with the provisions of 40 CFR Part 63, Subpart B.

  (2) General Exemptions. The following installations or sources are exempt from the requirements of this chapter:

    (a) Fuel-burning equipment as defined at COMAR 26.11.09.01, other than equipment burning refuse-derived fuel;

    (b) Charbroilers and pit barbecues as defined in COMAR 26.11.18.01; and

    (c) Gasoline stations operated for the purpose of refueling motor vehicles.

  (3) Exemptions from Regulations .05 and .06 of this chapter.

    (a) Premises Discharging Small Quantities of Class II TAPs. The emissions of a Class II TAP from a premises are exempt from the requirements of Regulations .05 and .06 of this chapter, if:

      (i) The total allowable emissions of the TAP from the premises are 0.5 pound per hour (0.23 kilogram per hour) or less; and

      (ii) All applicable TLV-based, threshold-based, or special screening levels for the TAP are greater than 200 micrograms/cubic meter.

    (b) Premises Discharging Small Quantities of Class I TAPs. The emissions of a Class I TAP from a premises are exempt from the requirements of Regulations .05 and .06 of this chapter, if:

      (i) The total allowable emissions of the TAP from the premises are 0.5 pound per hour (0.23 kilogram per hour) or less;

      (ii) The total allowable emissions of the TAP from the premises are 350 pounds per year (159 kilograms per year) or less;

      (iii) All applicable TLV-based, threshold-based, or special screening levels for the TAP are greater than 200 micrograms/cubic meter; and

      (iv) The applicable risk-based screening level is greater than 1 microgram/cubic meter.

    (c) Other. The Department may, on a case-by-case basis, after providing public notice and an opportunity for a public hearing, exempt any other installation, source, or premises from a requirement under Regulations .05 and .06 of this chapter on the basis of capacity, nature of equipment or materials, amount of emissions, or other evidence that the installation, source, or premises has a limited potential to discharge toxic air pollutants to the atmosphere and will not unreasonably endanger human health.

  (4) Exemption from Regulation .06. If the total allowable emissions of a Class II TAP from a premises will not create an 8-hour concentration of the TAP in the atmosphere that exceeds 0.02 microgram/cubic meter beyond the property line, then emissions of that TAP from the premises are exempt from the requirements of Regulation .06 of this chapter.

#### Regulation .04 Requirement to Quantify Emissions.

*COMAR 26.11.15.04*

A. New Installations or Sources.

  (1) The owner or operator of a new installation or source shall quantify emissions of each TAP that will be discharged and submit that information to the Department when applying for the permit to construct the new installation or source, or when an update is requested by the Department.

  (2) Emissions shall be quantified in sufficient detail to determine whether the premises complies with the requirements of this chapter.

B. Existing Installations or Sources.

  (1) The owner or operator of an existing installation or source that, on or before March 1, 1993, either has obtained or was required to obtain a State permit to operate shall quantify emissions of each toxic air pollutant that is discharged that is listed in COMAR 26.11.16.06 and .07B.

  (2) Emissions shall be quantified in sufficient detail to determine whether the premises complies with the requirements of this chapter.

  (3) An owner or operator of an existing installation or source shall submit emissions data not later than 1 year after becoming subject to this chapter or not later than the following dates, whichever is later:

    (a) January 1, 1989, for Class I toxic air pollutants listed in COMAR 26.11.16.06;

    (b) January 1, 1989, for Class II toxic air pollutants listed in COMAR 26.11.16.07B with a compliance date of July 1, 1990; and

    (c) January 1, 1991, for any other Class II toxic air pollutants listed in COMAR 26.11.16.07B.

C. Certain Exempt Sources.

  (1) Certain Premises Discharging Small Quantities of TAP. The owner or operator of a premises exempted from certain requirements under Regulation .03B(3)(a) or (b) of this chapter shall quantify emissions as required by §A or B of this regulation in sufficient detail to demonstrate the Department's satisfaction that emissions are less than the applicable emission rates listed in Regulation .03B(3)(a) or (b) of this chapter.

  (2) Other Sources Exempt from Regulations .05 or .06. The owner or operator of a NESHAP source or other installation, source, or premises exempted from certain requirements under Regulation .02B, .03B(3)(c), or .03B(4) of this chapter shall quantity emissions as required by §A or B of this regulation.

D. Level of Detail.

  (1) An initial screening analysis under COMAR 26.11.16.02A may be based on a conservative estimate of emissions that represents good engineering judgment, if the Department determines that the analysis demonstrates applicable screening levels will not be exceeded. If compliance with Regulation .06 of this chapter cannot be demonstrated on this basis, more precise emission estimates shall be used.

  (2) An owner or operator of a source that discharges more than one toxic air pollutant may demonstrate compliance with Regulation .06 of this chapter by:

    (a) Quantifying emissions and performing modeling for each TAP individually;

    (b) Using procedures approved by the Department to quantify TAP emissions and perform modeling for a group of TAPs, and to evaluate concentrations on the basis of the toxicity of the most toxic component or components of the group; or

    (c) Using other procedures approved by the Department.

  (3) If several related substances are listed as Class I TAPs or are members of a group of substances listed as a Class I TAP, and these substances are evaluated using a common upper bound unit risk factor, then the substances shall be considered together as one TAP. For example, all hexavalent compounds of chromium that have been determined to be carcinogens shall be considered together as one TAP. Also, dioxin and furan emissions shall be considered together as one TAP and expressed as an equivalent emission of 2,3,7,8-tetrachlorodibenzo-p-dioxin based upon the relative potency of the isomers.

#### Regulation .05 Control Technology Requirements.

*COMAR 26.11.15.05*

A. New or Reconstructed Installations. A person may not construct, reconstruct, operate, or cause to be constructed, reconstructed, or operated, any new installation or source that will discharge a toxic air pollutant to the atmosphere without installing and operating T-BACT.

B. Certain Installations Discharging Class I Toxic Air Pollutants. A person who requests a special permit as provided in COMAR 26.11.16.05 shall install and operate T-BACT on installations or sources discharging the Class I TAP in question located at the same premises.

C. Existing Installations Using Dispersion Techniques. A person who complies with the ambient impact requirement in Regulation .06 of this chapter by increasing the height of a stack above good engineering practice or by using other dispersion techniques shall use T-BACT. The following apply:

  (1) For purposes of this section, dispersion technique is defined as provided in 40 CFR §51.100(hh), 1996 edition, except that:

    (a) The provisions of 40 CFR §51.100(hh)(2)(v), 1996 edition, do not apply; that is, an installation's emissions of sulfur dioxide do not affect the definition of dispersion technique;

    (b) Good engineering practice (GEP) stack height shall be calculated as provided in 40 CFR §51.100(ii)(2)—(3), 1996 edition; that is, a stack height 65 meters or less is not presumed to be GEP unless it meets other criteria in 40 CFR §51.100(ii).

  (2) This section applies only to stack heights increased after July 1, 1988, or dispersion techniques instituted after July 1, 1988.

  (3) Unless an existing installation is controlled using T-BACT, the degree of emission limitation required in order to demonstrate compliance with Regulation .06 of this chapter may not be affected by the amount of the installation's stack height that exceeds good engineering practice (GEP), or by any other dispersion technique.

#### Regulation .06 Ambient Impact Requirement.

*COMAR 26.11.15.06*

A. Requirements for New Installations, Sources, or Premises.

  (1) Except as provided in §A(2) of this regulation, a person may not construct, modify, or operate, or cause to be constructed, modified, or operated, any new installation or source without first demonstrating to the satisfaction of the Department using procedures established in this chapter that total allowable emissions from the premises of each toxic air pollutant discharged by the new installation or source will not unreasonably endanger human health.

  (2) If a new installation or source will discharge a TAP that is not listed in COMAR 26.11.16.07 and will be part of an existing premises, then emissions of that TAP from existing sources or existing installations on the premises may be omitted from a screening analysis unless the TAP is added to COMAR 26.11.16.07.

B. Requirements for Existing Installations, Sources, or Premises.

  (1) Except as provided in §B(3) of this regulation, a person may not cause or permit the discharge of a toxic air pollutant listed in COMAR 26.11.16.07 from an existing installation or source if total allowable emissions of that TAP from the premises will unreasonably endanger human health.

  (2) A person shall demonstrate compliance with §B(1) of this regulation using the procedures established in Regulation .07 of this chapter and COMAR 26.11.16.

  (3) A person who owns or operates an existing premises shall meet the requirements of §B(1) and (2) of this regulation for each TAP listed in  COMAR 26.11.16.07 by the applicable compliance dates listed in COMAR 26.11.16.07, or not later than 2 years after becoming subject to this chapter, whichever is later.

#### Regulation .07 General Requirements for Compliance Demonstrations.

*COMAR 26.11.15.07*

A. To demonstrate that a premises discharging a Class I TAP is in compliance with Regulation .06 of this chapter, a person shall demonstrate that allowable emissions will not unreasonably endanger human health both because of potential carcinogenic effects and because of other potential toxic effects. Demonstrations for Class II TAPs are required only for potential toxic effects other than cancer.

B. To demonstrate compliance with Regulation .06 of this chapter a person may:

  (1) Use a screening analysis or second tier analysis, as explained in COMAR 26.11.16.02A and B;

  (2) Request a special permit under COMAR 26.11.16.05; or

  (3) Use other options provided by law.

C. A person may request approval of an interim special screening level, interim acceptable ambient level, or interim insignificant risk concentration as provided in COMAR 26.11.16.04 in order to use the interim level in place of a special screening level, AAL, or IRC to demonstrate compliance with Regulation .06 of this chapter.

### Chapter 16 — Procedures Related to Requirements for Toxic Air Pollutants

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Chapter revised and recodified from COMAR 26.11.15.07B—.14 to COMAR 26.11.16 effective October 5, 1998 (25:20 Md. R. 1533)

#### Regulation .01 Definitions.

*COMAR 26.11.16.01*

The terms defined in COMAR 26.11.15 also apply throughout this chapter.

#### Regulation .02 Demonstrating Compliance with COMAR 26.11.15.06.

*COMAR 26.11.16.02*

A. Screening Analysis.

  (1) Carcinogenic Effects. A person may demonstrate that emissions of a Class I TAP from a premises will not unreasonably endanger human health because of potential carcinogenic effects by a screening analysis showing that total allowable emissions from the premises will not cause increases in ambient levels that exceed the risk-based screening level for the TAP.

  (2) Other Toxic Effects.

    (a) A person may demonstrate that emissions of a Class I or Class II TAP from a premises do not unreasonably endanger human health because of potential toxic effects other than cancer by a screening analysis showing that total allowable emissions from the premises will not cause increases in ambient levels that exceed applicable TLV-based, threshold-based, or special screening levels.

    (b) If a special screening level has been adopted, a TLV-based or threshold-based screening level may not be used for that TAP. A threshold-based screening level may be used only if there is no TLV, no special screening level, and no acceptable ambient level for a TAP.

  (3) For a screening analysis, a person may use the dispersion modeling procedures in Air Management Administration Technical Memorandum 86-02 (TM 86-02), “Ambient Air Quality Impact Screening Analysis for Toxic Air Pollutants”, which is incorporated by reference, or other, more rigorous dispersion modeling procedures as provided in §C(1)(a) of this regulation. If concentrations predicted using TM 86-02 exceed applicable screening levels, more rigorous modeling techniques should be used in either a screening analysis or a more detailed analysis.

  (4) Instead of using dispersion modeling, a person may conduct a screening analysis by showing that total allowable emissions of a TAP will be less than the most stringent applicable emission rate listed in the tables in this section. Multiple screening levels with different averaging periods may apply to a TAP. These tables may not be used with screening levels having averaging periods other than those listed in the tables. Emission rates labeled "10 Meter Stacks, No Downwash" may be used only if all emissions of the TAP are discharged from a stack or stacks at least 32.8 feet (10 meters) high under conditions preventing downwash. (TM 86-02 describes conditions causing downwash.) Except as provided in COMAR 26.11.15.06, these emission rates apply to the total allowable emissions from a premises.

B. Second Tier Analysis.

  (1) Carcinogenic Effects. A person may demonstrate that emissions of a Class I TAP from a premises will not unreasonably endanger human health because of potential carcinogenic effects by a second tier analysis showing that total allowable emissions from the premises will not cause increases in ambient levels that exceed an insignificant risk concentration (IRC) for the TAP, or by an approvable request for a special permit under Regulation .05 of this chapter. A second tier analysis would be appropriate if new information is available concerning carcinogenic dose-response relationships. A special permit should be requested if a person wishes to more accurately characterize exposure, to justify approval of risks greater than 1 × 10 superscript -5, or to otherwise modify assumptions to more accurately represent risks.

  (2) Other Toxic Effects. A person may demonstrate that emissions of a Class I or Class II TAP from a premises will not unreasonably endanger human health because of toxic effects other than cancer by a second tier analysis showing that total allowable emissions from the premises will not contribute to concentrations exceeding the applicable acceptable ambient level (AAL) for the TAP.

C. General Procedures for Compliance Demonstrations.

  (1) Dispersion Modeling Procedures Required.

    (a) A person using dispersion modeling to demonstrate compliance with COMAR 26.11.15.06 shall use procedures approved by the Department. The Department will approve dispersion modeling procedures that are consistent with the U.S. Environmental Protection Agency's guidance on dispersion modeling.

    (b) For second tier analysis showing that total allowable emissions from a premises will not contribute to concentrations exceeding an acceptable ambient level, a person shall use available emissions data to model ambient impacts caused by other sources of the Class II TAP within 5 kilometers (3.1 miles) of the premises. The Department will assist persons modeling ambient concentrations for comparison to AALs by providing available information on emissions from other sources or on background levels. The Department may provide additional assistance as resources permit.

  (2) Averaging Times. To demonstrate compliance with this chapter, a person shall use the averaging time consistent with the applicable screening level, AAL, or IRC unless the Department requires the use of a shorter averaging time. The Department will require that a shorter averaging time be used if it determines that the operating procedures of the source may cause a high concentration of a TAP for a short period and that consideration of potential health effects due to peak exposures may be warranted for the TAP.

#### Regulation .03 Screening Levels.

*COMAR 26.11.16.03*

A. Screening Levels for Toxic Effects Other than Cancer.

  (1) TLV-Based Screening Levels. TLV-based screening levels shall be determined as follows:

    (a) If a toxic air pollutant (TAP) has a threshold limit value-time weighted average (TLV-TWA), divide the TLV-TWA by 100 to calculate an 8-hour time-weighted average screening level;

    (b) If a TAP has a ceiling TLV (TLV-C) or a short term exposure limit (TLV-STEL), divide the TLV-C or TLV-STEL by 100 to calculate a 1-hour time-weighted average screening level;

    (c) If a TAP has both a TLV-TWA and TLV-STEL, calculate both 8-hour and 1-hour time-weighted average screening levels as described above.

  (2) Threshold-Based Screening Levels.

    (a) If a TAP has neither a TLV, nor a special screening level, nor an acceptable ambient level, then a person may use one of the following formulae, given in order of preference, to develop an 8-hour threshold-based screening level in milligrams/cubic meter. In these formulae, a NOEL is a No Observed Effect Level, and an LC50 or LD50 is a concentration or dose, respectively, expected to cause the death of 50 percent of an entire defined experimental animal population. The following are formulae to be used:

      (i) Divide a 90-day inhalation NOEL in milligrams/cubic meter for rats, mice, or rabbits by 100;

      (ii) Multiply a 90-day oral NOEL in milligrams/kilograms for rats by 2.7 × 10-3rd), for mice by 9.0 × 10-4th), or for rabbits by 1.3 × 10-3rd);

      (iii) Divide a 7-day inhalation NOEL in milligrams/cubic meter for rats, mice, or rabbits by 700;

      (iv) Multiply a 7-day oral NOEL in milligrams/kilograms for rats by 3.8 × 10-4th), for mice by 1.3 × 10-4th), or for rabbits by 1.9 × 10-4th);

      (v) Divide an LC50 in milligrams/cubic meter for rats, mice, or rabbits by 10,000; or

      (vi) Multiply an oral LD50 in milligrams/kilograms for rats by 4.1 × 10-5th), for mice by 1.4 × 10-5th), or for rabbits by 2.0 × 10-5th).

    (b) When two or more animal test data acceptable to the Department are available for use under a subparagraph in §A(2)(a) of this regulation, the screening level shall be calculated using the data producing the lowest screening level.

    (c) The above formulae are not the only ones appropriate for developing screening levels. These are acceptable formulae to the Department at this time. Other formulae may be used to calculate special screening levels.

  (3) Special Screening Level. If a special screening level for a toxic air pollutant is listed in Regulation .09 of this chapter, the special screening level or levels in Regulation .09 of this chapter replace applicable TLV-based or threshold-based screening levels for that toxic air pollutant.

  (4) General.

    (a) The Department may adopt special screening levels for TAPs that ACGIH has identified as carcinogens. A person should contact the Air Management Administration before using a TLV-based screening level for any of these TAPs.

    (b) The Department will provide information on TLV-based screening levels upon request.

    (c) The Department will maintain a list of AALs under consideration pending their adoption into this chapter, and will make a list available upon request.

B. Screening Level for Carcinogenic Effects.

  (1) “Risk-based screening level” means the annual average concentration, in micrograms per cubic meter, that would increase a person's lifetime cancer risk by 1 in 100,000 (1 × 10-5th)) if the person were continuously exposed to the concentration for 70 years. The Department will calculate the risk-based screening level using:

    (a) If available, a unit risk factor developed by the Cancer Assessment Group of the U.S. Environmental Protection Agency (termed a CAG unit risk factor); or

    (b) If a CAG unit risk factor is not available, an upper bound unit risk factor developed in accordance with EPA's Risk Assessment Guidelines.

  (2) The Department will maintain an up-to-date list of available risk-based screening levels and will provide information on these levels upon request.

#### Regulation .04 Scientific Review and Amendment of Various Levels and Lists.

*COMAR 26.11.16.04*

A. Ongoing Scientific Review.

  (1) In order to use the best available scientific information, the Department will conduct an ongoing review of information concerning whether to add or delete toxic air pollutants under Regulations .06 and .07 of this chapter and concerning what screening levels or ambient concentrations should be used to review emissions of toxic air pollutants. In its ongoing review, the Department will consider scientific information developed by the U.S. Environmental Protection Agency, other states, or other scientific organizations. The Department will also consider scientific information provided by any person.

  (2) In reviewing information about toxic air pollutants or requests to amend lists, screening levels, or ambient concentrations, the Department will request advice from the Governor's Science Advisory Council.

B. Interim Levels Set During Permit Review.

  (1) Requesting Approval.

    (a) In order to demonstrate compliance with COMAR 26.11.15.06 when scientific evidence indicates a screening level adopted under this chapter should be revised, a person may request Departmental approval of an interim special screening level, interim AAL, or interim IRC for a TAP. The person shall submit written information on the health effects of the TAP, the levels at which health effects have occurred, and other supporting information requested by the Department.

    (b) The Department may use an interim special screening level, interim AAL, or interim IRC, to establish allowable emissions of a TAP for a source until a special screening level, AAL, or IRC for the TAP has been adopted or amended under this chapter.

  (2) Scientific and Public Review.

    (a) In order to evaluate information concerning a proposed interim special screening level, an interim AAL, or interim IRC, the Department may convene a scientific review panel consisting of scientific experts from within or outside the Department.

    (b) If the Department makes a determination to proceed with an interim special screening level, interim AAL, or interim IRC, it will notify the applicant. The applicant shall publish a notice of an opportunity for a public hearing on the interim special screening level, interim AAL, or interim IRC, using the procedures set forth at COMAR 26.11.02.12F, G for providing public notice and an opportunity for public hearing.

    (c) If the Department is required or intends to provide an opportunity for a public hearing on a permit or approval for the source in question, the opportunity for a public hearing on the interim special screening level, interim AAL, or interim IRC, may be provided concurrently.

  (3) Approval Criteria. The Department will approve an interim special screening level, interim AAL, or interim IRC, only if it meets the approval criteria listed under §D of this regulation.

C. Petitions.

  (1) Filing. In accordance with COMAR 26.01.03, any interested person may file a petition asking the Department to adopt or amend a special screening level, acceptable ambient level, or insignificant risk concentration for a TAP. The petitioner should submit information on the health effects expected to be caused by the TAP, the levels at which health effects occur, other information that supports adopting or changing a screening level, acceptable ambient level, or insignificant risk concentration.

  (2) Scientific Review. In order to evaluate information submitted by a petitioner, the Department may convene a scientific review panel consisting of scientific experts from within or outside the Department.

D. Approval Criteria.

  (1) Special Screening Level. The Department will adopt a special screening level only if it determines that the level will not unreasonably endanger human health and provides a scientifically appropriate basis for screening analysis. In deciding whether to establish a special screening level for a TAP, the Department will consider the scientific basis for both the special screening level and any applicable TLV as well as other available information on the health effects of the TAP.

  (2) Acceptable Ambient Level. The Department will adopt an AAL under this chapter only if the Department determines that concentrations at that level will provide a margin of safety to protect the public health from toxic effects of the TAP other than cancer.

  (3) Insignificant Risk Concentration.

    (a) The Department will adopt an IRC under this chapter only if the Department determines the IRC is calculated using procedures consistent with EPA's Risk Assessment Guidelines and is the annual average concentration, in micrograms per cubic meter, that would increase a person's lifetime cancer risk by not more than 1 in 100,000 (1 × 10-5th)) if the person were continuously exposed to the concentration for 70 years.

    (b) In deciding whether to adopt an IRC, the Department will consider factors contributing to the uncertainty of the applicable upper bound unit risk factor, including:

      (i) Whether it is appropriate to use a most likely estimate of risk rather than a 95 percent upper confidence limit in developing an IRC;

      (ii) Whether the IRC should be based on the highest unit risk factor developed from the most sensitive species; and

      (iii) Other pertinent information.

#### Regulation .05 Procedures for Requesting Special Permits.

*COMAR 26.11.16.05*

A. Applicability.

  (1) A person who cannot demonstrate that a premises discharging a Class I TAP complies with COMAR 26.11.15.06 using a risk-based screening level may submit a written request for the Department to establish allowable emissions for the premises in a special permit.

  (2) The Department will issue a special permit to specify the maximum allowable emissions of any Class I TAP discharged from the premises.

  (3) Except as provided by State Government Article, §10-404, Annotated Code of Maryland, a special permit expires 5 years from the date it is issued by the Department.

B. Approval Criteria. The Department will approve a special permit only if it determines that emission controls represent at least T-BACT and emissions of toxic air pollutants will not unreasonably endanger human health. In making this determination, the Department will consider information submitted by the applicant, public comments, and other available and relevant information, including:

  (1) The effectiveness, cost, feasibility, and timing of additional risk reductions, including consideration of process changes or relocation of the source;

  (2) Estimated public health risks;

  (3) Environmental and social consequences of granting or denying the permit; and

  (4) Uncertainty in data or analysis.

C. Application.

  (1) Required Information. A person applying for a special permit shall submit the following information to the Department in addition to any other information required by COMAR 26.11.02:

    (a) A demonstration that emission controls on installations at the premises that discharge the Class I TAP in question represent T-BACT;

    (b) A description and assessment of the effectiveness, cost, and feasibility of potential methods for achieving additional risk reductions;

    (c) An assessment of the increased risk of cancer caused by allowable emissions from the premises, determined using procedures consistent with EPA's Risk Assessment Guidelines and approved by the Department;

    (d) A description of current or future populations that may be affected by the premises' emissions;

    (e) An assessment of other environmental health stresses borne by the affected population; and

    (f) Other information requested by the Department and pertinent to the Department's decision to grant or deny the special permit.

  (2) Risk Assessment.

    (a) The risk assessment submitted under §C(1)(c) of this regulation shall include:

      (i) A discussion of overall uncertainty in data and analysis; and

      (ii) An estimate of the increase in individual risk from a continuous 70-year exposure to the highest annual average concentration off the property.

    (b) The risk assessment submitted under §C(1)(c) of this regulation includes one or more alternative characterizations of risk, such as:

      (i) The estimated increase in individual risk at the location of the most exposed individual;

      (ii) The estimated increase in individual risk from each year of exposure;

      (iii) The maximum number of cancers in the exposed population that would be expected due to operation of the premises; or

      (iv) Other risk estimates more accurately characterizing exposure from emissions from the premises.

    (c) The risk assessment submitted under §C(1)(c) of this regulation may use alternative unit risk factors, alternative dispersion modeling techniques, or other alternative risk assessment procedures approved by the Department and consistent with EPA's Risk Assessment Guidelines.

D. Scientific Review and Public Hearing.

  (1) Optional Scientific Review Panel. If the Department makes a preliminary decision to consider an application for a special permit, it may convene a scientific review panel consisting of experts from within or outside the Department to evaluate information submitted as part of the application.

  (2) Public Notice and Opportunity for Public Hearing.

    (a) Except as provided in §D(2)(b) of this regulation, if the Department makes a determination to proceed with the application, it will follow the procedures under COMAR 26.11.02.12F and G for providing public notice and an opportunity for public hearing.

    (b) Unless public notice and an opportunity for public hearing are required by Environment Article, §2-204, Annotated Code of Maryland, or by other State or federal regulations, the Department will waive the requirement for public notice and opportunity for public hearing under this section if the Department determines that all of the following conditions are met:

      (i) T-BACT is being used to reduce emissions of the TAP from the premises;

      (ii) Emissions from the premises will not unreasonably endanger human health;

      (iii) Emissions from the premises will cause increases in ambient levels of the TAP that are greater than the risk-based screening level for the TAP only on property that is zoned and used for industrial purposes; and

      (iv) Increases in ambient levels of the TAP on property that is zoned and used for industrial purposes will increase a person's lifetime cancer risk by not more than 1 in 100,000 (1 X 10 superscript -5) using assumptions that are consistent with EPA's Risk Assessment Guidelines and that the Department concludes accurately characterize worst plausible exposure and risk in those areas. For areas zoned and used for industrial purposes, the Department will assume a person is continuously exposed to the TAP for 40 hours a week for 40 years unless the Department concludes that other exposure assumptions would more accurately characterize worst plausible exposures in a particular instance.

#### Regulation .06 Class I Toxic Air Pollutants.

*COMAR 26.11.16.06*

A. Known Human Carcinogens.

B. Probable Human Carcinogens.

C. Potential Human Carcinogens.

#### Regulation .07 Toxic Air Pollutants for Existing Sources.

*COMAR 26.11.16.07*

A. Class I Toxic Air Pollutants Requiring Ambient Impact Analysis by Existing Sources.

B. Class II Toxic Air Pollutants Requiring Emission Estimates or Ambient Impact Analysis by Existing Sources.

#### Regulation .08 Examples of Nuisance Particulates and Simple Asphyxiants.

*COMAR 26.11.16.08*

A. The substances listed in §B of this regulation are examples of nuisance particulates and simple asphyxiants.

B. List of Substances.

#### Regulation .09 Levels Used to Review Ambient Impacts.

*COMAR 26.11.16.09*

A. Special Screening Levels (SSL) and Acceptable Ambient Levels (AAL).

### Chapter 17 — Nonattainment Provisions for Major New Sources and Major Modifications

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: August 19, 1984 (11:14 Md. R. 1250)

**Administrative History:** Chapter recodified from COMAR 10.18.17 to COMAR 26.11.17

**Administrative History:** Chapter, Bubbles, Banking, and Offsets, repealed effective July 8, 1990 (17:11 Md. R. 1344)

**Administrative History:** Regulations .01—.05, Requirements for Major New Sources and Modifications, adopted effective April 26, 1993 (20:8 Md. R. 724)

**Administrative History:** Regulation .02D amended effective May 22, 1995 (22:10 Md. R. 708)

**Administrative History:** Chapter revised effective October 2, 2000 (27:19 Md. R. 1732)

**Administrative History:** Regulation .01B amended effective November 24, 2003 (30:23 Md. R. 1653)

**Administrative History:** Regulation .03B amended effective November 24, 2003 (30:23 Md. R. 1653)

**Administrative History:** Chapter revised effective October 22, 2007 (34:21 Md. R. 1917)

**Administrative History:** Regulation .01B amended effective July 8, 2013 (40:13 Md. R. 1077); April 9, 2018 (45:7 Md. R. 347); October 16, 2023 (50:20 Md. R. 889)

**Administrative History:** Regulation .02 amended effective July 8, 2013 (40:13 Md. R. 1077)

**Administrative History:** Regulation .04F adopted effective April 9, 2018 (45:7 Md. R. 347)

**Administrative History:** Regulation .04F amended effective December 30, 2019 (46:26 Md. R. 1167)

**Administrative History:** Regulation .04F repealed effective October 16, 2023 (50:20 Md. R. 889)

#### Regulation .01 Definitions.

*COMAR 26.11.17.01*

A. For the purpose of this chapter, the following terms have the meanings indicated. Other applicable definitions may be found in COMAR 26.11.01.01.

B. Terms Defined.

  (1) Actual Emissions.

    (a) “Actual emissions” means:

      (i) The actual rate of emissions of a regulated NSR pollutant from an emissions unit as determined in accordance with this subsection;

      (ii) In general, as of a particular date, the average rate in tons per year at which the unit actually emitted the pollutant during a consecutive 24-month period, which precedes the particular date and which is representative of normal source operation, although the Department may allow the use of a different time period upon a determination that it is more representative of normal source operation; and

      (iii) As of a particular date, for any emissions unit which has not begun normal operations on the particular date, the unit's potential to emit on that date.

    (b) Actual emissions shall be calculated using the emissions unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

    (c) The Department may assume that source-specific allowable emissions for the emissions unit are equivalent to the actual emissions of the unit.

  (2) “Allowable emissions” means the emissions rate calculated using the maximum rated capacity of the source, unless the source is subject to federally enforceable limits which restrict the operating rate, or hours of operation, or both, and the most stringent of the following:

    (a) Applicable standards as set forth in 40 CFR 60 and 61;

    (b) Any applicable Maryland State Implementation Plan (SIP) emissions limitation, including those with a future compliance date; or

    (c) The emissions rate specified as a federally enforceable permit condition including those with a future compliance date.

  (3) Baseline Actual Emissions.

    (a) “Baseline actual emissions” means the rate of emissions, in tons per year, of a regulated NSR pollutant.

    (b) For an existing electric utility steam generating unit, “baseline actual emissions” is determined by the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 5-year period immediately preceding the date on which a complete application was submitted. The Department may approve a different period upon a demonstration that it is more representative of normal source operations.

    (c) For an existing emissions unit, other than an electric utility steam generating unit, “baseline actual emissions” is determined by the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 5-year period immediately preceding the date on which a complete application was submitted. The Department may allow a different 24-month consecutive time period, within the last 10 years, upon a demonstration that it is more representative of normal source operations.

    (d) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of the unit shall equal zero, and, thereafter, for all other purposes, shall equal the unit's potential to emit.

    (e) For a PAL for a major stationary source, the baseline actual emissions shall be calculated, for existing electric utility steam generating units, in accordance with the procedures contained in §B(3)(b) of this regulation, for other existing emissions units in accordance with the procedures contained in §B(3)(c) of this regulation, and for a new emissions unit, in accordance with the procedures contained in §B(3)(d) of this regulation.

    (f) In General.

      (i) The average rate of emissions shall include fugitive emissions to the extent quantifiable, and emissions associated with start-ups, shutdowns, and malfunctions.

      (ii) The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above any emissions limitation that was legally enforceable during the consecutive 24-month period. However, if an emission limitation is part of a proposed or promulgated maximum achievable control technology standard under 40 CFR Part 63, the baseline actual emissions need only be adjusted if credit for the emissions reductions was taken in an attainment demonstration or maintenance plan.

      (iii) When a project involves multiple emissions units or different regulated NSR pollutants, only one consecutive 24-month period shall be used to determine the baseline actual emissions for the emissions units being changed.

      (iv) The average rate may not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions and adjusting the amount if required.

  (4) “Begin actual construction” means, in general, initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. These activities include installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operation, this definition refers to those on-site activities other than preparatory activities which mark the initiation of the change.

  (5) Best Available Control Technology.

    (a) “Best available control technology” means an emissions limitation, including a visible emissions standard, based on the maximum degree of reduction for each regulated NSR pollutant which would be emitted from any proposed major stationary source or major modification which the Department, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for that source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combination techniques for control of the pollutant.

    (b) Application of best available control technology may not result in emissions of any pollutant which would exceed the emissions allowed by an applicable standard under 40 CFR 60 and 61.

    (c) If the Department determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination of these, may be prescribed instead to satisfy the requirement for the application of best available control technology. This standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of the design, equipment, work practice, or operation, and shall provide for compliance by means which achieve equivalent results.

  (6) Building, Structure, Facility, or Installation.

    (a) “Building, structure, facility, or installation” means all of the pollutant-emitting activities that belong to the same industrial group that are located on one or more contiguous or adjacent properties, and are under the control of the same person, or persons under common control.

    (b) Pollutant-emitting activities are considered as part of the same industrial group if they belong to the same “Major Group” (that is, have the same two-digit code as described in the Standard Industrial Classification Manual (SIC) prepared by the federal Office of Management and Budget (OMB) and amended in 1987).

  (7) “Commence”, as applied to construction of a major stationary source or major modification, means that the owner or operator has all necessary preconstruction approvals or permits and either has:

    (a) Begun, or caused to begin, a continuous program of actual on-site construction of the source to be completed within a reasonable time; or

    (b) Entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of actual on-site construction of the source to be completed within a reasonable time.

  (8) “Construction” means any physical change or change in the method of operation, including fabrication, erection, installation, demolition, or modification of an emissions unit, which would result in a change in emissions.

  (9) “Electric utility steam generating unit” means any steam electric generating unit that is constructed for the purpose of supplying more than 1/3 of its potential electric output capacity and more than 25 megawatts electric output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity of the affected facility.

  (10) Emissions Reduction Credit (ERC).

    (a) “Emissions reduction credit (ERC)” means a permanent, enforceable, quantifiable reduction in actual emissions, occurring on or after January 1, 2003, which is surplus to all applicable State and federally enforceable requirements to be used to offset emission increases.

    (b) “Emissions reduction credit (ERC)” does not constitute a security or other form of property.

  (11) “Emissions unit” means any part of a stationary source which emits, or would have the potential to emit, a regulated NSR pollutant.

  (12) “Existing emissions unit” means an emissions unit that does not meet the requirement in §B(20) of this regulation.

  (13) “Federally enforceable” means all limitations and conditions which are enforceable by the U.S. Environmental Protection Agency (EPA), including those requirements developed pursuant to 40 CFR 60 and 61, requirements within the SIP, any permit requirements established pursuant to 40 CFR §52.21 or under regulations approved pursuant to 40 CFR Part 51, Subpart I, including operating permits issued under a program that is approved by EPA or that is incorporated into the Maryland SIP and expressly requires adherence to any permit issued under the program.

  (14) “Fugitive emissions” means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

  (15) Lowest Achievable Emission Rate.

    (a) “Lowest achievable emission rate” means, for any emissions unit, the more stringent rate of emissions based on the following:

      (i) The most stringent emissions limitation which is contained in the implementation plan of any state for the class or category of stationary source, unless the owner or operator of the proposed stationary source demonstrates that these limitations are not achievable; or

      (ii) The most stringent emissions limitation which is achieved in practice by the class or category of stationary sources, with this limitation, when applied to a modification, meaning the lowest achievable emissions rate for the new or modified emissions units within the stationary source.

    (b) The application of this definition does not permit a proposed new or modified emissions unit to emit any pollutant in excess of the amount allowable under 40 CFR 60.

  (16) Major Modification.

    (a) “Major modification” means any physical change in, or change in the method of operation of, a major stationary source that would result in a significant emissions increase and a significant net emissions increase of any regulated NSR pollutant.

    (b) Any significant emissions increase from any emissions unit or net emissions increase at a major stationary source that is considered significant for volatile organic compounds or NOx is considered significant for ozone.

    (c) A physical change in or a change in the method of operation does not include:

      (i) Routine maintenance, repair, and replacement;

      (ii) Use of an alternative fuel or raw material by reason of an order under §2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974, or any superseding legislation, or by reason of a natural gas curtailment plan pursuant to the federal Power Act;

      (iii) Use of an alternative fuel by reason of an order or rule under §125 of the federal Clean Air Act;

      (iv) Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste;

      (v) Use of an alternative fuel or raw material by a stationary source which the source was capable of accommodating before December 21, 1976, unless the change would be prohibited under any federally enforceable permit condition which was established after December 21, 1976, pursuant to 40 CFR §52.21 or under regulations approved pursuant to 40 CFR Part 51, Subpart I, or 40 CFR §51.166, or the source is approved to use under any federally enforceable permit issued under this subtitle;

      (vi) An increase in the hours of operation or in the production rate, unless such change is prohibited under any federally enforceable permit condition; or

      (vii) Any change in ownership.

    (d) This definition does not apply with respect to a particular regulated NSR pollutant when the major stationary source is complying with the requirements for a PAL.

  (17) Major Stationary Source.

    (a) “Major stationary source” means any stationary source of air pollution which emits or has the potential to emit 100 tons or more of any regulated NSR pollutant, except that lower emissions thresholds apply as follows:

      (i) 25 tons or more per year of VOC or NOx for sources located in Baltimore City or Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles, Frederick, Harford, Howard, Montgomery, or Prince George's counties;

      (ii) 50 tons or more per year of VOC for sources located in Allegany, Caroline, Dorchester, Garrett, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Washington, Wicomico, or Worcester counties;

      (iii) 50 tons or more per year of carbon monoxide in any serious nonattainment area for carbon monoxide, where stationary sources contribute significantly to carbon monoxide levels in the area; and

      (iv) 70 tons or more per year of PM10 in any serious nonattainment area for PM10.

    (b) “Major stationary source” also means any physical change that would occur at a stationary source not qualifying under §B(17)(a) of this regulation as a major stationary source, if the change would constitute a major stationary source by itself.

    (c) A major stationary source that is major for volatile organic compounds or NOx is considered major for ozone.

    (d) In determining if a source is a major stationary source, fugitive emissions shall be included if the source belongs to one of the categories of stationary sources listed in 40 CFR §51.165(a)(1)(iv)(C).

  (18) “Necessary preconstruction approvals or permits” means those permits or approvals required under this subtitle.

  (19) Net Emissions Increase.

    (a) “Net emissions increase” means, with respect to a regulated NSR pollutant emitted by a major stationary source, the amount by which the sum of the following exceeds zero:

      (i) Any increase in emissions from a particular physical change or change in the method of operation at a stationary source; and

      (ii) Any other increases and decreases in actual emissions of the particular pollutant that are contemporaneous with the particular change and are otherwise creditable.

    (b) Baseline actual emissions for calculating increases and decreases under this definition shall be determined as provided in §B(3) of this regulation, except that §B(3)(c) does not apply.

    (c) An increase or decrease in actual emissions of a particular pollutant is contemporaneous with the increase from the particular change if it occurs within the 5-year period preceding the date on which a complete permit application for the change is submitted and before the date that the increase from the particular change occurs.

    (d) An increase or decrease in actual emissions is creditable only if the Department has not relied on it in issuing a permit for the source and the permit is in effect when the increase in actual emissions from the particular change occurs.

    (e) An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.

    (f) A decrease in actual emissions is creditable only to the extent that:

      (i) The old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions;

      (ii) The decrease is enforceable in a practicable manner at and after the time that the actual construction on the particular change begins;

      (iii) The Department has not previously relied on the decrease in issuing any permit under this chapter or in demonstrating attainment or reasonable further progress in the SIP and it is not required by any other State requirement; and

      (iv) It has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change.

    (g) An increase that results from a physical change occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

  (20) “New emissions unit” means an emissions unit which is or will be newly constructed and which has existed for less than 2 years from the date the emissions unit first operated.

  (21) Potential to Emit.

    (a) “Potential to emit” means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design.

    (b) Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable.

  (22) “Project” means a physical change in, or change in the method of operation of, an existing major stationary source.

  (23) Projected Actual Emissions.

    (a) “Projected actual emissions” means the maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated NSR pollutant in any one of the 5 years following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if:

      (i) The project involves increasing the emissions unit's design capacity or its potential to emit the regulated NSR pollutant; and

      (ii) Full utilization of the unit would result in a significant emissions increase or a significant net emissions increase at the major stationary source.

    (b) In determining the projected actual emissions before beginning actual construction, the owner or operator of the major stationary source shall:

      (i) Consider all relevant information including historical operational data, the company's own representations, the company's expected business activity, the company's highest projections of business activity, the company's filings with the State or EPA, and compliance plans under the approved plan;

      (ii) Include fugitive emissions to the extent quantifiable and emissions associated with start-ups, shutdowns, and malfunctions; and

      (iii) Exclude, in calculating any increase in emissions that results from the particular project, that portion of the emissions unit's emissions following the project that an existing unit could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions and that are also unrelated to the particular project, including any increased utilization due to product demand growth.

    (c) In lieu of using the method set out in §B(23)(b) of this definition, a person may elect to use the emissions unit's potential to emit, in tons per year.

  (24) “Regulated NSR pollutant” means any pollutant for which a national ambient air quality standard has been promulgated and any pollutant that is a constituent or precursor of the pollutant for which there is an ambient air quality standard, provided that the constituent or precursor may only be regulated under this chapter as part of regulation of the pollutant. After January 1, 2011, PM2.5 and PM10 emissions shall include gaseous emissions from a source or activity which condense to form particulate matter at ambient temperature. These emissions shall be accounted for in applicability determinations and in establishing emission limitation in permits. Compliance with PM2.5 and PM10 emission limitations shall be as described in CFR 51.165(a)(1)(xxxvii)(D). Precursors identified for the purpose of NSR in Maryland are:

    (a) Nitrogen oxides and volatile organic compounds are precursors of ozone in all ozone nonattainment areas.

    (b) Nitrogen oxides and sulfur dioxide are precursors of PM2.5 in all PM2.5 nonattainment areas.

  (25) “Replacement unit” means an emissions unit that meets all of the following criteria:

    (a) No creditable emission reductions are generated by shutting down the existing emissions unit that is replaced;

    (b) The emissions unit is a reconstructed unit within the meaning of 40 CFR §60.15(b)(1) or the emissions unit completely takes the place of an existing emissions unit;

    (c) The emissions unit is identical to or functionally equivalent to the replaced emissions unit;

    (d) The replaced unit does not alter the basic design parameters of the existing emissions unit; and

    (e) The replaced emissions unit is permanently removed from the major stationary source or otherwise permanently disabled or barred from operation by a permit that is enforceable as a practicable matter.

  (26) “Significant” means, in reference to a net emissions increase, a significant emissions increase or the potential of a source to emit a regulated NSR pollutant, or a rate of emissions that would equal or exceed any of the following rates:

    (a) Volatile organic compounds or nitrogen oxides: 25 tons per year (tpy) in Baltimore City or Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles, Frederick, Harford, Howard, Montgomery, and Prince George's counties;

    (b) Volatile organic compounds or nitrogen oxides: 40 tpy in Allegany, Caroline, Dorchester, Garrett, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Washington, Wicomico, and Worcester counties.

    (c) PM2.5 emissions: 10 tpy;

    (d) Sulfur dioxide: 40 tpy;

    (e) Lead: 0.6 tpy;

    (f) PM10: 15 tpy; and

    (g) Carbon monoxide: 100 tpy.

  (27) “Stationary source” means any building, structure, facility, or installation which emits or may emit any regulated NSR pollutant subject to this chapter.

#### Regulation .02 Applicability.

*COMAR 26.11.17.02*

A. This chapter applies Statewide, unless specified otherwise throughout this Chapter, to:

  (1) New major stationary sources and major modifications that are major for VOC or NOx;

  (2) New major stationary sources and major modifications that are major for PM2.5 or its precursors and are located in Baltimore City or Anne Arundel, Baltimore, Carroll, Charles, Frederick, Harford, Howard, Montgomery, Prince George's, and Washington counties;

  (3) Any new major stationary source or major modification at a major stationary source that is major for a pollutant for which the area is designated nonattainment under §107(d)(1)(A)(i) of the Clean Air Act (42 U.S.C. §7407); and

  (4) Major stationary sources and major modifications that are major for VOC or NOx located in the Ozone Transport Region.

B. A person may apply for and obtain a permit to construct a new major stationary source or a major modification at an existing major stationary source after meeting the conditions of §A(1)—(4) of this regulation if all of the provisions in this chapter are met.

C. Major stationary sources and major modifications, whether located in attainment or nonattainment areas, may also be subject to the Prevention of Significant Deterioration requirements in COMAR 26.11.06.14.

D. A person may not circumvent the intent of this chapter through incremental construction or modification or through staged construction or modification.

E. This chapter applies to any source for which:

  (1) The Department did not receive, by November 15, 1992, an application which the Department determines is complete for all necessary permits to construct and approvals required by this subtitle; and

  (2) A completed application, for all necessary permits to construct and approvals required by this subtitle, was received before November 15, 1992, but for which the applicant did not, as determined by the Department, diligently pursue those permits and approvals after November 15, 1992.

F. Major Modification.

  (1) A project is a major modification for a regulated NSR pollutant if it causes a significant emissions increase and a significant net emissions increase. The project is not a major modification if it does not cause a significant emissions increase. If the project causes a significant emissions increase, then the project is a major modification only if it also results in a significant net emissions increase.

  (2) Applicability Tests.

    (a) Actual-to-Projected-Actual Applicability Test for Projects That Involve Only Existing Emissions Units. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the projected actual emissions and the baseline actual emissions, for each existing emissions unit, equals or exceeds the significant amount for that pollutant.

    (b) Actual-to-Potential Test for Projects That Involve Only Construction of a New Emissions Unit or Units. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the potential to emit from each new emissions unit following completion of the project and the baseline actual emissions of these units before the project, equals or exceeds the significant amount for that pollutant.

    (c) Hybrid Test for Projects That Involve Multiple Types of Emissions Units. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each emissions unit, using the method specified in §F(2)(a) and (b) of this regulation, as applicable, with respect to each emissions unit, for each type of emissions unit, equals or exceeds the significant amount for that pollutant.

G. At the time when a particular stationary source or modification becomes a major stationary source or major modification solely by virtue of a relaxation in any enforcement limitation which was established after August 7, 1980, on the capacity of the source or modification otherwise to emit a pollutant, such as a restriction on hours of operation, then the requirements of this chapter apply to the source or modification as though construction had not yet commenced on the source or modification.

H. Any major stationary source with a PAL for a regulated NSR pollutant shall comply with the requirements of Regulations .07—.09 of this chapter.

I. Preconstruction Permit Program In Attainment Areas.

  (1) The preconstruction permit program requirements also apply to any proposed major stationary source and to any major modification to the source in an area designated as attainment or unclassifiable for any National Ambient Air Quality Standard (NAAQS) pursuant to §107 of the Clean Air Act (42 U.S.C. 7407) when it would cause or contribute to a violation of a NAAQS.

  (2) A major source or major modification is considered to cause or contribute to a violation of a NAAQS when the source or modification would, at a minimum, exceed the following significance levels at any locality that does not or would not meet the applicable national standard:

  (3) A proposed major source or major modification subject to §I(2) of this regulation may reduce the impact of its emissions upon air quality by obtaining sufficient emission reductions to, at a minimum, compensate for its adverse ambient impact where the major source or major modification would otherwise cause or contribute to a violation of any NAAQS.

#### Regulation .03 General Conditions.

*COMAR 26.11.17.03*

A. A person who proposes to construct or modify an emissions unit subject to this chapter may not commence construction of the emissions unit without first obtaining all permits and approvals required under this subtitle.

B. The Department shall deny a permit or approval to a person who proposes to construct a new major stationary source or major modification to a major stationary source unless the following conditions are met:

  (1) The applicant certifies that all existing major stationary sources owned or operated by the applicant, or any entity controlling, controlled by, or under common control with the applicant, in the State are in compliance with all applicable emission limitations or are in compliance with an approved federally enforceable plan for compliance;

  (2) The proposed new major stationary source or major modification will meet an emission limitation which specifies the lowest achievable emissions rate;

  (3) More than equivalent emission offsets from existing sources in the area impacted by the proposed new major stationary source or major modification (whether or not under the same ownership) are required so that there will be reasonable further progress toward attainment of the applicable standard; for sources locating in the Ozone Transport Region, the offset ratios for VOC and NOx shall equal or exceed the following:

    (a) 1.3 to 1 for sources of VOC or NOx in Baltimore City, or Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles, Frederick, Harford, Howard, Montgomery, or Prince George's counties; and

    (b) 1.15 to 1 for sources of VOC or NOx in Allegany, Caroline, Dorchester, Garrett, Kent, Queen Anne's, Somerset, St. Mary's, Talbot, Washington, Wicomico, or Worcester counties;

  (4) The emission offsets will provide a positive net air quality benefit in the affected area, although for sources of VOC or NOx, atmospheric simulation modeling is not necessary for VOC and NOx and fulfillment of §B(3) of this regulation is considered adequate to meet this condition;

  (5) The emission offsets for the major source or major modification shall be federally enforceable before construction is commenced;

  (6) An analysis of alternative sites, sizes, production processes, and environmental control techniques for a proposed source demonstrates that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification; and

  (7) The total tonnage of increased emissions, in tons per year, resulting from a major modification that is to be offset is the sum of the difference between the allowable emissions after the modification and the actual emissions before the modification for each emissions unit.

C. For phased construction projects, the determination of the lowest achievable emission rate shall be reviewed and modified, as appropriate, at the latest reasonable time which occurs not later than 18 months before commencement of construction of each independent phase of the project. At that time, the owner or operator of the applicable stationary source may be required to demonstrate the adequacy of any previous determination of the lowest achievable emission rate for the source.

D. Approval to construct does not relieve an owner or operator of the responsibility to comply fully with any other requirement under local, State, or federal law.

E. If an existing emissions unit at a major stationary source is modified and causes an increase in emissions that may be significant and the modification is not part of a major modification at the source:

  (1) A permit is required in accordance with COMAR 26.11.02 and the Department will establish permit conditions that prevent the emissions from becoming significant; and

  (2) The source is also subject to the annual reporting requirements in COMAR 26.11.01.05-1 that require a report of emissions for each emissions unit for each year.

F. If the emissions from the modified emissions unit become significant, the provisions in this chapter apply retroactive to the date the modification occurred.

#### Regulation .04 Creating Emission Reduction Credits (ERCs).

*COMAR 26.11.17.04*

A. An emissions unit that emits NOx or VOC is eligible to create an ERC if:

  (1) The unit was in operation any time during calendar year 2002 or later, and emissions from the unit were included in the current inventory for the State Implementation Plan for the pollutant;

  (2) The Department did not rely on the emission reduction in issuing a permit under an approved regulation; and

  (3) The Department has not relied on the emission reduction in demonstrating attainment or reasonable further progress.

B. An ERC may be created by:

  (1) Controlling emissions below the emission levels required by applicable State and federal requirements and the State Implementation Plan through a federally enforceable permit limit;

  (2) Curtailing operations and reducing emissions through a federally enforceable permit condition; or

  (3) Permanently discontinuing the operation of one or more emissions units at a source.

C. Quantification and use of ERCs.

  (1) ERCs shall be based on a reduction of the source's actual emissions as that term is defined in Regulation .01 of this chapter.

  (2) The Department shall credit an emissions unit with emission reductions achieved by shutting down an existing emissions unit or permanently curtailing production or operating hours if the reductions are permanent, quantifiable, and federally enforceable. In addition, the shutdown or curtailment is creditable only if it occurred on or after January 1, 2003, and if the reduction is not necessary to meet any other State or federal requirement.

  (3) Creditable emission reductions that qualify as ERCs may be used to satisfy the requirement to provide offsets under this chapter and shall total at least 5 tons per year of VOC or NOx.

  (4) If a new regulation is adopted that applies to an emissions unit that created ERCs, the ERCs shall be reduced by an amount equal to the reduction that would have been required before the ERCs were created.

  (5) Emission reduction credits shall be enforceable by the Department and the EPA and shall be obtained by the date the new emissions unit commences construction.

  (6) The reduction of emissions from an emissions unit that provides emission reduction credits shall occur before the date when the new or modified emissions unit becomes operational.

D. Location of ERCs.

  (1) Generally, ERCs are acceptable if obtained from within the same area as the new or modified emissions unit. The Department may allow the owner or operator to obtain VOC or NOx emission reductions from other areas if:

    (a) The other area has an equal or higher nonattainment classification than the area in which the emissions unit is located; and

    (b) Emissions of the particular pollutant from the other area have been demonstrated to contribute to a violation of the National Ambient Air Quality Standard in the area in which the new emissions unit is located.

  (2) The Department shall give preference to ERCs from emissions units located as close to the proposed emissions unit site as possible.

E. Exclusions and Limitations.

  (1) ERCs shall expire as follows:

    (a) For emissions units discontinuing operation before January 1, 2002, the ERCs expire January 1, 2012; and

    (b) For emissions units discontinuing operation on or after January 1, 2002, the ERCs expire January 1, 2012, or 10 years after the discontinued operation, whichever is later.

  (2) The expiration dates in §E(1) of this regulation do not apply if the ERCs are committed to a new or modified emissions unit through a permit to construct that has an enforceable contract to transfer the ERCs to the owner or operator of a new or modified emissions unit.

  (3) An ERC may not be used to meet BACT, LAER, NSPS, RACT, allowance based programs, or any other emission limitation under the Clean Air Act.

F. Interprecursor Trading.

  (1) Provided that the other requirements for such offsets are satisfied, the offset requirements of COMAR 26.11.17.03B(3) for emissions of NOx and VOC may be satisfied through interprecursor trading by offsetting reductions of emissions of either NOx or VOC, by submitting to the Department for written approval the following information:

    (a) A description of the EPA approved air quality model(s) used to establish the appropriate ratio for the precursor substitution;

    (b) A proposed ratio, not to be less than the ratio required under COMAR 26.11.17.03B(3), for the precursor substitution and accompanying calculations; and

    (c) A technical demonstration substantiating that the ratio achieves an equivalent or greater air quality benefit for ozone in the nonattainment area than what would be achieved without interprecursor trading.

  (2) Approvals of precursor substitutions shall be made by the Department on a case-by-case basis and are permit specific.

#### Regulation .05 Information on Emission Reductions and Certification.

*COMAR 26.11.17.05*

A. A person who creates an emission reduction for use as an ERC shall submit the following information to the Department:

  (1) A description of the equipment or process that resulted in a reduction in actual emissions, including any air pollution control devices serving that equipment or process;

  (2) The actual emissions occurring when the equipment or process operated in compliance with all applicable requirements during the selected 24-month period;

  (3) Identification of all regulations or other requirements that apply to the equipment or process and a demonstration of compliance with those requirements;

  (4) Identification of the method used to reduce actual emissions and calculations showing the emission reductions achieved; and

  (5) The date or dates on which the reduction in emissions occurred.

B. ERCs may not be used until they are certified.

C. ERCs shall be certified as follows:

  (1) Information on emission reductions submitted by the person who owns or operates the emissions units creating the ERCs shall be verified by the Department based on review of information in the Department's files including the source's emission certification reports, stack tests, inspection reports, and other information relating to emissions and compliance with applicable requirements;

  (2) A site inspection may be made to verify the shutdown or other method used to create the ERCs.

#### Regulation .06 Transferring Emission Reduction Credits.

*COMAR 26.11.17.06*

A. An ERC may be transferred to the control of another person after it is certified and becomes federally enforceable.

B. A person may not use an ERC in a manner that causes a violation of any applicable federal or State emission standard or requirement.

C. ERCs may not be transferred to a third party or used for any other purpose except as offsets through a federally enforceable permit to construct.

D. A source located in Maryland may use an ERC created by a source located in another State if:

  (1) The emission reduction is certified by the state in which it is created;

  (2) The conditions of the transfer are enforceable by the other state and the EPA; and

  (3) All of the requirements in this chapter are met.

#### Regulation .07 Plantwide Applicability Limit (PAL) — General.

*COMAR 26.11.17.07*

A. Applicability.

  (1) The Department may approve the use of a PAL for any existing major stationary source if the requirements in this regulation are met.

  (2) Any physical change or change in the method of operation of a major stationary source that maintains its total source-wide emissions below the PAL level meets the requirements of this chapter and complies with the PAL permit if:

    (a) It is not a major modification for the PAL pollutant;

    (b) It does not have to be approved through Regulations .01—.03 of this chapter; and

    (c) It is not subject to Regulation .02G of this chapter.

  (3) Except as provided under §A(2) of this regulation, a major stationary source shall continue to comply with all applicable federal and State requirements, emission limitations, and work practice requirements that were established before the effective date of the PAL.

B. Definitions. In Regulations .07—.09 of this chapter, the following terms have the meanings indicated:

  (1) “Actual PAL” means, for a major stationary source, a PAL based on the baseline actual emissions of all emissions units at the source that emit or have the potential to emit the PAL pollutant.

  (2) “Allowable emissions” has the meaning stated in Regulation .01B(2) of this chapter, except that this definition is modified as follows:

    (a) The allowable emissions for any emissions unit shall be calculated considering any emission limitations that are enforceable as a practicable matter on an emissions unit's potential to emit;

    (b) An emissions unit's potential to emit shall be determined using the definition in Regulation .01B(21) of this chapter, except that the words “or enforceable as a practicable matter” shall be added after “federally enforceable”.

  (3) “Continuous emissions monitoring system (CEMs)” means all of the equipment that may be required to meet the data acquisition and availability requirements of this regulation, to sample, condition (if applicable), analyze, and provide a record of emissions on a continuous basis.

  (4) “Continuous emissions rate monitoring system (CERMs)” means the total equipment required for determining and recording the pollutant mass emissions rate (in terms of mass per unit of time).

  (5) “Continuous parameter monitoring system (CPMs)” means all of the equipment necessary to meet the data acquisition and availability requirements of this regulation to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, oxygen or carbon dioxide concentrations), and to record average operational parameter values on a continuous basis.

  (6) “Major emissions unit” means an emissions unit that emits or has the potential to emit:

    (a) 100 tons per year or more of the PAL pollutant in an attainment area; or

    (b) The PAL pollutant in an amount that is equal to or greater than the major source threshold for the PAL pollutant.

  (7) “PAL effective date” means the date of issuance of a PAL permit or a revised PAL permit, except that the PAL effective date for an increased PAL is the date an emissions unit which is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

  (8) “PAL effective period” means the period beginning with the PAL effective date and ending 5 years later.

  (9) “PAL major modification” means any physical change in or changes in the method of operation of the PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

  (10) “PAL permit” means the permit issued by the Department that establishes a PAL for a major stationary source.

  (11) “PAL pollutant” means the pollutant for which the PAL is established.

  (12) “Plantwide applicability limit (PAL)” means an emissions limitation, expressed in tons per year, for a pollutant at a major stationary source, that is enforceable as a practicable matter and established source-wide according to Regulation .08B of this chapter.

  (13) “Predictive emissions monitoring system (PEMS)” means all of the equipment necessary to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, oxygen or carbon dioxide concentrations), and calculate and record the mass emissions rate (for example, pounds per hour) on a continuous basis.

  (14) “Significant emissions unit” means an emissions unit that emits or has the potential to emit a PAL pollutant in an amount that is equal to or greater than the significant level for the PAL pollutant, but less than the amount that would qualify the unit as a major emissions unit.

  (15) “Small emissions unit” means an emissions unit that emits or has the potential to emit the PAL pollutant in an amount less than the significant level for that PAL pollutant, as defined in Regulation .01B(26) of this chapter or in the Clean Air Act, whichever is lower.

#### Regulation .08 Plantwide Applicability Limit (PAL) — Permits.

*COMAR 26.11.17.08*

A. Permit Application.

  (1) The owner or operator of a major stationary source may apply for a PAL permit by submitting an application to the Department that includes:

    (a) A list of all emissions units at the source designated as small, major, or significant based on their potential to emit;

    (b) Applicable State and federal requirements for each emissions unit;

    (c) The baseline actual emissions for each emissions unit with supporting calculations and documentation including emissions associated with startup, shutdown, and malfunctions; and

    (d) The method to be used to monitor each emissions unit.

  (2) The source shall include in the application calculations and procedures that are to be used to convert emissions data to monthly emissions to enable calculation of 12-month rolling averages.

B. PAL Level.

  (1) The PAL level for a major stationary source shall be established as the sum of the baseline actual emissions of the PAL pollutant for each emissions unit at the source plus an amount equal to the applicable significant level for the PAL pollutant under Regulation .01B of this chapter or under the Clean Air Act, whichever is lower.

  (2) When establishing the actual PAL levels for a PAL pollutant, only one consecutive 24-month period shall be used to determine the baseline actual emissions for all existing emissions units. However, a different consecutive 24-month period may be used for each different PAL pollutant.

  (3) Emissions associated with units that were permanently shut down after the 24-month period shall be subtracted from the PAL level. Emissions from units on which actual construction began after the 24-month period shall be added to the PAL level in an amount equal to the potential to emit of the units.

  (4) The Department shall specify a reduced PAL level, in tons per year, in the PAL permit to become effective on the future compliance date of any applicable federal or state regulatory requirement that the Department is aware of before issuance of the PAL permit.

C. Issuance of a PAL Permit.

  (1) If the Department approves an application for a PAL permit, the PAL permit shall be issued for a period not to exceed 5 years from the PAL effective date.

  (2) The PAL permit shall include:

    (a) The PAL pollutant and the applicable source-wide emissions limitation in tons per year;

    (b) The effective date and expiration date of the PAL;

    (c) Specification that if a major stationary source owner or operator applies to renew a PAL in accordance with §G of this regulation before the end of the PAL effective period, then the PAL does not expire at the end of the PAL effective period but remains in effect until a revised PAL permit is issued by the Department;

    (d) A requirement that emissions calculations for compliance purposes include emissions from startup, shutdowns, and malfunctions;

    (e) A requirement that, once the PAL expires, the major stationary source is subject to the requirements of §E of this regulation;

    (f) The calculation procedures that the major stationary source owner or operator shall use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month;

    (g) A requirement that the major stationary source owner or operator monitor all emissions units and retain records, in accordance with the provisions of Regulation .09A of this chapter, which may be retained in an electronic format;

    (h) A requirement to submit the reports required under Regulation .09A of this chapter by the required deadlines; and

    (i) Any other requirement that the Department determines is necessary to implement and enforce the PAL.

D. General Requirements.

  (1) The PAL shall impose an annual emission limitation in tons per year that is enforceable as a practical matter, for the entire major stationary source.

  (2) The PAL shall include emissions of only one pollutant, including quantifiable fugitive emissions of that pollutant from all emissions units.

  (3) For each month during the PAL effective period after the first 12 months of establishing a PAL, the major stationary source owner or operator shall show that the sum of the monthly emissions from each emissions unit under the PAL for the previous 12 consecutive months is less than the PAL. For each month during the first 11 months from the PAL effective date, the major stationary source owner or operator shall show that the sum of the preceding monthly emissions from the PAL effective date for each emissions unit under the PAL is less than the PAL.

  (4) A person who receives a PAL permit from the Department is subject to:

    (a) All applicable existing State and federal requirements; and

    (b) Any future State or federal requirements that apply to an emissions unit under an approved PAL.

  (5) During the PAL effective period, emission reductions of a PAL pollutant may not be creditable for use as ERCs unless the level of the PAL is reduced by the amount of the reduction and the reduction would be creditable in the absence of the PAL.

  (6) PALs for existing major stationary sources shall be established, renewed, or increased through a public participation procedure that is consistent with 40 CFR §§51.160 and 51.161. The Department shall provide the public with notice of the proposed approval of a PAL permit and at least a 30-day period for submittal of public comment. All comments received by the Department shall be addressed before the Department takes final action on the permit.

E. Expiration of a PAL.

  (1) Any PAL that is not renewed according to §G of this regulation shall expire at the end of the PAL effective period.

  (2) Within the time frame specified for PAL renewals, the major stationary source shall submit a proposed allowable emission limitation for each emissions unit (or each group of emissions units, if this distribution is more appropriate, as determined by the Department) by distributing the PAL allowable emissions for the major stationary source among each of the emissions units that existed under the PAL. If the PAL had not yet been adjusted for any applicable requirement that became effective during the PAL effective period, as required under §G of this regulation, the distribution shall be made as if the PAL had been adjusted.

  (3) The Department shall decide whether and how the PAL allowable emissions will be distributed and issue a revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as the Department determines is appropriate.

  (4) Each emissions unit shall comply with the allowable emission limitation on a 12-month rolling basis. The Department may approve the use of monitoring systems (for example, source testing or emission factors) other than CEMs, CERMs, PEMs, or CPMs to demonstrate compliance with the allowable emission limitation.

  (5) Until the Department issues the revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, the source shall continue to comply with a source-wide, multi-unit emissions cap equivalent to the level of the PAL emission limitation.

  (6) Any physical change or change in the method of operation at the major stationary source is subject to the nonattainment major NSR requirements if the change meets the definition of a major modification.

  (7) The major stationary source owner or operator shall continue to comply with any State or federal applicable requirements (BACT, RACT, NSPS, etc.) that may have applied either during the PAL effective period or before the PAL effective period, except for those emission limitations that had been established pursuant to Regulation .02G of this chapter but were eliminated by the PAL in accordance with Regulation .07A(2)(c) of this chapter.

F. Reopening a PAL Permit.

  (1) During the PAL effective period, the permit may be reopened to:

    (a) Correct any errors in setting the PAL or to reflect a more accurate determination of emissions used to establish the PAL;

    (b) Reduce the PAL if the source creates emission reduction credits; or

    (c) Reflect a necessary increase in the PAL level.

  (2) The Department may reopen the PAL to:

    (a) Reflect a new federal or State requirement that would apply to an emissions unit after the effective date or for other reasons determined by the Department;

    (b) Reduce the PAL consistent with any other requirement that is enforceable as a practicable matter, and that the Department may impose on the major stationary source; or

    (c) Reduce the PAL if the Department determines that a reduction is necessary to avoid causing or contributing to:

      (i) A NAAQS or PSD increment violation; or

      (ii) An adverse impact on an air quality related value that has been identified for a Federal Class I Area by a federal land manager and for which information is available to the general public.

  (3) Any adjustment to the PAL shall be made through the public participation procedures required when the PAL was first established.

G. Renewal of a PAL.

  (1) A person who requests renewal of a PAL permit shall apply for the renewal not later than 6 months before the existing PAL permit expiration date. If a person submits a complete application to renew the PAL within that time period, the PAL shall continue to be effective until a renewed permit is issued.

  (2) The application to renew the PAL shall contain the following:

    (a) The information required in §A of this regulation;

    (b) A proposed PAL level;

    (c) The sum of potential to emit of all emissions units under the PAL and supporting documentation; and

    (d) Any other information the owner or operator wishes the Department to consider in determining the appropriate level for renewing the PAL.

  (3) Adjustments at Renewal.

    (a) If the sum of the emissions from each emissions unit within the PAL is 80 percent or less than the PAL, a renewed PAL permit may be issued at the same level.

    (b) The Department may set the PAL at a level that it determines to be more representative of the source's baseline actual emissions, or that it determines to be appropriate considering air quality needs, advances in control technology, anticipated economic growth in the area, desire to reward or encourage the source's voluntary emissions reductions, or other factors as specifically identified by the Department in its written rationale.

    (c) If the potential to emit of the major stationary source is less than the PAL, the Department shall adjust the PAL to a level not greater than the potential to emit of the source, and the Department may not approve a renewed PAL level higher than the current PAL unless the major stationary source has complied with the provisions of Regulation .09A of this chapter.

  (4) If a compliance date for a State or federal requirement that applies to the PAL source occurs during the PAL effective period, and if the Department has not already adjusted for this requirement, that PAL shall be adjusted at the time of PAL renewal or Title V permit renewal, whichever occurs first.

  (5) The Department shall provide both the proposed PAL level and a written rationale for the proposed PAL level to the public for review and comment. During the public review, any person may propose a PAL level for the source for consideration by the Department.

H. Increasing a PAL.

  (1) Requirements for Increasing a PAL.

    (a) A PAL may be increased during the PAL effective period if the requirements of this subsection are met.

    (b) The owner or operator of the major stationary source shall submit a complete application to request an increase in the PAL limit for a PAL major modification. The application shall identify the emissions units contributing to the increase in emissions so as to cause the major stationary source's emissions to equal or exceed its PAL.

    (c) As part of this application, the major stationary source owner or operator shall demonstrate that the sum of the baseline actual emissions of the small emissions units, plus the sum of the baseline actual emissions of the significant and major emissions units assuming application of BACT equivalent controls, plus the sum of the allowable emissions of the new or modified emissions units, exceeds the PAL. The level of control that would result from BACT equivalent controls on each significant or major emissions unit shall be determined by conducting a new BACT analysis at the time the application is submitted, unless the emissions unit is currently required to comply with a BACT or LAER requirement that was established within the preceding 10 years. In this case, the assumed control level for that emissions unit shall be equal to the level of BACT or LAER with which that emissions unit shall currently comply.

    (d) The owner or operator shall obtain a major NSR permit for all emissions units identified in this subsection regardless of the magnitude of the emissions increase resulting from them (that is, no significant levels apply). These emissions units shall comply with any emissions requirements resulting from the nonattainment major NSR program processed (for example, LAER), even though they have also become subject to the PAL or continue to be subject to the PAL.

    (e) The PAL permit shall require that the increased PAL level be effective on the day any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

  (2) The Department shall calculate the new PAL as the sum of the allowable emissions for each modified or new emissions unit, plus the sum of the baseline actual emissions of the significant and major emissions units (assuming application of BACT equivalent controls as determined in accordance with §H(1)(c) of this regulation), plus the sum of the baseline actual emissions of the small emissions units.

  (3) The PAL permit shall be revised to reflect the increased PAL level pursuant to the public notice requirements of §D(6) of this regulation.

#### Regulation .09 Plantwide Applicability Limit (PAL) — Monitoring, Record Keeping, and Reporting.

*COMAR 26.11.17.09*

A. Monitoring and Record Keeping Requirements.

  (1) Each PAL permit shall contain enforceable requirements for the monitoring system that accurately determine plantwide emissions of the PAL pollutant in terms of mass per unit of time. Any monitoring system authorized for use in the PAL permit shall be based on sound science and meet generally acceptable scientific procedures for data quality and manipulation. Additionally, the information generated by the system shall meet the minimum legal requirements for admissibility in a judicial proceeding to enforce the PAL permit.

  (2) The PAL monitoring system shall employ one or more of the four general monitoring approaches meeting the minimum requirements set forth in §A(5) of this regulation and shall be approved by the Department.

  (3) Notwithstanding §A(2) of this regulation, an alternative monitoring approach may be used that meets the requirements of §A(1) of this regulation if approved by the Department.

  (4) Failure to use a monitoring system that meets the requirements of this section renders the PAL invalid.

  (5) The following are acceptable general monitoring approaches when conducted in accordance with the minimum performance requirements in §A(6)—(12) of this regulation:

    (a) Mass balance calculations for activities using coatings or solvents;

    (b) CEMs;

    (c) CPMs or PEMs; and

    (d) Emission factors.

  (6) Mass Balance Calculations. An owner or operator using mass balance calculations to monitor PAL pollutant emissions from activities using coatings or solvents shall meet the following requirements:

    (a) Provide a demonstrated means of validating the published content of the PAL pollutant that is contained in or created by all materials used in or at the emissions unit;

    (b) Assume that the emissions unit emits all of the PAL pollutant that is contained in or created by any raw material or fuel used in or at the emissions unit if it cannot otherwise be accounted for in the process; and

    (c) Where the vendor of a material or fuel which is used in or at the emissions unit publishes a range of pollutant content from that material, the owner or operator shall use the highest value of the range to calculate the PAL pollutant emissions unless the Department determines there is site specific data or a site specific monitoring program to support another content within the range.

  (7) CEMs. An owner or operator using CEMs to monitor PAL pollutant emissions shall meet the following requirements:

    (a) CEMs shall comply with the applicable performance specifications found in 40 CFR Part 60, Appendix B; and

    (b) CEMs shall sample, analyze, and record data at least every 15 minutes while the emissions unit is operating.

  (8) CPMs or PEMs. An owner or operator using CPMs or PEMs to monitor PAL pollutant emissions shall meet the following requirements:

    (a) The CPMs or the PEMs shall be based on current site specific data demonstrating a correlation between the monitored parameters and PAL pollutant emissions across the range of operation of the emissions unit; and

    (b) Each CPMs or PEMs shall sample, analyze, and record data at least every 15 minutes, or at another less frequent interval approved by the Department, while the emissions unit is operating.

  (9) Emission Factors. An owner or operator using emission factors to monitor PAL pollutant emissions shall meet the following requirements:

    (a) All emission factors shall be adjusted, if appropriate, to account for the degree of uncertainty or limitations in the factor development;

    (b) The emissions unit shall operate within the designated range of use for the emission factor, if applicable; and

    (c) If technically practicable, the owner or operator of a significant emissions unit that relies on an emission factor to calculate PAL pollutant emissions shall conduct validation testing to determine a site specific emission factor within 6 months of PAL permit issuance, unless the Department determines that testing is not required.

  (10) A source owner or operator shall record and report maximum potential emissions without considering enforceable emission limitations or operational restrictions for an emissions unit during any period of time that there is no monitoring data, unless another method for determining emissions during this period is specified in the PAL permit.

  (11) Notwithstanding the requirements in §A(6)—(10) of this regulation, when an owner or operator of an emissions unit cannot demonstrate a correlation between the monitored parameters and the PAL pollutant emissions rate at all operating points of the emissions unit, the Department shall, at the time of permit issuance:

    (a) Establish default values for determining compliance with the PAL based on the highest potential emission reasonably estimated at the operating point; or

    (b) Determine that operation of the emissions unit during operating conditions when there is no correlation between monitored parameters and the PAL pollutant emissions is a violation of the PAL.

  (12) Revalidation. All data used to establish the PAL pollutant shall be revalidated through performance testing or other scientifically valid means approved by the Department. This testing shall occur at least once every 5 years after issuance of the PAL.

  (13) The PAL permit shall require an owner or operator to retain a copy of all records necessary to determine compliance with any requirement of Regulations .07—.09 of this chapter and of the PAL, including a determination of each emissions unit's 12-month rolling total emissions for 5 years from the date of that record.

  (14) The PAL permit shall require an owner or operator to retain a copy of the following records for the duration of the PAL effective period plus 5 years:

    (a) A copy of the PAL permit application and any application for revisions to the PAL; and

    (b) Each annual certification of compliance pursuant to Title V and the data relied on in certifying the compliance.

B. Reporting Requirements.

  (1) A semiannual report shall be submitted to the Department within 30 days of the end of each reporting period, beginning 6 months after the PAL effective date. This report shall contain the following information:

    (a) The identification of the owner and operator and the permit number;

    (b) Total annual emissions in tons per year based on a 12-month rolling total for each month in the reporting period recorded pursuant to §A(13) of this regulation;

    (c) All data relied upon including any quality assurance or quality control data in calculating the monthly and annual PAL pollutant emissions;

    (d) A list of any emissions units modified or added to the major stationary source during the preceding 6-month period;

    (e) The number, duration, and cause of any deviation or monitoring malfunction, other than the time associated with zero and span calibration checks, and any corrective actions taken;

    (f) A notification of a shutdown of any monitoring system, whether the shutdown was permanent or temporary, the reason for the shutdown, the anticipated date that the monitoring system will be fully operational or replaced with another monitoring system, and whether the emissions unit monitored by the system continued to operate and the calculation of the emissions of the pollutant or the number determined by methods included in the permit; and

    (g) A signed statement by the responsible official certifying the truth, accuracy, and completeness of the information provided in the report.

  (2) The major stationary source owner or operator shall promptly submit reports of any deviation or exceedances of the PAL requirements including periods when no monitoring is available. A report submitted pursuant to COMAR 26.11.03.06C(7)(a)(i) shall satisfy this reporting requirement. The deviation reports shall be submitted within the time limits prescribed in the source's Title V permit. The report shall contain the following information:

    (a) The identification of the owner or operator and the permit number;

    (b) The PAL requirement that experienced the deviation or that was exceeded;

    (c) The emissions resulting from the deviation or the exceedances; and

    (d) A signed statement by the responsible official certifying the truth, accuracy, and completeness of the information provided in the report.

  (3) The owner or operator shall submit to the reviewing authority the results of any revalidation test or method within 3 months after completion of the test method.

### Chapter 18 — Control of Agriculturally Related Installations

**Authority:** Environment Article, Title 2, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1980 (7:12 Md. R. 1148)

**Administrative History:** Regulation .01 amended, and .06 adopted effective February 10, 1984 (10:26 Md. R. 2341)

**Administrative History:** Regulation .06B amended effective July 2, 1985 (12:11 Md. R. 1050)

**Administrative History:** For the history of this subtitle before June 18, 1980, see the Administrative History of COMAR 26.11.01.

**Administrative History:** Chapter recodified from COMAR 10.18.20 to COMAR 26.11.18

**Administrative History:** Regulation .05C amended effective January 23, 2023 (50:1 Md. R. 9)

#### Regulation .01 Definitions.

*COMAR 26.11.18.01*

A. “Char-broiler” means any equipment, device, or contrivance used for the cooking of meat on a grill through radiant heating.

B. “Cooking area” means the area of a grill or pit opening, as determined by the inside dimensions bordering on the retaining framework or containment wall.

C. “Grill” means any perforated framework used to broil meat.

D. “Habitable dwelling” means a dwelling that is inhabited on a full or part-time basis as a residence. Habitable dwelling does not include a dwelling located on the same property that has a char-broiler or pit barbeque.

E. “Offal” means the refuse from slaughtered or salvageable dead animals, crustaceans, or any other animal form, including but not limited to, heads, feet, viscera, hair, blood, feathers, bones, scales, or oils.

F. “Orchard heaters” means any installation used or capable of being used for the purpose of giving protection from frost.

G. “Pit barbecue” means any equipment, device, or contrivance for the cooking of meat on a spit using radiant heating.

H. “Preparation” means skinning, cutting, grinding, cooking, drying, or any other operation necessary for the preparation of offal before the completion of sterilization.

I. “Reduction” means any heated process, including rendering, cooking, drying, dehydrating, acidulating, digesting, evaporating, and protein concentrating.

J. “Spit” means any pointed rod or similar device used to support meat over a heat source.

#### Regulation .02 Applicability.

*COMAR 26.11.18.02*

Any source which is subject to the provisions of this chapter is also subject to the provisions of any other chapter. However, when this chapter establishes an emission standard for a specific installation which differs from the general emissions standard in COMAR 26.11.06.01--.09, this chapter takes precedence.

#### Regulation .03 Grain-Drying and Grain-Handling Installations.

*COMAR 26.11.18.03*

A. Areas I, II, V, and VI.

  (1) A person may not cause or permit the operation of any grain drying installation unless all exhaust gases discharged pass through a 24 mesh screen or the installation is fitted with other equipment or incorporates design features that will accomplish equally effective results in reducing particulate matter discharge. “Mesh” means Tyler Standard Screen Scale or its equivalent.

  (2) A person may not cause or permit the operation of any grain drying or handling operation unless the following procedures are used:

    (a) Proper housekeeping and equipment maintenance procedures, including, but not limited to, prompt removal of “beeswing” accumulation by a technique which prevents this material from re-entering the ambient air;

    (b) Reasonable precautions to minimize emissions from grain receiving, conveyance, or load-out facilities in accordance with good engineering design and operational procedures.

  (3) Exceptions.

    (a) All grain drying installations in operation before January 1, 1975, are exempt from the provisions of §A(1) of this regulation, unless otherwise ordered by the Department after the receipt of complaints which have been substantiated by Departmental investigation.

    (b) Grain drying equipment with a total operating capacity of 1,000 bushels (35.2 cubic meters) per hour or less (manufacturer's rated capacity at 5 percent moisture removal), located on a farm and more than 200 feet (61 meters) from a habitable dwelling, is exempt from the provisions of §A(1), of this regulation.

    (c) Loading methods dependent upon the design of an ocean going carrier used as a standard technique at international ports are exempt from the provisions of §A(1) and (2) of this regulation.

B. Areas III and IV.

  (1) A person may not cause or permit the operation of any grain-drying installation unless all exhaust gases discharged pass through a 24 mesh screen or the installation is fitted with other equipment or incorporates design features that will accomplish equally effective results in reducing particulate matter discharge. “Mesh” means Tyler Standard Screen Scale or its equivalent.

  (2) Exemptions.

    (a) All grain-drying installations, except those in the City of Baltimore, in operation before January 1, 1975, are exempt from the provisions of §B(1), of this regulation, unless otherwise ordered by the Department after receipt of complaints which have been substantiated by Departmental investigation.

    (b) Grain-drying equipment with a total operating capacity of 1,000 bushels per hour or less (manufacturer's rated capacity at 5 percent moisture removal), located on a farm and more than 200 feet (60.9 meters) from a habitable dwelling, is exempt from the provisions of §B(1), of this regulation.

  (3) A person may not cause or permit the operation of any grain-handling installation not located on a farm without taking reasonable precautions to prevent particulate matter from becoming airborne. These reasonable precautions shall include:

    (a) Proper housekeeping and cleaning throughout the entire facility, including but not limited to, the prompt removal of spilled and fugitive “beeswings” and grain-dust accumulation by a technique which prevents this material from escaping into the atmosphere.

    (b) Covering, at all times when in motion, open-bodied vehicles transporting dusty material except for agricultural products in their natural state.

    (c) Proper maintenance of all aspiration systems and dust collection devices.

    (d) The use of good engineering design and operational practices that will minimize emissions from grain receiving, conveying, processing, mixing, and load-out facilities. For those operations listed below, located within the City of Baltimore, good engineering design and operational practices shall include the following:

      (i) For grain exporting terminals only, use of aspiration systems and fabric filter dust collection devices on cleaning, separating, handling, conveying, and internal transferring equipment unless specifically exempted by the Department due to the nature, size, throughput, or location of the equipment.

      (ii) Use of aspiration systems and fabric filter dust collection devices on all truck and railroad car unloading (dump pit) and load-out areas. All unloading (dump pit) and load-out areas shall be enclosed in sheds or buildings and utilize means or devices (including quick-closing doors, air curtains, or wind deflectors) to minimize the effect of wind currents and drafts. Any alternative method, technique, or system, which is equally effective in reducing emissions may be used if approved by the Department.

      (iii) Use of a system for the loading of grain onto a ship or barge which shall include the use of telescoping loading spouts and automatic level sensing devices. Each spout shall include an aspiration system exhausting to a fabric filter dust-collection device. While loading grain, each spout shall be kept at a height no greater than 2 feet (0.6 meter) above the level of the grain surface or at the full extension of the spout except during topping-off operations or when trimming machines are being used. The Department may approve the use of alternative control devices, methods, techniques, work practices, or process changes, provided that emissions during loading are not greater than 20 percent opacity.

  (4) A person may not cause or permit to be discharged into the outdoor atmosphere from any emission control equipment installed in accordance with the requirements of §B(3), of this regulation, particulate matter in excess of 0.03 gr/SCFD (68.7 mg/dscm).

  (5) Compliance Schedule.

    (a) A person who elects to achieve compliance with §B(3)(d)(iii) of this regulation through the use of telescoping loading spouts, level sensing devices, aspiration systems and fabric filter dust collection devices, shall adhere to the increments of progress contained in the following schedule:

      (i) By June 1, 1981, submission of a permit to construct application for the installation necessary to achieve compliance;

      (ii) By January 1, 1982, beginning of construction of those installations necessary to achieve compliance;

      (iii) By December 1, 1982, completion of construction and beginning of operations of those installations necessary to achieve compliance.

    (b) A person who elects to achieve compliance with §B(3)(d)(iii) of this regulation through the use of approved alternative techniques shall adhere to the increments of progress contained in the following schedule:

      (i) By July 1, 1979, submission of a detailed compliance program together with all required permit to construct applications for the installations necessary to achieve compliance;

      (ii) As expeditiously as practicable, but not later than July 1, 1980, complete the approved alternative techniques as described in the compliance program.

#### Regulation .04 Control of Orchard Heaters in Areas I, II, V, and VI.

*COMAR 26.11.18.04*

A person may not cause or permit to be used any type of orchard heater or other frost control device which discharges into the atmosphere more than 1 gram per minute of unconsumed carbonaceous matter.

#### Regulation .05 Control of Odors from the Reduction of Offal.

*COMAR 26.11.18.05*

A. A person may not cause or permit the use of any installation primarily engaged in the reduction of offal unless all gases, vapors, and gas-entrained matter from the installation are:

  (1) First cooled to a temperature of not greater than 160°F (71°C); and then

  (2) The non-condensible fraction is incinerated at a temperature of not less than 1400°F (760°C) for a period of not less than 0.4 seconds.

B. Alternate methods may be used if determined by the Department to be equally or more effective for the purpose of controlling air pollution.

C. Any person processing or incinerating gases, vapors, or gas-entrained matter, as required by §A of this regulation, when ordered by the Department, shall install, operate, and maintain in good working order and calibration continuous recording devices for indicating temperature or pressure or other operating conditions. These devices shall be approved by the Department and all data collected, when ordered by the Department, shall be made available to the Department or the control officer for inspection or copying. This data shall be kept on file by responsible persons for at least 5 years.

D. A person may not cause or permit any offal to be handled, transported, or stored, or to undertake the preparation of any offal without taking reasonable precautions to prevent odors from being discharged. Reasonable precautions, when approved by the Department, shall include, but not be limited to, the following:

  (1) Storage of all offal, before or in the process of preparation, in properly enclosed and vented equipment or areas, together with the use of effective devices and methods to prevent the discharge of odors bearing gases;

  (2) Use of covered vehicles or containers of watertight construction for the handling and transporting of offal;

  (3) Use of hoods and fans to enclose and vent the storage, handling, preparation, and conveying of any odorous materials together with effective devices or methods, or both, to prevent emissions of odors or odor bearing gases.

E. Whenever the emissions from an installation primarily engaged in the reduction of offal creates a nuisance or air pollution beyond the property line, the Department may require that the building in which the installation is located be vented so that all emissions are treated by incineration or by other methods if determined by the Department to be equally or more effective for the purpose of controlling emissions.

F. The requirements of this regulation do not apply to any installation engaged exclusively in the processing of food for human consumption.

#### Regulation .06 Control of Emissions from Certain Food Preparation Installations.

*COMAR 26.11.18.06*

A. Applicability.

  (1) This regulation does not apply to a person who owns or operates a char-broiler or pit barbecue with a total cooking area of 5 square feet (0.46 square meters) or less.

  (2) This regulation does not apply to a person who owns or operates a char-broiler or pit barbecue with a total cooking area greater than 5 square feet (0.46 square meters) and which:

    (a) Operates at one location less than 15 days in any 365-day period; or

    (b) Operates at one location 2 days or less in any 7-day period.

B. Visible Emissions.

  (1) A person who owns or operates a char-broiler or pit barbecue constructed after December 17, 1974, that is located within 300 feet of the property line of any habitable dwelling may not cause or permit the discharge of emissions greater than 10 percent opacity.

  (2) A person who constructs, owns, or operates a char-broiler or pit barbecue not subject to §B(1), of this regulation, may not cause or permit the discharge of emissions greater than 30 percent opacity.

  (3) A person who owns or operates any char-broiler or pit barbecue subject to this regulation is not eligible for a visible emission exception under COMAR 26.11.06.02B.

  (4) Compliance with this section may not be construed as an authorization to create a nuisance or air pollution.

C. Control Device Requirements for New Sources Near Habitable Dwellings.

  (1) A person who constructs a char-broiler or pit barbecue and is subject to §B(1), of this regulation, shall install an approved control device unless the person demonstrates to the satisfaction of the Department that the installation, when operated without control equipment, will meet §B(1) of this regulation.

  (2) For the purpose of determining whether an installation will meet §B(1) of this regulation without control equipment, the Department will accept a demonstration that the operation of an existing installation of identical or similar construction at maximum rated capacity will not discharge emissions that exceed 10 percent opacity.

### Chapter 19 — Volatile Organic Compounds from Specific Processes

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1980 (7:12 Md. R. 1148)

**Administrative History:** Regulations .01C and .10 amended effective June 8, 1981 (8:9 Md. R. 800)

**Administrative History:** Regulations .12—.14 adopted effective June 8, 1981 (8:9 Md. R. 800)

**Administrative History:** Regulations .01—.14 repealed effective August 16, 1983 (10:14 Md. R. 1262)

**Administrative History:** Regulations .01—.14 adopted effective August 16, 1983 (10:14 Md. R. 1262)

**Administrative History:** Regulation .01B amended effective August 10, 1987 (14:14 Md. R. 1572)

**Administrative History:** Regulation .02B amended effective August 19, 1984 (11:14 Md. R. 1250)

**Administrative History:** Regulation .02B—F amended effective August 10, 1987 (14:14 Md. R. 1572)

**Administrative History:** Regulation .03 repealed and new Regulation .03 adopted effective August 10, 1987 (14:14 Md. R. 1572)

**Administrative History:** Regulation .10B amended effective August 10, 1987 (14:14 Md. R. 1572)

**Administrative History:** Regulation .13 amended effective August 10, 1987 (14:14 Md. R. 1572)

**Administrative History:** Regulation .15 adopted effective August 10, 1987 (14:14 Md. R. 1572)

**Administrative History:** For the history of this subtitle before June 18, 1980, see the Administrative History of COMAR 26.11.01.

**Administrative History:** Chapter recodified from COMAR 10.18.21 to COMAR 26.11.19

**Administrative History:** Regulation .01B amended effective May 8, 1991 (18:6 Md. R. 688); April 26, 1993 (20:8 Md. R. 726); May 8, 1995 (22:9 Md. R. 653); June 5, 1995 (22:11 Md. R. 823)

**Administrative History:** Regulation .02 amended effective May 8, 1991 (18:6 Md. R. 688); April 26, 1993 (20:8 Md. R. 726)

**Administrative History:** Regulation .02A amended effective May 8, 1995 (22:9 Md. R. 653)

**Administrative History:** Regulation .02B amended effective May 4, 1998 (25:9 Md. R. 680)

**Administrative History:** Regulation .02D amended effective August 19, 1991 (18:16 Md. R. 1813); February 17, 1992 (19:3 Md. R. 306); March 5, 2012 (39:4 Md. R. 339)

**Administrative History:** Regulation .02E amended effective March 5, 2012 (39:4 Md. R. 339)

**Administrative History:** Regulation .02G amended effective May 8, 1995 (22:9 Md. R. 653); ; March 5, 2012 (39:4 Md. R. 339)

**Administrative History:** Regulation .02I amended effective December 10, 2001 (28:24 Md. R. 2131)

**Administrative History:** Regulation .03 repealed and new Regulation .03 adopted effective September 22, 1997 (24:19 Md. R. 1344)

**Administrative History:** Regulation .06 amended effective November 1, 2010 (37:22 Md. R. 1555)

**Administrative History:** Regulation .07 amended effective May 8, 1991 (18:6 Md. R. 688); June 5, 1995 (22:11 Md. R. 823); August 24, 1998 (25:17 Md. R. 1362); effective April 19, 2010 (37:8 Md. R. 622)

**Administrative History:** Regulation .07A amended adopted effective August 19, 1991 (18:16 Md. R. 1813); February 15, 1993 (20:3 Md. R. 260)

**Administrative History:** Regulation .07D adopted effective August 19, 1991 (18:16 Md. R. 1813)

**Administrative History:** Regulation .07F adopted effective September 8, 1997 (24:18 Md. R. 1288)

**Administrative History:** Regulation .07-1 adopted effective June 15, 1998 (25:12 Md. R. 949)

**Administrative History:** Regulation .08 amended effective May 26, 2014 (41:10 Md. R. 566)

**Administrative History:** Regulation .09B amended effective February 17, 1992 (19:3 Md. R. 306)

**Administrative History:** Regulation .09 repealed and new Regulation .09 adopted effective June 5, 1995 (22:11 Md. R. 823)

**Administrative History:** Regulation .09-1 adopted effective April 19, 2010 (37:8 Md. R. 622)

**Administrative History:** Regulation .10 amended effective May 8, 1991 (18:6 Md. R. 688); June 5, 1995 (22:11 Md. R. 823); adopted effective April 19, 2010 (37:8 Md. R. 622)

**Administrative History:** Regulation .10C amended effective April 26, 1993 (20:8 Md. R. 726)

**Administrative History:** Regulation .10-1 adopted effective April 19, 2010 (37:8 Md. R. 622)

**Administrative History:** Regulation .11 adopted effective May 8, 1991 (18:6 Md. R. 688)

**Administrative History:** Regulation .11 amended effective June 5, 1995 (22:11 Md. R. 823); October 31, 2011 (38:22 Md R. 1347)

**Administrative History:** Regulation .11B and C amended effective August 19, 1991 (18:16 Md. R. 1813)

**Administrative History:** Regulation .12 amended effective June 20, 1989 (16:9 Md. R. 995); July 16, 1990 (17:11 Md. R. 1344); September 22, 1997 (24:19 Md. R. 1344)

**Administrative History:** Regulation .12F amended effective August 19, 1991 (18:16 Md. R. 1813); February 17, 1992 (19:3 Md. R. 306)

**Administrative History:** Regulation .13 amended effective May 16, 2011 (38:10 Md. R. 617)

**Administrative History:** Regulation .13B amended effective May 8, 1991 (18:6 Md. R. 688); September 22, 1997 (24:19 Md. R. 1344); August 24, 1998 (25:17 Md. R. 1362)

**Administrative History:** Regulation .13B amended effective May 8, 1991 (18:6 Md. R. 688)

**Administrative History:** Regulation .13-1 adopted effective September 22, 1997 (24:19 Md. R. 1344)

**Administrative History:** Regulation .13-1 repealed and new Regulation .13-1 adopted effective October 2, 2000 (27:19 Md. R. 1732)

**Administrative History:** Regulation .13-1 amended effective October 15, 2001 (28:20 Md. R. 1783)

**Administrative History:** Regulation .13-2 adopted effective August 24, 1998 (25:17 Md. R. 1362)

**Administrative History:** Regulation .13-3 adopted effective June 29, 1998 (25:13 Md. R. 997)

**Administrative History:** Regulation .14B amended effective May 8, 1991 (18:6 Md. R. 688)

**Administrative History:** Regulation .15 amended effective May 8, 1991 (18:6 Md. R. 688)

**Administrative History:** Regulation .15A amended effective March 22, 1999 (26:6 Md. R. 488); adopted effective April 19, 2010 (37:8 Md. R. 623)

**Administrative History:** Regulation .15C amended effective February 15, 1993 (20:3 Md. R. 260); May 4, 1998 (25:9 Md. R. 680); adopted effective April 19, 2010 (37:8 Md. R. 623)

**Administrative History:** Regulation .16 adopted effective August 19, 1991 (18:16 Md. R. 1813)

**Administrative History:** Regulation .17 adopted effective November 7, 1994 (21:22 Md. R. 1879)

**Administrative History:** Regulation .17 amended effective June 21, 2004 (31:12 Md. R. 914); September 12, 2005 (32:18 Md. R. 1522)

**Administrative History:** Regulation .17C, D amended effective June 5, 1995 (22:11 Md. R. 823)

**Administrative History:** Regulation .18 adopted effective November 7, 1994 (21:22 Md. R. 1879)

**Administrative History:** Regulation .18 amended effective August 24, 1998 (25:17 Md. R. 1362); June 10, 2002 (29:11 Md. R. 890)

**Administrative History:** Regulation .18A, C, E, I amended effective June 5, 1995 (22:11 Md. R. 824)

**Administrative History:** Regulation .19 adopted effective July 3, 1995 (22:13 Md. R. 970)

**Administrative History:** Regulation .19 repealed and new Regulation .19 adopted effective October 2, 2000 (27:19 Md. R. 1732)

**Administrative History:** Regulation .20 adopted effective March 9, 1998 (25:5 Md. R. 371)

**Administrative History:** Regulation .20 amended effective March 22, 1999 (26:6 Md. R. 488)

**Administrative History:** Regulation .20 repealed effective June 12, 2023 (50:11 Md. R. 446)

**Administrative History:** Regulation .21 adopted effective July 3, 1995 (22:13 Md. R. 970)

**Administrative History:** Regulation .22 adopted effective August 11, 1997 (24:16 Md. R. 1161)

**Administrative History:** Regulation .23 adopted effective May 22, 1995 (22:10 Md. R. 709)

**Administrative History:** Regulation .23 repealed and new Regulation .23 adopted effective April 16, 2012 (39:7 Md. R. 496)

**Administrative History:** Regulation .24 adopted effective August 11, 1997 (24:16 Md. R. 1161)

**Administrative History:** Regulation .25 adopted effective August 11, 1997 (24:16 Md. R. 1161)

**Administrative History:** Regulation .26 adopted effective August 11, 1997 (24:16 Md. R. 1162)

**Administrative History:** Regulation .26A amended effective September 28, 2015 (42:19 Md. R. 1229)

**Administrative History:** Regulation .26-1 adopted effective September 28, 2015 (42:19 Md. R. 1229)

**Administrative History:** Regulation .27 adopted effective October 20, 1997 (24:21 Md. R. 1453)

**Administrative History:** Regulation .27-1 adopted effective November 12, 2012 (39:22 Md. R. 1430)

**Administrative History:** Regulation .28 adopted effective October 2, 2000 (27:19 Md. R. 1732)

**Administrative History:** Regulation .29 adopted effective October 2, 2000 (27:19 Md. R. 1732)

**Administrative History:** Regulation .29 amended effective October 15, 2001 (28:20 Md. R. 1783)

**Administrative History:** Regulation .30 adopted effective January 8, 2001 (27:26 Md. R. 2359)

**Administrative History:** Regulation .30 amended effective December 10, 2001 (28:24 Md. R. 2131); November 11, 2002 (29:22 Md. R. 1724)

**Administrative History:** Regulation .30 amended as an emergency provision effective January 11, 2008 (35:3 Md. R. 287); amended permanently effective April 21, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .31 adopted effective June 5, 2006 (33:11 Md. R. 951)

**Administrative History:** Regulation .32 adopted effective April 21, 2008 (35:8 Md. R. 809); adopted effective April 19, 2010 (37:8 Md. R. 623)

**Administrative History:** Regulation .33 adopted effective April 19, 2010 (37:8 Md. R. 623)

#### Regulation .01 Definitions.

*COMAR 26.11.19.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Adhesive” means an organic, inorganic, natural, or synthetic substance that is used primarily for laminating, attaching, or bonding two or more components.

  (1-1) “Annual”, when used in the context of emissions, production, throughput, or total weight or volume, means a “calendar year”, unless otherwise specified.

  (2) “Coating” means a liquid, liquefiable, or mastic composition which is converted into a solid protective, decorative, or adherent film after application as a thin layer. This includes paints, varnishes, lacquers, stains, shellacs, film-forming polymers, waxes, and oils which are applied to metal, paper, fabric, wood, glass, stone, concrete, plastic, and other types of surfaces.

  (3) “Exempt solvent” means any organic compound that is not a VOC as defined under COMAR 26.11.01.01.

  (4) “Major stationary source of VOC” means any stationary source which has the potential to emit, including fugitive emissions:

    (a) 25 tons or more per year of VOC and is located in Baltimore City or Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles, Frederick, Harford, Howard, Montgomery, or Prince George's counties;

    (b) 50 tons or more per year of VOC and is located in Allegany, Caroline, Dorchester, Garrett, Kent, Queen Anne's, Somerset, St. Mary's, Talbot, Washington, Wicomico, or Worcester counties.

  (5) “Oven” means a chamber within which heat is used to bake, cure, polymerize, or dry a surface coating.

  (6) “Prime coat” means the initial layer of coating applied in a multicoat application.

  (7) “Transfer efficiency” means the ratio of the amount of coating solids deposited onto the surface of a coated part to the total amount of coating solids used.

  (8) “Web printing” means using lithographic, letterpress, flexographic, or rotogravure methods to deposit ink on paper or similar products that are fed continuously from a web.

#### Regulation .02 Applicability, Determining Compliance, Reporting, and General Requirements.

*COMAR 26.11.19.02*

A. Applicability.

  (1) Any installation or source subject to the provisions of this chapter is also subject to all applicable provisions of all other chapters in this subtitle. However, when this chapter establishes an emission standard for a specific installation which differs from the general emission standard in COMAR 26.11.06.01—.09, this chapter takes precedence.

  (2) This chapter is applicable throughout the State.

  (3) Except as provided in §A(4) of this regulation, if a source becomes subject to any requirement in this chapter because either its potential to emit or actual emissions exceed an applicability threshold, the source, after that, is subject to all applicable requirements, regardless of whether a future emission rate is below the applicability threshold.

  (4) If a source is subject to a federally enforceable emissions limit, that limit determines whether the source is subject to the requirements of this chapter.

  (5) In determining the applicability of any requirements in this chapter that specify an applicability threshold in terms of actual emissions, the emission on any day since January 1, 1990, shall be considered.

B. Method of Compliance.

  (1) Unless otherwise stated, compliance with the applicable emission standards established in this chapter is based on the VOC content of each coating or adhesive, as applied.

  (2) A person subject to this chapter shall comply with the emission standards in this chapter by:

    (a) Applying low VOC coatings or adhesives that meet applicable standards;

    (b) Using a control device that, when tested by approved test methods:

      (i) Complies with applicable emission reduction requirements, or

      (ii) Results in an emission reduction equal to or greater than the emission reduction that would have been achieved by complying with §B(2)(a) of this regulation;

    (c) Complying with the operating conditions or equipment specifications established in the applicable regulation;

    (d) For sources subject to VOC limits in coatings or inks or other similar products, reducing emissions by using water-based coatings, resins, inks, or similar products that contain less than 25 percent VOC by volume of the volatile portion of the product; or

    (e) Using an alternative method of assessing compliance if:

      (i) The alternative method is approved by the Department,

      (ii) The resulting emissions are equal to or less than the emissions that would have been discharged by complying with emission standards,

      (iii) Adequate records are maintained to ensure enforceability, and

      (iv) The alternative compliance method is approved by the U.S. EPA as a revision to the State Implementation Plan.

C. Determination of Equivalency. If compliance is achieved by a method other than use of a low VOC coating or adhesive that meets the applicable emission standard established in this chapter, compliance with the standard shall be determined on the basis of equal volume of solids applied.

D. Test Method.

  (1) The VOC content for any coating or adhesive used pursuant to the requirements of this chapter shall be determined using Method 24 of Appendix A of the Department's Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” (January 1991), which is incorporated by reference in COMAR 26.11.01.04C.

  (2) If compliance with any requirement in this chapter is achieved through use of an air pollution control device, compliance shall be determined in accordance with COMAR 26.11.01.04C.

  (3) Alternative methods for determining compliance may be used if approved by the Department and by the US EPA.

E. Computations.

  (1) “Kilograms per liter of coating or adhesive applied (minus water)” shall be computed by the following formula:

  (2) “Pounds per gallon of coating or adhesive applied (minus water)” shall be computed by the following formula:

  (3) The composite vapor pressure of organic compounds for any cleaning solution, solvent, or degreasing material shall be determined as follows:

    (a) The composite vapor pressure of organic compounds shall be determined by quantifying the amount of each compound in the blend using gas chromatographic analysis (ASTM E 260-91) for organics and ASTM D3792-79 for water content, as applicable, and the following equation:

    (b) The vapor pressure of each single component compound may be determined from ASTM D2879-86, or may be obtained from a material safety data sheet or another source approved by the Department.

  (4) The mass VOC to mass solids applied for coatings, adhesives, or inks shall be determined as follows:

    (a) The VOC content, water content, density, volume solids, and weight solids for any coating, adhesive, or ink used pursuant to the requirements of this chapter shall be determined as specified in COMAR 26.11.01.04C.

    (b) The weight of coating solids shall be calculated as follows:

  (5) The weight of VOC in units of weight VOC per weight coating applied (in pounds VOC/pounds coating applied or in VOC/kg coating applied) for coatings, adhesives, or inks shall be determined as follows:

    (a) The VOC content, water content, density, volume solids, and weight solids for any coating, adhesive, or ink used pursuant to the requirements of this chapter shall be determined as specified in COMAR 26.11.01.04C.

    (b) The weight of coating solids shall be calculated as follows:

F. Reporting and Record-Keeping Requirements.

  (1) Reporting Requirements for Listed Sources.

    (a) A person who owns or operates any of the installations or sources listed below shall, unless otherwise required by a permit condition or administrative order, submit a quarterly report to the Department on or before the 20th of the month following the end of each calendar quarter:

      (i) A major stationary source of VOC, as defined in Regulation .01B(4) of this chapter;

      (ii) A source that has an approved alternative method of assessing compliance under §B(2)(d) of this regulation;

      (iii) A source for which the Department has authorized compliance through use of averaging or that has an emission cap or other emission or production limitation; and

      (iv) Any other source, as determined by the Department, based on the quality or quantity of materials used or processed.

    (b) The report shall include, at a minimum, the VOC content and the quantity of VOC bearing materials used during the specified time period, and operational parameters that are necessary to ensure compliance.

  (2) Reporting Requirements for Small Sources. A person who owns or operates an installation or source for which a standard has been established in this chapter and has VOC emissions below the applicable regulation threshold shall maintain records pertaining to the quality and quantity of VOC materials used that are adequate to demonstrate that emissions are below the applicable threshold at all times.

  (3) Record Keeping Requirements.

    (a) Data shall be recorded in a manner consistent with the time period to which a standard applies to enable the determination of compliance. For example, 24-hour records shall be maintained for a 24-hour time-weighted average.

    (b) Data shall be maintained for a period of at least 2 years, and made available to the Department upon request.

    (c) The reporting format and acceptable data summary shall be as prescribed by the Department.

G. Control of Major Stationary Sources of Volatile Organic Compounds.

  (1) This section applies to a person who owns or operates any major stationary source of VOC that is not subject to any VOC emission standard in COMAR 26.11.10, 26.11.11, 26.11.13, 26.11.14, or Regulations .03—.33 of this chapter.

  (2) A person who owns or operates a major stationary source of VOC subject to this section shall:

    (a) Identify each installation or source to which this section applies and notify the Department in writing of this identification, not later than:

      (i) August 15, 1993, for all major stationary sources of VOC except major stationary sources of VOC with the potential to emit between 25 and 50 tons per year of VOC and located in Calvert, Charles, Frederick, Montgomery, or Prince George's counties, or

      (ii) January 20, 1995, for major stationary sources of VOC with the potential to emit between 25 and 50 tons per year of VOC and located in Calvert, Charles, Frederick, Montgomery, and Prince George's counties;

    (b) Estimate emissions for each installation or source identified in §G(2)(a) of this regulation and conduct tests as required by the Department to verify emissions estimates;

    (c) Submit to the Department, in writing, a proposal for RACT for each installation or source identified and an expeditious schedule to comply with the proposed RACT standard by not later than:

      (i) November 15, 1993, for all major stationary sources of VOC except major stationary sources of VOC with the potential to emit between 25 and 50 tons per year of VOC and located in Calvert, Charles, Frederick, Montgomery, or Prince George's counties; or

      (ii) March 20, 1995, for major stationary sources of VOC with the potential to emit between 25 and 50 tons per year of VOC and located in Calvert, Charles, Frederick, Montgomery, or Prince George's counties; and

    (d) By not later than May 15, 1995, comply with RACT as determined by the Department for that major stationary source.

  (3) Upon its approval of a RACT standard, the Department shall:

    (a) Amend the source's permit to operate to include the RACT requirements;

    (b) If the source does not have a permit to operate, require the source to submit an application for a permit to operate pursuant to COMAR 26.11.02.13, and issue a permit to operate that includes the RACT requirements;

    (c) Adopt a regulation that reflects RACT; or

    (d) Issue an order that includes the RACT requirements.

  (4) A RACT standard established by the Department pursuant to this section shall be submitted to the U.S. EPA for approval as a revision to the State Implementation Plan.

H. A person who owns or operates an existing installation that is not in compliance with this chapter and that is located in Allegany, Calvert, Caroline, Charles, Dorchester, Frederick, Garrett, Kent, Queen Anne's, Somerset, St. Mary's, Talbot, Washington, Wicomico, or Worcester counties shall submit a plan for compliance for approval by the Department. The plan for compliance shall be submitted not later than November 15, 1993, and include an expeditious schedule to achieve compliance by not later than May 15, 1995.

I. Good Operating Practices, Equipment Cleanup, and VOC Storage.

  (1) Applicability. The requirements in this section apply to a person who owns or operates an installation that is subject to any requirement in this chapter.

  (2) Good Operating Practices.

    (a) A person who is subject to this section shall implement good operating practices to minimize VOC emissions into the atmosphere.

    (b) Good operating practices shall, at a minimum, include the following:

      (i) Provisions for training of operators on practices, procedures, and maintenance requirements that are consistent with the equipment manufacturers' recommendations and the source's experience in operating the equipment, with the training to include proper procedures for maintenance of air pollution control equipment;

      (ii) Maintenance of covers on containers and other vessels that contain VOC and VOC-containing materials when not in use;

      (iii) Minimize spills of VOC-containing cleaning materials;

      (iv) Convey VOC-containing cleaning materials from one location to another in closed containers or pipelines;

      (v) Minimize VOC emissions from cleaning of storage, mixing, and conveying equipment;

      (vi) As practical, scheduling of operations to minimize color or material changes when applying VOC coatings or other materials by spray gun;

      (vii) For spray gun applications of coatings, use of high volume low pressure (HVLP) or other high efficiency application methods where practical; and

      (viii) As practical, mixing or blending materials containing VOC in closed containers and taking preventive measures to minimize emissions for products that contain VOC.

    (c) A person subject to this regulation shall:

      (i) Establish good operating practices in writing;

      (ii) Make the written operating practices available to the Department upon request; and

      (iii) Display the good operating practices so that they are clearly visible to the operator or include them in operator training.

  (3) Equipment Cleanup.

    (a) A person subject to this section shall take all reasonable precautions to prevent or minimize the discharge of VOC into the atmosphere when cleaning process and coating application equipment, including containers, vessels, tanks, lines, and pumps.

    (b) Reasonable precautions for equipment cleanup shall, at a minimum, include the following:

      (i) Storing all wastes and waste materials, including cloth and paper that are contaminated with VOC, in closed containers;

      (ii) Preparing written standard operating procedures for frequently cleaned equipment, including when practical, provisions for the use of low-VOC or non-VOC materials and procedures to minimize the quantity of VOC materials used;

      (iii) Using enclosed spray gun cleaning, VOC-recycling systems and other spray gun cleaning methods where practical that reduce or eliminate VOC emissions; and

      (iv) Using, when practical, detergents, high-pressure water, or other non-VOC cleaning options to clean coating lines, containers, and process equipment.

  (4) VOC Storage and Transfer.

    (a) A person subject to this section who stores VOCs shall, at a minimum, install conservation vents or other vapor control measures on storage tanks with a capacity of 2,000 gallons or more to minimize VOC emissions.

    (b) A person subject to this section shall, at a minimum, utilize vapor balance, vapor control lines, or other vapor control measures when VOCs are transferred from a tank truck into a stationary storage tank with a capacity greater than 10,000 gallons and less than 40,000 gallons that store VOCs or materials containing VOCs, other than gasoline, that have a vapor pressure greater than 1.5 psia.

#### Regulation .03 Automotive and Light-Duty Truck Coating.

*COMAR 26.11.19.03*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Automobile” means a passenger car or passenger car derivative capable of seating 12 or fewer passengers.

  (2) Automobile and Light-Duty Truck Coating.

    (a) “Automobile and light-duty truck coating” means an operation that deposits a coating on vehicle parts for eventual inclusion into a finished product ready for sale to vehicle dealers.

    (b) “Automobile and light-duty truck coating” does not include wheel coatings, anti-rust coatings, truck coatings, interior coatings, flexible coatings, sealers, and plastic parts coatings.

  (3) “Final repair” means the final coating applied to correct topcoat imperfections.

  (4) Light-Duty Truck.

    (a) “Light-duty truck” means a motor vehicle rated at 8,500 pounds (3,864 kilograms) gross weight or less which is designed primarily for purposes of transportation of property or is a derivative of such a vehicle.

    (b) “Light-duty truck” includes pickups, vans, and window vans.

  (5) “Primer surfacer” means the coating applied after the primer application and before the topcoat operation on an automotive or light-duty truck part.

  (6) “Topcoat” means the final coating applied for the purpose of establishing the color and protective surface, including the ground coat and paint sealer materials.

B. Emission Standards.

  (1) Refinishers, body shops, and customizers are not subject to this regulation.

  (2) A person may not cause or permit the discharge into the atmosphere of VOC from an automobile or light-duty truck coating installation in excess of the following emission standards:

#### Regulation .04 Can Coating.

*COMAR 26.11.19.04*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Can coating” means all operations that deposit a coating on metal intended to be made into two-piece cans or three-piece cans with cemented, soldered, or welded side seams.

  (2) “End seal compound coating” means a coating applied onto can ends which functions as a gasket when assembled on the can.

  (3) “Exterior base coat” means a coating applied to the exterior of a can to provide protection to the metal and to provide background for the lithographic or printing operation.

  (4) “Interior base coat” means a coating applied to flat sheet stock which is intended to provide a protective lining to the inside of the can.

  (5) “Overvarnish” means the final coating applied over decorative images on the surface intended to be the can exterior.

  (6) “Three-piece can side seam spray” means a coating applied to the can surface joint when forced from sheet stock to protect the exposed metal.

  (7) “Two-piece can exterior end coating” means a coating applied to the exterior end of a can to provide protection to the metal.

B. Emission Standards. A person may not cause or permit the discharge into the atmosphere of any volatile organic compound from can coating in excess of the following emission standards:

#### Regulation .05 Coil Coating.

*COMAR 26.11.19.05*

A. Definition. “Coil coating” means the coating of any flat metal sheet or strip supplied as rolls or coils.

B. Emission Standards. A person may not cause or permit the discharge into the atmosphere of any VOC from coil coating in excess of 2.6 pounds per gallon of coating applied (minus water) (0.31 kilogram/liter of coating applied (minus water)).

#### Regulation .06 Large Appliance Coating.

*COMAR 26.11.19.06*

A. Definition.

  (1) In this regulation, the following term has the meaning indicated.

  (2) Large Appliance Coating.

    (a) “Large appliance coating” means the coating of doors, cases, lids, panels, or other interior or exterior parts or accessories of residential and commercial washers, dryers, cooking equipment (including ranges, ovens, and microwave ovens), refrigerators, freezers, water heaters, dishwashers, trash compactors, air conditioners, and other similar products.

    (b) “Large appliance coating” does not mean the coating of toasters, counter-top grills, and similar small products.

B. Coating Standard.

  (1) This section does not apply to the use of quick drying lacquers for repair of nicks and scratches that occur during assembly.

  (2) A person who uses a large appliance coating installation:

    (a) May not cause or permit the discharge into the atmosphere of any VOC from a large appliance coating installation in excess of 2.3 pounds per gallon of coating applied (excluding water) (0.275 kilogram/liter of coating applied (excluding water)); or

    (b) Shall use control equipment to achieve an overall VOC emissions reduction of 90 percent or greater from the large appliance coating installation at the affected facility.

  (3) A person who complies with §B(2)(a) of this regulation shall use one or more of the following application methods:

    (a) Electrostatic application;

    (b) HVLP spray;

    (c) Flow coat;

    (d) Roller coat;

    (e) Dip coat including electrodeposition;

    (f) Brush coat; or

    (g) Other coating application method that has a transfer efficiency equivalent to or better than that achieved by HVLP spraying.

#### Regulation .07 Paper, Fabric, Film, and Foil Coating.

*COMAR 26.11.19.07*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Coating line” means any number or combination of adhesive, release, or pre-coat coating applicators, flash-off areas, and ovens that:

    (a) Coat a continuous web;

    (b) Are located between one or more web unwind or feed stations and one or more rewind or cutting stations; and

    (c) Are used to apply a paper, film, or foil products coating as a continuous layer across any portion of the width of a web substrate, to:

      (i) Provide a covering, finish, or functional or protective layer to a substrate;

      (ii) Saturate a substrate for lamination; or

      (iii) Provide adhesion between two substrates for lamination.

  (2) “Coating solids applied” means the solids content of the coated paper, film, or foil products coating as measured by EPA Method 24.

  (3) “Fabric coating” means depositing a coating on a textile substrate to enhance strength, stability, water or acid repellency, or appearance (such as on rainwear, tents, and industrial items such as gaskets and diaphragms).

  (4) “Flash-off area” means the area between two or more consecutive coating applicators or between a coating applicator and a drying oven.

  (5) Paper Coating.

    (a) “Paper coating” means depositing a coating on paper or pressure sensitive tape (regardless of substrate) and includes related web coating processes on plastic film (such as typewriter ribbons, photographic film, and magnetic tapes) and decorative coatings on metal foil (such as gift wrap and packaging).

    (b) “Paper coating” does not include sheet-fed paper coating.

  (6) Paper, Film, and Foil Product.

    (a) “Paper, film, and foil product” means any product made from paper, fabric, film, or foil surfaces or substrates manufactured for the following industry sectors:

      (i) Pressure sensitive tape and labels, including fabric coated for use in pressure sensitive tapes and labels;

      (ii) Photographic film;

      (iii) Industrial and decorative laminates;

      (iv) Abrasive products, including fabric coated for use in abrasive products; and

      (v) Flexible packaging, including coating of non-woven polymer substrates for use in flexible packaging; and

    (b) “Paper, film, and foil product” includes the following products:

      (i) Corrugated and solid fiber boxes;

      (ii) Die-cut paper, paperboard, and cardboard;

      (iii) Converted paper and paperboard not elsewhere classified;

      (iv) Folding paperboard boxes, including sanitary boxes;

      (v) Manifold business forms and related products;

      (vi) Plastic aseptic packaging; and

      (vii) Carbon paper and inked ribbons.

  (7) Paper, Film, and Foil Product Coating.

    (a) “Paper, film, and foil product coating” means any coating applied to paper or fabric for use in pressure sensitive tapes and labels, film, or foil surfaces or substrates during the manufacture of paper, film, and foil products;

    (b) “Paper, film, and foil product coating” includes any coating applied to a substrate used to manufacture paper, film, and foil products to:

      (i) Provide a covering, finish, or functional or protective layer to a substrate;

      (ii) Saturate a substrate for lamination; or

      (iii) Provide adhesion between two substrates for lamination.

    (c) “Paper, film, and foil product coating” does not include:

      (i) Any coating applied individually or in a line with any offset lithographic, screen, letterpress, flexographic, rotogravure, or digital printing press; or

      (ii) Any coating applied by presses and on machine coaters that function as part of an in-line papermaking system.

  (8) “Pressure sensitive tape and label surface coating” means a paper, film, foil, or fabric coating that is applied to pressure sensitive tapes and labels.

  (9) “Sheet-fed paper coating” means a noncontinuous method of paper coating.

  (10) “Ultraviolet curable coating” means an as-applied non-VOC coating consisting of pigments, monomers, oligomers, modifiers, and other additives that polymerize upon exposure to an ultraviolet light source.

  (11) “Vinyl coating” means depositing a printing, or decorative or protective topcoat, on vinyl-coated fabric or vinyl sheets.

B. Applicability.

  (1) This regulation does not apply to a person who is subject to the provisions of Regulation .11 of this chapter if the coating is applied at the same premises where the printing is done.

  (2) This regulation does not apply to any adhesive application that is subject to the provisions of Regulation .15 of this chapter.

  (3) A person who owns or operates a coating line with the potential to emit 25 tons or greater per year of VOC from coatings, prior to controls, is subject to the requirements of §D of this regulation and is exempt from the requirements in §C of this regulation.

C. Emission Standards for Coating or Printing Installations.

  (1) A person may not cause or permit the discharge into the atmosphere of any VOC from any installation listed in §C(2) of this regulation in excess of the standards in §C(2) of this regulation.

  (2) Coating Standards.

D. Emission Standards for Paper, Film, and Foil Product Coating with VOC Emissions (Potential to Emit) of 25 Tons or Greater Per Year.

  (1) A person who meets the applicability level of §B(3) of this regulation shall:

    (a) Use add-on air pollution control equipment to reduce VOCs from the coating line by an overall capture and control efficiency of at least 90 percent, by weight; or

    (b) Meet the following emission standard for each coating line installation:

  (2) If air pollution control equipment is used to meet §D(1) of this regulation, the following requirements apply:

    (a) If a thermal oxidizer is used, the combustion zone temperature shall be continuously monitored;

    (b) If a catalytic oxidizer is used, inlet and exhaust gas temperatures shall be continuously monitored; and

    (c) If a carbon adsorption system or other control device is used, the Department shall establish the operating parameters to be continuously monitored in the permit to construct authorizing installation of the control device.

  (3) Operational records sufficient to demonstrate compliance with the requirements of this regulation shall be maintained on-site as required by Regulation .02F of this chapter.

#### Regulation .07-1 Control of VOC Emissions from Solid Resin Decorative Surface Manufacturing.

*COMAR 26.11.19.07-1*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Particle plant operation” means a SRDS operation where cured resin sheets are pulverized into particles to be used in the manufacture of decorative surfaces.

  (2) “Related operations” means a VOC emitting installation located at a solid resin decorative surface manufacturing facility other than a particle plant operation, shaped goods plant, SRDS operation, or high pressure laminate (HPL) operation.

  (3) “Shaped goods plant” means a process in which resins are mixed with a catalyst and other ingredients, shaped into a mold, and cured to produce a shaped product such as a sink.

  (4) “Solid resin decorative surface (SRDS) operation” means a process where resins are mixed with a catalyst and other ingredients, formed into a sheet, and cured.

B. Applicability. This regulation applies to a person who owns or operates a solid resin decorative surface manufacturing facility that is a major stationary source of VOC.

C. General Requirements for SRDS Operations. A person who owns or operates an SRDS operation subject to this regulation shall:

  (1) Vent the curing oven exhaust at each SRDS operation into a VOC control system consisting of a condenser and carbon adsorber unit, or other control system that is maintained and operated to reduce VOC emissions from the curing oven exhaust by 75 percent or more; and

  (2) Take all reasonable precautions to minimize VOC emissions from the SRDS operation mixing vessels and storage tanks including:

    (a) The use of covers on mixers to minimize evaporative losses except when adding or emptying materials,

    (b) Operator training in procedures to minimize spills and evaporative losses during the mixing and transferring of VOC containing materials,

    (c) Implementing programs to minimize the quantity of VOC-based materials used to clean lines or equipment,

    (d) Storing VOC-contaminated cloth or paper in closed containers, and

    (e) Implementing an effective leak inspection and maintenance program that includes monthly inspections of equipment such as storage tanks, process equipment, pumps, compressors, valves, flanges, and other pipe fittings for leaks.

D. General Requirements for Particle Plant Operations. A person who owns or operates a particle plant operation subject to this regulation shall:

  (1) Vent the curing oven exhaust at each particle plant operation into a VOC control system consisting of a carbon adsorber unit or other control system that is maintained and operated to reduce VOC emissions from the curing oven exhaust by 75 percent or more; and

  (2) Take all reasonable precautions to minimize VOC emissions from the particle plant operation mixing vessels and storage tanks as specified in §C(2) of this regulation for SRDS operations.

E. General Requirements for Shaped Goods Plants. A person who owns or operates a shaped goods plant subject to this regulation shall take all reasonable precautions to minimize VOC emissions as specified in §C(2) of this regulation for SRDS operations.

F. General Requirements For Related Operations. A person who owns or operates related operations subject to this regulation shall reduce VOC emissions by taking all reasonable precautions as specified in §C(2) of this regulation for SRDS operations.

G. Additional Requirements for VOC Storage Tanks.

H. Reporting and Record-Keeping Requirements. Reporting and record-keeping requirements for affected sources are established in the source's permit to operate.

#### Regulation .07-2 Plastic Parts and Business Machines Coating.

*COMAR 26.11.19.07-2*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Business machine” means a device that uses electronic or mechanical methods to process information, perform calculations, print or copy information, or convert sound into electrical impulses for transmission, such as:

    (a) Products classified as typewriters under SIC Code 3572;

    (b) Products classified as electronic computing devices under SIC Code 3573;

    (c) Products classified as calculating and accounting machines under SIC Code 3574;

    (d) Products classified as telephone and telegraph equipment under SIC Code 3661;

    (e) Products classified as office machines, not elsewhere classified, under SIC Code 3579; and

    (f) Photocopy machines, a subcategory of products classified as photographic equipment under SIC code 3861.

  (2) “Business machine coating” means a coating applied to a business machine.

  (3) “Electric dissipating coating” means a coating that rapidly dissipates a high voltage electric charge.

  (4) Extreme Performance Coating.

    (a) “Extreme performance coating” means a coating used on a plastic surface where the coated surface is, in its intended use, subject to the following:

      (i) Chronic exposure to corrosive, caustic, or acidic agents, chemicals, chemical fumes, chemical mixtures, or solutions;

      (ii) Repeated exposure to temperatures in excess of 250°F; or

      (iii) Repeated heavy abrasion, including mechanical wear and repeated scrubbing with industrial grade solvents, cleansers, or scouring agents.

    (b) “Extreme performance coating” includes, but is not limited to, coatings applied to locomotives, railroad cars, farm machinery, and heavy duty trucks.

  (5) “Fog coating”, also known as mist coating and uniforming, means a thin coating of 0.5 mils or less applied to plastic parts that have molded-in color or texture, or both, to improve color uniformity.

  (6) “Metallic coating” means a coating which contains more than 5 grams of metal particles per liter of coating, as applied.

  (7) “Military specification coating” means a coating which has a formulation approved by a United States Military Agency or Service for use on military equipment.

  (8) “Mold seal coating” means the initial coating applied to a new mold or a repaired mold to provide a smooth surface which, when coated with a mold release coating, prevents products from sticking to the mold.

  (9) “Multi-colored coating” means a coating which exhibits more than one color when applied, and which is packaged in a single container and applied in a single coat.

  (10) “Multi–component coating” means a coating requiring the addition of a separate reactive resin, commonly known as a catalyst or hardener, before application to form an acceptable dry film.

  (11) “One-component coating” means a coating that is ready for application as it comes out of its container to form an acceptable dry film, except for the addition of a thinner to reduce the viscosity.

  (12) “Optical coating” means a coating applied to an optical lens.

  (13) “Plastic part” means a product made out of a plastic substrate other than vinyl.

  (14) “Plastic part coating” means a coating applied to a plastic part.

  (15) “Prime coat” means the initial coat applied to a part when more than one coating is applied, not including conductive sensitizers or electromagnetic interference/radio frequency interference (EMI/RFI) shielding coatings.

  (16) “Shock-free coating” means a coating having characteristics of low capacitance, high resistance, and resistance to breaking down under high voltage, which are applied to electrical components to protect the user from electric shock.

  (17) “Standard Industrial Classification Code (SIC Code)” means a code for classifying types of businesses found in the Standard Industrial Classification Manual, 1987, prepared by the Executive Office of the President, Office of Management and Budget.

  (18) Texture Coat.

    (a) “Texture coat” means a coating which, after application and in its finished form, is characterized by discrete, raised spots on the exterior surface of the coated part.

    (b) “Texture coat” does not include conductive sensitizers or EMI/RFI shielding coatings.

  (19) Touch-Up and Repair Coat.

    (a) “Touch-up and repair coat” means:

      (i) A coat applied to correct any imperfections in the finish after color or texture coats have been applied; or

      (ii) A coat used to re-coat portions of a previously coated product which has sustained mechanical damage to the coating following normal coating operations.

    (b) “Touch-up and repair coat” does not include conductive sensitizers or EMI/RFI shielding coatings.

  (20) “Vacuum-metalizing coatings” means topcoats and basecoats that are used in the vacuum-metalizing process.

  (21) “Vacuum metalizing process” means a process of evaporating metals inside a vacuum chamber which then bonds to the desired substrate to achieve a uniform metalized layer.

B. Standards for Coating Installations.

  (1) A person may not cause or permit the discharge into the atmosphere of any VOC from any installation listed in §B(2), (3), and (4) of this regulation in excess of the standards in §B(2), (3), and (4) of this regulation.

  (2) Plastic Parts Coating Standards.

  (3) Business Machines Coating Standards.

  (4) Printing Standards.

C. Application Methods. A person subject to the requirements of §B of this regulation shall use the following application methods:

  (1) Electrostatic application;

  (2) HVLP spray;

  (3) Flow coat;

  (4) Roller coat;

  (5) Dip coat including electrodeposition;

  (6) Brush coat; or

  (7) A coating application method capable of achieving a transfer efficiency equivalent to or better than the efficiency achieved by HVLP spraying.

#### Regulation .08 Metal Parts and Products Coating.

*COMAR 26.11.19.08*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Adhesion promoter” means a thin coating applied to a substrate to:

    (a) Promote wetting; and

    (b) Form a chemical bond with the subsequently applied material.

  (2) “Air-dried coating” means a coating that is cured at a temperature below 90°C (194°F).

  (3) “Baked coating” means a coating that is cured at a temperature at or above 90°C (194°F).

  (4) “Camouflage coating” means a coating used, principally by the military, to conceal equipment from detection.

  (5) “Electric-insulating and thermal-conducting coating” means a coating that displays an electrical insulation of at least one thousand (1,000) volts DC per mil on a flat test plate and an average thermal conductivity of at least twenty-seven hundredths British thermal units (0.27 Btu) per hour-foot-degree-Fahrenheit.

  (6) “Electric-insulating varnish” means a non-convertible-type coating applied to electric motors, components of electric motors, or power transformers, to provide electrical, mechanical, and environmental protection or resistance.

  (7) “Etching filler” means a coating that contains less than 23 percent solids by weight and at least 1/2-percent acid by weight and is used instead of applying a pretreatment coating followed by a primer.

  (8) “Extreme high gloss coating” means any coating which achieves at least 95 percent reflectance on a 60º meter when tested by ASTM Method D 523-89.

  (9) “Extreme performance coating” means a coating used on a metal surface where the coated surface is, in its intended use, subject to the following:

    (a) Chronic exposure to corrosive, caustic or acidic agents, chemicals, chemical fumes, chemical mixtures or solution;

    (b) Repeated exposure to temperatures in excess of 250°F;

    (c) A temperature of at least 400°F during normal use; or

    (d) Repeated heavy abrasion, including mechanical wear and repeated scrubbing with industrial grade solvents, cleansers or scouring agents.

  (10) “Heat-resistant coating” means a coating that must withstand a temperature of at least 400°F during normal use.

  (11) “High performance architectural coating” means a coating used to protect architectural subsections and which meets the requirements of the American Architectural Manufacturer’s Association publication number AAMA 2604-05 (Voluntary Specification, Performance Requirements and Test Procedures for High Performance Organic Coatings on Aluminum Extrusions and Panels) or 2605-05 (Voluntary Specification, Performance Requirements and Test Procedures for Superior Performing Organic Coatings on Aluminum Extrusions and Panels).

  (12) “High temperature coating” means a coating that is certified to withstand a temperature of 1000°F for 24 hours.

  (13) “Magnetic data storage disk coating” means a coating used on a metal disk which stores data magnetically.

  (14) “Metal furniture coating” means coating the surface of any furniture made of metal or any metal part which will be assembled with other metal, wood, fabric, plastic, or glass parts to form a furniture piece.

  (15) Metal Parts and Products Coating.

    (a) “Metal parts and products coating” means coating the surface of any metal part or product which will be assembled with other metal, wood, fabric, plastic, or glass parts.

    (b) “Metal parts and products coating” does not include metal furniture coatings.

  (16) “Metallic coating” means a coating which contains more than 5 grams of metal particles per liter of coating, as applied.

  (17) “Military specification coating” means a coating which has a formulation approved by a United States Military Agency for use on military equipment.

  (18) “Mold-seal coating” means the initial coating applied to a new mold or a repaired mold to provide a smooth surface and prevent products from sticking to the mold.

  (19) “Multi–component coating” means a coating requiring the addition of a separate reactive resin, commonly known as a catalyst or hardener, before application to form an acceptable dry film.

  (20) “One-component coating” means a coating that is ready for application as it comes out of its container to form an acceptable dry film, except for the addition of a thinner to reduce the viscosity.

  (21) “Pan-backing coating” means a coating applied to the surface of pots, pans, or other cooking implements that are exposed directly to a flame or other heating elements.

  (22) “Prefabricated architectural component coating” means coatings applied to metal parts and products which are to be used as an architectural structure.

  (23) “Pretreatment coating” means a coating which:

    (a) Contains no more than 12 percent solids, by weight;

    (b) Contains at least 1/2-percent acid, by weight;

    (c) Is used to provide surface etching; and

    (d) Is applied directly to metal surfaces to provide corrosion resistance, adhesion of subsequent coatings, and ease of stripping.

  (24) “Repair coating” means a coating used to re-coat portions of a previously coated product which has sustained mechanical damage to the coating following normal coating operations.

  (25) “Robotic application of heavy-duty engine coatings” means coatings applied to heavy-duty engines by a robotic spray system within a closed paint enclosure at a facility manufacturing heavy-duty engines.

  (26) “Safety-indicating coating” means a coating which changes physical characteristics, such as color, to indicate unsafe conditions.

  (27) “Silicone release coating” means any coating which contains silicone resin and is intended to prevent food from sticking to metal surfaces such as baking pans.

  (28) “Solar–absorbent coating” means a coating which has as its prime purpose the absorption of solar radiation.

  (29) “Stencil coating” means an ink or a coating which is rolled or brushed onto a template or stamp in order to add identifying letters and/or numbers to metal parts and products.

  (30) “Touch-up coating” means a coating used to cover minor coating imperfections appearing after the main coating operation.

  (31) “Vacuum-metalizing coating” means the undercoat applied to the substrate on which the metal is deposited or the overcoat applied directly to the metal film with the help of metalizing/physical vapor deposition (PVD) process whereby metal is vaporized and deposited on a substrate in a vacuum chamber.

B. Incorporation by Reference. In this regulation, the following documents are incorporated by reference:

  (1) AAMA 2604-05 Voluntary Specification, Performance Requirements and Test Procedures for High Performance Organic Coatings on Aluminum Extrusions and Panels; and

  (2) AAMA 2605-05 Voluntary Specification, Performance Requirements and Test Procedures for Superior Performing Organic Coatings on Aluminum Extrusions and Panels.

C. Applicability and Exemptions.

  (1) This regulation applies to a person who owns or operates:

    (a) A metal furniture coating installation; or

    (b) A metal parts and products coating operation at a premises where the total VOC emissions from all metal parts and products surface coating operations (including emissions from related cleaning activities), exceed 15 pounds (6.8 kilograms) per day.

  (2) This regulation does not apply to:

    (a) Automotive and light duty truck coating subject to COMAR 26.11.19.03;

    (b) Can coating subject to COMAR 26.11.19.04;

    (c) Coil coating subject to COMAR 26.11.19.05;

    (d) Large appliance coating subject to COMAR 26.11.19.06;

    (e) Paper, Fabric, Film, and Foil coating subject to COMAR 26.11.19.07;

    (f) Plastic Parts and Business Machines coatings subject to COMAR 26.11.19.07-2;

    (g) Cold and Vapor Degreasing subject to COMAR 26.11.19.09;

    (h) Industrial Solvent Cleaning Operations Other Than Cold and Vapor Degreasing subject to COMAR 26.11.19.09-1;

    (i) Drum and pail coating subject to COMAR 26.11.19.13;

    (j) Aerospace coating subject to COMAR 26.11.19.13-1;

    (k) Brake shoe coating subject to COMAR 26.11.19.13-2;

    (l) Structural steel coating subject to COMAR 26.11.19.13-3;

    (m) Refinishing of motor vehicles subject to COMAR 26.11.19.23;

    (n) Marine vessel coating subject to COMAR 26.11.19.27; and

    (o) Pleasure craft coating subject to COMAR 26.11.19.27-1.

  (3) This regulation does not apply to repair or touch-up coatings when applied using a hand-held, pressurized, non-refillable container which expels coatings from the container in a finely divided spray when a valve on the container is depressed.

  (4) The emission standards in §D and application methods of §E of this regulation do not apply to application of the following coatings to the surface of any metal part or product which will be assembled with other metal, wood, fabric, plastic, or glass parts:

    (a) Stencil coatings;

    (b) Safety-indicating coatings;

    (c) Magnetic data storage disk coatings; and

    (d) Electric-insulating and thermal-conducting coatings.

  (5) The emission standards in §D and application methods of §E of this regulation do not apply to plastic extruded onto metal to form a coating on any metal part or product which will be assembled with other metal, wood, fabric, plastic, or glass parts.

D. Emission Standards.

  (1) A person subject to this regulation may not exceed the applicable VOC emission standards (expressed in terms of mass of VOC per volume of coating excluding water and exempt compounds, as applied) of the following table when applying a metal furniture coating:

  (2) A person subject to this regulation may not exceed the applicable VOC emission standards (expressed in terms of mass of VOC per volume of coating excluding water and exempt compounds, as applied) of the following table when applying a metal parts and products coating:

E. Application Methods.

  (1) Except as provided in §E(2) of this regulation, a person subject to the requirements of this regulation shall use the following application methods:

    (a) Electrostatic application;

    (b) HVLP spray;

    (c) Flow coat;

    (d) Roller coat;

    (e) Dip coat including electrodeposition;

    (f) Brush coat; or

    (g) A coating application method capable of achieving a transfer efficiency equivalent to or better than the efficiency achieved by HVLP spraying.

  (2) The application requirements of §E(1) of this regulation do not apply to the following coating operations:

    (a) Repair coatings;

    (b) Touch-up coatings;

    (c) Coatings applied to create a textured finish; or

    (d) Robotic application of heavy-duty engine coatings.

#### Regulation .09 Control of VOC Emissions from Cold and Vapor Degreasing.

*COMAR 26.11.19.09*

A. Definitions. In this regulation, the following terms have the meanings indicated.

B. Terms Defined.

  (1) Cold Degreasing.

    (a) “Cold degreasing” means, except as provided in §B(1)(c) of this regulation, the use of degreasing material at ambient temperature or any temperatures below the boiling point of the degreasing material to remove grease from metal.

    (b) “Cold degreasing” includes the use of degreasing material that removes grease from metal, but also leaves a residue on the metal for anticorrosion or other protective purposes.

    (c) “Cold degreasing” does not include industrial wiping operations, cleaning of electronic assemblies, stripping or industrial coating removal systems used to remove propellants, paints, or other previously applied coatings other than grease from metal.

  (2) “Degreasing material” means any substance used to remove grease from metal.

  (3) “Grease” includes wax, oil, grease, and other similar substances.

  (4) Halogenated Substance.

    (a) “Halogenated substance” means, except as provided in Regulation §B(4)(b) of this regulation, a substance containing chlorine, fluorine, or bromine.

    (b) “Halogenated substance” does not include a substance that contains only trace quantities of chlorine, fluorine, or bromine that result from the degreasing of metal.

  (5) “Vapor degreasing” means the application of heat to vaporize degreasing material in which the resulting vapors are used to remove grease from metal.

  (6) “VOC degreasing material” means any degreasing material, including water-based degreasing material, that contains 5 percent or more VOC.

C. Applicability. This regulation applies to a person who uses a VOC degreasing material for use in cold or vapor degreasing, including cold or vapor degreasing at:

  (1) Service stations;

  (2) Motor vehicle repair shops;

  (3) Automobile dealerships;

  (4) Machine shops; and

  (5) Any other metal refinishing, cleaning, repair, or fabrication facility.

D. Requirements and Specifications for Cold Degreasing.

  (1) During the time periods specified in §D(2) of this regulation, a person may not use any VOC degreasing material in cold degreasing that does not conform to the specifications in §D(2) of this regulation.

  (2) A person may not use any VOC degreasing material that exceeds the following vapor pressure:

    (a) Before May 15, 1996: 2 mm Hg at 20°C (0.038 psia);

    (b) On and after May 15, 1996: 1 mm Hg at 20°C (0.019 psia).

  (3) Good Operating Practices.

    (a) A person subject to this regulation shall implement good operating practices to minimize spills and evaporation of VOC degreasing material.

    (b) Good operating practices shall include covers (including water covers), lids, or other methods of minimizing evaporative losses, and reducing the time and frequency during which parts are cleaned.

    (c) Good operating practices shall be established in writing, and displayed so they are clearly visible to the operator.

    (d) The written good operating practices shall be maintained at the facility and made available for review by the Department upon request.

  (4) A person subject to this regulation may not use a halogenated substance that is a VOC in any cold degreasing.

E. Requirements for Vapor Degreasing.

  (1) A person may not use VOC degreasing material in vapor degreasing unless the vapor degreasing is equipped with:

    (a) A condenser; or

    (b) An air pollution control device with an overall control efficiency of not less than 90 percent.

  (2) Vapor degreasing shall include separate enclosed chambers that allow draining of the parts being cleaned, capture of the vapors, or other procedures or methods to minimize evaporative losses of degreasing material.

F. Records. A person who is subject to §E(1) of this regulation shall maintain monthly records of the total VOC degreasing material used and make the records available to the Department upon request.

#### Regulation .09-1 Control of VOC Emissions from Industrial Solvent Cleaning Operations Other Than Cold and Vapor Degreasing.

*COMAR 26.11.19.09-1*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) Electrical and Electronic Components.

    (a) “Electrical and electronic components” means components and assemblies of components, wires, windings, stators, rotors, magnets, contacts, relays, printed circuit boards, printed wire assemblies, wiring boards, integrated circuits, resistors, capacitors, and transistors that generate, convert, transmit, or modify electrical energy.

    (b) “Electrical and electronic components” does not include the cabinets in which electrical and electronic components are housed.

  (2) “High precision optic” means an optical element used in an electro-optical device and is designed to sense, detect, or transmit light energy, including specific wavelengths of light energy and changes in light energy levels.

  (3) Janitorial Cleaning.

    (a) “Janitorial cleaning” means the cleaning of building or facility components, including but not limited to floors, ceilings, walls, windows, doors, stairs, bathrooms, furnishings, and exterior surfaces of office equipment.

    (b) “Janitorial cleaning” includes graffiti removal.

    (c) “Janitorial cleaning” does not include the cleaning of work areas where manufacturing or repair activity is performed.

  (4) “Numismatic die” means a metal stamping tool engraved with the negative of a design from which the positive image is transferred to coin blanks during minting.

  (5) “Pharmaceutical product” means a product that includes any drug, analgesic, decongestant, antihistamine, cough suppressant, vitamin, mineral, or herb supplement intended for human or animal consumption and used to cure, mitigate, or treat disease, or improve or enhance health.

  (6) Industrial Solvent Cleaning Operation.

    (a) “Industrial solvent cleaning operation” means an operation that is performed using a liquid that contains any volatile organic compound, or combination of volatile organic compounds, which is used to clean parts, products, tools, machinery, equipment, and general work areas.

    (b) “Industrial solvent cleaning operation” does not include:

      (i) The use of a VOC degreasing material for cold degreasing or vapor degreasing subject to Regulation .09 of this chapter;

      (ii) Cleaning operations at sources subject to any other VOC regulations in this subtitle;

      (iii) Cleaning of electrical and electronic components;

      (iv) Cleaning of high precision optics;

      (v) Cleaning of numismatic dies;

      (vi) Stripping;

      (vii) Janitorial cleaning;

      (viii) Cleaning of resin, coating, ink, and adhesive mixing, molding, and application equipment;

      (ix) Cleaning operations in research and development laboratories;

      (x) Cleaning operations in medical device or pharmaceutical manufacturing; and

      (xi) Cleaning operations related to performance or quality assurance testing of coatings, inks, or adhesives.

  (7) Stripping.

    (a) “Stripping” means the removal of cured coatings, inks, adhesives, maskants, or other previously applied coatings.

    (b) “Stripping” does not include the removal of grease from metal.

B. Applicability. This regulation applies to a person who owns or operates an industrial solvent cleaning operation where the total VOC emissions from the industrial solvent cleaning operation at a premises are 15 pounds or more per day (6.8 kg/day), before consideration of controls.

C. Requirements for Industrial Cleaning Operations. A person may not use any cleaning material in an industrial solvent cleaning operation unless the vapor pressure of the cleaning solution is less than or equal to 8 mm Hg at 20°C (~ 0.152 psia).

D. Records. A person using cleaning material in an industrial solvent cleaning operation shall maintain monthly records of the total solvent material used and make the records available to the Department upon request.

E. Compliance Procedures and Test Methods. The composite vapor pressure of solvent cleaning material shall be determined in accordance with the requirements under Regulation .02C of this chapter.

#### Regulation .10 Flexographic and Rotogravure Printing.

*COMAR 26.11.19.10*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Flexography” means to use an elastomeric cylinder or an elastomeric surface of revolution with raised areas to transfer ink as a method of printing.

  (2) “Packaging rotogravure” means to use a cylinder or other surface of revolution with contoured recesses on the surface to transfer ink as a method of printing on a substrate that subsequent operations turn into a container or into labels for objects.

  (3) “Publication rotogravure” means to use a cylinder or other surface of revolution with contoured recesses on the surface to transfer ink as a method of printing on a substrate that subsequent operations turn into books, magazines, newsletters, and similar products.

B. Applicability and Exemptions.

  (1) A person subject to this regulation who applies a clear protective coating over the printed matter shall include emissions from the clear coating when determining compliance with the requirements of this regulation.

  (2) The provisions of this regulation do not apply to printing on fabric, metal, plastic, or to flexible package printing subject to COMAR 26.11.19.10-1.

C. Requirements for Sheet-Fed or Web-Fed Flexographic, Packaging Rotogravure, and Publication Rotogravure Printing. A person who owns or operates a printing press that uses flexographic, packaging rotogravure, or publication rotogravure methods and is a major stationary source as defined in Regulation .01B(4) of this chapter, shall:

  (1) Reduce emissions by using water-based inks that contain less than 25 percent VOC by volume of the volatile portion of the ink, or high solids inks that contain not less than 60 percent by weight nonvolatiles; or

  (2) If compliance with the requirements of §C(1) of this regulation cannot be achieved, reduce the VOC content of each ink, or reduce the average VOC content of inks used at each press, as follows:

    (a) 60 percent reduction for flexographic presses;

    (b) 65 percent reduction for packaging rotogravure presses; and

    (c) 75 percent reduction for publication rotogravure presses.

#### Regulation .10-1 Flexible Packaging Printing.

*COMAR 26.11.19.10-1*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) Flexible Packaging.

    (a) “Flexible packaging” means any package or part of a package the shape of which can be readily changed, including but not limited to:

      (i) Bags, pouches, liners, and wraps utilizing paper, plastic, film, aluminum foil, metalized or coated paper or film, or any combination of these materials; and

      (ii) Shrink-wrap labels or wrappers printed on a printing press or in-line with a flexible package printing, coating, and laminating operation.

    (b) “Flexible packaging” does not include self-adhesive labels, folding cartons, gift wraps, wall coverings, vinyl products, decorative laminates, floor coverings, and tissue products.

  (2) “Flexible packaging coatings” means inks, coatings, and adhesives applied to flexible packaging using a flexible package printing installation.

  (3) “Flexible packaging printing” means to use a flexographic or rotogravure press to print on flexible packaging.

  (4) “Flexible packaging printing line” means a flexographic or rotogravure press and all equipment associated therewith to print on flexible packaging.

B. Applicability. A person who owns or operates a flexible packaging printing line is exempt from §D of this regulation if a permit issued by the Department limits the potential to emit VOC emissions from the flexible packaging printing line to less than 25 tons per year.

C. Emission Standards and Requirements for Major Stationary Sources that Perform Flexible Packaging Printing. A person who owns or operates a printing press that uses flexographic, packaging rotogravure, or publication rotogravure methods for flexible packaging printing and is a major stationary source as defined in Regulation .01B(4) of this chapter, shall:

  (1) Reduce emissions by using water-based inks that contain less than 25 percent VOC by volume of the volatile portion of the ink, or high solids inks that contain not less than 60 percent nonvolatiles; or

  (2) If compliance with the requirements of §C(1) of this regulation cannot be achieved, reduce the VOC content of each ink, or reduce the average VOC content of inks used at each press, as follows:

    (a) 60 percent reduction for flexographic presses;

    (b) 65 percent reduction for packaging rotogravure presses; and

    (c) 75 percent reduction for publication rotogravure presses.

D. Additional Emission Standards and Requirements. A person who owns or operates a flexible packaging printing line with the potential to emit VOC of 25 tons or more per year shall comply with the additional emissions standards of this section by:

  (1) Limiting the VOC content of each flexible packaging coating or limiting the average VOC content of flexible packaging coatings of the line to not more than:

    (a) 0.8 lb VOC/lb or kg VOC/kg solids applied; or

    (b) 0.16 lb VOC/lb or kg VOC/kg materials applied; or

  (2) Venting the dryer exhaust of the line through a control device that is constructed, operated, and maintained to achieve an overall control efficiency of:

#### Regulation .11 Lithographic and Letterpress Printing.

*COMAR 26.11.19.11*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Alcohol” means an organic compound in which a hydroxyl group is bound to a carbon atom of an alkyl or substituted alkyl group and having the general formula CnH(2n+1)OH.

  (2) “Alcohol substitute” means a material used in a fountain solution in place of alcohol.

  (3) “Cleaning solution” means a mixture of water, chemicals, and/or additives used for cleaning blanket, roller, plate, metering roller, impression cylinder, rubber rejuvenators, press, press parts, or to remove dried ink from areas around a press.

  (4) “Fountain solution” means a mixture of water, chemicals, and additives which reduces the surface tension of the water and wets the non-image areas so that the ink is maintained within the image areas.

  (5) “Heatset" means any operation in which heat is required to evaporate ink oils from the printing ink, excluding ultraviolet (UV) and electron beam curing.

  (6) “Letterpress printing” means printing using raised image transfer elements fixed upon a metal backing.

  (7) “Lithographic printing” means printing by the transfer of patterns or images from a material processed to selectively absorb ink and water.

  (8) “Sheet-fed printing” means a printing operation in which individual sheets of substrate are fed to the press sequentially.

  (9) “Web printing” means a continuous printing operation in which a roll of paper is used as the printing substrate.

B. Exemptions.

  (1) Printing on fabric, metal, or plastic is exempt from this regulation.

  (2) Heatset presses used for book printing and heatset presses with a maximum web width of 22 inches are exempt from §E of this regulation.

  (3) VOC emissions from materials used to clean printing equipment are excluded when determining the applicability of §D of this regulation.

C. Requirements for Sheet-Fed Lithographic Printing Press. A person may not operate a sheet-fed lithographic printing press with a cylinder width of 18 inches or greater or with a sheet size greater than 11 inches by 17 inches where the fountain solution contains alcohol unless:

  (1) The fountain solution is refrigerated to maintain a temperature of less than 55ºF;

  (2) A temperature indicator is used to monitor the fountain solution temperature; and

  (3) The fountain solution contains less than 8.5 percent alcohol by weight.

D. Requirements for Lithographic Web Printing.

  (1) A person who owns or operates a non-heatset lithographic web printing press shall use a fountain solution which:

    (a) Is limited to no more than 5 percent VOC content by weight as applied; and

    (b) Does not contain alcohol.

  (2) A person who owns or operates a heatset lithographic web printing press located at a premises from which the actual VOC emissions from all lithographic web printing presses are less than 100 pounds per day shall use a fountain solution which:

    (a) Is limited to no more than 5 percent VOC content by weight as applied; and

    (b) Does not contain alcohol.

  (3) A person who owns or operates a heatset lithographic web printing press located at a premises from which the actual VOC emissions from all lithographic web printing presses are 100 pounds or more per day shall:

    (a) Use a fountain solution that meets the requirements of §D(2)(a) and (b) of this regulation; and

    (b) Operate the press only if the dryer exhaust is ducted to an air pollution control device (APCD) that is constructed, operated, and maintained to achieve an overall VOC control efficiency of 90 percent or more.

E. Requirements for Heatset Lithographic Presses and Heatset Letterpresses with a Potential to Emit 25 Tons or More per Year. A person who owns or operates a heatset lithographic press or heatset letterpress with a potential to emit VOC of 25 tons or more per year prior to controls shall operate the press only if the dryer associated with the press is:

  (1) Constructed, operated, and maintained at a negative pressure relative to the press room; and

  (2) Ducted to an APCD that has:

    (a) An outlet VOC concentration of 20 parts per million by volume (expressed as hexane on a dry basis) or less; or

    (b) An overall VOC control efficiency of:

      (i) 90 percent or more if the APCD was installed before January 1, 2012; or

      (ii) 95 percent or more if the APCD was installed on or after January 1, 2012.

F. Requirements for Cleaning Materials.

  (1) A person who owns or operates a lithographic press or letterpress shall comply with this section.

  (2) A person subject to this regulation may use up to a total of 110 gallons per calendar year of cleaning solutions at a premises without regard to VOC content.

  (3) A person subject to this regulation that uses any cleaning solution at a premises excluding the 110 gallons per calendar year specified in §F(2) shall ensure that the additional cleaning solution:

    (a) Has a composite vapor pressure of less than 10 mm of mercury at 68º F (20ºC); or

    (b) Contains less than 70 percent VOC by weight.

G. Control Device Testing.

  (1) A control device shall be tested in accordance with the requirements of COMAR 26.11.19.02; and

  (2) The negative dryer pressure and 100 percent emissions capture efficiency may be demonstrated using an air flow direction indicator, such as a smoke stick, aluminum ribbons, or differential pressure gauge.

H. Record keeping. A person subject to this regulation shall maintain records on site including the following information:

  (1) The fountain solution formulations;

  (2) The VOC content, in percent VOC by weight, of the fountain solutions;

  (3) The temperature of the press fountain solutions for lithographic printing presses using alcohol in the fountain solution; and

  (4) The quantity of cleaning solutions used and their vapor pressure or percentage VOC concentration by weight.

#### Regulation .12 Dry Cleaning Installations.

*COMAR 26.11.19.12*

A. Definitions.

  (1) “Dry cleaning installation” means an installation engaged in the cleaning of fabrics by means of one or more washes in VOC, extraction of excess VOC by spinning, and drying by tumbling in an airstream. The installation includes all washers, dryers, filter and purification systems, waste disposal systems, holding tanks, pumps, and attendant plumbing located at a single premises.

  (2) “Petroleum solvent” means organic material produced by petroleum distillation comprising a hydrocarbon range of 8 to 12 carbon atoms per organic molecule that exists as a liquid under standard conditions.

B. Applicability and Exemptions.

  (1) An existing petroleum solvent dry cleaning installation or a petroleum solvent dry cleaning installation that receives a permit to construct from the Department before January 1, 1989, is exempt from the requirements of §C(1) of this regulation if the total petroleum solvent consumed in each calendar year is less than 6,000 gallons (22,712 liters).

  (2) A person who is exempt from the requirements of §C(1) of this regulation in accordance with the conditions in §B(1) of this regulation is subject to §C(2) of this regulation.

C. Equipment Specifications and Emission Standards--Petroleum Solvent Dry Cleaning Installations.

  (1) A person may not construct or operate a petroleum solvent dry cleaning installation after January 1, 1989, unless the installation shows compliance by demonstrating that VOC emissions are not greater than 3.5 kilograms per 100 kilograms dry weight of clothing or is equipped with a recovery dryer that is capable of reducing VOC emissions by 90 percent by weight.

  (2) A person who owns or operates a petroleum solvent dry cleaning installation that consumes less than 6,000 gallons (22,712 liters) in a calendar year shall submit  semiannual reports on forms provided by the Department on or before the 30th of January and July of each year starting with July 30, 1990. Each report shall indicate the gallons of petroleum solvent purchased during the 6-month period. The report shall also include the gallons of petroleum solvent in inventory at the beginning and end of each 6-month period.

  (3) A person who owns or operates a petroleum solvent dry cleaning installation subject to this regulation shall:

    (a) Immediately repair all components found to be leaking liquid or vaporous solvent. If new parts are required, order the parts within 3 working days of the discovery of a leak, and repair the leak within 3 working days of the arrival of the needed part or parts.

    (b) Treat all diatomaceous earth filters so that the filter muck contains not more than 67 percent of VOC by weight.

    (c) Reduce the VOC content of still bottoms to 35 percent or less by weight.

    (d) Drain all filtration cartridges in the filter housing for at least 12 hours before discarding the cartridges.

D. Determination of Compliance—Petroleum Solvent Dry Cleaning Installations.

  (1) A petroleum solvent recovery dryer shall be operated in a manner such that the dryer remains closed and the recovery phase continues until a final recovered solvent flow rate of 50 milliliters or less per minute is attained. To make this determination, a one-time test shall be conducted for a duration of not less than 2 weeks during which not less than 50 percent of the dryer loads shall be monitored for their final recovered solvent flow rate. The suggested point for measuring the flow rate of recovered solvent is from the solvent-water separator. Near the end of the recovery cycle, the flow of recovered solvent should be diverted to a graduated cylinder. The cycle should continue until the maximum flow of solvent is 50 milliliters per minute. The type of articles cleaned and the total length of the cycle shall then be recorded. Based on the type of articles cleaned and the results of the test, the drying time shall be maintained at a cycle which produces compliance with the 50 milliliter per minute standard.

  (2) Compliance with the requirements of §C(3)(a) of this regulation shall be determined by means of weekly visual inspection documented through record keeping for the following components:

    (a) Hose connections, unions, couplings, and valves;

    (b) Machine door gaskets and seatings;

    (c) Filter head gaskets and seatings;

    (d) Pumps;

    (e) Base tanks and storage containers;

    (f) Water separators;

    (g) Filter sludge recovery;

    (h) Distillation unit;

    (i) Diverter valves;

    (j) Saturated lint from lint basket; and

    (k) Cartridge filters.

  (3) Compliance with the requirements of §C(3)(b) and (c) of this regulation shall be determined using Method 1002 of the Department's Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” (January 1991), which is incorporated by reference in COMAR 26.11.01.04C. The number of filter cartridges and total mass of filter muck in those cartridges when they are discarded shall be recorded.

  (4) Compliance with the requirements of §C(1) of this regulation shall be determined by calculating, recording, and reporting the weight of volatile organic compounds vented from the dryer emission control device calculated using Method 25A of Appendix A of the Department's Technical Memorandum 91-01, “Test Methods and Equipment Specifications for Stationary Sources” (January 1991), which is incorporated by reference in COMAR 26.11.01.04C.

#### Regulation .13 Drum and Pail Coating.

*COMAR 26.11.19.13*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Drum” means any cylindrical metal container with a capacity of greater than 12 gallons and up to 110 gallons (45 to 416 liters).

  (2) “Pail” means any cylindrical metal container of 5 to 12 gallons (19 to 45 liters) capacity and constructed of 29 gauge or heavier material.

  (3) “Reconditioned Drums or Pails” means any metal drum or pail which is reused, recycled or remanufactured.

B. Applicability and Exemptions.

  (1) This regulation applies to any drum or pail coating operations at a premises where the total VOC emissions exceed 15 pounds (6.8 kilograms) per day.

  (2) This regulation does not apply to coatings applied using a hand-held, pressurized, non-refillable container which expels coatings from the container in a finely divided spray when a valve on the container is depressed:

    (a) To recoat portions of a previously coated product which has sustained mechanical damage to the coating following normal painting operation; or

    (b) To cover minor coating imperfections appearing after the main coating operation.

C. Emission Standards. A person subject to this regulation may not exceed the applicable VOC emission standards of the following table:

D. Application Methods.

  (1) Except as provided in §D(2), a person subject to the requirements of this regulation shall use the following application methods:

    (a) Electrostatic application;

    (b) HVLP spray;

    (c) Flow coat;

    (d) Roller coat;

    (e) Dip coat including electrodeposition;

    (f) Brush coat; or

    (g) A coating application method capable of achieving a transfer efficiency equivalent or better than that achieved by HVLP spraying.

  (2) The application requirements of §D(1) do not apply to the following drum or pail coating operations:

    (a) Coatings applied in order to recoat portions of a previously coated product which has sustained mechanical damage to the coating following normal painting operation; or

    (b) Coatings applied in order to cover minor coating imperfections appearing after the main coating operation.

#### Regulation .13-1 Aerospace Coating Operations.

*COMAR 26.11.19.13-1*

A. Applicability and Exemptions.

  (1) This regulation applies to an aerospace coating operation at a premises where the total actual VOC emissions from all aerospace coating operations is 20 pounds or more per day.

  (2) The standards in §C(2) of this regulation do not apply to tooling and touch up and repair operations.

  (3) A person subject to the standards in §C(2) of this regulation may comply with those standards by using an air pollution control device (see Regulation .02B(2)(b) of this chapter).

B. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Ablative coating” means a coating that chars when exposed to open flame or extreme temperatures, as would occur during the failure of an engine casing or during aerodynamic heating, and serves as an insulative barrier, protecting adjacent components from the heat or open flame.

  (2) “Adhesion promoter” means a thin coating applied to a substrate to:

    (a) Promote wetting; and

    (b) Form a chemical bond with the subsequently applied material.

  (3) Adhesive Bonding Primer.

    (a) “Adhesive bonding primer” means a primer applied in a thin film to aerospace components for the purpose of corrosion inhibition and increased adhesive bond strength by attachment.

    (b) “Adhesive bonding primers” include the following categories:

      (i) Primers with a design cure at 250°F or below; and

      (ii) Primers with a design cure above 250°F.

  (4) Aerospace Vehicle or Component.

    (a) “Aerospace vehicle or component” means any fabricated part, processed part, assembly of parts, or completed unit of any aircraft.

    (b) “Aerospace vehicle or component” includes:

      (i) Airplanes;

      (ii) Helicopters;

      (iii) Missiles;

      (iv) Rockets; and

      (v) Space vehicles.

    (c) “Aerospace vehicle or component” does not include electronic components.

  (5) “Antichafe coating” means a coating applied to areas of moving aerospace components that may rub during normal operations or installation.

  (6) Bearing Coating.

    (a) “Bearing coating” means a coating applied to an antifriction bearing, a bearing housing, or the area adjacent to a bearing in order to facilitate bearing function or to protect base material from excessive wear.

    (b) “Bearing coating” does not include a dry lubricative material or a solid film lubricant.

  (7) “Bonding maskant” means a temporary coating used to protect selected areas of aerospace parts from strong acid or alkaline solutions during processing for bonding.

  (8) Caulking and Smoothing Compounds.

    (a) “Caulking and smoothing compounds” means semi-solid materials which are:

      (i) Applied by hand application methods; and

      (ii) Used to aerodynamically smooth exterior vehicle surfaces or fill cavities such as bolt hole accesses.

    (b) “Caulking and smoothing compounds” does not include compounds that can be classified as sealants.

  (9) “Chemical agent-resistant coating (CARC)” means an exterior topcoat designed to withstand exposure to chemical warfare agents or the decontaminants used on these agents.

  (10) Chemical Milling Maskant.

    (a) “Chemical milling maskant” means a coating that is applied directly to aluminum components to protect surface areas when chemically milling the component with a Type II etchant.

    (b) “Chemical milling maskant” does not include:

      (i) Maskants used with Type I etchants, bonding maskants, line sealers, and critical use and seal coat maskants; or

      (ii) Maskants that must be used on an individual part or subassembly with a combination of Type II etchants and any of the types of maskants listed in §B(10)(b)(i) of this regulation.

  (11) “Clear coating” means a transparent coating usually applied over a colored opaque coating, metallic substrate, or placard to give improved gloss and protection to the color coat.

  (12) “Commercial exterior aerodynamic structure primer” means a primer used on aerodynamic components and structures that protrude from the fuselage, such as wings and attached components, control surfaces, horizontal stabilizers, vertical fins, wing-to-body fairings, antennae, and landing gear and doors, for the purpose of extended corrosion protection and enhanced adhesion.

  (13) “Commercial interior adhesive” means materials used in the bonding of passenger cabin interior components that meet the Federal Aviation Administration (FAA) fireworthiness requirements.

  (14) Compatible Substrate Primer.

    (a) “Compatible substrate primer” means a compatible epoxy primer that is:

      (i) Compatible with the filled elastomeric coating and is epoxy based; and

      (ii) An epoxy polyamide primer used to promote adhesion of elastomeric coatings such as impact-resistant coatings.

    (b) “Compatible substrate primer” means an adhesive primer coating that inhibits corrosion and serves as a primer applied to:

      (i) Bare metal surfaces or before adhesive application; or

      (ii) Surfaces that can be expected to contain fuel.

    (c) “Compatible substrate primer” does not include fuel tank coatings.

  (15) Corrosion Prevention System.

    (a) “Corrosion prevention system” means a coating system that provides corrosion protection by displacing water and penetrating mating surfaces, forming a protective barrier between the metal surface and moisture.

    (b) “Corrosion prevention system” does not include coatings containing oils or waxes.

  (16) Critical Use and Line Sealer Maskant.

    (a) “Critical use and line sealer maskant” means a temporary coating, not covered under other maskant categories, used to protect selected areas of aerospace parts from strong acid or alkaline solutions such as those used in anodizing, plating, chemical milling and processing of magnesium, titanium, or high-strength steel, high-precision aluminum chemical milling of deep cuts, and aluminum chemical milling of complex shapes.

    (b) “Critical use and line sealer maskant” includes materials used for repairs or to bridge gaps left by scribing operations (that is, line sealer).

  (17) “Cryogenic flexible primer” means a primer designed to provide corrosion resistance, flexibility, and adhesion of subsequent coating systems when exposed to loads up to and surpassing the yield point of the substrate at cryogenic temperatures (-275°F and below).

  (18) “Cryoprotective coating” means a coating that insulates cryogenic or subcooled surfaces to limit propellant boil-off, maintain structural integrity of metallic structures during ascent or re-entry, and prevent ice formation.

  (19) Cyanoacrylate Adhesive.

    (a) “Cyanoacrylate adhesive” means a fast-setting, single component adhesive that cures at room temperature.

    (b) “Cyanoacrylate adhesive” is also known as “super glue.”

  (20) “Dry lubricative material” means a coating consisting of lauric acid, cetyl alcohol, waxes, or other noncross linked or resin-bound materials that act as a dry lubricant.

  (21) Electric or Radiation-Effect Coating.

    (a) “Electric or radiation-effect coating” means a coating or coating system engineered to interact, through absorption or reflection, with specific regions of the electromagnetic energy spectrum, such as the ultraviolet, visible, infrared, or microwave regions to be used for lightning strike protection, electromagnetic pulse (EMP) protection, and radar avoidance.

    (b) “Electric or radiation-effect coating” does not include coatings that have been designated as “classified” by the Department of Defense.

  (22) “Electrostatic discharge and electromagnetic interference (EMI) coating” means a coating applied to space vehicles, missiles, aircraft radomes, and helicopter blades to disperse static energy or reduce electromagnetic interference.

  (23) “Elevated-temperature Skydrol-resistant commercial primer” means a primer applied primarily to commercial aircraft (or commercial aircraft adapted for military use) that must withstand immersion in phosphate-ester (PE) hydraulic fluid (Skydrol 500b or equivalent) at the elevated temperature of 150(F for 1,000 hours.

  (24) “Epoxy polyamide topcoat” means a coating used where harder films are required or in some areas where engraving is accomplished in camouflage colors.

  (24-1) “Exterior primer” means the first layer and any subsequent layers of identically formulated coating applied to the exterior surface of an aerospace vehicle or component used on the exterior of the aerospace vehicle.

  (25) “Fire-resistant (interior) coating” means:

    (a) For civilian aircraft, fire-resistant interior coatings used on passenger cabin interior parts that are subject to the FAA fireworthiness requirements;

    (b) For military aircraft, fire-resistant interior coatings used on parts that are subject to the flammability requirements of MIL-STD-1630A and MIL-A-87721; and

    (c) For space applications, coatings used on parts that are subject to the flammability requirements of SE-R-0006 and SSP 30233.

  (26) “Flexible primer” means a primer that meets flexibility requirements such as those needed for adhesive bond primed fastener heads or on surfaces expected to contain fuel that:

    (a) Provides a compatible, flexible substrate over bonded sheet rubber and rubber-type coatings as well as a flexible bridge between the fasteners, skin, and skin-to-skin joints on outer aircraft skins; and

    (b) Allows more topcoat flexibility around fasteners and decreases the chance of the topcoat cracking around the fasteners.

  (27) “Flight test coating” means a coating applied to aircraft other than missiles or single-use aircraft before flight testing to protect the aircraft from corrosion and to provide required marking during flight test evaluation.

  (28) “Fuel tank adhesive” means an adhesive used to bond components exposed to fuel and are compatible with fuel tank coatings.

  (29) “Fuel tank coating” means a coating applied to fuel tank components for the purpose of corrosion or bacterial growth inhibition and to assure sealant adhesion in extreme environmental conditions.

  (29-1) “General aviation rework facility” means an aerospace facility with the majority of its revenues resulting from the reconstruction, repair, maintenance, repainting, conversion, or alteration of general aviation aerospace vehicles or components.

  (30) “High temperature coating ” means a coating designed to withstand temperatures of more than 350°F.

  (31) “Insulation covering” means material that is applied to foam insulation to protect the insulation from mechanical or environmental damage.

  (32) “Intermediate release coating” means a thin coating applied under topcoats to assist in removing the topcoat in depainting operations and generally to allow the use of less hazardous depainting methods.

  (33) “Lacquer” means a clear or pigmented coating formulated with a nitrocellulose or synthetic resin to dry by evaporation without a chemical reaction that is resoluble in its original solvent.

  (33-1) “Large commercial aircraft” means an aircraft of more than 110,000 pounds maximum certified take-off weight manufactured for nonmilitary use.

  (34) “Metalized epoxy coating” means a coating that contains relatively large quantities of metallic pigmentation for appearance or added protection.

  (35) “Mold release” means a coating applied to a mold surface to prevent the molded piece from sticking to the mold as it is removed.

  (36) “Nonstructural adhesive” means an adhesive that bonds non-load-bearing aerospace components in noncritical applications and is not covered in any other specialty adhesive categories.

  (37) “Optical antireflection coating” means a coating with a low reflectance in the infrared and visible wavelength ranges that is used for antireflection on or near optical and laser hardware.

  (38) “Part marking coating” means coatings or inks used to make identifying markings on materials, components, or assemblies, and may be either permanent or temporary.

  (39) “Pretreatment coating” means an organic coating that contains at least 0.5 percent acids by weight and is applied directly to metal or composite surfaces to provide surface etching, corrosion resistance, adhesion, and ease of stripping.

  (40) Primer.

    (a) “Primer” means the first layer and any subsequent layers of identically formulated coating applied to the surface of an aerospace vehicle or component, and typically used for:

      (i) Corrosion protection;

      (ii) Protection from the environment;

      (iii) Functional fluid resistance; and

      (iv) Adhesion of subsequent coatings.

    (b) “Primer” does not include specialty coatings.

  (41) “Rain erosion-resistant coating” means a coating or coating system used to protect the leading edges of parts such as flaps, stabilizers, radomes, engine inlet nacelles, and similar parts against erosion caused by rain impact during flight.

  (42) “Rocket motor bonding adhesive” means an adhesive used in rocket motor bonding applications.

  (43) “Rocket motor nozzle coating” means a catalyzed epoxy coating system used in elevated temperature applications on rocket motor nozzles.

  (44) “Rubber-based adhesive” means a quick setting contact cement that provides a strong, yet flexible bond between two mating surfaces that may be of dissimilar materials.

  (45) “Scale inhibitor” means a coating that is applied to the surface of a part before thermal processing to inhibit the formation of scale.

  (46) “Screen print ink” means an ink used in screen printing processes during fabrication of decorative laminates and decals.

  (47) Sealant.

    (a) " Sealant" means a material used to prevent the intrusion of water, fuel, air, or other liquids or solids from certain areas of aerospace vehicles or components.

    (b) " Sealant" includes the following categories:

      (i) Extrudable/rollable/brushable sealants; and

      (ii) Sprayable sealants.

  (48) “Seal coat maskant” means an overcoat applied over a maskant to improve abrasion and chemical resistance during production operations.

  (49) “Self-priming topcoat” means one or more layers of topcoat that are applied directly to an uncoated aerospace vehicle or component for purposes of corrosion prevention, environmental protection, and functional fluid resistance. The coating is not subsequently topcoated with any other product formulation.

  (50) “Silicone insulation material” means:

    (a) An insulating material applied to exterior metal surfaces for protection from high temperatures caused by atmospheric friction or engine exhaust; and

    (b) Insulating materials that differ from ablative coatings in that they are not “sacrificial.”

  (51) “Solid film lubricant” means a thin coating consisting of a binder system containing as its chief pigment material one or more of the following:

    (a) Molybdenum;

    (b) Graphite;

    (c) Polytetrafluoroethylene (PTFE); or

    (d) Other solids that act as a dry lubricant between faying (that is, closely or tightly fitting) surfaces.

  (52) “Specialty coating” means a coating that, even though it meets the definition of a primer, topcoat, or self-priming topcoat, has additional performance criteria, beyond those of primers, topcoats, and self-priming topcoats for specific applications, including:

    (a) Temperature or fire resistance;

    (b) Substrate compatibility;

    (c) Antireflection;

    (d) Temporary protection or marking;

    (e) Sealing;

    (f) Adhesively joining substrates; or

    (g) Enhanced corrosion protection.

  (53) Specialized Function Coating.

    (a) “Specialized function coating” means a coating that fulfills extremely specific engineering requirements that are limited in application and are characterized by low volume usage.

    (b) “Specialized function coating” does not include coatings covered in other specialty coating categories.

  (54) “Structural autoclavable adhesive” means an adhesive used to bond load-carrying aerospace components that is cured by heat and pressure in an autoclave.

  (55) “Structural nonautoclavable adhesive” means an adhesive cured under ambient conditions that is used to bond load-carrying aerospace components or other critical functions, such as nonstructural bonding in the proximity of engines.

  (56) Temporary Protective Coating.

    (a) “Temporary protective coating” means a coating applied to provide scratch or corrosion protection during manufacturing, storage, or transportation.

    (b) “Temporary protective coating” includes peelable protective coatings and alkaline removable coatings, which are not intended to protect against strong acid or alkaline solutions.

    (c) “Temporary protective coating” does not include coatings that provide protection from chemical processing.

  (57) “Thermal control coating” means a coating formulated with specific thermal conductive or radiative properties to permit temperature control of the substrate.

  (58) “Tooling operation” means the fabrication and repair of a mold or other form used in production related to aerospace vehicle components.

  (59) Topcoat.

    (a) “Topcoat” means a coating that is applied over a primer on an aerospace vehicle or component for appearance, identification, camouflage, or protection.

    (b) “Topcoat” does not include coatings that are defined as specialty coatings.

  (60) Touch-Up and Repair Operation.

    (a) “Touch-up and repair operation” means that portion of the coating operation that is the incidental application of coatings used to cover minor imperfections in the coating finish or to achieve complete coverage.

    (b) “Touch-up and repair operation” includes out-of-sequence or out-of-cycle coating.

  (61) “Wet fastener installation coating” means a primer or sealant applied by dipping, brushing, or daubing to fasteners that are installed before the coating is cured.

  (62) “Wing coating” means a corrosion-resistant topcoat that is resilient enough to withstand the flexing of the wings.

C. General Requirements for Aerospace Coating Operations.

  (1) Except as provided in §C(3) of this regulation, a person who owns or operates an aerospace coating operation subject to this regulation may not cause or permit the discharge of VOC into the atmosphere unless the standards in §C(2) of this regulation are met.

  (2) Aerospace Coating Operation Standards.

    (a) Coating Standards at Maximum Allowable VOC in Pounds Per Gallon (Grams Per Liter) of Coating Applied (Minus Water)

  (3) A person subject to this regulation may exceed the specialty coating standards in §C(2)(b) of this regulation if the total VOC emissions from all specialty coatings that exceed the standard in §C(2)(b) of this regulation do not exceed 20 pounds on any day.

  (4) A person who owns or operates an aerospace coating operation subject to this regulation shall comply with the primer and topcoat applications operations, chemical milling maskant operations, and the test methods and coating averaging procedures specified in 40 CFR §§63.745(a)—(e), 63.747(a)—(e), and 63.750 as applicable, which are incorporated by reference.

  (5) Cleanup Requirements. A person who owns or operates an aerospace coating operation shall:

    (a) Store all waste materials containing VOC, including cloth or paper, in closed containers;

    (b) Maintain lids on surface preparation and cleanup materials when not in use; and

    (c) Use enclosed containers or VOC recycling equipment to clean spray gun equipment.

  (6) Record Keeping.

    (a) A person subject to this regulation shall maintain the following records:

      (i) A description and the volume of each coating used; and

      (ii) The total weight and VOC content of each coating used on a monthly basis.

    (b) Records shall be retained for not less than 3 years and be made available to the Department upon request.

#### Regulation .13-2 Brake Shoe Coating Operations.

*COMAR 26.11.19.13-2*

A. Definitions. In this regulation, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Brake caliper rust preventive coating (brake caliper coating)” means a brake shoe coating that is applied to the unpainted cast iron brake caliper to provide rust resistance.

  (2) “Brake shoe coating operation” means a process in which coating is applied to a portion of a brake shoe to provide bonding between the metal and the lining of the brake shoe.

C. Applicability. This regulation applies to a person who owns or operates a brake shoe coating operation at a premises where the total actual VOC emissions from all brake shoe coating operations is 20 pounds or more per day.

D. General Coating Requirements.

  (1) A person who owns or operates a brake shoe coating operation subject to this regulation may not cause or permit the discharge of VOC into the atmosphere unless the standards in §D(2) of this regulation are met.

  (2) Maximum Allowable VOC Content (as applied minus water).

  (3) Application Methods. A person subject to this regulation shall apply coatings by dipping, by spraying with high volume low pressure or electrostatic spray systems, or by other comparable high transfer efficiency methods.

E. Equipment Cleanup. A person who owns or operates a brake shoe coating operation shall:

  (1) Store all waste materials containing VOC, including cloth or paper, in closed containers; and

  (2) Maintain lids or covers on all containers or vessels containing VOC when not in use.

#### Regulation .13-3 Control of Volatile Organic Compounds from Structural Steel-Coating Operations.

*COMAR 26.11.19.13-3*

A. Definitions.

  (1) In this regulation, the following terms have the meanings indicated.

  (2) Terms Defined.

    (a) “Controlled air spray system” means a method of spraying a coating that has an enhanced transfer efficiency such as a high-volume, low-pressure (HVLP) or low-volume, low-pressure (LVLP) spray system that utilizes an air pressure between 0.1 and 10.0 psig in the spray gun.

    (b) “Dip-coating operation” means a process in which structural steel is coated by dipping into stationary tanks filled with liquid coatings.

    (c) “Protective coating” means a primer mixed with mineral spirits or other solvents, that is used in a coating operation for corrosion protection.

    (d) “Structural steel-coating operation” means a facility that applies a coating to fabricated steel components such as welded steel joists, steel beams, and columns used to assemble buildings and other large structures.

B. Applicability. This regulation applies to a person who owns or operates a structural steel-coating operation that has a total potential to emit VOCs of 25 tons or more per year or actual emissions of 20 pounds or more in any 1 day.

C. Coating Requirements.

  (1) Except as provided in §C(2) of this regulation, a person who owns or operates a structural steel-coating operation subject to this regulation may not use any protective coating that exceeds:

    (a) 3.9 pounds of VOC per gallon, as applied in a dip-coating operation; or

    (b) 3.5 pounds of VOC per gallon, as applied by means other than a dip-coating operation.

  (2) A person subject to this regulation may apply a coating that exceeds the VOC content established in §C(1) of this regulation if:

    (a) The VOC content of the coating does not exceed a standard in §C(1) of this regulation by more than 20 percent; and

    (b) The coatings exceeding a standard in §C(1) of this regulation are used only during the period from November 1 of any year through March 31 of the following year.

  (3) Except for dip-coating operations, a person subject to this regulation shall apply coatings under a controlled air spray system or other system approved by the Department.

D. Cleanup Requirements. A person subject to this regulation shall take reasonable precautions to minimize the release of VOC into the atmosphere including:

  (1) Minimizing the quantity of VOC used to clean lines or equipment by using detergents, high-pressure water, or low VOC cleaning materials;

  (2) Using enclosed containers or VOC recycling equipment to clean spray gun equipment;

  (3) Storing all waste materials containing VOC, including cloth and paper, in closed containers; and

  (4) Maintaining lids on any VOC-bearing materials when not in use.

#### Regulation .14 Manufacture of Synthesized Pharmaceutical Products.

*COMAR 26.11.19.14*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Production equipment exhaust system” means a device for collecting and directing out of the work area VOC fugitive emissions from reactor openings, centrifuge openings, and other vessel openings for the purpose of protecting workers from excessive VOC exposure.

  (2) “Synthesized pharmaceutical manufacturing” means manufacture of pharmaceutical products by chemical synthesis.

B. Emission Standards and Equipment Specifications.

  (1) A person who owns or operates a synthesized pharmaceutical manufacturing facility shall control with surface condensers, or an equivalent control method approved by the Department, VOC emissions from any reactor, distillation operation, crystallizer, centrifuge, or vacuum dryer that has the potential to emit 15 pounds/day or more of VOC. The outlet gas temperature of a surface condenser may not exceed:

    (a) Minus 13°F when condensing VOC of vapor pressure greater than 5.8 psia at standard conditions;

    (b) 5°F when condensing VOC of vapor pressure greater than 2.9 psia at standard conditions;

    (c) 32°F when condensing VOC of vapor pressure greater than 1.5 psia at standard conditions;

    (d) 50°F when condensing VOC of vapor pressure greater than 1.0 psia at standard conditions;

    (e) 77°F when condensing VOC of vapor pressure greater than 0.5 psia at standard conditions.

  (2) A person who owns or operates a synthesized pharmaceutical manufacturing facility may not cause or permit the discharge to the atmosphere of more than 33 pounds/day of VOC from all air dryer and production equipment exhaust systems unless the discharge is reduced by 90 percent overall.

  (3) A person who owns or operates a synthesized pharmaceutical manufacturing facility shall:

    (a) Provide and use a vapor balance system or equivalent control that is at least 90 percent effective in reducing emissions from truck or railcar deliveries to any storage tank with a capacity greater than 2,000 gallons that stores VOC with vapor pressure greater than 1.5 psia at standard conditions; and

    (b) Install and use pressure- or vacuum-conservation vents set at 0.05 psia (0.35 kilonewton/square meter), or an equivalent control method approved by the Department, on each storage tank that stores VOC with vapor pressure greater than 1.5 psia at standard conditions.

  (4) A person who owns or operates a synthesized pharmaceutical manufacturing facility shall enclose each centrifuge, rotary vacuum filter, or other filter having an exposed liquid surface, where the liquid contains VOC and exerts a total VOC vapor pressure of 0.5 psia at standard conditions.

  (5) A person who owns or operates a synthesized pharmaceutical manufacturing facility shall install covers on each in-process tank containing VOC at any time. These covers shall remain closed, except when production, sampling, maintenance, or inspection procedures require operator access.

  (6) A person who owns or operates a synthesized pharmaceutical manufacturing facility shall repair as expeditiously as possible all leaks from which a liquid can be seen running or dripping.

#### Regulation .15 Paint, Resin, and Adhesive Manufacturing and Adhesive Application.

*COMAR 26.11.19.15*

A. Definitions.

  (1) “Adhesive application” means the application of adhesives to a product and the assembly and curing of that product.

  (2) “Honeycomb core installation” means an operation that applies an adhesive to a metal foil or other substrate which is stacked, cured, and either expanded or corrugated to create a cellular matrix structure used in aircraft construction and related industries.

  (3) “Resin thin down tank” means a vessel in which VOC is added to reduce the viscosity of resin.

  (3-1) “Sealant” has the meaning stated in COMAR 26.11.35.03B.

  (3-2) “Sealant application” means the application and curing of a sealant.

  (3-3) “Specialty electronic systems and subsystems for defense and homeland security” has the meaning stated in COMAR 26.11.35.03B.

  (4) “Specialty footwear manufacturing” means the manufacturing of special cold weather shoes or boots in accordance with military specifications.

  (5) “Specialty spiral tube winding” means a process that is used to manufacture a plastic spirally wound tube for high temperature insulation application in the electric motor manufacturing industry.

  (6) “Spiral tube winding” means a process that is used to manufacture spirally wound plastic tubes that are used to insulate electric wire and electronic components.

  (7) “Spiral wound tube impregnating and curing” means a batch-fed process that is used to impregnate spirally wound tubes with resin under pressure and cure them at elevated temperatures.

B. Standards for Paint, Resin, and Adhesive Manufacturing.

  (1) Resin Reactor. A person may not quench a resin with VOC in a resin reactor unless the reactor is equipped with a condenser that cools the discharged vapors to a temperature of less than 120°F (49°C).

  (2) Resin Thin Down Tank. A person may not use a resin thin down tank unless the tank is equipped with a condenser that cools the discharged vapor to a temperature of less than 120°F.

  (3) Monitoring Requirements. A person subject to §B(1) or (2), of this regulation, shall install and maintain a temperature indicator on the vapor discharge line from the condenser. The indicator shall be located so that it is clearly visible to the operator of the equipment.

  (4) Paint Manufacturing. A person who manufactures paint may not use any open top vessel or tank to mix paint, disperse pigment, or adjust the viscosity or color of a paint unless the vessel or tank opening is covered.

  (5) Adhesives Manufacturing. A person may not use any open top vessel or tank to manufacture an adhesive unless the vessel or tank opening is covered.

  (6) The covers required by §B(4) and (5) of this regulation shall be VOC impermeable and may be equipped with an opening not larger than necessary for safe clearance of the mixer shaft. A person shall keep the vessel or tank opening covered at all times except when operator access is necessary.

  (7) A person who uses a vessel or tank to manufacture paint, resin, or adhesives shall clean the vessel or tank with detergent, hot alkali, high pressure water, or use other reasonable precautions approved by the Department that minimize emissions of VOC.

  (8) A person who uses a vessel or tank to manufacture paint may not transfer VOC into the tank or vessel unless submerged filling or a side diversion method (referred to as cascade filling) that forces the VOC to the sidewalls to prevent splashing is used.

C. Standards for Adhesive and Sealant Application.

  (1) Honeycomb Core Installation. A person may not:

    (a) Use an adhesive that contains more than 5.8 pounds of VOC per gallon (0.70 kilogram/liter) of adhesive applied (minus water) in any honeycomb core installation that discharges more than 50 pounds per day of VOC;

    (b) Cause or permit the discharge of VOC emissions from any honeycomb core printing or corrugating installation in excess of 200 pounds (90.7 kilograms) per day.

  (2) Footwear Manufacturing.

    (a) A person who manufactures specialty footwear may not cause or permit the discharge of VOC into the atmosphere unless the average VOC content of all VOC materials used at the premises is 0.5 pound of VOC per pair of boots manufactured, or less.

    (b) Compliance with the emissions standard in §C(2)(a) of this regulation shall be determined on the basis of monthly material consumption.

    (c) A person subject to the requirements of this subsection shall submit a monthly report to the Department on or before the 15th of the following month. Each report shall include the:

      (i) VOC content of each adhesive used at the source;

      (ii) Total daily production of footwear;

      (iii) Total amount of each adhesive used each day; and

      (iv) Total VOC emissions for each day.

  (3) Spiral Tube Winding and Impregnating. A person may not:

    (a) Use an adhesive to manufacture any specialty spiral tube that exceeds 5 pounds of VOC per gallon (0.60 kilogram/liter) of adhesive as applied, minus water;

    (b) Use an adhesive to manufacture any spiral tube that exceeds 2.9 pounds of VOC per gallon (0.35 kilogram/liter) of adhesive as applied, minus water;

    (c) Cause or permit the discharge into the atmosphere of more than 200 pounds (91 kilograms) per day of VOC from any specialty spiral tube winding; and

    (d) Use any resin that exceeds 4 pounds of VOC per gallon (0.48 kilogram/liter) of resin as applied, minus water, in any spiral wound tube impregnating and curing.

  (4) Specialty Electronic Systems and Subsystems for Defense and Homeland Security.

    (a) A person may not cause or permit the discharge into the atmosphere of more than 25 pounds per day of VOC from the application of adhesives or sealants to specialty electronic systems and subsystems for defense and homeland security.

    (b) Compliance with the emissions limitation in §C(4)(a) of this regulation shall be determined each month, by calculating the average of the total daily amounts of VOC discharged to the atmosphere from all applications of adhesive and sealant to specialty electronic systems and subsystems for defense and homeland security at the premises for the prior month.

#### Regulation .16 Control of VOC Equipment Leaks.

*COMAR 26.11.19.16*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Component” means equipment which has the potential to leak VOC, including process equipment, storage tanks, pumps, compressors, valves, flanges and other pipeline fittings, pressure relief valves, process drains, and open-ended pipes.

  (2) “Leak” means an unintended liquid or vapor release of VOC from a component into the ambient air or into a building.

B. Applicability. A person subject to any VOC emission standard or limitation established in this chapter and not otherwise subject to more specific VOC leak requirements of another regulation is subject to the requirements of this regulation.

C. General Requirements. A person subject to this regulation shall comply with all of the following requirements:

  (1) Visually inspect all components on the premises for leaks at least once each calendar month.

  (2) Tag any leak immediately so that the tag is clearly visible. The tag shall be made of a material that will withstand any weather or corrosive conditions to which it may be normally exposed. The tag shall bear an identification number, the date the leak was discovered, and the name of the person who discovered the leak. The tag shall remain in place until the leak has been repaired.

  (3) Take immediate action to repair all observed VOC leaks that can be repaired within 48 hours.

  (4) Repair all other leaking components not later than 15 days after the leak is discovered. If a replacement part is needed, the part shall be ordered within 3 days after discovery of the leak, and the leak shall be repaired within 48 hours after receiving the part.

  (5) Maintain a supply of components or component parts that are recognized by the source to wear or corrode, or that otherwise need to be routinely replaced, such as seals, gaskets, packing, and pipe fittings.

  (6) Maintain a log that includes the name of the person conducting the inspection and the date on which leak inspections are made, the findings of the inspection, and a list of leaks by tag identification number. The log shall be made available to the Department upon request. Leak records shall be maintained for a period of not less than 2 years from the date of their occurrence.

D. Exceptions. Components that cannot be repaired as required in this regulation because they are inaccessible, or that cannot be repaired during operation of the source, shall be identified in the log and included within the source's maintenance schedule for repair during the next source shutdown.

#### Regulation .17 Control of Volatile Organic Compound (VOC) Emissions from Yeast Manufacturing.

*COMAR 26.11.19.17*

A. Definitions.

  (1) “Fermentation batch” means a fermentation cycle that normally ranges from 7 to 20 hours duration occurring in a fermenter.

  (2) “First generation fermenter” means a vessel in which yeast and nutrients are aerated to produce yeast for a trade fermenter.

  (3) “Nutritional yeast” means yeast that becomes:

    (a) An ingredient in dough for bread or any other yeast-raised baked product; or

    (b) A nutritional food additive intended for consumption by humans.

  (4) “Specialty yeast” means yeast that is used in the production of beer, wine, or alcoholic beverages or in the production of ethanol.

  (5) “Stock fermenter” means a vessel in which yeast and nutrients are aerated to produce stock yeast.

  (6) “Trade fermenter” means a vessel in which yeast and nutrients are aerated to produce liquid yeast to be processed for sale.

  (7) “Yeast manufacturing installation” means a fermentation reactor or vessel used to manufacture yeast.

B. Applicability, Exemptions, and Compliance Date.

  (1) This regulation applies to a person who owns or operates a yeast manufacturing installation at a premises that has a potential to emit from all yeast manufacturing installations on the premises 25 tons or more per year of VOC.

  (2) The production of specialty yeast is limited to less than 1 percent by weight of the total annual yeast production excluding specialty yeast batches that meet the emission limits for nutritional yeast in §C(2) of this regulation.

  (3) Compliance with this regulation shall be achieved beginning July 1, 2004.

C. Requirements for Yeast Manufacturing Installations.

  (1) General Requirements. A person who owns or operates a yeast manufacturing installation subject to this regulation may not cause or permit VOC emissions to be discharged into the atmosphere in excess of the concentrations in §C(2) of this regulation.

  (2) VOC Concentration Limits for Nutritional Yeast.

  (3) Any other yeast manufacturing installation not subject to the requirements of §C(2) of this regulation shall monitor temperature, pH, and sugar content of the batch to minimize the formation and emission of VOC. The temperature shall be controlled so that it is not less than 75°F and not more than 100°F. The pH shall be controlled so that it is not less than 3.5 and not more than 7.5.

  (4) Averaging Time. Compliance with the emission limits in §C(2) of this regulation shall be based on the average (arithmetic) undiluted VOC concentration during the time of a fermentation batch.

D. Determination of Compliance.

  (1) Compliance with §C(2) of this regulation shall be determined with the use of continuous emission monitors.

  (2) The monitors specified in §D(1) of this regulation shall be used to generate fermentation batch average concentrations for each installation.

  (3) The standards in §C(2) of this regulation shall be met for at least 98 percent of all nutritional yeast batches in each rolling 12-month period beginning July 1, 2004.

E. Continuous Emission Monitor Calibration Procedures. A person subject to this regulation shall perform daily zero and span checks for the continuous emission monitor required in §D(1) of this regulation unless an alternative procedure is approved by the Department.

F. Reporting Requirements.

  (1) Semiannual reports shall be submitted to the Department by the end of the month following each 6-month period beginning with the period July 1, 2004 through December 31, 2004.

  (2) The semiannual report shall include:

    (a) A summary of the number of batches for each month and calculations showing the percent of batches that met the VOC standards for each month;

    (b) Calculations showing the percent of batches that met the VOC standards during the previous six 12-month rolling average periods; and

    (c) Calculations showing the percent of batches, by fermenter, that were not monitored during the 6-month period.

#### Regulation .18 Control of Volatile Organic Compound Emissions from Screen Printing and Digital Imaging.

*COMAR 26.11.19.18*

A. In this regulation, the following terms have the meanings indicated:

  (1) “Acid/etch resist ink” means a material or compound applied to portions of a product, usually in a pattern, before etching, to protect the covered portions from the action of the chemical solution that removes the surface of the product being etched.

  (2) “Anoprint ink” means a dye or compound that is screen printed on unsealed anodized aluminum before the process of sealing the anodic coating, thus trapping the dye or compound in the anodic coating.

  (3) “Back-up coating” means a coating applied to the nondecorated side of a plywood sign.

  (4) Clear Coating.

    (a) “Clear coating” means a transparent coating usually applied over a pigmented or colored coat to give improved gloss or protection to the colored coat.

    (b) “Clear coating” does not mean overprint varnish that is used in the cosmetic industry and that is subject to FDA formulation requirements.

  (5) “Conductive ink” means an ink for the screen printing of electronic circuits or other conductive patterns that permit electric current to flow through the printed line or pattern.

  (5-1) “Digital imaging” means a printer that uses a computer-driven machine to transfer an electronically stored image onto the substrate through the use of inks, toners, or other similar color graphic materials. Application methods include ink jet, electrostatic, and spray jet technologies.

  (6) “Electroluminescent ink” means a transparent conductive coating, phosphor, opaque conductive, or similar compound that is screen printed with the purpose of converting an electrical current directly into light.

  (7) “Exterior illuminated sign” means a plastic sign that can be illuminated for its visibility at night.

  (8) “Haze removal” means the final cleaning stage or process to remove ink residue from a used screen.

  (9) “Ink removal” means removal of excess ink from a used screen.

  (10) “Maximum VOC content” means the maximum content of volatile organic compounds less exempt solvents and water.

  (10-1) “Overprint varnish” means a FDA-regulated coating that is used to prevent lipstick from adhering to the plastic film on a sample card sold to retail stores.

  (11) “Plastic card manufacturing installation” means screen printing, lithographic printing, drying ovens, adhesive application, and laminating equipment used to produce a credit card or similar plastic card product.

  (12) “Plywood sign coating” means a coating applied to plywood sheeting in the preparation of exterior signs.

  (13) “Screen printing” means a printing method in which ink, clear coating, or adhesive is distributed through a tightly stretched fabric to which a refined form of stencil has been applied. The stencil and mesh openings determine the form and dimensions of the imprint.

  (14) “Screen printing installation” means equipment including printing application equipment, flash-off areas, and dryers used to perform screen printing.

  (15) “Screen reclamation” means removal of stencil or ghost image from a used screen.

  (16) “Specialty inks” means acid/etch resist, anoprint, conductive, and electroluminescent inks.

  (17) “Untreated sign paper” means a paper used in screen printing to prepare a temporary, light-weight sign or poster such as grocery store signs that are sensitive to water and water-based inks.

B. Applicability.

  (1) This regulation applies to a person, owner, or operator who:

    (a) Performs screen printing on substrates other than untreated sign paper and causes VOC emissions from all screen printing at the premises of 20 pounds or more per day excluding VOC emissions from printing on untreated sign paper;

    (b) Operates a plastic card manufacturing installation at a premises that causes VOC emissions of 20 pounds or more per day from all plastic card manufacturing installations at the premises;

    (c) Coats plywood used for signs at a premises that causes VOC emission of 20 pounds or more per day from all plywood sign coating at the premises;

    (d) Performs screen printing on untreated sign paper at a premises that causes VOC emissions of 20 pounds or more per day from all printing on untreated sign paper at the premises; or

    (e) Performs digital imaging at a premises that causes VOC emissions of 20 pounds or more per day from all digital imaging at the premises.

  (2) Adhesives associated with screen printing operations are subject to the requirements in Regulation .15 of this chapter.

C. General Requirements for Screen Printing.

  (1) A person who owns or operates a screen printing installation subject to this regulation may not cause or permit the discharge of VOC into the atmosphere, unless the following requirements are met:

    (a) For overprint varnish on any substrate, the maximum VOC content, as applied, may not exceed 6.03 pounds of VOC per gallon;

    (b) For screen printing or clear coating on any substrate other than untreated sign paper, the maximum VOC content of any ink or clear coating, as applied, may not exceed 3.3 pounds of VOC per gallon (396 grams per liter);

    (c) For screen printing on untreated sign paper, the maximum VOC content of any ink, as applied, may not exceed 5.6 pounds of VOC per gallon; and

    (d) For screen printing using specialty inks, the maximum VOC content of any ink may not exceed the following:

  (2) Control of VOC Emissions from Ink and Haze Removal and Screen Reclamation. A person may not cause or permit the discharge of VOC into the atmosphere from the use of any ink or haze removal and screen reclamation product unless the VOC content of the ink removal or reclamation product is less than or equal to the following:

  (3) Use of Control Devices. A person subject to this regulation is in compliance with the requirements of §C(1) of this regulation if the person installs and uses a control device that reduces emissions from the screen printing dryer by not less than 90 percent overall.

D. General Requirements for Plywood Sign Coating. A person who owns or operates a plywood sign coating operation subject to this regulation may not cause or permit the discharge of VOC into the atmosphere from any plywood sign coating unless the VOC content of the coating, as applied, is less than or equal to the following:

E. General Requirements for Plastic Card Manufacturing Installations. A person who owns or operates a plastic card manufacturing installation subject to this regulation shall meet the following:

  (1) The VOC content of any ink as applied may not exceed 4.0 pounds per gallon (479 grams per liter);

  (2) The isopropyl alcohol content of the fountain solution used in any lithographic printing on a plastic card may not exceed 8.5 percent; and

  (3) If isopropyl alcohol is used in the fountain solution, the fountain solution shall be refrigerated to 55°F or less and shall be monitored by a temperature indicator mounted on the tray holding the fountain solution.

F. General Requirements for Digital Imaging. A person who owns or operates digital imaging that is subject to this regulation may not cause the discharge of VOC emissions into the atmosphere in excess of 100 pounds on any day from all digital printing at the premises.

G. Record Keeping. A person subject to this regulation shall maintain the following records for not less than 3 years, and make the records available to the Department upon request:

  (1) The total monthly consumption of inks, coatings, cleanup materials, and any other materials containing VOC used in conjunction with screen printing substrates other than untreated sign paper;

  (2) The total monthly consumption of inks, coatings, cleanup materials, and any other materials containing VOC used in conjunction with screen printing on untreated sign paper;

  (3) The VOC content of each ink, coating, cleanup material, or any other material containing VOC that is used at the premises; and

  (4) For plastic card manufacturing installations, the amount of isopropyl alcohol used each month.

#### Regulation .19 Control of Volatile Organic Compound (VOC) Emissions from Expandable Polystyrene Operations.

*COMAR 26.11.19.19*

A. Applicability. Except as required in §E(2) of this regulation, this regulation applies to a person who owns or operates an EPO at a premises where the total actual VOC emissions from all EPOs at the premises is 20 pounds or more per day.

B. Definitions.

  (1) In this regulation, the following terms have the meaning indicated.

  (2) Terms Defined.

    (a) “Blowing agent” means a liquid, gaseous, or solid material that facilitates the formation of a cellular final product from polystyrene beads.

    (b) “Cooler” means an EPO product that consists of a leakproof container and a cover that is used primarily for the temporary storage of beverages and food products.

    (c) Expandable Polystyrene Operation (EPO).

      (i) “Expandable polystyrene operation” means a process that expands polystyrene beads containing a VOC blowing agent in a preexpander and at times molds the expanded beads, with or without scrap material, into a cellular product such as cups and containers, protective packaging material, and insulation.

      (ii) “Expandable polystyrene operation” includes, as applicable, expanding the beads, expanded bead aging, and molding of expanded beads into a final product.

    (d) “Preexpander” means a part of an EPO that processes polystyrene beads from a high-density state to a lower bulk density required to manufacture an end product.

    (e) “Recycled expanded polystyrene” means a polystyrene end product which has served its initially intended use or an expanded polystyrene product diverted from the EPO waste material system.

    (f) “Reduced VOC content beads” means unexpanded polystyrene beads that have been reformulated so that the VOC content of the beads is less than 7 percent by weight.

    (g) “Specialty product” means an EPO product where the expanded bead is the final product or a cooler.

C. General Requirements.

  (1) A person who owns or operates an EPO subject to this regulation may not cause or permit the discharge of VOC into the atmosphere unless one of the following control measures is implemented:

    (a) A VOC collection and destruction system to control emissions from the preexpander by 85 percent or more overall; or

    (b) A VOC collection system that ducts emissions from the preexpander into the fire box of fuel burning equipment.

  (2) As an alternative to meeting the requirements in §C(1) of this regulation, the following manufacturing requirements may be implemented:

    (a) Manufacturers of block products using reduced VOC content beads that have a bead VOC content greater than 6.5 percent shall use 10 percent or more recycled expanded polystyrene;

    (b) Manufacturers of block products that cannot use recycled expanded polystyrene shall use beads with a VOC content of 6.5 percent or less;

    (c) Manufacturers of shape molded products, including cups, shall use beads with a VOC content of 6 percent or less; and

    (d) Manufacturers of specialty products shall use reduced VOC content beads.

  (3) Compliance with the bead VOC content for each product in §C(2) of this regulation shall be determined as a daily average.

  (4) Spills of unexpanded polystyrene beads shall be collected and any spilled material shall be placed in a closed container to prevent and suppress emissions.

D. Testing Requirements.

  (1) If a control device is used, a stack test shall be performed to measure the VOC concentration at the inlet and outlet of the control device.

  (2) The initial stack test shall be performed not later than 90 days after the start up of the control device.

  (3) Additional stack tests shall be performed at a frequency of not less than once each 3 years, beginning 3 years after the date of the initial test.

  (4) A stack test report shall be submitted to the Department within 60 days of completing each test.

E. Record Keeping.

  (1) A person who owns or operates an EPO subject to this regulation shall maintain the following records, as applicable, for a period of not less than 3 years:

    (a) The daily total weight of beads used;

    (b) The VOC content of the beads;

    (c) The monthly total weight of recycled expanded polystyrene used; and

    (d) The monthly production of each product.

  (2) A person who operates an EPO that is not subject to the requirements in §C of this regulation shall maintain records of the total daily and annual weight of beads used and the VOC content of the beads and make these records available to the Department upon request.

#### Regulation .20 Control of Landfill Gas Emissions from Municipal Solid Waste Landfills. — Repealed.

*COMAR 26.11.19.20*

#### Regulation .21 Control of Volatile Organic Compound (VOC) Emissions from Commercial Bakery Ovens.

*COMAR 26.11.19.21*

A. Definitions. In this regulation, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Commercial bakery oven (bakery oven)” means an oven with a rated heat input capacity of two MM Btu per hour or greater, that is used to bake bread, rolls, or other yeast-raised products.

  (2) “Fermentation time” means the time elapsed between adding the yeast to the dough or sponge and placing the product into the bakery oven, expressed in hours.

  (3) “Yeast percentage” means the pounds of yeast per hundred pounds of total recipe flour, expressed as a percentage.

  (4) “Yt value” means a factor used to predict VOC emission rates from individual bakery ovens that is determined by multiplying the weighted yeast percentage (Y) by the fermentation time (t).

C. Applicability and Exemptions.

  (1) This regulation applies to a person who owns or operates a bakery oven located at a premises that has a total potential to emit 25 tons or more of VOC per year.

  (2) Except as provided in §C(4) of this regulation, the provisions of §D of this regulation apply only to the largest bakery oven at the premises.

  (3) A person who owns or operates a bakery oven that is not subject to §D of this regulation is subject to §F(2) and (3) of this regulation.

  (4) A person who owns or operates a bakery oven at a premises that was constructed before 1942 is exempt from the requirements of §D of this regulation until the bakery oven is replaced or modified.

  (5) A person who owns or operates a bakery oven constructed on or after January 1, 1994, and that satisfies the conditions in §D(1) of this regulation shall comply with §D(2) of this regulation.

D. General Requirements.

  (1) Except as provided in §C(2) and (4) of this regulation, a person who owns or operates a bakery oven that exceeds the average annual production tonnage of finished bread, rolls, or other yeast-raised products and the Yt value below is subject to §D(2) and (3) of this regulation:

    (a) 10,000 tons with a Yt value of greater than 11.0;

    (b) 15,000 tons with a Yt value between 8.1 and 11.0;

    (c) 22,500 tons with a Yt value less than 5.0 and 8.0;

    (d) 28,000 tons with a Yt value less than 5.0.

  (2) A person who owns or operates a bakery oven that satisfies the conditions in §D(1) of this regulation may not cause or permit the discharge of VOC into the atmosphere unless emissions from the bakery oven are exhausted directly into a control device which is installed, operated, and maintained to reduce VOC emissions from the bakery oven by 80 percent or more overall.

  (3) Except for a control device that is required to be installed by this regulation after July 15, 1995, a control device required by this regulation shall be installed and operated as expeditiously as practicable, but not later than July 15, 1995.

E. Use of Innovative Control Methods.

  (1) Innovative Control Methods. If the owner or operator of a bakery oven subject to this regulation demonstrates to the satisfaction of the Department that an innovative control method has the capability of achieving compliance with this regulation, the Department shall allow its use if the conditions in §E(2) of this regulation are met.

  (2) Conditions.

    (a) Upon approval by the Department, the innovative control method shall be installed and stack-tested not later than July 15, 1995.

    (b) The owner or operator of the bakery oven on which the innovative control method is installed shall complete basic engineering and design of a conventional control system, such as a thermal or catalytic oxidizer, not later than July 15, 1995, and be prepared to submit an expeditious schedule to construct the system if the innovative control method fails to achieve compliance.

    (c) Determination by Department.

      (i) Upon completing review of the stack test for the innovative control method as required in §E(2)(a) of this regulation, the Department shall make a determination as set forth in §E(2)(c)(ii)—(iv) of this regulation.

      (ii) If compliance is achieved, the Department shall allow continued use of the innovative control method. The bakery oven equipped with the innovative control method shall be retested within 24 months after initial approval by the Department.

      (iii) If compliance is not achieved, but an overall emission reduction of 70 percent or greater is achieved, the Department shall make a determination to allow modifications to be made to improve performance, to amend this regulation, or a combination of both. If a determination is made by the Department to amend this regulation, the amendment shall be submitted to the U.S. EPA for approval. If a determination is made to allow modification to the innovative control method, the modified innovative control method shall be retested not later than 30 days after the modifications are completed, and retested within 24 months.

      (iv) Upon failure to achieve an acceptable emission reduction, the Department shall notify the owner or operator of the bakery oven, and the owner or operator shall immediately begin installation of a conventional control system for which preliminary design and engineering were completed.

  (3) Upon failure of the innovative control method at the time of the initial or 24-month retest, the owner or operator of the bakery oven may not be considered in violation if the owner or operator acts expeditiously to replace the control method with an approved conventional control system.

F. Reporting and Testing Requirements.

  (1) A person subject to this regulation who installs a control device shall:

    (a) Perform a stack test within 90 days after start-up of the control device using Method 25A under 40 CFR Part 60, Appendix A, or other test methods approved by the Department; and

    (b) Submit test reports to the Department within 60 days after completing the required stack tests.

  (2) A person who owns or operates a bakery oven that does not satisfy the conditions in §D(1) of this regulation shall maintain production records for that bakery oven and make these records available to the Department on request, and maintain these records for a period of not less than 3 years.

  (3) Except as otherwise provided in this regulation, a person who owns or operates a bakery oven that satisfies the conditions in §D(1) of this regulation after January 1, 1994, shall notify the Department, and comply with the requirements of §D(2) of this regulation within 1 calendar year after the year in which the conditions were satisfied.

#### Regulation .22 Control of Volatile Organic Compounds from Vinegar Generators.

*COMAR 26.11.19.22*

A. Applicability. This regulation applies to a person who owns or operates a vinegar generator at a premises that has total actual VOC emissions of 20 pounds or more per day from all vinegar generators at the premises.

B. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Scrubber-absorber system” means equipment used to strip VOC from the exhaust gases of a vinegar generator by means of direct contact between the effluent gases and the scrubbing medium.

  (2) Vinegar Generator.

    (a) “Vinegar generator” means a fermenting reactor in which a solution of ethanol, wood chips, and nutrients are fermented aerobically under controlled conditions to produce vinegar.

    (b) “Vinegar generator” includes an acetator.

C. General Requirements. A person subject to this regulation may not operate a vinegar generator unless the unit is equipped with a scrubber-absorber system or other emission reduction system that has an overall VOC control efficiency of 85 percent or greater.

D. Testing Requirements. A person who owns or operates a vinegar generator subject to this regulation shall:

  (1) Demonstrate compliance by performing an initial stack test by not later than September 15, 1997;

  (2) Perform additional compliance demonstration stack tests at a frequency of not less than once each 5 years beginning 5 years from the date of the initial compliance test, or at the Department's request; and

  (3) Submit stack test reports to the Department within 60 days after completing each test.

E. Monitoring and Records.

  (1) A person who owns or operates a vinegar generator subject to this regulation shall:

    (a) Install and operate a water flow meter on each scrubber-absorber system; and

    (b) Continuously monitor the water flow.

  (2) The water flow rate to the scrubber-absorber system is as prescribed in the source's permit to operate issued by the Department.

  (3) Water flow data shall be recorded and maintained for at least 3 years and made available to the Department on request.

#### Regulation .23 Control of VOC Emissions from Vehicle Refinishing.

*COMAR 26.11.19.23*

A. Definitions.

  (1) In this regulation, the following terms have the meanings indicated.

  (2) Terms Defined.

    (a) “Airless spray” means a spray coating method in which the coating is:

      (i) Atomized by forcing it through a small nozzle at high pressure; and

      (ii) Not mixed with air before exiting from the nozzle opening.

    (b) Associated Parts and Components.

      (i) “Associated parts and components” means a structure, device, piece, module, section, assembly, subassembly, or element of a motor vehicle or mobile equipment that is designed to be a part of the motor vehicle or mobile equipment but which is not attached to the motor vehicle or mobile equipment at the time of coating the structure, device, piece, module, section, assembly, subassembly, or element.

      (ii) “Associated parts and components” does not include circuit boards.

    (c) Automotive Coating.

      (i) “Automotive coating” means a coating or coating component used or recommended for use in motor vehicle or mobile equipment refinishing, service, maintenance, repair, restoration, or modification.

      (ii) “Automotive coating” includes any reference to automotive refinishing or automotive coating recommended for use in motor vehicle or mobile equipment refinishing on the container or in product literature.

      (iii) “Automotive coating” does not include metal plating activities.

    (d) Automotive Coating Component.

      (i) “Automotive coating component” means a portion of a coating, including a reducer or thinner, toner, hardener, or additive that is recommended by a person to distributors or end-users for use in an automotive coating, or which is supplied for use in an automotive coating.

      (ii) “Automotive coating component” does not include raw materials used to produce the components.

    (e) “Automotive pretreatment coating” means a coating that:

      (i) Contains a minimum of 0.5 percent acid by weight and not more than 16 percent solids by weight necessary to provide surface etching; and

      (ii) Is labeled and formulated for application directly to bare metal surfaces to provide corrosion resistance and adhesion.

    (f) “Automotive primer” means a coating labeled and formulated for application to a substrate to provide one or more of the following:

      (i) A bond between the substrate and subsequent coats;

      (ii) Corrosion resistance;

      (iii) A smooth substrate surface; and

      (iv) Resistance to penetration of subsequent coats, and on which a subsequent coating is applied.

    (g) Automotive Refinishing Facility.

      (i) “Automotive refinishing facility” means a shop, business, location, or parcel of land where motor vehicles or mobile equipment or their associated parts and components are coated, including auto body collision repair shops.

      (ii) “Automotive refinishing facility” does not include the original equipment manufacturing plant where the new motor vehicle or new mobile equipment is completely assembled.

    (h) “CARB” means the California Air Resources Board.

    (i) Cleaning Solvent.

      (i) “Cleaning solvent” means a fluid containing VOC used to perform surface preparation, or cleaning of surface coating equipment.

      (ii) “Cleaning solvent” does not include thinners, reducers or other solvents that may be used to adjust the solvent content of coatings.

    (j) Color Coating.

      (i) “Color coating” means a pigmented coating, excluding promoters, primers, and multicolor coatings that requires a subsequent clear coating and which is applied over a primer, adhesion promoter, or color coating.

      (ii) “Color coating” includes metallic/iridescent color coatings.

    (k) “Electrostatic spray” means the application of charged atomized paint droplets that are deposited by electrostatic attraction.

    (l) “Exempt compound” means a compound identified as exempt under the definition of volatile organic compound (VOC) under COMAR 26.11.01.01B(53).

    (m) “Graphic arts operation” means the application of logos, letters, numbers, or graphics to a painted surface by brush, roller, or airbrush.

    (n) “Metallic/iridescent color coating” means a coating that:

      (i) Exhibits more than one color in the dried film after a single application;

      (ii) Is packaged in a single container;

      (iii) Hides surface defects on areas of heavy use; and

      (iv) Is applied over a primer or adhesion promoter.

    (o) “Mobile equipment” means any equipment which may be drawn or is capable of being drawn or driven on a roadway or rails including but not limited to:

      (i) Automobiles;

      (ii) Trucks, truck cabs, truck bodies, and truck trailers;

      (iii) Buses;

      (iv) Motorcycles;

      (v) Utility bodies;

      (vi) Camper shells;

      (vii) Mobile cranes;

      (viii) Bulldozers;

      (ix) Street cleaners;

      (x) Golf carts;

      (xi) Ground support vehicles, used in support of aircraft activities at airports;

      (xii) Implements of husbandry or agriculture and farming equipment; and

      (xiii) Trains and railcars.

    (p) Single-Stage Coating.

      (i) “Single-stage coating” means a pigmented coating, excluding primers and multicolor coatings, labeled and formulated for application without a subsequent clear coat.

      (ii) "Single-staged coating” includes single-stage metallic/iridescent coatings.

    (q) “Spot repair” means repair of an area of less than one panel in size on a motor vehicle, piece of mobile equipment, or associated parts or components.

    (r) “Temporary protective coating” means a coating labeled and formulated for the purpose of temporarily protecting areas from overspray or mechanical damage.

    (s) “Truck bed liner coating” means a coating, excluding clear, color, multicolor, and single-stage coatings, labeled and formulated for application to a truck bed to protect it from surface abrasion.

    (t) “Underbody coating” means a coating labeled and formulated for:

      (i) Application to wheel wells;

      (ii) The inside of door panels or fenders;

      (iii) The underside of a truck or hood; or

      (iv) The underside of a motor vehicle.

    (u) “Vehicle refinishing” means the activity of recoating a motor vehicle, mobile equipment or parts of a motor vehicle or mobile equipment.

B. Test Methods. The following test methods shall be used for the purpose of demonstrating compliance with the provisions of this regulation.

  (1) VOC Content of Coatings and Solvents. The VOC content of automotive components, automotive coatings, and solvents shall be determined by either U.S. EPA Reference Method 24 as it exists in Appendix A of 40 CFR Part 60, “Determination of Volatile Matter Content, Water Content, Density, Volume Solids, and Weight Solids of Surface Coatings or South Coast Air Quality Management District (SCAQMD) Method 304-91 ”Determination of Volatile Organic Compounds (VOC) in Various Materials".

  (2) Exempt Organic Compounds – Methyl Acetate, Acetone, t-Butyl Acetate, and p-Chlorobenzotrifluoride (PCBTF). The concentration of the exempt organic compounds methyl acetate, acetone, t-butyl acetate, and PCBTF shall be determined by ASTM Designation: D 6133-02, “Standard Test Method for Acetone, p-Chlorobenzotrifluoride, Methyl Acetate or t-Butyl Acetate Content of Solventborne and Waterborne Paints, Coatings, Resins, and Raw materials by Direct Injection Into a Gas Chromatograph”.

  (3) Exempt Organic Compounds – Dichloromethane and 1,1,1,-Trichloroethane. The concentration of the exempt organic compounds dichloromethane and 1,1,1-trichloroethane shall be determined by California Air Resources Board (CARB) Method 432, “Determination of Dichloromethane and 1,1,1,-Trichloroethane in Paints and Coatings”, adopted September 12, 1989.

  (4) Exempt Organic Compounds. The concentration of exempt compounds shall be determined by either CARB Method 422, “Determination of Volatile Organic Compounds in Emissions from Stationary Sources” (adopted January 22, 1987) or SCAQMD Method 303-91, "Determination of Exempt Compounds (Approved February 1993).

  (5) Acid Content of Coatings. The acid content of pretreatment coatings shall be determined by ASTM Designation: D 1613-03, “Standard Test Method for Acidity in Volatile Solvents and Chemical Intermediates Used in Paint, Varnish, Lacquer, and Related Products” (October 2003).

  (6) Metallic Content of Coatings. The metallic content of a coating shall be determined by South Coast Air Quality Management District (SCAQMD) Method 318-95, “Determination of Weight Percent Elemental Metal in Coatings by X-Ray Diffraction”, (Approved July 1996).

  (7) Spray Equipment Transfer Efficiency. The spray equipment transfer efficiency shall be determined by SCAQMD Test Procedure, “Spray Equipment Transfer Efficiency Test Procedure for Equipment User”, (Approved May 24, 1989).

  (8) Spray Equipment HVLP Equivalency. The spray equipment HVLP equivalency shall be determined by SCAQMD Guidelines, “Guidelines for Demonstrating Equivalency with District Approved Transfer Efficient Spray Guns”, (September 26, 2002).

  (9) Spray Gun Cleaning System. The active and passive solvent losses from the use of an enclosed spray gun cleaning system or equivalent cleaning system shall be determined by SCAQMD Method, “General Test Method for Determining Solvent Losses from Spray Gun Cleaning Systems”, (October 3, 1989).

  (10) Emission Control System – Capture Efficiency. The measurement of capture efficiency shall be conducted and reported in accordance with one or both of the following:

    (a) U.S. EPA Technical Document, “Guidelines for Determining Capture Efficiency” (issued January 9, 1995); or

    (b) 40 CFR 51, Appendix M, Methods 204-204f.

  (11) Emission Control System – Control Efficiency. The control efficiency shall be determined in accordance with one or more of the following:

    (a) U.S EPA Reference Method 25, “Determination of Total Gaseous Nonmethane Organic Emissions as Carbon” as it exists in Subpart D, Appendix A of 40 CFR 60;

    (b) U.S EPA Reference Method 25A, “Determination of Total Gaseous Organic Concentration Using a Flame Ionization Analyzer” as it exists in Subpart D, Appendix A of 40 CFR 60; and

    (c) U.S EPA Reference Method 25B, “Determination of Total Gaseous Organic Concentration Using a Nondispersive Infrared Analyzer” as it exists in Subpart D, Appendix A of 40 CFR 60.

C. Incorporation by Reference. In this regulation, the following documents are incorporated by reference.

  (1) U.S. EPA Reference Method 24: Determination of Volatile Matter Content, Water Content, Density, Volume Solids, and Weight Solids of Surface Coatings (40 CFR Part 60 Appendix A).

  (2) SCAQMD Method 304-91: “Determination of Volatile Organic Compounds (VOC) in Various Materials".

  (3) ASTM Designation D 6133-02: "Standard Test Method for Acetone, p-Chlorobenzotrifluoride, Methyl Acetate or t-Butyl Acetate Content of Solvent borne and Waterborne Paints, Coatings, Resins, and Raw materials by Direct Injection Into a Gas Chromatograph”.

  (4) CARB Method 432: “Determination of Dichloromethane and 1,1,1,-Trichloroethane in Paints and Coatings”(adopted September 12, 1989).

  (5) CARB Method 422: “Determination of Volatile Organic Compounds in Emissions from Stationary Sources” (adopted January 22, 1987).

  (6) SCAQMD Method 303-91: “Determination of Exempt Compounds” (approved February 1993).

  (7) ASTM Designation D 1613-03: “Standard Test Method for Acidity in Volatile Solvents and Chemical Intermediates Used in Paint, Varnish, Lacquer, and Related Products”.

  (8) SCAQMD Method 318-95: “Determination of Weight Percent Elemental Metal in Coatings by X-Ray Diffraction” (approved July 1996).

  (9) SCAQMD Test Procedure: Spray Equipment Transfer Efficiency Test Procedure for Equipment User, approved May 24, 1989.

  (10) SCAQMD Guidelines for Demonstrating Equivalency with District Approved Transfer Efficient Spray Guns, September 26, 2002.

  (11) SCAQMD “General Test Method for Determining Solvent Losses from Spray Gun Cleaning Systems” (dated October 3, 1989).

  (12) U.S. EPA Technical Document: “Guidelines for Determining Capture Efficiency” (January 9, 1995).

  (13) 40 CFR 51, Appendix M: Methods 204-204f.

  (14) U.S EPA Reference Method 25: “Determination of Total Gaseous Nonmethane Organic Emissions as Carbon, (40 CFR 60 Subpart D, Appendix A).

  (15) U.S EPA Reference Method 25A: “Determination of Total Gaseous Organic Concentration Using a Flame Ionization Analyzer” (40 CFR 60 Subpart D, Appendix A).

  (16) U.S EPA Reference Method 25B, "Determination of Total Gaseous Organic Concentration Using a Nondispersive Infrared Analyzer” (40 CFR 60 Subpart D, Appendix A).

D. Applicability and Exemptions.

  (1) Except as provided in §D(2) of this regulation, the provisions of this regulation apply to a person who, on or after July 1, 2013:

    (a) Supplies, sells, offers for sale, or distributes an automotive coating or cleaning solvent for use within the State;

    (b) Manufactures an automotive coating or cleaning solvent for use within the State; or

    (c) Uses or applies an automotive coating or cleaning solvent within the State.

  (2) This regulation does not apply to the following products:

    (a) An automotive coating or cleaning solvent that is offered for sale, sold, or manufactured for:

      (i) Use outside of the State; or

      (ii) Shipment to other manufacturers for reformulation or repackaging;

    (b) An aerosol coating product;

    (c) An automotive coating that is sold, supplied, or offered for sale in 0.5 fluid ounce or smaller containers intended to be used by the general public to repair minor surface imperfections;

    (d) A coating applied to motor vehicles or mobile equipment or their associated parts and components during original equipment manufacture on an assembly line;

    (e) An automotive coating used in a surface coating process that is subject to Regulation .03 of this chapter; or

    (f) An automotive coating applied to motor vehicles or mobile equipment or their associated parts and components by a person who does not receive compensation for the application of the coating.

  (3) The application requirements specified in §G of this regulation do not apply to:

    (a) Graphics arts operations;

    (b) Use of less than one fluid ounce of a coating; or

    (c) The application of:

      (i) Underbody coatings; and

      (ii) Truck bed liner coatings.

E. General Requirements and Standards.

  (1) VOC Content Limits.

    (a) Except as provided in this regulation, effective July 1, 2013, a person who is subject to this regulation may not supply, sell, offer for sale, distribute, or manufacture for use within the State an automotive coating or cleaning solvent with a VOC content in excess of the corresponding limit specified in Table 1 of §E(1) or in §E(5) of this regulation.

    (b) A person may not use or apply to a motor vehicle, mobile equipment, or associated parts and components, an automotive coating or cleaning solvent for vehicle refinishing that exceeds the VOC content specified in Table 1 of §E(1) or in §E(5) of this regulation.

  (2) Calculation of VOC Content. For the purpose of determining compliance with the VOC content limits in §E(1) of this regulation, the VOC content of an automotive coating shall be determined by using the following procedures, as applicable:

    (a) For the VOC regulatory content for coatings, determine the VOC content in units of grams of VOC per liter of coating less water and exempt compounds using the following equation:

    (b) For the VOC actual content for coatings, determine the VOC content in units of grams of VOC per liter of coating including the volume of any water, exempt compounds and VOC solvent using the following equation:

    (c) For the VOC content for cleaning solvents, other than for bug and tar removal, determine the VOC content in units of grams of VOC per liter of solvent using the following equation:

  (3) Most Restrictive VOC Limit. If anywhere on the container of an automotive coating, label or sticker affixed to the container, or in any sales, advertising, or technical literature supplied by a manufacturer or anyone acting on behalf of a manufacturer, any representation is made that indicates that the coating meets the definition of or is recommended for use for more than one of the coating categories listed in §E(1) of this regulation, then the most restrictive VOC content limit applies.

  (4) Alternative Compliance.

    (a) A person subject to this regulation may achieve compliance with the requirements of this regulation through use of an emission control device that has been approved in writing by the Department which achieves an overall emission control efficiency of 85 percent or greater, as determined in accordance with §B(10) and (11) of this regulation.

    (b) The approved emission control device shall be maintained and used in proper working condition at all times.

    (c) A source is in violation if the measured VOC emissions, as measured by any of the test methods specified in §B(11)(a)—(c) of this regulation, exceed the standards specified in §E(4)(a)—(b) of this regulation.

    (d) A person subject to this regulation shall not manufacture, blend, repackage for sale, supply, sell, offer for sale, or distribute for use within the State an automotive coating with a VOC content in excess of the limits specified in Table 1 of §E(1) of this regulation unless the automotive coating is used exclusively within an emission control system approved under §E(4)(a)—(b) of this regulation.

  (5) VOC Content Limits for Cleaning Solvents.

    (a) A person may not use or apply to a motor vehicle, mobile equipment, or associated parts and components, a cleaning solvent other than for bug and tar removal with a VOC content greater than 25 grams per liter.

    (b) For cleaning solvents used for bug and tar removal, a person may not use or apply to a motor vehicle, mobile equipment, or associated part a bug and tar remover greater than 40 percent VOC by weight as set forth in COMAR 26.11.32.04B.

Table 1. VOC Content Limits for Automotive Coatings for —Motor Vehicle and Mobile Equipment Non-assembly Line — Refinishing and Recoating.

F. Prohibitions. A person may not possess the following at a non-assembly line motor vehicle or mobile equipment coating operation:

  (1) An automotive coating that is not in compliance with the VOC content limits specified in §E(1) of this regulation;

  (2) An automotive coating not for use with an approved emission control device; or

  (3) A cleaning solvent that does not meet the limits specified in §E(5) of this regulation.

G. Coating Application Methods.

  (1) Beginning July 1, 2013, a person may not apply an automotive coating subject to this regulation to a motor vehicle, mobile equipment, or associated parts and components unless one or more of the following application methods is used:

    (a) Flow or curtain coating;

    (b) Dip coating;

    (c) Roller coating;

    (d) Brush coating;

    (e) Cotton-tipped swab application;

    (f) Electrodeposition coating;

    (g) High volume-low pressure (HVLP) spraying;

    (h) Electrostatic spray;

    (i) Airless spray; or

    (j) An alternative spray equipment coating application method.

  (2) A person who uses an alternative spray equipment coating application method must demonstrate to the satisfaction of the Department that the transfer efficiency is equivalent to or higher than HVLP or electrostatic spray application methods using the spray equipment transfer efficiency methods under §B(7) and (8) of this regulation based on the following:

    (a) The manufacturer's published technical material on the design of the spray equipment; and

    (b) The operation of the spray equipment using an air pressure tip gauge from the manufacturer of the spray equipment.

  (3) The report of the demonstration shall be submitted in writing to the Department for approval.

  (4) An alternative spray coating application method, or an alternative coating application method other than spray application methods, that has been approved by CARB or a California air district for use in applying non-assembly line automotive coatings may also be approved to comply with this regulation, as applicable.

H. Work Practice Standards.

  (1) Spray guns used to apply automotive coating components or automotive coatings shall be cleaned by one or a combination of the following:

    (a) A fully enclosed spray gun cleaning system that is kept closed when not in use and is maintained in accordance with the requirements of §L(1)(a)—(c) of this regulation;

    (b) Unatomized discharge of solvent into a paint waste container that is kept closed when not in use;

    (c) Disassembly of the spray gun and cleaning in a vat that is kept closed when not in use; or

    (d) Atomized spray into a paint waste container that is filled with a device designed to capture atomized mist or spray solvent emissions.

  (2) The owner or operator of an automotive refinishing facility or non-assembly line operation subject to this regulation shall implement the following work practice standards and training measures:

    (a) Fresh and used automotive coating components, automotive coatings, solvents, and cleaning solvents shall be stored in vaportight, nonabsorbent, nonleaking containers that shall be kept closed at all times except when filling or emptying;

    (b) Cloth or paper, or absorbent applicators, moistened with automotive coatings components, automotive coatings, solvents, or cleaning solvents shall be stored in closed, vaportight, nonabsorbent, nonleaking containers;

    (c) Handling and transfer procedures to minimize spills during the transfer of automotive coating components, automotive coatings, solvents, and cleaning solvents; and

    (d) Ensure that a person who uses or applies automotive coating components, automotive coatings, solvents, or cleaning solvents has completed training in the proper use and handling of the automotive coating components, automotive coatings, solvents, and waste products in order to minimize the emission of air contaminants and to comply with the provisions of this regulation.

I. Compliance Procedures and Monitoring Requirements.

  (1) Compliance Statement Requirements.

    (a) For each automotive coating product or automotive coating component product, a manufacturer and repackager who is subject to the provisions of this regulation shall include the following information on product data sheets or an equivalent documentation:

      (i) The VOC actual content and VOC regulatory content, as supplied, for the coating product or coating component product, expressed in grams per liter, calculated in accordance with §E(2)(a)(i) and (ii) of this regulation;

      (ii) The weight percent of volatiles, water, and exempt compounds;

      (iii) The volume percent of water and exempt compounds; and

      (iv) The density of the material (in grams per liter).

    (b) For each ready to spray mixture (based on the manufacturer's and repackager's stated mix ratio) product, the manufacturer and repackager shall include the following information on product data sheets or an equivalent documentation:

      (i) The VOC actual content and the VOC regulatory content, as applied, for the coating product or coating component product, expressed in grams per liter;

      (ii) The weight percent of volatiles, water, and exempt compounds;

      (iii) The volume percent of water and exempt compounds; and

      (iv) The density of the material (in grams per liter).

    (c) The manufacturer and repackager of cleaning solvents subject to this regulation shall include the VOC content of the cleaning solvents as supplied, calculated in accordance with the requirements of §E(2)(a)(iii) of this regulation, expressed in grams per liter, on product data sheets or an equivalent documentation.

  (2) Container Labeling Requirements. The manufacturer and repackager of automotive coatings or automotive coating components shall include the following information on all containers or on a label affixed to the container:

    (a) The applicable use category or categories;

    (b) The VOC actual content of the coating or coating component, as supplied, calculated in accordance with the requirements of §E(2)(a)(ii of this regulation) and expressed in grams per liter;

    (c) The VOC regulatory content of the coating or coating component as supplied, calculated in accordance with the requirements of §E(2)(a)(i) of this regulation and expressed in grams per liter; and

    (d) The manufacturer and repackager of cleaning solvents subject to this rule shall include on all containers, or on a label affixed to the container, the VOC content for cleaning solvents, as supplied, calculated in accordance with the requirements of §E(2)(a)(iii of this regulation) and expressed in grams per liter.

J. Record Keeping.

  (1) Record-Keeping Requirements for Coatings, Coating Components and Solvents. A person who uses automotive coatings, automotive coating components, ready-to-spray coatings (based on the manufacturer's stated mix ratio), or cleaning solvents subject to this regulation shall maintain and have available at all times, the following:

    (a) A current list of all coatings, coating components and cleaning solvents used that are subject to this regulation which includes the following information for each coating, coating component and cleaning solvent:

      (i) Whether the material is a coating, coating component, or cleaning solvent;

      (ii) Coating, coating component or cleaning solvent name and manufacturer;

      (iii) Application method;

      (iv) Coating type;

      (v) The mix ratio specific to the coating, coating component or cleaning solvent; and

      (vi) The VOC actual content and VOC regulatory content as applied, for each ready to spray or ready to apply coating or cleaning solvent and copies of data sheets documenting how the as applied values were determined;

    (b) The VOC actual content and VOC regulatory content as supplied and copies of current manufacturer specification sheets, product data sheets, material safety data sheets, technical data sheets, or air quality data sheets documenting the as supplied value; and

    (c) Purchase records identifying the following;

      (i) The coating type;

      (ii) Coating, coating component, or cleaning solvent name; and

      (iii) Volume purchased of the coating, coating component or cleaning solvent.

  (2) Record-Keeping Requirements for Emission Control Systems. A person using an emission control system shall maintain daily records of the following key system operating parameters which demonstrate continuous operation and compliance of the emission control system during periods of VOC emission producing activities:

    (a) Temperatures;

    (b) Pressure drops; and

    (c) Air flow rates.

  (3) The records under this regulation shall be maintained for not less than 3 years and made available to the Department upon request.

K. Administrative Requirements.

  (1) Product Dating.

    (a) A manufacturer of an automotive coating subject to this regulation shall clearly display on each automotive coating container, on a label affixed to the container or on the package, the month and year on which the automotive coating was manufactured or code indicating that date.

    (b) A manufacturer who uses the following code to indicate the date of manufacture will not be subject to the requirements of §K(2)(b) of this regulation if the code is represented separately from other codes on the automotive coating container, label or package so that it is easily recognizable:

    (c) The product date or date-code specified in this regulation shall be displayed on each automotive coating container, label or package no later than 30 days before the automotive coating is supplied, sold, offered for sale or distributed in the State.

    (d) The date or date-code information shall be located on the automotive coating container, label or package so that it is readily observable without irreversibly disassembling a part of the container or packaging.

    (e) For the purposes of this section, information may be displayed on the bottom of a container if it is clearly legible without removing any product packaging.

    (f) The requirements of this section do not apply to automotive coatings containing no VOCs.

  YY DDD

  (2) Additional Product Dating Requirements.

    (a) If a manufacturer uses a code indicating the month and year of manufacture for an automotive coating subject to this regulation, an explanation of the code must be filed with the Department no later than 30 days before the automotive coating is supplied, sold, offered for sale or distributed in the State.

    (b) If a manufacturer changes a code indicating the month and year of manufacture for an automotive coating subject to §K(2)(a) of this regulation, an explanation of the modified code must be submitted to the Department before products displaying the modified code are supplied, sold, offered for sale or distributed in the State.

    (c) A person may not erase, alter, deface or otherwise remove or make illegible a date or code indicating the month and year of manufacture from a regulated product container without the express authorization of the manufacturer.

    (d) Date code explanations for codes indicating the month and year of manufacture are public information and may not be claimed as confidential.

  (3) Sell-Through of Products. An automotive coating, coating component or cleaning solvent subject to this regulation manufactured before July 1, 2013 may be supplied, sold, offered for sale, or distributed in the State if the product meets the following:

    (a) The automotive coating, coating component or cleaning solvent complied with the standards in effect at the time the product was manufactured; and

    (b) The automotive coating, coating component or cleaning solvent meets the product dating requirements of §K(1) of this regulation.

L. Testing Requirements.

  (1) Testing Requirements for Spray Gun Cleaning Systems.

    (a) Active and passive losses from the use of an enclosed spray gun cleaning system or equivalent cleaning system shall be determined in accordance with the test methods listed in §B(9) of this regulation.

    (b) The test solvent for this determination shall be a lacquer thinner with a minimum vapor pressure of 105 mm of mercury at 20ºC.

    (c) The minimum test temperature shall be 15ºC.

  (2) Alternative Test Methods. The use of other test methods which are determined to be equivalent or better and which are approved in writing by the Department and the Administrator of the U.S. EPA may be used in place of the test methods specified in this regulation.

#### Regulation .24 Control of VOC Emissions from Leather Coating.

*COMAR 26.11.19.24*

A. Applicability. This regulation applies to a person who owns or operates a leather coating operation at a premises with actual VOC emissions of 20 pounds or more per day from all leather coating operations at the premises.

B. Definition. In this regulation, “leather coating” means the application of a coating to leather or the impregnation of a coating into leather to beautify, protect, or give a finished appearance or quality to the leather.

C. VOC Emission Requirements.

  (1) Coating Standards. Except as provided in §C(2) of this regulation, a person subject to this regulation may not use any coating in leather coating that exceeds 3.5 pounds of VOC per gallon of coating applied minus water and exempt solvents.

  (2) Alternative Method of Compliance. A person subject to this regulation may achieve compliance with the requirements in §C(1) of this regulation by installing a control device that reduces total VOC emissions by 85 percent or more, overall.

D. Testing and Record Keeping.

  (1) Compliance Demonstration. A person subject to this regulation shall demonstrate compliance by one of the following methods:

    (a) If complying coatings are used to achieve compliance, submit to the Department by not later than September 1, 1997, a list of all coatings used, demonstrating compliance with §C(1) of this regulation; or

    (b) If a control device is used to achieve compliance, perform a stack test by not later than September 1, 1997, and every 3 years thereafter, demonstrating compliance with §C(2) of this regulation.

  (2) Reporting Requirements.

    (a) If complying coatings are used to achieve compliance, monthly records shall be maintained showing the total volume of each coating used and the total premises VOC emissions.

    (b) If a control device is used to achieve compliance, a report of the compliance test required by §D(1)(b) of this regulation shall be submitted to the Department not later than 60 days after the date that the test is completed.

    (c) Required records shall be maintained at the premises for a period of not less than 3 years and made available to the Department upon request.

#### Regulation .25 Control of Volatile Organic Compounds From Explosives and Propellant Manufacturing.

*COMAR 26.11.19.25*

A. Applicability.

  (1) This regulation applies to a person who owns or operates existing equipment at a premises that has a potential to emit 25 tons or more of VOC per year from all explosives and propellant manufacturing equipment at the premises.

  (2) Section C(2) of this regulation applies to a person who constructs, owns, or operates new equipment that has or will have total actual VOC emissions of 50 pounds or more per day.

B. Definitions. In this regulation, the following terms have the meaning indicated:

  (1) “Existing equipment” means explosives and propellant manufacturing equipment placed in operation before January 1, 1991.

  (2) “Explosives and propellant manufacturing equipment” means process equipment used to preheat, grind, mix, blend, cure, dry, cut, press, extrude, or cast materials to produce energetic materials such as rocket fuels and gun propellants.

  (3) “New equipment” means explosives and propellant manufacturing equipment placed in operation on or after January 1, 1991.

  (4) “Nitramine propellant manufacturing equipment” means explosives and propellant manufacturing equipment used to mix, blend, dry, cut, press, or otherwise manufacture nitramine-based propellants such as low vulnerability ammunition.

C. General Requirements.

  (1) A person who owns or operates existing explosives and propellant manufacturing equipment subject to this regulation shall:

    (a) Install a VOC control device, having a VOC destruction or removal efficiency of 85 percent or more overall, on all active nitramine propellant mixing equipment that has a capacity of 150 gallons or more;

    (b) Prepare and submit for approval by the Department by not later than September 1, 1997, a good operating practices manual that when implemented will minimize VOC emissions from all other existing explosive, propellant, and nitramine propellant manufacturing equipment; and

    (c) Implement the good operating practices within 30 days after approval by the Department.

  (2) A person who constructs, owns, or operates new equipment subject to this regulation shall reduce emissions from the new equipment by 85 percent or more, overall.

D. Reporting and Testing Requirements. A person subject to this regulation shall:

  (1) By not later than October 1, 1997, submit to the Department:

    (a) A VOC emissions inventory for calendar year 1990 and for each subsequent year through calendar year 1996 for all explosives and propellant manufacturing equipment at the premises, and

    (b) A complete permit to construct application for the control device required in §C(1)(a) of this regulation;

  (2) Not later than 90 days after the control device required in §C(1)(a) of this regulation has been installed, perform a stack test to demonstrate compliance with the requirements of §C of this regulation; and

  (3) Submit to the Department a stack test report within 60 days after completing the test.

#### Regulation .26 Control of Volatile Organic Compound Emissions from Reinforced Plastic Manufacturing.

*COMAR 26.11.19.26*

A. Applicability.

  (1) This regulation applies to reinforced plastic manufacturing at a premises where the total actual VOC emissions from all reinforced plastic manufacturing including tooling, touch-up, and repair is 20 pounds or more per day.

  (2) The requirements in this regulation do not apply to polyester resins used for tooling or touch-up and repair.

  (3) The requirements in this regulation do not apply to any fiberglass boat manufacturing facility as defined in Regulation .26-1B(5) of this chapter.

B. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Clean-up material” means any material used in reinforced plastic manufacturing to clean parts, tools, equipment, and work areas.

  (2) “Low styrene resin” means a polyester resin that has a monomer content of 35 percent or less by weight as applied.

  (3) “Monomer” means a low molecular weight organic compound that reacts with itself or other similar compounds to produce a polyester resin.

  (4) “Non-VOC cleanup material” means a material that is used to clean products, tools, process equipment, and other equipment used in the manufacture of reinforced plastic products and contains less than 5 percent VOC by weight or a material that has a VOC partial pressure not exceeding 0.74 pound per square inch.

  (5) “Polyester resin (resin)” means a mixture of true esters dissolved in a polymerizable monomer such as styrene.

  (6) “Reinforced plastic manufacturing” means the curing of polyester resins with fiberglass, inert fillers, or other reinforcement materials.

  (7) “Specialty resin” means a polyester resin used in special applications involving high strength, corrosion resistance, fire resistance, or gel coat.

  (8) “Tooling” means the production of molding tools such as shapes, matrixes, molds, or other instruments and utensils that are used during reinforced plastic manufacturing.

  (9) “Touch-up and repair” means small quantity use of polyester resin to repair minor surface damage or imperfections, where the total polyester resin used is less than 1 percent of the total quarterly polyester resin used as reported in §D(1) of this regulation.

C. Requirements.

  (1) Except as provided in §C(3) of this regulation, a person subject to this regulation with actual VOC emissions of 20 pounds or more per day shall use low styrene resins.

  (2) A person subject to this regulation with actual VOC emissions of 100 pounds or more per day shall also use an improved application method such as:

    (a) An airless or air-assisted airless spray gun;

    (b) A low pressure nozzle;

    (c) A pressure-fed roller or flow coater; or

    (d) Some other nonatomized resin application technique.

  (3) A person subject to this regulation who uses a specialty resin may not use a specialty resin with a monomer content exceeding 50 percent by weight as applied.

  (4) A person subject to this regulation shall use non-VOC cleanup materials.

D. Record Keeping.

  (1) A person subject to this regulation shall maintain records that provide the following information:

    (a) A description of each polyester resin material used; and

    (b) The total weight and VOC content of each polyester resin material used quarterly.

  (2) Records shall be maintained for not less than 3 years and made available to the Department upon request.

#### Regulation .26-1 Control of Volatile Organic Compound Emissions from Fiberglass Boat Manufacturing.

*COMAR 26.11.19.26-1*

A. Applicability.

  (1) This regulation applies to any fiberglass boat manufacturing facility where the total actual VOC emissions, before add-on controls, from all fiberglass boat manufacturing is 15 pounds or more per day as determined on a monthly average.

  (2) VOC emissions from polyester resins, tooling resins and gel coats, ancillary parts production, touch-up, clean-up, and repair are to be included in determining VOC emissions pursuant to §(A)(1) of this regulation.

B. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) Atomized Resin Application.

    (a) “Atomized resin application” means a resin application technology in which the resin leaves the application equipment and breaks into droplets or an aerosol as it travels from the application equipment to the surface of the part.

    (b) “Atomized resin application” includes, but is not limited to, resin spray guns and resin chopper spray guns.

  (2) Clear Gel Coat.

    (a) “Clear gel coat” means a gel coat that is clear or translucent such that underlying colors are visible.

    (b) “Clear gel coat” does not include tooling gel coats used to build or repair molds.

  (3) Closed Molding.

    (a) “Closed molding” means any molding process that has the following characteristics:

      (i) Pressure is used to distribute the resin through the reinforcing fabric placed between two mold surfaces to either saturate the fabric or fill the mold cavity; and

      (ii) Clamping pressure, fluid pressure, atmospheric pressure, or vacuum pressure are applied either alone or in combination.

    (b) “Closed molding” includes, but is not limited to, compression molding with sheet molding compound, infusion molding, resin injection molding (RIM), vacuum assisted resin transfer molding (VARTM), resin transfer molding (RTM), and vacuum assisted compression molding.

    (c) “Closed molding” does not include:

      (i) Processes in which a closed mold is used only to compact saturated fabric or remove air or excess resin from the fabric (such as in vacuum bagging); or

      (ii) Open molding steps such as application of a gel coat or skin coat layer by conventional open molding prior to a closed molding process.

  (4) “Fiberglass boat” means any type of vessel, other than a seaplane, that can be used for transportation on the water, in which either the hull or deck is built from a composite material consisting of a polyester resin or other thermosetting resin matrix reinforced with fiberglass (glass fibers), inert filler or other reinforcing materials such as fibers of carbon or aramid.

  (5) Fiberglass Boat Manufacturing Facility.

    (a) “Fiberglass boat manufacturing facility” means a facility that manufactures hulls or decks of fiberglass boats, assembles fiberglass boats from premanufactured hulls and decks, or builds molds to make hulls or decks of fiberglass boats.

    (b) “Fiberglass boat manufacturing facility” does not include a facility which:

      (i) Manufactures ancillary parts for fiberglass boats (such as hatches, seats, or lockers) or boat trailers; and

      (ii) Does not manufacture hulls or decks of fiberglass boats, assemble fiberglass boats from premanufactured hulls and decks, or build molds for fiberglass boat hulls or decks.

  (6) “Filled resin” means a resin to which an inert material has been added to change viscosity, density, shrinkage, or other physical properties.

  (7) “Gel coat” means a thermosetting resin surface coating containing styrene (Chemical Abstract Service (CAS No. 100–42–5) or methyl methacrylate (CAS No. 80–62–6) that:

    (a) Provides a cosmetic enhancement or improves resistance to degradation from exposure to the elements;

    (b) Does not contain any reinforcing fibers; and

    (c) Is applied directly to mold surfaces or to a finished laminate.

  (8) “Mold” means the cavity or surface into or on which gel coat, resin, and fibers are placed and from which finished fiberglass parts take their form.

  (9) “Monomer” means a low molecular weight organic compound that reacts with itself or other similar compounds to produce a polymer such as a polyester or vinylester resin.

  (10) Nonatomized Resin Application.

    (a) “Nonatomized resin application” means any application technology in which the resin is not broken into droplets or an aerosol as it travels from the application equipment to the surface of the part.

    (b) “Nonatomized resin application” includes, but is not limited to, flowcoaters, chopper flowcoaters, pressure fed resin rollers, resin impregnators, and hand application by paint brush or paint roller.

  (11) “Non-monomer” means any low molecular weight organic compound that does not react with itself or other similar compounds to produce a polymer and is assumed to be emitted fully as a VOC into the atmosphere.

  (12) “Non-VOC cleanup material” means a material that:

    (a) Is used to clean products, tools, process equipment, and other equipment used in the manufacture of fiberglass boats; and

    (b) Either contains less than 5 percent VOC by weight or has a VOC composite vapor pressure of no more than 0.5 millimeters of mercury at 68 degrees Fahrenheit.

  (13) Open Molding and Gel Coat Operations.

    (a) “Open molding and gel coat operation” means any process in which the reinforcing fibers and resin are placed in the mold and are open to the surrounding air while the reinforcing fibers are saturated with resin.

    (b) “Open molding and gel coat operation” includes operations in which a vacuum bag or similar cover is used to compress an uncured laminate to remove air bubbles or excess resin, or to achieve a bond between a core material and a laminate.

  (14) Pigmented Gel Coat.

    (a) “Pigmented gel coat” means an opaque gel coat.

    (b) “Pigmented gel coat” does not include tooling gel coats used to build or repair molds.

  (15) Production Resin.

    (a) “Production resin” means any resin used to manufacture parts for sale.

    (b) “Production resin” does not include tooling resins used to build or repair molds, or assembly adhesives.

  (16) “Pure, 100-percent, vinylester resin used for skin coats” means resins containing only vinylester resin and does not include any resin containing blends of vinylester and polyester resins.

  (17) “Resin and gel coat mixing operation” means any operation in which a resin or gel coat is combined with additives that include, but are not limited to, fillers, promoters, or catalysts, and includes operations making putties or polyputties used to assemble parts of fiberglass boats and to fill gaps between parts.

  (18) “Skin coat” means a layer of resin and fibers applied over a gel coat to protect the gel coat from being deformed by an additional laminate layer or layers.

  (19) “Tooling” means the production of molding tools such as shapes, matrixes, molds, or other instruments and utensils that are used during manufacturing of fiberglass boats.

  (20) “Tooling resin” means, for the purposes of §C(1) of this regulation, the resin used to build or repair molds (also known as tools) or prototypes (also known as plugs) from which molds will be made.

  (21) “Tooling gel coat” means, for the purposes of §C(1) of this regulation, the gel coat used to build or repair molds (also known as tools) or prototypes (also known as plugs) from which molds will be made.

  (22) “Total VOC Content (percent by weight)” means the sum of the monomer content (percent by weight) determined according to §D(1) of this regulation and of the weight percent of the non-monomer VOC determined by §D(3) of this regulation.

  (23) Vacuum Bagging.

    (a) “Vacuum bagging” means any molding technique in which the reinforcing fabric is saturated with resin and then covered with a flexible sheet that is sealed to the edge of the mold and where a vacuum is applied under the sheet to compress the laminate, remove excess resin, or remove trapped air from the laminate during curing.

    (b) “Vacuum bagging” does not include closed molding.

  (24) “Vinylester resin” means a thermosetting resin containing esters of acrylic or methacrylic acids and having double-bond and ester linkage sites only at the ends of the resin molecules.

C. Requirements.

  (1) A person who owns or operates a fiberglass boat manufacturing facility subject to this regulation shall:

    (a) Not cause or permit the discharge into the atmosphere of any VOC from resin and gel coat operations in excess of the following standards, except as provided in §C(3) of this regulation:

    (b) Notwithstanding §C(3)(a) and (b) of this regulation, use nonatomizing resin application equipment when applying production resins (including skin coat resins) pursuant to §C(3)(a) of this regulation, and pure, 100-percent vinylester resins pursuant to §C(3)(b) of this regulation.

    (c) Not cause or permit the discharge into the atmosphere of any VOC from any resin and gel coat mixing operation unless all mixing containers with a capacity equal to or greater than 208 liters (55 gallons), including those used for on-site mixing of putties and polyputties, have a cover with no visible gaps in place at all times except when material is being manually added to or removed from the container, or when mixing or pumping equipment is being placed in or removed from the container.

    (d) Only use non-VOC cleanup materials.

  (2) Alternative Compliance Option.

  (3) Exemptions. The standards in §C(1)(a) of this regulation do not apply to:

    (a) Production resins (including skin coat resins) that meet specifications for use in military vessels or must be approved by the U.S. Coast Guard for use in the construction of lifeboats, rescue boats, and other life-saving appliances approved under 46 CFR Chapter I, Subchapter Q, or the construction of small passenger vessels as regulated by 46 CFR Chapter I, Subchapter T;

    (b) Pure, 100-percent vinylester resins used for skin coats where the total quantity of such resins used is less than or equal to 5 percent by weight of all resin used at a fiberglass boat manufacturing facility on a 12-month rolling average basis, as reported in §E(5)—(7) of this regulation;

    (c) Production and tooling resins, and pigmented, clear, and tooling gel coats, which are used for touch up and repair of parts or molds and which are used in quantities less than or equal to 1 percent by weight of all resin used at a fiberglass boat manufacturing facility on a 12-month rolling average basis, as reported in §E(1) of this regulation;

    (d) Resins used in closed molding;

    (e) Polyester resins used for tooling or touch-up and repair during a manufacturing process that is not fiberglass boat manufacturing;

    (f) Coatings applied to fiberglass boats; and

    (g) Adhesives used in the assembly of fiberglass boats.

D. Test Methods and Compliance Procedures.

  (1) A person who owns or operates a fiberglass boat manufacturing facility subject to this regulation shall determine the monomer VOC content of any resin or gel coat applied at the facility using:

    (a) South Coast Air Quality Management District (SCAQMD) Method 312-91, Determination of Percent Monomer in Polyester Resins, revised April 1996; or

    (b) Manufacturer’s formulation data.

  (2) In the event of a conflict between the monomer VOC content of any resin or gel coat indicated by the manufacturer’s formulation data and the results of a test using the method referenced in §D(1)(a) of this regulation, the test results shall be used for the purpose of determining compliance with this regulation.

  (3) A person meeting the alternative emission rates in §C(2) of this regulation shall compute the as-applied monomer VOC emission rate for the filled production resin or tooling resin, in kilograms monomer VOC per megagram of filled material, using the following equation:

  (4) The monomer VOC emission rate for the neat (unfilled) resin, before filler is added, PVu, shall be calculated using the formulas in the following table:

  (5) A person meeting the alternative emission rates in §C(2) of this regulation shall demonstrate the as-applied non-monomer VOC content of resins and gel coats using the test method prescribed in COMAR 26.11.19.02D(1), and for this purpose, resins and gel coats shall be considered coatings .

  (6) For the purpose of demonstrating that a cleanup material is a non-VOC cleanup material, a person shall:

    (a) Perform a test using the method prescribed in COMAR 26.11.19.02D(1), where the cleanup material shall be considered a coating; and

    (b) Determine the composite vapor pressure of organic-compounds in a cleanup material using the calculation prescribed in COMAR 26.11.19.02E(3).

Where

E. Record Keeping. A person who owns or operates a fiberglass boat manufacturing facility subject to this regulation shall maintain for not less than 3 years, and shall make available to the Department upon request, records that provide the following information:

  (1) A description of each polyester or vinylester resin material used including:

    (a) The manufacturer’s name;

    (b) The type (e.g. production resin, production gel coat, tooling resin, tooling gel coat);

    (c) The amount of each of the polyester or vinylester resin materials used;

    (d) The weight (in percent) of monomer for each polyester resin materials and filler or fillers used;

    (e) The weight percent of VOC that is not monomer or the total weight percent of the VOC content; and

    (f) The type of application method used with each resin;

  (2) On a quarterly basis, the total weight and the monomer content and VOC content of each polyester and vinylester resin material;

  (3) On a quarterly basis, the total weight and the monomer content and VOC content of each polyester and vinylester resin material used under the exemption of §C(3)(a), of this regulation, including a description or identification (military specifications, 46 CFR Subchapter Q, or 46 CFR subchapter T) of the exemption;

  (4) On a monthly basis, the total weight, monomer content, and VOC content of each polyester and vinylester resin material used for closed molding under the exemption of §C(3)(d) of this regulation;

  (5) On a monthly basis, the total weight, monomer content, and VOC content of each pure,100-percent vinylester resin used under the exemption of §C(3)(b) of this regulation;

  (6) On a monthly basis, the total weight of all resins used;

  (7) On a monthly basis, the total weight of pure, 100-percent vinylester resins used under the exemption of §C(3)(b) of this regulation over the preceding 12 months divided by total weight of all resins used over the preceding 12 months;

  (8) On a daily basis, the total weight, monomer content, and VOC content of each resin used for touch up and repair of parts or molds under the exemption of §C(3)(c) of this regulation;

  (9) For filled resins for which compliance is demonstrated under alternative compliance option of §C(2) of this regulation:

    (a) The total weight and non-monomer VOC content of each polyester and vinylester resin material used; and

    (b) The monomer emission rate computed in accordance with §D(3) of this regulation in kg monomer VOC per megagram of filled resin as applied.

  (10) On a monthly basis, the total clean-up materials used.

#### Regulation .27 Control of Volatile Organic Compounds from Marine Vessel Coating Operations.

*COMAR 26.11.19.27*

A. Applicability. This regulation applies to marine vessel coating operations at a premises where the total potential to emit VOC emissions equals or exceeds 25 tons (22.75 metric tons) per year or actual emissions of 20 pounds (9 kilograms) per day from all marine vessel coating operations at the premises.

B. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Air flask coating” means a special composition coating applied to interior surfaces of high pressure breathing air flasks to provide corrosion resistance.

  (2) “Antenna coating” means a coating applied to equipment on a vessel through which electromagnetic signals must pass for reception or transmission.

  (3) “Antifoulant coating” means a coating that is:

    (a) Applied to the underwater portion of a vessel to prevent or reduce the attachment of biological organisms; and

    (b) Registered with the EPA as a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act.

  (4) “Chemical agent resistant coatings (CARC)” means an exterior topcoat applied to military or U.S. Coast Guard ships that are subject to specific chemical, biological, and radiological washdown requirements.

  (5) “Heat resistant coating” means a coating that during normal use must withstand a temperature of at least 204°C (400°F).

  (6) “High-gloss coating” means a coating that achieves at least 85 percent reflectance on a 60 degree meter when tested by ASTM Method D-523.

  (7) “High-temperature coating” means a coating that during normal use must withstand a temperature of at least 426°C (800°F).

  (8) “Inorganic zinc (high-build) coating” means a coating that contains 8 pounds (3.6 kilograms) or more elemental zinc incorporated into an inorganic silicate binder that is applied to steel to provide galvanic corrosion resistance.

  (9) “Marine vessel coating operation” means the application of coatings to a ship.

  (10) “Mist/tack coating” means a low viscosity, thin film, epoxy coating applied to but not limited to an inorganic zinc primer.

  (11) “Navigational aids coating” means a coating applied to Coast Guard buoys or other Coast Guard waterway markers.

  (12) “Nonskid coating” means a coating applied to the surfaces of a ship for the purpose of providing slip resistance.

  (13) “Nuclear coating” means a protective coating used to seal porous surfaces such as steel or concrete that otherwise would be subject to intrusion by radioactive materials.

  (14) “Organic zinc coating” means a coating derived from zinc dust incorporated into an organic binder, that:

    (a) Contains more than 8 pounds (3.6 kilograms) of elemental zinc per gallon of coating, as applied; and

    (b) Is used for the express purpose of corrosion protection.

  (15) “Pretreatment wash primer coating” means a coating that contains a minimum of 0.5 percent acid, by weight, and is applied only to bare metal to etch the surface and enhance adhesion of subsequent coatings.

  (16) “Rubber camouflage coating” means a specially formulated epoxy coating used as a camouflage topcoat for exterior submarine hulls and sonar domes.

  (17) “Sealant coating” means an epoxy coating applied over thermal spray aluminum surfaces.

  (18) Ship.

    (a) “Ship” means a marine vessel used for military or commercial operations, including self-propelled vessels, those propelled by other craft (barges), and navigational aids (buoys and markers).

    (b) “Ship” includes:

      (i) All military and Coast Guard vessels;

      (ii) Commercial cargo and passenger (cruise) ships;

      (iii) Ferries;

      (iv) Barges;

      (v) Tankers;

      (vi) Container ships;

      (vii) Patrol and pilot boats; and

      (viii) Dredges.

    (c) “Ship” does not include offshore oil and gas drilling platforms unless they are moved to an on-shore marine vessel coating operation.

  (19) “Special marking coating” means a coating that is used for safety or identification applications.

  (20) “Specialty interior coating” means a coating used on interior surfaces aboard U.S. military vessels pursuant to a coating specification that requires that the coating have specified fire retardant properties and a toxicity index of less than 0.03, in addition to the otherwise applicable military physical and performance requirements.

  (21) “Thermoplastic coating” means a vinyl, chlorinated rubber, acrylic, or bituminous resin coating that is used to recoat a vessel with the same type of coating as its existing coating.

  (22) “Undersea weapons systems coating” means a coating applied to any component of a weapons system intended to be launched or fired from under the sea.

  (23) “Weld-through (shop) preconstruction primer” means a coating which provides temporary corrosion protection for steel while it remains in inventory.

C. Coating Requirements.

  (1) Except as provided in §C(5) of this regulation, a person who owns or operates a marine vessel coating operation subject to this regulation may not apply a coating that exceeds the standards in §C(2), (3), and (4) of this regulation.

  (2) Coating Standards.

  (3) If a coating satisfies the definition of more than one category of coating listed in §C(2) of this regulation, then the coating is subject to the maximum VOC content for any applicable category.

  (4) Any other coating used in a marine vessel coating operation not listed in §C(2) of this regulation may not exceed a VOC content of 2.83 pounds per gallon (340 grams per liter), as applied.

  (5) A person who owns or operates a marine vessel coating operation subject to this regulation may apply a coating that exceeds the VOC content established in this regulation if:

    (a) The VOC content of the coating does not exceed the otherwise applicable standard in §C(2), (3), or (4) of this regulation by more than 20 percent; and

    (b) The coating exceeding the standards in §C(2), (3), or (4) of this regulation is used only during the period from November 1 of a year through March 31 of the following year.

D. Cleanup requirements. A person who owns or operates a marine vessel coating operation subject to this regulation shall take reasonable precautions to minimize the release of VOC into the atmosphere including:

  (1) Storing all waste materials containing VOC, including cloth and paper, in closed containers;

  (2) Maintaining lids on any VOC-bearing materials when not in use; and

  (3) Using enclosed containers or VOC recycling equipment to clean spray gun equipment.

E. Compliance with the requirements of this regulation shall be achieved using the test methods and procedures in Regulation .02 of this chapter.

F. Record Keeping.

  (1) A person who owns or operates a marine vessel coating operation subject to this regulation shall maintain the following records:

    (a) The monthly total volume and VOC content of each coating and coating solvent used that contain VOCs; and

    (b) The monthly total volume and VOC content of each cleanup solvent used that contains VOCs.

  (2) Records shall be retained for 3 years and be made available to the Department on request.

  (3) Compliance with the record-keeping requirements in §F(1) and (2) of this regulation constitutes compliance with Regulation .02F of this chapter.

#### Regulation .27-1 Control of Volatile Organic Compounds from Pleasure Craft Coating Operations.

*COMAR 26.11.19.27-1*

A. Applicability and Exemptions.

  (1) The requirements of this regulation apply to pleasure craft and fiberglass boat coating operations at a premises with actual VOC emissions of 15 pounds or more per day from coating operations as determined on a monthly average, on or after January 1, 2013.

  (2) The requirements of this regulation do not apply to:

    (a) Coatings applied using a hand-held, pressurized, nonrefillable container which expels coatings from the container in a finely divided spray when a valve on the container is depressed;

    (b) Coatings that are applied to:

      (i) Recoat portions of a product which has sustained mechanical damage to the coating following normal painting operation; or

      (ii) Cover minor coating imperfections appearing after the main coating operation; or

    (c) Coatings or resins applied during the manufacturing process.

B. Definitions.

  (1) In this regulation, the following terms have the meanings indicated.

  (2) Terms Define.

    (a) “Antifouling sealer/tiecoat” means a coating applied over a biocidal antifouling coating for the purpose of preventing the release of biocides into the environment or to promote adhesion between an existing antifouling coating and a primer or between an existing antifouling coating and other antifouling coatings.

    (b) “Extreme high gloss coating” means any coating which achieves at least 95 percent reflectance on a 60º meter when tested by ASTM Method D 523-89.

    (c) “Fiberglass boat” means any type of vessel, other than a seaplane, that can be used for transportation on the water, in which either the hull or deck is built from a composite material consisting of a polyester resin or other thermosetting resin matrix reinforced with fiberglass (glass fibers), inert filler, or other reinforcing materials such as fibers of carbon, aramid, or other material.

    (d) “Finish primer/surfacer” means a coating applied with a wet film thickness of less than 10 mils prior to the application of a topcoat for purposes of providing corrosion resistance, adhesion of subsequent coatings, or a moisture barrier, or promoting a uniform surface necessary for filling in surface imperfections.

    (e) “High build primer/surfacer” means a coating applied with a wet film thickness of 10 mils or more prior to the application of a topcoat for purposes of providing corrosion resistance, adhesion of subsequent coatings, or a moisture barrier, or promoting a uniform surface necessary for filling in surface imperfections.

    (f) “Pleasure craft” means vessels which are manufactured or operated primarily for recreational purposes, or leased, rented, or chartered to a person or business for recreational purposes.

    (g) “Pleasure craft coating” means any parts and products coating, except unsaturated polyester resin (fiberglass) coatings, applied by brush, spray, roller, or other means to a pleasure craft.

    (h) “Pretreatment wash primer” means a coating which contains no more than 25 percent solids by weight and at least 0.1 percent acids by weight, is used to provide surface etching, and is applied directly to fiberglass and metal surfaces to provide corrosion resistance and adhesion of subsequent coatings.

  (3) All definitions provided in COMAR 26.11.19.27B also apply in this regulation except for those definitions specifically provided in §B(2) of this regulation.

C. Incorporation by Reference. The document ASTM Designation: ASTM Method D 523-89, Standard Test Method for Specular Gloss, which is incorporated by reference in COMAR 26.11.33.02B, shall be followed when complying with this regulation.

D. Pleasure Craft Coating Standards (Expressed in Terms of Mass of VOC per Volume of Coating Excluding Water and Exempt Compounds, as Applied).

E. If more than one emission limitation in §D of this regulation applies to a specific coating, the least stringent emission limitation is applicable.

F. Application Methods. A person subject to the requirements of this regulation shall use the following application methods, except for the application of Extreme high gloss coating:

  (1) Electrostatic application;

  (2) HVLP spray;

  (3) Flow coat;

  (4) Roller coat;

  (5) Dip coat including electrodeposition;

  (6) Brush coat;

  (7) Airless spray;

  (8) Air-assisted airless spray; or

  (9) Other coating application method capable of achieving a transfer efficiency equivalent or better than that achieved by HVLP spraying.

#### Regulation .28 Control of Volatile Organic Compounds from Bread and Snack Food Drying Operations.

*COMAR 26.11.19.28*

A. Applicability. This regulation applies to a person who owns or operates a bread drying operation.

B. Definitions.

  (1) In this regulation, the following terms have the meanings indicated.

  (2) Terms Defined.

    (a) “Bread and snack food drying operation (bread drying operation)” means a drying process that reduces the moisture content of bakery and confectionary waste in preparation for its further use.

    (b) “Scrubber system” means a control device that strips VOC from the exhaust gases of a bread drying operation by means of direct contact between the effluent gases and the scrubbing medium.

C. General Requirements.

  (1) A person who owns or operates a bread drying operation that has a potential to emit VOC emissions of 25 tons or more per year may not cause or allow VOC emissions into the atmosphere unless the bread drying operation is equipped with:

    (a) A scrubber system that has an overall VOC reduction efficiency of 85 percent or greater; or

    (b) An alternative control device approved by the Department that will reduce VOC emissions overall by 85 percent or greater.

  (2) A person who installs a scrubber system shall:

    (a) Equip the scrubber system with a water flow meter to continuously measure and record the water flow to the scrubber system;

    (b) Measure and record the water flow rate when performing a compliance stack test conducted in accordance with §E of this regulation;

    (c) Submit the water flow rate information to the Department for approval as part of the stack test report; and

    (d) Maintain the water flow rate approved by the Department at all times when the bread drying operation is in use.

  (3) A variation of 10 percent or more of the approved water flow rate constitutes a violation of §C(1) of this regulation unless a different water flow rate is approved by the Department.

  (4) The Department may adjust the approved water flow rate based on future stack test results performed in accordance with §E of this regulation.

  (5) The Department will approve a different water flow rate if it is demonstrated to the satisfaction of the Department that the different water flow rate will reduce VOC emissions by at least 85 percent overall.

D. Alternative Control Devices.

  (1) A person who installs an alternative control device shall measure and record the process conditions when performing a compliance stack test and submit that information to the Department as part of the stack test report.

  (2) If an alternative control device is used, the process conditions reported during a compliance stack test shall be included as conditions to the source's permit to operate.

E. Testing Requirements. A person who owns or operates a bread drying operation subject to the requirements in §C(1) of this regulation shall:

  (1) Demonstrate compliance by performing an initial stack test within 120 days of installing an emission control system unless the Department approves a different date;

  (2) Perform additional compliance demonstration stack tests at least once every 5 years after the initial compliance test unless the Department approves a different frequency; and

  (3) Submit stack test reports to the Department within 60 days following completion of each test.

F. Monitoring and Records.

  (1) A person who installs a scrubber system or an alternative control device on a bread drying operation shall continuously monitor and record the water flow rate to the scrubber system or the process conditions approved by the Department and included in the source's permit to operate.

  (2) A person who owns or operates a bread drying operation shall maintain the following monthly records:

    (a) The types and input rates for all materials processed; and

    (b) The estimated monthly VOC emissions.

  (3) All records required under this regulation shall be maintained for at least 5 years and be made available to the Department upon request.

#### Regulation .29 Control of Volatile Organic Compounds From Distilled Spirits Facilities.

*COMAR 26.11.19.29*

A. Applicability. This regulation applies to a person who owns or operates a distilled spirits facility that has a total potential to emit VOCs of 25 tons or more per year.

B. Definitions.

  (1) In this regulation, the following terms have the meaning indicated.

  (2) Terms Defined.

    (a) “Aging warehouse” means a building in which distilled spirits are aged in barrels before being bottled and packaged for distribution.

    (b) “Automated filling system” means an automated bottle filling system that minimizes fugitive VOC emissions by rapidly filling individual containers with the assistance of gravity and creating a vacuum or pressure during the bottling operation.

    (c) “Bottling operation” means an automated process by which empty bottles are filled with distilled spirits and sealed.

    (d) Distilled Spirits.

      (i) “Distilled spirits” means an alcoholic beverage such as rum, gin, vodka, bourbon, or whiskey.

      (ii) “Distilled spirits” does not include beer or ale.

    (e) “Distilled spirits facility” means a process where unaged distilled spirits are received in bulk, adjusted to a designated proof, pumped into barrels, stored in an aging warehouse, bottled, and packaged.

C. General Requirements.

  (1) A person who owns or operates a distilled spirits facility subject to this regulation shall:

    (a) Empty barrels using a pump-operated, bayonet-type suction device, or comparably effective device that minimizes VOC evaporative losses when emptying barrels;

    (b) Drain distilled spirits from filter plates that are located between the barrel unloading and storage tanks to either a recycling tank or to an enclosed collection system; and

    (c) Use a gravity and vacuum or pressure filling system or comparably effective system to minimize fugitive emissions from the bottling operations.

  (2) During the warmer weather, used barrels that are stored in the outdoors awaiting disposal shall be periodically (at least weekly) wetted down to reduce potential leakage and fugitive emissions.

D. Control of Other Fugitive Emission Sources.

  (1) A person who owns or operates a distilled spirits facility subject to this regulation shall submit to the Department for approval a good operating practices manual to minimize fugitive VOC emissions from the aging warehouse and other operations that are not subject to §D of this regulation.

  (2) The good operating practices manual shall be submitted to the Department not later than April 30, 2001, and shall be implemented not later than 60 days after approval by the Department.

  (3) Following implementation of the approved good operating practices, a report shall be submitted to the Department which includes the following information:

    (a) An identification of the sources of fugitive emissions at which good operating practices will be implemented;

    (b) A description of a method used to estimate emissions and estimated annual emissions for each source of fugitive emissions identified; and

    (c) A description of the method used to estimate the emission reduction resulting from implementing good operating practices and an estimate of the annual reductions achieved.

  (4) The report required in §D(3) of this regulation shall include emissions and emission reduction estimates for calendar year 2001 and shall be submitted to the Department by April 1, 2002.

#### Regulation .30 Control of Volatile Organic Compounds from Chemical Production and Fluoropolymer Material Installations.

*COMAR 26.11.19.30*

A. Definitions. In this regulation, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Back-up control device” means a control device that is used when the primary control device is not available for use.

  (2) “Chemical intermediate” means a synthesized chemical that is further processed to produce a final chemical product.

  (3) “Control device” means equipment that is used primarily to destroy or reduce VOC emissions before they are discharged into the atmosphere.

  (4) “Dipping trough” means a component of an FPM shaping and forming process consisting of a shallow pan containing VOC that is used to maintain flexibility of the FPM product.

  (5) “Fluoropolymer material (FPM)” means an inert fluorinated chemical that includes polytetrafluoroethylene or similar materials and is processed with other materials to produce products that are temperature resistant, chemically inert, and weather durable.

  (6) “FPM coating installation” means an installation that applies a coating to FPM or an FPM product.

  (7) FPM Process Installation.

    (a) “FPM process installation” means an installation that treats FPM so that its shape or form is permanently changed and that results in VOC emissions into the air.

    (b) “FPM process installation” does not include an FPM coating installation.

  (8) Inorganic Chemical Production Installation.

    (a) “Inorganic chemical production installation” means process equipment used for the production of inorganic chemicals when associated with drying or product treatment equipment that involves the use of VOCs.

    (b) “Inorganic chemical production installation” does not include an FPM installation.

  (9) “Organic chemical production installation” means process equipment that operates independently or in combination with other equipment including reactors, distillation columns, evaporators, strippers and other similar chemical processing equipment to produce a single chemical intermediate or final product.

  (10) Product Condenser.

    (a) “Product condenser” means chemical processing equipment that is used to condense process vapors and return the condensate to the process for the primary purpose of maintaining process conditions, product quality, safe operations, or economic benefit.

    (b) A “product condenser” that is part of an organic chemical production installation or inorganic chemical production installation is not considered a control device.

  (11) “Total actual uncontrolled VOC emissions” means the actual VOC emissions from an installation or the VOC emissions from an installation without considering controls.

C. Applicability.

  (1) Section D of this regulation applies to a person who owns or operates an organic chemical production installation or an inorganic chemical production installation at a premises that, on any day, has actual uncontrolled VOC emissions of 20 pounds or more per day.

  (2) A person who owns or operates an installation subject to the requirements in this regulation is not, for that installation, subject to any other regulation included under:

    (a) This chapter, except Regulations .01, .02, and .16 of this chapter;

    (b) COMAR 26.11.35, if monthly records are maintained to demonstrate that VOC emissions from:

      (i) The application of all adhesives, sealants, adhesive primers, and sealant primers do not exceed 400 pounds per year; and

      (ii) Adhesive manufacturing do not exceed 200 pounds per year.

  (3) Section E of this regulation applies to a person who owns or operates an FPM process installation or FPM coating installation that, on any day, has total actual uncontrolled VOC emissions of 20 pounds or more.

D. General Requirements for Organic Chemical Production Installations and Inorganic Chemical Production Installations.

  (1) A person who owns or operates an organic chemical production installation or an inorganic chemical production installation at a premises that has total uncontrolled VOC emissions of 100 pounds or more per day shall duct each process vent and exhaust line from any installation with actual emissions of 20 pounds or more per day into a control device that has a VOC destruction or removal efficiency of at least 90 percent, overall.

  (2) A person who owns or operates an organic chemical production installation or an inorganic chemical production installation at a premises that has total uncontrolled VOC emissions of 20 pounds or more per day, but less than 100 pounds per day, shall prepare a manual that identifies good operating practices and procedures that are designed to minimize emissions of VOC from the premises.

  (3) The good operating practices and procedures required in §D(2) of this regulation shall be implemented by March 30, 2002, and made available to the Department upon request.

  (4) A person who owns or operates an organic chemical production installation and complies with §D(1) of this regulation and later cannot achieve compliance because of an unavoidable outage or malfunction of the primary control device shall either:

    (a) Discontinue operation until the primary control device is returned to proper service; or

    (b) Use a back-up control device that is approved by the Department.

  (5) The back-up control device under §D(4)(b) of this regulation may not be used more than 10 percent of the annual operating time of the affected installation during any calendar year unless a longer period is approved by the Department.

E. General Requirements for FPM Process Installations.

  (1) A person who owns or operates an FPM process installation that has actual uncontrolled VOC emissions of 50 pounds or more per day shall vent the emissions into a thermal oxidizer system or other control method approved by the Department to destroy or reduce VOC emissions by 85 percent or more, overall.

  (2) If a thermal oxidizer is installed, the oxidizer combustion chamber shall be:

    (a) Operated at a minimum combustion chamber temperature of 1400°F or other temperature approved by the Department that is demonstrated to achieve compliance with this regulation;

    (b) Equipped with a continuous temperature monitor to record the oxidizer temperature; and

    (c) Equipped with an alarm system that alerts the operator when the oxidizer combustion chamber temperature is less than the approved temperature; and

    (d) Equipped with an interlock system that prevents operation of the FPM installation unless the approved control system is operating.

  (3) If a source uses an alternative control method approved by the Department, the alternative control method shall be monitored as required by the Department.

  (4) Equipment that is installed for the purpose of treating emissions or monitoring shall be operated, maintained, and as applicable, calibrated in accordance with the equipment vendor's specifications.

  (5) A person who owns or operates an FPM compounding and tape or shape-forming installation shall minimize fugitive emissions of VOC by:

    (a) Immediately enclosing all wet FPM during storage; and

    (b) Covering dipping troughs when not in operation.

  (6) A person who owns or operates an FPM coating installation that has actual uncontrolled VOC emissions of 20 pounds or more per day may not use a coating that has a VOC content exceeding 2.9 pounds per gallon unless the installation is equipped with a control device that meets the requirements in §E(2), (3), and (4) of this regulation.

F. Demonstration of Compliance. Compliance with this regulation shall be demonstrated using the applicable VOC test methods specified in COMAR 26.11.01.04C or other test method approved by the Department.

#### Regulation .31 Control of Volatile Organic Compounds from Medical Device Manufacturing.

*COMAR 26.11.19.31*

A. Definitions. In this regulation, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Biopassive coating” means a coating applied to a product to reduce blood coagulation.

  (2) “Fixed needle syringe process” means insulin syringe assembly process with silicone and glue application, barrel printing, and drying.

  (3) “Hypodermic needle process” means a standard syringe assembly process with silicone and glue application, barrel printing, and drying.

  (4) “Medical device” means a device intended for use:

    (a) In the diagnosis of disease or other conditions; or

    (b) In the cure, mitigation, treatment, or prevention of disease.

  (5) “Medical device manufacturing installation” means a process or operation that causes VOC emissions during the manufacture of medical devices.

C. Applicability.

  (1) This regulation applies to a person who owns or operates a medical device manufacturing installation at a premises that emits, or has the potential to emit, 100 pounds or more per day of VOC emissions from all medical device manufacturing installations.

  (2) Except as provided in §C(3) of this regulation, a person that owns or operates an installation subject to the requirements of this regulation is not, for that installation, subject to any other provisions of this chapter.

  (3) A person subject to the requirements of this regulation also is subject to Regulations .01, .02, and .16 of this chapter.

D. VOC Control Requirements. A person who is subject to this regulation shall:

  (1) Do all of the following:

    (a) Provide and maintain appropriately designed VOC impermeable covers on dip pots used for manual bonding operations when not in use;

    (b) Upon request of the Department, participate in the evaluation of new or innovative designs or VOC material substitutions to minimize the use of solvent bonds for medical device manufacturing;

    (c) Use an enclosed system to apply biopassive coating to fully assembled medical devices;

    (d) Apply biopassive coating to individual medical device components only when it is not feasible to coat medical devices in assembled form; and

    (e) Use a solvent chiller system to chill solvent to 50F or less prior to use in steel cannula coating to minimize VOC emissions on the following:

      (i) Fixed needle syringe processes; and

      (ii) Hypodermic needle processes; or

  (2) Use a Department approved alternative method of compliance or alternative control technology that achieves an equivalent or better level of VOC control.

E. Before coating individual components under §D(1)(d) of this regulation, a person subject to this regulation shall submit to the Department for review and approval, a report documenting the technical and economic justification for coating components individually.

F. Before using an alternative method of compliance or control technology, a person subject to this regulation shall submit a proposal to use such alternative method of compliance or control technology to the Department for review and approval.

#### Regulation .32 Control of Volatile Organic Compounds (VOCs) from Wood Coating Operations.

*COMAR 26.11.19.32*

A. Definitions. In this regulation the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Basecoat” means a coat of colored material, usually opaque, that is applied before graining inks, glazing coats, or other opaque finishing materials, and is usually top-coated for protection.

  (2) Clear Topcoat.

    (a) “Clear topcoat” means the final coating which contains binders but not opaque pigments and which is specifically formulated to form a transparent solid protective film on wood substrates.

    (b) “Clear topcoat” includes clear brushing lacquers, clear lacquers, sanding sealers, and varnishes.

  (3) “Conversion varnish” means a clear acid curing coating with an alkyd or other resin blended with amino resins, which:

    (a) Is supplied as a single component or two-component product designed for professional application to wood flooring to produce a hard, durable, clear finish; and

    (b) Results in a film formation from an acid-catalyzed condensation reaction, affecting a trans-etherification at the reactive ethers of the amino resins.

  (4) “Daily weighted average” means the volume-weighted VOC content, expressed in grams VOC per liter (or pounds VOC per gallon) of all coatings, less water and exempt compounds, as applied on a given day.

  (5) “Exempt compound” means a compound identified as exempt under the definition of volatile organic compound (VOC) under COMAR 26.11.01.01B.

  (6) “Filler” means a preparation used to fill in cracks, grains, and imperfections of wood before applying a coating.

  (7) “Paint remover or stripper” means a product designed to strip or remove paints or other related coatings, by chemical action, from a substrate without markedly affecting the substrate.

  (8) Pigmented Coating.

    (a) “Pigmented coating” means opaque coatings that contain binders and colored pigments.

    (b) “Pigmented coating” includes opaque coatings that are formulated to conceal the wood surface either as an undercoat or a topcoat.

  (9) “Primer” means a coating labeled and formulated for application to a substrate to provide a firm bind between the substrate and subsequent coats.

  (10) “Sealer” means coatings containing binders that seal a wood surface prior to application of subsequent coatings.

  (11) “Stain” means a clear, semi-transparent, or opaque coating labeled and formulated to change the color of a surface, but not conceal the grain pattern or texture.

  (12) “Topcoat” means the last film-building finishing material that is applied in a finishing system.

  (13) “Washcoat” means a coating containing not more than 1 pound of solids per gallon designed to seal wood surfaces, prevent undesired staining, and control penetration.

  (14) Wood Coating Operation.

    (a) “Wood coating operation” means an operation used to coat any product made of wood, a wood product such as rattan or wicker, or an engineered wood product such as particleboard.

    (b) “Wood coating operation” does not include residential noncommercial operations and flat wood paneling coating subject to Regulation .33 of this chapter.

C. Applicability. The requirements of this regulation apply to a person that owns or operates a wood coating operation with actual VOC emissions of 20 pounds or more per operating day from all wood coating operations at the premises determined on a monthly average.

D. General Requirements.

  (1) Spray Gun Application. A person subject to this regulation that applies a coating with a spray gun shall use a high volume-low pressure (HVLP) spray gun or other high efficiency application method approved by the Department.

  (2) Alternative Compliance Method. A person subject to this regulation may achieve compliance with the requirements of this regulation through use of a control device that reduces emissions from the wood coating operation by not less than 90 percent overall.

E. VOC Content Limits.

  (1) A person subject to this regulation shall meet the VOC content limits for coatings described in Table 1:

  (2) Daily Weighted Average Option. A person may demonstrate compliance by showing that the daily weighted average VOC of all compliant and noncompliant coatings used is equal to or less than 398 grams per liter (3.3 pounds per gallon).

  (3) A person subject to this regulation shall meet the VOC content limits for non-coating materials described in Table 2:

F. Record Keeping Requirements.

  (1) A person subject to this regulation shall maintain a monthly record of:

    (a) The quantity of all coatings and materials used (liters); and

    (b) Material data sheets, material lists, container labeling or records sufficient to show the VOC content of all coatings and materials used.

  (2) A person demonstrating compliance using the daily weighted average of coatings as provided in §E(2) of this regulation shall maintain records sufficient to show daily compliance.

  (3) Records shall be maintained for at least 2 years and made available to the Department upon request.

#### Regulation .33 Control of Volatile Organic Compounds (VOCs) Emissions from Flat Wood Paneling Coatings.

*COMAR 26.11.19.33*

A. Definitions.

  (1) In this regulation, the following terms have the meanings indicated.

  (2) Terms Defined.

    (a) “Class II finishes on hardboard panels” means finishes on panels that:

      (i) Are manufactured primarily from inter-felted lignocellulosic fibers that are consolidated under heat and pressure in hot-press; and

      (ii) Meet the specifications of the American National Standard, ANSI A135.5-2004, Prefinished Hardboard Paneling, as approved by the American National Standards Institute (ANSI).

    (b) “Exterior siding” means flat wood paneling intended for use in commercial or residential construction, generally as a covering for an outside wall.

    (c) “Flat wood paneling” means any interior or exterior siding or paneling manufactured with wood, plywood, particleboard, tileboard, or waferboard that is used in residential and commercial construction.

    (d) “Hardwood plywood” means plywood whose surface layer is a veneer of hardwood.

    (e) “Natural finish hardwood plywood panels” means hardwood plywood panels whose original grain pattern is enhanced by essentially transparent finishes frequently supplemented by fillers and toners.

    (f) “Printed interior panels” means panels whose grain or natural surface is obscured by fillers and basecoats, upon which a simulated grain or decorative pattern is printed.

    (g) “Thin particleboard” means a manufactured board that has a thickness of 1/4 inch (0.64 cm) or less made of individual wood particles that have been coated with a binder and formed into flat sheets by pressure.

    (h) “Tileboard” means paneling that meets the specifications for Class I hardboard established by American National Standard, ANSI A135.4-2004, Basic Hardboard, as approved by the ANSI.

B. Incorporation by Reference. In this regulation the following documents are incorporated by reference:

  (1) ANSI A135.5-2004, Prefinished Hardwood Paneling (approved March 11, 2004).

  (2) ANSI A135.4-2004, Basic Hardboard (approved March 11, 2004).

C. Applicability. Coatings applied to stationary structures or their appurtenances or portable buildings at the site of installation are exempt from this regulation.

D. Requirements for Flat Wood Paneling Coating. A person who applies flat wood paneling coatings, including inks and adhesives, where total precontrol VOC emissions from all flat wood paneling coating operations at a premises is 15 pounds or more per day (6.8 kg/day) shall meet the coating standards or overall control efficiency specified in the following table:

### Chapter 20 — Mobile Sources

**Authority:** Environment Article, §§2-102, 2-103, and 2-301, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1980 (7:12 Md. R. 1148)

**Administrative History:** For the history of this subtitle before June 18, 1980, see the Administrative History of COMAR 26.11.01.

**Administrative History:** Regulation .01 recodified as Regulation .06 and new Regulations .01 and .03—.05 adopted effective November 19, 1983 (10:20 Md. R. 1786)

**Administrative History:** Chapter recodified from COMAR 10.18.22 to COMAR 26.11.20

**Administrative History:** Regulations .01, .03, and .04 amended as an emergency provision effective January 25, 1989 (16:3 Md. R. 338); emergency status expired June 26, 1989

**Administrative History:** Regulations .01 and .03—.05 repealed and Regulations .02 and .06 recodified as Regulations .01 and .02 effective June 26, 1989 (16:10 Md. R. 1110)

**Administrative History:** Regulation .02 repealed and new Regulation .02 adopted effective February 7, 2022 (49:3 Md. R. 139)

**Administrative History:** Regulation .02A, C amended effective January 9, 2023 (49:27 Md. R. 1111)

**Administrative History:** Regulation .02F repealed effective March 30, 2026 (53:6 Md. R. 293)

**Administrative History:** Regulation .03 adopted effective October 26, 1992 (19:22 Md. R. 1991 and 19:21 Md. R. 1894)

**Administrative History:** Regulation .04 adopted effective March 22, 1999 (26:6 Md. R. 488)

**Administrative History:** Regulation .05 adopted effective July 10, 2000 (27:13 Md. R. 1212)

**Administrative History:** Regulation .06 adopted effective December 10, 2001 (28:24 Md. R. 2132)

**Administrative History:** Regulation .06D amended effective May 9, 2005 (32:9 Md. R. 850)

#### Regulation .01 Visible Emissions from Ships.

*COMAR 26.11.20.01*

A person or agent may not cause or permit the discharge of emissions from any ship in excess of the following limits:

Operating Mode
            Chart Number
            Allowable Time
          
        
        
          
            A. Underway, at berth, or at anchor
            20%—1
            No limit.
          
          
            B. Soot blowing:  (1) Underway within 1 mile (1.6 kilometer) of any shore
            —
            No soot blowing allowed.
          
          
            (2) At berth or anchor:   (a) Within first or last 24 hours of arrival or departure
            —
            No soot blowing allowed.
          
          
            (b) Any other 24-hour period
            No limit.
            15 minutes for each boiler in operation provided that no nuisance is created.
          
          
            C. Cleaning and adjusting of combustion equipment while at berth or anchor
            40%—2
            Not to aggregate more than 4 minutes in any 60-minute period.
          
          
            D. Start-up of cold boiler or engine
            No limit
            5 consecutive minutes.
          
          
            
            60%—3
            10 consecutive minutes additional.
          
          
            E. Anchoring, berthing, or other maneuvering requiring rapid changes in power
            80%—4
            No limit.
          
          
            F. Upset/breakdown/emergency casualty or Coast Guard safety tests
            No limit
            No limit. The control officer shall be notified as to the reason for the excessive emissions.
          
          
            G. Docktrials of new or rebuilt boilers or engines
            No limit
            No limit provided a nuisance is not created and the control officer has been notified before 3 p.m. the day before the docktrials are to be conducted.

#### Regulation .02 Motor Vehicle Emission Control Devices.

*COMAR 26.11.20.02*

A. Definitions.

  (1) “Air pollution control system” means any device or element of design installed on or in a motor vehicle or motor vehicle engine in order to comply with pollutant emission restrictions established for the motor vehicle or motor vehicle engine by federal or State statute or regulation.

  (2) “Gross vehicle weight rating (GVWR)” means the value specified by the manufacturer as the maximum loaded weight of a single or combination vehicle.

  (3) “Motor vehicle" means any self-propelled vehicle powered by an internal combustion engine and designed for use on public roads, such as automobiles, trucks, and buses.

  (4) “Tamper” means to remove, alter, or otherwise render inoperative an air pollution control system.

  (5) “Wholesale” means a transaction in which a vehicle is purchased for resale by a non-retail purchaser.

B. Applicability. The provisions of this regulation apply to all motor vehicles, except as listed in §C of this regulation.

C. Exemptions.

  (1) This regulation does not apply to:

    (a) The offering for sale, sale, or transfer, by a dealer, as that term has the meaning stated in the Transportation Article, §11-111, Annotated Code of Maryland, of a new motor vehicle that has never been registered for use;

    (b) The sale or transfer of a motor vehicle for the sole purpose of scrapping, dismantling, destroying, or any similar activity, if sufficient documentation and proof is provided to the Department’s satisfaction within 30 days of sale or transfer;

    (c) A vehicle that has been issued a certificate of salvage by the Maryland Motor Vehicle Administration, or a similar ownership document from within Maryland or another state as approved by the Department, that establishes a motor vehicle will not be operated on public roads;

    (d) The offering for sale, sale, or transfer of a motor vehicle by auction where  the auctioneer or facilitating auction is acting on behalf of a seller, secured party, or owner where  the title does not pass to the auctioneer or to the facilitating auction location;

    (e) The offering for sale, sale or transfer of a motor vehicle by an insured or claimant to an insurer;

    (f) Vehicles manufactured without emissions systems;

    (g) Motorcycles; or

    (h) Vehicles sold at wholesale.

  (2) This regulation does not prevent the service or repair of any air pollution control system.

D. Anti-Tampering Prohibitions.

  (1) A person may not tamper with any air pollution control system on a motor vehicle or on a motor vehicle engine.

  (2) A person may not operate a motor vehicle originally equipped with an air pollution control system unless that system is in place and in operating condition.

  (3) A person may not manufacture, offer for sale, sell, install or use a device that prevents any air pollution control system from functioning as designed by the original manufacturer.

  (4) A person may not offer for sale, lease, sell, auction, or transfer a motor vehicle with an air pollution control system that has been tampered with or removed or is otherwise not functional as designed by the original manufacturer.

E. Compliance Inspections.

  (1) The Department or its agents have the right to conduct inspections of new and used motor vehicles for the purposes of determining compliance with the requirements of this regulation.

  (2) The inspections authorized under §E(1) of this regulation may:

    (a) Be conducted on any premises owned, operated, used, leased, or rented by any vehicle dealer;

    (b) Extend to all air pollution control systems and their operation;

    (c) Require the on-premises operation and testing of an engine or vehicle; and

    (d) Require inspection of any related records, including records of emissions-related part repairs performed under warranty.

  (3) Refusal to allow, or interference with, the inspections under this section shall be considered a violation of this regulation.

  (4) A person who violates any provision of this regulation is subject to the sanctions set forth in Environment Article, Title 2, Annotated Code of Maryland. Each noncompliant vehicle is a separate violation.

#### Regulation .03 Motor Vehicle Fuel Specifications.

*COMAR 26.11.20.03*

A. Definitions. For the purposes of this regulation, the definitions specified in COMAR 03.03.05.01 and COMAR 03.03.06 apply.

B. Applicability. Unless otherwise indicated in COMAR 03.03.05 and COMAR 03.03.06, this regulation applies Statewide.

C. Volatility. Unless the gasoline is segregated and clearly documented as noncomplying and not for sale or supply to an ultimate consumer in an applicable control area, a person may not produce, store, transport, supply, offer to supply, transfer or otherwise handle, sell, offer for sale, or dispense gasoline that does not comply with the vapor pressure requirements specified in COMAR 03.03.05.01-1D, as applicable during the period May 1 through September 15 inclusive, and the requirements of COMAR 03.03.06.

D. Oxygen Content. Unless the gasoline is segregated and clearly documented as noncomplying and not for sale or supply to an ultimate consumer in an applicable control area, a person may not produce, store, transport, supply, offer to supply, transfer or otherwise handle, sell, offer for sale, or dispense gasoline that does not comply with the oxygen content requirements specified in COMAR 03.03.05.01-1N and COMAR 03.03.06.

E. Record Keeping and Transfer Documentation. A person who handles, transports, or otherwise transfers gasoline shall comply with the record-keeping and transfer documentation requirements of COMAR 03.03.06.

F. Inspections. The Department and its representatives have the right to enter at reasonable times and inspect any site, building, or equipment to determine compliance with the requirements of this regulation.

#### Regulation .04 National Low Emission Vehicle Program.

*COMAR 26.11.20.04*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Heavy-duty vehicle” means a motor vehicle having a manufacturer's gross vehicle weight rating greater than 6,000 pounds, except passenger cars.

  (2) “Light-duty truck” means a motor vehicle, rated at 6,000 pounds gross vehicle weight or less, which is:

    (a) Designed primarily for purposes of transportation of property or is a derivative of such a vehicle; or

    (b) Available with special features enabling off-street or off-highway operation and use.

  (3) “Medium-duty vehicle” means any:

    (a) Pre-1995 model year heavy-duty vehicle having a manufacturer's gross vehicle weight rating of 8,500 pounds or less;

    (b) 1992 and subsequent model year heavy-duty low-emission vehicle or ultra-low-emission vehicle, or zero-emission vehicle, having a manufacturer's gross vehicle weight rating of 14,000 pounds or less; or

    (c) 1995 and subsequent model year heavy-duty vehicle having a manufacturer's gross vehicle weight rating of 14,000 pounds or less.

  (4) “National LEV” means the Voluntary National Low Emission Vehicle Program whose provisions appear at 40 CFR Part 86, Subpart R.

  (5) “Passenger car” means a motor vehicle designed primarily for transportation of individuals and having a design capacity of 12 individuals or less.

B. All other terms have the meanings specified in 40 CFR Part 86, Subpart R.

C. Applicability. This regulation applies Statewide.

D. General.

  (1) For the duration of Maryland's participation in the National LEV, manufacturers may comply with the National LEV or equally stringent mandatory federal standards in lieu of compliance with any program, including any mandates for sales of zero emission vehicles, adopted by Maryland pursuant to the authority provided in §177 of the Clean Air Act applicable to passenger cars, light-duty trucks of 6,000 pounds gross vehicle weight rating or less, or medium-duty vehicles of 6,001 to 14,000 pounds gross vehicle weight, if designed to operate on gasoline.

  (2) Maryland's participation in the National LEV extends until model year 2006, except as provided in 40 CFR §86.1707. If, not later than December 15, 2000, the U.S. EPA does not adopt emissions standards at least as stringent as the National LEV standards provided in 40 CFR Part 86, Subpart R, that apply to new motor vehicles in model year 2004, 2005, or 2006, Maryland's participation in the National LEV extends only until model year 2004, except as provided in 40 CFR §86.1707.

  (3) If a covered manufacturer, as defined at 40 CFR §86.1702, opts out of the National LEV program pursuant to the EPA National LEV regulations at 40 CFR §86.1707, the transition from the National LEV requirements to any Maryland §177 program applicable to passenger cars, light-duty trucks of 6,000 pounds gross vehicle weight or less, or medium-duty vehicles of 6,001 to 14,000 pounds gross vehicle weight, if designed to operate on gasoline, will proceed in accordance with the EPA National LEV regulations at 40 CFR §86.1707.

#### Regulation .05 Diesel Vehicle Emissions Control Program.

*COMAR 26.11.20.05*

The regulations found in COMAR 11.21.02 have been jointly adopted by the Department of the Environment, the Department of State Police, and the Department of Transportation, and will not be duplicated in Title 26. These regulations should be cited under COMAR 11.21.02.

#### Regulation .06 Heavy Duty Diesel Engines.

*COMAR 26.11.20.06*

A. This regulation applies to:

  (1) Heavy-duty diesel engines produced for the 2005 and subsequent model years; and

  (2) New motor vehicles containing heavy-duty diesel engines produced for the 2005 and subsequent model years.

B. Exemptions. This regulation does not apply to:

  (1) 2005 or subsequent model year heavy-duty diesel engines manufactured:

    (a) By an ultra-small volume manufacturer; or

    (b) For use in an urban bus;

  (2) Heavy-duty diesel engines for which the California Air Resources Board, following a technology review in 2003, determines that compliance is inappropriate for engines of a particular model year and engine family;

  (3) Vehicles:

    (a) Exempted from the provisions of Title 13, CCR, §1956.8 by the California Health and Safety Code, §43656;

    (b) For which there has been issued a federal certificate of conformity under the Clean Air Act (42 U.S.C. §7401 et seq.) and which was originally registered in another state by a resident of that state who:

      (i) Subsequently establishes residency in Maryland; and

      (ii) Upon registration of the vehicle in Maryland, provides satisfactory evidence to the Motor Vehicle Administration of the previous residence and vehicle registration; or

    (c) Acquired out-of-State by a resident of Maryland at the time of and for the purpose of replacing a vehicle registered to the resident which was:

      (i) Damaged or became inoperative beyond reasonable repair while out-of-State; or

      (ii) Stolen while outside of Maryland;

  (4) Emergency vehicles;

  (5) Military tactical vehicles and equipment; or

  (6) Vehicles transferred by:

    (a) Inheritance; or

    (b) Any of the following actions entered by a court of competent jurisdiction;

      (i) Divorce;

      (ii) Dissolution; or

      (iii) Legal separation.

C. Definitions. In this regulation, the following terms have the meanings indicated.

  (1) “CCR” means California Code of Regulations.

  (2) “Department” means the Department of the Environment.

  (3) “Executive order” means a document issued by the California Air Resources Board certifying that a specified engine family or model year vehicle has met all applicable Title 13 CCR requirements for certification and sale in California.

  (4) “Heavy-duty diesel engine” means a diesel engine that is used to propel a heavy-duty motor vehicle.

  (5) “Heavy-duty motor vehicle” means a motor vehicle with a gross vehicle weight rating of 14,001 pounds or greater.

  (6) “Model year” means:

    (a) The manufacturer's annual production period, which includes January 1 of a calendar year;

    (b) The calendar year, if the manufacturer has no annual production period; or

    (c) In the case of a vehicle manufactured in two or more stages, the date of completion of the chassis.

  (7) “New motor vehicle” means a motor vehicle, the equitable or legal title to which has never been transferred to an ultimate purchaser.

  (8) “New motor vehicle engine” means a new engine in a motor vehicle.

  (9) “Title 13, CCR, §1956.8” means the California Code of Regulations section pertaining to exhaust emission standards and test procedures for 1985 and subsequent model year heavy-duty engines and vehicles, which is incorporated by reference in §D of this regulation.

  (10) “Ultimate purchaser” means, with respect to a new motor vehicle or new motor vehicle engine, the first person who in good faith purchases a new motor vehicle or new motor vehicle engine for purposes other than resale.

  (11) “Ultra-small volume manufacturer” means a manufacturer with California sales, based on the average number of vehicles and engines sold by the manufacturer in the previous three consecutive model years, of 300 or fewer of the following vehicles per model year:

    (a) Passenger cars;

    (b) Light-duty trucks;

    (c) Medium-duty vehicles;

    (d) Heavy-duty vehicles; and

    (e) Heavy-duty engines.

  (12) “Urban bus” has the meaning stated in Title 13, CCR, Division 3, Chapter 1, Article 2, §1956.2.

D. Incorporation by Reference. The provisions of Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1956.8 Exhaust Emission Standards and Test Procedures—1985 and Subsequent Model Heavy-Duty Engines and Vehicles, as amended December 12, 2002, and the definition for urban bus under Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1956.2, are incorporated by reference, but only those provisions that pertain to the requirements for Model Year 2005 and subsequent heavy-duty diesel engines and heavy-duty diesel vehicles with a gross vehicle weight rating of 14,001 pounds or greater.

E. Requirements for Vehicle Registration, Transaction, and Use. For 2005 or later model year heavy-duty diesel engines, or motor vehicles containing these engines, which are primarily intended for use or registration within Maryland, a resident of Maryland or a person who operates a business within Maryland may not commit the following acts, unless the engine manufacturer has received a California executive order for that engine:

  (1) Sell, lease, rent, import, deliver, purchase, acquire, or receive in Maryland;

  (2) Offer for sale, lease, or rental in Maryland; or

  (3) Attempt or assist in the actions listed in §E(1) and (2) of this regulation.

F. Manufacturer Compliance with California Orders and Voluntary Recalls.

  (1) Any order or enforcement action taken by the California Air Resources Board to correct noncompliance with the requirements under Title 13, CCR, §1956.8, shall be applicable to all such engines and motor vehicles subject to this regulation, unless the manufacturer demonstrates to the Department's satisfaction, within 21 days of issuance of the California Air Resources Board action, that this action is not applicable to such engines or vehicles in Maryland.

  (2) Any voluntary or influenced emission-related recall campaign initiated by any manufacturer under Title 13, CCR, §§2113—2121, shall extend to all applicable engines and motor vehicles subject to this regulation, unless the manufacturer demonstrates to the Department's satisfaction, within 21 days of the approval of the campaign by the California Air Resources Board action, that this campaign is not applicable to such engines or vehicles in Maryland.

G. Termination of this Regulation. If the U.S. Environmental Protection Agency establishes heavy-duty diesel engine standards that are at least as stringent as the standards adopted under this regulation, this regulation and any programs or policies established under this regulation shall be terminated at the end of the model year during which the U.S. Environmental Protection Agency standards are effective.

### Chapter 21 — Control of Asbestos

**Authority:** Environment Article, Title 2, and Title 6, Subtitle 4, Annotated Code of Maryland

**Administrative History:** Effective date: April 1, 1983 (10:1 Md. R. 30)

**Administrative History:** Regulation .09A amended effective July 2, 1985 (12:11 Md. R. 1050)

**Administrative History:** Chapter revised effective April 6, 1987 (14:5 Md. R. 579)

**Administrative History:** Chapter recodified from COMAR 10.18.23 to COMAR 26.11.21

**Administrative History:** Regulation .01 amended effective July 16, 1990 (17:11 Md. R. 1345)

**Administrative History:** Regulation .02B amended effective July 16, 1990 (17:11 Md. R. 1345)

**Administrative History:** Regulation .03 amended effective July 16, 1990 (17:11 Md. R. 1345)

**Administrative History:** Regulation .05 amended effective July 16, 1990 (17:11 Md. R. 1345)

**Administrative History:** Regulation .06 amended effective July 16, 1990 (17:11 Md. R. 1345)

**Administrative History:** Regulation .07 amended effective July 16, 1990 (17:11 Md. R. 1345)

**Administrative History:** Regulation .08C amended effective July 16, 1990 (17:11 Md. R. 1345)

**Administrative History:** Regulation .10 amended effective July 16, 1990 (17:11 Md. R. 1345)

**Administrative History:** Regulation .10B amended effective August 24, 1998 (25:17 Md. R. 1362); December 21, 2015 (42:25 Md. R. 1547)

**Administrative History:** Regulation .11A amended effective August 24, 1998 (25:17 Md. R. 1362)

**Administrative History:** Regulation .11B amended effective July 16, 1990 (17:11 Md. R. 1345)

**Administrative History:** Regulation .12 amended effective July 16, 1990 (17:11 Md. R. 1345)

**Administrative History:** Regulation .13 amended effective July 16, 1990 (17:11 Md. R. 1345)

#### Regulation .01 Definitions.

*COMAR 26.11.21.01*

A. “Asbestos project” means any activity involving the demolition, renovation, or encapsulation of friable asbestos materials.

B. “Business entity” means a partnership, firm, association, corporation, sole proprietorship, or other business concern.

C. “Demolition” means the wrecking or taking out of any load-supporting structural member and any related removing or stripping of friable asbestos materials.

D. “Encapsulate” means to coat, bind, or resurface walls, ceilings, pipes, or other structures to prevent friable asbestos from becoming airborne.

E. “Friable asbestos material” means any material that contains more than 1 percent asbestos by weight and that can be crumbled, pulverized, or reduced to powder, when dry, by hand pressure.

F. “License” means any authorization issued by the Department to encapsulate or remove asbestos.

G. “Maryland Air Management Administration” means that unit of the Department of the Environment responsible for the implementation and enforcement of the State air quality control regulations.

H. “Negative pressure system” means equipment that ensures that the static pressure in an enclosed work area is lower than that of the environment outside the containment barriers.

I. “Operations and maintenance (O and M)” means the removal, encapsulation, or disturbance of friable asbestos-containing materials when the amount of material is less than 10 square feet or 20 linear feet and is associated with small repairs or maintenance.

J. “Person”, as defined in Environment Article, §§1-101 and 2-101, Annotated Code of Maryland, includes any business entity or public unit.

K. “Public unit” means:

  (1) Any agency, bureau, department, or instrumentality of State government that is not subject to Executive Order 01.01.1987.22;

  (2) Any agency, bureau, department, or instrumentality of federal or local government;

  (3) Educational institutions that are not subject to Executive Order 01.01.1987.22; and

  (4) Any public, quasi-public, or municipal corporation.

L. “Renovation” means the removal or stripping of friable asbestos materials used on any pipe, duct, boiler, tank, reactor, turbine, furnace, or structural member. Operations in which load-supporting structural members are wrecked or taken out are excluded.

M. “Structural member” means any load-supporting member, such as beams and load-supporting walls, or any nonsupporting member, such as ceilings and nonload-supporting walls.

N. “Supervisor” means an individual responsible for:

  (1) Asbestos abatement project planning, oversight, or contracting; or

  (2) Directing the work of others involved in asbestos abatement work.

O. “Three stage decontamination station” means a series of three enclosures consisting of a:

  (1) Clean room;

  (2) Shower room; and

  (3) Contaminated room for removal of disposable clothing and storage of contaminated equipment.

P. “Worker” means an individual actually involved in the removal or encapsulation of friable asbestos material and who will come into contact with friable asbestos.

#### Regulation .02 Applicability.

*COMAR 26.11.21.02*

A. Regulations .03, .06, .07, and .08 of this chapter apply to any person who performs or intends to perform an asbestos project within Maryland.

B. Regulations .04, .05, and .09—.12 of this chapter apply only to any business entity or public unit which performs or intends to perform an asbestos project within Maryland.

C. Regulation .13 of this chapter applies to any person applying for approval of a course on the health and safety aspects of asbestos demolition, renovation, and encapsulation.

D. If a provision of Regulation .06 of this chapter conflicts with a requirement under a National Emission Standard for a Hazardous Air Pollutant (NESHAP) in COMAR 26.11.15.02, the NESHAP requirement takes precedence.

E. Request for Determination of Applicability.

  (1) A person may request that the Department determine whether a project is an asbestos project subject to this chapter. The Department will make the determination in writing not later than 30 days after it has received a written request describing the asbestos-containing materials, the proposed project, and the person.

  (2) An erroneous determination by the Department that a project is not subject to this chapter relieves a person from the requirements of this chapter only to the extent that the Department was provided with the appropriate information to make a correct determination.

#### Regulation .03 Notification.

*COMAR 26.11.21.03*

A. NESHAP Sources. A person who intends to engage in an asbestos project which is a NESHAP source shall notify the Maryland Air and Radiation Management Administration (ARMA) in writing in accordance with the requirements of 40 CFR Part 61. Notifying ARMA does not relieve a person of the obligation to also notify the U.S. Environmental Protection Agency, Region III office.

B. Encapsulation. A person who intends to engage in an asbestos project which will include encapsulation of more than 160 square feet or 260 linear feet of asbestos shall notify the Maryland Air and Radiation Management Administration in writing as soon as possible before the project begins.

C. All Other Asbestos Projects.

  (1) Any business entity or public unit licensed under this chapter, performing an asbestos project which is not subject to §A, B, or D of this regulation, shall notify the Maryland Air Management Administration in writing before beginning the project.

  (2) The notification in §C(1), of this regulation, shall consist of:

    (a) The location of the removal or encapsulation work;

    (b) The approximate amount of asbestos or asbestos-containing materials to be removed or encapsulated; and

    (c) The scheduled start and completion date of the asbestos project.

D. Asbestos projects which meet the definition of operations and maintenance (O and M) are not required to notify the Maryland Air Management Administration.

#### Regulation .04 License Requirement.

*COMAR 26.11.21.04*

A business entity or public unit may not engage in any asbestos project unless it is licensed by the Department under this chapter.

#### Regulation .05 Worker Protection Requirements.

*COMAR 26.11.21.05*

A. Respiratory Protection Program. A business entity or public unit, before it engages in any asbestos project, shall prepare a written respiratory protection program as defined in MOSH regulations at 29 CFR Part 1910.134 and make the program available to the Department and workers at the job site.

B. Physical Examination. The business entity or public unit shall ensure that each worker and supervisor who will be involved in an asbestos project has been examined within the preceding year and has been declared by a physician to be physically capable of working while wearing a respirator.

C. Training.

  (1) The business entity or public unit shall ensure that each worker or supervisor of the business entity or public unit who will come in contact with friable asbestos or will be responsible for an asbestos project, except operations and maintenance (O and M), receives the following training:

    (a) An initial course approved by the Department, consisting of 24 hours of instruction for workers or 32 hours of instruction for supervisors, completed before engaging in any asbestos projects; and

    (b) An annual review course approved by the Department.

  (2) The business entity or public unit shall ensure that workers and supervisors responsible for operations and maintenance (O and M) complete:

    (a) A training course of at least 6 hours duration; and

    (b) An annual review course of at least 4 hours duration.

D. Protective Clothing and Equipment. The business entity or public unit shall provide workers and supervisors exposed to an asbestos environment with protective clothing and equipment including the items listed below and ensure that workers and supervisors involved in any asbestos project use the items:

  (1) Disposable clothing, including hair cover and foot covers, which reasonably prevents asbestos fibers from reaching the body; and

  (2) Respirators approved by the National Institute of Occupational Safety and Health (NIOSH) and, at a minimum, capable of being qualitatively fit tested using positive and negative methods.

E. No Smoking, Eating, or Drinking. The business entity or public unit shall ensure that there is no smoking, eating, or drinking in the work area.

F. A business entity or public unit shall ensure that a supervisor is present at any project subject to NESHAP.

G. Alternative Procedures. The Department may, on a case-by-case basis, approve an alternative to a worker protection requirement in §§A—E for an asbestos project provided that the business entity or public unit submits the alternative procedure to the Department in writing and demonstrates to the satisfaction of the Department that the proposed alternative procedure provides equivalent worker protection and is in compliance with EPA, NESHAP, and OSHA worker protection rules.

#### Regulation .06 Control of Emissions from an Asbestos Project Subject to NESHAP.

*COMAR 26.11.21.06*

A. Signs.

  (1) Danger Signs. A person engaged in an asbestos project that is a NESHAP source shall display 20-inch by 14-inch danger signs wherever airborne asbestos fibers may be present, in accordance with Regulation 29 CFR Part 1926.58.

  (2) Project Notification Signs. A business entity or public unit planning an asbestos project that is a NESHAP source shall also comply with the following:

    (a) Except in emergency situations and except as provided in §A(3), of this regulation, at least 3 days before removing or encapsulating asbestos, post the signs required by §A(4), of this regulation immediately outside all entrances to and exits from the work site or asbestos project to inform the public in the immediate vicinity that asbestos abatement will be performed; and

    (b) Keep the signs required by §A(4), of this regulation, posted until the Maryland Air and Radiation Management Administration receives the written notice of final air monitoring results required under §B(3)(f) of this regulation.

  (3) Utility companies are not required to post signs 3 days before removing or encapsulating asbestos at a work site or asbestos project, but shall comply with any federal requirements regarding the posting of signs.

  (4) Notice of Asbestos Project signs required by §A(2)(a) of this regulation shall display the following language with letter sizes and styles of type at least equal to those specified in this subsection:

    (a) The following is an example of the Notice of Asbestos Project sign:

    (b) Printing Requirements — Type Sizes and Fonts.

      (i) The heading “Notice of Asbestos Project” shall be printed in 1 inch sans serif type, gothic or block.

      (ii) Lines two through ten of the “Notice of Asbestos Project” sign shall be printed in 24 point sans serif type, gothic or block.

      (iii) The “Date of Posting” shall be printed in 24 point sans serif type, gothic or block.

      (iv) The sentence beginning “Problems or complaints” shall be printed in 18 point sans serif type, gothic or block.

B. Any Asbestos Project That Is a NESHAP Source. A person engaged in an asbestos project in which 260 feet (80 meters) or more of pipe covered or coated with asbestos materials are stripped or removed, or 160 square feet (15 square meters) or more of asbestos materials used to cover or coat any duct, boiler, tank, reactor, turbine, or structural member are stripped or removed, shall comply with the following:

  (1) Use plastic sheeting 6 mils thick or equivalent. Use either duct tape or equivalent waterproof tape.

  (2) Wet asbestos materials to be removed with a solution containing a surfactant which significantly reduces interfacial surface tension of water or penetrates friable asbestos materials such that the material is wet thoroughly and remains wet during the removal process to minimize dust.

  (3) Use the following cleaning and air monitoring procedures:

    (a) If a building or structure is to be completely demolished, after removing any asbestos materials, clean the work area until no residue or asbestos material is visible.

    (b) During any other asbestos project subject to this section, after removing any asbestos materials, and before removing any plastic barriers separating the site from the rest of the building or any plastic barriers covering vents, windows, doors, or entries to the work site:

      (i) Clean all surfaces in the work area using the water and surfactant solution prescribed in §B(2) of this regulation;

      (ii) When the surface has dried, vacuum any remaining dry residue on all surfaces using a vacuum equipped with a high efficiency particulate air (HEPA) filter; and

      (iii) Repeat the sequence of wet mopping and vacuuming until no residue is visible and the measured airborne concentration of asbestos fibers longer than 5 microns is less than 0.01 fibers per cubic centimeter (8-hour time-weighted average) using the procedures specified in §B(3)(c)—(e), of this regulation.

    (c) Conduct air monitoring required by §B(3)(b)(iii), of this regulation, using procedures specified in NIOSH Analytical Method #P&CAM 239, Asbestos Fibers in Air (February, 1979) which is incorporated by reference, or equivalent. When clearance monitoring by transmission electron microscopy is elected, the protocol outlined in the U.S. EPA Asbestos Hazard and Emergency Response Act (AHERA) rules in 40 CFR Part 763 shall apply, including the application of the “Z” test.

    (d) Also, for air monitoring required by §B(3)(b)(iii), of this regulation, take sufficient samples to represent asbestos concentrations in the entire work area. Representative sampling shall require at least:

      (i) One sample in every room; and

      (ii) At least one sample for every 50,000 cubic feet or 5,000 square feet of floor area, whichever requires more samples.

    (e) Within 24 hours after receiving final written monitoring results, submit to the Department a record of the air monitoring required by §B(3)(b)(iii) of this regulation. The record shall indicate the asbestos concentration monitored in the work area after it is cleaned and before barriers are removed.

  (4) To minimize airborne asbestos dust inside enclosures, use negative pressure systems which meet the following:

    (a) The exhaust air passes through a High Efficiency Particulate Air (HEPA) filter;

    (b) The air flow is such that a complete change of air occurs in the enclosed area at least once every 15 minutes; and

    (c) When practical, the negative pressure systems are vented to the outside air.

C. Demolition. A person subject to §§A and B, of this regulation, and engaged in demolition shall also comply with the following:

  (1) Before beginning any demolition project, cover all windows, doors, and other openings with plastic sheeting and seal with tape;

  (2) Use a negative pressure system described in §B(4) of this regulation;

  (3) If a structure or building is to be partially demolished, construct a barrier of plastic sheeting sealed with tape to prevent asbestos from entering any portion of the structure or building not to be demolished, and seal ducts, including air conditioning and heat ducts, before wetting and removal;

  (4) Wet all components that contain or may contain asbestos before stripping the asbestos;

  (5) Wet the structure and components as necessary to assure that the asbestos material to be stripped remains wet during removal, loading, and transportation; and

  (6) For structural members and components from which asbestos will not be stripped, wet the asbestos at the cut points and remove this wet asbestos before cutting and removing the structural member or component.

D. Renovation. A person subject to §§A and B, of this regulation, and engaged in renovation shall also comply with the following:

  (1) Before beginning any renovation project, remove all movable objects from the work area and cover the nonmovable objects with plastic sheeting taped securely in place. Cover floors, other large areas such as walls, and all windows in the work area with plastic sheeting sealed with tape. Shut down all forced-air ventilation to the work area and seal exhaust and intake ducts.

  (2) Construct double barriers of plastic sheeting at all entrances and exits to the work area. Construct double barriers at entrances to a separate three-stage decontamination station with the work area to be used for removal of contaminated protective clothing and for storage of contaminated items and tools. Also provide a separate clean room where workers obtain clean protective clothing and respirators before entering the decontamination area.

  (3) Wet all areas or surfaces that contain or may contain friable asbestos before removal. Ensure that the asbestos-containing materials remain wet during the removal process.

  (4) Not use the glove bag technique on projects subject to NESHAP.

  (5) Ensure that all persons not involved in the asbestos project are out of the area before beginning abatement.

E. Exemptions.

  (1) The Department may, on a case-by-case basis, approve an alternative procedure for control of emissions from an asbestos project provided that the person submits a written description of the alternative procedure to the Department and demonstrates to the satisfaction of the Department that compliance with the prescribed procedures is not practical or not feasible, or that the proposed alternative procedure provides equivalent control of asbestos. The Department, following its review, may approve an alternative procedure if it determines that it will minimize the emissions of asbestos into the air. The Department shall respond to a written request within 10 working days of receipt of the request.

  (2) A person may not be exempt from the requirements of 40 CFR Part 61, except as provided there.

#### Regulation .07 Control of Emissions from Any Other Asbestos Project.

*COMAR 26.11.21.07*

A. Any Asbestos Project That Is Not a NESHAP Source. A person engaged in any other asbestos project not subject to Regulation .06 shall take reasonable precautions to prevent asbestos from becoming airborne, including:

  (1) Removing all friable asbestos before any demolition project;

  (2) Wetting any asbestos (except asbestos to be encapsulated) as described in Regulation .06B(2) of this chapter;

  (3) Isolating and containing asbestos that is to be removed or encapsulated;

  (4) Using other appropriate work practices to minimize the dispersal of particulate asbestos;

  (5) Leaving no visible residue of asbestos after completing the project; and

  (6) Posting “Danger” signs at entrances where asbestos is to be removed.

B. Exemptions. The Department may, on a case-by-case basis, approve an alternative procedure for control of emissions from an asbestos project provided that the person submits a written description of the alternative procedure to the Department and demonstrates to the satisfaction of the Department that compliance with the prescribed procedures is not practical or not feasible, or that the proposed alternative procedure provides equivalent control of asbestos. The Department, following its review, may approve an alternative procedure if it determines that it will minimize the emissions of asbestos into the air. The Department shall respond to a written request within 10 working days of receipt of the request.

#### Regulation .08 Waste Disposal.

*COMAR 26.11.21.08*

A. Containing Asbestos Waste. A person who engages in or has engaged in an asbestos project shall comply with the following:

  (1) Deposit all asbestos waste, including sealing tape, plastic sheeting, mop heads, sponges, filters, and disposable clothing, in plastic bags of at least 6 mils thickness and seal the bags.

  (2) Clearly label the bags and any structural components wrapped in plastic as required in §A(3), of this regulation, as asbestos waste. In addition to any label required by 29 CFR Part 1910 or 40 CFR Part 61, affix a label including the following information:

    (a) The number of the person's license to remove or encapsulate asbestos; and

    (b) The date the bag was sealed.

  (3) If large structural members containing asbestos cannot be bagged or placed in containers, wrap them in 6 mil plastic, and tape the plastic closed and label them as required in §A(2), of this regulation, before transporting them to the disposal site.

  (4) Ensure that asbestos waste is segregated from other waste and kept in a secure area or securely locked containers.

B. Removing Asbestos Waste from the Project Site. A person who engages in or has engaged in an asbestos project shall comply with the following:

  (1) Remove asbestos waste from the site of an asbestos project that is not subject to 40 CFR Part 61 not later than 24 hours after completing the asbestos renovation, demolition, or encapsulation project;

  (2) Remove asbestos waste from the site of an asbestos project that is subject to 40 CFR Part 61 not later than 7 days after completing the asbestos renovation, demolition, or encapsulation project;

  (3) After removing asbestos waste from the site of an asbestos project, dispose of the asbestos waste as provided in §D, of this regulation, or comply with interim storage requirements under §C, of this regulation.

C. Interim Storage.

  (1) A person may not store asbestos waste unless:

    (a) The person is licensed by the Department under this chapter;

    (b) Less than 20 cubic yards of asbestos waste is stored;

    (c) The asbestos waste is enclosed in rigid containers which are kept in a secure area; and

    (d) The person has submitted a written application for and received Departmental approval under §C(2), of this regulation.

  (2) The Department will incorporate any approval for interim storage of asbestos waste in the license granted under this chapter and may include reasonable conditions to ensure that the stored asbestos does not become a threat to the public health.

D. Transport and Disposal. A person who engages in or has engaged in an asbestos project shall comply with the following:

  (1) Transport and dispose of asbestos waste in a manner to prevent asbestos from becoming airborne. A person may not transport asbestos waste in an open vehicle.

  (2) If disposing of asbestos waste within the State, use a disposal facility authorized by the Department for that purpose.

  (3) Within 10 days after disposal of asbestos waste, submit to the Department a copy of the disposal receipt or record of appropriate disposal showing the disposal facility and date.

#### Regulation .09 Records.

*COMAR 26.11.21.09*

A. Each licensed business entity or public unit shall maintain records of all asbestos projects which it performs, and shall make these records available to the Department upon request. The business entity or public unit shall retain the records for at least 6 years.

B. The business entity or public unit shall record the following information for each project:

  (1) Name and address of supervisor responsible for the project;

  (2) The location and description of the project, and the estimated amount of asbestos removed or estimated area encapsulated at each project;

  (3) Starting and completion dates;

  (4) Summary of the procedures used to comply with applicable requirements; and

  (5) Name and address of the waste disposal site where the asbestos waste was deposited.

#### Regulation .10 License Application.

*COMAR 26.11.21.10*

A. To apply for or to renew a license, a business entity or public unit shall:

  (1) Submit a completed application to the Department on forms provided by the Department; and

  (2) Except for public units, pay the fee in §B, of this regulation, by certified check made payable to the Department of the Environment Clean Air Fund.

    B. Application Fee.

#### Regulation .11 Action on an Application.

*COMAR 26.11.21.11*

A. Within 30 days after receiving an application, the Department will acknowledge receipt of the application and, within 15 working days after acknowledgment, will notify the applicant of any deficiency in the application. Within 60 calendar days after receiving a completed application, including all additional information requested by the Department, the Department will issue a license or deny the application.

B. Denial.

  (1) The Department will deny an application if it determines that the applicant has not demonstrated the ability to comply fully with applicable requirements, procedures, and standards established by the:

    (a) Department in this chapter;

    (b) U.S. Environmental Protection Agency in 40 CFR 61; and

    (c) Maryland Occupational Safety and Health Program in 29 CFR §§1910.134 and 1926.58.

  (2) If the Department denies a license, the Department will return to the applicant the application fee, less $25.

  (3) The Department will send the denial of an application by certified mail. The applicant may request a hearing within 10 days after receipt of the certified mail. If it receives a timely request, the Department will hold a hearing in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

C. Conditions and Generic Alternative.

  (1) In granting a license, the Department may impose reasonable terms and conditions to ensure continuous compliance with the requirements of this chapter.

  (2) In granting a license, the Department may approve an alternative procedure for controlling emissions from a specified type of asbestos project provided that the following conditions are satisfied:

    (a) The business entity or public unit submits in writing a specific, detailed description of the type of asbestos project and the alternative procedure;

    (b) The business entity or public unit demonstrates to the satisfaction of the Department that compliance with a procedure prescribed in Regulation .06, .07, or .08 of this chapter is not practical or not feasible or that the proposed alternative procedure provides equivalent control of asbestos; and

    (c) The Department determines that compliance with the proposed alternative procedure will minimize the emission of asbestos into the air.

#### Regulation .12 Duration, Renewal, and Transferral of a License.

*COMAR 26.11.21.12*

A. Unless the Department revokes or suspends a license, the license shall remain in effect for 1 year from the date of issuance. Subject to the hearing provisions of Environment Article, §6-415 et seq., Annotated Code of Maryland, the Department may suspend or revoke any license if it determines that a licensee:

  (1) Fraudulently or deceptively obtains or attempts to obtain a license; or

  (2) Fails at any time to meet the qualifications for a license or any requirement, procedure, or standard established by the Department in this chapter.

B. The Department may renew a license annually if the business entity or public unit:

  (1) Submits a completed application for a renewal on forms provided by the Department not sooner than 90 days and not later than 30 days before the license expires;

  (2) Except for public units, pays to the Department by certified check a renewal application fee as specified in Regulation .10B of this chapter; and

  (3) Has complied fully with all applicable requirements.

C. A license to remove or encapsulate asbestos is not transferrable.

#### Regulation .13 Health and Safety Training.

*COMAR 26.11.21.13*

A. Application for Approval of a Training Course. A person may apply for approval of a course on the health and safety aspects of asbestos demolition, renovation, and encapsulation for purposes of Regulation .05C of this chapter by submitting a written application on forms provided by the Department.

B. Criteria for Initial Course. In order to obtain or retain Department approval, a person sponsoring a course shall substantially satisfy the following criteria:

  (1) Provide a core of 24 hours of instruction reflecting state-of-the-art information on the following topics for supervisors and workers:

    (a) Recognition of asbestos, including its characteristics and uses;

    (b) Health hazards, including the relationships between asbestos exposure, smoking, and diseases;

    (c) Worker protection, including respiratory protection, protective clothing, safety equipment, air monitoring, medical surveillance, and personal hygiene;

    (d) Work practices, including area preparation, decontamination, and waste disposal;

    (e) A detailed description of respirators and their use and care, including the degree of protection afforded, fitting and testing procedures, and maintenance and cleaning, and including the following:

      (i) Airline respirators;

      (ii) Powered air purifying respirators;

      (iii) Negative pressure respirators; and

      (iv) Adjunct equipment for these respirators;

    (f) Requirements, procedures, and standards established by the:

      (i) U.S. Environmental Protection Agency at 40 CFR Part 61, Subparts A and M; and

      (ii) U.S. Occupational Safety and Health Administration at 29 CFR Parts 1910.134 and 1926.58.

  (2) Divide training classes into work groups consisting of not more than 6 trainees and provide at least 2 hours of hands-on work practices including respirator care and qualitative fit testing, glove bag techniques, state-of-the-art techniques in asbestos abatement, site preparation, and construction of barriers and decontamination enclosure systems.

  (3) Provide an additional 8 hours of training beyond the 24 hours core course for those individuals seeking certification as supervisors. The additional 8 hours shall include:

    (a) A discussion of work site safety including:

      (i) Working conditions—heat, cold, and rest periods;

      (ii) Emergency procedures; and

      (iii) Hazards associated with heating, ventilating, air conditioning (HVAC) systems, water, and electricity;

    (b) A discussion of site considerations and preparations including:

      (i) Confining and minimizing airborne fibers;

      (ii) Site access; and

      (iii) Clean-up and disposal, including landfill and transport requirements; and

    (c) Liability, including owners, contractors, consultants, workers' compensation, bonding, omissions, and errors.

  (4) Ensure that instruction is given or supervised by:

    (a) An industrial hygienist who is at least designated an industrial hygienist in training (IHIT) by the American Board of Industrial Hygiene; or

    (b) An individual with equivalent education and experience as determined by the Department.

  (5) Maintain lists of students trained, the dates on which training occurred, and students' test scores, and make this information available to the Department within 10 days of completion of the training session.

  (6) Provide an opportunity for students to complete written course evaluations.

  (7) Administer to each student an examination approved by the Department.

  (8) Issue to each student who completes the course and successfully passes the examination with a score of at least 70 percent a certificate of completion containing information required by the Department.

  (9) Provide to the Department a schedule of dates on which training will be conducted. Ensure that the Department receives this notice at least 5 days before the first course date.

C. Criteria for operations and maintenance (O and M) training courses shall substantially satisfy the following:

  (1) Provide at least 6 hours of instruction reflecting state-of-the-art information on the following topics:

    (a) Recognition of asbestos, including its characteristics and uses;

    (b) Health hazards, including the relationships between asbestos exposure, smoking, and diseases;

    (c) Worker protection, including respiratory protection, protective clothing, safety equipment, air monitoring, medical surveillance, and personal hygiene;

    (d) Work practices, including area preparation, decontamination, and waste disposal;

    (e) A detailed description of respirators and their use and care, including the degree of protection afforded, fitting and testing procedures, and maintenance and cleaning, and including the following:

      (i) Air respirators;

      (ii) Powered air purifying respirators;

      (iii) Negative pressure respirators; and

      (iv) Adjunct equipment for these respirators;

    (f) Requirements, procedures, and standards established by the:

      (i) U.S. Environmental Protection Agency at 40 CFR Part 61, Subparts A and M;

      (ii) Maryland Occupational Safety and Health Program at 29 CFR Part 1910.1001 and 1910.134; and

      (iii) Department in this chapter;

  (2) Provide each student at least 15 minutes of practical instruction in the use of respirators consisting of individual qualitative fit tests, a demonstration of the proper donning and removal procedure, positive and negative fit checks, and an opportunity to use respirators;

  (3) Ensure that instruction is given or supervised by an:

    (a) Industrial hygienist who is at least designated an industrial hygienist in training (IHIT) by the American Board of Industrial Hygiene; or

    (b) Individual with equivalent education and experience as determined by the Department;

  (4) Maintain lists of students trained and the dates on which training occurred, and make this information available to the Department upon request;

  (5) Provide an opportunity for students to complete written course evaluations;

  (6) Issue to each student who completes the course a certification of attendance containing information required by the Department.

D. Criteria for Review Course. In order to obtain or retain Departmental approval, a person sponsoring a review course shall provide at least 4 hours of instruction adequately addressing the topics in §C(1) of this regulation, and shall substantially satisfy the criteria in §B(2)—(6) of this regulation.

E. Action on an Application for Course Approval.

  (1) The Department will acknowledge receipt of an application within 10 working days after receiving the application.

  (2) The Department will act on an application within 90 days after it is complete.

  (3) The Department will approve a course if the Department determines the course substantially satisfies or will substantially satisfy the criteria in §B or C of this regulation.

  (4) The Department may deny or revoke approval of a course if the Department determines the course does not or will not substantially satisfy the criteria in §B or C of this regulation.

  (5) Courses to be presented by the private sector which are accredited by the U.S. EPA under AHERA for supervisors or workers may be approved provided the training entity provides proof of U.S. EPA accreditation to the Department and receives prior written approval from the Department.

  (6) Training courses presented by one of the U.S. EPA regional training centers and accredited by the U.S. EPA under AHERA for supervisors or workers are approved as meeting the requirements for training programs under this section.

### Chapter 22 — Vehicle Emissions Inspection

**Administrative History:** These regulations have been jointly adopted by the Motor Vehicle Administration and the Department of the Environment. The regulations are found in COMAR 11.14.08 and will not be duplicated in Title 26. These regulations should be cited under COMAR 11.14.08.

### Chapter 23 — Asbestos Accreditation of Individuals, and Approval of Training Courses

**Authority:** Environment Article, §§6-401, 6-406, 6-410, 6-411, and 6-417, Annotated Code of Maryland

**Administrative History:** Effective date: September 16, 1991 (18:18 Md. R. 2009)

**Administrative History:** Chapter revised effective August 24, 1998 (25:17 Md. R. 1363)

**Administrative History:** Regulation .05C amended effective May 16, 2011 (38:10 Md. R. 617)

**Administrative History:** Regulation .06C amended effective May 16, 2011 (38:10 Md. R. 617)

**Administrative History:** Regulation .10B amended effective May 16, 2011 (38:10 Md. R. 617)

**Administrative History:** Regulation .11E amended effective May 16, 2011 (38:10 Md. R. 617)

#### Regulation .01 Definitions.

*COMAR 26.11.23.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “ACBM” means asbestos-containing building material and includes surfacing ACM, thermal system insulation ACM, or miscellaneous ACM that is found in or on internal structural members or other parts of a:

    (a) School building; or

    (b) Public and commercial building.

  (2) “Accreditation” means approval by the Department to engage in an asbestos occupation pursuant to Regulation .03 of this chapter.

  (3) “ACM” means asbestos-containing material and includes any material or product which contains more than 1 percent asbestos.

  (4) “Asbestos” means the asbestiform varieties of:

    (a) Chrysotile (serpentine);

    (b) Crocidolite (riebeckite);

    (c) Amosite (cummingtonitegrunerite);

    (d) Anthophyllite;

    (e) Tremolite; and

    (f) Actinolite.

  (5) “Asbestos abatement” means any activity involving job set-up, removal, encapsulation, enclosure, renovation, repair, demolition, construction, alteration, or maintenance of asbestos-containing material.

  (6) “Asbestos occupation” means any job as asbestos abatement worker, asbestos abatement contractor/supervisor, inspector, management planner, or abatement project designer.

  (7) “Demolition” means the wrecking or taking out of any load-supporting structural member and any related removing or stripping of asbestos materials.

  (8) “Encapsulate” means to coat, bind, or resurface walls, ceilings, pipes, or other structures to prevent friable asbestos from becoming airborne.

  (9) “Enclosure” means the construction or installation over or around the ACM of any solid or flexible coverings, which will not deteriorate or decompose for an extended period of time, so as to conceal the ACM, contain ACM fibers, and render the ACM inaccessible.

  (10) “Inspector” means an individual performing on-site investigations to locate, identify, classify, record, sample, test, and assess the condition of all friable and nonfriable asbestos-containing materials located within a structure that is a:

    (a) School building; or

    (b) Public and commercial building.

  (11) Interior Space.

    (a) “Interior space” means an area inside a school building or public and commercial building.

    (b) “Interior space” includes:

      (i) An exterior hallway connecting buildings;

      (ii) A portico; and

      (iii) A mechanical system used to condition interior space.

  (12) “Management planner” means an individual using an inspector's data to assess the ACM's hazard, determine appropriate response actions, develop a schedule for implementing the response actions, and prepare management plans for a school building.

  (13) “Maryland school” means any elementary or secondary school as defined in §198 of the Elementary and Secondary Education Act of 1965, 20 U.S.C. §2854, and that is in Maryland.

  (14) “Project designer” means an individual who determines how an asbestos abatement project is conducted in a:

    (a) School building; or

    (b) Public and commercial building.

  (15) Public and Commercial Building.

    (a) “Public and commercial building” means the interior space of any building that is not a school building.

    (b) “Public and commercial building” includes, but is not limited to:

      (i) Industrial and office building;

      (ii) Residential apartment building of 10 or more dwelling units;

      (iii) Condominium of 10 or more dwelling units;

      (iv) Government-owned building;

      (v) College;

      (vi) Museum;

      (vii) Airport;

      (viii) Hospital;

      (ix) Church;

      (x) Store;

      (xi) Warehouse; and

      (xii) Factory.

    (c) “Public and commercial building” does not include a residential apartment building of fewer than 10 dwelling units, a condominium of fewer than 10 dwelling units, or a detached single-family home.

  (16) “Public and commercial building asbestos project” means an activity involving the inspection of, project design for, or asbestos abatement in, a public and commercial building.

  (17) “Removal” means the physical removal of ACM from a building and disposal of the ACM according to all applicable regulations.

  (18) “Repair” means returning damaged ACM to an undamaged condition or to an intact state to prevent fiber release.

  (19) “School asbestos project” means any activity involving the inspection of, management plan development for, project design for, or asbestos abatement in a Maryland school.

  (20) “Structural member” means any:

    (a) Load-supporting member such as beams and load-supporting walls; or

    (b) Nonsupporting member such as ceilings and nonload supporting walls.

  (21) Supervisor.

    (a) “Supervisor”, for a school asbestos abatement project, means an individual responsible for:

      (i) Oversight or contracting; or

      (ii) Directing the work of others involved in school asbestos abatement projects.

    (b) “Supervisor”, for a public and commercial asbestos abatement project, means an individual responsible for:

      (i) Oversight or contracting; or

      (ii) Directing the work of others involved in public and commercial building asbestos abatement projects.

  (22) “Worker” means an individual who engages in an asbestos abatement project in a:

    (a) School building; or

    (b) Public and commercial building.

#### Regulation .02 Applicability.

*COMAR 26.11.23.02*

A. Regulations .03—.09 and .15 of this chapter apply to individuals intending to engage in asbestos occupations in Maryland schools.

B. Regulations .03—.07, .09, and .15 of this chapter apply to individuals engaging in asbestos occupations in public and commercial buildings.

C. Regulations .10—.14 of this chapter apply to a person applying for approval of training courses for asbestos occupations.

D. This chapter does not apply to an individual engaged in these inspection activities:

  (1) Periodic surveillance of the type described in 40 CFR §763.92(b) (1997) solely for the purpose of recording or reporting a change in the condition of known or assumed ACBM;

  (2) Inspections performed by employees or agents of federal, State, or local governments solely for the purpose of determining compliance with applicable statutes or regulations; or

  (3) Visual inspections of the type described in 40 CFR §763.90(i) (1997) solely for the purpose of determining completion of response actions.

E. This chapter does not apply to an individual engaged in:

  (1) Operations, maintenance, and repair as described in 40 CFR Part 763 (1997), Appendix B to Subpart E—Work Practices and Engineering Controls for Small-Scale, Short-Duration Operations Maintenance and Repair (O&M) Activities involving ACM; or

  (2) Small-Scale, short-duration activities as described in 40 CFR Part 763 (1997), Appendix C to Subpart E—Asbestos Model Accreditation Plan.

F. If a requirement of COMAR 26.11.21 conflicts with a provision of this chapter, the requirement in this chapter takes precedence.

#### Regulation .03 Accreditation.

*COMAR 26.11.23.03*

A. An individual may not engage in an asbestos occupation involving any school project or public and commercial building asbestos project without accreditation from the Department.

B. The Department shall accredit an individual in an asbestos occupation upon submittal of proof that the individual has:

  (1) Successfully completed any one of the following:

    (a) An initial training course and any required review course approved by the Department as specified in Regulations .04—.09 of this chapter,

    (b) An initial training course and any required review course as specified in Regulation .04A—B of this chapter, approved by the U.S. EPA for asbestos occupation accreditation,

    (c) Acquired and maintained current accreditation from an EPA-approved accreditation plan of another state; and

  (2) Complied with all other requirements in this chapter.

C. Photo Identification Card.

  (1) Each individual accredited to engage in an asbestos occupation shall carry, while engaged in the asbestos occupation, a photo identification card issued by the training provider or by a state with an EPA-approved Model Accreditation Plan.

  (2) For applicants who were not issued a photo identification card, the Department will provide the photo identification card if the applicant:

    (a) Has a certificate issued by a training provider, as described in §B(1)(b) and (c) of this regulation; and

    (b) Pays by cash, money order, certified check, or cashier's check a processing fee of $25 made payable to the Maryland Clean Air Fund.

D. Accreditation is valid only for the asbestos occupations for which the candidate qualifies.

#### Regulation .04 General Training Requirements for Accreditation Applicants.

*COMAR 26.11.23.04*

A. Course Instruction Time.

  (1) An applicant for initial accreditation shall have completed the following minimum hours of course instruction time, not including lunch and breaks:

    (a) Worker—28 hours (4 days);

    (b) Contractor/supervisor—35 hours (5 days);

    (c) Inspector—21 hours (3 days);

    (d) Management planner—35 hours (5 days), including 21 hours for inspector;

    (e) Project designer—21 hours (3 days).

  (2) An applicant for renewal of accreditation shall have completed the following hours of course instruction time:

    (a) Worker, contractor/supervisor, and project designer—7 hours, excluding breaks and meal;

    (b) Inspector—4 hours excluding breaks and meal; and

    (c) Management planner—4 hours plus successful completion of an inspector's review course.

B. An applicant for accreditation or renewal of accreditation shall have passed an examination administered by the training course provider with a score of at least 70 percent.

#### Regulation .05 Worker Training Course Requirements.

*COMAR 26.11.23.05*

A. The worker's training course shall include lectures, demonstrations, individual respirator fit testing, course review, an examination, and at least 14 hours of hands-on training which allows a worker the experience of performing actual tasks associated with asbestos abatement.

B. The worker's training course shall adequately address the training topics as described in 40 CFR Part 763 (1997), Appendix C to Subpart E—Asbestos Model Accreditation Plan, I. B. Initial Training: 1. Workers.(a) Physical characteristics of asbestos through (k) Course review, which is incorporated by reference.

C. The training course shall also comply with the requirements of 29 CFR §§1926.1101 and 1910.134, which are incorporated by reference.

#### Regulation .06 Contractor/Supervisor Training Course Requirements.

*COMAR 26.11.23.06*

A. The contractor/supervisor's training course shall include lecture, demonstrations, individual respirator fit testing, course review, written examination, and at least 14 hours of hands-on training which allows contractors and supervisors the experience of performing actual tasks associated with asbestos abatement.

B. The contractor/supervisor's training course shall adequately address the training topics as described in 40 CFR Part 763 (1997), Appendix C to Subpart E—Asbestos Model Accreditation Plan, I. B. Initial Training: 2. Contractor/Supervisors.(a) The physical characteristics of asbestos and asbestos-containing materials through (o) Course review, which is incorporated by reference.

C. The training course shall also comply with the requirements of 29 CFR §§1926.1101 and 1910.134, which are incorporated by reference.

#### Regulation .07 Inspector Training Course Requirements.

*COMAR 26.11.23.07*

A. The inspector's training course shall include lectures, demonstrations, 4 hours of hands-on training, individual respirator fit testing, course review, and a written examination.

B. The inspector's training course shall adequately address the training topics as described in 40 CFR Part 763 (1997), Appendix C to Subpart E—Asbestos Model Accreditation Plan, I. B. Initial Training: 3. Inspector.(a) Background information on asbestos through (n) Course review, which is incorporated by reference.

#### Regulation .08 Management Planner Training Course Requirements.

*COMAR 26.11.23.08*

A. Management planners seeking accreditation shall successfully complete an inspection training course as outlined in Regulation .07 of this chapter, and the 2-day management planner training course. The training program shall include lectures, demonstrations, course review, and a written examination.

B. The management planner's training course shall adequately address the training topics as described in 40 CFR Part 763 (1997), Appendix C to Subpart E—Asbestos Model Accreditation Plan, I. B. Initial Training: 4. Management Planner.(a) Course overview through (l) Course review, which is incorporated by reference.

#### Regulation .09 Project Designer Training Course Requirements.

*COMAR 26.11.23.09*

A. The project designer's training course shall include lectures, demonstration, a field trip, course review, and a written examination.

B. The abatement project designer's training course shall adequately address the training topics as described in 40 CFR Part 763 (1997), Appendix C to Subpart E—Asbestos Model Accreditation Plan, I. B. Initial Training: 5. Project Designer.(a) Background information on asbestos through (t) Course Review, which is incorporated by reference.

#### Regulation .10 Training Course Application.

*COMAR 26.11.23.10*

A. A person shall apply for approval of a training course, on forms provided by the Department, by providing the following information:

  (1) For an initial course:

    (a) Training provider's name, address, and phone number;

    (b) A list of states that currently approve the course;

    (c) A narrative explanation that clearly indicates how the course meets the requirements for approval in the following areas:

      (i) Length of training in hours,

      (ii) Amount and type of hands-on training,

      (iii) Examinations (length, format, and passing score),

      (iv) Topics covered in the course and approximate time allotted to each topic,

      (v) A detailed statement describing development of the final examination, assurances about examination security, and how examinations are administered,

      (vi) A copy of course materials (student manuals, instructor notebooks, examinations, handouts, etc.),

      (vii) Teacher-student ratio,

      (viii) Names and qualifications of course instructors,

      (ix) List of topics each instructor will teach,

      (x) List of audiovisual materials,

      (xi) A detailed description of the amount and type of hands-on training, and

      (xii) A description and example of the numbered certificate issued to students who attend and pass the course;

  (2) For a review course:

    (a) Training provider's name, address, and phone number;

    (b) A list of states that currently approve the course;

    (c) The course information:

      (i) Length of training in hours,

      (ii) Topics covered in the course and approximate time allotted to each topic,

      (iii) A copy of all course materials, including examinations,

      (iv) Names and qualifications of course instructors,

      (v) Examinations (length, format, and passing score),

      (vi) A detailed statement describing development of the final examination, assurances about examination security, and how examinations are administered, and

      (vii) A description and an example of the numbered certificate issued to students who attend and pass the course;

  (3) A detailed statement describing procedures for keeping blank photo identification cards secure, issuing the cards, and procedures for returning voided and unused cards.

B. Except for training providers in §C of this regulation, an applicant shall pay by certified check, cashier’s check, or money order an annual fee of $200 for each day of a training course, or portion of a training course, for each initial and review training course for which an applicant seeks approval, including renewals.

C. The following need not pay the fee in §B of this regulation:

  (1) Public schools;

  (2) Maryland School for the Deaf;

  (3) Maryland Department of Health schools;

  (4) Department of Juvenile Services schools; and

  (5) Department of the Environment.

D. A person shall apply for approval of an initial worker or worker review course to be conducted in a foreign language by:

  (1) Following the requirements of §§A and B of this regulation;

  (2) Providing a copy of all course materials (such as student manuals, instructor notebooks, and handouts) and examinations which have been translated into the language for which approval is sought; and

  (3) Providing written assurance that the translation of the course materials and the examination have been checked for accuracy.

#### Regulation .11 Training Course Provider Requirements.

*COMAR 26.11.23.11*

A. The training course provider shall satisfy all applicable requirements of Regulations .04—.10 of this chapter.

B. The training provider shall administer a closed-book written examination approved by the Department for each asbestos occupation, which:

  (1) Contains the following number of multiple-choice questions:

    (a) Initial course requirements:

      (i) 50 questions for the worker, inspector, and management planner; and

      (ii) 100 questions for contractor/supervisor and project designer;

    (b) Review course requirement: At least 25 multiple-choice questions adequately covering the review topics;

  (2) Adequately covers the topics required for the asbestos occupation for which training has been provided, as referenced in Regulations .05B, .06B, .07B, .08B, and .09B of this chapter; and

  (3) Requires a passing score of at least 70 percent for all asbestos occupations.

C. The training provider shall issue to each student successfully completing the training course a photo identification card, provided by the Department, with the following information:

  (1) Type of training course;

  (2) The student's color photo, name, and signature;

  (3) Identification number unique to that student;

  (4) Name, address, and phone number of the training provider;

  (5) Date of training and expiration date of training;

  (6) Date of exam;

  (7) Maryland course approval number; and

  (8) Name and original signature of training course director.

D. Except for signatures, all information on the photo identification cards is to be typed or printed by machine.

E. The training provider shall provide students with an opportunity to complete course evaluations on forms provided or approved by the Department.

F. A training provider shall provide to the Department a schedule of dates on and locations at which training will be conducted and:

  (1) Ensure that the Department receives this schedule at least 10 days before the course is offered; and

  (2) Provide as promptly as possible to the Department, any changes to the schedule.

G. A training provider shall display the training provider approval and course approval certificates in a conspicuous place readily accessible to the public.

H. Before making any changes in topics covered, course materials, or instructors, a training provider shall submit the proposed changes to the Department for approval.

I. A training provider shall permit the Department representatives to attend, evaluate, and monitor any training course. Department representatives may or may not provide notice of attendance.

J. A training provider shall:

  (1) Maintain lists of students trained, the dates on which training occurred, instructor names, proctor names, training locations, and students' test scores, and copies of completed photo identification cards; and

  (2) Send the information in §J(1) of this regulation, on a form provided by the Department, along with a color photo of each trainee, to the Department within 10 working days of completion of the course.

K. A training provider shall comply with the record-keeping requirements as enumerated in 40 CFR Part 763 (1997) Appendix C to Subpart E—Asbestos Model Accreditation Plan, which is incorporated by reference.

L. Retain records in §J of this regulation, for 3 years, and provide access to these records to the Department.

#### Regulation .12 Action on an Application for Course Approval.

*COMAR 26.11.23.12*

A. The Department will acknowledge receipt of an application within 10 working days after receiving the application.

B. The Department will act on an application within 90 days after the training provider has met all requirements and paid any required fee.

C. Approval.

  (1) The Department will approve a training course if the training provider:

    (a) Demonstrates the ability to satisfy the requirements in Regulations .04—.11 of this chapter by:

      (i) Submitting course materials as described in Regulation .10 of this chapter on forms provided by the Department,

      (ii) Employing instructors having academic credentials or field experience in the topic or topics they teach, and

      (iii) Employing instructors who are fluent in the foreign language they are teaching in addition to the requirements in §C(1)(a)(ii) of this regulation;

    (b) Pays the appropriate fee or fees as directed in Regulation .10B of this chapter.

  (2) The Department will issue a training provider approval certificate for each course for which approval is sought after written submittals are approved.

  (3) The Department will issue a course approval certificate after a successful on-site audit for all or part of the training course. Videotapes may substitute for the on-site audit at the discretion of the Department.

D. Denial.

  (1) The Department will deny an application if it determines that the applicant has not demonstrated an ability to comply fully with the applicable requirements, procedures, and standards established by the:

    (a) Department in this chapter;

    (b) U.S. Environmental Protection Agency in 40 CFR 763, which is incorporated by reference; and

    (c) Maryland Occupational Safety and Health in 29 CFR §§1926.1101 and 1910.134 (1997), 63 FR 1152 (January 8, 1998), which are incorporated by reference.

  (2) The Department will send the denial of an application by certified mail. The applicant may request a hearing within 10 days after receipt of the certified mail. If it receives a timely request, the Department will hold a hearing in accordance with State Government Article, § 10-201 et seq., Annotated Code of Maryland.

  (3) The Department may not refund the application fee if an application is denied.

#### Regulation .13 Duration, Renewal, and Transfer of Training Approval.

*COMAR 26.11.23.13*

A. Unless the Department revokes or suspends training course approval, a training course shall remain approved for 1 year from the date of approval.

B. The Department may renew training approval annually if a training provider:

  (1) Submits a completed application for renewal on forms provided by the Department not sooner than 90 days and not later than 30 days before approval expires; and

  (2) Pays to the Department, by certified check, cashier's check, or money order, made payable to the Maryland Clean Air Fund, the appropriate application fee as described in Regulation .10B of this chapter.

C. Training provider approval certificates are valid for 1 year from the date of approval for a training course, and may be renewed.

D. Training course approval certificates are valid for 1 year from the date of the successful on-site or videotape audit, and may be renewed.

E. The Department may not process an application unless it is accompanied by the appropriate fee.

F. Fees are nonrefundable.

G. Receipt and deposit of fees submitted with applications do not in any way indicate approval of a training course application.

H. Training provider and training course approvals are not transferable.

#### Regulation .14 Suspension or Revocation of Approval of a Training Course.

*COMAR 26.11.23.14*

A. The Secretary may suspend or revoke approval of any approved training course if the training provider, instructors, or courses no longer meet the standards established by the Secretary and found in this chapter, and for any of the following:

  (1) Misrepresentation of a training course's approval by another state or the EPA;

  (2) Failure to submit any notifications required by this chapter in a timely manner;

  (3) Failure to maintain records as required by this chapter; or

  (4) Falsification of accreditation records, instructor qualifications, or other accreditation information.

B. The Department will send notice of the revocation or suspension of an approved training course to the training provider by certified mail. The training provider may request a hearing within 10 days after receipt of the certified mail. If the Department receives a timely request, the Department will hold a hearing in accordance with State Government Article, §10-201 et seq., Annotated Code of Maryland.

#### Regulation .15 Decertification Procedures for Accredited Individuals.

*COMAR 26.11.23.15*

A. The Secretary may revoke or suspend the accreditation of an individual accredited as an inspector, management planner, project designer, worker, or abatement contractor/supervisor if the accredited individual:

  (1) Fraudulently or deceptively obtains, uses, or attempts to obtain accreditation for the person or another;

  (2) Fails at any time to meet the qualifications for accreditation, or any requirement, procedure, or standard established by the Department in this chapter;

  (3) Fails to perform an activity which the accredited individual represented was done;

  (4) Performs an activity for which the individual is not accredited;

  (5) Fails to exercise the standard of care expected of an accredited individual in the conduct of a school asbestos project or public and commercial building asbestos project;

  (6) Violates any rule, regulatory order, permit, or certificate issued or adopted by the Department;

  (7) Is guilty of incompetence or misconduct;

  (8) Performs an activity at a jobsite, requiring accreditation, without being in physical possession of current and initial accreditation certificates; or

  (9) Obtains accreditation for an asbestos occupation from a training provider not approved by either the EPA or a state with an EPA-approved MAP to provide training in that particular asbestos occupation.

B. The Department will send notice of the revocation or suspension of a person's accreditation to the person by certified mail. The person may request a hearing within 10 days after receipt of the certified mail. If the Department receives a timely request, the Department will hold a hearing in accordance with Environment Article, §10-201 et seq., Annotated Code of Maryland.

### Chapter 24 — Vapor Recovery at Gasoline Dispensing Facilities

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: February 15, 1993 (20:3 Md. R. 260)

**Administrative History:** Regulation .01B amended effective June 20, 1994 (21:12 Md. R. 1064); May 8, 1995 (22:9 Md. R. 647); April 15, 2002 (29:7 Md. R. 623); January 29, 2007 (34:2 Md. R. 139); November 23, 2015 (42:23 Md. R. 1435)

**Administrative History:** Regulation .01-1 adopted effective April 15, 2002 (29:7 Md. R. 623)

**Administrative History:** Regulation .01-1B amended effective November 23, 2015 (42:23 Md. R. 1435)

**Administrative History:** Regulation .02 amended effective April 15, 2002 (29:7 Md. R. 623)

**Administrative History:** Regulation .02E, F repealed effective November 23, 2015 (42:23 Md. R. 1435)

**Administrative History:** Regulation .03 amended effective April 15, 2002 (29:7 Md. R. 623); November 23, 2015 (42:23 Md. R. 1435)

**Administrative History:** Regulation .03-1 adopted effective November 23, 2015 (42:23 Md. R. 1435)

**Administrative History:** Regulation .04 amended effective April 15, 2002 (29:7 Md. R. 623); February 28, 2005 (32:4 Md. R. 411); November 23, 2015 (42:23 Md. R. 1435)

**Administrative History:** Regulation .05-1 adopted effective January 29, 2007 (34:2 Md. R. 139)

**Administrative History:** Regulation .07 amended effective April 15, 2002 (29:7 Md. R. 623)

**Administrative History:** Regulation .07E amended effective February 28, 2005 (32:4 Md. R. 411); November 23, 2015 (42:23 Md. R. 1435)

#### Regulation .01 Definitions.

*COMAR 26.11.24.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Approved Stage II vapor recovery system (approved system)” means:

    (a) A properly installed Stage II vapor recovery system for which CARB issued an Executive Order certifying the system using procedures in effect in California before April 1, 2001; or

    (b) A system approved by the Department that involves certification procedures comparable to or similar to the certification procedures used by CARB and in effect in California before April 1, 2001.

  (2) “CARB” means the California Air Resources Board.

  (2-1) “Certified Inspector” means an inspector that has been trained and certified in the Department's requirements for gasoline storage tanks and vapor recovery systems in accordance with COMAR 26.10.06.04.

  (3) “Defective equipment” means the absence, disconnection, or malfunctioning of an approved system or part of an approved system, including:

    (a) A vapor return line that is crimped, flattened, blocked, or that has any hole or slit from which vapors may leak;

    (b) A nozzle bellows that has any hole through which a 1/4 inch diameter cylindrical rod will pass, or any slit 1 inch or more in length;

    (c) A nozzle faceplate or facecone that has 25 percent or more of its surface torn or missing;

    (d) A nozzle without an automatic overfill control mechanism or with an inoperable overfill control mechanism;

    (e) A nozzle without a vapor check valve or with a malfunctioning vapor check valve;

    (f) Any underground equipment that is not vapor tight or any equipment that has obstructions prohibiting the flow of vapor; and

    (g) A missing, inoperable, or malfunctioning vapor processing unit, vacuum generating device, pressure or vacuum relief valve, vapor check valve, or any other component of an approved system.

  (4) “Existing gasoline dispensing facility” means any gasoline dispensing facility that is not a “new gasoline dispensing facility” as defined in this regulation.

  (5) “Facecone” means a component of a nozzle, located at the end of the flexible cone, that allows gasoline vapors to be collected.

  (6) “Faceplate” means a component of a nozzle, located at the end of the nozzle bellows, that provides the vapor seal when gasoline is dispensed into a motor vehicle.

  (7) “Gasoline dispensing facility” means a site with equipment that is used to transfer gasoline from one or more stationary storage tanks into motor vehicle fuel tanks.

  (8) “Independent small business gasoline marketer” means an independent small business marketer of gasoline, as defined in §324 (Vapor Recovery for Small Business Marketers of Petroleum Products) of the Federal Clean Air Act.

  (8-1) “Major Modification” means:

    (a) Excavation below a shear valve or tank pad in order to repair or replace Stage II system or an underground storage tank;

    (b) Installation of a new dispenser system manufactured without a Stage II system; or

    (c) A major system modification consisting of the replacement, repair or upgrade of at least 50 percent of a facility’s Stage II vapor recovery system.

  (9) “Monthly gasoline throughput” means the average monthly amount of gasoline dispensed at a gasoline dispensing facility excluding any time period when the facility was shut down.

  (9-1) “Motor vehicle” means a vehicle registered with the Maryland Motor Vehicle Administration or the equivalent agency of another state.

  (10) “New gasoline dispensing facility” means a gasoline dispensing facility for which the Department issued or issues a permit to construct after November 15, 1990, except for a gasoline dispensing facility at which only the gasoline storage tanks were or are replaced.

  (11) “Nozzle” means the spout at the end of the gasoline hose used to dispense and control the flow of gasoline from a stationary gasoline storage tank into motor vehicle fuel tanks.

  (12) “Nozzle bellows” means a flexible component of a nozzle that is compressed to establish a seal between the nozzle faceplate and filler neck of the motor vehicle fuel tank.

  (13) “Operator” means a dealer or other person who is responsible for the daily operation and maintenance of a gasoline dispensing facility and who is subject to the inspection, training, and reporting requirements of this chapter.

  (14) Owner.

    (a) “Owner” means the person who owns a gasoline dispensing facility and who is responsible for the installation requirements, initial compliance, and periodic testing of an approved system.

    (b) Owner includes a person who:

      (i) Owns an oil storage facility or UST system, or both, used for storage, use, or dispensing of regulated substances; or

      (ii) Owned the UST system immediately before the discontinuation of its use.

  (14-1) “Stage I vapor balance system” means coaxial or dual piping that creates a closed system between a tank truck and a stationary storage tank and contains the vapors during the transfer of gasoline.

  (15) “Stage II vapor recovery system” means a system at a gasoline dispensing facility that is designed, installed, and used to collect, recover, or destroy gasoline vapors displaced when gasoline is dispensed from a stationary gasoline storage tank into motor vehicle fuel tanks.

  (16) “Tag out of service” means to place out of service by use of a conspicuously located tag or sign on a nozzle that prohibits the use of any nozzle associated with defective equipment.

  (16-1) “Tank System” means a storage tank or a set of manifolded storage tanks containing gasoline.

  (17) “Vapor assist system—Type 1” means a Stage II vapor recovery system that uses:

    (a) A mechanical device and the flow of gasoline to generate a vacuum, the magnitude of which is related to the volume of gasoline; or

    (b) An electromechanical device which collects gasoline vapors displaced when gasoline is dispensed from a stationary storage tank into motor vehicle fuel tanks.

  (18) “Vapor assist system—Type 2” means a Stage II vapor recovery system that provides vacuum from a centrally located pump for all gasoline dispensers at the facility and is initiated by a trigger in the nozzle. This system is referred to as the “Healy System”.

  (19) “Vapor balance system” means a Stage II vapor recovery system that uses the pressure generated in a vehicle tank by incoming fuel and the negative pressure in the gasoline storage tank to recover vapors displaced when gasoline is dispensed from a stationary storage tank into motor vehicle fuel tanks.

  (20) “Vapor recovery system” means a Stage II vapor recovery system at a gasoline dispensing facility and a Stage I vapor recovery system on a gasoline storage tank.

#### Regulation .01-1 Incorporation by Reference.

*COMAR 26.11.24.01-1*

A. In this chapter, the following CARB approved test methods are incorporated by reference.

B. Test Methods Incorporated.

  (1) Vapor Recovery Test Procedure TP-201.3 Determination of 2 Inch WC Static Pressure Performance of Vapor Recovery Systems of Dispensing Facilities, amended March 17, 1999.

  (2) Vapor Recovery Test Procedure TP-201.5 Determination (By Volume Meter) of Air to Liquid Volume Ratio of Vapor Recovery Systems of Dispensing Facilities, adopted April 12, 1996.

  (3) Vapor Recovery Test Procedures TP-201.4 Determination of Dynamic Pressure Performance of Vapor Recovery Systems of Dispensing Facilities, amended April 28, 2000.

  (4) Executive Order G-70-186, Exhibit 4, Vapor Return Line Vacuum Integrity Test for the Healy Model 400 ORVR System.

  (5) Executive Order G-70-165, Exhibit 4, Vapor Return Line Vacuum Integrity Test for the Healy Model 600 System.

  (6) Leak Rate and Cracking Pressure of Pressure/Vacuum Valves TP-201.1E.

  (7) Determination of Vapor Piping Connections to Underground Gasoline Storage Tanks (Tie-Tank Test) TP-201.3C (1999).

  (8) “Recommended Practices for Installation and Testing of Vapor Recovery Systems at Vehicle Refueling Sites” of the Petroleum Equipment Institute, Section 14, 2009.

#### Regulation .02 Applicability, Exemptions, and Effective Date.

*COMAR 26.11.24.02*

A. This chapter applies in Baltimore City and Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles, Frederick, Harford, Howard, Montgomery, and Prince George's counties.

B. A gasoline dispensing facility exempted under §C of this regulation is subject only to the record-keeping and reporting requirements of Regulation .07D of this chapter.

C. The provisions of this chapter do not apply to:

  (1) The owner or operator of an existing gasoline dispensing facility whose average monthly gasoline throughput during calendar years 1990 and 1991 was less than 10,000 gallons;

  (2) The owner or operator of any new gasoline dispensing facility that has a total gasoline storage tank capacity of less than 2,000 gallons; or

  (3) An existing independent small business gasoline marketer whose average monthly gasoline throughput during calendar years 1990 and 1991 was less than 50,000 gallons.

D. If a person purchases a gasoline dispensing facility equipped with an approved system, the new owner or operator shall continue to operate the approved system unless the average monthly gasoline throughput during any calendar year after the purchase is less than 10,000 gallons.

#### Regulation .03 General Requirements.

*COMAR 26.11.24.03*

A. New Gasoline Dispensing Facilities. An owner or operator of a new gasoline dispensing facility may not operate the gasoline dispensing facility unless it is equipped and operated with an approved system.

A-1. Newly Constructed Gasoline Dispensing Facilities. Notwithstanding §A of this regulation, an owner or operator of a gasoline dispensing facility constructed on or after the effective date of this regulation may operate the gasoline dispensing facility without installing and operating a Stage II vapor recovery system.

B. Existing Gasoline Dispensing Facilities. Except as provided in §§A-1 and C of this regulation and Regulation .03-1A of this chapter, an owner or operator of an existing gasoline dispensing facility may not operate that gasoline dispensing facility after the following dates, unless it is equipped and operated with an approved system:

  (1) November 15, 1993, if the monthly gasoline throughput during calendar years 1990 and 1991 was 100,000 gallons or more; or

  (2) November 15, 1994, if the monthly gasoline throughput during calendar years 1990 and 1991 was less than 100,000 gallons.

C. Existing Independent Small Business Gasoline Marketers. After the dates listed below, an existing independent small business gasoline marketer may not operate a gasoline dispensing facility unless it is equipped and operated with an approved system:

  (1) November 15, 1994, for an independent small business gasoline marketer with one or two facilities; or

  (2) November 15, 1995, for an independent small business gasoline marketer with three or more facilities, if at least 1/3 of the facilities are equipped and operated with an approved system by November 15, 1993 and at least 2/3 of the facilities are equipped and operated with an approved system by November 15, 1994.

D. If an owner of an existing gasoline dispensing facility subject to this chapter replaces a gasoline storage tank after November 15, 1990, the owner shall install all underground piping required by this chapter and perform a leak and liquid blockage test.

E. After the applicable dates established in §§A—C of this regulation, an operator may not use or allow the use of defective equipment associated with the transfer of gasoline from a stationary gasoline storage tank to motor vehicle fuel tanks.

F. The operator may not install or use a replacement part in an approved system unless that part has been certified by CARB or approved by the Department for the approved system.

G. The owner shall ensure that all underground piping is installed in accordance with the Department's requirements related to underground storage tanks, which are set forth in COMAR 26.10.03.

H. Gasoline storage tanks serving a gasoline dispensing facility that is subject to this chapter shall be equipped with a properly designed and installed pressure and vacuum valve with minimum pressure and vacuum settings as specified in the CARB Executive Order for that system.

I. If an approved system is certified under more than one Executive Order, the most recent Executive Order shall apply.

J. Stage I Vapor Recovery. An owner or operator of a gasoline tank truck or an owner or operator of a gasoline dispensing facility subject to this regulation may not cause or permit gasoline to be loaded into a stationary tank unless the loading system is equipped with a Stage I vapor balance system that is properly installed, maintained, and operated.

#### Regulation .03-1 Decommissioning of the Stage II Vapor Recovery System.

*COMAR 26.11.24.03-1*

A. Notwithstanding Regulation .03A of this chapter, an owner or operator of a gasoline dispensing facility or system of gasoline dispensing facilities that installed approved Stage II vapor recovery systems:

  (1) May decommission Stage II vapor recovery systems in accordance with §B of this regulation after October 1, 2016; or

  (2) May decommission Stage II vapor recovery systems in accordance with §B of this regulation where a gasoline dispensing facility undergoes a major modification after the effective date of this regulation.

B. An owner or operator of a gasoline dispensing facility that decommissions a Stage II vapor recovery system shall perform the decommissioning of the Stage II vapor recovery system in accordance with the “Recommended Practices for Installation and Testing of Vapor Recovery Systems at Vehicle Refueling Sites” of the Petroleum Equipment Institute, Section 14, 2009 and COMAR 26.10.10.

#### Regulation .04 Testing Requirements.

*COMAR 26.11.24.04*

A. Testing Requirements for Stage II Stations. Except as provided in §§E and F of this regulation, an owner or operator of a gasoline dispensing facility subject to this chapter which operates Stage II Vapor Recovery systems shall perform the following CARB-approved tests.

  (1) A leak test in accordance with the Vapor Recovery Test Procedure TP-201.3 referenced in Regulation .01-1B(1) of this chapter;

  (2) An air to liquid volume ratio test in accordance with the Vapor Recovery Test Procedure TP-201.5 referenced in Regulation .01-1B(2) of this chapter.

  (3) A dynamic pressure performance test in accordance with the Vapor Recovery Test Procedure TP-201.4 referenced in Regulation .01-1B(3) of this chapter;

  (4) A vapor return line vacuum integrity test for the Healy Model 400 ORVR System in accordance with Executive Order G-70-186, Exhibit 4 referenced in Regulation .01-1B(4) of this chapter; and

  (5) A vapor return line vacuum integrity test for the Healy Model 600 System in accordance with Executive Order G-70-165 Exhibit 4 referenced in Regulation .01-1B(5) of this chapter.

  (6) A leak rate and cracking pressure test in accordance with TP-201.1E referenced in Regulation .01-1B(6).

  (7) A tie tank test in accordance with TP-201.3C as referenced in Regulation .01-1B(7).

A-1. Testing Requirements for Decommissioned Stations and New Stations Installed after the effective date of this regulation that did not Install Stage II. Except as provided in §§E and F of this regulation, an owner or operator of a gasoline dispensing facility subject to this chapter who does not operate a Stage II Vapor Recovery system shall perform the testing requirements of §A(1), (6), and (7) of this regulation as specified in §C(2) of this regulation and repeat annually.

B. The leak and liquid blockage tests required in §A of this regulation shall be performed on each approved system before the gasoline dispensing facility is initially used to refuel motor vehicles, or by the applicable dates in Regulation .03 of this chapter, whichever occurs later.

C. Stage II Vapor Recovery System.

  (1) An owner of a Stage II vapor recovery system subject to this chapter shall repeat the required tests:

    (a) In accordance with the test schedule in §C(2) of this regulation; and

    (b) Upon replacement of 75 percent or more of an approved system.

  (2) Test Schedule.

D. If a gasoline dispensing facility fails any test required by this chapter, the owner shall notify the Department of the failure in writing within 5 working days after the test and before retesting.

E. Alternative test methods approved by CARB may be used in place of the test methods specified in §A of this regulation, if the alternative test methods are approved by the U.S. Environmental Protection Agency (EPA) as a revision to the State Implementation Plan, which is Maryland's plan for meeting the National Ambient Air Quality Standards.

F. Test methods and the frequency of testing required by this regulation may be modified for vapor assist systems, if the test methods and testing frequency are approved by the Department and the EPA.

#### Regulation .05 Inspection Requirements.

*COMAR 26.11.24.05*

A. An operator subject to this chapter shall ensure that each approved system is inspected at least once each day of operation to verify that it is working properly.

B. Except as provided in §C of this regulation, the Department shall consider an operator of a gasoline dispensing facility to be in violation of Regulation .03E of this chapter during any period of time that the facility is operated while there is defective equipment at the facility.

C. The operator is not in violation of Regulation .03E of this chapter during any period of time for which the operator establishes, to the satisfaction of the Department, that nozzles associated with defective equipment were tagged out of service and that no nozzle associated with the defective equipment was actually used.

D. For defective equipment that was identified by the Department, the operator shall inform the Department by telephone within 72 hours after the repair or replacement of the defective equipment.

#### Regulation .05-1 Inspections by a Certified Inspector.

*COMAR 26.11.24.05-1*

A. Operator Requirements.

  (1) A person that operates a gasoline dispensing facility or a gasoline storage tank with a vapor recovery system shall ensure that a certified inspector performs an inspection of each vapor recovery system.

  (2) Each vapor recovery system shall be inspected by a certified inspector in accordance with the schedules set forth in COMAR 26.10.03.10.

B. Inspection Requirements.

  (1) The certified inspector shall inspect each vapor recovery system to confirm that:

    (a) All the necessary equipment has been installed;

    (b) The equipment is functioning properly; and

    (c) There is no defective equipment in use.

  (2) The certified inspector shall review the facility files to confirm that:

    (a) All testing required by this chapter has been completed;

    (b) The operator has performed daily inspections of the Stage II equipment;

    (c) The records required by this chapter are complete and maintained onsite; and

    (d) All other requirements of this chapter are being met.

  (3) The certified inspector shall complete an inspection form provided by the Department and submit the completed form to the Department within 30 days after completing the inspection.

#### Regulation .06 Training Requirements for Operation and Maintenance of Approved Systems.

*COMAR 26.11.24.06*

A. General. An operator shall ensure that:

  (1) At least one employee at each facility subject to this regulation is trained in accordance with the requirements of §B of this regulation; and

  (2) The trained employee assists in the training of each of the other employees at that facility who are involved in the operation or maintenance of the approved system.

B. Approved Training Course Contents and Duration.

  (1) An approved training course shall contain, at a minimum, a discussion of the following:

    (a) Purposes and effects of Stage II vapor recovery;

    (b) Stage II vapor recovery equipment design, function, operation, and maintenance;

    (c) Daily inspection requirements and development and maintenance of records and files; and

    (d) Equipment warranties and spare parts.

  (2) The approved training course shall be of a duration sufficient to properly train persons in the requirements of this chapter.

#### Regulation .07 Record-Keeping and Reporting Requirements.

*COMAR 26.11.24.07*

A. An operator subject to this chapter shall create and maintain a record file at the facility.

B. The record file shall contain copies of all test reports, permits, violation notices, correspondence with the Department, equipment maintenance records, training records, and other information pertinent to the requirements of this chapter. Verification of training shall be maintained in the facility file. Equipment maintenance records required under this chapter shall be maintained for at least 2 years. All other records shall be maintained for at least 5 years.

C. The equipment maintenance records shall include:

  (1) The date on which defective equipment was found, a description of each defect, a description of the corrective action and the date on which the defect was corrected, and the probable cause of the defect;

  (2) If parts are replaced, the location within the approved system of the part, the part number, and assurance that the replacement part does not degrade the efficiency of the system; and

  (3) Inspection reports and any other information relating to maintenance or care of the approved system.

D. An owner or operator of a gasoline dispensing facility exempted according to Regulation .02C of this chapter shall create and maintain records on gasoline throughput and tank sizes and make the records available to the Department on request.

E. The following reporting requirements apply to any test required under this chapter:

  (1) The Department shall be notified 5 days before a test is to be conducted;

  (2) A test protocol shall be available at the test site during testing;

  (3) Copies of all test results shall be forwarded to the Department within 30 days of the test; and

  (4) Test failures shall be reported to the Department in writing within 5 days following the date of the failure.

#### Regulation .08 Instructional Signs.

*COMAR 26.11.24.08*

A. An operator who is subject to this chapter shall place instructional signs in conspicuous locations at each gasoline dispenser.

B. The instructional signs shall include:

  (1) Instructions, with illustrations, on how to insert the nozzle, dispense gasoline, and how to remove the nozzle;

  (2) A warning against attempts to continue refueling after automatic shut-off of the gasoline (that is, topping off); and

  (3) The Department's toll-free telephone number which may be used for complaints or comments concerning the use of Stage II vapor recovery systems.

#### Regulation .09 Sanctions.

*COMAR 26.11.24.09*

A. A person who violates any provision of this chapter is subject to the sanctions set forth in Environment Article, Title 2, Annotated Code of Maryland. Each day of violation constitutes a separate violation. These sanctions in the Annotated Code of Maryland include:

  (1) Injunctive relief under Environment Article, §2-609;

  (2) Judicial penalties up to $25,000 per violation under Environment Article, §2-610;

  (3) Administrative penalties up to $2,500 per violation, limited to $50,000 per administrative action, under Environment Article, §2-610.1; and

  (4) Criminal penalties for knowing violations under Environment Article, §2-609.1.

B. After this chapter is approved by EPA as an amendment to the State Implementation Plan, a person who violates any provision of this chapter may be subject to federal enforcement action.

### Chapter 25 — Control of Glass Melting Furnaces

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: September 24, 1984 (11:17 Md. R. 1492)

**Administrative History:** Regulation .03B amended effective July 2, 1985 (12:11 Md. R. 1050)

**Administrative History:** Chapter recodified from COMAR 10.18.16 to COMAR 26.11.16

**Administrative History:** Chapter recodified from COMAR 26.11.16 to COMAR 26.11.25 effective October 5, 1998 (25:20 Md. R. 1533)

#### Regulation .01 Definitions.

*COMAR 26.11.25.01*

A. “All-electric melter” means a glass melting furnace in which all the heat required for melting is provided by electric current from electrodes submerged in the molten glass, although some fossil fuel may be charged to the furnace as raw material.

B. “Glass melting furnace” means a unit comprising a refractory vessel in which raw materials are charged, melted at high temperature, refined, and conditioned to produce molten glass. The unit includes raw material charger systems, heat exchangers, melter cooling systems, exhaust system, fuel supply and electrical boosting equipment, integral control systems, and instrumentation and appendages for conditioning and distributing molten glass to forming apparatuses.

C. “Opal recipe” means raw material formulation of the following approximate proportions:

  (1) 72 percent silica;

  (2) 15 percent soda;

  (3) 10 percent lime and magnesia;

  (4) 2 percent alumina; and

  (5) 1 percent miscellaneous materials.

#### Regulation .02 Applicability and Exemptions.

*COMAR 26.11.25.02*

A. The requirements of this chapter do not apply to frit manufacturing furnaces, flat glass furnaces, and all-electric melters.

B. Any installation or source which is subject to the provisions of this chapter is also subject to the provisions of any other chapter. However, when this chapter establishes an emission standard for a specific installation which differs from a general emission standard in COMAR 26.11.06.01—.09, this chapter takes precedence.

C. This regulation applies only in Areas III and IV.

#### Regulation .03 Visible Emissions from Glass Melting Furnaces.

*COMAR 26.11.25.03*

A. General Requirements.

  (1) A person may not cause or permit the discharge of emissions of greater than 20 percent opacity from a glass melting furnace.

  (2) A person may not cause or permit the discharge of fugitive emissions of greater than 20 percent opacity from a building containing forming and post-forming equipment.

B. Exceptions.

  (1) The provisions of §A(1) and (2) of this regulation do not apply to emissions that occur during process modifications or adjustments and that are not greater than 40 percent opacity for a period of not more than 6 consecutive minutes in any 60 minutes.

  (2) A person who owns or operates a gas-fired installation subject to this chapter other than an opal recipe glass melting furnace is not eligible for a visible emission exception under COMAR 26.11.06.02B for that installation.

#### Regulation .04 Particulate Matter Emissions from Glass Melting Furnaces.

*COMAR 26.11.25.04*

A. General Requirements. A person may not cause or permit the discharge of particulate matter into the outdoor atmosphere from a glass melting furnace in excess of the amount determined using the following equation:

  (1) E = 5 + 0.48 (P)

  (2) E = 2.27 + 0.24 (P)

where:

B. Exception. A person who owns or operates an opal recipe glass melting furnace with an interruptible gas service, as defined in COMAR 26.11.09.01C, may exceed the requirements in Regulation .03A of this chapter and §A of this regulation when gas service is interrupted by the utility if maximum available electric boosting is used in conjunction with an alternative fuel.

### Chapter 26 — Conformity

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: June 5, 1995 (22:11 Md. R. 825)

**Administrative History:** Chapter revised effective April 6, 1998 (25:7 Md. R. 530)

**Administrative History:** Chapter revised effective August 9, 1999 (26:16 Md. R. 1246)

**Administrative History:** Regulation .01 amended effective January 29, 2007 (34:2 Md. R. 139)

**Administrative History:** Regulation .02 amended effective January 29, 2007 (34:2 Md. R. 139)

**Administrative History:** Regulation .03B amended effective January 29, 2007 (34:2 Md. R. 139)

**Administrative History:** Regulation .04 amended effective January 29, 2007 (34:2 Md. R. 139)

**Administrative History:** Regulation .05C amended effective January 29, 2007 (34:2 Md. R. 139)

**Administrative History:** Regulation .05E amended effective January 29, 2007 (34:2 Md. R. 139); June 30, 2008 (35:13 Md. R. 1182)

**Administrative History:** Regulation .07A amended effective January 29, 2007 (34:2 Md. R. 139)

**Administrative History:** Regulation .08 amended effective January 29, 2007 (34:2 Md. R. 139)

**Administrative History:** Regulation .09 amended effective January 29, 2007 (34:2 Md. R. 139)

#### Regulation .01 Purpose and Scope.

*COMAR 26.11.26.01*

The purpose of this chapter is to implement §176(c)(4)(E) of the Clean Air Act (CAA), as amended (42 U.S.C. §7401 et seq.), and the related requirements of 23 U.S.C. §109(j), with respect to the conformity of transportation plans, programs, and projects which are developed, funded, or approved by the United States Department of Transportation (DOT), and by metropolitan planning organizations (MPOs) or other recipients of funds under Title 23 U.S.C. or the Federal Transit Laws (49 U.S.C. Chapter 53). This chapter sets forth policy, criteria, and procedures for demonstrating and assuring conformity of these activities to an applicable implementation plan developed pursuant to §110 and Part D of the CAA. The requirements in this chapter are applicable in areas of the State designated by the U.S. Environmental Protection Agency as nonattainment or maintenance areas for any relevant National Ambient Air Quality Standards (NAAQS).

#### Regulation .02 Definitions.

*COMAR 26.11.26.02*

A. In this chapter, all terms not defined in this regulation have the meanings stated in 40 CFR §§93.101 and 93.152, as amended, which is incorporated by reference.

B. Terms Defined.

  (1) “Adopt or approve of” a regionally significant project means the first time any of the following actions are necessary to authorize a project to occur:

    (a) Any policy board action necessary for the project to proceed;

    (b) The issuance of administrative permits for the project;

    (c) The execution of a contract to construct the project;

    (d) Any final action of a board, commission, or administrator authorizing or directing employees to proceed with construction of the project; or

    (e) Any written decision or authorization from the metropolitan planning organization (MPO) that the project may be adopted or approved.

  (2) “Applicable implementation plan”, “applicable SIP”, and “State implementation plan” mean the Maryland State Implementation Plan (SIP), including revisions approved by the United States Environmental Protection Agency (EPA) and any Federal Implementation Plan adopted by EPA that applies to Maryland.

  (3) “Cooperation” means that the parties involved in carrying out the planning, programming, and management systems processes work together to achieve a common goal or objective.

  (4) “Department” means the Department of the Environment.

  (5) “Governor” means the Governor of Maryland.

  (6) “MDOT” means the Maryland Department of Transportation.

  (7) Metropolitan Planning Organization (MPO).

    (a) “Metropolitan planning organization (MPO)” means the:

      (i) Organization responsible, together with the State, for conducting the continuing, cooperative, and comprehensive planning process under 23 U.S.C. §134 and 49 U.S.C. §5303; and

      (ii) Forum for cooperative transportation decision making.

    (b) “Metropolitan planning organization (MPO)” includes:

      (i) The “Baltimore Regional Transportation Board (BRTB),” the MPO for the Baltimore region, which includes Anne Arundel, Baltimore, Carroll, Harford, and Howard counties and the cities of Baltimore and Annapolis;

      (ii) The “Hagerstown/Eastern Panhandle (HEP)” MPO for the Hagerstown area, which includes Washington County, Maryland and the counties of Berkeley and Jefferson in West Virginia;

      (iii) The “National Capital Transportation Planning Board (TPB) ”, the MPO for the Washington region, which includes Frederick, Montgomery, and Prince George's counties in Maryland, the District of Columbia, and Northern Virginia; and

      (iv) The “Wilmington Area Planning Council (WILMAPCO)”, the MPO for New Castle County, Delaware and Cecil County, Maryland.

  (8) Regional Planning Organization (RPO).

    (a) “Regional planning organization” means an organization certified by the Governor as being responsible for the preparation of air quality plans for a nonattainment area under §174 of the federal Clean Air Act.

    (b) “Regional planning organization” may include elected officials of State and local governments in the affected nonattainment area, or representatives of the MDE, MDOT, and MPOs for the affected area.

    (c) “Regional planning organization” is the forum for a cooperative decision-making process for air quality planning in the RPO's specific nonattainment area.

  (9) “State” means the State of Maryland.

  (10) “State air agency” means the Maryland Department of the Environment, Air and Radiation Management Administration.

  (11) “Statewide transportation improvement program (STIP)” means a staged, multiyear, intermodal program of transportation projects covering the State, which is consistent with the Statewide transportation plan and metropolitan transportation plans, and developed under 23 CFR 450.

  (12) “Statewide transportation plan” means the official intermodal Statewide transportation plan that is developed through the Statewide planning process for the State, under 23 CFR 450.

  (13) Transportation Control Measure (TCM).

    (a) “Transportation Control Measure” means:

      (i) A measure that is specifically identified and committed to in the applicable implementation plan that is either one of the types listed in §108 of the Clean Air Act; or

      (ii) Any other measure for the purpose of reducing emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion conditions.

    (b) “Transportation control measure” does not include vehicle technology-based, fuel-based, and maintenance-based measures which control the emissions from vehicles under fixed traffic conditions.

#### Regulation .03 Transportation Conformity.

*COMAR 26.11.26.03*

A. Applicability to Transportation-Related Projects Subject to Federal Regulations. All transportation plans, programs, and projects developed, funded, or approved in Maryland, under Title 23 U.S.C. or the Federal Transit Act (49 U.S.C. §1601 et seq.) shall conform to the Maryland State Implementation Plan.

B. Requirement for Conformity. Each agency and organization charged with the responsibility to make transportation conformity determinations shall do so pursuant to this chapter and the provisions of 40 CFR Part 93, Subpart A, as amended, which is incorporated by reference.

#### Regulation .04 Transportation Conformity — Consultation in General.

*COMAR 26.11.26.04*

A. The MPOs, RPOs, the Department, and MDOT shall comply with the procedures in this chapter governing interagency consultation, conflict resolution, and public consultation with each other and with divisional or regional offices of the EPA, Federal Highway Administration (FHWA), and Federal Transit Administration (FTA) on the development of:

  (1) Control strategy implementation and maintenance plan revisions;

  (2) The list of TCMs in applicable implementation plans;

  (3) The Unified Planning Work Program (UPWP) under 23 CFR §450.314;

  (4) Transportation plans;

  (5) Transportation improvement programs (TIPs); and

  (6) Associated conformity determinations required by this chapter.

B. An agency may not participate in the consultation process unless it is identified as a participating agency in this chapter.

#### Regulation .05 Transportation Conformity — Interagency Consultation Requirements.

*COMAR 26.11.26.05*

A. Consultation Process.

  (1) Representatives of the MPOs, RPOs, the Department, and MDOT shall undertake an interagency consultation process with the FHWA, FTA, and EPA, in accordance with this regulation and Regulations .06—.08 of this chapter on the development of:

    (a) UPWP, transportation plans, TIPs, any revisions to them, and associated conformity determinations; and

    (b) The SIP and revisions to the SIP.

  (2) The MPOs are the lead agencies responsible for preparing an amendment or revision of the UPWP, the transportation plan, or the TIP and for making conformity determinations.

  (3) In nonmetropolitan, or rural nonattainment and maintenance areas, the MDOT is the lead agency responsible for preparing amendments or revisions to the Statewide transportation plan, or the Statewide TIP, and making conformity determinations.

  (4) The Department is the lead agency responsible for preparing revisions to the SIP and incorporating TCMs recommended by the MPOs and MDOT.

  (5) In the case of metropolitan nonattainment and maintenance areas that have a certified RPO, the RPO is the agency responsible for preparing an air quality plan and for assuring the adequacy of the interagency consultation process with respect to the development of the proposed air quality plan, and any amendments or revisions to the plan.

B. When serving as lead agency, the MPOs, RPOs, MDOT, and MDE have the following responsibilities:

  (1) Initiating the applicable consultation process by notifying other participants, convening meetings, preparing summaries, assuring that all relevant documents and information are supplied to all participants in the consultation process in a timely manner, maintaining a written record of the consultation process, and providing final documents and supporting information to each participating agency after approval or adoption;

  (2) Enabling regular consultation on major activities (such as the development of a transportation plan, the development of a TIP, any determination of conformity on transportation plans or TIPs, or the development of a SIP) including meetings beginning on a date determined by the lead agency to be adequate to meet the date a final decision is required and continuing at a frequency mutually agreed upon by the affected agencies;

  (3) Convening meetings of technical staff as necessary;

  (4) Conferring with all other agencies identified in §A of this regulation with an interest in the planning process, providing all information to those agencies needed for meaningful input, soliciting early and continuing input from those agencies, before taking any action, considering the views of each agency and responding to those views in a timely, substantive written manner, and making the views and written response part of the record of any decision or action;

  (5) When not fulfilling the responsibilities of a lead agency, reviewing and commenting as appropriate (including comments in writing) on all proposed decisions and actions in a timely manner, attending consultation and decision meetings, providing input on any area of substantive expertise or responsibility, and providing technical assistance to the lead agency or to the consultation process when requested.

C. In addition to serving as lead agency pursuant to §A(2) of this regulation, the MPOs are responsible for:

  (1) Developing or approving transportation and related socioeconomic data and local planning assumptions, or both, and providing data and assumptions for use in air quality analysis for SIP tracking and conformity of transportation plans, TIPs, and projects;

  (2) Providing transportation demand forecasting for development of on-road mobile source emissions inventories by the Department and MDOT;

  (3) In cooperation with MDOT, evaluating potential TCM projects and impacts;

  (4) In cooperation with MDOT, monitor regionally significant projects to determine a need for emissions modeling;

  (5) In cooperation with MDOT, providing technical and policy input into the development of emissions budgets;

  (6) In cooperation with MDOT, consulting with other MPOs on emissions analysis for transportation activities which cross the borders of the MPOs or nonattainment areas;

  (7) In cooperation with MDOT, determining which transportation projects should be considered “regionally significant” for the purpose of regional emission analysis (in addition to those functionally classified as principal arterial roadway or higher classifications, fixed guideway systems, or extensions that offer an alternative to regional highway travel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP;

  (8) In cooperation with MDOT, assuring that plans for construction of regionally significant projects which are not FHWA or FTA funded or approved projects (including projects for which alternative locations, design concept and scope, or the no-build options are still being considered), including all plans by recipients of funds designated under 23 U.S.C or the Federal Transit Act, are disclosed by the MPO members on a regular basis, and assuring that any changes to those plans are immediately disclosed and the interagency consultation process undertaken involving the MPO and MDOT and the recipients of funds designated under 23 U.S.C. or the Federal Transit Act;

  (9) In cooperation with MDOT, designing, scheduling, and funding research and data collection efforts and model developments in regional transportation, such as household or travel transportation surveys;

  (10) In cooperation with MDOT and the Department, evaluating and choosing each model or models and associated methods and assumptions to be used in regional transportation demand analysis, including vehicle miles traveled (VMT) forecasting;

  (11) In cooperation with the Department and MDOT, evaluating whether projects otherwise exempted from meeting the requirements of 40 CFR §93.127 should be treated as nonexempt in cases where potential adverse emissions impacts may exist for any reason;

  (12) In cooperation with MDOT and the Department, making a determination as required by 40 CFR §93.113, whether past obstacles to implementation of TCMs that are behind the schedule established in the applicable implementation plan have been identified and are being overcome, and whether State and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approvals or funding for TCMs, and as part of this consultation, considering whether delays in TCM implementation necessitate revisions to the applicable implementation plan to remove TCM or substitute TCMs or other emission reduction measures;

  (13) In cooperation with MDOT and the Department, determining what forecast of vehicle miles traveled (VMT) to use in establishing or tracking emissions budgets, developing transportation plans, TIPs, or control strategy implementation plan revisions, or making conformity determinations;

  (14) In cooperation with MDOT and the Department, evaluating events which may trigger new conformity determinations in addition to those triggering events established by 40 CFR §93.104;

  (15) In cooperation with MDOT and the Department, developing assumptions regarding the location and design concept and scope of projects which are disclosed to the MPO as required by this regulation, but whose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of 40 CFR §93.122, as amended;

  (16) In cooperation with MDOT and the Department, consulting with the FHWA and FTA on timely action on final findings of conformity; and

  (17) In cooperation with MDOT and the Department, obtaining guidance on conformity and the transportation planning process for agencies involved in the interagency consultation process.

D. In addition to serving as lead agency pursuant to §A(3) of this regulation, MDOT is responsible for:

  (1) Circulating draft and final environmental impact or assessment documents to appropriate agencies;

  (2) Convening air quality technical review meetings on specific projects as needed or when requested by other agencies;

  (3) In rural nonattainment areas and areas not included in an MPO, assuring the proper completion of transportation modeling and regional emissions analyses and the documentation of timely implementation of TCMs needed for conformity assessments; and

  (4) Representing jurisdictions outside the metropolitan planning area within the nonattainment or maintenance area on the MPO when determining conformity on all projects in those areas.

E. In addition to serving as lead agency pursuant to §A(4) of this regulation, the Department is responsible for:

  (1) Developing emissions inventories and budgets;

  (2) Tracking attainment of air quality standards and emission factor model updates;

  (3) Gaining final approval at the State level for control strategy implementation plan revisions and maintenance plans;

  (4) In cooperation with MDOT, choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas;

  (5) In cooperation with MDOT, evaluating and choosing each model or models and associated methods and assumptions to be used in hot-spot analysis;

  (6) In cooperation with MDOT and MPOs, consulting with the EPA on review and approval of updated motor vehicle emissions factors, emission inventories, and budgets;

  (7) In cooperation with MDOT and MPOs, obtaining guidance on conformity criteria and procedures for the agencies involved in the interagency consultation process; and

  (8) In nonattainment areas where an RPO has been certified, cooperating with the RPO in the development of emissions inventories and budgets, and in the development of regional air quality plans.

#### Regulation .06 Transportation Conformity — Conflict Resolution Associated with Conformity Determinations.

*COMAR 26.11.26.06*

A. Unresolved conflicts among State agencies, or between State agencies and the MPOs, or among the MPO member jurisdictions, shall be identified by an MPO or agency in writing to the other MPO, the Department, or MDOT, with copies to the FHWA, FTA, and EPA. The MPOs or agency's written notice shall:

  (1) Explain the nature of the conflict;

  (2) Review options for resolving the conflict;

  (3) Describe the MPO's or agency's proposal to resolve the conflict;

  (4) Explain the consequences of not reaching a resolution; and

  (5) Request that comments on the matter be received within 2 weeks.

B. If the action in §A of this regulation does not result in a resolution of the conflict, one of the following applies:

  (1) If the conflict is between the MPOs or between the MPOs and MDOT then the parties shall follow the coordination procedures of 23 CFR §450.210;

  (2) If the conflict is between the MPOs or MDOT and the Department and the conflict cannot be resolved by the affected agency heads:

    (a) The Secretary of the Environment may elevate the conflict to the Governor in accordance with the procedures of §C of this regulation, or

    (b) If the MDE Secretary does not appeal to the Governor within 14 days as provided in §C of this regulation, the MPO or MDOT may proceed with its final conformity determination;

  (3) In the case of interstate nonattainment areas, if the conflict involves agencies outside of Maryland, and the conflict cannot be resolved by the affected agency heads, the conflict may be resolved in a manner mutually agreed to by the parties involved.

C. Appeals to the Governor by the Secretary of the Environment under the provisions of §B(2) of this regulation shall be in accordance with the following procedures:

  (1) The Secretary of the Environment has 14 calendar days to appeal to the Governor after the MPO or MDOT has notified the Secretary of the MPO's or MDOT's resolution of the Department's comments;

  (2) The notification to the Secretary shall be in writing and shall be hand-delivered;

  (3) The 14-day appeal commences when MDOT or MPO has confirmed receipt by the Secretary of the agency's or MPO's resolution of the Department's comments;

  (4) The appeal to the Governor shall contain:

    (a) The conformity determination and any supporting documentation,

    (b) The Department's comments on the determination, and

    (c) Any response by the MPOs or MDOT to the MDE;

  (5) The Department shall provide a complete appeal package to the MPO and MDOT within 24 hours following the date on which the appeal is filed with the Governor's Office;

  (6) If the Governor does not concur with the conformity determination, the Governor may direct revision of the applicable implementation plan, revision of the planned program of projects, revision of the conformity analysis, or any combination of these;

  (7) If the Governor concurs with the conformity determination made by the MPO and MDOT, the MPO and MDOT may proceed with the final conformity determination; and

  (8) The Governor may delegate the Governor's role in this process, but not to the agency head or staff of the MDE or MDOT.

D. This regulation does not prevent the State agencies and MPOs from making efforts on their own initiative to obtain mutual conflict resolution through conferences or other appropriate means.

#### Regulation .07 Transportation Conformity — Public Consultation Procedures.

*COMAR 26.11.26.07*

A. In accordance with 40 CFR §93.105(e), the MPOs shall:

  (1) Establish a proactive public involvement process which provides reasonable opportunity for review and comment before taking formal action on a conformity determination for all transportation plans and TIPs, consistent with the requirements of 23 CFR §450.316(b);

  (2) Release information supporting conformity determinations at the beginning of the public comment period; and

  (3) Assess and impose reasonable charges for public inspection and copying of such information, consistent with the fee schedule contained in 49 CFR §7.43.

B. If the public disagrees with the MPO's decision about whether a project is regionally significant and whether it was modeled properly in the emission analysis supporting a proposed conformity finding for a transportation plan or TIP, a written explanation shall be provided by the MPO upon request by the public.

C. The MPOs shall also provide an opportunity for public involvement in conformity determinations for projects when otherwise required by law.

#### Regulation .08 Transportation Conformity — Interagency Consultation Procedures.

*COMAR 26.11.26.08*

The MPOs, RPOs, MDOT, and the Department may enter into agreements to set forth specific consultation procedures in more detail that are not in conflict with this chapter.

#### Regulation .09 General Conformity.

*COMAR 26.11.26.09*

Each department, agency, and instrumentality of the federal government shall comply with the general conformity requirements of 40 CFR Part 93, Subpart B, as amended, which is incorporated by reference. This regulation addresses and replaces the requirements at 40 CFR §93.151 for a revision to the Maryland State Implementation Plan.

### Chapter 27 — Emission Limitations for Power Plants

**Authority:** Environmental Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 2-1003, 10-102, 10-103, and 10-1002, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.06 adopted as an emergency provision effective January 18, 2007 (34:3 Md. R. 291); adopted permanently effective July 16, 2007 (34:14 Md. R. 1246)

**Administrative History:** Regulation .02C adopted as an emergency provision effective April 11, 2009 (36:10 Md. R. 715); adopted permanently effective September 7, 2009 (36:18 Md. R. 1382)

**Administrative History:** Regulation .02C repealed effective July 8, 2013 (40:13 Md. R. 1077)

**Administrative History:** Regulation .03 amended as an emergency provision effective April 11, 2009 (36:10 Md. R. 715); amended permanently effective September 7, 2009 (36:18 Md. R. 1382)

**Administrative History:** Regulation .03 amended effective July 8, 2013 (40:13 Md. R. 1077)

#### Regulation .01 Definitions.

*COMAR 26.11.27.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Affected facility” means any one of the following electric generating stations:

    (a) Brandon Shores;

    (b) C. P. Crane;

    (c) Chalk Point;

    (d) Dickerson;

    (e) H. A. Wagner;

    (f) Morgantown; and

    (g) R. P. Smith.

  (2) “Ozone season” means the period beginning May 1 of any given year and ending September 30 of the same year.

  (3) “System” means two or more electric generating units subject to this chapter that are owned, operated, or controlled by the same person.

  (4) "12-month rolling average emission rate" means an average emission rate determined at the conclusion of each month by calculating:

    (a) For each hour that the unit is operating, the arithmetic average of all hourly emission rates for each operating day of a given calendar month to obtain a monthly average; and

    (b) The arithmetic monthly average, as determined in §B(4)(a) of this regulation, of the previous 12 calendar months.

#### Regulation .02 Applicability and Exemptions.

*COMAR 26.11.27.02*

A. This chapter applies to the following fossil-fuel fired electric generating units:

  (1) Brandon Shores Units 1 and 2;

  (2) C.P. Crane Units 1 and 2;

  (3) Chalk Point Units 1 and 2;

  (4) Dickerson Units 1, 2, and 3;

  (5) H.A. Wagner Units 2 and 3;

  (6) Morgantown Units 1 and 2; and

  (7) R. Paul Smith Units 3 and 4.

B. Except as provided in Regulation .03B(7) of this chapter, compliance with this chapter may not be achieved by applying sulfur dioxide (SO2), oxides of nitrogen (NOx), or mercury allowances acquired under any state or federal emissions trading program.

#### Regulation .03 General Requirements.

*COMAR 26.11.27.03*

A. An electric generating unit subject to this chapter shall comply with the emission limitations for NOx, SO2, and mercury as provided in this regulation.

B. NOx Emission Limitations.

  (1) Except as provided in §E of this regulation, annual NOx emissions from each affected electric generating unit may not exceed the number of tons in §B(2) of this regulation.

  (2) Annual Tonnage Limitations.

  (3) Except as provided in §E of this regulation, ozone season NOx emissions from each affected electric generating unit may not exceed the number of tons in §B(4) of this regulation.

  (4) Ozone Season Tonnage Limitations.

  (5) Except as provided in §§B(7) and E of this regulation, if after reviewing 2009 ozone season measured ozone levels at air monitoring stations located in Maryland, the Department determines that ozone levels in Maryland exceed the levels required to meet the National Ambient Air Quality Standard for ozone, commencing on May 1, 2012, ozone season NOx emissions from each affected electric generating unit may not exceed the number of tons in §B(6) of this regulation.

  (6) Ozone Season Tonnage Limitations.

  (7) Electric System Reliability During Ozone Seasons.

    (a) An exceedance of the NOx limitations in §B(4) or (6) of this regulation which occurs because PJM Interconnection, LLC or a successor independent system operator, acts to invoke “Maximum Emergency Generation”, “Load Reduction”, “Voltage Reduction”, “Curtailment of Non-essential Building Load”, or “Manual Load Dump” procedures in accordance with the current PJM Manual, or a PJM alert preceding such action as to a generating unit that has temporarily shut down in order to avoid potential interruption in electric service and maintain electric system reliability is not a violation of this chapter provided that:

      (i) Within 36 hours following the action, the owner or operator of the affected electric generating unit or units notifies the Manager of the Air Quality Compliance Program of the action taken by PJM Interconnection and provides the Department with documentation of the action which is satisfactory to the Department;

      (ii) Within 48 hours after completion of the action, the owner or operator of the affected unit or units provides the Department with the estimated NOx emissions in excess of the emission limitation; and

      (iii) Not later than December 31 of the year in which the emission limitation is exceeded, the owner or operator of the affected generating unit or units transfers to the Maryland Environmental Surrender Account, ozone season NOx allowances equivalent in number to the tons of NOx emitted in excess of the emission limitation in §B(4) or (6), as applicable.

    (b) The owner or operator of an electric generating unit or system, as applicable, shall send written notice to the Manager of the Air Quality Compliance Program not later than 5 business days following the day when the cumulative ozone season NOx emissions of an electric generating unit or system, as applicable, are:

      (i) Equal to approximately 80 percent of the applicable ozone season emission limitation; and

      (ii) Equal to the applicable ozone season emission limitation.

C. SO2 Emission Limitations.

  (1) Except as provided in §E of this regulation, annual SO2 emissions from each affected electric generating unit may not exceed the number of tons in §C(2) of this regulation.

  (2) Annual Tonnage Limitations.

D. Mercury Emission Limitations.

  (1) For the 12-month period from January 1, 2010 through December 31, 2010 and ending with the 12-month period beginning December 1, 2012 through November 30, 2013, each affected facility shall meet a 12-month rolling average removal efficiency for mercury of at least 80 percent.

  (2) For the 12 months beginning January 1, 2013 and thereafter, each affected facility shall meet a 12-month rolling average removal efficiency for mercury of at least 90 percent.

  (3) The mercury removal efficiency required in §D(1) and (2) of this regulation shall be determined in accordance with Regulation .04 of this chapter.

E. System-Wide Compliance Determinations.

  (1) Compliance with the emission limitations in §§B and C of this regulation may be achieved by demonstrating that the total number of tons emitted from all electric generating units in a system does not exceed the sum of the tonnage limitations for all electric generating units in that system.

  (2) A system-wide compliance determination shall be based only upon emissions from units in Maryland that are subject to the emission limitations in §§B and C of this regulation.

  (3) If a unit that is part of a system is transferred to a different person that does not own, operate, lease, or control an affected unit subject to this chapter, the transferred unit shall meet the limitations in §§B and C of this regulation applicable to that electric generating unit.

#### Regulation .04 Determining the Mercury Removal Efficiency for Affected Facilities.

*COMAR 26.11.27.04*

A. The procedures of §§B—F of this regulation shall be used to demonstrate compliance with the 12-month rolling average removal efficiency required for mercury by Regulation .03D of this chapter. The owner or operator of an affected facility shall notify the Department of the compliance demonstration method it has elected from §§D—F of this regulation on or before January 1, 2010, for the compliance period that commences on that date and on or before January 1, 2013, for the compliance period that commences on that date. The owner or operator of an electric generating unit that elects to demonstrate compliance with the required mercury removal efficiency by meeting the mass emissions limitation in §F of this regulation shall utilize that same method for all other electric generating units in the system. Once elected for each affected facility or system, as applicable, the option may not be changed during the designated compliance period, but may be changed for the next compliance period.

B. Determining Mercury Content in Coal and Mercury Flue Gas Emission Rates for Each Affected Electric Generating Unit.

  (1) The owner or operator of an electric generating unit subject to this regulation shall, at least once each quarter during a consecutive 18-month period beginning not later than July 1, 2007:

    (a) Determine the mercury content of the coal utilized by each affected unit using a test method approved by the Department; and

    (b) Conduct a combustion gas test to determine the mercury emission rate in the flue gas upstream of any pollution control measure, including fuel mercury beneficiation.

  (2) Combustion gas testing and collection of coal samples to determine the mercury content in coal shall be performed on the same day or days.

  (3) The mercury emission rate in the flue gas shall be reported as ounces of mercury per trillion Btu heat input.

  (4) Combustion gas testing shall be performed using a test protocol approved by the Department. The test protocol shall be submitted to the Department at least 45 days prior to commencement of testing.

  (5) The owner or operator of an affected electric generating unit shall submit to the Department:

    (a) The results of tests to determine the mercury content of coal and mercury emission rate in the flue gas upon receipt; and

    (b) A demonstration that the combustion gas tests were performed utilizing a coal with a mercury content within the same or lower range as the mercury content of the coal utilized by the electric generating unit during the previous 10 years.

C. Determining the Uncontrolled Mercury Flue Gas Baseline for an Affected Facility.

  (1) The uncontrolled mercury emission rate in the flue gas of each electric generating unit subject to this chapter shall be determined as the arithmetic average of the quarterly combustion gas tests required by §B of this regulation expressed as ounces per trillion Btu heat input.

  (2) The uncontrolled mercury baseline emission rate for an affected facility shall be determined as the heat input weighted average of the emission rates for the coal-fired electric generating units at the affected facility determined in accordance with §C(1) of this regulation.

  (3) The uncontrolled mercury baseline emission rate in §C(1) and (2) of this regulation shall be measured upstream of all pollution control measures, including fuel mercury beneficiation.

D. Demonstrating Compliance By Measuring Mercury Removal Efficiency. Compliance with the required mercury removal efficiency is demonstrated at an affected facility when the heat input weighted average of the mercury emission rate of all coal-fired electric generating units at the affected facility, calculated as a 12-month rolling average, is:

  (1) For the 12-month period commencing on January 1, 2010, not more than 20 percent of the uncontrolled mercury emission rate established pursuant to §C of this regulation; and

  (2) For the 12-month period commencing January 1, 2013 and thereafter, not more than 10 percent of the uncontrolled mercury emission rate established pursuant to §C of this regulation.

E. Demonstrating Compliance by Meeting a Mercury Emission Rate.

  (1) Compliance with the required mercury removal efficiency is achieved for an affected facility when the heat input weighted average of the mercury emission rates of all coal-fired electric generating units at the affected facility, measured as a 12-month rolling average, does not exceed the applicable emission rate in §E(2) of this regulation.

  (2) Emission Rates.

F. Demonstrating Compliance by Meeting a Mercury Mass Emission Cap.

  (1) Compliance with the required mercury removal efficiency is demonstrated at an affected facility when the mass emissions, measured in pounds for a 12-month rolling period, do not exceed the applicable emission limits in §F(2) of this regulation.

  (2) Mercury Emission Limits.

  (3) In the event that an electric generating unit at an affected facility subject to this chapter permanently ceases operation, the mass emission limitation in §F(2) of this regulation which is applicable to that affected facility shall be reduced proportionally based on the relative capacity, in megawatts, of all the electric generating units at the affected facility which are subject to this regulation.

  (4) In the event that an entire affected facility within a system permanently ceases operation, the total mass emission limitation in §F(2) of this regulation shall be reduced by the mass emission limitation applicable to the affected facility.

  (5) Except during periods of startup, shutdown, malfunction, or maintenance, the owner or operator of an electric generating unit shall ensure that mercury control measures are continuously employed on each unit and properly adjusted for optimal control taking into consideration the operating conditions.

#### Regulation .05 Monitoring and Reporting Requirements.

*COMAR 26.11.27.05*

A. Compliance with the emission limitations in this chapter shall be demonstrated with a continuous emission monitoring system that is installed, operated, and certified in accordance with 40 CFR Part 75.

B. Beginning with calendar year 2007 and each year thereafter, the owner or operator of each electric generating unit subject to this chapter shall submit an annual report to the Department, the Department of Natural Resources, and the Public Service Commission. The report for each calendar year shall be submitted not later than March 1 of the following year.

C. Each report shall include:

  (1) Emissions performance results related to compliance with the emission requirements under this chapter;

  (2) Emissions of NOx and SO2, and beginning with calendar year 2010, mercury, emitted during the previous calendar year from each affected unit;

  (3) A current compliance plan; and

  (4) Any other information requested by the Department.

#### Regulation .06 Judicial Review of Penalty Waivers.

*COMAR 26.11.27.06*

A. Applicability. The provisions of this regulation govern judicial review of determinations by the Department to reduce or waive penalties for failure to achieve timely compliance with this chapter in accordance with Environment Article, §2-1002(i)(3), Annotated Code of Maryland.

B. Public Notice Requirements.

  (1) The Department shall provide public notice of a tentative determination to grant a request for reduction or waiver of penalties made in accordance with Environment Article, §2-1002(i)(2), Annotated Code of Maryland.

  (2) The public notice shall:

    (a) Be posted on the Department's website;

    (b) Published in a newspaper of general circulation in the area in which the affected unit is located at least once a week for 2 consecutive weeks; and

    (c) Be sent by first class mail, postage prepaid, or electronic mail to all persons who have requested to be notified about any request for reduction or waiver of penalties submitted to the Department.

  (3) The public notice required by this regulation shall include the following information:

    (a) The Department's address and the name and telephone number of a contact person for more information;

    (b) The name and address of the person requesting a waiver or reduction of penalties;

    (c) Identification and address of the affected unit for which the reduction or waiver is requested;

    (d) The name, address, and phone number of a person representing the applicant from whom an interested person may obtain additional information;

    (e) The location where the following information is available for public inspection:

      (i) The complete application for the reduction or waiver of penalties, except for information qualifying as confidential;

      (ii) The tentative determination; and

      (iii) Other supporting information considered relevant by the Department;

    (f) Notice of an opportunity for public comment on the Department's tentative determination for a period of at least 30 calendar days; and

    (g) Notice of the public participation procedures and right to judicial review provided by this regulation.

C. Public Comment Period.

  (1) The Department shall provide at least 30 days for public comment on a tentative determination to grant a reduction or waiver of penalties during which time any person may submit written comments on the tentative determination.

  (2) The Department shall consider all comments that raise issues of law or material fact that are germane to the tentative determination.

D. Final Determination.

  (1) The Department shall prepare a final determination if:

    (a) The Department has received timely and germane written comments that are adverse to the tentative determination; or

    (b) The final determination is substantively different from the tentative determination.

  (2) If the Department is not required to prepare a final determination under §D(1) of this regulation, the tentative determination becomes the final determination when the request for reduction or waiver of penalties is granted.

  (3) Notice of the final determination shall be mailed to each person that submitted comments on the tentative determination.

E. Petition for Judicial Review.

  (1) Final determinations to reduce or waive penalties are subject to judicial review by any person who:

    (a) Meets standing requirements under federal law; and

    (b) Participated in the public comment process through the timely submission of written comments.

  (2) Judicial review shall be on the administrative record before the Department and limited to objections raised in written comments received during the public comment period, unless the petitioner demonstrates:

    (a) That the objections were not reasonably ascertainable during the comment period; or

    (b) That grounds for the objections arose after the comment period.

F. Record for Judicial Review. The record for judicial review of a final determination to grant a request to reduce or waive penalties shall consist of all written comments submitted to the Department during the public comment period, all information considered by the Department in making its final determination, and, in the case of a petition based upon new grounds under §E(2) of this regulation, any information that is relevant and material to the new grounds.

### Chapter 28 — Cross-State Air Pollution Rule to Control Annual Nitrogen Oxides Emissions, Annual Sulfur Dioxide Emissions, and Ozone Season Nitrogen Oxides Emissions

**Authority:** Environmental Article, §§1-404, 2-103, and 2-301—2-303, Annotated Code of Maryland

**Administrative History:** Effective date: Effective March 23, 2020 (47:6 Md. R. 342)

#### Regulation .01 Definitions.

*COMAR 26.11.28.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “CSAPR” means the federal Cross-State Air Pollution Rule promulgated under §110 of the federal Clean Air Act.

  (2) “CSAPR NOx Annual Trading Program” means a multi-state NOx air pollution control and emission reduction program established in accordance with 40 CFR Part 97, Subpart AAAAA, as published July 1, 2017, and 40 CFR §52.38(a) (including such a program that is revised in a SIP revision approved by the Administrator under 40 CFR §52.38(a)(3) or (4) or that is established in a SIP revision approved by the Administrator under 40 CFR §52.38(a)(5)), as a means of mitigating interstate transport of fine particulates and NOx.

  (3) “CSAPR NOx Ozone Season Group 2 Trading Program” means a multi-state NOx air pollution control and emission reduction program established in accordance with 40 CFR Part 97, Subpart EEEEE, as published July 1, 2017, and 40 CFR §52.38(b)(1), (2)(iii), (7)—(11), and (13) (including such a program that is revised in a SIP revision approved by the Administrator under 40 CFR §52.38(b)(7) or (8) or that is established in a SIP revision approved by the Administrator under 40 CFR §52.38(b)(9)), as a means of mitigating interstate transport of ozone and NOx.

  (4) “CSAPR SO2 Group 1 Trading Program” means a multi-state SO2 air pollution control and emission reduction program established in accordance with 40 CFR Part 97, Subpart CCCCC, as published July 1, 2017, and 40 CFR §52.39(a), (b), (d)—(f), and (j)—(l) (including such a program that is revised in a SIP revision approved by the Administrator under 40 CFR §52.39(f)), as a means of mitigating interstate transport of fine particulates and SO2.

  (5) “CSAPR Update” means the federal Cross-State Air Pollution Update Rule promulgated under §110 of the federal Clean Air Act.

  (6) “Existing unit” for the purpose of allocation means:

    (a) A unit under the CSAPR NOx Annual Trading Program or the CSAPR SO2 Group 1 Trading Program that commenced commercial operation prior to January 1, 2010.

    (b) A unit under the CSAPR NOx Ozone Season Group 2 Trading Program that commenced commercial operation prior to January 1, 2015.

  (7) “New unit” for the purpose of allocation means any unit that is not an existing unit.

#### Regulation .02 Requirements.

*COMAR 26.11.28.02*

A. This chapter incorporates by reference the U.S. EPA CSAPR and the CSAPR Update, including the definitions, criteria, and procedures therein.

B. Trading Program Requirements.

  (1) This chapter incorporates by reference provisions of the CSAPR NOx Annual Trading Program set forth in 40 CFR Part 97, Subpart AAAAA, as published July 1, 2017, and associated reference methods, performance specifications, and other test methods referenced by these standards, as applicable to existing and new units in Maryland, except the provisions at 40 CFR §97.411(b)(2) and (c)(5)(iii), 97.412(b), and 97.421(h) and (j).

  (2) This chapter incorporates by reference provisions of the CSAPR NOx Ozone Season Group 2 Trading Program set forth in 40 CFR Part 97, Subpart EEEEE, as published July 1, 2017, and associated reference methods, performance specifications and other test methods referenced by these standards, as applicable to existing and new units in Maryland, except the provisions at 40 CFR §§97.811(b)(2) and (c)(5)(iii), 97.812(b), and 97.821(h) and (j).

  (3) This chapter incorporates by reference provisions of the CSAPR SO2 Group 1 Trading Program set forth in 40 CFR Part 97, Subpart CCCCC, as published July 1, 2017, and associated reference methods, performance specifications and other test methods referenced by these standards, as applicable to existing and new units in Maryland, except the provisions at 40 CFR §§97.611(b)(2) and (c)(5)(iii), 97.612(b), and 97.621(h) and (j).

### Chapter 29 — Control of NO

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, and 2-301—2-303, Annotated Code of Maryland

**Administrative History:** Effective date: May 1, 2000 (27:8 Md. R. 799)

**Administrative History:** Regulation .09 amended effective November 24, 2003 (30:23 Md. R. 1654)

**Administrative History:** Regulations .01—.15 repealed and new Regulations .01—.05 adopted as an emergency provision effective January 1, 2010 (37:4 Md. R. 336); adopted permanently effective May 31, 2010 (37:11 Md. R. 766)

**Administrative History:** Regulations .01—.05 under NOx Reduction Requirements for Non-Electric Generating Units, repealed and new Regulations .01—.05 under Control of NOx Emissions from Natural Gas Pipeline Compression Stations, adopted effective July 20, 2015 (42:14 Md. R. 885)

#### Regulation .01 Definitions.

*COMAR 26.11.29.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Natural gas pipeline compression station” means a main line natural gas transmission station, consisting of one or more internal combustion engines, used to compress natural gas, thereby sustaining flow of natural gas through the pipeline.

  (2) “Parametric optimization” means the adjustment of an internal combustion engine, such as adjustment of the air-to-fuel ratio, that maximizes engine efficiency and minimizes emissions.

#### Regulation .02 Applicability and General Requirements.

*COMAR 26.11.29.02*

A. Applicability. This chapter applies to stationary internal combustion engines used to compress natural gas located at natural gas pipeline compression stations.

B. NOx Emission Limits. A person who owns or operates a stationary internal combustion engine to which this chapter applies shall perform either parametric optimization or engine rebuild to meet the following NOx emission limits:

  (1) Facilities with five or fewer internal combustion engines shall meet a combined maximum hourly emission limit of 300 pounds per hour or less.

  (2) Facilities with more than five engines shall meet a combined maximum hourly emission limit of 566 pounds per hour or less.

C. NOx Emission Rates.

  (1) The NOx emission rates in §C(2) of this regulation apply to a stationary internal combustion engine used to compress natural gas at a natural gas pipeline compression station if the engine is one of the types and corresponding sizes identified in §C(2) of this regulation.

  (2) Emission Rates.

  (3) The NOx emission rates in §C(2) of this regulation shall apply on and after May 1, 2003.

#### Regulation .03 Monitoring Requirements.

*COMAR 26.11.29.03*

A. A person who owns or operates a stationary internal combustion engine subject to Regulation .02C of this chapter shall:

  (1) Continuously monitor NOx emissions with a continuous emissions monitor (CEM) certified in accordance with 40 CFR Part 60 or use an alternative method approved by the Department and the EPA;

  (2) On or before May 1, 2002, and every year thereafter, collect NOx emissions data that was obtained pursuant to §A(1) of this regulation; and

  (3) Submit emissions data collected pursuant to §A(2) of this regulation to the Department for the previous calendar year by April 1 of each year.

B. The NOx emissions data collected pursuant to §A(2) of this regulation shall be used to demonstrate compliance with the emission reduction requirements in Regulation .02C of this chapter.

#### Regulation .04 Demonstrating Compliance.

*COMAR 26.11.29.04*

A. Internal Combustion Engines Equipped with a CEM.

  (1) The owner or operator of an internal combustion engine subject to this chapter that is equipped with a CEM shall demonstrate compliance with the NOx emissions limits and rates in Regulation .02B, C of this chapter using CEM data.

  (2) The sum of the NOx emissions from all affected engines at the facility shall be used to demonstrate compliance with Regulation .02B.

B. Internal combustion engines not equipped with a CEM.

  (1) The owner or operator of an internal combustion engine subject to this chapter that is not equipped with a CEM shall demonstrate compliance with the NOx emissions limits and rates in Regulation .02B, C of this chapter as follows:

    (a) Compliance shall be established by stack tests using EPA Method 7 or other test methods approved by the Department and the EPA; or

    (b) Compliance shall be established by an alternative emissions test approved by the Department.

  (2) The results of the stack tests or alternative emissions test for each engine and fuel consumption records submitted to the Department pursuant to Regulation .05 of this chapter shall be used to calculate NOx emissions for each affected engine.

  (3) The sum of the NOx emissions from all of the stationary internal combustion engines at a natural gas pipeline compression station that are subject to this chapter shall be used to demonstrate compliance with Regulation .02B.

  (4) Stack test schedule. The owner or operator of an internal combustion engine subject to this chapter that is not equipped with a CEM shall conduct a stack test or an alternative emissions test approved by the Department to determine NOx emissions for each affected engine not less than once each 12-month period.

#### Regulation .05 Maintaining Records.

*COMAR 26.11.29.05*

Results from the previous calendar year of the stack tests, emissions tests, or CEM data and fuel consumption records for each internal combustion engine subject to this chapter shall be submitted to the Department as part of the annual emissions report due April 1 of each year.

### Chapter 30 — Control of Portland Cement Manufacturing Plants

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: July 20, 2015 (42:  Md. R. 884)

#### Regulation .01 Scope.

*COMAR 26.11.30.01*

This chapter contains all of the general requirements that apply to Portland cement manufacturing plants. New or modified cement plants may be subject to more restrictive requirements that are included in a permit issued by the Department. Portland cement manufacturing plants subject to this chapter may also be subject to federal New Source Performance Standards under 40 CFR Part 60, Subpart F, and National Emission Standards for Hazardous Air Pollutants from the Portland Cement Manufacturing Industry under 40 CFR Part 63, Subpart LLL.

#### Regulation .02 Applicability.

*COMAR 26.11.30.02*

A. The requirements of this chapter apply to cement kilns and other installations located at Portland cement manufacturing plants.

B. Any source which is subject to the provisions of this chapter may also be subject to the provisions of any other chapter. However, when this chapter establishes an emission standard for a specific installation which differs from the general emission standards in COMAR 26.11.06.01—.09, this chapter takes precedence.

#### Regulation .03 Definitions.

*COMAR 26.11.30.03*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Cement kiln” means an installation, including any associated pre-heater or pre-calciner devices, that produces clinker by heating limestone and other materials to produce Portland cement.

  (2) “Cement manufacturing installation” means process equipment used for subsequent production of Portland cement.

  (3) “Clinker cooler” means an installation into which clinker product leaving the kiln is placed to be cooled by air supplied by a forced air draft or natural draft supply system.

  (4) “Long dry kiln” means a cement kiln that does not have a pre-calciner and in which dry starting raw materials are fed into the kiln.

  (5) “PM continuous parametric monitoring system” (CPMS) means a continuous emission monitoring system used to establish a parameter range for the purposes of demonstrating compliance.

  (6) “Pre-calciner kiln” means a cement kiln that contains a pre-calciner at the bottom of the pre-heater tower before the materials enter the kiln.

  (7) “30-day rolling average” means the arithmetic average of all valid hourly NOx emission rates of the previous 720 valid hours on a rolling basis.

  (8) “30 process operating day” means:

    (a) The first day after the compliance date following completion of the field testing and data collection that demonstrates that the CPMS or CEMS has satisfied the relevant CPMS performance evaluation or CEMS performance specification acceptance criteria; and

    (b) For purposes of this chapter, the performance test period is complete at the end of the 30th consecutive operating day.

#### Regulation .04 Particulate Matter.

*COMAR 26.11.30.04*

A. The owner or operator of a cement manufacturing installation may not cause or permit the discharge of emissions of particulate matter to exceed the limits in §B of this regulation.

B. Emission Limits.

  (1) Areas I, II, V, and VI. In Areas I, II, V, and VI, a person may not cause or permit particulate matter to be discharged from any installation in excess of 0.05 grains per standard cubic foot dry.

  (2) Areas III and IV. In Areas III and IV, a person may not cause or permit particulate matter to be discharged from any installation in excess of 0.03 grains per standard cubic foot dry.

  (3) Compliance with the particulate matter standards of §B(1) and (2) of this regulation shall be demonstrated by a 3-run stack test using Method 5 or Method 5I of 40 CFR Part 60.

C. Particulate Matter Monitoring Requirements for Cement Kilns and Clinker Coolers. On or after September 1, 2016, the owner or operator of a cement kiln or clinker cooler at a Portland cement manufacturing plant shall:

  (1) Use a PM continuous parametric monitoring system (CPMS) to establish a site-specific operating parameter limit corresponding to the results of the performance test as required in §B(3) of this regulation demonstrating compliance with the PM limits in §B(1) and (2) of this regulation;

  (2) Conduct the performance test as required in §B(3) of this regulation using Method 5 or Method 5I of 40 CFR part 60;

  (3) Use the PM CPMS to demonstrate continuous compliance with the site-specific operating parameter limit established in §C(1) of this regulation;

  (4) Repeat the performance test as required in §B(3) of this regulation annually and reassess and adjust the site-specific operating parameter limit of §C(1) of this regulation in accordance with the results of the performance test using the procedures in 40 CFR §63.1349(b)(1)(i)—(ix); and

  (5) Follow the procedures in 40 CFR §63.1350(b)(iii) and (iv) for any exceedance of the established operating parameter limit of §C(1) of this regulation on a 30 process operating day basis.

#### Regulation .05 Visible Emission Standards.

*COMAR 26.11.30.05*

A. The owner or operator of a cement manufacturing installation may not cause or permit the discharge of emissions which exceed the visibility standards in §B of this regulation.

B. Visibility Standards.

  (1) In Areas I, II, V, and VI a person may not cause or permit the discharge of emissions from any installation or building, other than water in an uncombined form, which is greater than 20 percent opacity.

  (2) In Areas III and IV a person may not cause or permit the discharge of emissions from any installation or building, other than water in an uncombined form, which is visible to human observers.

  (3) Compliance with the visibility standards of §B(1) and (2) of this regulation shall be demonstrated by a visible emission observation using Method 9 of 40 CFR Part 60.

C. Visible Emission Monitoring Requirements for Cement Kilns. The owner or operator of a cement kiln at a Portland cement manufacturing plant shall either:

  (1) Use a COM in accordance with the requirements of COMAR 26.11.01.10; or

  (2) Use a PM continuous parametric monitoring system (CPMS) to establish a site-specific operating parameter limit for continuous visible emission compliance determinations in accordance with Regulation .04C of this chapter.

D. Visible Emission monitoring requirements for clinker coolers. On or after September 1, 2016, the owner or operator of a clinker cooler at a Portland cement manufacturing plant shall either:

  (1) Use a COM in accordance with the requirements of COMAR 26.11.01.10; or

  (2) Use a PM continuous parametric monitoring system (CPMS) to establish a site-specific operating parameter limit for continuous visible emission compliance determinations in accordance with Regulation .04C(1)—(5) of this chapter.

#### Regulation .06 Sulfur Compounds.

*COMAR 26.11.30.06*

A. Sulfur Dioxide (SO2).

  (1) Areas I, II, V, and VI. In Areas I, II, V, and VI, an owner or operator of a cement manufacturing installation may not cause emissions into the atmosphere with an SO2 concentration greater than 2,000 ppm for sources constructed before January 17, 1972, or 500 ppm for sources constructed on or after January 17, 1972.

  (2) Areas III and IV. In Areas III and IV, an owner or operator of a cement manufacturing installation may not cause emissions into the atmosphere with an SO2 concentration greater than 2,000 ppm for sources constructed before February 21, 1971, or 500 ppm for sources constructed on or after February 21, 1971.

B. Sulfuric Acid and Sulfur Trioxide.

  (1) Areas I, II, V, and VI. In Areas I, II, V, and VI, an owner or operator of a cement manufacturing installation may not cause emissions of sulfuric acid, sulfur trioxide, or any combination of them, in excess of 70 milligrams per cubic meter reported as sulfuric acid, for any source constructed before January 17, 1972, or 35 milligrams per cubic meter reported as sulfuric acid, for any source constructed on or after January 17, 1972.

  (2) Areas III and IV. In Areas III and IV, an owner or operator of a cement manufacturing installation may not cause emissions of sulfuric acid, sulfur trioxide, or any combination of them, in excess of 70 milligrams per cubic meter reported as sulfuric acid for any source constructed before February 21, 1971, or 35 milligrams per cubic meter reported as sulfuric acid for any source constructed on or after February 21, 1971.

C. All calculations of emissions for §§A and B of this regulation shall be adjusted to standard conditions and 7 percent oxygen.

#### Regulation .07 Nitrogen Oxides (NO

*COMAR 26.11.30.07*

A. A person who owns or operates a cement kiln at a Portland cement manufacturing plant shall meet the following applicable NOx emission standards:

  (1) For long dry kilns, maximum emissions of 5.1 pounds of NOx per ton of clinker produced; and

  (2) For pre-calciner kilns, maximum emissions of 2.8 pounds of NOx per ton of clinker produced.

B. On and after April 1, 2017, the requirements in §A of this regulation no longer apply and cement kilns shall meet the applicable NOx emission standards in §C of this regulation.

C. On and after April 1, 2017, a person who owns or operates a cement kiln at a Portland cement manufacturing plant shall meet the following applicable NOx emission standards:

  (1) For long dry kilns, maximum emissions of 3.4 pounds of NOx per ton of clinker produced; and

  (2) For pre-calciner kilns, maximum emissions of 2.4 pounds of NOx per ton of clinker produced.

D. Compliance with the emission standards in §§A and C of this regulation shall be demonstrated as a 30-day rolling average.

#### Regulation .08 NO

*COMAR 26.11.30.08*

A. The owner or operator of a Portland cement manufacturing plant shall:

  (1) Continuously monitor NOx emissions with a continuous emissions monitor (CEM) system in accordance with COMAR 26.11.01.11B(1) and (4) and C;

  (2) Collect NOx emissions data that was obtained pursuant to §A(1) of this regulation; and

  (3) Submit emissions data collected pursuant to §A(2) of this regulation to the Department as specified under COMAR 26.11.01.11E(2).

B. The NOx  emissions data collected pursuant to §A(2) of this regulation shall be used to demonstrate compliance with the applicable NOx emission rate in Regulation .07 of this chapter.

### Chapter 31 — Quality Assurance Requirements for Continuous Opacity Monitors (COMs)

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: December 27, 1999 (26:26 Md. R. 1961)

**Administrative History:** Regulations .01—.15 under Small Business Pollution Compliance Loan Program repealed, and new Regulations .01—.12 under new chapter, Quality Assurance Requirements for Continuous Opacity Monitors (COMs) adopted effective June 13, 2011 (38:12 Md. R. 708)

#### Regulation .01 Scope.

*COMAR 26.11.31.01*

This chapter codifies the quality assurance (QA) and quality control (QC) procedures previously established by the Department’s Technical Memorandum 90-01 for continuous opacity monitors (COMs). The procedures are transferred into this chapter in regulatory format. In addition, the general provisions and quality control requirements found in COMAR 26.11.01.10 are also applicable to COMs.

#### Regulation .02 Applicability.

*COMAR 26.11.31.02*

A. The procedures specified by this chapter shall be used to evaluate the effectiveness of a facility’s quality assurance (QA) and quality control (QC) procedures for COMs. The procedures specify the minimum quality assurance requirements for the assessment and control of COM data.

B. Source owners and operators using COMs shall meet these minimum requirements and are encouraged to develop and implement a more extensive QA and QC program or to continue the programs where they already exist.

C. Data collected as a result of QA and QC measures required in this chapter shall be submitted to the Department. The data shall be used by both the Department and the owner or operator in assessing the effectiveness of the procedures in maintaining acceptable operation and valid emission data.

D. All sources using COMs shall develop and implement the required QC plan upon successful completion of the initial performance specification test and shall conduct the required QA procedures beginning with the first calendar quarter following the successful performance specification test.

E. These procedures explicitly specify the quality assessment methods to be used for calibration drift and quality audits but do not address the evaluation of monitor installation location or the design specification verification procedures which are addressed in Appendix B of 40 CFR Part 60.

#### Regulation .03 Incorporation by Reference.

*COMAR 26.11.31.03*

A. In this chapter, the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) Performance Specification 1 (PS1) under 40 CFR Part 60, Appendix B.

  (2) Performance Audit Procedures for Opacity Monitors, EPA 450/4-92-010 March 1992, Atmospheric Research and Exposure Assessment Laboratory, Research Triangle Park, North Carolina 27711.

#### Regulation .04 Definitions.

*COMAR 26.11.31.04*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Calibration drift (CD)”means the difference in the COM output reading from a reference value after a period of operation during which no unscheduled maintenance, repair, or adjustment took place. The reference value may be the simulated zero (or low-level) check or the upscale calibration value.

  (2) “Calibration error” means the difference between the opacity values indicated by the COM and the known values of a series of calibration attenuators (neutral density filters).

  (3) “Simulated zero check” means the use of a method or device to provide a simulated zero-opacity (or low-level value between zero and 20 percent of span value) and that provides a system check of the analyzer internal optical surfaces and all electronic circuitry including the lamp and photodetector assembly.

  (4) “Span value” means the opacity value at which the COM is set to produce the maximum data display output.

  (5) “Upscale calibration value” means the opacity value at which a calibration check of the COM is performed by simulating an upscale opacity condition using a neutral density filter or other related technique to produce a known obscuration of the light beam as viewed by the receiver.

#### Regulation .05 Principle.

*COMAR 26.11.31.05*

A. The QA procedures are a control loop composed of two functions:

  (1) Assessment of data quality by measurement of COM performance; and

  (2) Control and improvement of data quality by implementing QC policies and corrective actions.

B. When the assessment function indicates that data quality is inadequate, the control effort shall be increased until data quality is acceptable.

C. COM Accuracy Determination.

  (1) Quarterly performance audits involving a series of checks of monitoring system components and operation shall be performed to assess the accuracy of the COM data. Calibrated audit materials shall be required for certain checks as specified by this chapter.

  (2) The opacity monitoring data shall be considered accurate if the required audits do not identify problems that detract from the accuracy of the COM data.

D. Quality control and corrective actions encompass a variety of policies, specifications, standards, and corrective measures. To accommodate these site-specific variables, this chapter treats QC requirements in general terms to allow each source owner or operator to develop a QC system that is more effective and efficient for the circumstances. However, the final data output device used to report emissions to the Department in the quarterly excess emissions report shall be used for all required QA and QC measurements.

#### Regulation .06 Quality Control Requirements.

*COMAR 26.11.31.06*

A. Development and Implementation.

  (1) Each source owner or operator using a COM shall develop a written quality control (QC) program and submit that program to the Department for approval.

  (2) A source owner or operator may periodically revise its QC program to make it more effective and efficient. Each revised QC program shall be resubmitted to the Department for approval, along with the prior approved program.

  (3) A source owner or operator shall implement an approved QC program as expeditiously as possible.

  (4) The owner or operator shall maintain a current copy of the approved QC program on site for inspection.

B. Contents. At a minimum, each QC program shall include written procedures which describe in detail complete, step-by-step procedures and operations for each of the following activities:

  (1) Opacity calibration;

  (2) Calibration drift determination and adjustment;

  (3) Daily, monthly, and quarterly checks of component or system performance;

  (4) Preventive maintenance, including spare parts inventory;

  (5) Data recording, calculations, and reporting;

  (6) Performance audits and zero alignment procedures;

  (7) Corrective actions for malfunctioning COMs; and

  (8) Notification to the Department for the discovery of any out-of-control monitor.

#### Regulation .07 Opacity Calibration Drift Assessment.

*COMAR 26.11.31.07*

A. Calibration Drift (CD) Requirement.

  (1) Source owners and operators using COMs shall check, record, and quantify the CD at two opacity values at least once daily in accordance with the method prescribed by the manufacturer.

  (2) The COM calibration shall, at a minimum, be adjusted whenever the daily zero (or low-level) CD or the daily high-level CD exceeds the limits specified in Performance Specification 1 (PS1) in Appendix B of 40 CFR Part 60.

B. Recording Requirements for Automatic CD Adjusting Monitors.

  (1) Monitors that adjust the data to the corrected calibration values automatically (for example, microprocessor control) shall be programmed to record the unadjusted opacity before resetting the calibration, or record the amount of adjustment that is applied to the effluent opacity measurements.

  (2) The data recorded in accordance with §B(1) of this regulation is to be maintained on site for review by the Department for a period of 2 years.

C. Criteria for Excessive Calibration Drift.

  (1) If either the zero (or low-level) or high-level CD result exceeds the applicable drift specification in Performance Specification 1 for five consecutive daily periods, the COM shall be considered out of control.

  (2) If either the zero (or low-level) or high-level CD result exceeds two times the applicable drift specification in Performance Specification 1 during any CD check, the COM shall be considered out of control.

  (3) If the COM is out of control, the source owner or operator shall take necessary corrective action to correct the deviation.

  (4) The owner or operator shall repeat the CD checks no later than 24 hours following corrective action to repair an out-of-control COM.

D. Out-of-Control Period.

  (1) The beginning of the out-of-control period is the time corresponding to the completion of the fifth consecutive daily CD check with a CD in excess of the allowable limit or the time corresponding to the completion of the daily CD check preceding the daily CD check that results in a CD in excess of two times the allowable limit.

  (2) The end of the out-of-control period is the time corresponding to the completion of the CD check following corrective action that result in the CD at both the zero (or low-level) and the high-level measurement points being within the corresponding allowable CD limit.

#### Regulation .08 Audit Frequency.

*COMAR 26.11.31.08*

A. Each COM shall undergo a performance audit at least once each calendar quarter. Successive quarterly performance audits shall not occur within 2 months.

B. A zero alignment audit shall be conducted at least annually, with each coming before a corresponding quarterly performance audit. Successive zero alignment audits shall not occur within consecutive quarters.

C. When conducting a performance or zero alignment audit, the owner or operator shall use the same output device as used to report emissions to the Department in the quarterly excess emissions report.

#### Regulation .09 Performance Audit.

*COMAR 26.11.31.09*

A. Each performance audit shall include a series of checks of individual monitoring system components and factors affecting the accuracy of the monitoring data.

B. Calculations for COM data shall be in accordance with monitor specific calculations in the EPA document Performance Audit Procedures for Opacity Monitors, which is incorporated by reference in Regulation .03B(2) of this chapter. Examples of detailed audit procedures are also found in that referenced document.

C. A performance audit shall include checks for each procedure in an approved QC program, including, at a minimum, the following checks:

  (1) Stack Exit Correlation Error.

    (a) The value of the pathlength correction factor used by the monitor is measured according to procedures specified by the manufacturer.

    (b) The correct value of the pathlength correction factor is computed from the monitor pathlength and stack exit diameter.

    (c) The stack exit correlation error is determined as the ratio of the measured value to the correct value and is expressed as a percent.

  (2) Fault Indicators. Fault lamp indicators, data acquisition system error messages, and other system self-diagnostic indicators are examined to determine if the COM is operating within preset limits.

  (3) Zero and Upscale Responses.

    (a) The COM responses to the simulated zero condition (or low-level) and upscale calibration value are determined from the permanent data recording device according to the routine CD check procedure.

    (b) The zero and upscale response errors are determined from the permanent data recording device to the routine CD check procedure.

    (c) The zero and upscale response errors are determined as the difference between the corrected values and the observed response for the zero and upscale calibration check.

  (4) Zero Compensation. The value of the zero compensation applied at the time of the audit is determined as equivalent percent opacity. The value is corrected to stack exit conditions, according to the procedures specified by the manufacturer, where the applicable monitor includes an automatic correction to compensate for drift in the monitor’s response to the simulated zero opacity condition or dust accumulation on the optical surfaces of the transceiver.

  (5) Optical Alignment. The status of the optical alignment of the transmissometer components shall be determined using an alignment sight that indicates that the monitor is misaligned when a measurement error of 2 percent opacity or greater is caused by misalignment, in accordance with Performance Specification 1 incorporated by reference under Regulation .03B(1) of this chapter.

  (6) Optical Surface Dust Accumulation.

    (a) An estimate of the amount of dust (or other particulate matter) deposited on the exposed optical surfaces of the transmissometer is obtained by recording the apparent effluent opacity before and after cleaning of each of the exposed optical surfaces.

    (b) The total optical surface dust accumulation is the sum of the apparent reduction in opacity for all of the optical surfaces that are cleaned.

  (7) Calibration Error. The COM responses are compared using one of the following methods to the known values of three reference neutral density filters corrected to stack exit conditions:

    (a) The preferred method requires the installation of an audit device, adjusted to provide the same zero response as the monitor’s simulated zero check, that simulates the clear path condition and allows insertion of the filters into the light path; or

    (b) In those cases where an audit device is not available, an alternate method may be used by conducting an incremental calibration (that is, superimposing the audit filters and effluent opacity) and comparing the monitor response to the expected value calculated from the filter and effluent opacity values. This method is sensitive to fluctuations in the effluent opacity during the test.

#### Regulation .10 Calibration Error Methods.

*COMAR 26.11.31.10*

A. Test Methods.

  (1) For both calibration error methods in Regulation .09C(7) of this chapter, three filters shall each be placed in the light path five times and the monitor responses shall be determined from the permanent data recorder.

  (2) The low-, mid-, and high-range calibration error results are computed as the main difference and the 95 percent confidence interval for the difference between the expected and actual responses of the monitor difference as corrected to the stack exit conditions.

  (3) An owner or operator shall use neutral density filters with values that have been determined according to 7.1.3 Attenuator Calibration of Performance Specification 1, which is incorporated by reference under Regulation .03B(1) of this chapter.

B. Attenuator Values.

  (1) The stability of the attenuator values shall be checked at least once per year according to the procedure specified in Performance Specification 1, which is incorporated by reference under Regulation .03B(1) of this chapter.

  (2) The attenuator shall be recalibrated if the stability checks indicate a change of 2 percent opacity or greater.

  (3) Calibration attenuators that produce simulated opacities (as corrected to stack exit conditions) in the ranges listed in §C of this regulation shall be used.

  (4) Where the use of the specified audit filter values is not practical, alternate filter ranges may be used subject to the approval of the Department.

C. Filter Ranges for Opacity Performance Audits.

  (1) The filter ranges for opacity performance audits are as provided in §C(2) of this regulation or, as applicable, as provided in Performance Specification 1 (PS1) in Appendix B of 40 CFR Part 60.

  (2) Audit Points and Filter Range are as follows:

    (a) 8—15% Opacity (low)

    (b) 20—30% Opacity (mid)

    (c) 40—50% Opacity (high)

#### Regulation .11 Zero Alignment Audit.

*COMAR 26.11.31.11*

A. General Requirements.

  (1) A zero alignment audit conducted in accordance with Regulation .08B of this chapter shall compare the monitor responses to the simulated zero check and the actual clear path condition. Primary and alternate methods for performing the zero alignment audit are described in §A(2) and (3) of this regulation.

  (2) Primary Zero Alignment Method.

    (a) The primary zero alignment method shall be performed under clear path conditions. This is accomplished for the installed transmissometer where the process is not operating and the monitor pathlength is free of particulate matter or the monitor may be removed from its installation and set up under clear path conditions.

    (b) No adjustment to the monitor should be made other than the establishment of the proper monitor pathlength and correct optical alignment of the transmissometer components. For some monitors it may also be necessary to disable the zero compensation mechanism or to record the amount of correction applied to the simulated zero condition.

    (c) The monitor response to the clear path condition and to the simulated zero condition shall be recorded as percent opacity.

    (d) The response difference in percent opacity to the clear path and simulated zero conditions shall be recorded as the zero alignment error. The simulated zero device shall then be adjusted to provide the same response as a clear path condition.

    (e) The monitor shall then be restored to its operating mode at the facility.

  (3) Alternate Zero Alignment Method.

    (a) An external, removable zero-jig may be used to facilitate periodic checks of the simulated zero condition as an alternate zero alignment audit method if:

      (i) The zero-jig setting is established for the specific monitor by comparison of the monitor responses to the zero-jig and to clear path condition; and

      (ii) The zero-jig is capable of producing a consistent zero response when it is repeatedly installed on the monitor.

    (b) The zero-jig shall be protected when not in use to ensure that the setting equivalent to zero opacity does not change.

    (c) Source owners who use a zero-jig shall perform a primary zero alignment audit and check of the zero-jig setting at least once every 3 years.

B. Criteria for a Successful Audit.

  (1) Performance Audit. Performance of the COM shall be considered acceptable if it meets the following criteria:

    (a) Stack Exit Correlation Error: < 2 percent opacity;

    (b) Fault Indicators: Inactive/no error messages present;

    (c) Zero and Upscale Responses: < 2 percent opacity;

    (d) Zero compensation: < 4 percent opacity;

    (e) Optical Alignment: misalignment error < 2 percent opacity;

    (f) Optical Surface Dust Accumulation: < 4 percent opacity; and

    (g) Calibration Error: < 3 percent opacity.

  (2) Zero Alignment.

    (a) Calculations for a zero alignment audit shall be in accordance with the EPA document incorporated by reference in Regulation .03B(2) of this chapter.

    (b) The zero alignment is acceptable if the error of the simulated zero check is less than 2 percent opacity before adjustment.

    (c) The simulated zero check should be adjusted to provide the correct response each time the zero alignment audit is performed.

  (3) Out-of-Control Periods. The beginning of the out-of-control period is the time corresponding to the completion of the performance audit indicating unacceptable performance. The end of the out-of-control period is the time corresponding to the completion of the subsequent successful audit.

#### Regulation .12 Corrective Actions.

*COMAR 26.11.31.12*

A. Unacceptable Audit Results — Single Performance Audit.

  (1) If the COM is out-of-control, the owner or operator shall take necessary corrective action to eliminate the problem.

  (2) Following corrective action, the owner or operator, at a minimum, shall conduct a COM performance audit on the portion of the criteria that failed to indicate the COM is operating properly.

  (3) The COM operator shall include both the audit results showing the COM to be out of control and the results following corrective action showing the COM to be operating within specification in the quarterly report.

B. Unacceptable Audit Results — Multiple Performance Audits.

  (1) If an audit conducted in accordance with Regulation .09 of this chapter identifies unacceptable performance (that is, out-of-control conditions) for two consecutive quarters, the source owner or operator shall revise the current written QC procedures or modify or replace the COM to correct the deficiency causing the unacceptable performance.

  (2) If the owner or operator chooses to revise the written QC procedures in accordance with §B(1) of this regulation and Regulation .06 of this chapter, the revised procedures shall be submitted to the Department for approval, along with a copy of the current approved procedures.

C. Unacceptable Zero Alignment.

  (1) The performance of the monitoring system is unacceptable if the error of the simulated zero check before adjustment:

    (a) Exceeds 5 percent opacity for any zero alignment audit; or

    (b) Exceeds the 2 percent opacity acceptance criterion for three consecutive zero alignment audits.

  (2) If the performance of the monitoring system is unacceptable, the owner or operator shall:

    (a) Take corrective action to resolve the problem and improve the stability of the simulated zero check method or device; or

    (b) Replace the COM.

  (3) If corrective action is taken under §C(2)(a) of this regulation, the owner or operator shall conduct zero alignment audits at least twice each year during nonconsecutive calendar quarters.

  (4) If the results of the semi-annual zero alignment audits exceed the limits of §C(1) of this regulation, the owner or operator shall replace the COM.

### Chapter 32 — Control of Emissions of Volatile Organic Compounds from Consumer Products

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: August 18, 2003 (30:16 Md. R. 1076)

**Administrative History:** Regulation .01F adopted effective November 24, 2003 (30:23 Md. R. 1654)

**Administrative History:** Chapter revised effective June 18, 2007 (34:12 Md. R. 1068)

**Administrative History:** Regulation .01D, E amended effective October 9, 2017 (44:20 Md. R. 947)

**Administrative History:** Regulation .02B amended effective October 9, 2017 (44:20 Md. R. 947)

**Administrative History:** Regulation .03B amended effective October 9, 2017 (44:20 Md. R. 947)

**Administrative History:** Regulation .04A, B, D amended effective October 9, 2017 (44:20 Md. R. 947)

**Administrative History:** Regulation .05C amended effective October 9, 2017 (44:20 Md. R. 947)

**Administrative History:** Regulation .05-1 adopted effective October 9, 2017 (44:20 Md. R. 947)

**Administrative History:** Regulation .06A amended effective October 9, 2017 (44:20 Md. R. 947)

**Administrative History:** Regulation .08 amended effective October 9, 2017 (44:20 Md. R. 947)

**Administrative History:** Regulation .12D amended effective October 9, 2017 (44:20 Md. R. 947)

**Administrative History:** Regulation .14A, B amended effective October 9, 2017 (44:20 Md. R. 947)

**Administrative History:** Regulation .16 amended effective October 9, 2017 (44:20 Md. R. 947)

#### Regulation .01 Applicability and Exemptions.

*COMAR 26.11.32.01*

A. Applicability. This chapter applies to a person that sells, supplies, offers for sale, or manufactures consumer products on or after the effective date in Regulation .04B of this chapter, for use in the State.

B. Use Outside of the State.

  (1) The provisions of this chapter do not apply to a manufacturer or distributor who sells, supplies, or offers for sale in the State a consumer product that does not comply with the VOC standards specified in Regulation .04B of this chapter if the manufacturer or distributor demonstrates that the:

    (a) Consumer product is intended for shipment and use outside of the State; and

    (b) Manufacturer or distributor has taken reasonable prudent precautions to assure that the consumer product is not distributed to or within the State.

  (2) The exemption in §B(1) of this regulation does not apply to a person who sells, supplies, or offers for sale a consumer product to a retail outlet in the State.

C. Antiperspirants and Deodorants.

  (1) The medium volatility organic compound (MVOC) content standards specified in Regulation .04B of this chapter for antiperspirants or deodorants do not apply to ethanol.

  (2) The requirements of Regulation .04 of this chapter for antiperspirants or deodorants do not apply to VOCs that:

    (a) Contain more than 10 carbon atoms per molecule and for which the vapor pressure is unknown; or

    (b) Have a vapor pressure of 2 millimeters of mercury or less at 20°C.

  (3) The VOC limits specified in Regulation .04B of this chapter do not apply to colorants up to a combined level of 2 percent by weight contained in any antiperspirant or deodorant.

D. The VOC limits specified in Regulation .04B of this chapter do not apply to the following:

  (1) Fragrances up to a combined level of 2 percent by weight contained in a consumer product;

  (2) An LVP-VOC, except those contained in a charcoal lighter material subject to the requirements of Regulations .04B and .05 of this chapter;

  (3) Air fresheners comprised entirely of fragrance, excluding compounds not defined as VOCs or exempted under §D(2) of this regulation;

  (4) Insecticides containing at least 98 percent paradichlorobenzene;

  (5) Until January 1, 2009, solid air fresheners containing at least 98 percent paradichlorobenzene;

  (6) Adhesives sold in containers of 1 fluid ounce or less;

  (7) Units of product that are not aerosol adhesives and that, less packaging:

    (a) Consist of more than 1 gallon of contact adhesive; or

    (b) Weigh more than 1 pound and consist of more than 16 fluid ounces of the following:

      (i) Sealants and caulking compound;

      (ii) Construction, panel, and floor covering adhesive; or

      (iii) General purpose adhesive;

  (8) Bait station insecticides; and

  (9) Fabric protectants that are:

    (a) Designed for use solely on leather and fabrics that are labeled “for dry cleaning only”; and

    (b) Sold in containers of 10 fluid ounces or less.

  (10) Artist's solvent/thinner packaged and sold in a container equal to or less than 34 fluid ounces.

D-1. On or after January 1, 2009, the provisions of Regulation .10 of this chapter apply to solid air fresheners containing paradichlorobenzene.

E. The requirements in Regulation .13A of this chapter do not apply to consumer products that:

  (1) Are registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §136 et seq.; or

  (2) Contain VOCs at concentrations of 0.10 percent by weight or less.

F. Retail Sales.

  (1) A retailer who makes a consumer product available for sale that violates the standards in this chapter is not in violation of this chapter if:

    (a) The retailer demonstrates to the satisfaction of the Department that the purchase was made with reasonable good faith efforts to assure that the product met applicable State requirements; and

    (b) The retailer, upon determining that a noncomplying product was purchased, immediately discontinues sale of the product in the State.

  (2) Good faith efforts may include the following:

    (a) Written communication with manufacturers and distributors that only complying products will be accepted for sale in the State;

    (b) Written agreements between the retailer and the manufacturers and distributors, in which the manufacturer and distributor commit to supply only complying products;

    (c) The implementation of a self-audit program that periodically evaluates the purchase and sale of consumer products regulated under this chapter; and

    (d) The use of invoices, purchase orders, and other contractual and billing documents, which specify that only complying products are acceptable.

#### Regulation .02 Incorporation by Reference.

*COMAR 26.11.32.02*

A. In this chapter, the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) South Coast Air Quality Management District — Protocol — Rule 1174 Ignition Method Compliance Certification Protocol, dated February 28, 1991.

  (2) ASTM Designation: D4359-90 (Reapproved 2012), Standard Test Method for Determining Whether a Material is a Liquid or a Solid.

  (3) ASTM Designation: E260-96 (Reapproved 2011), Standard Practice for Packed Column Gas Chromatography.

  (4) CARB Method 310, Determination of Volatile Organic Compounds (VOC) in Consumer Products, adopted September 25, 1997, and as amended on August 6, 2010.

  (5) ASTM Designation: D86-04b Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure.

  (6) ASTM Designation: D4236-94 (Reapproved 2011), Standard Practice for Labeling Art Materials for Chronic Health Hazards.

#### Regulation .03 Definitions.

*COMAR 26.11.32.03*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “ACP” means alternative control plan as defined in this section.

  (2) “ACP agreement” means a document signed by the Department that:

    (a) Includes the conditions and requirements of the ACP; and

    (b) Allows manufacturers to sell ACP products in the State under the requirements of this chapter.

  (3) “ACP emissions” means the sum of the VOC emissions from every ACP product subject to an ACP agreement during the compliance period specified in the ACP agreement, expressed to the nearest pound of VOC and calculated according to the following equation:

    (a) Emissions = (VOC Content) × (Enforceable Sales) / 100;

    (b) For all products, except for charcoal lighter material products:

      (i) A = net weight of unit (excluding container and packaging);

      (ii) B = total weight of all VOCs per unit; and

      (iii) C = total weight of all exempted VOCs per unit, as specified in Regulation .01 of this chapter;

    (c) For charcoal lighter material products only:

      (i) Certified Emissions = the emissions level for products approved by the Department under Regulation .05 of this chapter, as determined under the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (Feb. 28, 1991), expressed to the nearest 0.001 pound CH2 per start; and

      (ii) Certified Use Rate = the usage level for products approved by the Department under Regulation .05 of this chapter, as determined under the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (Feb. 28, 1991), expressed to the nearest 0.001 pound certified product used per start.

  (4) “ACP limit” means the maximum allowable ACP emissions during the compliance period specified in an ACP agreement, expressed to the nearest pound of VOC and calculated according to the following equation:

    (a) Limit = (ACP Standard) × (Enforceable Sales) / 100;

    (b) Enforceable Sales = the total amount of an ACP product sold for use in the State during the applicable compliance period specified in the ACP agreement, as determined through enforceable sales records (expressed to the nearest pound, excluding container and packaging);

    (c) ACP Standard = either the ACP product's Pre-ACP VOC content, or the applicable VOC standard specified in Regulation .04B of this chapter, whichever is less;

    (d) Pre-ACP VOC Content = the lowest VOC content which the ACP product had between January 1, 1990, and the date on which the application for a proposed ACP is submitted to the Department, based on either the data on the product obtained from the March 12, 1991, California Air Resources Board (CARB) Consumer Products Survey, or other accurate records available to the Department, whichever yields the lowest VOC content for the product;

    (e) 1,2,.N = each product in an ACP up to the maximum N.

  (5) “ACP product” means a consumer product subject to the VOC standards in Regulation.04B of this chapter, except those products that have been exempted under Regulations .01, .11, or .12 of this chapter.

  (6) “ACP reformulation” means the process of reducing the VOC content of an ACP product, within the period that an ACP is in effect, to a level that is less than the current VOC content of the product.

  (7) “ACP standard” means either the ACP product's pre-ACP VOC content or the applicable VOC standard specified in Regulation .04B of this chapter, whichever is less.

  (8) “ACP VOC standard” means the maximum allowable VOC content for an ACP product, determined as follows:

    (a) The applicable VOC standard specified in Regulation .04B of this chapter for all ACP products except charcoal lighter material; or

    (b) For charcoal lighter material products only, the VOC standard for the purposes of this chapter shall be calculated according to the following equation:

      (i) 0.020 = the certification emissions level for the Department-approved product, as specified in Regulation .05 of this chapter; and

      (ii) Certified Use Rate = the usage level for products approved by the Department under Regulation .05 of this chapter, as determined pursuant to South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (Feb. 28, 1991), expressed to the nearest 0.001 pound certified product used per start.

  (9) Adhesive.

    (a) “Adhesive” means a product that is used to bond one surface to another surface by attachment.

    (b) “Adhesive” does not include products used on humans and animals, adhesive tape, contact paper, wallpaper, shelf liners, or other products with an adhesive incorporated onto or in an inert substrate.

  (10) Adhesive Remover.

    (a) “Adhesive remover” means a product designed to remove adhesives, including caulks, sealants, glues, or similar substances used for the purpose of forming a bond, from either a specific substrate or a variety of substrates.

    (b) “Adhesive remover” does not include products that remove adhesives intended exclusively for use on humans or animals.

  (11) Aerosol Adhesive.

    (a) “Aerosol adhesive” means an aerosol product in which the spray mechanism is permanently housed in a nonrefillable can designed for hand-held application without the need for ancillary hoses or spray equipment.

    (b) “Aerosol adhesive” includes special purpose spray adhesives, mist spray adhesives, and web spray adhesives.

  (12) “Aerosol cooking spray” means an aerosol product that is designed to reduce sticking on cooking and baking surfaces or be applied on food.

  (13) Aerosol Product.

    (a) “Aerosol product” means a pressurized spray system that dispenses product ingredients by means of a propellant contained in a product or a product's container or by means of mechanically induced force.

    (b) “Aerosol product” does not include pump spray.

  (14) Agricultural Use.

    (a) “Agricultural use” means the use of a pesticide or method or device for the control of pests in connection with the commercial production, storage, or processing of an animal or plant crop.

    (b) “Agricultural use” does not include the sale or use of pesticides in properly labeled packages or containers that are intended for:

      (i) Use in a household or its immediate environment;

      (ii) Use requiring a license under COMAR 15.05.01.03;

      (iii) Use for or in a manufacturing, mining, or chemical process or use in the operation of factories, processing plants, and similar sites; or

      (iv) Institutional use.

  (15) Air Freshener.

    (a) “Air freshener” means any product designed or labeled for the purpose of masking odors, or freshening, cleaning, scenting, or deodorizing the air.

    (b) “Air freshener” includes sprays, wicks, wipes, diffusers, powders, crystals, liquids, semisolids, solids, or aerosol or pump sprays, and dual purpose air freshener/disinfectant products.

    (c) “Air freshener” does not include:

      (i) A product that is used on the human body; or

      (ii) A product that functions primarily as a cleaning product, as indicated on a product label, odor remover/eliminator product or toilet/urinal care product.

  (16) “All other carbon-containing compounds” means all compounds which contain at least 1 carbon atom and are not a “Table B” compound or a “LVP-VOC”.

  (17) All Other Forms.

    (a) “All other forms” means all consumer product forms for which no form-specific VOC standard is specified.

    (b) “All other forms” includes, unless specified otherwise by the applicable VOC standard, solids, liquids, including pre-moistened cloth or paper wipes (towelettes), wicks, powders and crystals.

  (18) “Alternative control plan (ACP)” means an emissions averaging program approved by the Department under the provisions of this chapter.

  (19) Antimicrobial Hand or Body Cleaner or Soap.

    (a) “Antimicrobial hand or body cleaner or soap” means a cleaner or soap which is designed to reduce the level of microorganisms on the skin through germicidal activity.

    (b) “Antimicrobial hand or body cleaner or soap” includes antimicrobial hand or body washes or cleaners, foodhandler hand washes, healthcare personnel hand washes, preoperative skin preparations, and surgical scrubs.

    (c) “Antimicrobial hand or body cleaner or soap” does not include prescription drug products, antiperspirants, astringent/toner, deodorants, facial cleaner or soap, general-use hand or body cleaner or soap, hand dishwashing detergent (including antimicrobial), heavy-duty hand cleaner or soap, medicated astringent/medicated toner, or rubbing alcohol.

  (20) Antiperspirant.

    (a) “Antiperspirant” means a product that is intended by the manufacturer to be used to reduce perspiration in the human axilla by at least 20 percent in at least 50 percent of a target population.

    (b) “Antiperspirant” includes aerosols, roll-ons, sticks, pumps, pads, creams, and squeeze-bottles.

  (21) Anti-Static Product.

    (a) “Anti-static product” means a product that is labeled to eliminate, prevent, or inhibit the accumulation of static.

    (b) “Anti-static product” does not include electronic cleaner, floor polish or wax, or floor coating.

  (22) “Architectural coating” means a coating applied to stationary structures and their appurtenances, to mobile homes, to pavements, or to curbs.

  (22-1) Aromatic compound.

    (a) “Aromatic compound” means a carbon-containing compound that contains one or more benzene or equivalent heterocyclic rings and has an initial boiling point less than or equal to 280° C.

    (b) “Aromatic compound” does not include compounds excluded from the definition of Volatile organic compound (VOC) under COMAR 26.11.01.01B.

  (22-2) Artist’s solvent/thinner. “Artist’s solvent/thinner” means any liquid product that:

    (a) Has a label that meets the requirements of ASTM D4236-94 (Reapproved 2011), Standard Practice for Labeling Art Materials for Chronic Health Hazards; and

    (b) Is labeled to reduce the viscosity of, or remove, art coating compositions or components.

  (23) “ASTM” means the American Society for Testing and Materials.

  (24) Astringent/Toner.

    (a) “Astringent/toner” means a product not regulated as a drug by the U.S. Food and Drug Administration (FDA) and which is applied to the skin for the purpose of cleaning or tightening pores.

    (b) “Astringent/toner” includes clarifiers and substrate-impregnated products.

    (c) “Astringent/toner” does not include a hand, face, or body cleaner or soap product, medicated astringent/medicated toner, cold cream, lotion, or antiperspirant.

  (25) “Automobile headliner adhesive” means an aerosol adhesive designed to bond together layers in motor vehicle headliners.

  (26) “Automotive brake cleaner” means] a cleaning product manufactured before January 1, 2018 that is designed or labeled to remove oil, grease, brake fluid, brake pad material, or dirt from motor vehicle brake mechanisms.

  (27) “Automotive engine compartment adhesive” means an aerosol adhesive designed for use in motor vehicle under-the-hood applications which require oil and plasticizer resistance, as well as high shear strength, at temperatures of 200—275°F.

  (28) “Automotive hard paste wax” means an automotive wax or polish that is designed to protect and improve the appearance of automotive paint surfaces, is a solid at room temperature, and contains no water by formulation.

  (29) “Automotive instant detailer” means a product designed for use in a pump spray that is applied to the painted surface of automobiles and wiped off before the product is allowed to dry.

  (30) “Automotive rubbing or polishing compound” means a product designed primarily to remove oxidation, old paint, scratches or “swirl marks”, and other defects from the painted surfaces of motor vehicles without leaving a protective barrier.

  (31) Automotive Wax, Polish, Sealant, or Glaze.

    (a) “Automotive wax, polish, sealant, or glaze” means a product designed to seal out moisture, increase gloss, or otherwise enhance a motor vehicle's painted surfaces.

    (b) “Automotive wax, polish, sealant, or glaze” includes products designed for use in autobody repair shops and drive-through car washes, and by the general public.

    (c) “Automotive wax, polish, sealant, or glaze” does not include automotive rubbing or polishing compounds, automotive wash and wax products, surfactant-containing car wash products, or products designed for use on unpainted surfaces such as bare metal, chrome, glass, or plastic.

  (31-1) Automotive Windshield Cleaner.

    (a) “Automotive windshield cleaner” means a product manufactured on and after January 1, 2018 that:

      (i) Is labeled and packaged as an automotive windshield cleaner in the form of a pre-moistened towelette;

      (ii) Is labeled “automotive use only”; and

      (iii) Is designed to be used on automotive windshields, automotive mirrors, and automotive headlights.

    (b) “Automotive windshield cleaner” does not include automotive windshield washer fluid.

  (32) Automotive Windshield Washer Fluid.

    (a) “Automotive windshield washer fluid” means a liquid designed for use in a motor vehicle windshield washer system either as an antifreeze or for the purpose of cleaning, washing, or wetting the windshield.

    (b) “Automotive windshield washer fluid” does not include fluids placed by the manufacturer in a new vehicle.

  (33) “Bait station insecticide” means a container enclosing an insecticidal bait that is not more than 0.5 ounce by weight, where the bait is designed to be ingested by insects and is composed of solid material feeding stimulants with less than 5 percent active ingredients.

  (34) Bathroom and Tile Cleaner.

    (a) “Bathroom and tile cleaner” means a product designed or labeled to clean tile or surfaces in bathrooms.

    (b) “Bathroom and tile cleaner” does not include odor remover/eliminator and toilet/urinal care products.

  (34-1) “Brake cleaner” means a cleaning product manufactured on or after January 1, 2018 that is designed or labeled to remove oil, grease, brake fluid, brake pad material or dirt from motor vehicle brake mechanisms.

  (35) “Bug and tar remover” means a product labeled to remove from painted motor vehicle surfaces, without causing damage to the finish, either or both of the following:

    (a) Biological-type residues such as insect carcasses and tree sap; or

    (b) Road grime such as road tar, roadway paint markings, and asphalt.

  (36) “CARB” means the California Air Resources Board.

  (37) Carburetor or Fuel-Injection Air Intake Cleaner.

    (a) “Carburetor or fuel-injection air intake cleaner” means a product designed or labeled to remove fuel deposits, dirt, or other contaminants from a carburetor, choke, throttle body of a fuel-injection system, or associated linkages.

    (b) “Carburetor or fuel-injection air intake cleaner” does not include:

      (i) Products designed or labeled exclusively to be introduced directly into the fuel lines or fuel storage tank before introduction into the carburetor or fuel injectors; or

      (ii) Products designed or labeled exclusively to be introduced during engine operation directly into air intake vacuum lines by using a pressurized sprayer wand.

  (38) Carpet and Upholstery Cleaner.

    (a) “Carpet and upholstery cleaner” means a cleaning product designed for the purpose of eliminating dirt and stains on rugs, carpeting, the interior of motor vehicles, household furniture, or objects upholstered or covered with fabrics such as wool, cotton, nylon, or other synthetic fabrics.

    (b) “Carpet and upholstery cleaner” includes products that make fabric protectant claims.

    (c) “Carpet and upholstery cleaner” does not include general purpose cleaners, spot removers, vinyl or leather cleaners, dry cleaning fluids, or products designed exclusively for use at industrial facilities engaged in furniture or carpet manufacturing.

  (39) Charcoal Lighter Material.

    (a) “Charcoal lighter material” means a combustible material designed to be applied on, incorporated in, added to, or used with charcoal to enhance ignition.

    (b) “Charcoal lighter material” does not include electrical starters and probes, metallic cylinders using paper tinder, natural gas, propane, and fat wood.

  (39-1) “Clear coating” means a transparent coating usually applied over a colored opaque coating, metallic substrate, or placard to give improved gloss and protection to the color coat.

  (40) “Clear, paintable, water resistant caulking compound” means a compound which:

    (a) Contains no appreciable level of opaque fillers or pigments;

    (b) Transmits most or all visible light through the caulk when cured;

    (c) Is paintable; and

    (d) Is immediately resistant to precipitation upon application.

  (41) “Colorant” means a pigment or coloring material used in a consumer product for an aesthetic effect, or to dramatize an ingredient.

  (42) “Compliance period” means the period of time, not to exceed 1 year, for which the ACP limit and ACP emissions are calculated and for which compliance with the ACP limit is determined, as specified in the ACP agreement.

  (43) Construction, Panel, and Floor Covering Adhesive.

    (a) “Construction, panel, and floor covering adhesive” means a non-aerosol one-component adhesive that is designed or labeled for the installation, remodeling, maintenance, or repair of:

      (i) Structural and building components including beams, trusses, studs, ceiling and acoustical tile, molding, fixtures, countertops or countertop laminates, cove or wall bases, flooring or subflooring, and paneling; or

      (ii) Floor or wall coverings including wood or simulated wood covering, carpet, carpet pad or cushion, vinyl-backed carpet, flexible flooring material, nonresilient flooring material, mirror tiles and other types of tiles, and artificial grass.

    (b) “Construction, panel, and floor covering adhesive” does not include floor seam sealer.

  (44) Consumer.

    (a) “Consumer” means a person who purchases or acquires a consumer product for personal, family, household, or institutional use.

    (b) “Consumer” does not include a person who acquires a consumer product for resale.

  (45) Consumer Product.

    (a) “Consumer product” means a chemically formulated product used by household or institutional consumers.

    (b) “Consumer product” includes detergents, cleaning compounds, polishes, floor finishes, cosmetics, personal care products, home, lawn, and garden products, disinfectants, sanitizers, aerosol paints, automotive specialty products, and aerosol adhesives for consumer, industrial, or commercial uses.

    (c) “Consumer product” does not include paint products other than those listed under §B(45)(b) of this regulation, furniture coatings, or architectural coatings.

  (46) Contact Adhesive.

    (a) “Contact adhesive” means a non-aerosol adhesive that:

      (i) Is designed for application to two surfaces to be bonded together;

      (ii) Is allowed to dry before the two surfaces are placed in contact with each other;

      (iii) Forms an immediate bond that is impossible or difficult to reposition after both adhesive-coated surfaces are placed in contact with each other; and

      (iv) Does not need sustained pressure or clamping of surfaces after the adhesive-coated surfaces have been brought together using sufficient momentary pressure to establish full contact between both surfaces.

    (b) “Contact adhesive” does not include rubber cements intended primarily for use on paper substrates and vulcanizing fluids that are designed and labeled for tire repair only.

  (47) “Contact adhesive—general purpose” means any contact adhesive that is not a contact adhesive—special purpose.

  (48) “Contact adhesive—special purpose” means a contact adhesive that:

    (a) Is used to bond melamine-covered board, unprimed metal, unsupported vinyl, polytetrafluoroethylene or closely related fluoropolymer (for example, Teflon(r)), ultra-high molecular weight polyethylene, rubber, high pressure laminate, or wood veneer 1/16 inch or less in thickness to any porous or nonporous surface, and is sold in units of product, less packaging, that contain more than 8 fluid ounces;

    (b) Is used in automotive applications that are:

      (i) Automotive under-the-hood applications requiring heat, oil, or gasoline resistance; and

      (ii) Body-side molding, automotive weather stripping, or decorative trim.

  (49) “Contact person” means a representative that has been designated by the responsible ACP party for the purpose of reporting or maintaining information specified in the ACP agreement.

  (50) Container or Packaging.

    (a) "Container or packaging" means the part or parts of the consumer or institutional product that serve only to contain, enclose, incorporate, deliver, dispense, wrap, or store the chemically formulated substance or mixture of substances which is solely responsible for accomplishing the purposes for which the product was designed or intended.

    (b) "Container or packaging" includes an article onto or into which the principal display panel and other accompanying literature or graphics are incorporated, etched, printed, or attached.

  (51) Crawling Bug Insecticide.

    (a) “Crawling bug insecticide” means an insecticide product that is designed for use against ants, cockroaches, or other household crawling arthropods, including, mites, silverfish, and spiders.

    (b) “Crawling bug insecticide” does not include:

      (i) A product designed to be used exclusively on humans or animals; or

      (ii) A product whose label, packaging, or accompanying literature states that the product is suitable for use against house dust mites, but does not indicate that the product is suitable for use against ants, cockroaches, or other household crawling arthropods.

  (52) “Date-code” means the day, month, and year on which the consumer product was manufactured, filled, or packaged, or a code indicating that date.

  (53) Deodorant.

    (a) “Deodorant” means:

      (i) For products manufactured before January 1, 2009, a product that is intended by the manufacturer to be used to minimize odor in the human axilla by retarding the growth of bacteria that cause the decomposition of perspiration; and

      (ii) For products manufactured on or after January 1, 2009, a product that indicates or depicts on the container or packaging, or on any sticker or label affixed thereto, that the product can be used on or applied to the human axilla to provide a scent or minimize odor.

    (b) “Deodorant” includes aerosols, roll-ons, sticks, pumps, pads, creams, and squeeze-bottles.

  (54) “Deodorant body spray” means:

    (a) For products manufactured before January 1, 2009, a personal fragrance product with 20 percent or less fragrance; and

    (b) For products manufactured on or after January 1, 2009, a personal fragrance product with 20 percent or less fragrance, that is designed for application all over the human body to provide a scent.

  (55) Device.

    (a) “Device” means an instrument or contrivance other than a firearm that is designed for trapping, destroying, repelling, or mitigating pests, or other forms of plant or animal life other than man and other than bacteria, virus, or other microorganisms on or in living man or other living animals.

    (b) “Device” does not include equipment used for the application of pesticides when sold separately from the pesticide.

  (56) Disinfectant.

    (a) “Disinfectant” means a product that is designed or labeled as a disinfectant, or is labeled for use to destroy or irreversibly inactivate infectious or other undesirable bacteria, pathogenic fungi, or viruses on surfaces or inanimate objects and for which the label is registered as a disinfectant under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §136 et seq.

    (b) Disinfectant" includes products that are designed or labeled as both a sanitizer and a disinfectant.

    (c) “Disinfectant” does not include:

      (i) Products designed or labeled solely for use on humans or animals;

      (ii) Products designed or labeled solely for agricultural use;

      (iii) Products designed or labeled solely for use in swimming pools, therapeutic tubs, or hot tubs;

      (iv) Products designed or labeled to be used on heat sensitive critical or semi-critical medical devices or medical equipment surfaces;

      (v) Products that are pre-moistened wipes or towelettes sold exclusively to medical, convalescent, or veterinary establishments;

      (vi) Products designed or labeled to be applied to food-contact surfaces that are not required to be rinsed off prior to contact with food; or

      (vii) Products designed or labeled as bathroom and tile cleaners, glass cleaners, general purpose cleaners, toilet/urinal care products, metal polishes, carpet cleaners, or fabric refreshers regardless of any disinfecting or anti-microbial claims on the label.

  (57) Distributor.

    (a) “Distributor” means a person to whom a consumer product is sold or supplied for the purposes of resale or distribution in commerce.

    (b) “Distributor” does not include manufacturers, retailers, or consumers.

  (58) “Double phase air freshener” means an aerosol air freshener with liquid contents in two or more distinct phases that requires the product container be shaken before use to mix the phases, producing an emulsion.

  (59) Dry Cleaning Fluid.

    (a) “Dry cleaning fluid” means a non-aqueous liquid product designed and labeled exclusively for use on:

      (i) Fabrics which are labeled “for dry clean only”, such as clothing or drapery; or

      (ii) Upholstery fabric designed to be cleaned only with water-free spot cleaning products as specified by the Joint Industry Fabric Standards Committee.

    (b) “Dry cleaning fluid” includes products used by commercial dry cleaners and commercial businesses that clean fabrics such as draperies at a customer's residence or work place.

    (c) “Dry cleaning fluid” does not include spot remover or carpet and upholstery cleaner.

  (59-1) “Dual purpose air freshener/disinfectant” means an aerosol product that is designed or labeled for use as both a disinfectant and an air freshener, or is so represented on any sticker, packaging, or literature attached to the product container.

  (60) Dusting Aid.

    (a) “Dusting aid” means a product designed to assist in removing dust and other soils from floors and other surfaces without leaving a wax or silicone-based coating.

    (b) “Dusting aid” does not include pressurized gas duster.

  (61) Electrical Cleaner.

    (a) “Electrical cleaner” means a product labeled to remove heavy soils such as grease, grime, or oil from electrical equipment, including electric motors, armatures, relays, electric panels, or generators.

    (b) “Electrical cleaner” does not include general purpose cleaner, general purpose degreaser, dusting aid, electronic cleaner, energized electrical cleaner, pressurized gas duster, engine degreaser, anti-static product, or products designed to clean the casings or housings of electrical equipment.

  (62) Electronic Cleaner.

    (a) “Electronic cleaner” means a product labeled for the removal of dirt, moisture, dust, flux or oxides from the internal components of electronic precision equipment such as circuit boards, and the internal components of electronic devices, including but not limited to, radios, compact disc (CD) players, digital video disc (DVD) players, and computers.

    (b) “Electronic cleaner” does not include general purpose cleaner, general purpose degreaser, dusting aid, pressurized gas duster, engine degreaser, electrical cleaner, energized electrical cleaner, anti-static product, or products designed to clean the casings or housings of electronic equipment.

    (c) “Electronic cleaner” does not include any product that meets both the following criteria:

      (i) The product is designed or labeled to clean or degrease electronic equipment, where cleaning or degreasing is accomplished when electrical current exists, or when there is residual electrical potential from a component; and

      (ii) The product label clearly displays the statement: “Energized Electronic Equipment use only.”

  (63) Energized Electrical Cleaner.

    (a) “Energized electrical cleaner” means a product:

      (i) That is labeled to clean or degrease electrical equipment, where cleaning or degreasing is accomplished when electrical current exists, or when there is a residual electrical potential from a component, such as a capacitor; and

      (ii) Whose label clearly displays the statements: “Energized Electronic Equipment use only. Not to be used for motorized vehicle maintenance, or their parts.”

    (b) “Energized electrical cleaner” does not include electronic cleaner.

  (64) “Enforceable sales” means the total amount of an ACP product, as determined through enforceable sales records expressed to the nearest pound, but excluding product container and packaging sold for use in the State during the applicable compliance period specified in the ACP agreement.

  (65) Enforceable Sales Record.

    (a) “Enforceable sales record” means a written, point-of-sale record or other Department-approved system of documentation from which the mass, in pounds less product container and packaging, of an ACP product sold to the end user in the State during the applicable compliance period can be accurately documented.

    (b) “Enforceable sales record” includes:

      (i) Accurate records of direct retail or other outlet sales to the end user during the applicable compliance period;

      (ii) Accurate compilations, made by independent market surveying services, of direct retail or other outlet sales to the end users for the applicable compliance period if a detailed method to verify data comprising these summaries is submitted by the responsible ACP party and approved by the Department; and

      (iii) Other accurate product sales records approved by the Department as meeting the criteria specified in §B(65)(a) of this regulation.

  (66) “Engine degreaser” means a cleaning product designed or labeled to remove grease, grime, oil, and other contaminants from the external surfaces of engines and other mechanical parts.

  (66-1) “Exempt compound” means any carbon-containing compound listed as an exception to the definition of “Volatile organic compound (VOC)” under COMAR 26.11.01.01B.

  (66-2) “Extremely Flammable” means a product that is labeled “Extremely Flammable” on the product container or meets the criteria for the term as specified in 16 CFR §1500.3(c)(6).

  (67) Fabric Protectant.

    (a) “Fabric protectant” means, for products manufactured before January 1, 2018, a product designed to be applied to fabric substrates to:

      (i) Protect the surface from soiling from dirt and other impurities; or

      (ii) Reduce absorption of liquid into the fabric's fibers.

    (b) “Fabric protectant”, for products manufactured before January 1, 2018, does not include waterproofers, or products designed for use solely on leather or on fabrics that are labeled “for dry clean only” and sold in containers of 10 fluid ounces or less.

    (c) “Fabric protectant” means, for products manufactured on and after January 1, 2018, a product designed or labeled to be applied to fabric substrates to protect the surface from soiling from dirt or other impurities or to reduce absorption of liquid into the fabric’s fibers.

    (d) “Fabric protectant”, for products manufactured on and after January 1, 2018, does not include:

      (i) Waterproofers;

      (ii) Products labeled for use solely on leather, pigmented products that are designed to be used primarily for coloring;

      (iii) Products used for construction, reconstruction, modification, structural maintenance or repair of fabric substrates; or

      (iv) Products that renew or restore fabric and qualifying as either clear coating or vinyl/fabric/leather/polycarbonate coating.

  (68) Fabric Refresher.

    (a) “Fabric refresher” means a product labeled to neutralize or eliminate odors on nonlaundered fabric, including soft household surfaces, rugs, carpeting, draperies, bedding, automotive interiors, footwear, athletic equipment, clothing, or on household furniture or objects upholstered or covered with fabrics such as, but not limited to, wool, cotton, or nylon.

    (b) “Fabric refresher” does not include anti-static product, carpet and upholstery cleaner, footwear or leather care product, spot remover, or disinfectant, or products labeled for application to both fabric and human skin.

  (69) Facial Cleaner or Soap.

    (a) “Facial cleaner or soap” means a cleaner or soap designed primarily to clean the face.

    (b) “Facial cleaner or soap” includes facial cleansing creams, semisolids, liquids, lotions, and substrate-impregnated forms.

    (c) “Facial cleaner or soap” does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent/toner, general-use hand or body cleaner or soap, medicated astringent/medicated toner, or rubbing alcohol.

  (70) Fatwood.

    (a) “Fatwood” means pieces of wood kindling with high, naturally-occurring levels of sap or resin that enhance ignition of the kindling.

    (b) “Fatwood” does not include kindling with substances added to enhance flammability, such as wax-covered or wax-impregnated wood-based products.

  (70-1) “Flammable” means a product that is labeled “Flammable” on the product container or meets the criteria for the term as specified in 16 CFR §1500.3(c)(6).

  (71) Flea and Tick Insecticide.

    (a) “Flea and tick insecticide” means an insecticide product that is designed for use against fleas, ticks, their larvae, or their eggs.

    (b) “Flea and tick insecticide” does not include products that are designed to be used exclusively on humans or animals and their bedding.

  (72) “Flexible flooring material” means a product manufactured before January 1, 2018, including asphalt, cork, linoleum, no-wax, rubber, seamless vinyl, and vinyl composite flooring.

  (73) “Flexible vinyl adhesive” means an aerosol adhesive designed to bond to substrates a nonrigid polyvinyl chloride plastic with at least 5 percent by weight of plasticizer content.

  (74) “Floor and wall covering adhesive remover” means a product designed or labeled to remove floor or wall coverings and associated adhesives from the underlying substrate.

  (75) “Floor coating” means a coating that is labeled and designed for application to flooring, including but not limited to, decks, porches, steps, and other horizontal surfaces that may be subject to foot traffic.

  (76) Floor Polish or Wax.

    (a) “Floor polish or wax” means, for products manufactured before January 1, 2018, a wax, polish, or other product designed or labeled to polish, protect, or enhance floor surfaces by leaving a protective coating that is designed to be periodically replenished.

    (b) “Floor polish or wax”, for products manufactured before January 1, 2018, does not include spray buff products, products designed or labeled solely for the purpose of cleaning floors, floor finish strippers, products designed for unfinished wood floors, or coatings subject to architectural coatings regulations.

    (c) “Floor polish or wax” means, for products manufactured on or after January 1, 2018, a product designed or labeled to polish, wax, condition, protect, temporarily seal, or otherwise enhance floor surfaces by leaving a protective finish that is designed or labeled to be periodically replenished.

    (d) “Floor polish or wax”, for products manufactured on or after January 1, 2018, is divided into the following three categories:

      (i) Products for resilient flooring materials;

      (ii) Products for nonresilient flooring materials; and

      (iii) Wood floor wax.

    (e) “Floor polish or wax”, for products manufactured on or after January 1, 2018, does not include spray buff products, floor wax strippers, products designed or labeled for unfinished wood floors, or architectural and industrial maintenance coatings subject to COMAR 26.11.39.

  (77) “Floor seam sealer” means a product designed and labeled exclusively for bonding, fusing, or sealing seams between adjoining rolls of installed flexible sheet flooring.

  (78) Floor Wax Stripper.

    (a) “Floor wax stripper” means a product designed to remove natural or synthetic floor polishes or waxes through breakdown of the polish or wax polymers, or by dissolving or emulsifying the polish or wax.

    (b) “Floor wax stripper” does not include aerosol floor wax strippers or products designed to remove floor wax solely through abrasion.

  (79) Flying Bug Insecticide.

    (a) “Flying bug insecticide” means an insecticide product that is designed for use against flying insects or other flying arthropods, such as flies, mosquitoes, moths, or gnats.

    (b) “Flying bug insecticide” does not include:

      (i) Wasp and hornet insecticide;

      (ii) A product designed to be used exclusively on humans or animals; or

      (iii) A product whose label, packaging, or accompanying literature indicates that the product is designed to protect fabrics from damage by moths but not from flying insects or other flying arthropods.

  (80) Footwear or Leather Care Product.

    (a) “Footwear or leather care product” means any product designed or labeled to be applied to footwear or to other leather articles and components, to maintain, enhance, clean, protect, or modify the appearance, durability, or fit including both leather and nonleather foot apparel.

    (b) “Footwear or leather care product” does not include fabric protectant, general purpose adhesive, contact adhesive, vinyl/fabric/leather/polycarbonate coating, rubber and vinyl protectant, fabric refresher, products solely for deodorizing, or sealant products with adhesive properties used to create external protective layers greater than 2 millimeters thick.

  (81) “Fragrance” means a substance or complex mixture of aroma chemicals, natural essential oils, and other functional components with a combined vapor pressure not in excess of 2 mm of Hg at 20°C, intended solely to impart an odor or scent or counteract a malodor.

  (82) Furniture Maintenance Product.

    (a) “Furniture maintenance product” means a wax, polish, conditioner, or other product designed or labeled for the purpose of polishing, protecting, or enhancing finished wood surfaces other than floors, and other furniture surfaces, including acrylics, ceramic, plastics, stone surfaces, metal surfaces, and fiberglass.

    (b) “Furniture maintenance product” does not include dusting aids, wood cleaners, and products designed solely for the purpose of cleaning, or products designed to leave a permanent finish such as stains, sanding sealers, and lacquers.

  (83) “Furniture coating” means a paint designed for application to room furnishings including cabinets, tables, chairs, beds, and sofas.

  (84) Gasket or Thread Locking Adhesive Remover.

    (a) “Gasket or thread locking adhesive remover” means a product designed or labeled to remove gaskets or thread locking adhesives.

    (b) “Gasket or thread locking adhesive remover” includes a product labeled for dual use as:

      (i) A paint stripper and gasket remover; or

      (ii) A paint stripper and thread locking adhesive remover.

  (85) “Gel” means a colloid in which the disperse phase has combined with the continuous phase to produce a semisolid material, such as jelly.

  (86) General Purpose Adhesive.

    (a) “General purpose adhesive” means a nonaerosol adhesive designed for use on a variety of substrates.

    (b) “General purpose adhesive” does not include the following:

      (i) Contact adhesives;

      (ii) Construction, panel, and floor covering adhesives;

      (iii) Adhesives designed exclusively for application on one specific category of substrates (that is, substrates that are composed of similar materials, such as different types of metals, paper products, ceramics, plastics, rubbers, or vinyls); or

      (iv) Adhesives designed exclusively for use on one specific functional category of articles (that is, articles that may be composed of different materials but perform a specific function, such as gaskets, automotive trim, weather-stripping, or carpets).

  (87) General Purpose Adhesive Remover.

    (a) “General purpose adhesive remover” means a product designed or labeled to remove cyanoacrylate adhesives as well as nonreactive adhesives or residue from a variety of substrates.

    (b) “General purpose adhesive remover” includes a product that removes:

      (i) Thermoplastic adhesives;

      (ii) Pressure sensitive adhesives;

      (iii) Dextrine or starch-based adhesives;

      (iv) Casein glues;

      (v) Rubber or latex-based adhesives; or

      (vi) Products that remove stickers, decals, stencils, or similar materials.

    (c) “General purpose adhesive remover” does not include floor or wall covering adhesive remover.

  (88) General Purpose Cleaner.

    (a) “General purpose cleaner” means a product designed or labeled to clean a variety of hard surfaces, including small appliances.

    (b) “General purpose cleaner” includes:

      (i) Products designed or labeled for general floor cleaning, kitchen, countertop, or sink cleaning; and

      (ii) Cleaners designed or labeled to be used on a variety of hard surfaces such as stovetops, cooktops, or microwaves.

  (89) General Purpose Degreaser.

    (a) “General purpose degreaser” means a product labeled to remove or dissolve grease, grime, oil, and other oil-based contaminants from a variety of substrates, including automotive or miscellaneous metallic parts.

    (b) “General purpose degreaser” does not include:

      (i) Engine degreaser, general purpose cleaner, adhesive remover, electronic cleaner, electrical cleaner, energized electrical cleaner, metal polish or cleanser, or oven or grill cleaner;

      (ii) Products used exclusively in solvent cleaning tanks or related equipment, including, cold cleaners, vapor degreasers, conveyorized degreasers, film cleaning machines, or products designed to clean miscellaneous metallic parts by immersion in a container;

      (iii) Products exclusively sold directly or through distributors to establishments that manufacture or construct goods or commodities; or

      (iv) Products labeled exclusively for “use in the manufacturing process only”.

  (90) General-Use Hand or Body Cleaner or Soap.

    (a) “General-use hand or body cleaner or soap” means a cleaner or soap designed to be used routinely on the skin to clean or remove typical or common dirt and soils.

    (b) “General-use hand or body cleaner or soap” includes hand or body washes, dual-purpose shampoo body cleaners, shower or bath gels, and moisturizing cleaners or soaps.

    (c) “General-use hand or body cleaner or soap” does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent/toner, facial cleaner or soap, hand dishwashing detergent (including antimicrobial), heavy-duty hand cleaner or soap, medicated astringent/medicated toner, or rubbing alcohol.

  (91) Glass Cleaner.

    (a) “Glass cleaner” means a cleaning product designed primarily for cleaning surfaces made of glass.

    (b) “Glass cleaner” does not include products designed solely for the purpose of cleaning optical materials used in eyeglasses, photographic equipment, scientific equipment, or photocopying machines.

  (92) Graffiti Remover.

    (a) “Graffiti remover” means a product labeled to remove spray paint, ink, marker, crayon, lipstick, nail polish, or shoe polish, from a variety of noncloth or nonfabric substrates.

    (b) “Graffiti remover” includes products labeled for dual use as both a paint stripper and graffiti remover.

    (c) “Graffiti remover” does not include paint remover or stripper, nail polish remover, or spot remover.

  (93) “Gross State sales” means the estimated total State sales, expressed to the nearest pound, of an ACP product during a specific compliance period based on either of the following methods the responsible ACP party demonstrates to the satisfaction of the Department provides an accurate State sales estimate:

    (a) Apportionment of national or regional sales of the ACP product to State sales, determined by multiplying the average national or regional sales of the product by the fraction of the national or regional population, respectively, that is represented by the State's current population; or

    (b) Another documented method that provides an accurate estimate of the total current State sales of the ACP product.

  (94) “Hair mousse” means a hairstyling foam designed to facilitate styling of a coiffure and provide limited holding power.

  (95) Hair Shine.

    (a) “Hair shine” means a product designed for the primary purpose of creating a shine when applied to the hair.

    (b) “Hair shine” includes dual-use products designed primarily to impart a sheen to the hair.

    (c) “Hair shine” does not include hair spray, hair mousse, hair styling product, hair styling gel, or products of which the primary purpose is to condition or hold the hair.

  (96) Hair Spray.

    (a) “Hair spray”, for products manufactured before January 1, 2009, means a consumer product designed primarily for dispensing droplets of a resin on and into a hair coiffure to impart sufficient rigidity to the coiffure to establish or retain the style for a period of time; and

    (b) “Hair spray”, for products manufactured on or after January 1, 2009, means a consumer product that is applied to styled hair, and is designed or labeled to provide sufficient rigidity, to hold, retain, or finish the style of the hair for a period of time and includes aerosol hair sprays, pump hair sprays, spray waxes, color, glitter, or sparkle hair sprays that make finishing claims and products that are both a styling and finishing product.

    (c) “Hair spray” does not include spray products that are intended to aid in styling but do not provide finishing of a hairstyle.

    (d) For the purposes of this definition:

      (i) “Finish” or “finishing” means the maintaining and holding of previously styled hair for a period of time; and

      (ii) “Styling” means the forming, sculpting, or manipulating the hair to temporarily alter the hair's shape.

  (97) Repealed.

  (98) Hair Styling Product.

    (a) “Hair styling product” means a consumer product manufactured on or after January 1, 2009 that is designed or labeled for the application to wet, damp, or dry hair to aid in defining, shaping, lifting, styling, and sculpting of the hair.

    (b) “Hair styling product” includes, but is not limited to, hair balm, clay, cream, creme, curl straightener, gel, liquid, lotion, paste, pomade, putty, root lifter, serum, spray gel, stick, temporary hair straightener, wax, spray products that aid in styling but do not provide finishing of a hairstyle, and leave-in volumizers, detanglers, and conditioners that make styling claims.

    (c) “Hair styling product” does not include hair mousse, hair shine, hair spray, or shampoos and conditioners that are rinsed from the hair prior to styling.

    (d) For the purposes of this definition:

      (i) “Finish” or “finishing” means the maintaining and holding of previously styled hair for a period of time; and

      (ii) “Styling” means forming, sculpting, or manipulating the hair to temporarily alter the hair's shape.

  (99) Heavy-Duty Hand Cleaner or Soap.

    (a) “Heavy-duty hand cleaner or soap” means a product designed to clean or remove difficult dirt and soils such as oil, grease, grime, tar, shellac, putty, printer's ink, paint, graphite, cement, carbon, asphalt, or adhesives from the hand with or without the use of water.

    (b) “Heavy-duty hand cleaner or soap” does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent/toner, facial cleaner or soap, general-use hand or body cleaner or soap, medicated astringent/medicated toner, or rubbing alcohol.

  (100) Herbicide.

    (a) “Herbicide” means a pesticide product designed to kill or retard a plant's growth.

    (b) “Herbicide” does not include products that are for agricultural use, or restricted materials that require a permit for use and possession.

  (101) “High pressure laminate” means sheet materials which consist of paper, fabric, or other core material that have been laminated at temperatures exceeding 265°F, and at pressures between 1,000 and 1,400 pounds per square inch.

  (101-1) “High-temperature coating” means a high performance coating labeled and formulated for application to substrates exposed continuously or intermittently to temperatures above 204° C (400° F).

  (102) “High volatility organic compound” means a volatile organic compound that exerts a vapor pressure greater than 80 millimeters of mercury when measured at 20°C.

  (103) “House dust mite” means a mite that feeds primarily on skin cells shed in the home by humans and pets and which belong to the phylum Arthropoda, the subphylum Chelicerata, the class Arachnida, the subclass Acari, the order Astigmata, and the family Pyroglyphidae.

  (104) “Household product” means a consumer product that is primarily designed to be used inside or outside of living quarters or residences, including the immediate surroundings that are occupied or intended for occupation by individuals.

  (105) “HVOC” means a high volatility organic compound, as defined in this chapter.

  (105-1) Industrial Maintenance Coating.

    (a) “Industrial maintenance coating” means a high performance architectural coating formulated for application to substrates exposed to one or more of the following extreme environmental conditions:

      (i) Immersion in water, wastewater, chemical solutions (aqueous and non-aqueous solutions), or chronic exposures of interior surfaces to moisture condensation;

      (ii) Acute or chronic exposure to corrosive, caustic, or acidic agents, or to chemicals, chemical fumes, or chemical mixtures or solutions;

      (iii) Frequent exposure to temperatures above 121°C (250°F);

      (iv) Frequent and heavy abrasion, including mechanical wear and scrubbing with industrial solvents, cleansers, or scouring agents; or

      (v) Exterior exposure of metal structures and structural components.

    (b) “Industrial maintenance coating” includes primers, sealers, undercoaters, intermediate coats, and topcoats.

  (106) Insecticide.

    (a) “Insecticide” means a pesticide product that is designed for use against insects or other arthropods.

    (b) “Insecticide” does not include:

      (i) Products for agricultural use;

      (ii) Products for a use which requires a structural pest control license under applicable State laws or regulations; or

      (iii) Restricted materials that require a permit for use and possession.

  (107) “Insecticide fogger” means an insecticide product designed to release all or most of its content, as a fog or mist, into indoor areas during a single application.

  (108) Institutional Product.

    (a) “Institutional product” means a consumer product that is designed for use in the maintenance or operation of an establishment that:

      (i) Manufactures, transports, or sells goods or commodities, or provides services for profit; and

      (ii) Is engaged in the nonprofit promotion of a particular public, educational, or charitable cause.

    (b) “Institutional product” does not include household products and products that are incorporated into or used exclusively in the manufacture or construction of the goods or commodities at the site of the establishment, which includes government agencies, factories, schools, hospitals, sanitariums, prisons, restaurants, hotels, stores, automobile service and parts centers, health clubs, theaters, and transportation companies.

  (109) “Institutional use” means use within the lines of or on property necessary for the operation of buildings such as hospitals, schools, libraries, auditoriums, and office complexes.

  (110) “Label” means a written, printed, or graphic matter affixed to, applied to, attached to, blown into, formed, molded into, embossed on, or appearing upon a consumer product or consumer product package, for purposes of branding, identifying, or giving information about the product or the contents of the package.

  (111) “Laminate repair or edgebanding adhesive” means an aerosol adhesive designed for:

    (a) The touch-up or repair of items laminated with high pressure laminates such as lifted edges or delaminates; or

    (b) The touch-up, repair, or attachment of edgebanding materials, including other laminates, synthetic marble, veneers, wood molding, and decorative metals.

  (112) “Laundry prewash” means a product that:

    (a) Is designed for application to a fabric before laundering; and

    (b) Supplements and contributes to the effectiveness of laundry detergents.

  (113) Laundry Starch/Sizing/Fabric Finish Product.

    (a) “Laundry starch/sizing/fabric finish product” means a product that is designed or labeled for application to a fabric, either during or after laundering, to impart and prolong a crisp, fresh look.

    (b) “Laundry starch/sizing/fabric finish product” includes fabric finish, sizing, and starch.

  (114) “Lawn and garden insecticide” means an insecticide product labeled primarily to be used in household lawn and garden areas to protect plants from insects or other arthropods.

  (115) Liquid.

    (a) “Liquid” means a substance or mixture of substances that is capable of a visually detectable flow as determined under ASTM D4359-90 (Reapproved 2012).

    (b) “Liquid” does not include powders or other materials composed entirely of solid particles.

  (116) Lubricant.

    (a) “Lubricant” means a product designed to reduce friction, heat, noise, or wear between moving parts, or to loosen rusted or immovable parts or mechanisms.

    (b) “Lubricant” does not include:

      (i) Automotive power steering fluids;

      (ii) Products for use inside power generating motors, engines, and turbines and their associated power-transfer gearboxes;

      (iii) Two-cycle oils or other products designed to be added to fuels;

      (iv) Products for use on the human body or animals;

      (v) Products that are exclusively sold directly by or through distributors to establishments that manufacture or construct goods or commodities; or

      (vi) Products that are labeled exclusively for “use in the manufacturing process only”.

  (117) “LVP content” means the total weight in pounds of LVP compounds in an ACP product multiplied by 100 and divided by the product's total net weight (in pounds, excluding container and packaging), expressed to the nearest tenth of a percent.

  (118) “Low Vapor Pressure-VOC” means:

    (a) A chemical compound or mixture that contains at least one carbon atom with a vapor pressure less than 0.1 millimeters of mercury at 20°C, as determined by CARB Method 310;

    (b) A chemical compound with more than 12 carbon atoms or a chemical mixture comprised solely of compounds with more than 12 carbon atoms as verified by formulation data, and with unknown vapor pressure and boiling point;

    (c) A chemical compound that contains at least one carbon atom with a boiling point greater than 216°C, as determined by CARB Method 310; or

    (d) A weight percent of a chemical mixture that contains at least one carbon atom and that boils above 216°C, as determined by CARB Method 310.

  (119) “Manufacturer” means a person who imports, manufactures, assembles, produces, packages, repackages, or relabels a consumer product.

  (120) Medicated Astringent/Medicated Toner.

    (a) “Medicated astringent/medicated toner” means a product regulated as a drug by the U.S. Food and Drug Administration (FDA) that is applied to the skin for the purpose of cleaning or tightening pores.

    (b) “Medicated astringent/medicated toner” includes clarifiers and substrate-impregnated products.

    (c) “Medicated astringent/medicated toner” does not include hand, face, or body cleaner or soap products, personal fragrance products, astringent/toner, cold creams, lotions, antiperspirants, or products that must be purchased with a doctor's prescription.

  (121) “Medium volatility organic compound (MVOC)” means a volatile organic compound that exerts a vapor pressure greater than 2 millimeters of mercury, and less than or equal to 80 millimeters of mercury, when measured at 20°C.

  (122) Metal Polish or Cleanser.

    (a) “Metal polish or cleanser” means a product designed primarily to improve the appearance of finished metal, metallic, or metallized surfaces, by physical or chemical action, for the purpose of removing or reducing stains, impurities, or oxidation from surfaces or making surfaces smooth and shiny.

    (b) “Metal polish or cleanser” includes metal polishes used on brass, silver, chrome, copper, stainless steel, and other ornamental metals.

    (c) “Metal polish or cleanser” does not include:

      (i) Automotive wax, polish, sealant or glaze;

      (ii) Wheel cleaner;

      (iii) Paint remover or stripper;

      (iv) Products designed and labeled exclusively for automotive and marine detailing; or

      (v) Products designed for use in degreasing tanks.

  (123) “Missing data days” means the number of days in a compliance period for which the responsible ACP party has failed to provide the required enforceable sales or VOC content data to the Department, as specified in the ACP agreement.

  (124) Mist Spray Adhesive.

    (a) “Mist spray adhesive” means an aerosol that delivers a particle or mist spray, resulting in the formation of fine, discrete particles that yield a generally uniform and smooth application of adhesive to the substrate.

    (b) “Mist spray adhesive” does not include a special purpose spray adhesive.

  (125) “Mounting adhesive” means an aerosol adhesive designed to permanently mount photographs, artwork, or other drawn or printed medium onto a backing (paper, board, cloth, or similar items) without causing discoloration to the medium.

  (126) “Multi-purpose dry lubricant” means a lubricant that is:

    (a) Designed and labeled to provide lubricity by depositing a thin film of graphite, molybdenum disulfide (moly), polytetrafluoroethylene, or closely related fluoropolymer (teflon) on surfaces; and

    (b) Designed for general purpose lubrication, or for use in a wide variety of applications.

  (127) Multi-Purpose Lubricant.

    (a) “Multi-purpose lubricant” means a lubricant designed for general purpose lubrication, or for use in a wide variety of applications.

    (b) “Multi-purpose lubricant” does not include multi-purpose dry lubricants, penetrants, or silicone-based multi-purpose lubricants.

  (128) Multi-Purpose Solvent.

    (a) “Multi-purpose solvent” means, for products manufactured before January 1, 2018, an organic liquid designed or labeled to be used for a variety of purposes, including cleaning or degreasing of a variety of substrates, or thinning, dispersing, or dissolving other organic materials.

    (b) “Multi-purpose solvent”, for products manufactured before January 1, 2018, includes solvents used in institutional facilities, except for laboratory reagents used in analytical, educational, research, scientific, or other laboratories.

    (c) “Multi-purpose solvent”, for products manufactured before January 1, 2018, does not include solvents:

      (i) Used in cold cleaners, vapor degreasers, conveyorized degreasers, or film cleaning machines; or

      (ii) That are incorporated into, or used exclusively in the manufacture or construction of, the goods or commodities at the site of the establishment.

    (d) “Multi-purpose solvent” means, for products manufactured on or after January 1, 2018, any liquid product designed or labeled to be used for thinning, dispersing or dissolving or removing contaminants or other organic materials.

    (e) “Multi-purpose solvent", for products manufactured on or after January 1, 2018, includes:

      (i) Products that do not display specific use instructions on the product container or packaging;

      (ii) Products that do not specify an end-use function or application on the product container or packaging;

      (iii) Solvents used in institutional facilities, except for laboratory reagents used in analytical, educational, research, scientific or other laboratories;

      (iv) Paint clean-up products; and

      (v) Products designed or labeled to prepare surfaces for painting.

    (f) “Multi-purpose solvent", for products manufactured on or after January 1, 2018, does not include:

      (i) Solvents used in cold cleaners, vapor degreasers, conveyorized degreasers or film cleaning machines;

      (ii) Solvents designed or labeled exclusively for the clean-up of application equipment used for polyaspartic and polyurea coatings;

      (iii) Solvents that are incorporated into, or used exclusively in the manufacture or construction of, the goods or commodities at the site of the establishment; or

      (iv) Products that are designed or labeled exclusively to clean a specific contaminant on a single substrate in specific situations.

  (129) “MVOC” means a medium volatility organic compound, as defined in this section.

  (130) “Nail polish” means a clear or colored coating such as lacquers, enamels, acrylics, base coats, and top coats designed for application to the fingernails or toenails.

  (131) “Nail polish remover” means a product designed to remove nail polish and coatings from fingernails or toenails.

  (132) “Non-Aerosol product” means a consumer product that is not dispensed by a pressurized spray system.

  (133) “Noncarbon containing compound” means a compound that does not contain carbon atoms.

  (134) Nonresilient Flooring

    (a) “Nonresilient flooring” means a flooring product manufactured before January 1, 2018 of a mineral content that is not flexible.

    (b) “Nonresilient flooring” includes terrazzo, marble, slate, granite, brick, stone, ceramic tile, and concrete.

  (135) “Nonselective terrestrial herbicide” means a terrestrial herbicide product that is toxic to plants without regard to species.

  (135-1) Odor Remover/Eliminator.

    (a) “Odor remover/eliminator” means a product that is designed or labeled to be applied exclusively to hard surfaces to inhibit the ability of soils to create malodors, or functions to entrap, encapsulate, neutralize, convert or eliminate malodor molecules.

    (b) “Odor remover/eliminator” does not include:

      (i) Products designed or labeled for use in cleaning soils from hard surfaces, laundering, softening, de-wrinkling or cleaning fabrics, or dishwashing; or

      (ii) Products designed or labeled as air freshener, bathroom and tile cleaner, carpet/upholstery cleaner, disinfectant, fabric refresher, general purpose cleaner, sanitizer, or toilet/urinal care product.

  (136) “One-product business” means a responsible ACP party that sells, supplies, offers for sale, or manufactures for use in the State only one distinct:

    (a) ACP product that is sold under one product brand name and subject to the requirements of Regulations .04 —.10 of this chapter; or

    (b) ACP product line subject to the requirements of Regulations .04—.10 of this chapter, in which all the ACP products belong to the same product category or categories and the VOC contents in the products are within 98 percent and 102 percent of the arithmetic mean of the VOC contents over the entire product line.

  (137) Oven or Grill Cleaner.

    (a) “Oven or grill cleaner” means a product designed or labeled exclusively to clean and to remove baked on greases or deposits from food preparation surfaces or food cooking surfaces.

    (b) “Oven or grill cleaner” does not include a product where representation is made on the product’s label or packaging that the product is suitable for cleaning or degreasing other hard surfaces.

  (138) “Paint” means a pigmented liquid, liquefiable, or mastic composition designed for application to a substrate in a thin layer which is:

    (a) Converted to an opaque solid film after application; and

    (b) Used for protection, decoration, or identification, or to serve some functional purpose such as the filling or concealing of surface irregularities or the modification of light and heat radiation characteristics.

  (138-1) “Paint clean-up product” means any liquid product designed or labeled for cleaning oil-based or water-based paint, lacquer, varnish, or related coatings from items not intended to be painted, including painting equipment, tools, plastics, and metals.

  (139) Paint Remover or Stripper.

    (a) “Paint remover or stripper” means a product designed to strip or remove paints or other related coatings, by chemical action, from a substrate without markedly affecting the substrate.

    (b) “Paint remover or stripper” does not include multi-purpose solvents, paintbrush cleaners, products designed and labeled as graffiti removers, or hand cleaner products that claim to remove paints and other related coatings from skin.

  (139-1) Paint Thinner.

    (a) “Paint thinner” means any liquid product used for reducing the viscosity of coating compositions or components, that is manufactured on or after January 1, 2018, and that prominently displays the term “Paint Thinner”, “Lacquer Thinner”, “Thinner”, or “Reducer” on the front panel of its packaging.

    (b) Paint thinner does not include:

      (i) Products that are sold in containers with a capacity of 5 gallons or more and labeled exclusively for the thinning of industrial maintenance coatings, zinc-rich primers, or high-temperature coatings;

      (ii) Products where the principal display panel of the product displays, in a font size as large or larger than the font size of all other words on the principal display panel (not including the font size used for the company name, brand name, or logo), language that the product is used exclusively for the thinning of industrial maintenance coatings, zinc-rich primers, or high-temperature coatings;

      (iii) Products where no representation is made on the product container or packaging, or any attached label or sticker that the product is suitable for use or may be used for any other purpose except the thinning of industrial maintenance coatings, zinc-rich primers, or high-temperature coatings; or

      (iv) Products that are labeled and used exclusively as an ingredient in a specific coating or coating brand line, where the coating would not be complete or useable without the specific ingredient.

  (140) Penetrant.

    (a) “Penetrant” means a lubricant designed and labeled primarily to loosen metal parts that have bonded together due to rusting, oxidation, or other causes.

    (b) “Penetrant” does not include multi-purpose lubricants that claim to have penetrating qualities but are not labeled primarily to loosen bonded parts.

  (141) Personal Fragrance Product.

    (a) “Personal fragrance product” means any product which is applied to the human body or clothing for the primary purpose of adding a scent or masking a malodor, including cologne, perfume, aftershave, and toilet water.

    (b) “Personal fragrance product” does not include:

      (i) Deodorant;

      (ii) Medicated products designed primarily to alleviate fungal or bacterial growth on feet or other areas of the body;

      (iii) Mouthwashes, breath fresheners, and deodorizers;

      (iv) Lotions, moisturizers, powders, or other skin care products used primarily to alleviate skin conditions such as dryness and irritations;

      (v) Products designed exclusively for use on human genitalia;

      (vi) Soaps, shampoos, and products primarily used to clean the human body; and

      (vii) Fragrance products designed to be used exclusively on nonhuman animals.

  (142) Pesticide.

    (a) “Pesticide” means a substance or mixture of substances labeled, designed, or intended for use:

      (i) In preventing, destroying, repelling, or mitigating pests; or

      (ii) As a defoliant, desiccant, or plant regulator.

    (b) “Pesticide” does not include a substance, mixture of substances, or device that the U.S. Environmental Protection Agency does not consider a pesticide.

  (143) “Plasticizer” means a material, such as a high boiling point organic solvent, that:

    (a) Is incorporated into a plastic to increase its flexibility, workability, or distensibility; and

    (b) May be determined using ASTM Method E260-96 (Reapproved 2011) or from product formulation data.

  (144) “Polyolefin adhesive” means an aerosol adhesive designed to bond polyolefins to substrates.

  (145) “Polystyrene foam adhesive” means an aerosol adhesive designed to bond polystyrene foam to substrates.

  (146) “Pre-ACP VOC content” means the lowest VOC content of an ACP product between January 1, 1990, and the date on which the application for a proposed ACP is submitted to the Department, based on either the data on the product obtained from the March 12, 1991, CARB Consumer Products Survey, or other accurate records available to the Department, whichever yields the lowest VOC content for the product.

  (147) Pressurized Gas Duster.

    (a) “Pressurized gas duster” means a pressurized product labeled to remove dust from a surface solely by means of mass air or gas flow, including surfaces such as photographs, photographic film negatives, computer keyboards, and other types of surfaces that cannot be cleaned with solvents.

    (b) “Pressurized gas duster” does not include dusting aid.

  (148) “Principal display panel or panels” means that part, or those parts of a label that are so designed as to most likely be displayed, presented, shown, or examined under normal and customary conditions of display or purchase.

  (149) “Product brand name” means the name of the product exactly as it appears on the principal display panel of the product.

  (150) “Product category” means the applicable category that best describes the product as listed in Regulations .03 and .04B of this chapter.

  (151) “Product form” means the applicable form that most accurately describes the product's dispensing form, such as aerosol product, solid, pump spray, liquid, or gel as follows:

    (a) A = Aerosol Product:

      (i) S = Solid;

      (ii) P = Pump Spray;

      (iii) L = Liquid; and

      (iv) SS = Semisolid; and

    (b) O = Other.

  (152) “Product line” means a group of products of identical form and function belonging to the same product category or categories.

  (153) “Propellant” means a liquefied or compressed gas that is used in whole or in part, such as a cosolvent, to expel a liquid or other material from the same self-pressurized container or from a separate container.

  (154) “Pump spray” means a packaging system in which the product ingredients within the container are not under pressure and in which the product is expelled only while a pumping action is applied to a button, trigger, or other actuator.

  (155) “Reconcile or reconciliation” means to provide sufficient VOC emission reductions to completely offset shortfalls generated under the ACP during an applicable compliance period.

  (156) “Reconciliation of shortfalls plan” means the plan to be implemented by the responsible ACP party when shortfalls have occurred, as approved by the Department under Regulation .23 of this chapter.

  (157) “Removable caulking compound” means a compound that temporarily seals windows or doors for 3 to 6 month time intervals.

  (157-1) “Resilient flooring material” means flexible flooring material, including asphalt, cork, linoleum, no-wax, rubber, seamless vinyl, and vinyl composite flooring.

  (158) “Responsible party” means:

    (a) The company, firm, or establishment that is listed on the product's label; or

    (b) If the label lists two companies, the firms or establishments which the product was “manufactured for” or “distributed by”, as noted on the label.

  (159) “Responsible ACP party” means:

    (a) The company, firm, or establishment listed on the ACP product's label; or

    (b) If the label lists two or more companies, firms, or establishments, the party which the ACP product was “manufactured for” or “distributed by”, as noted on the label.

  (160) “Restricted materials” means pesticides established as restricted use pesticides as classified by Agriculture Article, Title 5, Annotated Code of Maryland, the federal government, or the Maryland Secretary of Agriculture.

  (161) “Retailer” means a person who sells, supplies, or offers consumer products for sale directly to consumers.

  (162) “Retail outlet” means an establishment at which consumer products are sold, supplied, or offered for sale directly to consumers.

  (163) “Roll-on product” means an antiperspirant or deodorant that dispenses active ingredients by rolling a wetted ball or wetted cylinder on the affected area.

  (164) Rubber/Vinyl Protectant.

    (a) “Rubber/vinyl protectant” means, for products manufactured before January 1, 2018, a product designed or labeled to protect, preserve or renew vinyl, rubber, and plastic on vehicles, tires, luggage, furniture, or household products such as vinyl covers, clothing, and accessories.

    (b) “Rubber/vinyl protectant”, for products manufactured before January 1, 2018, does not include products primarily designed or labeled to clean the wheel rim, such as aluminum or magnesium wheel cleaners, or tire cleaners that do not leave an appearance-enhancing or protective substance on the tire.

    (c) “Rubber/vinyl protectant” means, for products manufactured on or after January 1, 2018, any product designed or labeled to protect, preserve, or renew vinyl or rubber on vehicles, tires, luggage, furniture, or household products such as vinyl covers, clothing, or accessories.

    (d) “Rubber/vinyl protectant”, for products manufactured on or after January 1, 2018, does not include:

      (i) Products designed or labeled to clean the wheel rim, such as aluminum or magnesium wheel cleaners;

      (ii) Products designed or labeled as tire cleaners that do not leave an appearance-enhancing or protective substance on the tire;

      (iii) Pigmented products designed or labeled to be used primarily for coloring;

      (iv) Products used for construction, reconstruction, modification, structural maintenance or repair of rubber or vinyl substrates; or

      (v) Products not designed or labeled to be used on vehicle tires, qualifying as either clear coating or vinyl coating or fabric coating or leather coating or polycarbonate coating.

  (165) “Rubbing alcohol” means a product containing isopropyl alcohol or denatured ethanol and labeled for topical use:

    (a) To decrease germs in minor cuts and scrapes;

    (b) To relieve minor muscle aches, as a rubefacient; and

    (c) For massage.

  (165-1) Sanitizer.

    (a) “Sanitizer” means a product manufactured on and after January 1, 2018 that is labeled as a “sanitizer,” or that is labeled to reduce, but not necessarily eliminate, microorganisms in the air, on surfaces, or on inanimate objects, and whose label is registered as a “sanitizer” under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §136 et seq.

    (b) “Sanitizer’ does not include:

      (i) Disinfectants;

      (ii) Products designed or labeled as both a “sanitizer” and a “disinfectant”;

      (iii) Products designed or labeled solely for use on humans or animals;

      (iv) Products designed or labeled solely for agricultural use;

      (v) Products designed or labeled for use in swimming pools, therapeutic tubs, or hot tubs;

      (vi) Products designed or labeled to be used on heat sensitive critical or semi-critical medical devices or medical equipment surfaces;

      (vii) Products that are pre-moistened wipes or towelettes sold exclusively to medical, convalescent or veterinary establishments;

      (viii) Products designed or labeled to be applied to food-contact surfaces and are not required to be rinsed prior to contact with food; or

      (ix) Products designed or labeled as bathroom and tile cleaners; glass cleaners; general purpose cleaners; toilet/urinal care products; metal polish; carpet and upholstery cleaners; or fabric refreshers that may also make sanitizing or anti-microbial claims on the product’s label.

  (166) Sealant and Caulking Compound.

    (a) “Sealant and caulking compound” means a product with adhesive properties that is designed to fill, seal, waterproof, or weatherproof gaps or joints between two surfaces.

    (b) “Sealant and caulking compound” does not include roof cements and roof sealants, insulating foams, removable caulking compounds, clear, paintable, water resistant caulking compounds, floor seam sealers, products designed exclusively for automotive uses, or sealers that are applied as continuous coatings.

  (167) “Semisolid” means a product that at room temperature will not pour but will spread or deform easily, such as gels, pastes, and greases.

  (168) Shaving Cream.

    (a) “Shaving cream” means an aerosol product that dispenses foam lather intended to be used with a blade or cartridge razor, or other wet-shaving system in the removal of facial or other bodily hair.

    (b) “Shaving cream” does not include shaving gel.

  (169) Shaving Gel.

    (a) “Shaving gel” means an aerosol product, which dispenses a post-foaming semisolid designed for use with a blade, cartridge razor, or other shaving system in the removal of facial or other bodily hair.

    (b) “Shaving gel” does not include shaving cream.

  (170) Shortfall.

    (a) “Shortfall” means the ACP emissions minus the ACP limit when the ACP emissions were greater than the ACP limit during a specified compliance period, expressed to the nearest pound of VOC.

    (b) “Shortfall” does not include emissions occurring before the date that the ACP agreement is signed by the Department.

  (171) Silicone-Based Multi-Purpose Lubricant.

    (a) “Silicone-based multi-purpose lubricant” means a lubricant which is designed and labeled:

      (i) To provide lubricity primarily through the use of silicone compounds such as polydimethylsiloxane; and

      (ii) For general purpose lubrication, or for use in a wide variety of applications.

    (b) “Silicone-based multi-purpose lubricant” does not include products designed and labeled exclusively to release manufactured products from molds.

  (172) “Single phase aerosol air freshener” means an aerosol air freshener with its liquid contents in a single homogeneous phase and does not require that the product container be shaken before use.

  (173) “Solid” means a substance or mixture of substances that, either whole or subdivided (such as the particles comprising a powder), is not capable of visually detectable flow as determined under ASTM D4359-90 (Reapproved 2012).

  (174) “Special purpose spray adhesive” means one or more of the following aerosol adhesives:

    (a) Mounting adhesive;

    (b) Flexible vinyl adhesive;

    (c) Polystyrene foam adhesive;

    (d) Automobile headliner adhesive;

    (e) Polyolefin adhesive;

    (f) Laminate repair or edgebanding adhesive; or

    (g) Automotive engine compartment adhesive.

  (175) Specialty Adhesive Remover.

    (a) “Specialty adhesive remover” means a product designed to remove from a variety of substrates reactive adhesives including epoxies, urethanes, and silicones that require a hardener or catalyst in order for the bond to occur.

    (b) “Specialty adhesive remover” does not include gasket or thread locking adhesive remover.

  (176) Spot Remover.

    (a) “Spot remover” means a product labeled to clean localized areas or remove localized spots or stains on cloth or fabric, such as drapes and clothing, that does not require subsequent laundering to achieve stain removal.

    (b) “Spot remover” does not include dry cleaning fluid, laundry prewash, or multi-purpose solvent.

  (177) “Spray buff product” means a product designed to restore a worn floor finish with a floor buffing machine and special pad.

  (178) “State sales” means the sales in the State, if available, or sales estimated by incorporating national or regional sales data by population, expressed as net pounds of product, less packaging and container:

    (a) For the calendar year immediately before the year that the registration is due; or

    (b) If the data in §B(178)(a) of this regulation is not available, for a consecutive 12-month period beginning not earlier than 2 years before the due date of the registration.

  (179) “Stick product” means an antiperspirant or deodorant that contains active ingredients in a solid matrix form and dispenses the active ingredients by frictional action on the affected area.

  (180) “Structural waterproof adhesive” means an adhesive:

    (a) Whose bond lines are resistant to conditions of continuous immersion in fresh or salt water; and

    (b) That conforms with Federal Specification MMM-A-181D (Type 1, Grade A) of the Federal Consumer Products Regulation 40 CFR Part 59, Subpart C.

  (181) Surplus Reduction.

    (a) “Surplus reduction” means the ACP limit minus the ACP emissions expressed to the nearest pound of VOC when the ACP limit was greater than the ACP emissions during a given compliance period.

    (b) Except as provided in this chapter, “surplus reduction” does not include emissions occurring before the date that the ACP agreement is signed by the Department.

  (182) “Surplus trading” means the buying, selling, or transfer of surplus reductions between responsible ACP parties.

  (183) “Table B compound” means a carbon-containing compound that is an exception to the definition of VOC in COMAR 26.11.01.01B.

  (183-1) Temporary Hair Color.

    (a) “Temporary hair color” means a product manufactured on or after January 1, 2018 that applies color, glitter, or UV-active pigments to hair, wigs, or fur and is removable when washed.

    (b) “Temporary hair color” includes hair color mousses and products designed or labeled to add texture or thickness to cover thinning or balding areas.

    (c) “Temporary hair color” does not include hair spray, hair styling products or hair mousse.

  (184) “Terrestrial” means living on or growing from land.

  (185) “Tire sealant and inflation” means a pressurized product that is designed to temporarily inflate and seal a leaking tire.

  (186) Toilet/Urinal Care Product.

    (a) “Toilet/urinal care product” means any product designed or labeled to clean or to deodorize toilet bowls, toilet tanks, or urinals.

    (b) For purposes of this definition, toilet bowls, toilet tanks, or urinals include:

      (i) Toilets or urinals connected to permanent plumbing in buildings and other structures;

      (ii) Portable toilets or urinals placed at temporary or remote locations; and

      (iii) Toilets or urinals in vehicles such as buses, recreational motor homes, boats, ships, and aircraft.

    (c) “Toilet/urinal care product” does not include bathroom and tile cleaner or general purpose cleaner.

  (187) “Total maximum historical emissions (TMHE)” means the total VOC emissions from all ACP products for which the responsible ACP party has failed to record the required VOC content or enforceable sales records that are:

    (a) Determined by calculating emissions of each ACP product during each portion of a compliance period for which the responsible ACP has failed to record the required VOC content or enforceable sales records;

    (b) Expressed to the nearest pound and calculated according to the following calculation:

      (i) MHE = (Highest VOC Content × Highest Sales) × Missing Data Days / 100 × 365;

      (ii) Highest VOC Content = the maximum VOC content which the ACP product has contained in the previous 5 years, if the responsible ACP party fails to report all the required VOC content data (for any portion of the compliance period), as specified in the ACP agreement approving the ACP, or the current actual VOC content, if the responsible ACP party has provided all required VOC content data (for the entire compliance period), as specified in the ACP agreement;

      (iii) Highest Sales = the maximum 1 year gross State sales of the ACP product in the previous 5 years, if the responsible ACP party fails to report all required enforceable sales records (for any portion of the compliance period), as specified in the ACP agreement approving the ACP, or the current actual 1-year enforceable sales for the product, if the responsible ACP party has provided all required enforceable sales records (for the entire compliance period), as specified in the ACP agreement approving the ACP;

      (iv) Missing Data Days = the number of days in a compliance period for which the responsible ACP party has failed to provide the required enforceable sales records or VOC content data as specified in the ACP agreement;

      (v) Missing data days are estimated as 1, 2, . . . , N = each product in an ACP, up to the maximum N, for which the responsible ACP party has failed to record the required enforceable sales records or VOC content data as specified in the ACP agreement.

  (188) “Type A propellant” means a compressed gas such as carbon dioxide (CO2), nitrogen (N2), nitrogen oxide (N2O), or compressed air that is used as a propellant, and is either incorporated with the product or contained in a separate chamber within the product's packaging.

  (189) “Type B propellant” means a halocarbon that is used as a propellant including chlorofluorocarbons (CFCs), hydrochlorofluorocarbons (HCFCs), and hydrofluorocarbons (HFCs).

  (190) “Type C propellant” means a propellant that is not a Type A or Type B propellant, including propane, isobutane, n-butane, and dimethyl ether.

  (191) Undercoating.

    (a) “Undercoating” means an aerosol product designed to impart a protective, non-paint layer to the undercarriage, trunk interior, or firewall of motor vehicles to prevent the formation of rust or to deaden sound.

    (b) “Undercoating” includes rubberized, mastic, or asphaltic products.

  (192) “Usage directions” means the text or graphics on the product's principal display panel, label, or accompanying literature that describes to the end user how and in what quantity the product is to be used.

  (193) “Vinyl/fabric/leather/polycarbonate coating” means a coating designed and labeled exclusively to coat vinyl, fabric, leather, or polycarbonate substrates.

  (194) VOC Content.

    (a) “VOC content” means, except for charcoal lighter products, the total weight of VOC in a product expressed as a percentage of the product weight, excluding the container or packaging, as determined under Regulation .16A and B of this chapter.

    (b) “VOC content” means, for charcoal lighter material products only,

      (i) Certified Emissions = the emissions level for products approved by the Department under Regulation .05 of this chapter, as determined under South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (Feb. 28, 1991), expressed to the nearest 0.001 pound CH2 per start;

      (ii) Certified Use Rate = the usage level for products approved by the Department under Regulation .05 of this chapter, as determined under South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (Feb. 28, 1991), expressed to the nearest 0.001 pound certified product used per start.

  (195) “Wasp and hornet insecticide” means an insecticide product that is designed for use against wasps, hornets, yellow jackets, or bees by allowing the user to spray from a distance a directed stream or burst at the insects or their hiding place.

  (196) Waterproofer.

    (a) “Waterproofer” means a product designed and labeled exclusively to repel water from fabric or leather substrates.

    (b) “Waterproofer” does not include fabric protectants.

  (197) Wax.

    (a) “Wax” means a material or synthetic thermoplastic substance generally of high molecular weight hydrocarbons or high molecular weight esters of fatty acids or alcohols, except glycerol and high polymers.

    (b) “Wax” includes substances derived from the secretions of plants and animals such as carnuba wax and beeswax, substances of a mineral origin such as ozocerite and paraffin, and synthetic polymers such as polyethylene.

  (198) “Web spray adhesive” means an aerosol adhesive that is not a mist spray or special purpose spray adhesive.

  (199) Wood Cleaner.

    (a) “Wood cleaner” means a product labeled to clean wooden materials including decking, fences, flooring, logs, cabinetry, and furniture.

    (b) “Wood cleaner” does not include dusting aid, general purpose cleaner, furniture maintenance product, floor wax stripper, floor polish or wax, or products designed and labeled exclusively to preserve or color wood.

  (200) “Wood floor wax” means wax-based products for use solely on wood floors.

  (201) “Working day” means a day between Monday and Friday, inclusive, except days that are federal holidays.

  (202) “Zinc-rich primer” means a coating that:

    (a) Contains at least 65 percent metallic zinc powder or zinc dust by weight of total solids;

    (b) Is formulated for application to metal substrates to provide a firm bond between the substrate and subsequent applications of coatings; and

    (c) Is designed for professional use only and labeled “For Professional Use Only”, “For Industrial Use Only”, “Not for Residential Use”, or “Not Intended for Residential Use.”

#### Regulation .04 Standards — General.

*COMAR 26.11.32.04*

A. Except as provided in Regulations .01, .04D, .11, .12, .15, and .17—.26 of this chapter, a person may not sell, supply, offer for sale, or manufacture for sale in the State a consumer product manufactured on or after the effective date in §B of this regulation that contains volatile organic compounds (VOC) in excess of the limits specified in §B of this regulation.

B. VOC limits, expressed as percent volatile organic compounds by weight, except as otherwise indicated are as follows:

B-1. A person may not sell, supply, offer for sale, or manufacture for sale in the State any antiperspirant or deodorant which contains any compound that has been identified by the CARB in Title 17, California Code of Regulations, Division 3, Chapter 1, Subchapter 7, Section 93000 as a toxic air contaminant.

C. Products that are Diluted Before Use.

  (1) Products Diluted with Water or Non-VOC Solvent.

    (a) For consumer products for which the label, packaging, or accompanying literature specifically states that the product should be diluted with water or non-VOC solvent before use, the limits specified in §B of this regulation apply to the product only after the minimum recommended dilution has taken place.

    (b) For purposes of this subsection, “minimum recommended dilution” does not include recommendations for incidental use of a concentrated product to deal with limited special applications such as hard-to-remove soils or stains.

  (2) Products Diluted with VOC Solvent. For consumer products for which the label, packaging, or accompanying literature states that the product should be diluted with a VOC solvent before use, the limits specified in §B of this regulation apply to the product only after the maximum recommended dilution has taken place.

D. Products Registered under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). For a consumer product that is registered under the Federal Insecticide, Fungicide, and Rodenticide Act, (FIFRA), 7 U.S.C. §136 et seq., the effective date of the VOC standards is 1 year after the date specified in §B of this regulation.

E. Products containing Ozone-Depleting Compounds. For a consumer product for which standards are specified under §B of this regulation, a person may not cause a violation of the requirements of 40 CFR Part 82.

F. Sell-Through of Products.

  (1) Sell-Through Period. Notwithstanding the provisions of §B of this regulation and Regulation .06 , .07, .08, .09, or .10 of this chapter, a consumer product manufactured prior to each of the effective dates specified for that product in Table 1 of §B of this regulation may be sold, supplied, or offered for sale after each of the specified effective dates.

  (2) Section F(1) of this regulation does not apply to:

    (a) Any consumer product that does not display on the product container or package the date on which the product was manufactured, or a code indicating such date, in accordance with Regulation .13A of this chapter; or

    (b) Solid air fresheners and toilet or urinal care products that contain paradichlorobenzene, which are subject to the 1-year sell-through period specified in Regulation .10 of this chapter.

#### Regulation .05 Standards — Requirements for Charcoal Lighter Materials.

*COMAR 26.11.32.05*

A. The requirements of this regulation apply to a charcoal lighter material product as defined in Regulation .03B of this chapter.

B. Regulatory Standards.

  (1) A person may not sell, supply, or offer for sale after January 1, 2005, a charcoal lighter material product unless at the time of the transaction the following conditions are met:

    (a) The manufacturer demonstrates that it has been issued a currently effective certification by the CARB under the Consumer Products provisions of Subchapter 8.5, Article 2, Section 94509(h), of Title 17 of the California Code of Regulations, which remains in effect for the State as long as the CARB certification remains in effect;

    (b) The manufacturer or distributor of the charcoal lighter material has been issued a currently effective certification under §C of this regulation;

    (c) The charcoal lighter material meets the formulation criteria and other conditions specified in the applicable ACP agreement issued under §C of this regulation; and

    (d) The product usage directions for the charcoal lighter material are the same as those provided to the Department under §C of this regulation.

  (2) A manufacturer claiming a certification on the basis of §B(1)(a) of this regulation shall submit to the Department a copy of the certification decision (that is, the Executive Order), including all conditions established by CARB applicable to the certification.

C. Certification Requirements.

  (1) A charcoal lighter material formulation may not be certified under this regulation unless the applicant for certification demonstrates to the Department's satisfaction that the VOC emissions from the ignition of charcoal with the charcoal lighter material are less than or equal to 0.02 pound of VOC per start, using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol, dated February 28, 1991 (the “South Coast Air Quality Management District Rule 1174 Testing Protocol”).

  (2) The Department may approve alternative test procedures which are shown to provide equivalent results to those obtained using the South Coast Air Quality Management District Rule 1174 Test Protocol.

  (3) A manufacturer or distributor of charcoal lighter material may apply to the Department for certification of a charcoal lighter material formulation under §D of this regulation.

  (4) Completeness of Application Information.

    (a) On receipt and review of an application, the Department shall advise the applicant in writing either that it is complete or that specified additional information is required to make it complete.

    (b) On receipt and review of additional information requested, the Department shall advise the applicant in writing if testing is still required before the application can be deemed complete.

  (5) The Department shall act on a complete application after the application is deemed complete. If the Department finds that an application meets the requirements of §C of this regulation, then an ACP agreement shall be issued certifying the charcoal lighter material formulation and specifying the conditions necessary to ensure that the requirements of this regulation are met.

D. Application for Certification.

  (1) An application for certification of a charcoal lighter material formulation shall be in writing and include the following:

    (a) Results of testing conducted under the South Coast Air Quality Management District Rule 1174 Testing Protocol;

    (b) Exact text and graphics that clearly show the usage directions for the charcoal lighter material and that appear on the product's principal display panel, label, and accompanying literature; and

    (c) Physical property data, formulation data, or other information required by the Department for use in determining when a product modification has occurred and, if necessary, for use in determining compliance with the conditions specified in the ACP agreement.

  (2) Usage directions referenced in §D(1)(b) of this regulation shall accurately reflect the quantity of charcoal lighter material per pound of charcoal that was used under the South Coast Air Quality Management District Rule 1174 Testing Protocol for the product, unless the:

    (a) Charcoal lighter material is intended to be used in fixed amounts independent of the amount of charcoal used, such as certain paraffin cubes; or

    (b) Charcoal lighter material is already incorporated into the charcoal, such as certain “bag light”, “instant light”, or “match light” products.

E. Notice of Modifications. For a charcoal lighter material for which certification has been granted, the applicant for certification shall notify the Department in writing within 30 days of:

  (1) A change in the usage directions; or

  (2) A change in product formulation, test results, or other information submitted under §C of this regulation which may result in VOC emissions greater than 0.02 pound of VOC per start.

F. Revocation or Modification of Certification. If the Department determines that a certified charcoal lighter material formulation results in VOC emissions from the ignition of charcoal which are greater than 0.02 pound of VOC per start as determined by the South Coast Air Quality Management District Rule 1174 Testing Protocol, the Department shall revoke or modify the certification as is necessary to ensure that the charcoal lighter material will result in VOC emissions of less than or equal to 0.02 pound of VOC per start.

#### Regulation .05-1 Requirements for Flammable and Extremely Flammable Multi-Purpose Solvent and Paint Thinner.

*COMAR 26.11.32.05-1*

Effective January 1, 2018, no person shall sell, supply, offer for sale, or manufacture for use in the State any “flammable” or “extremely flammable” multi-purpose solvent or paint thinner named, on the principal display panel as paint thinner, multi-purpose solvent, clean-up solvent, or paint clean-up unless the product:

A. Contains less than 1 percent by weight aromatic compound;

B. Contains methylene chloride, perchloroethylene, or trichloroethylene in a combined amount equal to or less than 0.01 percent by weight; and

C. Includes an attached hang tag, sticker, or contrasting square or rectangular area on the principal display panel that displays:

  (1) At a minimum, the following statements or information in font size as large as, or larger than, the signal word, DANGER, WARNING, or CAUTION (not including the font size used for the company name, brand name or logo), as specified in 16 CFR §1500.121;

  (2) That the product is “formulated to meet California VOC limits; see warnings on label”; or

  (3) The common name of the chemical compound, in large font, that results in the product meeting the criteria for flammable or extremely flammable, such as acetone or methyl acetate.

#### Regulation .06 Standards — Requirements for Aerosol Adhesives.

*COMAR 26.11.32.06*

A. The standards for aerosol adhesives under Regulation .04B of this chapter apply to all uses of aerosol adhesives, including consumer, industrial, and commercial uses. Except as otherwise provided in Regulations .01, .11, .12, and .15 of this chapter, a person may not sell, supply, offer for sale, use, or manufacture for sale in the State an aerosol adhesive which, at the time of sale, use, or manufacture, contains VOCs in excess of the specified standard.

B. Special Purpose Spray Adhesives.

  (1) To qualify as a “special purpose spray adhesive” a product shall meet one or more of the terms specified in Regulation .03B(174) of this chapter.

  (2) If the label of an aerosol adhesive product indicates that the product is suitable for use on a substrate or application not listed in Regulation .03B(174) of this chapter as one of the definitions for “special purpose spray adhesive”, then the product shall be classified as either a “web spray adhesive” or a “mist spray adhesive”.

  (3) If a product meets more than one of the definitions specified in Regulation .03B of this chapter for “special purpose spray adhesive” and is not classified as a “web spray adhesive” or “mist spray adhesive” under §B(2) of this regulation, then the VOC limit for the product shall be the lowest applicable VOC limit specified in Regulation .04B of this chapter.

C. Effective January 1, 2005, a person may not sell, supply, offer for sale, or manufacture for use in the State an aerosol adhesive which contains one or more of the following compounds:

  (1) Methylene chloride;

  (2) Perchloroethylene; or

  (3) Trichloroethylene.

D. A person who manufactures an aerosol adhesive shall comply with the labeling requirements specified in Regulation .13C of this chapter.

#### Regulation .07 Standards — Requirements for Floor Wax Strippers.

*COMAR 26.11.32.07*

A person may not sell, supply, offer for sale, or manufacture, for use in the State, a floor wax stripper unless the following requirements are met:

A. The label of each non-aerosol floor wax stripper shall specify a dilution ratio for light or medium build-up of polish that results in an as-used VOC concentration of 3 percent by weight or less;

B. If a non-aerosol floor wax stripper is intended to be used for removal of heavy build-up of polish, the label of that floor wax stripper shall specify a dilution ratio for heavy build-up of polish that results in an as-used VOC concentration of 12 percent by weight or less; and

C. The terms “light build-up”, “medium build-up”, or “heavy build-up” are not specifically required on the product label if comparable terminology is used.

#### Regulation .08 Requirements for Contact Adhesives, Electronic Cleaners, Footwear or Leather Care Products, General Purpose Degreasers, Bathroom and Tile Cleaners, Construction Panel and Floor Covering Adhesives, Electronic Cleaner Labeled “Energized Electronic Equipment Use Only”, General Purpose Cleaners, and Oven or Grill Cleaners.

*COMAR 26.11.32.08*

A. Except as provided in §§C and E of this regulation, effective January 1, 2009, a person may not sell, supply, offer for sale, or manufacture for use in the State any contact adhesive, electronic cleaner, footwear or leather care product, or general purpose degreaser that contains any of the following compounds:

  (1) Methylene chloride;

  (2) Perchloroethylene; or

  (3) Trichloroethylene.

B. Except as provided in §E of this regulation, a person may not sell, supply, offer for sale, or manufacture for use in the State any bathroom and tile cleaner, construction panel and floor covering adhesive, electronic cleaner labeled “Energized Electronic Equipment use only”, general purpose cleaner, or oven or grill cleaner manufactured on or after January 1, 2018, that contains any of the following compounds:

  (1) Methylene chloride;

  (2) Perchloroethylene; or

  (3) Trichloroethylene.

C. Sell-Through of Products. Contact adhesives, electronic cleaners, footwear, or leather care products, and general purpose degreasers that contain methylene chloride, perchloroethylene, or trichloroethylene and were manufactured before January 1, 2009 may be sold, supplied, or offered for sale until January 1, 2012, if:

  (1) The product container or package displays the date on which the product was manufactured; or

  (2) A code indicates such date in accordance with Regulation .13A of this chapter.

D. A person who sells or supplies a consumer product identified above in §A of this regulation shall notify the purchaser of the product in writing that the sell-through period for that product will end on January 1, 2012, if both of the following conditions are met:

  (1) The product is sold or supplied to a distributor or retailer; and

  (2) The product is sold or supplied on or after June 30, 2011.

E. Impurities. The requirements in §§A, B, and C of this regulation do not apply to any contact adhesive, electronic cleaner, footwear or leather care product, general purpose degreaser, bathroom and tile cleaner, construction panel and floor covering adhesive, electronic cleaner labeled  “Energized Electronic Equipment Use Only", general purpose cleaner, or oven or grill cleaner containing methylene chloride, perchloroethylene, or trichloroethylene that is present as an impurity in a combined amount equal to or less than 0.01 percent by weight.

#### Regulation .09 Requirements for Adhesive Removers, Electrical Cleaners, and Graffiti Removers.

*COMAR 26.11.32.09*

A. Except as provided in §§B and D of this regulation, effective January 1, 2009, a person may not sell, supply, offer for sale, or manufacture for use in the State any adhesive remover, electrical cleaner, or graffiti remover that contains any of the following compounds:

  (1) Methylene chloride;

  (2) Perchloroethylene; or

  (3) Trichloroethylene.

B. Sell-Through of Products. Adhesive removers, electrical cleaners, and graffiti removers that contain methylene chloride, perchloroethylene, or trichloroethylene and were manufactured before January 1, 2009, may be sold, supplied, or offered for sale until January 1, 2012, if:

  (1) The product container or package displays the date on which the product was manufactured; or

  (2) A code indicates such date, in accordance with Regulation .13A of this chapter.

C. Any person who sells or supplies a consumer product identified in §A of this regulation shall notify the purchaser of the product in writing that the sell-through period for that product will end on January 1, 2012 if both of the following conditions are met:

  (1) The product is sold or supplied to a distributor or retailer; and

  (2) The product is sold or supplied on or after June 30, 2011.

D. Impurities. The requirements of §§A and C of this regulation do not apply to any adhesive remover, electrical cleaner, or graffiti remover containing methylene chloride, perchloroethylene, or trichloroethylene that is present as an impurity in a combined amount equal to or less than 0.01 percent by weight.

#### Regulation .10 Requirements for Solid Air Fresheners and Toilet and Urinal Care Products.

*COMAR 26.11.32.10*

A. Effective January 1, 2009, a person may not sell, supply, offer for sale, or manufacture for use in the State any solid air fresheners or toilet and urinal care products that contain paradichlorobenzene, except that solid air fresheners, toilet and urinal care products that contain paradichlorobenzene and were manufactured before January 1, 2009, may be sold, supplied, or offered for sale until January 1, 2010, if the product container or package displays:

  (1) The date on which the product was manufactured; or

  (2) A code indicating such date in accordance with Regulation .13A of this chapter.

B. A person who sells or supplies any solid air freshener or toilet and urinal care product that contains paradichlorobenzene shall notify the purchaser of the product in writing that the sell-through period for the product will end on January 1, 2010, if both of the following conditions are met:

  (1) The product is sold or supplied to a distributor or retailer; and

  (2) The product is sold or supplied on or after June 30, 2009.

#### Regulation .11 Innovative Products — CARB Exemption.

*COMAR 26.11.32.11*

A. A manufacturer of a consumer product that has been granted an innovative product exemption by the CARB under the innovative products provisions in Subchapter 8.5, Article 2, Section 94511, or Subchapter 8.5, Article 1, Section 94503.5 of Title 17 of the California Code of Regulations is exempt from the standards in Regulation .04B of this chapter for as long as the CARB innovative products exemption remains in effect and all consumer products within the CARB innovative products exemption are contained in Regulation .04B of this chapter.

B. A manufacturer that has a CARB innovative product exemption shall submit to the Department a copy of the CARB innovative product exemption decision (that is, the Executive Order), including all conditions established by CARB applicable to the exemption.

#### Regulation .12 Innovative Products — Department Exemption.

*COMAR 26.11.32.12*

A. A manufacturer of a consumer product that has not been granted an exemption by the CARB may seek an innovative products exemption in accordance with this regulation.

B. For the purposes of this regulation, “representative consumer product” means a consumer product that:

  (1) Is subject to the same VOC limit in Regulation .04B of this chapter as the innovative product;

  (2) Is of the same product form as the innovative product, unless the innovative product uses a new form which does not exist in the product category at the time the application is made; and

  (3) Has at least similar efficacy as other consumer products in the same product category based on tests accepted for that product category by the consumer products industry.

C. Exemption Criteria.

  (1) The Department shall exempt a consumer product from the VOC limits in Regulation .04B of this chapter if the manufacturer demonstrates by clear and convincing evidence that, due to some characteristic of the product formulation, design, delivery systems, or other factors, the use of the product will result in less VOC emissions as compared to:

    (a) VOC emissions from a representative consumer product which complies with the VOC limits in Regulation .04B of this chapter; or

    (b) Calculated VOC emissions from a noncomplying representative product, if the product had been reformulated to comply with the VOC limits in Regulation .04B of this chapter.

  (2) Equation.

    (a) VOC emissions shall be calculated using the following equation:

      (i) ER = VOC emissions from the noncomplying representative product, had it been reformulated;

      (ii) ENC = VOC emissions from the noncomplying representative product in its current formulation;

      (iii) VOCSTD = VOC limit specified in the table of standards in Regulation .04B of this chapter; and

      (iv) VOCNC = VOC content of the noncomplying product in its current formulation.

    (b) If a manufacturer demonstrates that this equation yields inaccurate results due to some characteristic of the product formulation or other factors, an alternative method which accurately calculates emissions may be used upon approval by the Department.

D. Application Information.

  (1) A manufacturer shall apply in writing to the Department for an exemption claimed under §B(1) of this regulation.

  (2) The application shall include:

    (a) Supporting documentation that verifies the emissions from the innovative product, including the actual physical test methods used to generate the data;

    (b) If necessary, the consumer testing undertaken to document product usage; and

    (c) Information necessary to enable the Department to establish enforceable conditions for granting the exemption, including the VOC content for the innovative product and test methods for determining the VOC content.

  (3) All information submitted by a manufacturer under this section shall be maintained in accordance with the confidentiality requirements in General Provisions Article, Title 4, Annotated Code of Maryland.

E. On receipt and review of the exemption application, the Department shall determine whether an application is complete.

F. Departmental Decision on Innovative Product Exemption.

  (1) On receipt and review of a complete application, the Department shall determine whether, under what conditions, and to what extent, an exemption from the requirements of Regulation .04B of this chapter will be permitted.

  (2) The Department shall notify the applicant of a decision in writing and specify the terms and conditions necessary to ensure that emissions from the product will meet the emissions reductions specified in this regulation, and that the emissions reductions can be enforced.

G. In granting an exemption for a product, the Department shall establish the following:

  (1) Enforceable conditions that include:

    (a) The VOC content of the innovative product;

    (b) Dispensing rates;

    (c) Application rates; and

    (d) Other parameters the Department determines necessary; and

  (2) Test methods for determining conformance to the conditions established in §G(1) of this regulation, including:

    (a) Criteria for reproducibility, accuracy, and sampling; and

    (b) Laboratory procedures.

H. For a product that has been granted an exemption under this regulation, the manufacturer shall notify the Department in writing within 30 days of:

  (1) A change in the product formulation or recommended product usage directions; and

  (2) Information which would alter the emissions estimates submitted to the Department in support of the exemption application.

I. Exemptions Following Modification of VOC limit.

  (1) If a VOC limit in Regulation .04B of this chapter is lowered for a product category through a subsequent rulemaking, all innovative product exemptions granted for products in that product category, except as provided in this section, have no effect as of the effective date of the modified VOC standard.

  (2) The provision of §I(1) of this regulation does not apply to those innovative products which have VOC emissions less than the applicable lowered VOC limit and for which a written notification of the product's emissions status versus the lowered VOC limit has been submitted to and approved by the Department at least 60 days before the effective date of the limits.

J. Modification or Revocation of an Exemption.

  (1) If the Department believes that a consumer product for which an exemption has been granted no longer meets the criteria for an innovative product specified in this regulation, the Department may modify or revoke the exemption as necessary to ensure that the product will meet these criteria.

  (2) The Department shall allow the applicant an opportunity for a contested case hearing before modifying or revoking an exemption.

#### Regulation .13 Administrative Requirements.

*COMAR 26.11.32.13*

A. Product-Dating.

  (1) A manufacturer of a consumer product subject to Regulations .04—.10 of this chapter shall clearly display on each consumer product container or package:

    (a) The day, month, and year on which the product was manufactured; or

    (b) A code indicating the date of manufacture that is:

      (i) Located on the container or inside the cover or cap so that it is readily observable or obtainable (by simply removing the cap or cover) without irreversibly disassembling any part of the container or packaging or displayed on the bottom of a container as long as it is clearly legible without removing any product packaging; and

      (ii) Displayed on each consumer product container or package not later than 12 months before the effective date of the applicable standard in Regulation .04B of this chapter.

  (2) A manufacturer who uses a code indicating the date of manufacture for a consumer product subject to Regulations .04—.10 of this chapter shall file an explanation of the date portion of the code with the Department not later than 12 months before the effective date of the applicable standard in Regulation .04B of this chapter.

  (3) A manufacturer who uses the following code to indicate the date of manufacture is not subject to the requirements of §A(2) of this regulation, if the code is represented separately from other codes on the product container so that it is easily recognizable:

  (4) If a manufacturer changes to a code other than that specified in §A(3) of this regulation indicating the date of manufacture for any consumer product, an explanation of the modified code shall be submitted to the Department before any products displaying the modified code are sold, supplied, or offered for sale in the State.

  (5) A person may not erase, alter, deface, or otherwise remove or make illegible any date or code indicating the date of manufacture from any regulated product container without the express authorization of the manufacturer.

  (6) Date code explanations for codes indicating the date of manufacture are public information, shall be separate from any confidential information, and may not be claimed as confidential.

  (7) The requirements of §A of this regulation do not apply to:

    (a) Products containing no VOCs; or

    (b) Products containing VOCs at 0.10 percent by weight or less.

B. Most Restrictive Limit.

  (1) Notwithstanding the definition of “product category” in Regulation .03 of this chapter, if a representation is made that a consumer product is suitable for or may be used as a consumer product with a lower VOC limit as specified in Regulation .04B of this chapter, and the representation appears on the container, packaging, or label or sticker affixed thereto, the lower VOC limit shall apply for:

    (a) A consumer product manufactured before January 1, 2009; and

    (b) A FIFRA-registered insecticide manufactured before January 1, 2010.

  (2) The requirement in §B(1) of this regulation does not apply to a general purpose cleaner, an antiperspirant or deodorant product, a product intended to serve as an antiperspirant deodorant, insecticide foggers, and lawn and garden insecticide.

  (3) Notwithstanding the definition of product category in Regulation .03 of this chapter, if a representation is made that a consumer product is suitable for or may be used as a consumer product with a lower VOC limit as specified in Regulation .04B, and the representation appears on the container, packaging, or label or sticker affixed thereto, the lower VOC limit applies for:

    (a) A consumer product manufactured on or after January 1, 2009; or

    (b) A FIFRA-registered insecticide manufactured on or after January 1, 2010.

  (4) The requirement of §B(3) of this regulation does not apply to general purpose cleaners, antiperspirant, deodorant products, insecticide foggers, and lawn and garden insecticide.

C. Additional Labeling Requirements for Aerosol Adhesive, Adhesive Remover, Electronic Cleaner, Electrical Cleaner, Energized Electrical Cleaner, and Contact Adhesive.

  (1) In addition to the requirements specified in §§A and B of this regulation and Regulation .14 of this chapter, both the manufacturer and responsible party for each aerosol adhesive, adhesive remover, electronic cleaner, electrical cleaner, energized electrical cleaner, and contact adhesive product subject to this chapter shall ensure that all products clearly display the following information on each product container which is manufactured on or after the effective date for the category specified in the table of standards:

    (a) The product category as specified in Regulation .04B of this chapter or an abbreviation of the category;

    (b) The applicable VOC standard for the product in Regulation .04B of this chapter, except for energized electrical cleaner, expressed as a percentage by weight, unless the product is included in an alternative control plan approved by the Department as provided in Regulations .17—.26 of this chapter, and the product exceeds the applicable VOC standard;

    (c) If the product is included in an alternative control plan approved by the Department, and the product exceeds the applicable VOC standard in Regulation .04B of this chapter, the term “ACP” or “ACP product”;

    (d) If the product is classified as a special purpose spray adhesive, the applicable substrate, or application or an abbreviation of the substrate or application, that qualifies the product as special purpose; and

    (e) If the manufacturer or responsible party uses an abbreviation as allowed by this section, an explanation of the abbreviation shall be filed with the Department before the abbreviation is used.

  (2) The information required in §A(1) of this regulation shall be displayed on the product container so that it is readily observable without removing or disassembling a portion of the product container or packaging. For the purposes of this section, information may be displayed on the bottom of a container if it is clearly legible without removing any product packaging.

  (3) A person may not remove, alter, conceal, or deface the information required in §C(1) of this regulation before final sale of the product.

#### Regulation .14 Reporting Requirements.

*COMAR 26.11.32.14*

A. Upon 90 days written notice, the Department may require a responsible party to report the following information for a consumer product:

  (1) The company name of the responsible party and the party's address, telephone number, and designated contact person;

  (2) Any claim of confidentiality made under General Provisions Article, Title 4, Annotated Code of Maryland;

  (3) The product brand name for each consumer product and the product label;

  (4) The product category to which the consumer product belongs;

  (5) The applicable product form or forms listed separately;

  (6) An identification of each product brand name and form as a “Household Product”, “Industrial and Institutional Product”, or both;

  (7) State sales in pounds per year, to the nearest pound, and the method used to calculate State sales for each product form;

  (8) For information submitted by multiple companies, an identification of each company which is submitting relevant data separate from that submitted by the responsible party;

  (9) For each product brand name and form, the net percent by weight of the total product, less container and packaging, comprised of the following, rounded to the nearest 0.10 percent:

    (a) Total Table B compounds;

    (b) Total LVP-VOCs that are not fragrances;

    (c) Total all other carbon-containing compounds that are not fragrances;

    (d) Total all non-carbon-containing compounds;

    (e) Total fragrance;

    (f) For products containing greater than 2 percent by weight fragrance:

      (i) The percent of fragrance that are LVP-VOCs; and

      (ii) The percent of fragrance that is all other carbon-containing compounds; and

    (g) Total paradichlorobenzene;

  (10) For each product brand name and form, the identity, including the specific chemical name and associated Chemical Abstract Services (CAS) number, of the following:

    (a) Each Table B compound; and

    (b) Each LVP-VOC that is not a fragrance;

  (11) If applicable, the weight percent comprised of propellant for each product; and

  (12) If applicable, an identification of the type of propellant such as Type A, Type B, Type C, or a blend of the different types.

B. All information submitted by any person under this regulation shall be maintained in accordance with the confidentiality requirements in General Provisions Article, Title 4, Annotated Code of Maryland.

C. Special Reporting Requirements for Consumer Products that Contain Perchloroethylene or Methylene Chloride.

  (1) The requirements of this section apply to all responsible parties for consumer products that are subject to Regulation .04B of this chapter and contain perchloroethylene or methylene chloride.

  (2) For the purposes of this section, a product contains perchloroethylene or methylene chloride if the product contains 1 percent or more by weight, excluding the container or packaging, of either perchloroethylene or methylene chloride.

  (3) For each consumer product that contains perchloroethylene or methylene chloride, the responsible party shall report the following information for products sold in the State during the calendar years of 2005 through 2010:

    (a) The product brand name and a copy of the product label with legible usage instructions;

    (b) The product category to which the consumer product belongs;

    (c) The applicable product form or forms listed separately;

    (d) For each product form listed in §C(3)(c) of this regulation, the total sales in the State during the calendar year, to the nearest pound (excluding the container or packaging), and the method used for calculating the State sales; and

    (e) The weight percent, to the nearest 0.10 percent, of perchloroethylene and methylene chloride in the consumer product.

  (4) The information specified in §C(3) of this regulation shall be reported for each calendar year by March 1 of the following year until March 1, 2011, when the last report is due.

D. All information under §A(8) of this regulation from both companies shall be submitted by the date specified in §A of this regulation.

E. If the responsible party does not have or does not provide the information requested by the Department, the Department may require the reporting of this information by the person that has the information, including, but not limited to, any formulator, manufacturer, supplier, parent company, private labeler, distributor, or repackager.

#### Regulation .15 Variances.

*COMAR 26.11.32.15*

A. A person who cannot comply with the requirements set forth in Regulations .04—.10 of this chapter because of reasons beyond the person's reasonable control may apply in writing to the Department for a variance. The variance application shall include:

  (1) The specific grounds upon which the variance is sought;

  (2) The proposed date or dates by which compliance with the provisions of Regulations .04—.10 of this chapter will be achieved; and

  (3) A plan reasonably detailing the method or methods by which compliance will be achieved.

B. Action on an Application for a Variance.

  (1) A variance may not be granted unless the Department determines that:

    (a) Due to reasons beyond the reasonable control of the applicant, requiring compliance with Regulations .04—.10 of this chapter would result in undue economic hardship;

    (b) The public interest in mitigating the applicant's undue economic hardship by granting the variance outweighs the public interest in avoiding increased emissions of air contaminants that may result from issuing the variance; and

    (c) The plan proposed by the applicant can reasonably be implemented, and will achieve compliance as expeditiously as possible.

  (2) If the Department determines that a variance may be granted, it shall prepare an order that contains the following:

    (a) A final compliance date by which the requirements of Regulations .04—.10 of this chapter will be achieved;

    (b) A condition that specifies increments of progress necessary to ensure timely compliance; and

    (c) Other conditions that the Department deems necessary.

  (3) Before the order is issued, a public hearing will be held to allow an opportunity for comment on the order.

  (4) If issued, the order shall be submitted to the EPA for inclusion in the approved State Implementation Plan.

C. Failure to Comply. If a person subject to an order fails to comply fully with the terms and conditions of the order, it will be withdrawn, and the standards in Regulation .04B of this chapter shall apply.

#### Regulation .16 Test Methods.

*COMAR 26.11.32.16*

A. VOC Compliance Test Method.

  (1) Testing to determine compliance with the requirements of this chapter shall be performed using CARB Method 310, Determination of Volatile Organic Compounds (VOC) in Consumer Products, adopted September 25, 1997, and as amended on August 6, 2010.

  (2) Alternative methods which are shown to accurately determine the concentration of VOCs in a consumer product may be used upon approval by the Department.

B. VOC Content Determinations Using Product Formulation and Records.

  (1) Testing to determine compliance with the requirements of this chapter may also be demonstrated through calculation of the VOC content based upon records of the amounts of constituents used to make the product under the criteria of this section.

  (2) Compliance determinations based on these records may not be used unless the manufacturer of a consumer product maintains accurate records for each day of production of the amount and chemical composition of the individual product constituents. These records shall be maintained for at least 3 years.

  (3) The VOC content shall be calculated according to the following equation:

    (a) A = total net weight of unit (excluding container and packaging);

    (b) B = total weight of all VOCs, per unit; and

    (c) C = total weight of VOCs exempted under Regulation .01 of this chapter, per unit.

  (4) If product records appear to demonstrate compliance with the VOC limits, but these records are contradicted by product testing performed using CARB Method 310, the results of CARB Method 310 shall take precedence over the product records and may be used to establish a violation of the requirements of this chapter.

C. Determination of Liquid or Solid. Testing to determine whether a product is a liquid or solid shall be performed using ASTM D4359-90 (Reapproved 2012), Standard Test Method for Determining Whether a Material is a Liquid or a Solid.

D. Compliance Determinations for Charcoal Lighter Material Products. Testing to determine compliance with the certification requirements for charcoal lighter material shall be performed using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (February 28, 1991).

E. Testing to determine distillation points of petroleum distillate-based charcoal lighter materials shall be performed using ASTM D86-04b.

F. Testing to determine whether a material is a plasticizer, may be performed using ASTM Designation: E260-96 (Reapproved 2011), Standard Practice for Packed Column Gas Chromatography.

G. Testing to determine whether an art material label provides appropriate precautions concerning chronic health hazards related to the use of art materials, may be performed using ASTM Designation: D4236-94(Reapproved 2011), Standard Practice for Labeling Art Materials for Chronic Health Hazards.

H. A person may not create, alter, falsify, or otherwise modify records in such a way that the records do not accurately reflect:

  (1) The constituents used to manufacture a product;

  (2) The chemical composition of the individual product; or

  (3) Other tests, processes, or records used in connection with product manufacture.

#### Regulation .17 Alternative Control Plan (ACP).

*COMAR 26.11.32.17*

A. Exemption Based upon an ACP Approved by CARB.

  (1) A manufacturer that has been granted an ACP agreement by the CARB under the provisions in Subchapter 8.5, Article 4, §§94540—94555, CCR Title 17 of the California Code of Regulations based on national sales data, is exempt from the limits in Regulation .04B of this chapter for the period of time that the CARB ACP agreement remains in effect if all ACP products within the CARB ACP agreement are contained in Regulation .04B of this chapter.

  (2) A manufacturer claiming an ACP agreement on this basis shall submit to the Department the following:

    (a) A copy of the CARB ACP decision, including all conditions established by CARB applicable to the exemption;

    (b) Enforceable sales for each eligible ACP product in the State; and

    (c) If applicable, the number of surplus reduction credits created in the State.

B. ACP Approved by the Department. A manufacturer may seek an ACP agreement in accordance with Regulations .18—.26 of this chapter if that manufacturer:

  (1) Has been granted an ACP agreement under the ACP provision in Subchapter 8.5, Article 4, §§94540—94555, California Code of Regulations based on sales data specific to the state of California; or

  (2) Has not been granted an ACP agreement by the CARB.

C. Application for an ACP.

  (1) An application for an ACP shall be submitted in writing to the Department and shall contain all of the following:

    (a) An identification of the contact persons, phone numbers, names, and addresses of the responsible ACP party who is submitting the ACP application and will be implementing the requirements specified in the ACP agreement;

    (b) A statement of whether the responsible ACP party is a small business or a one-product business, as defined in Regulation .03B of this chapter;

    (c) A list of the exact product brand name, form, available variations such as flavors, scents, colors, and sizes, and the applicable product category for each distinct product that is proposed for inclusion in the ACP;

    (d) For each product identified in §C(1)(c) of this regulation, a demonstration to the satisfaction of the Department that the enforceable sales records to be used by the responsible ACP party for tracking product sales meet the minimum criteria specified in §D(1)(e) of this regulation;

    (e) For each of the products identified in §D(1)(e) of this regulation, all of the following:

      (i) Legible copies of the existing labels for each product;

      (ii) The VOC and LVP contents of the product at the time the application for an ACP is submitted; and

      (iii) VOC and LVP contents of the product that have occurred within the 4 years before the date of submittal of the application for an ACP, if either the VOC or LVP contents have varied by more than 10 percent of the VOC or LVP contents reported in §C(1)(e)(ii) of this regulation;

    (f) A written commitment by the responsible ACP party that it will:

      (i) Date-code every unit of each ACP product approved for inclusion in the ACP; and

      (ii) Display the date-code on each ACP product container or package not later than 5 working days after the date an ACP is approved by the Department;

    (g) An operational plan that meets the requirements of §C(2) of this regulation and covers all the products identified under §D(1)(e) of this regulation for each compliance period that the ACP will be in effect; and

    (h) A declaration, signed by a legal representative for the responsible ACP party, which states that all information and operational plans submitted with the ACP application are true and correct.

  (2) The operational plan required under §C(1)(g) of this regulation shall contain all of the following:

    (a) An identification of the compliance periods and dates for the responsible ACP party to report the information required by the Department in the ACP agreement where:

      (i) The length of the compliance period does not exceed 365 days; and

      (ii) The required VOC content and enforceable sales data for all ACP products are reported to the Department at the same time and frequency;

    (b) An identification of specific enforceable sales records, to be provided to the Department not later than the compliance period dates specified in §C(2)(a) of this regulation, for enforcing the provisions of this chapter and the ACP agreement;

    (c) For a small business or a one-product business which will be relying to some extent on surplus trading to meet its ACP limits, a written commitment from the responsible ACP party or parties that they will transfer the surplus reductions to the small business or one-product business upon approval of the ACP;

    (d) For each ACP product, all VOC content levels which will be applicable for the ACP product during each compliance period, the specific method or methods by which the VOC content will be determined, and the statistical accuracy and precision (repeatability and reproducibility) calculated for each specified method;

    (e) The projected enforceable sales for each ACP product at each different VOC content for every compliance period that the ACP will be in effect;

    (f) A detailed demonstration that:

      (i) Shows the combination of specific ACP reformulations or, if applicable, surplus trading, that is sufficient to ensure that the ACP emissions will not exceed the ACP limit for each compliance period that the ACP will be in effect;

      (ii) States the approximate date within each compliance period that reformulations or surplus trading are expected to occur;

      (iii) Describes the extent to which the VOC content of the ACP products will be reduced;

      (iv) Uses the equations specified in Regulation .03B(2) and (3) for projecting the ACP emissions and ACP limits during each compliance period; and

      (v) Includes all VOC content levels and projected enforceable sales for all ACP products to be sold in the State during each compliance period;

    (g) A certification that all reductions in the VOC content of a product will be real, actual reductions that do not result from changing product names, mischaracterizing ACP product reformulations that have occurred in the past, or other attempts to circumvent the provisions of this chapter;

    (h) Written explanations of the date-codes that will be displayed on each ACP product's container or packaging;

    (i) A statement of the approximate dates by which the responsible ACP party will meet the applicable ACP VOC standards for each product in the ACP; and

    (j) A reconciliation of shortfalls plan that:

      (i) Commits the responsible ACP party to completely reconcile shortfalls in all cases, even to the extent permitted by law, if the responsible ACP party files for bankruptcy protection;

      (ii) Demonstrates how shortfalls of up to 5, 10, 15, 25, 50, 75, and 100 percent of the applicable ACP limit will be completely reconciled within 90 working days from the date the shortfall is determined;

      (iii) Lists the specific records and other information that will be necessary to verify that the shortfalls were reconciled as specified in the plan; and

      (iv) Contains a commitment to provide all records or information requested by the Department to verify that the shortfalls have been completely reconciled.

D. Enforceable Sales Records.

  (1) To provide the demonstration required under §C(1)(d) of this regulation, the responsible ACP party shall:

    (a) Provide the contact persons, phone numbers, names, and street and mail addresses of all persons and businesses who will provide information that will be used to determine the enforceable sales;

    (b) Determine the enforceable sales of each product using enforceable sales records as defined in Regulation .03B(65) of this chapter;

    (c) Demonstrate, to the satisfaction of the Department, the validity of the enforceable sales based on enforceable sales records provided by the contact persons or the responsible ACP party;

    (d) Calculate the percentage of the gross State sales, as defined in Regulation .03B(92) of this chapter, which is comprised of enforceable sales; and

    (e) Determine which products have enforceable sales that are 75 percent or more of the gross State sales.

  (2) Only ACP products meeting the criteria of §D(1)(e) of this regulation shall be allowed to be sold in the State under an ACP.

#### Regulation .18 Approval of an ACP Application.

*COMAR 26.11.32.18*

A. Action on an Application.

  (1) Upon receipt and review of an ACP application, the Department shall inform the applicant in writing that either:

    (a) The application is complete and accepted for filing; or

    (b) The application is deficient and the Department identifies the specific information required to make the application complete.

  (2) If the Department finds that an application meets the requirements of Regulation .17C of this chapter, then it shall issue an ACP agreement.

  (3) The Department may deny an ACP application submitted by a responsible ACP party if the Department determines, upon review of the responsible ACP party's compliance history with past or current ACPs or the requirements for consumer products of this chapter, that the responsible ACP party has a recurring pattern of violations and has consistently refused to take the necessary steps to correct those violations.

B. Approving an ACP Application.

  (1) The Department shall specify the terms and conditions necessary to ensure that the emissions from the ACP products do not exceed the emissions that would have occurred if the ACP products subject to the ACP had met the VOC limits specified in Regulation .04B of this chapter.

  (2) The ACP agreement shall include:

    (a) Only those ACP products for which the enforceable sales are at least 75 percent of the gross State sales;

    (b) A reconciliation of shortfalls plan meeting the requirements of this chapter; and

    (c) Operational terms, conditions, and data to be reported to the Department to ensure that all requirements of this chapter are met.

#### Regulation .19 Record Keeping and Availability of Requested Information.

*COMAR 26.11.32.19*

A. All records specified in the ACP agreement shall be:

  (1) Maintained by the responsible ACP party for a minimum of 3 years after the records are generated; and

  (2) Clearly legible and maintained in good condition.

B. The responsible ACP party shall make the records required in §A of this regulation available to the Department:

  (1) Immediately upon request, during an on-site visit to a responsible ACP party;

  (2) Within 5 working days after receipt of a written request from the Department; or

  (3) During another period of time acceptable to the Department.

#### Regulation .20 Violations.

*COMAR 26.11.32.20*

A. Except as otherwise provided in this regulation, failure to meet a requirement of this chapter or a condition of an applicable ACP agreement constitutes a single, separate violation of this chapter for each day until the requirement or condition is satisfied.

B. False reporting of information contained in an ACP application, or supporting documentation or amendments to the application, constitutes a single, separate violation of the requirements of this chapter for each day that the approved ACP is in effect.

C. Each exceedance during the applicable compliance period of the VOC content specified for an ACP product in the ACP agreement constitutes a single, separate violation of the requirements of this chapter for each ACP product which exceeds the specified VOC content that is sold, supplied, offered for sale, or manufactured for use in the State.

D. Each of the following actions constitutes a single, separate violation of the requirements of this chapter for every day after the applicable deadline until the requirement is satisfied:

  (1) Failure to report data or failure to report data accurately in writing to the Department regarding the VOC content, LVP content, enforceable sales, or other information required by deadlines specified in the applicable ACP agreement;

  (2) False reporting of information submitted to the Department for determining compliance with the ACP requirements;

  (3) Failure to completely implement the reconciliation of shortfalls plan set forth in the ACP agreement, within 30 working days from the date of written notification of a shortfall by the Department; or

  (4) Failure to completely reconcile the shortfall as specified in the ACP agreement, within 90 working days from the date of written notification of a shortfall by the Department.

E. False reporting or failure to report the required information set forth in this regulation, or the sale or transfer of invalid surplus reductions, constitutes a single, separate violation of the requirements of this chapter for each day during the time period for which the surplus reductions are claimed to be valid.

F. Except as provided in §G of this regulation, an exceedance of the ACP limit for a compliance period that the ACP is in effect constitutes a single, separate violation of the requirements of this chapter for each day of the applicable compliance period. An exceedance of the ACP limit is determined as follows:

  (1) If the responsible ACP party has all required information for the applicable compliance period specified in the ACP agreement, then a determination whether an exceedance has occurred is made using the enforceable sales records and VOC content for each ACP product, as reported by the responsible ACP party for the applicable compliance period; and

  (2) If the responsible ACP party does not have all the required information specified in the ACP agreement for an applicable compliance period, the determination of whether an exceedance of the ACP limit has occurred is made as follows:

    (a) For the missing data days, calculate the total maximum historical emissions;

    (b) For the remaining portion of the compliance period which is not missing data days, calculate the emissions for each ACP product using the enforceable sales records and VOC content that were reported for that portion of the applicable compliance period;

    (c) The ACP emissions for the entire compliance period is the sum of the total maximum historical emissions, determined under §F(2)(a) and (b) of this regulation;

    (d) Calculate the ACP limit for the entire compliance period using the ACP standards applicable to each ACP product and the enforceable sales records specified in §F(2)(b) of this regulation;

    (e) The enforceable sales for each ACP product during missing data days, as specified in §F(2)(a) of this regulation, is zero; and

    (f) An exceedance of the ACP limit has occurred when the ACP emissions exceeds the ACP limit.

G. Calculation of ACP Limit Violations.

  (1) If a violation specified in §F of this regulation occurs, the responsible ACP party may establish the number of violations as calculated according to the following equation: NEV = (ACP emissions - ACP limit) × 1 Violation/40 Pounds where:

    (a) NEV = number of ACP limit violations;

    (b) ACP emissions = the ACP emissions for the compliance period; and

    (c) ACP limit = the ACP limit for the compliance period.

  (2) The responsible ACP party may determine the number of ACP limit violations under this section only if it has provided all required information for the applicable compliance period, as specified in the ACP agreement approving the ACP.

  (3) By choosing this option, the responsible ACP party waives any and all legal objections to the calculation of the ACP limit violations under this section.

H. A cause of action against a responsible ACP party under this regulation accrues when a violation occurs.

I. The responsible ACP party is fully liable for violation of a requirement of this chapter, even if the responsible ACP party contracts with or otherwise relies on another person to comply with some or all of the requirements of this chapter.

#### Regulation .21 Surplus Reductions and Surplus Trading.

*COMAR 26.11.32.21*

A. Surplus Reductions.

  (1) The Department shall issue surplus reduction certificates that establish and quantify, to the nearest pound of VOC reduced, surplus reductions achieved by a responsible ACP party operating under an ACP.

  (2) The surplus reductions can be bought from, sold to, or transferred to a responsible ACP party operating under an ACP.

  (3) A surplus reduction shall be calculated by the Department at the end of each compliance period within the time specified in the approved ACP.

  (4) Surplus reduction certificates are not instruments, securities, or other form of property.

B. Surplus Reduction Requirements.

  (1) The issuance, use, and trading of surplus reductions are subject to the provisions of this section.

  (2) VOC reductions from sources of VOCs other than consumer products subject to the VOC standards specified in Regulation .04B of this chapter may not be used to generate surplus reductions.

  (3) A surplus reduction is valid only when generated by a responsible ACP party and only while that responsible ACP party is operating under an approved ACP.

  (4) A surplus reduction is valid only after the Department has issued an ACP agreement.

  (5) A surplus reduction issued by the Department may be used by the responsible ACP party who generated the surplus reduction until the reductions expire or are traded, or until the ACP is canceled under Regulation .25 of this chapter.

  (6) A surplus reduction may not be applied retroactively to a compliance period before the compliance period in which the reductions were generated.

  (7) Except as provided in §B(8) of this regulation, only small or one-product businesses selling products under an approved ACP may purchase surplus reductions. An increase in the size of a small business or one-product business has no effect on surplus reductions purchased by that business before the date of the increase.

  (8) Valid surplus reductions can be used only for the following purposes:

    (a) To adjust either the ACP emissions of either the responsible ACP party who generated the reductions or the responsible ACP party to which the reductions were traded, if the surplus reductions are not to be used by a responsible ACP party to further lower its ACP emissions when its ACP emissions are equal to or less than the ACP limit during the applicable compliance period; or

    (b) To be traded for the purpose of reconciling another responsible ACP party's shortfalls, if the reconciliation is part of the reconciliation of shortfalls plan approved by the Department under Regulation .17C(2)(j) of this chapter.

  (9) A valid surplus reduction shall be in effect starting 5 days after the date of issuance by the Department and for a continuous period equal to the number of days in the compliance period during which the surplus reduction was generated. The surplus reduction shall then expire at the end of its effective period.

  (10) At least 5 working days before the effective date of transfer of surplus reductions, both the responsible ACP party which is selling surplus reductions and the responsible ACP party which is buying the surplus reductions shall, either together or separately, submit to the Department a written notification of the transfer as described in Regulation .26 of this chapter.

  (11) Surplus reduction credits shall be traded only between ACP product or products for consumer products.

C. The written notification of transfer of surplus reductions shall include all of the following:

  (1) The date the transfer is to become effective;

  (2) The date the surplus reductions being traded are due to expire;

  (3) The amount, expressed as pounds of VOCs, of surplus reductions that are being transferred;

  (4) The total purchase price paid by the buyer for the surplus reductions;

  (5) The contact persons, names of the companies, street and mail addresses, and phone numbers of the responsible ACP parties involved in the trading of the surplus reductions;

  (6) A copy of the Department-issued surplus reductions certificate, that:

    (a) Is signed by both the seller and buyer of the certificate, showing transfer of all or a specified portion of the surplus reductions;

    (b) States, if applicable, the amount of remaining non-traded surplus reductions and their expiration date; and

    (c) Indicates that both the buyer and seller of the surplus reductions fully understand the conditions and limitations placed upon the transfer of the surplus reductions and accept full responsibility for the appropriate use of the surplus reductions as provided in this regulation.

#### Regulation .22 Limited-Use Surplus Reduction Credits for Early Reformulations of ACP Products.

*COMAR 26.11.32.22*

A. Early Reformulation.

  (1) For the purposes of this regulation, “early reformulation” means an ACP product that is reformulated to result in a reduction in the product's VOC content and that is sold, supplied, or offered for sale in the State for the first time during the 1-year period immediately before the date on which the application for a proposed ACP is submitted to the Department.

  (2) “Early reformulation” does not include reformulated ACP products which are sold, supplied, or offered for sale in the State more than 1 year before the date on which the ACP application is submitted to the Department.

B. If requested in the application for a proposed ACP, the Department shall, upon approval of the ACP, issue surplus reduction credits for early reformulation of an ACP product if the responsible ACP party provides, to the satisfaction of the Department, the following:

  (1) Accurate documentation showing that the early reformulation reduced the VOC content of the ACP product to a level which is below the pre-ACP VOC content of the product, or below the applicable VOC standard specified in Regulation .04B of this chapter, whichever is the lesser of the two;

  (2) Accurate documentation demonstrating that the early reformulated ACP product was sold in State retail outlets within the time period specified in §A(1) of this regulation;

  (3) Accurate sales records for the early reformulated ACP product that meet the definition of “enforceable sales records” in Regulation .03B(65) of this chapter, and that demonstrate that the enforceable sales for the ACP product are at least 75 percent of the gross State sales for the product; and

  (4) Accurate documentation for the early reformulated ACP product which meets the requirements of this regulation, and which identifies the specific test methods for verifying the claimed early reformulation and the statistical accuracy and precision of the test methods.

C. Surplus reduction credits issued under this regulation are calculated separately for each early reformulated ACP product by the Department according to the following equation:

  (1) SR = Surplus reductions for the ACP product, expressed to the nearest pound;

  (2) Enforceable Sales = The enforceable sales for the early reformulated ACP product, expressed to the nearest pound of ACP product;

  (3) VOC Contentinitial = The pre-ACP VOC content of the ACP product, or the applicable VOC standard specified in Regulations .04—.10 of this chapter, whichever is the lesser of the two, expressed to the nearest 0.1 pounds of VOC per 100 pounds of ACP product; and

  (4) VOC Contentfinal = The VOC content of the early reformulated ACP product after the early reformulation is achieved, expressed to the nearest 0.1 pounds of VOC per 100 pounds of ACP product.

D. The use of surplus reduction credits issued under this regulation is subject to the following provisions:

  (1) Surplus reduction credits will be used solely to reconcile the responsible ACP party's shortfalls, if any, generated during the first compliance period occurring immediately after the issuance of the ACP agreement;

  (2) Surplus reduction credits may not be transferred to or used by any other responsible ACP party; and

  (3) Except as provided in this regulation, surplus reduction credits are subject to all requirements applicable to surplus reductions and surplus trading, as specified in Regulation .21 of this chapter.

#### Regulation .23 Reconciliation of Shortfalls.

*COMAR 26.11.32.23*

A. Determination of Shortfalls.

  (1) At the end of each compliance period, the responsible ACP party shall submit to the Department an initial calculation of shortfalls occurring in that compliance period, as specified in the ACP agreement approving the ACP.

  (2) Upon receipt of this information, the Department shall determine the amount of a shortfall that has occurred during the compliance period, and shall notify the responsible ACP party of this determination.

B. The responsible ACP party shall implement the reconciliation of shortfalls plan as specified in the ACP agreement approving the ACP within 30 working days from the date of written notification of a shortfall by the Department.

C. All shortfalls shall be completely reconciled within 90 working days from the date of written notification of a shortfall by the Department by implementing the reconciliation of shortfalls plan specified in the ACP agreement.

D. All requirements specified in the ACP agreement, including all applicable ACP limits, remain in effect while shortfalls are in the process of being reconciled.

#### Regulation .24 Modifications to an ACP.

*COMAR 26.11.32.24*

A. Modifications That Do Not Require Department Pre-Approval.

  (1) The responsible ACP party shall notify the Department, in writing, not later than 15 working days from the date of a change to an ACP product's:

    (a) Name;

    (b) Formulation;

    (c) Form;

    (d) Function;

    (e) Applicable product category;

    (f) VOC content;

    (g) LVP content;

    (h) Date-codes; or

    (i) Recommended product usage directions.

  (2) For each modification, the notification shall fully explain the following:

    (a) The nature of the modification;

    (b) The extent to which the ACP product formulation, VOC content, LVP content, or recommended usage directions will be changed;

    (c) The extent to which the ACP emissions and ACP limit specified in the ACP agreement will be changed for the applicable compliance period; and

    (d) The effective date and corresponding date-codes for the modification.

B. Modifications That Require Department Pre-Approval.

  (1) A responsible ACP party may propose modifications to the enforceable sales records or reconciliation of shortfalls plan specified in the ACP agreement approving the ACP if the responsible party:

    (a) Describes the proposed modification fully in writing and forwards the description to the Department; and

    (b) Clearly demonstrates that the proposed modifications will meet the requirements of this chapter.

  (2) The responsible ACP party shall meet all applicable requirements of the existing ACP until a proposed modification is approved in writing by the Department.

  (3) The Department shall act on the proposed modifications using the procedure set forth in Regulation .24 of this chapter.

C. Other Modifications. Except as otherwise provided in §A or B of this regulation, the responsible ACP party shall notify the Department in writing of information learned by the responsible ACP party that may alter the information submitted under the requirements of this regulation not later than 15 working days from the date the information is known to the responsible ACP party.

D. Modification of an ACP by the Department.

  (1) The Department shall modify an ACP as necessary to ensure that the ACP meets all requirements of this chapter and that the ACP emissions will not exceed the ACP limit if the Department determines that:

    (a) The enforceable sales for an ACP product are no longer at least 75 percent of the gross State sales for that product;

    (b) The information submitted under the approval process set forth in §C of this regulation is no longer valid; or

    (c) The ACP emissions are exceeding the ACP limit specified in the ACP agreement.

  (2) The Department may not modify the ACP without first affording the responsible ACP party an opportunity for public comment in accordance with the procedures specified in applicable State laws and regulations to determine if the ACP should be modified.

  (3) If an applicable VOC limit specified in Regulation .04B of this chapter is modified by CARB in a future rulemaking, the Department shall modify the ACP limit specified in the ACP agreement to reflect the modified ACP VOC standards as of the effective dates of their modification by CARB.

#### Regulation .25 Cancellation of an ACP.

*COMAR 26.11.32.25*

A. An ACP shall remain in effect until:

  (1) The ACP reaches the expiration date specified in the ACP agreement;

  (2) The ACP is modified by the responsible ACP party and the modification is approved by the Department, as provided in Regulation .24 of this chapter;

  (3) The ACP is modified by the Department, as provided in Regulation .24D of this chapter;

  (4) The ACP includes a product for which the VOC standard specified in Regulation .04B is modified by the Department in a future rulemaking, and the responsible ACP party informs the Department in writing that the ACP will terminate on the effective date or dates of the modified standard; or

  (5) The ACP is canceled under §B of this regulation.

B. The Department shall cancel an ACP if one or more of the following circumstances occur:

  (1) The responsible ACP party demonstrates to the satisfaction of the Department that the continuation of the ACP will result in an extraordinary economic hardship;

  (2) The responsible ACP party violates the requirements of the approved ACP, and the violation results in a shortfall that is 20 percent or more of the applicable ACP limit (that is, the ACP emissions exceed the ACP limit by 20 percent or more);

  (3) The responsible ACP party fails to meet the requirements of the reconciliation of shortfalls plan described under Regulation .23 of this chapter within the time periods specified; or

  (4) The responsible ACP party has demonstrated a recurring pattern of violations and has consistently failed to take the necessary steps to correct those violations.

C. The Department may not cancel an ACP under this regulation without first affording the responsible ACP party an opportunity for a public comment hearing under procedures specified by State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, to determine if the ACP should be canceled.

D. The responsible ACP party for an ACP which is canceled under this regulation and who does not have a valid ACP to immediately replace the canceled ACP shall meet all of the following requirements:

  (1) All remaining shortfalls in effect at the time of ACP cancellation shall be reconciled under the requirements of Regulation .23 of this chapter; and

  (2) All ACP products subject to the ACP shall be in compliance with the applicable VOC limits in Regulations .04—.10 of this chapter immediately on the effective date of ACP cancellation.

E. A violation incurred under Regulation .20 of this chapter may not be canceled or in any way affected by the subsequent cancellation or modification of an ACP.

#### Regulation .26 Transfer of an ACP.

*COMAR 26.11.32.26*

A responsible ACP party may transfer an ACP to another responsible ACP party if the following conditions are met:

A. Both responsible ACP parties participating in the transfer of the ACP and its associated ACP agreement submit a written notification to the Department that:

  (1) Has been postmarked at least 5 working days before the effective date of the transfer;

  (2) Is signed and submitted separately by both responsible parties; and

  (3) Clearly identifies the contact persons, business names, mail and street addresses, and phone numbers of the responsible parties involved in the transfer; and

B. The responsible ACP party to which the ACP is being transferred provides a written declaration stating that the transferee shall fully comply with all requirements of the ACP agreement approving the ACP and this chapter.

### Chapter 33 — Prohibitions on Use of Certain Hydrofluorocarbons in Aerosol Propellants, Chillers, Foam, and Stationary Refrigeration End-Uses

**Authority:** Authority: Environment Article, §§1-404, 2-103, 2-301—303, 2-1202, and 2-1205,  Annotated Code of Maryland

**Administrative History:** Effective date: November 2, 2020 (47:22 Md. R. 936)

#### Regulation .01 Applicability.

*COMAR 26.11.33.01*

This chapter applies to any person who sells, offers for sale, leases, rents, installs, uses, or manufactures in the State any substance for use in an end-use listed in Regulation .03 of this chapter or any product or equipment using such a substance.

#### Regulation .02 Definitions.

*COMAR 26.11.33.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Aerosol propellant” means a compressed gas that serves to dispense the contents of an aerosol container when the pressure is released.

  (2) “Air conditioning equipment” means chillers, both centrifugal chillers and positive displacement chillers, intended for comfort cooling of occupied spaces.

  (3) “Bunstock” or “bun stock” means a large solid block-like structure formed during the production of polyurethane, polyisocyanurate, phenolic, or polystyrene insulation.

  (4) “Capital cost” means an expense incurred in the production of goods or in rendering services, including the cost of engineering, purchase, and installation of components or systems, and instrumentation, and contractor and construction fees.

  (5) Centrifugal Chiller.

    (a) “Centrifugal chiller” means air conditioning equipment that utilizes a centrifugal compressor in a vapor-compression refrigeration cycle typically used for commercial comfort air conditioning.

    (b) “Centrifugal chiller” does not include cooling for industrial process cooling and refrigeration.

  (6) “Cold storage warehouse” means a cooled facility designed to store meat, produce, dairy products, and other products that are delivered to other locations for sale to the ultimate consumer.

  (7) “Component” means:

    (a) A part of a refrigeration system, including condensing units, compressors, condensers, evaporators, and receivers; and

    (b) All of a refrigeration system’s connections and subassemblies, without which the refrigeration system will not properly function or will be subject to failures.

  (8) “Cumulatively replaced” means the addition of or change in multiple components within a 3-year period.

  (9) “Effective date” or “effective date of prohibition” means the date of manufacture after which the prohibitions provided in Regulation .03B of this chapter go into effect.

  (10) ‘‘End-use’’ means processes or classes of specific applications within industry sectors, including those listed in Regulation .03B of this chapter.

  (11) “Flexible polyurethane” means a non-rigid synthetic foam containing polymers created by the reaction of isocyanate and polyol, including that used in furniture, bedding, and chair cushions.

  (12) “Foam” means a product with a cellular structure formed via a foaming process in a variety of materials that undergo hardening via a chemical reaction or phase transition.

  (13) “Foam blowing agent” means a substance used to produce foam.

  (14) Household Refrigerators and Freezers.

    (a) “Household refrigerators and freezers” means refrigerators, refrigerator-freezers, freezers, and miscellaneous household refrigeration appliances intended for residential use.

    (b) “Household refrigerators and freezers” does not include household refrigerators and freezers — compact or household refrigerators and freezers — built-in.

  (15) Household Refrigerators and Freezers — Built-In.

    (a) “Household refrigerators and freezers — built-in” means any refrigerator, refrigerator-freezer or freezer intended for residential use with 7.75 cubic feet or greater total volume and 24 inches or less depth not including doors, handles, and custom front panels.

    (b) “Household refrigerators and freezers — built-in” contain sides which are not finished and not designed to be visible after installation.

    (c) “Household refrigerators and freezers — built-in” are designed, intended, and marketed exclusively to be:

      (i) Installed totally encased by cabinetry or panels that are attached during installation;

      (ii) Securely fastened to adjacent cabinetry, walls, or floor; and

      (iii) Equipped with an integral factory-finished face or accept a custom front panel.

  (16) “Household refrigerators and freezers — compact” means any refrigerator, refrigerator-freezer or freezer intended for residential use with a total refrigerated volume of less than 7.75 cubic feet (220 liters).

  (17) “Hydrofluorocarbons (HFCs)” means a class of greenhouse gases that are saturated organic compounds containing hydrogen, fluorine, and carbon.

  (18) “Integral skin polyurethane” means a synthetic self-skinning foam containing polyurethane polymers formed by the reaction of an isocyanate and a polyol, such as that used in car steering wheels and dashboards.

  (19) “Manufacturer” means any person, firm, association, partnership, corporation, governmental entity, organization, or joint venture that produces any product that contains or uses hydrofluorocarbons or is an importer or domestic distributor of such a product.

  (20) “Medical dose inhaler”, “Metered dose inhaler” or “MDI” means a device that:

    (a) Delivers a measured amount of medication as a mist that a patient can inhale, typically used for bronchodilation to treat symptoms of asthma, chronic obstructive pulmonary disease (COPD), chronic bronchitis, emphysema, and other respiratory illnesses; and

    (b) Consists of a pressurized canister of medication in a case with a mouthpiece.

  (21) “Miscellaneous residential refrigeration appliance” means a residential refrigeration appliance smaller than a refrigerator, refrigerator-freezer, or freezer, including coolers, cooler compartments, and combination cooler refrigeration or cooler freezer products.

  (22) “Motor-bearing” means refrigeration equipment containing motorized parts, including compressors, condensers, and evaporators.

  (23) “New” means products or equipment:

    (a) That are manufactured after the effective date of this chapter;

    (b) First installed for an intended purpose with new or used components after the effective date of this chapter;

    (c) Expanded after the effective date of this chapter, to handle an expanded cooling load by the addition of components in which the capacity of the system is increased, including refrigerant lines, evaporators, compressors, and condensers; or

    (d) Replaced or cumulatively replaced after the effective date of this chapter such that the capital cost of replacing or cumulatively replacing components after the effective date of this chapter exceeds 50 percent of the capital cost of replacing the whole system.

  (24) “Person” means any individual, firm, association, organization, manufacturer, distributor, partnership, business trust, corporation, limited liability company, company, state, or local governmental agency or public district.

  (25) “Phenolic insulation board” means phenolic insulation including that used for roofing and wall insulation.

  (26) “Polyolefin” means foam sheets and tubes made of polyolefin.

  (27) “Polystyrene extruded boardstock and billet (XPS)” means a foam formed from predominantly styrene monomer and produced on extruding machines in the form of continuous foam slabs which can be cut and shaped into panels used for roofing, walls, flooring, and pipes.

  (28) “Polystyrene extruded sheet” means polystyrene foam, including that used for packaging and made into food-service items, including hinged polystyrene containers (for “take-out” from restaurants), food trays (meat and poultry), plates, bowls, and retail egg containers.

  (29) Positive Displacement Chiller.

    (a) “Positive displacement chiller” means vapor compression cycle chillers that use positive displacement compressors, typically used for commercial comfort air conditioning.

    (b) “Positive displacement chiller” does not include cooling for industrial process cooling and refrigeration.

  (30) “Refrigerant” or “refrigerant gas” means any substance, including blends and mixtures, which is used for heat transfer purposes.

  (31) Refrigerated Food Processing and Dispensing Equipment.

    (a) “Refrigerated food processing and dispensing equipment” means retail food refrigeration equipment that is designed to process food and beverages dispensed via a nozzle that are intended for immediate or near-immediate consumption, including chilled and frozen beverages, ice cream, and whipped cream.

    (b) “Refrigerated food processing and dispensing equipment” does not include water coolers or units designed solely to cool and dispense water.

  (32) “Refrigeration equipment” means any stationary device that is designed to contain and use refrigerant gas, including commercial refrigeration equipment, household refrigeration equipment, and cold storage warehouses.

  (33) “Remote condensing units” means retail refrigeration equipment or units that:

    (a) Have a central condensing portion, and other parts of the system, located outside the space or area cooled by an evaporator;

    (b) May consist of compressor(s), condenser(s), and receiver(s) assembled into a single unit, which may be located external to the sales area; and

    (c) Are commonly installed in convenience stores, specialty shops (for example, bakeries, butcher shops), supermarkets, restaurants, and other locations where food is stored, served, or sold.

  (34) Residential Use.

    (a) “Residential use” means use by a private individual of a substance, or a product containing the substance, in or around a permanent or temporary household, during recreation, or for any personal use or enjoyment.

    (b) “Residential use” does not include use within a household for commercial or medical application, or in automobiles, watercraft, or aircraft.

  (35) “Retail food refrigeration” or “commercial refrigeration” means equipment designed to store and display chilled or frozen goods for commercial sale including stand-alone units, refrigerated food processing and dispensing equipment, remote condensing units, supermarket systems, and vending machines.

  (36) Retrofit.

    (a) “Retrofit” means to convert an appliance from one refrigerant to another refrigerant.

    (b) “Retrofit” includes the conversion of the appliance to achieve system compatibility with the new refrigerant and may include changes in lubricants, gaskets, filters, driers, valves, o-rings, or appliance components.

  (37) “Rigid polyurethane and polyisocyanurate laminated boardstock” means laminated board insulation made with polyurethane or polyisocyanurate foam, including that used for roofing and wall insulation.

  (38) “Rigid polyurethane appliance foam” means polyurethane insulation foam in household appliances.

  (39) “Rigid polyurethane commercial refrigeration and sandwich panels” means polyurethane insulation for use in walls and doors, including that used for commercial refrigeration equipment and garage doors.

  (40) “Rigid polyurethane high-pressure two-component spray foam” means a foam product that:

    (a) Is pressurized 800 — 1600 pounds per square inch (psi) during manufacture;

    (b) Is sold in pressurized containers as two parts (that is, A-side and B-side);

    (c) Is blown and applied in situ using high-pressure pumps to propel the foam components; and

    (d) May use liquid blowing agents without an additional propellant.

  (41) “Rigid polyurethane low-pressure two-component spray foam” means a foam product that:

    (a) Is pressurized to less than 250 psi during manufacture;

    (b) Is sold in pressurized containers as two parts (that is, A-side and B-side); and

    (c) Is typically applied in situ relying upon a gaseous foam blowing agent that also serves as a propellant so pumps typically are not needed.

  (42) “Rigid polyurethane marine flotation foam” means buoyancy or flotation foam used in boat and ship manufacturing for both structural and flotation purposes.

  (43) “Rigid polyurethane one-component foam sealants” means a foam packaged in aerosol cans that is applied in situ using a gaseous foam blowing agent that is also the propellant for the aerosol formulation.

  (44) “Rigid polyurethane slabstock and other” means a rigid closed-cell foam containing urethane polymers produced by the reaction of an isocyanate and a polymer and formed into slabstock insulation for panels and fabricated shapes for pipes and vessels.

  (45) “Stand-alone low-temperature unit” means a stand-alone unit that maintains food or beverages at temperatures at or below 32°F (0°C).

  (46) “Stand-alone medium-temperature unit” means a stand-alone unit that maintains food or beverages at temperatures above 32°F (0°C).

  (47) “Stand-alone unit” means retail refrigerators, freezers, and reach-in coolers (either open or with doors) where all refrigeration components are integrated and, for the smallest types, the refrigeration circuit is entirely brazed or welded, and all are fully charged with refrigerant at the factory and typically requires only an electricity supply to begin operation.

  (48) “Substance” means any chemical intended for use in the end-uses listed in Regulation .03B of this chapter.

  (49) “Supermarket systems” means multiplex or centralized retail food refrigeration equipment systems designed to cool or refrigerate, which typically operate with racks of compressors installed in a machinery room and which includes both direct and indirect systems.

  (50) Use.

    (a) “Use” means any utilization of a compound or any substance, including utilization in a manufacturing process or product in the State, consumption by the end-user in the State, or in intermediate applications in the State, such as formulation or packaging for other subsequent applications.

    (b) “Use” includes manufacturing for the purpose of residential use.

    (c) “Use” does not include residential use.

  (51) “Vending machines” means self-contained commercial food refrigeration equipment that dispense goods that must be kept hot, cold or frozen.

#### Regulation .03 List of Prohibited Substances.

*COMAR 26.11.33.03*

A. The table under §B of this regulation lists prohibited substances in specific end-uses and the applicable effective date of prohibition, unless an exemption is provided for in §C of this regulation. The prohibitions do not apply to products or equipment manufactured for listed end-uses prior to an applicable effective date.

B. Table 1 — End-Use and Prohibited Substances.

C. Table 2 — HFC Prohibition Exemptions. The following table lists exemptions to the prohibitions in §B of this regulation.

#### Regulation .04 General Requirements.

*COMAR 26.11.33.04*

A. No person may sell, lease, rent, install, use, or manufacture in the State, any product or equipment if it consists of, uses, or will use a listed substance for use in an end-use listed in Regulation .03B of this chapter, unless an exemption is listed in Regulation .03C of this chapter.

B. Existing Products and Equipment.

  (1) Except where an existing system is retrofitted, nothing in this chapter requires a person that acquired a product or equipment containing a prohibited substance prior to the effective date of the prohibition in Regulation .03B of this chapter to cease use of that product or equipment.

  (2) Products or equipment manufactured prior to the applicable effective date of the restrictions specified in Regulation .03B of this chapter (including spray foam systems not yet applied on-site) may be sold, imported, exported, distributed, installed, and used after the specified date of prohibition.

C. Disclosure Statement.

  (1) Except for acceptable uses as listed in Regulation .03C of this chapter, as of the effective date listed in Regulation .03B of this chapter, any person who manufactures for sale, lease, rent, install, or use products or equipment in the air-conditioning, refrigeration, foam, or aerosol propellant end-uses listed in Regulation .03 of this chapter, shall provide a written disclosure to the buyer.

  (2) For motor-bearing refrigeration and air-conditioning equipment that is not factory-charged or pre-charged with a refrigerant, the disclosure or label shall state: “This equipment is prohibited from using any substance on the “List of Prohibited Substances” for that specific end-use, in accordance with State regulations for hydrofluorocarbons.”

  (3) Except for products and equipment with existing labeling required by State building codes and safety standards which contain the information required in this subsection, the disclosure or label for refrigeration and air-conditioning equipment that are factory-charged or pre-charged with a refrigerant shall include:

    (a) The date of manufacture; and

    (b) The refrigerant and foam blowing agent the product or equipment contains.

  (4) For foam products, the disclosure shall be a label or sticker applied to product packaging that states: “Where sold, compliant with State HFC regulations.”

  (5) For aerosol products:

    (a) Each aerosol propellant product shall comply with the product-dating requirements in COMAR 26.11.32.13; and

    (b) The propellant shall be listed in a Safety Data Sheet that complies with the requirements of 29 CFR §1910.1200.

#### Regulation .05 Reporting.

*COMAR 26.11.33.05*

A. Any person who manufactures for sale, lease, rent, install, or use products or equipment that contain or use a substance listed in Regulation .03B of this chapter for specific end-uses listed in Regulation .03B of this chapter, shall follow the reporting requirements as specified in §§B and C of this regulation.

B. Initial Notification.

  (1) Within 90 days of the effective date of this chapter, each manufacturer shall provide the Department an initial status notification of the status of products or equipment within each end-use listed in Regulation .03B of this chapter that uses or is designed to use substances listed in Regulation .03B of this chapter.

  (2) The initial status notification according to §B(1) of this regulation shall include:

    (a) Contact information for the manufacturer;

    (b) The name of the party authorized to represent the manufacturer for purposes of providing initial status notifications and status updates;

    (c) All end-use categories that are applicable to the manufacturer;

    (d) Which refrigerant, aerosol propellant, or foam blowing agent is being used by products within each end-use applicable to the manufacturer; and

    (e) The signature and certification of the authorized representative for the manufacturer.

C. Status Update Notification.

  (1) Manufacturers shall follow the requirements in §B of this regulation annually until products or equipment within each end-use listed in Regulation .03B of this chapter cease use of substances listed in Regulation .03B of this chapter.

  (2) Manufacturers subject to this regulation shall notify the Department in writing when products or equipment within each end-use listed in Regulation .03B of this chapter cease use of substances listed in Regulation .03B of this chapter.

#### Regulation .06 Record Keeping.

*COMAR 26.11.33.06*

A. As of the effective date of this chapter, any person who manufactures for sale, lease, rent, install, or use products or equipment in the end uses listed in Regulation .03B of this chapter shall maintain for 3 years a copy of the following records, where applicable:

  (1) The date of manufacture of the equipment or product;

  (2) The refrigerant, aerosol propellant, and foam blowing agent(s) blend that the equipment or product is designed to use;

  (3) The refrigerant, aerosol propellant, and foam blowing agent(s) in the equipment or product; and

  (4) A copy of the disclosure statement, label, or sticker issued to the buyer or recipient.

B. Any person who manufactures any product or equipment in the end uses listed in Regulation .03B of this chapter, shall make available, upon request, a copy of the records in §A of this regulation.

### Chapter 34 — Low Emissions Vehicle Program

**Authority:** Environment Article, §§1-404, 2-102, 2-103, 2-301, 2-1102, and 2-1103, Annotated Code of Maryland

**Administrative History:** Effective date: December 17, 2007 (34:25 Md. R. 2215)

**Administrative History:** Regulation .02B amended effective November 16, 2009 (36:23 Md. R. 1819); May 16, 2011 (38:10 Md. R. 617)

**Administrative History:** Regulation .02B amended as an emergency provision effective December 31, 2012 (40:1 Md. R. 19); amended permanently effective March 4, 2013 (40:4 Md. R. 347)

**Administrative History:** Regulation .02B amended effective March 3, 2014 (41:4 Md. R. 306); February 16, 2015 (42:3 Md. R. 318); May 8, 2017 (44:9 Md. R. 438)

**Administrative History:** Regulation .02B amended as an emergency provision effective December 31, 2018 (46:2 Md. R. 51); amended permanently effective June 3, 2019 (46:11 Md. R. 517)

**Administrative History:** Regulation .02B amended effective September 18, 2023 (50:18 Md. R. 801)

#### Regulation .01 Purpose.

*COMAR 26.11.34.01*

The purpose of this chapter is to implement the requirements of the Maryland Clean Cars Act of 2007 by establishing regulations implementing California's motor vehicle emission standards.

#### Regulation .02 Incorporation by Reference.

*COMAR 26.11.34.02*

A. In this chapter, the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 1, §1900 Definitions, as effective November 30, 2022.

  (2) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1960.1 Exhaust Emissions Standards and Test Procedures—1981 through 2006 Model Passenger Cars, Light-Duty and Medium-Duty Vehicles, as effective December 31, 2012.

  (3) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1960.5 Certification of 1983 and Subsequent Model-Year Federally Certified Light-Duty Motor Vehicles for Sale in California, as effective October 16, 2002.

  (4) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1961 Exhaust Emission Standards and Test Procedures —2004 through 2019 Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, as effective December 31, 2012.

  (5) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1961.1 Greenhouse Gas Exhaust Emission Standards and Test Procedures—2009 through 2016 Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, as effective August 7, 2012.

  (6) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1961.2 Exhaust Emission Standards and Test Procedures-2015 through 2025 Model Year Passenger Cars and Light-Duty Trucks, and 2015 through 2028 Model Year Medium-Duty Vehicles, as effective November 30, 2022.

  (7) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1961.3 Greenhouse Gas Exhaust Emission Standards and Test Procedures – 2017 and Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Passenger Vehicles, as effective November 30, 2022.

  (8) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1961.4 Exhaust Emission Standards and Test Procedures – 2026 and Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, as effective November 30, 2022.

  (9) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1962 Zero-Emission Vehicle Standards for 2005 through 2008 Model Year Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, as effective February 13, 2010.

  (10) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1962.1 Zero-Emission Vehicle Standards for 2009 through 2017 Model Year Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, as effective January 1, 2016.

  (11) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1962.2 Zero-Emission Vehicle Standards for 2018  through 2025 Model Year Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, as effective November 30, 2022.

  (12) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1962.3 Electric Vehicle Charging Requirements, as effective November 30, 2022.

  (13) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1962.4 Zero-Emission Vehicle Requirements for 2026 and Subsequent Model Year Passenger Cars and Light-Duty Trucks, as effective November 30, 2022.

  (14) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1962.5 Data Standardization Requirements for 2026 and Subsequent Model Year Light-Duty Zero Emission Vehicles and Plug-in Hybrid Electric Vehicles, as effective November 30, 2022.

  (15) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1962.6 Battery Labeling Requirements, as effective November 30, 2022.

  (16) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1962.7 In-Use Compliance, Corrective Action and Recall Protocols for 2026 and Subsequent Model Year Zero Emission and Plug-in Hybrid Electric Passenger Cars and Light-Duty Trucks, as effective November 30, 2022.

  (17) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1962.8 Warranty Requirements for Zero Emission and Batteries in Plug-in Hybrid Electric 2026 and Subsequent Model Year Passenger Cars and Light-Duty Trucks, as effective November 30, 2022.

  (18) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1965 Emission Control, Smog Index, and Environmental Performance Labels — 1979 and Subsequent Model-Year Motor Vehicles, as effective November 30, 2022.

  (19) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1968.2 Malfunction and Diagnostic System Requirements — 2004 and Subsequent Model Year Passenger Cars, Light Duty Trucks, and Medium Duty Vehicles and Engines, as effective November 30, 2022.

  (20) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1968.5 Enforcement of Malfunction and Diagnostic System Requirements for 2004 and Subsequent Model-Year Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles and Engines, as effective July 25, 2016.

  (21) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1969 Motor Vehicle Service Information — 1994 and Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Engines and Vehicles, and 2007 and Subsequent Model Heavy-Duty Engines, as effective November 30, 2022.

  (22) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1975 Standards and Test Procedures for Crankcase Emissions, undated, as published May 3, 2007.

  (23) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1976 Standards and Test Procedures for Motor Vehicle Fuel Evaporative Emissions, as effective November 30, 2022.

  (24) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1977 Certification and Service Documents — 1993 and Subsequent Model Motor Vehicles, as effective October 5, 1992.

  (25) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1978 Standards and Test Procedures for Vehicle Refueling Emissions, as effective November 30, 2022.

  (26) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 5, §2030 Liquefied Petroleum Gas or Natural Gas Retrofit Systems, as effective September 15, 2014.

  (27) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 5, §2032 Off-Vehicle Charge Capable Hybrid Electric Vehicle Conversion Systems, as effective February 13, 2010.

  (28) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 6, §2035 Purpose, Applicability, and Definitions, as effective April 1, 2022.

  (29) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 6, §2037 Defects Warranty Requirements for 1990 and Subsequent Model Passenger Cars, Light-Duty Trucks, Medium-Duty Vehicles, and Motor Vehicle Engines Used in Such Vehicles, as effective November 30, 2022.

  (30) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 6, §2038 Performance Warranty Requirements for 1990 and Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, and Motor Vehicle[s] Engines Used in Such Vehicles, as effective November 30, 2022.

  (31) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 6, §2039 Emissions Control System Warranty Statement, as effective December 26, 1990.

  (32) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 6, §2040 Vehicle Owner Obligations, as effective October 1, 2019.

  (33) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 6, §2041 Mediation; Finding of Warrantable Condition, as effective December 26, 1990.

  (34) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 1, §2062 Assembly-Line Test Procedures — 1998 and Subsequent Model Years, as effective August 7, 2012.

  (35) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2, §2101 Compliance Testing and Inspection — New Vehicle Selection, Evaluation, and Enforcement Action, as effective November 27, 1999.

  (36) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2, §2106 New Vehicle Assembly-Line Inspection Testing, as effective November 27, 1999.

  (37) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2, §2107 Assembly-Line Quality-Audit Testing, as effective November 27, 1999.

  (38) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2, §2108 Order of Executive Officer, as effective December 30, 1983.

  (39) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2, §2109 New Vehicle Recall Provisions, as effective December 30, 1983.

  (40) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.1, §2111 Applicability, as effective  April 1, 2022.

  (41) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.1, §2112 Definitions, undated, as effective November 30, 2022.

  (42) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.1, Appendix A to Article 2.1 California In-Use Vehicle Emission-Related Recall Procedures, Enforcement Test Procedures, and Failure Reporting Procedures for 1982 and Subsequent Model-Year Passenger Cars, Light-Duty Trucks, Medium-Duty Vehicles, Heavy-Duty Vehicles and Engines, Motorcycles, 1997 and Subsequent Model-Year Off-Road Motorcycles and All-Terrain Vehicles, 2000 and Subsequent Model-Year Off-Road Compression-Ignition Engines, and 2008 and Subsequent Model-Year Spark-Ignition Inboard and Sterndrive Marine Engines, as effective August 16, 2009.

  (43) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.1, §2113 Initiation and Approval of Voluntary and Influenced Emission-Related Recalls, as effective  April 1, 2022.

  (44) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.1, §2114 Voluntary and Influenced Recall Plans, as effective April 1, 2022.

  (45) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.1, §2115 Eligibility for Repair, as effective April 1, 2022.

  (46) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.1, §2116 Repair Label, as effective April 1, 2022.

  (47) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.1, §2117 Proof of Correction Certificate, as effective April 1, 2022.

  (48) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.1, §2118 Notification, as effective April 1, 2022.

  (49) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.1, §2119 Recordkeeping and Reporting Requirements, as effective April 1, 2022.

  (50) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.1, §2120 Other Requirements Not Waived, as effective January 26, 1995.

  (51) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.1, §2121 Penalties, as effective April 1, 2022.

  (52) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2122 General Provisions, as effective December 8, 2010.

  (53) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2123 Initiation and Notification of Ordered Emissions-Related Recalls, as effective  April 1, 2022.

  (54) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2124 Availability of Public Hearing, as effective January 26, 1995.

  (55) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2125 Ordered Recall Plan, as effective April 1, 2022.

  (56) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2126 Approval and Implementation of Recall Plan, as effective April 1, 2022.

  (57) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2127 Notification of Owners, as effective April 1, 2022.

  (58) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2128 Repair Label, as effective April 1, 2022.

  (59) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2129 Proof of Correction Certificate, as effective April 1, 2022.

  (60) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2130 Capture Rates and Alternative Measures, as effective April 1, 2022.

  (61) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2131 Preliminary Tests, as effective April 1, 2022.

  (62) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2132 Communication with Repair Personnel, as effective January 26, 1995.

  (63) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2133 Recordkeeping and Reporting Requirements, as effective April 1, 2022.

  (64) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2134 Penalties, as effective January 26, 1995.

  (65) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.2, §2135 Extension of Time, as effective January 26, 1995.

  (66) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.3, §2136 General Provisions, as effective December 8, 2010.

  (67) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.3, §2137 Vehicle and Engine Selection, as effective April 1, 2022.

  (68) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.3, §2138 Restorative Maintenance, as effective November 27, 1999.

  (69) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.3, §2139 Testing, as effective November 30, 2022.

  (70) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.3, §2140 Notification and Use of Test Results, as effective November 30, 2022.

  (71) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.4, §2141 General Provisions, as effective  April 1, 2022.

  (72) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.4, §2142 Alternative Procedures, as effective April 1, 2022.

  (73) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.4, §2143 Failure Levels Triggering Recall, as effective April 1, 2022.

  (74) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.4, §2144 Emission Warranty Information Report, as effective April 1, 2022.

  (75) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.4, §2145 Field Information Report, as effective April 1, 2022.

  (76) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.4, §2146 Emissions Information Report, as effective April 1, 2022.

  (77) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.4, §2147 Demonstration of Compliance with Emission Standards, as effective November 30, 2022.

  (78) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.4, §2148 Evaluation of Need for Recall, as effective April 1, 2022.

  (79) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 2.4, §2149 Notification and Subsequent Action, as effective April 1, 2022.

  (80) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 3, §2150 Assembly-Line Surveillance, as effective December 30, 1983.

  (81) Title 13, California Code of Regulations (CCR), Division 3, Chapter 2, Article 3, §2151 New Motor Vehicle Dealer Surveillance, as effective December 30, 1983.

  (82) Title 13, California Code of Regulations (CCR), Division 3, Chapter 3, Article 1, §2175 Highway Exhaust Emissions — Light-Duty Vehicles, as effective December 30, 1983.

  (83) Title 13, California Code of Regulations (CCR), Division 3, Chapter 3, Article 1, §2175.5 Exemption of Vehicles, as effective December 30, 1983.

  (84) Title 13, California Code of Regulations (CCR), Division 3, Chapter 3, Article 1, §2176 Mandatory Inspection Exhaust Emissions—Light-Duty and Medium-Duty Vehicles, as effective December 30, 1983.

  (85) Title 13, California Code of Regulations (CCR), Division 3, Chapter 4.4, §2235 Requirements, as effective October 1, 2019.

#### Regulation .03 Applicability and Exemptions.

*COMAR 26.11.34.03*

A. Applicability.

  (1) Except as provided in §B of this regulation, this chapter applies to all new 2011 and subsequent model year passenger cars, light-duty trucks, and medium-duty vehicles subject to the California Standards that are transferred in Maryland.

  (2) For all requirements of the California Standards except those relating to greenhouse gases, applicability includes all medium-duty vehicles having a gross vehicle weight rating of 14,000 pounds or less.

  (3) For the greenhouse gas requirements of the California Standards, applicability includes medium-duty vehicles only to the extent that they are medium-duty passenger vehicles.

  (4) For purposes of this chapter, it is conclusively presumed that the equitable or legal title to any motor vehicle with an odometer reading of 7,500 miles or more has been transferred to an ultimate purchaser and that the equitable or legal title to any motor vehicle with an odometer reading of less than 7,500 miles has not been transferred to an ultimate purchaser.

B. Exemptions. This chapter does not apply to the following vehicles:

  (1) A vehicle transferred by inheritance;

  (2) A vehicle transferred by decree of divorce, dissolution, or legal separation entered by a court of competent jurisdiction;

  (3) Previously registered vehicles where:

    (a) The mileage at the time of sale exceeds 7,500 miles; and

    (b) For vehicle dealers, the mileage at the time of sale is determined by the odometer statement at the time the vehicle dealer acquired the vehicle;

  (4) A vehicle purchased by a nonresident prior to establishing residency in Maryland;

  (5) A vehicle sold for the purpose of being wrecked or dismantled;

  (6) A vehicle sold directly from one licensed dealer to another licensed dealer;

  (7) A vehicle sold for registration out-of-State;

  (8) A vehicle sold and designed exclusively for off-highway use;

  (9) A vehicle that has been certified to standards promulgated pursuant to the authority contained in 42 U.S.C. 7521 and which is in the possession of a rental agency in Maryland as a result of a rental that was initiated in a state other than Maryland;

  (10) An emergency vehicle;

  (11) A military tactical vehicle;

  (12) A vehicle exempted by California Health and Safety Code, §43656;

  (13) A vehicle acquired by a resident of Maryland for the purpose of replacing a vehicle registered to the resident that was damaged or became inoperative beyond reasonable repair or was stolen while out of this State, if the replacement vehicle was acquired out of State at the time the previously owned vehicle was either damaged or became inoperative or was stolen; and

  (14) A vehicle designated as exempt by the Administration.

#### Regulation .04 Definitions.

*COMAR 26.11.34.04*

A. In general.

  (1) In this chapter, the following terms have the meanings indicated.

  (2) Any term that is not defined in this regulation shall be as defined in the California documents incorporated by reference in Regulation .02 of this chapter.

  (3) Definitions in the California documents shall prevail in any case of discrepancy.

B. Terms Defined.

  (1) “Administration” means the Maryland Motor Vehicle Administration.

  (2) “California Assembly Line and In-Use Requirements” means the requirements established under Title 13 CCR §§1900, 2062, 2101, 2106, 2107, 2108, 2109, 2136, 2137, 2138, 2139, 2140, 2150, 2151, 2175, 2175.5, and 2176.

  (3) “California Certification Requirements” means the requirements established under Title 13 CCR §§1900, 1960.1, 1960.5, 1961, 1961.1, 1962, 1962.1, 1965, 1968.2, 1968.5, 1969, 1975, 1976, 1977, 1978, and 2235.

  (4) “California Fleet Average Greenhouse Gas (GHG) Requirements” means the requirements established under Title 13 CCR §1961.1(a)(1), including all calculation procedures and credit and debit provisions specified in Title 13 CCR §1961.1.

  (5) “California Fleet Average NMOG Requirements” means the requirements established under Title 13 CCR §1961(b)(1), including all calculation procedures and credit and debit provisions specified in Title 13 CCR §1961.

  (6) “California Recall Requirements” means the requirements established under Title 13 CCR §§1900, 2109, 2111, 2112, 2113, 2114, 2115, 2116, 2117, 2118, 2119, 2120, 2121, 2122, 2123, 2124, 2125, 2126, 2127, 2128, 2129, 2130, 2131, 2132, 2133, 2134, 2135, 2140, 2141, 2142, 2143, 2144, 2145, 2146, 2147, 2148, 2149 and Appendix A to Article 2.1 of Chapter 2 of Division 3.

  (7) “California Standards” means the comprehensive set of requirements defined by California Certification Requirements, California Warranty Requirements, California Assembly Line and In-Use Requirements, California Recall Requirements, California Fleet Average NMOG Requirements, California Fleet Average Greenhouse Gas Requirements, and California Zero Emission Vehicle Requirements.

  (8) “California Warranty Requirements” means the requirements established under Title 13 CCR §§1900, 2035, 2037, 2038, 2039, 2040, and 2041.

  (9) “California Zero Emission Vehicle (ZEV) Requirements” means the requirements established under Title 13 CCR §1962(b), including all compliance mechanisms, calculation procedures, and credit and debit provisions specified in Title 13 CCR §1962.

  (10) “CARB” means California Air Resources Board.

  (11) “CCR” means the Code of California Regulations.

  (12) “Certification” means a finding by CARB that a motor vehicle, motor vehicle engine, or motor vehicle pollution control device has satisfied the criteria adopted by the state board for the control of specified air contaminants from vehicular sources.

  (13) “Department” means the Maryland Department of the Environment.

  (14) “Executive Officer” means the Executive Officer of the California Air Resources Board as used in California-adopted statutes, regulations, and procedures related to the California Standards. This meaning is extended for purposes of the application of California Standards in Maryland to include the Secretary, who shall act as the agent of the California Executive Officer in Maryland.

  (15) “Light-duty truck (LDT)” means any motor vehicle rated at 8,500 pounds gross vehicle weight or less, which is designed primarily for purposes of transportation of property or is a derivative of such a vehicle, or is available with special features enabling off-street or off-highway operation and use.

  (16) “Light-duty truck 1 (LDT1)” means a light-duty truck with a loaded vehicle weight of 3,750 pounds or less.

  (17) “Light-duty truck 2 (LDT2)” means a light-duty truck with a loaded vehicle weight of 3,751 pounds or more.

  (18) Medium-Duty Passenger Vehicle.

    (a) “Medium-duty passenger vehicle” means any medium-duty vehicle with a gross vehicle weight rating of less than 10,000 pounds that is designed primarily for the transportation of persons.

    (b) “Medium-duty passenger vehicle” does not include any vehicle which:

      (i) Is an incomplete truck, that is, a truck that does not have the primary load carrying device or container attached;

      (ii) Has a seating capacity of more than 12 persons;

      (iii) Is designed for more than nine persons in seating rearward of the driver's seat; or

      (iv) Is equipped with an open cargo area of 72.0 inches in interior length or more, or a covered box not readily accessible from the passenger compartment of 72.0 inches in interior length or more.

  (19) “Medium-duty vehicle” means any heavy-duty low-emission, ultra-low-emission, super-ultra-low-emission or zero-emission vehicle having a manufacturer's gross vehicle weight rating between 8,501 and 14,000 pounds.

  (20) Model Year.

    (a) “Model year (MY)” means the manufacturer's annual production period which includes January 1 of a calendar year or, if the manufacturer has no annual production period, the calendar year.

    (b) In the case of any vehicle manufactured in two or more stages, the time of manufacture shall be the date of completion of the chassis.

  (21) Motor Vehicle.

    (a) “Motor vehicle” means a vehicle that is self-propelled.

    (b) “Motor vehicle” does not include a self-propelled wheelchair, motorized tricycle, or motorized quadricycle operated by a person who, by reason of physical disability, is otherwise unable to move about as a pedestrian.

  (22) “NMOG” means non-methane organic gases.

  (23) “New motor vehicle” means a motor vehicle, the equitable or legal title to which has never been transferred to an ultimate purchaser.

  (24) New Vehicle.

    (a) “New vehicle” means a new motor vehicle, or any motor vehicle with an odometer reading of less than 7,500 miles.

    (b) “New vehicle” does not include any vehicle with an odometer reading of 7,500 miles or more.

  (25) “Passenger car (PC)” means any motor vehicle designed primarily for transportation of persons and having a design capacity of 12 persons or less.

  (26) “Secretary” means the Secretary of the Environment.

  (27) “Transfer” means to sell, import, deliver, purchase, lease, rent, acquire, or receive a motor vehicle for titling or registration in Maryland.

  (28) “Type III ZEV” means a zero emission vehicle with a zero emissions range that is greater than or equal to 100 miles and is capable of replacing 95 percent of its maximum rated energy capacity in 10 minutes or less.

  (29) “Ultimate purchaser” means the first person who in good faith purchases a new motor vehicle or new motor vehicle engine for purposes other than resale.

  (30) Vehicle.

    (a) “Vehicle” means a device by which any person or property may be propelled, moved, or drawn upon a highway.

    (b) “Vehicle” does not include a device moved exclusively by human power or used exclusively upon stationary rails or tracks.

  (31) “ZEV” means a zero emission vehicle.

#### Regulation .05 Emissions Requirements.

*COMAR 26.11.34.05*

No person shall transfer in Maryland a new motor vehicle subject to this chapter unless that new motor vehicle has been certified by CARB to comply with all applicable California Standards.

#### Regulation .06 Fleet Average NMOG Requirements.

*COMAR 26.11.34.06*

A. Effective with model year 2011, and for each subsequent model year, compliance with the California Fleet Average NMOG Requirements in Maryland shall be demonstrated by each motor vehicle manufacturer.

B. Compliance with §A of this regulation shall be based on the number of vehicles, subject to this chapter, produced and delivered for sale in Maryland by each manufacturer.

C. Credits. Notwithstanding the provisions of the California Fleet Average NMOG Requirements, all NMOG credits accrued in model years 2011 through 2013 shall be treated as if they are earned in model year 2013 for purposes of determining credit value in model years 2012 through 2016.

D. Debits. Notwithstanding the provisions of the California Fleet Average NMOG Requirements, vehicle manufacturers may accrue debits in model years 2011 through 2013 without penalty if the debits are fully offset by the end of the 2014 model year.

#### Regulation .07 Initial NMOG Credit Account Balances.

*COMAR 26.11.34.07*

A. Establishment of Credit Account Balances.

  (1) Upon request by a vehicle manufacturer, the Department shall establish NMOG credit account balances in Maryland that are proportionally equivalent to the NMOG credit balances of each of its NMOG credit accounts maintained in California.

  (2) A manufacturer's Maryland NMOG credit account balance shall be determined as specified in §A(3) of this regulation only after all credit obligations for model years 2010 and earlier have been satisfied in California.

  (3) To determine Maryland NMOG credit account balances, a manufacturer's California NMOG credit balances shall be multiplied in the following manner:

    (a) By the ratio of the average number of PCs, LDT1s, and applicable LDT2s produced and delivered for sale in Maryland in model years 2003 through 2005 to the average number of PCs, LDT1s, and applicable LDT2s produced and delivered for sale in California in model years 2003 through 2005; or

    (b) At the discretion of the vehicle manufacturer, by the ratio of the number of PCs, LDT1s, and applicable LDT2s produced and delivered for sale in Maryland in model year 2011 to the number of PCs, LDT1s, and applicable LDT2s produced and delivered for sale in California in model year 2011.

  (4) Manufacturers shall request the establishment of NMOG credit account balances under this regulation through written notification to the Department by May 1, 2011.

  (5) Manufacturers shall submit the required vehicle delivery data:

    (a) By September 1, 2011, if electing to utilize the methodology described in §A(3)(a) of this regulation; or

    (b) By March 1, 2012, if electing to utilize the methodology described in §A(3)(b) of this regulation.

  (6) Nothing in this regulation shall affect the calculation of NMOG credits and debits earned under Regulation .06 of this chapter in model year 2011 in Maryland, which shall be treated as incremental to those established in this regulation.

  (7) If the validation of NMOG credit account balances under §B of this regulation extends beyond May 1, 2012:

    (a) The submittal deadline of May 1, 2012, for the California Fleet Average NMOG Requirements compliance report required under Regulation .13A(2)(a) of this chapter shall be waived; and

    (b) The manufacturer shall submit the California Fleet Average NMOG Requirements compliance report required under Regulation .13A(2)(a) of this chapter within 60 days of notification by the Department that the NMOG credit account balances have been validated.

B. Validation of NMOG Credit Account Balances.

  (1) The establishment of NMOG credits into a manufacturer's Maryland NMOG credit account shall occur through consultation with the Department, the individual vehicle manufacturer, and the Executive Officer or the Executive Officer's designee.

  (2) Credits may not be established in a manufacturer's Maryland NMOG credit account until:

    (a) The Executive Officer or the Executive Officer's designee certifies to the Secretary or the Secretary's designee that the California credit balance upon which the Maryland credits will be determined is accurate; and

    (b) All outstanding debits for model years 2010 and earlier have been satisfied.

  (3) As necessary, for purposes of this regulation, the manufacturer shall release the Executive Officer or the Executive Officer's designee from any confidentiality restrictions that would otherwise prohibit open consultation with the Secretary or the Secretary's designee.

  (4) The Secretary or the Secretary's designee shall be bound by the same confidentiality restrictions otherwise binding the Executive Officer or the Executive Officer's designee.

#### Regulation .08 Fleet Average Greenhouse Gas Requirements.

*COMAR 26.11.34.08*

A. Effective with model year 2011, and for each subsequent model year, compliance with the California Fleet Average Greenhouse Gas Requirements shall be demonstrated by each motor vehicle manufacturer.

B. Compliance with §A of this regulation shall be based on the number of vehicles, subject to this chapter, produced and delivered for sale in Maryland by each manufacturer.

C. Regional Compliance.

  (1) The Secretary may enter into a regional compliance agreement with vehicle manufacturers or other states implementing the California Standards.

  (2) Upon the effective date of a regional compliance agreement, motor vehicle manufacturers that comply with the provisions of the regional agreement shall be deemed to comply with the provisions of §A of this regulation.

  (3) The Secretary may not enter into a regional agreement that results in lesser emission reductions than would accrue in the absence of such an agreement or that allows manufacturers to use emission reduction credits more than once for regional or State specific compliance demonstration.

#### Regulation .09 Zero Emission Vehicle (ZEV) Requirements.

*COMAR 26.11.34.09*

A. Effective with model year 2011, and for each subsequent model year, compliance with the California Zero Emission Vehicle Requirements shall be demonstrated by each motor vehicle manufacturer.

B. Compliance with §A of this regulation shall be based on the number of vehicles, subject to this chapter, produced and delivered for sale in Maryland by each manufacturer.

C. Type III ZEVs.

  (1) Through model year 2017, a Type III ZEV that meets the following criteria may be used to demonstrate compliance with §A of this regulation:

    (a) The vehicle is eligible for Type III ZEV credits under the California Zero Emission Vehicle Requirements; and

    (b) The vehicle is placed in service or in an advanced technology demonstration program as defined under the California Zero Emission Vehicle Requirements in California or any other state that is administering the California ZEV Requirements pursuant to §177 of the Federal Clean Air Act, 42 U.S.C. §7507.

  (2) A Type III ZEV meeting the criteria specified in §C(1) of this regulation may, for the purposes of compliance with §A of this regulation, be counted as if it was placed in service in Maryland.

#### Regulation .10 Initial ZEV Credit Account Balances.

*COMAR 26.11.34.10*

A. Establishment of Credit Account Balances.

  (1) Upon request by a vehicle manufacturer, the Department shall establish ZEV credit account balances in Maryland that are:

    (a) For Type III ZEVS, equal to the Type III ZEV credit balance in California; and

    (b) For non-Type III ZEVs, proportionally equivalent to the ZEV credit balances of each of its ZEV credit accounts maintained in California.

  (2) A manufacturer's Maryland ZEV credit account balance shall be determined as specified in §A(3) and (4) of this regulation only after all credit obligations for model years 2010 and earlier have been satisfied in California.

  (3) To determine Maryland ZEV credit account balances for non-Type III ZEVs, a manufacturer's California ZEV credit balances shall be multiplied in the following manner:

    (a) By the ratio of the average number of PCs, LDT1s, and applicable LDT2s produced and delivered for sale in Maryland in model years 2003 through 2005 to the average number of PCs, LDT1s, and applicable LDT2s produced and delivered for sale in California in model years 2003 through 2005; or

    (b) At the discretion of the vehicle manufacturer, by the ratio of the number of PCs, LDT1s, and applicable LDT2s produced and delivered for sale in Maryland in model year 2011 to the number of PCs, LDT1s, and applicable LDT2s produced and delivered for sale in California in model year 2011.

  (4) The Maryland ZEV credit account balance for Type III ZEVs shall be set equal to the manufacturer's California Type III ZEV account balance.

  (5) The time period used by the manufacturer to determine the Maryland ZEV credit account balances in §A(3) of this regulation shall also be used to determine that manufacturer's model year 2011 ZEV sales requirements in Maryland under Regulation .09 of this chapter.

  (6) Manufacturers shall request the establishment of ZEV credit account balances under this regulation through written notification to the Department by May 1, 2011.

  (7) Manufacturers shall submit the required vehicle delivery data:

    (a) By September 1, 2011, if electing to utilize the methodology described in §A(3)(a) of this regulation; or

    (b) By March 1, 2012, if electing to utilize the methodology described in §A(3)(b) of this regulation.

  (8) Nothing in this regulation shall affect the calculation of ZEV credits and debits earned under Regulation .09 of this chapter in model year 2011 in Maryland, which shall be treated as incremental to those established in this regulation.

  (9) If the validation of ZEV credit account balances under §B of this regulation extends beyond May 1, 2012:

    (a) The submittal deadline of May 1, 2012, for the California Zero Emissions Vehicle Requirements compliance report required under Regulation .13A(2)(c) of this chapter shall be waived; and

    (b) The manufacturer shall submit the California Zero Emissions Vehicle Requirements compliance report required under Regulation .13A(2)(c) of this chapter within 60 days of notification by the Department that the ZEV credit account balances have been validated.

B. Validation of ZEV Credit Account Balances.

  (1) The establishment of ZEV credits into a manufacturer's Maryland ZEV credit account shall occur through consultation with the Department, the individual vehicle manufacturer and the Executive Officer or the Executive Officer's designee.

  (2) Credits may not be established in a manufacturer's Maryland ZEV credit account until:

    (a) The Executive Officer or the Executive Officer's designee certifies to the Secretary or the Secretary's designee that the California credit balance upon which the Maryland credits will be determined is accurate; and

    (b) All outstanding debits for model years 2010 and earlier have been satisfied.

  (3) As necessary, for purposes of this regulation, the manufacturer shall release the Executive Officer or the Executive Officer's designee from any confidentiality restrictions that would otherwise prohibit open consultation with the Secretary or the Secretary's designee.

  (4) The Secretary or the Secretary's designee shall be bound by the same confidentiality restrictions otherwise binding the Executive Officer or the Executive Officer's designee.

#### Regulation .11 Vehicle Testing.

*COMAR 26.11.34.11*

A. New Vehicle Certification Testing.

  (1) All new vehicles subject to this chapter shall be certified to meet all applicable California Standards in accordance with the test procedures defined in those standards.

  (2) Motor vehicle certification testing performed for CARB and associated findings made by CARB will be acceptable for demonstrating compliance with §A(1) of this regulation.

B. Assembly Line and In-Use Testing.

  (1) All manufacturers of new vehicles subject to this chapter shall comply with all applicable California Assembly Line and In-Use Requirements.

  (2) Motor vehicle testing and inspections performed for or by CARB and associated findings made by CARB will be acceptable for demonstrating compliance with §B(1) of this regulation except as provided in §B(3) and (4) of this regulation.

  (3) If a vehicle manufacturing facility that manufactures vehicles certified to the California Standards for sale in Maryland is not subject to the California Assembly Line and In-Use Requirements administered by CARB, the Department may:

    (a) Require demonstration of compliance with all California Assembly Line and In-Use Requirements; and

    (b) Upon a manufacturer's written request and demonstration of need, approve the functional testing of a statistically significant testing sample instead of an otherwise required 100 percent testing rate.

  (4) The Department may conduct tests and inspections performed in accordance with California Assembly Line and In-Use Requirements on vehicles produced or delivered for sale in Maryland for purposes of:

    (a) Compliance monitoring;

    (b) Effectiveness demonstration;

    (c) Detection of noncomplying vehicles in Maryland; and

    (d) The determination of appropriate corrective actions.

C. Any reports completed for or by CARB in accordance with the provisions of §§A and B of this regulation shall be provided to the Department upon request.

#### Regulation .12 Warranty.

*COMAR 26.11.34.12*

A. All manufacturers of new vehicles subject to this chapter shall comply with all applicable California Warranty Requirements.

B. Reports generated for or by CARB and associated findings made by CARB shall be acceptable for demonstrating compliance with §A of this regulation.

C. All reports required under the California Warranty Requirements shall be provided to the Department upon request.

#### Regulation .13 Manufacturer Compliance Demonstration.

*COMAR 26.11.34.13*

A. Beginning with the 2011 model year and annually thereafter, each vehicle manufacturer shall submit reports:

  (1) Documenting total deliveries for sale in Maryland during the applicable model year of vehicles in each test group or subgroup as applicable and defined under the California Standards;

  (2) Demonstrating, based on vehicles delivered for sale in Maryland, compliance with the:

    (a) California Fleet Average NMOG Requirements;

    (b) California Fleet Average Greenhouse Gas Requirements; and

    (c) California Zero Emission Vehicle Requirements.

B. The reports required under §A of this regulation shall be:

  (1) Prepared according to the procedures defined in the California Standards; and

  (2) Submitted to the Department in accordance with the deadlines defined in the California Standards.

C. For the purposes of determining if vehicles qualify for exemption under Regulation .03 of this chapter, the Department may require any vehicle manufacturer or dealer of vehicles subject to this chapter to submit any documentation the Department determines necessary for the effective administration and enforcement of this chapter.

#### Regulation .14 Enforcement.

*COMAR 26.11.34.14*

A. Inspections.

  (1) The Department, the Administration, or their agents have the right to conduct inspections and surveillance of new and used motor vehicles for the purposes of determining compliance with the requirements of this chapter.

  (2) The inspections authorized under §A(1) of this regulation may:

    (a) Be conducted on any premises owned, operated, used, leased, or rented by any vehicle dealer;

    (b) Extend to all emissions-related parts and their operation;

    (c) Require the on-premises operation and testing of an engine or vehicle; and

    (d) Require inspection of any related records, including records of emissions-related part repairs performed under warranty.

  (3) Refusal to allow, or interference with, the inspections under this regulation shall be considered a violation of this chapter.

B. Functional, Steady-State, and Other Tests.

  (1) The Department, or its agents, may perform functional tests, steady-state tests, and other tests as reasonably necessary.

  (2) In addition to all other compliance procedures defined in the California Standards, emission test standards defined in the California Assembly Line and In-Use Requirements may be used by the Department to verify compliance with the requirements of this chapter.

C. Vehicle Recalls.

  (1) Except as allowed in §C(3) of this regulation, any order or enforcement action taken by CARB to correct noncompliance with any requirement of the California Standards and which results in the recall of any vehicle pursuant to the California Recall Requirements shall be applicable to all vehicles subject to this chapter.

  (2) Except as allowed in §C(3) of this regulation, any voluntary or influenced emissions-related recall campaign initiated by any manufacturer pursuant to the California Recall Requirements shall extend to all applicable vehicles subject to this chapter.

  (3) The Department may exempt Maryland vehicles from the provisions of §C(1) or (2) of this regulation if a vehicle manufacturer demonstrates to the Department's satisfaction within 21 days of CARB approval of a recall campaign, that the campaign is not applicable to vehicles delivered for sale in Maryland.

D. The Department shall enforce the requirements of this chapter in accordance with the requirements defined in the California Standards and applicable federal and Maryland law.

E. Failure to submit any of the required reports, test data, inspection data, or any other information requested in this chapter shall be considered a violation and is subject to the sanctions set forth in Environment Article, Title 2, Annotated Code of Maryland. Each day of violation is a separate violation.

F. A person who violates any provision of this chapter is subject to the sanctions set forth in Environment Article, Title 2, Annotated Code of Maryland. Each non-compliant vehicle is a separate violation.

### Chapter 35 — Volatile Organic Compounds from Adhesives and Sealants

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-203, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 adopted as an emergency provision effective January 11, 2008 (35:3 Md. R. 287); adopted permanently effective April 21, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .01I adopted as an emergency provision effective January 1, 2009 (36:5 Md. R. 420); adopted permanently effective June 1, 2009 (36:11 Md. R. 787)

#### Regulation .01 Applicability and Exemptions.

*COMAR 26.11.35.01*

A. This chapter applies to a person who, on or after January 1, 2009:

  (1) Sells, supplies, offers for sale, or manufactures for sale in the State an adhesive, sealant, adhesive primer, or sealant primer for use in the State; or

  (2) Uses or applies, for compensation or facilities maintenance, an adhesive, sealant, adhesive primer, or sealant primer within the State.

B. The requirements of this chapter do not apply to the use or sale of the following compounds:

  (1) Adhesives, sealants, adhesive primers, or sealant primers being tested or evaluated in a research and development, quality assurance, or analytical laboratory, if records are maintained as required in Regulation .05A of this chapter;

  (2) Adhesives, sealants, adhesive primers, or sealant primers that are subject to COMAR 26.11.19.15C(1)—(3), COMAR 26.11.19.30 in accordance with the conditions in the regulation, or COMAR 26.11.32;

  (3) Adhesives and sealants that contain less than 20 grams of VOC per liter of adhesive or sealant, less water and less exempt compounds, as applied;

  (4) Cyanoacrylate adhesives;

  (5) Adhesives, sealants, adhesive primers, or sealant primers, except plastic cement welding, ABS, CPVC, and PVC adhesives, and contact bond adhesives that are sold or supplied by the manufacturer or supplier in containers with:

    (a) A net volume of 16 fluid ounces or less; or

    (b) A net weight of 1 pound or less; or

  (6) Contact bond adhesives that are sold or supplied by the manufacturer or supplier in containers with a net volume of 1 gallon or less.

C. The requirements of this chapter do not apply to the use of adhesives, sealants, adhesive primers, sealant primers, surface preparation solvents, or cleanup solvents in the following operations:

  (1) Tire repair operations, if the label of the adhesive states, “For Tire Repair Only”;

  (2) Research and development, testing, manufacture, assembly, and repair of:

    (a) Aerospace components;

    (b) Undersea-based ship and weapons systems components; and

    (c) Specialty electronic systems and subsystems for defense and homeland security;

  (3) The manufacture of medical equipment, including medical devices subject to COMAR 26.11.19.31; and

  (4) Plaque laminating operations in which adhesives are used to bond clear, polyester acetate laminate to wood with lamination equipment installed before July 1, 1992.

D. The provisions of this chapter do not apply if:

  (1) The total VOC emissions from all noncomplying adhesives, sealants, adhesive primers, and sealant primers used at the source are less than 200 pounds per calendar year, or an equivalent volume; and

  (2) The person claiming the usage exemption under §D(1) of this regulation maintains monthly operational records sufficient to demonstrate compliance as required by Regulation .05B of this chapter.

E. The provisions of Regulation .04A and D of this chapter do not apply to the use of adhesives, sealants, adhesive primers, sealant primers, cleanup solvents, and surface preparation solvents if:

  (1) The total volume of noncomplying adhesives, sealants, primers, cleanup solvents, and surface preparation solvents applied facility-wide does not exceed 55 gallons per calendar year; and

  (2) The person claiming the usage exemption under §E(1) of this regulation maintains monthly operational records sufficient to demonstrate compliance as required by Regulation .05A of this chapter.

F. This chapter does not apply to a manufacturer or distributor who sells, supplies, or offers for sale in the State an adhesive, sealant, adhesive primer, or sealant primer that does not comply with Regulation .04A of this chapter, if the manufacturer or distributor makes and keeps records demonstrating that:

  (1) The adhesive, sealant, adhesive primer, or sealant primer is intended for shipment and use outside the State; and

  (2) The manufacturer or distributor has taken reasonable precautions to assure that the adhesive, sealant, adhesive primer, or sealant primer is not distributed to or within the State.

G. Notwithstanding §F of this regulation, this chapter does apply to an adhesive, sealant, adhesive primer, or sealant primer that is sold, supplied, or offered for sale by a person to a retail outlet in the State.

H. Regulation .04A of this chapter does not apply to the sale of an adhesive, sealant, adhesive primer, or sealant primer to a person using State permitted add-on air pollution control equipment, pursuant to Regulation .04E of this chapter, to comply with the requirements of this chapter.

I. The VOC limitations in Regulation .04 of this chapter shall be applicable to single-ply roof membrane installation and repair adhesives, single-ply roof membrane sealants, and single-ply roof membrane adhesive primers according to the following schedule:

  (1) For the year 2009, from May 15 through September 15;

  (2) For the years 2010 and 2011, from May 1 through September 30; and

  (3) On and after January 1, 2012.

#### Regulation .02 Incorporation by Reference.

*COMAR 26.11.35.02*

A. In this chapter, the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) SCAQMD Method 304-91 Determination of Volatile Organic Compounds in Various Materials (Revised February 1996).

  (2) ASTM Designation: ASTM D 4457-85 (Reapproved 1996) Standard Test Method for Determination of Dichloromethane and 1,1,1-Trichloroethane in Paints and Coatings by Direct Injection into a Gas Chromatograph.

  (3) ASTM Designation: ASTM E 260-91 Standard Practice for Gas Column Chromatography.

  (4) ASTM Designation: ASTM E 260-96 (Reapproved 2006) Standard Practice for Gas Column Chromatography.

  (5) ASTM Designation: ASTM D 3792-79 Standard Test Method for Water Content of Coatings by Direct Injection Into a Gas Chromatograph.

  (6) ASTM Designation: ASTM D 3792-86 Standard Test Method for Water Content of Coatings by Direct Injection Into a Gas Chromatograph.

  (7) ASTM Designation: ASTM D 2879-86 Standard Test Method for Vapor Pressure-Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope.

  (8) EPA Technical Document “Guidelines for Determining Capture Efficiency”, issued January 9, 1995 (40 CFR Part 51 Appendix M).

  (9) CARB Method 100 Procedures for Continuous Gaseous Emission Stack Sampling (Amended July 28, 1997).

  (10) SCAQMD “General Test Method for Determining Solvent Losses from Spray Gun Cleaning Systems”, dated October 3, 1989.

  (11) SCAQMD Method 316A-92 Determination of Volatile Organic Compounds in Materials Used for Pipes and Fittings (Revised October 1996).

#### Regulation .03 Definitions.

*COMAR 26.11.35.03*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “ABS welding adhesive” means acrylonitrile-butadiene-styrene adhesive.

  (2) “Acrylonitrile-butadiene-styrene adhesive” means an adhesive intended by the manufacturer to weld acrylonitrile-butadiene-styrene pipe, which is made by reacting monomers of acrylonitrile, butadiene, and styrene.

  (3) “Adhesive” means a chemical substance that is applied for the purpose of bonding two surfaces together other than by mechanical means.

  (4) “Adhesive primer” means a product intended by the manufacturer for application to a substrate, before the application of an adhesive, to provide a bonding surface.

  (5) “Aerosol adhesive” means an adhesive packaged as an aerosol product in which the spray mechanism is permanently housed in a nonrefillable can designed for handheld application without the need for ancillary hoses or spray equipment.

  (6) “Aerospace component” means the fabricated part, assembly of parts, or completed unit of an aircraft, helicopter, missile, or space vehicle, including passenger safety equipment.

  (7) “Architectural sealant or primer” means a sealant or sealant primer intended by the manufacturer to be applied to stationary structures, including mobile homes, and their appurtenances such as hand railings, cabinets, bathroom and kitchen fixtures, fences, rain gutters and downspouts, and windows.

  (8) “Automotive glass adhesive primer” means an adhesive primer:

    (a) Labeled by the manufacturer to be applied to automotive glass before installation of the glass using an adhesive/sealant; and

    (b) That improves adhesion to pinch weld and blocks ultraviolet light.

  (9) “CARB” means the California Air Resources Board.

  (10) “Ceramic tile installation adhesive” means an adhesive intended by the manufacturer for use in the installation of ceramic tiles.

  (11) “Chlorinated polyvinyl chloride plastic” means a polymer of the vinyl chloride monomer that contains 67 percent chlorine and is normally marked with the identifier “CPVC”.

  (12) “Chlorinated polyvinyl chloride welding adhesive” means an adhesive labeled for welding of chlorinated polyvinyl chloride plastic.

  (13) “Computer diskette jacket manufacturing adhesive” means an adhesive intended by the manufacturer to glue the fold-over flaps to the body of a vinyl computer diskette jacket.

  (14) Contact Bond Adhesive.

    (a) “Contact bond adhesive” means an adhesive that:

      (i) Is designed for application to both surfaces to be bonded together;

      (ii) Is allowed to dry before the two surfaces are placed in contact with each other;

      (iii) Forms an immediate bond that is impossible, or difficult, to reposition after both adhesive-coated surfaces are placed in contact with each other; and

      (iv) Does not need sustained pressure or clamping of surfaces after the adhesive-coated surfaces have been brought together using sufficient momentary pressure to establish full contact between both surfaces.

    (b) “Contact bond adhesive” does not include rubber cements that are primarily intended for use on paper substrates or vulcanizing fluids that are designed and labeled for tire repair only.

  (15) “Cove base” means a flooring trim unit, generally made of vinyl or rubber, having a concave radius on one edge and a convex radius on the opposite edge, that is used in forming a junction between the bottom wall course and the floor or to form an inside corner.

  (16) “Cove base installation adhesive” means an adhesive intended by the manufacturer to be used for the installation of cove base or wall base on a wall or vertical surface at floor level.

  (17) “CPVC welding adhesive” means chlorinated polyvinyl chloride welding adhesive.

  (18) “Cyanoacrylate adhesive” means an adhesive with a cyanoacrylate content of at least 95 percent by weight.

  (19) “Dry wall installation” means the installation of gypsum dry wall to studs or solid surfaces using an adhesive formulated for that purpose.

  (20) “Exempt compound” means a compound that does not contain VOCs.

  (21) “Fiberglass” means a material consisting of extremely fine glass fibers.

  (22) “Flexible vinyl” means nonrigid polyvinyl chloride plastic with at least 5 percent by weight plasticizer content.

  (23) Indoor Floor Covering Installation Adhesive.

    (a) “Indoor floor covering installation adhesive” means an adhesive intended by the manufacturer for use in the installation of wood flooring, carpet, resilient tile, vinyl tile, vinyl backed carpet, resilient sheet and roll, or artificial grass.

    (b) “Indoor floor covering installation adhesive” does not include adhesives used to install ceramic tile and perimeter bonded sheet flooring with vinyl backing onto a nonporous substrate, such as flexible vinyl.

  (24) “Laminate” means a product made by bonding together two or more layers of material.

  (25) “Low-solids adhesive, sealant, or primer” means a product that contains 120 grams or less of solids per liter of material.

  (26) “Marine deck sealant” or “marine deck sealant primer” means a sealant or sealant primer labeled for application to wooden marine decks.

  (27) “Medical equipment manufacturing” means the manufacture of medical devices, including catheters, heart valves, blood cardioplegia machines, tracheostomy tubes, blood oxygenators, and cardiatory reservoirs.

  (28) “Metal to urethane/rubber molding or casting adhesive” means an adhesive intended by the manufacturer to bond metal to high density or elastomeric urethane or molded rubber materials, in heated molding or casting processes, to fabricate products such as rollers for computer printers or other paper handling equipment.

  (29) “Multipurpose construction adhesive” means an adhesive intended by the manufacturer for use in the installation or repair of various construction materials, including but not limited to drywall, subfloor, panel, fiberglass reinforced plastic (FRP), ceiling tile, and acoustical tile.

  (30) “Nonmembrane roof installation/repair adhesive” means an adhesive intended by the manufacturer for use in the installation or repair of nonmembrane roofs but is not intended for the installation of prefabricated single-ply flexible roofing membrane, such as plastic or asphalt roof cement, asphalt roof coating, and cold application cement.

  (31) “Operator” means the person or persons that are legally responsible for the operation of a source of air pollution.

  (32) “Outdoor floor covering installation adhesive” means an adhesive intended by the manufacturer for use in the installation of floor covering that is not in an enclosure but is exposed to ambient weather conditions during normal use.

  (33) “Panel installation” means the installation of plywood, predecorated hardboard or tileboard, fiberglass-reinforced plastic, and similar predecorated or nondecorated panels to studs or solid surfaces using an adhesive formulated for that purpose.

  (34) “Perimeter bonded sheet flooring installation” means the installation of sheet flooring with vinyl backing onto a nonporous substrate using an adhesive designed to be applied only to a strip of up to 4 inches wide around the perimeter of the sheet flooring.

  (35) “Plastic cement welding adhesive” means an adhesive intended by the manufacturer for use to dissolve the surface of plastic, except ABS, CPVC, and PVC plastic, to form a bond between mating surfaces.

  (36) “Plastic cement welding adhesive primer” means a primer intended by the manufacturer for use to prepare plastic substrates before bonding or welding.

  (37) “Plastic foam” means foam constructed of plastics.

  (38) “Plasticizer” means a material, such as a high boiling point organic solvent, that is incorporated into a vinyl to increase its flexibility, workability, or distensibility, as determined by ASTM Method E-260-96.

  (39) “Plastics” means synthetic materials chemically formed by the polymerization of organic (carbon-based) substances that are usually compounded with modifiers, extenders, or reinforcers and are capable of being molded, extruded, cast into various shapes, or films, or drawn into filaments.

  (40) “Polyvinyl chloride plastic” means a polymer of the chlorinated vinyl monomer that contains 57 percent chlorine.

  (41) “Polyvinyl chloride (PVC) welding adhesive” means an adhesive intended by the manufacturer for use in the welding of polyvinyl chloride plastic pipe.

  (42) “Porous material” means a substance that has tiny openings, often microscopic, in which fluids may be absorbed or discharged, including, but not limited to, wood, paper, and corrugated paperboard.

  (43) “Propellant” means a fluid under pressure that expels the contents of a container when a valve is opened.

  (44) “PVC welding adhesive” means polyvinyl chloride welding adhesive.

  (45) Radar System.

    (a) “Radar system” means a system that uses electromagnetic waves to identify the range, altitude, direction, or speed of both moving and fixed objects such as aircraft, ships, motor vehicles, weather formations, and terrain.

    (b) “Radar system” includes a transmitter that emits radio waves, which are reflected by the target and detected by a receiver, typically in the same location as the transmitter.

  (46) “Reactive diluent” means a liquid that is a reactive organic compound during application and through chemical and physical reactions, such as polymerization, 20 percent or more of the reactive organic compound becomes an integral part of a finished material.

  (47) “Roadway sealant” means a sealant intended by the manufacturer for application to public streets, highways, and other surfaces, including curbs, berms, driveways, and parking lots.

  (48) “Rubber” means a natural or manmade rubber substrate, including, but not limited to, styrene-butadiene rubber, polychloroprene (neoprene), butyl rubber, nitrile rubber, chlorosulfonated polyethylene, and ethylene propylene diene terpolymer.

  (49) “SCAQMD” means the South Coast Air Quality Management District, a part of the California Air Resources Board, which is responsible for the regulation of air quality in the State of California.

  (50) Sealant.

    (a) “Sealant” means a material with adhesive properties that is formulated primarily to fill, seal, waterproof, or weatherproof gaps or joints between two surfaces.

    (b) “Sealant” includes sealant primers and caulks.

  (51) “Sealant primer” means a product intended by the manufacturer for application to a substrate, before the application of a sealant, to enhance the bonding surface.

  (52) Sheet-Applied Rubber Installation.

    (a) “Sheet-applied rubber installation” means the process of applying sheet rubber liners by hand to metal or plastic substrates to protect the underlying substrate from corrosion or abrasion.

    (b) “Sheet-applied rubber installation” includes laminating sheet rubber to fabric by hand.

  (53) “Single-ply roof membrane” means a prefabricated single sheet of rubber, normally ethylene-propylenediene terpolymer, that is field applied to a building roof using one layer of membrane material.

  (54) “Single-ply roof membrane adhesive primer” means a primer labeled for use to clean and promote adhesion of the single-ply roof membrane seams or splices before bonding.

  (55) “Single-ply roof membrane installation and repair adhesive” means an adhesive labeled for use in:

    (a) Single-ply roof membrane installation, which includes, as a minimum, attaching the edge of the membrane to the edge of the roof and applying flashings to vents, pipes, and ducts that protrude through the membrane; or

    (b) Single-ply roof membrane repair, which includes gluing the edges of torn membrane together, attaching a patch over a hole, and reapplying flashings to vents, pipes, or ducts installed through the membrane.

  (56) “Single-ply roof membrane sealant” means a sealant labeled for application to single-ply roof membrane.

  (57) “Solvent” means an organic compound that is used as a diluent, thinner, dissolver, viscosity reducer, cleaning agent, or other related use.

  (58) “Specialty electronic systems and subsystems for defense and homeland security” means electronic systems and subsystems used in defense and homeland security applications for:

    (a) Air traffic control;

    (b) Ground-based, sea-based, and air-based command and control;

    (c) Radar systems;

    (d) Space;

    (e) Detection of chemical, biological, or explosive materials; or

    (f) Sensing, jamming, deciphering, scrambling, unscrambling, intercepting, and modifying electronic signals and functions.

  (59) “Structural glazing adhesive” means an adhesive intended by the manufacturer to apply glass, ceramic, metal, stone, or composite panels to exterior building frames.

  (60) Subflooring Installation.

    (a) “Subflooring installation” means the installation of subflooring material over floor joists, including the construction of any load bearing joists.

    (b) “Subflooring” includes being covered by a finish surface material.

  (61) “Surface preparation solvent” means a solvent used to remove dirt, oil, and other contaminants from a substrate before the application of a primer, adhesive, or sealant.

  (62) “Thin metal laminating adhesive” means an adhesive intended by the manufacturer for use in bonding multiple layers of metal to metal or metal to plastic, in the production of electronic or magnetic components in which the thickness of the bond line or lines is less than 0.25 mils.

  (63) Tire Retread Adhesive.

    (a) “Tire retread adhesive” means an adhesive intended by the manufacturer for application to the back of precure tread rubber and to the casing and cushion rubber.

    (b) “Tire retread adhesive” includes sealing buffed tire casings to prevent oxidation while the tire is being prepared for a new tread.

  (64) “Tire repair” means a process that includes expanding a hole, tear, fissure, or blemish in a tire casing by grinding or gouging, applying adhesive, and filling the hole or crevice with rubber.

  (65) “Traffic marking tape” means preformed reflective film intended by the manufacturer for application to public streets, highways, and other surfaces, including curbs, berms, driveways, and parking lots.

  (66) “Traffic marking tape adhesive primer” means a primer intended by the manufacturer for application to surfaces before installation of traffic marking tape.

  (67) “Undersea-based ship and weapons systems components” means parts, an assembly of parts, or completed units of defense-related manned or unmanned submersible vehicles, and missile launching systems used on undersea ships.

  (68) “Waterproof resorcinol glue” means a two-part resorcinol-resin-based adhesive designed for applications where the bond line must be resistant to conditions of continuous immersion in fresh or salt water.

#### Regulation .04 Standards.

*COMAR 26.11.35.04*

A. Except as provided in §E of this regulation and Regulation .01 of this chapter, on and after January 1, 2009, a person may not:

  (1) Supply or offer for sale in the State an adhesive, sealant, adhesive primer, or sealant primer manufactured on or after January 1, 2009;

  (2) Manufacture for sale in the State an adhesive, sealant, adhesive primer, or sealant primer in excess of the applicable VOC content limits specified in Table 1; or

  (3) Use or apply an adhesive, sealant, adhesive primer, or sealant primer within the State that exceeds the applicable VOC content limits specified in Table 1.

B. The VOC content limits in Table 1 for adhesives applied to the listed substrates are as follows:

  (1) If an operator uses an adhesive or sealant subject to a specific VOC content limit in Table 1, the specific limit, rather than an adhesive-to-substrate limit, is applicable; and

  (2) If an adhesive is used to bond dissimilar substrates together, the applicable substrate category with the highest VOC content applies.

C. Surface Preparation or Cleanup Solvent.

  (1) This section applies to a person subject to this chapter using a surface preparation or cleanup solvent.

  (2) Except as provided in §C(3) of this regulation for single-ply roofing, a person may not use materials for surface preparation containing VOCs unless the VOC content of the surface preparation solvent is less than 70 grams per liter.

  (3) If a surface preparation solvent is used in applying single-ply roofing, a person may not use materials for surface preparation containing VOCs unless the composite vapor pressure, excluding water and exempt compounds, of the surface preparation solvent does not exceed 45 millimeters of mercury at 20°C.

  (4) Except as provided in §C(5) of this regulation, a person may not use materials containing VOCs for the removal of adhesives, sealants, or adhesive or sealant primers from surfaces, other than spray application equipment, unless the composite vapor pressure of the solvent used is less than 45 millimeters of mercury at 20°C.

  (5) Removal of an adhesive, sealant, adhesive primer, or sealant primer from the parts of spray application equipment shall be performed as follows:

    (a) In an enclosed cleaning system or equivalent cleaning system as determined by the test method identified in Regulation .06H of this chapter;

    (b) Using a solvent with a VOC content less than or equal to 70 grams of VOC per liter of material; or

    (c) Parts containing dried adhesive may be soaked in a solvent if the composite vapor pressure of the solvent, excluding water and exempt compounds, is less than or equal to 9.5 millimeters of mercury at 20°C and the parts and solvent are in a closed container that remains closed except when adding parts to or removing parts from the container.

D. A person using an adhesive, sealant, adhesive primer, or sealant primer subject to this chapter may comply with §§A(3) and C of this regulation using add-on air pollution control equipment if the equipment meets the following requirements:

  (1) The VOC emissions from the use of all adhesives, sealants, adhesive primers, or sealant primers are reduced by an overall capture and control efficiency of at least 85 percent, by weight;

  (2) The combustion temperature is monitored continuously if a thermal incinerator is operated;

  (3) Inlet and exhaust gas temperatures are monitored continuously if a catalytic incinerator is operated;

  (4) Control device efficiency is monitored continuously if a carbon absorber or control device other than a thermal or catalytic incinerator is operated;

  (5) Operational records sufficient to demonstrate compliance with the requirements of this regulation are maintained as required by Regulation .05 of this chapter; and

  (6) The control equipment is included in a permit to construct and operate.

E. A person using adhesives, sealants, adhesive primers, sealant primers, surface preparation solvents, or cleanup solvents subject to this chapter shall store or dispose of all absorbent materials, such as cloth or paper, that are moistened with adhesives, sealants, primers, or solvents subject to this chapter in nonabsorbent containers that are closed except when placing materials in or removing materials from the container.

F. A person may not solicit, require the use, or specify the application of an adhesive, sealant, adhesive primer, sealant primer, surface preparation solvent, or cleanup solvent if the use or application results in a violation of this chapter. This requirement applies to all written or oral contracts under which an adhesive, sealant, adhesive primer, sealant primer, surface preparation solvent, or cleanup solvent subject to this chapter is to be used at a location in the State.

G. Table 1.

#### Regulation .05 Administrative Requirements.

*COMAR 26.11.35.05*

A. A person who uses compliant products for compensation or facilities maintenance, or is subject to record-keeping requirements under Regulation .01B(1) or E(1) of this chapter, shall maintain records of purchase information that includes product name, product volume, and VOC content of each adhesive, sealant, adhesive primer, sealant primer, cleanup solvent, and surface preparation solvent.

B. Each person subject to Regulation .01D(1) of this chapter shall maintain records demonstrating compliance with this chapter, including the following information:

  (1) A list of each adhesive, sealant, adhesive primer, sealant primer, cleanup solvent, and surface preparation solvent in use and in storage;

  (2) A data sheet or material list which provides the material name, manufacturer identification, and material application;

  (3) Catalysts, reducers, or other components used and the mix ratio;

  (4) The VOC content of each product as supplied;

  (5) The final VOC content or vapor pressure, as applied; and

  (6) The monthly volume of each adhesive, sealant, adhesive primer, sealant primer, cleanup solvent, or surface preparation solvent used.

C. A person who complies with Regulation .04B of this chapter through the use of add-on air pollution control equipment shall record the key operating parameters for the control equipment, including the following information:

  (1) The volume used per day of each adhesive, sealant, adhesive primer, sealant primer, or solvent that is subject to a VOC content limit in Table 1 and that exceeds the limit;

  (2) On a daily basis, the combustion temperature, inlet and exhaust gas temperatures, and control device efficiency, as appropriate, pursuant to Regulation .04E of this chapter;

  (3) Daily hours of operation; and

  (4) All maintenance performed, including the date and type of maintenance.

D. All records made to determine compliance with this chapter shall be maintained for 5 years from the date the record is created and shall be made available to the Department within 90 days of a request.

#### Regulation .06 Compliance Procedures and Test Methods.

*COMAR 26.11.35.06*

A. Except as provided in §§C, D, and E of this regulation, the VOC and solids content of all nonaerosol adhesives, adhesive primers, and cleanup solvents shall be determined using U.S. EPA Reference Method 24, as identified in 40 CFR 60, Appendix A, or SCAQMD Method 304.

B. The organic content of exempt organic compounds shall be determined using ASTM D4457-85, as applicable.

C. The VOC content of a plastic welding cement adhesive or primer shall be determined using SCAQMD Method 316A.

D. To determine if a diluent is a reactive diluent, the percent of the reactive organic compound that becomes an integral part of the finished materials shall be determined using SCAQMD Method 316A.

E. The composite vapor pressure of organic compounds in cleaning materials shall be determined by quantifying the amount of each compound in the blend using gas chromatographic analysis (ASTM E 260-91) for organics and ASTM D3792-79 for water content, as applicable, and the following equation:

F. The vapor pressure of each single component compound may be determined from ASTM D2879-86 or may be obtained from a source approved by SCAQMD, other California air districts, or the Department.

G. If air pollution control equipment is used to meet the requirements of this chapter, the owner or operator shall make the following determinations:

  (1) The measurement of capture efficiency shall be conducted and reported in accordance with the EPA Technical Document “Guidelines for Determining Capture Efficiency,” issued January 9, 1995; and

  (2) The control efficiency shall be determined in accordance with U.S. EPA Methods 25, 25A, or 25B or CARB Method 100.

H. The active and passive solvent losses from spray gun cleaning systems shall be determined using SCAQMD's “General Test Method for Determining Solvent Losses from Spray Gun Cleaning Systems,” dated October 3, 1989. The test solvent for this determination shall be a lacquer thinner with a minimum vapor pressure of 105 millimeters of mercury at 20°C, and the minimum test temperature shall be 15°C.

I. For adhesives that do not contain reactive diluents, grams of VOC per liter of adhesive, less water and exempt compounds, shall be calculated according to the following equation:

J. For adhesives that contain reactive diluents, the VOC content of the adhesive is determined after curing. The grams of VOC per liter of adhesive, less water and exempt compounds, shall be calculated according to the following equation:

K. Grams of VOC per liter of material shall be calculated according to the following equation:

L. Percent of VOC by weight shall be calculated according to the following equation:

#### Regulation .07 Container Labeling.

*COMAR 26.11.35.07*

Each manufacturer of an adhesive, sealant, adhesive primer, or sealant primer subject to this chapter shall display the following information on the product container or label:

A. A statement of the manufacturer's recommendation regarding thinning, reducing, or mixing of the product, except that:

  (1) This requirement does not apply to the thinning of a product with water; and

  (2) If thinning of the product before use is not necessary, the recommendation must specify that the product is to be applied without thinning;

B. The maximum or the actual VOC content of the product in accordance with Regulation .06 of this chapter as supplied, displayed in grams of VOC per liter of product; and

C. The maximum or the actual VOC content of the product in accordance with Regulation .06 of this chapter, which includes the manufacturer's maximum recommendation for thinning, as applied, displayed in grams of VOC per liter of product.

### Chapter 36 — Distributed Generation

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 2-401—2-404, 10-102, and 10-203, Annotated Code of Maryland

**Administrative History:** Effective date: June 13, 2011 (38:12 Md. R. 708)

**Administrative History:** Regulation .01B amended effective February 12, 2018 (45:3 Md. R. 158)

**Administrative History:** Regulation .02 amended effective February 12, 2018 (45:3 Md. R. 158)

**Administrative History:** Regulation .03 repealed and new Regulation .03 adopted effective February 12, 2018 (45:3 Md. R. 158)

**Administrative History:** Regulation .04A amended effective February 12, 2018 (45:3 Md. R. 158)

#### Regulation .01 Definitions.

*COMAR 26.11.36.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Curtail” means to decrease on-site electric power consumption from the grid by:

    (a) Changing or shifting on-site electricity usage;

    (b) Operating an on-site participating engine; or

    (c) A combination of §B(1)(a) and (b) of this regulation.

  (2) “Curtailment service provider (CSP)” means any person, as defined in Environment Article, §1-101(h), Annotated Code of Maryland, that enters a contract with the facility to administer a demand response program.

  (3) “Demand response program” means a program that provides incentives to electricity consumers at a facility that curtails electricity usage.

  (4) “Engine” means a stationary reciprocating internal combustion engine (RICE) or stationary internal combustion engine, subject to 40 CFR Part 63 Subpart ZZZZ and 40 CFR Part 60 Subparts IIII or JJJJ, as amended.

  (5) “Facility” means a commercial, institutional, or industrial establishment that has on-site capability to generate electric power to be used internally to reduce on-site electric power consumption, to reduce the overall electric system demand, or for other purposes.

  (6) “Participating engine” means an internal combustion engine located at a participating facility that is operated as part of a demand response program.

  (7) “Participating facility” means a facility that has entered into a valid contract with a CSP to participate in a demand response program.

#### Regulation .02 Applicability.

*COMAR 26.11.36.02*

This chapter applies to a person who owns or operates an engine as defined in Regulation .01B of this chapter or a curtailment service provider.

#### Regulation .03 Requirements for Stationary Engines.

*COMAR 26.11.36.03*

A. The owner or operator of an engine is subject to requirements under 40 CFR Part 63 Subpart ZZZZ, as applicable.*

B. The owner or operator of an engine is subject to requirements, as applicable, under:

  (1) 40 CFR Part 60 Subpart IIII*; or

  (2) 40 CFR Part 60 Subpart JJJJ*.

* In May 2015, the United States Court of Appeals for the District of Columbia Circuit vacated paragraphs 40 CFR 60.4211(f)(2)(ii)—(iii), 60.4243(d)(2)(ii)—(iii), and 63.6640(f)(2)(ii)—(iii). Therefore, engines subject to this chapter do not have to comply with those provisions.

#### Regulation .04 Annual Report Requirement for Curtailment Service Providers (CSPs).

*COMAR 26.11.36.04*

A. A CSP that administers a demand response program for a participating facility in the State shall provide the following information to the Department in an annual report:

  (1) The name and address of each participating facility and the telephone number and name of a contact person;

  (2) The identification of each participating engine at the facility, including:

    (a) The registration number assigned by the Department for each engine and its rated capacity in horsepower and kilowatts;

    (b) The manufacturer and model;

    (c) The installation date;

    (d) The type of fuel used in each engine;

    (e) A copy of or the mail log number associated with The Public Service Commission of Maryland Certificate of Public Convenience and Necessity (CPCN) Exemption, pursuant to Public Utility Companies Article, §7-207.1, Annotated Code of Maryland, as applicable, including unit type of generator, for example, Type I Generator, Type II Generator; and

    (f) The PJM Interconnection, LLC utility zone for the participating facility;

  (3) A description of the demand response program for each participating engine;

  (4) As called for by the CSP, the dates on which each engine was requested to operate during the year and the hours of operation on each date, including:

    (a) The reason for operating the engine under a demand response program;

    (b) The starting and ending times when each engine was requested to operate as called for by the CSP; and

    (c) The total kilowatt hours of generation during each demand response operation;

  (5) A list of curtailment activities at each participating facility, the total hours and the total kilowatt hours of generation curtailment as called for by the CSP;

  (6) A brief description of any significant increase or decrease in the total hours of demand response operation compared to total operation during the previous year; and

  (7) An attestation from the CSP that the CSP has:

    (a) Attempted to collect the required information from each participating facility or other appropriate source; and

    (b) Provided information that is true and correct to the best of their knowledge and is not misleading.

B. Each CSP may mark the annual report and its contents as confidential at the time of submission to indicate to the Department that the information is confidential commercial information, confidential financial information, a trade secret, or otherwise subject to mandatory non-disclosure requirements under State Government Article, Title 10, Subtitle 6, Annotated Code of Maryland.

C. The annual report, including one hard copy and one electronic copy, shall be submitted to the Department and the Public Service Commission of Maryland by no later than April 1 of the following year, beginning April 1, 2012, for calendar year 2011.

### Chapter 37 — Outer Continental Shelf Air Regulations

**Authority:** Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-203, Annotated Code of Maryland

**Administrative History:** Effective date: July 8, 2013 (40:13 Md. R. 1077)

#### Regulation .01 Definitions.

*COMAR 26.11.37.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Corresponding onshore area (COA)” means, with respect to any existing or proposed OCS source located within 25 miles of a State's seaward boundary, the onshore area that is geographically closest to the source or another onshore area that the Administrator designates as the COA, pursuant to 40 CFR §55.5, as amended.

  (2) Outer Continental Shelf (OCS) Source.

    (a) “Outer Continental Shelf (OCS) source” means any equipment, activity, or facility which:

      (i) Emits or has the potential to emit any air pollutant;

      (ii) Is regulated or authorized under the Outer Continental Shelf Lands Act (OCSLA) (43 U.S.C. §1331 et seq.); and

      (iii) Is located on the OCS or in or on waters above the OCS.

    (b) “Outer Continental Shelf (OCS) source” includes vessels only when they are:

      (i) Permanently or temporarily attached to the seabed and erected thereon and used for the purpose of exploring, developing or producing resources therefrom, within the meaning of section 4(a)(1) of OCSLA (43 U.S.C. §1331 et seq.); or

      (ii) Physically attached to an OCS facility, in which case only the stationary sources aspects of the vessels will be regulated.

#### Regulation .02 Applicability.

*COMAR 26.11.37.02*

Upon delegation of authority by the Administrator of the EPA to the Department, this regulation shall apply to the owner or operator of any Outer Continental Shelf (OCS) source for which Maryland is the corresponding onshore area (COA) as authorized under Section 328 of the Federal Clean Air Act Amendments (42 U.S.C. 7627) and 40 CFR Part 55, as amended.

#### Regulation .03 Incorporation by Reference.

*COMAR 26.11.37.03*

A. In this chapter the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) 40 CFR §55.1, as amended (Statutory authority and scope).

  (2) 40 CFR §55.2, as amended (Definitions).

  (3) 40 CFR §55.3, as amended (Applicability).

  (4) 40 CFR §55.4, as amended (Requirements to submit a notice of intent).

  (5) 40 CFR §55.6, as amended (Permit requirements).

  (6) 40 CFR §55.7, as amended (Exemptions).

  (7) 40 CFR §55.8, as amended (Monitoring, reporting, inspections, and compliance).

  (8) 40 CFR §55.9, as amended (Enforcement).

  (9) 40 CFR §55.10, as amended (Fees).

  (10) 40 CFR §55.13, as amended (Federal requirements that apply to OCS sources).

  (11) 40 CFR §55.14, as amended (Requirements that apply to OCS sources located within 25 miles of states' seaward boundaries, by State).

  (12) 40 CFR §55.15, as amended (Specific designation of corresponding onshore areas).

  (13) Appendix A to 40 CFR Part 55, as amended (Listing of State and Local Requirements Incorporated by Reference into Part 55, by State).

#### Regulation .04 Requirements.

*COMAR 26.11.37.04*

An OCS source shall comply with all requirements of this subtitle to the extent that they are incorporated by EPA into 40 CFR §55.14, as amended.

### Chapter 38 — Control of NO

**Authority:** Environment Article, §§1-404, 2-103, and 2-301—2-303, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.05 adopted as an emergency provision effective May 1, 2015 (42:11 Md. R. 722); adopted permanently effective August 31, 2015 (42:17 Md. R. 1111)

**Administrative History:** Chapter revised effective December 10, 2015 (42:24 Md. R. 1506)

#### Regulation .01 Definitions.

*COMAR 26.11.38.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Affected electric generating unit” means any one of the following coal-fired electric generating units:

    (a) Brandon Shores Units 1 and 2;

    (b) C.P. Crane Units 1 and 2;

    (c) Chalk Point Units 1 and 2;

    (d) Dickerson Units 1, 2, and 3;

    (e) H.A. Wagner Units 2 and 3;

    (f) Morgantown Units 1 and 2; and

    (g) Warrior Run.

  (2) “Emergency operations” means an event called when PJM Interconnection, LLC or a successor independent system operator, acts to invoke one or more of the Warning or Action procedures in accordance with PJM Manual 13, Revision 57, as amended, to avoid potential interruption in electric service and maintain electric system reliability.

  (3) “Operating day” means a 24-hour period beginning midnight of one day and ending the following midnight, or an alternative 24-hour period approved by the Department, during which time an installation is operating, consuming fuel, or causing emissions.

  (4) “Ozone season” means the period beginning May 1 of any given year and ending September 30 of the same year.

  (5) System.

    (a) “System” means all affected electric generating units within the State of Maryland subject to this chapter that are owned, operated, or controlled by the same person and are located:

      (i) In the same ozone nonattainment area as specified in 40 CFR Part 81; or

      (ii) Outside any designated ozone nonattainment area as specified in 40 CFR Part 81.

    (b) “System” includes at least two affected electric generating units.

  (6) “System operating day” means any day in which an electric generating unit in a system operates.

  (7) “30-day rolling average emission rate” means a value in lbs/MMBtu calculated by:

    (a) Summing the total pounds of pollutant emitted from the unit during the current operating day and the previous 29 operating days;

    (b) Summing the total heat input to the unit in MMBtu during the current operating day and the previous 29 operating days; and

    (c) Dividing the total number of pounds of pollutant emitted during the 30 operating days by the total heat input during the 30 operating days.

  (8) “30-day systemwide rolling average emission rate” means a value in lbs/MMBtu calculated by:

    (a) Summing the total pounds of pollutant emitted from the system during the current system operating day and the previous 29 system operating days;

    (b) Summing the total heat input to the system in MMBtu during the current system operating day and the previous 29 system operating days; and

    (c) Dividing the total number of pounds of pollutant emitted during the 30 system operating days by the total heat input during the 30 system operating days.

  (9) “24-hour block average emission rate” means a value in lbs/MMBtu calculated by:

    (a) Summing the total pounds of pollutant emitted from the unit during 24 hours between midnight of one day and ending the following midnight;

    (b) Summing the total heat input to the unit in MMBtu during 24 hours between midnight of one day and ending the following midnight; and

    (c) Dividing the total number of pounds of pollutant emitted during 24 hours between midnight of one day and ending the following midnight by the total heat input during 24 hours between midnight of one day and ending the following midnight.

  (10) “24-hour systemwide block average emission rate” means a value in lbs/MMBtu calculated by:

    (a) Summing the total pounds of pollutant emitted from the system during 24 hours between midnight of one day and ending the following midnight;

    (b) Summing the total heat input to the system in MMBtu during 24 hours between midnight of one day and ending the following midnight; and

    (c) Dividing the total number of pounds of pollutant emitted during 24 system hours between midnight of one day and ending the following midnight by the total heat input during 24 system hours between midnight of one day and ending the following midnight.

#### Regulation .02 Applicability.

*COMAR 26.11.38.02*

The provisions of this chapter apply to an affected electric generating unit as that term is defined in Regulation .01B of this chapter.

#### Regulation .03 2015 NO

*COMAR 26.11.38.03*

A. Daily NOx Reduction Requirements During the Ozone Season.

  (1) Not later than 45 days after the effective date of this regulation, the owner or operator of an affected electric generating unit (the unit) shall submit a plan to the Department and EPA for approval that demonstrates how each affected electric generating unit will operate installed pollution control technology and combustion controls to meet the requirements of §A(2) of this regulation. The plan shall summarize the data that will be collected to demonstrate compliance with §A(2) of this regulation. The plan shall cover all modes of operation, including but not limited to normal operations, start-up, shut-down, and low load operations.

  (2) Beginning on May 1, 2015, for each operating day during the ozone season, the owner or operator of an affected electric generating unit shall minimize NOx emissions by operating and optimizing the use of all installed pollution control technology and combustion controls consistent with the technological limitations, manufacturers’ specifications, good engineering and maintenance practices, and good air pollution control practices for minimizing emissions (as defined in 40 CFR §60.11(d)) for such equipment and the unit at all times the unit is in operation while burning any coal.

B. Ozone Season NOx Reduction Requirements.

  (1) Except as provided in §B(3) of this regulation, the owner or operator of an affected electric generating unit shall not exceed a NOx 30-day systemwide rolling average emission rate of 0.15 lbs/MMBtu during the ozone season.

  (2) The owner or operator of an affected electric generating unit subject to the provisions of this regulation shall continue to meet the ozone season NOx reduction requirements in COMAR 26.11.27.

  (3) Ownership of Single Electric Generating Facility.

    (a) An affected electric generating unit is not subject to §B(1) of this regulation if the unit is located at an electric generating facility that is the only facility in Maryland directly or indirectly owned, operated, or controlled by the owner, operator, or controller of the facility.

    (b) For the purposes of this subsection, the owner includes parent companies, affiliates, and subsidiaries of the owner.

C. Annual NOx Reduction Requirements. The owner or operator of an affected electric generating unit subject to the provisions of this regulation shall continue to meet the annual NOx reduction requirements in COMAR 26.11.27.

D. NOx Emission Requirements for Affected Electric Generating Units Equipped with Fluidized Bed Combustors.

  (1) The owner or operator of an affected electric generating unit equipped with a fluidized bed combustor is not subject to the requirements of §§A, B(1) and (2), and C of this regulation.

  (2) The owner or operator of an affected electric generating unit equipped with a fluidized bed combustor shall not exceed a NOx 24-hour block average emission rate of 0.10 lbs/MMBtu.

#### Regulation .04 Additional NO

*COMAR 26.11.38.04*

A. This regulation applies to C.P. Crane units 1 and 2, Chalk Point unit 2, Dickerson units 1, 2, and 3, and H.A. Wagner unit 2.

B. General Requirements. The owner or operator of the affected electric generating units subject to this regulation shall choose from the following:

  (1) Not later than June 1, 2020:

    (a) Install and operate a selective catalytic reduction (SCR) control system; and

    (b) Meet a NOx emission rate of 0.09 lbs/MMBtu, as determined on a 30-day rolling average during the ozone season;

  (2) Not later than June 1, 2020, permanently retire the unit;

  (3) Not later than June 1, 2020, permanently switch fuel from coal to natural gas for the unit;

  (4) Not later than June 1, 2020, meet either a NOx emission rate of 0.13 lbs/MMBtu as determined on a 24-hour systemwide block average or a systemwide NOx tonnage cap of 21 tons per day during the ozone season.

C. When option §B(4)of this regulation is selected:

  (1) Not later than May 1, 2016, the owner or operator of an affected electric generating unit shall not exceed a NOx 30-day systemwide rolling average emission rate of 0.13 lbs/MMBtu during the ozone season.

  (2) Not later than May 1, 2018, the owner or operator of an affected electric generating unit shall not exceed a NOx 30-day systemwide rolling average emission rate of 0.11 lbs/MMBtu during the ozone season.

  (3) Not later than May 1, 2020, the owner or operator of an affected electric generating unit shall not exceed a NOx 30-day systemwide rolling average emission rate of 0.09 lbs/MMBtu during the ozone season.

D. In order to calculate the 24-hour systemwide block average emission rate and systemwide NOx tonnage cap under §B(4) of this regulation and the systemwide rolling average emission rates under §C of this regulation:

  (1) The owner or operator shall use all affected electric generating units within their system as those terms are defined in Regulation .01B of this chapter; and

  (2) The unit or units NOx emissions from all operations during the entire operating day shall be used where the unit or units burn coal at any time during that operating day.

E. Beginning June 1, 2020, if the unit or units included in a system, as that system existed on May 1, 2015, is no longer directly or indirectly owned, operated, or controlled by the owner, operator, or controller of the system:

  (1) The remaining units within the system shall meet either:

    (a) The requirements of §B(1)—(3) of this regulation; or

    (b) A NOx emission rate of 0.13 lbs/MMBtu as determined on a 24-hour systemwide block average and the requirements of §C(3) of this regulation.

  (2) The unit or units no longer included in the system shall meet the requirements of §B(1)—(3) of this regulation.

F. For the purposes of this regulation, the owner includes parent companies, affiliates, and subsidiaries of the owner.

#### Regulation .05 Compliance Demonstration Requirements.

*COMAR 26.11.38.05*

A. Procedures for Demonstrating Compliance with Regulation .03A of this Chapter.

  (1) An affected electric generating unit shall demonstrate, to the Department’s satisfaction, compliance with Regulation .03A(2) of this chapter, using the information collected and maintained in accordance with Regulation .03A(1) of this chapter and any additional documentation available to and maintained by the affected electric generating unit.

  (2) An affected electric generating unit shall not be required to submit a unit-specific report consistent with §A(3) of this regulation when the unit emits at levels that are at or below the following rates:

  (3) The owner or operator of an affected electric generating unit subject to Regulation .03A(2) of this chapter shall submit a unit-specific report for each day the unit exceeds its NOx emission rate under §A(2) of this regulation, which shall include the following information for the entire operating day:

    (a) Hours of operation for the unit;

    (b) Hourly averages of operating temperature of installed pollution control technology;

    (c) Hourly averages of heat input (MMBtu/hr);

    (d) Hourly averages of output (MWh);

    (e) Hourly averages of ammonia or urea flow rates;

    (f) Hourly averages of NOx emissions data (lbs/MMBtu and tons);

    (g) Malfunction data;

    (h) The technical and operational reason the rate was exceeded, such as:

      (i) Operator error;

      (ii) Technical events beyond the control of the owner or operator (e.g. acts of God, malfunctions); or

      (iii) Dispatch requirements that mandate unplanned operation (e.g. start-ups and shut-downs, idling, and operation at low voltage or low load);

    (i) A written narrative describing any actions taken to reduce emission rates; and

    (j) Other information that the Department determines is necessary to evaluate the data or to ensure that compliance is achieved.

  (4) An exceedance of the emissions rate under §A(2) of this regulation as a result of factors including but not limited to start-up, shut-down, days when the unit was directed by the electric grid operator to operate at low load or to operate pursuant to any emergency generation operations required by the electric grid operator, including necessary testing for such emergency operations, or which otherwise occurred during operations which are deemed consistent with the unit’s technological limitations, manufacturers’ specifications, good engineering and maintenance practices, and good air pollution control practices for minimizing emissions, shall not be considered a violation of Regulation .03A(2) of this chapter provided that the provisions of the approved plan as required in Regulation .03A(1) of this chapter are met.

B. Procedures for Demonstrating Compliance with NOx Emission Rates under this Chapter.

  (1) Compliance with the NOx emission rate limitations in Regulations .03B(1) and D(2); .04B(1)(b) and B(4), C(1)—(3), and E(1)(b); and .05A(2) of this chapter shall be demonstrated with a continuous emission monitoring system that is installed, operated, and certified in accordance with 40 CFR Part 75.

  (2) For Regulations .03B(1) and .04C(1)—(3) of this chapter, in order to calculate the 30-day systemwide rolling average emission rates, if 29 system operating days are not available from the current ozone season, system operating days from the previous ozone season shall be used.

  (3) For Regulation .04B(1)(b) of this chapter, in order to calculate the 30-day rolling average emission rates, if 29 operating days are not available from the current ozone season, operating days from the previous ozone season shall be used.

#### Regulation .06 Reporting Requirements.

*COMAR 26.11.38.06*

A. Reporting Schedule.

  (1) Beginning 30 days after the first month of the ozone season following the effective date of this chapter, each affected electric generating unit subject to the requirements of this chapter shall submit a monthly report to the Department detailing the status of compliance with this chapter during the ozone season.

  (2) Each subsequent monthly report shall be submitted to the Department not later than 30 days following the end of the calendar month during the ozone season.

B. Monthly Reports During Ozone Season. Monthly reports during the ozone season shall include:

  (1) Daily pass or fail of the NOx emission rates under Regulation .05A(2) of this chapter;

  (2) The reporting information as required under Regulation .05A(3) of this chapter;

  (3) The 30-day systemwide rolling average emission rate for each affected electric generating unit to demonstrate compliance with Regulation .03B(1), .04C(1)—(3) of this chapter, as applicable;

  (4) For an affected electric generating unit which has selected the compliance option of Regulation .04B(1) of this chapter, beginning June 1, 2020, the 30-day rolling average emission rate calculated in lbs/MMBtu;

  (5) For an affected electric generating unit which has selected the compliance option of Regulation .04B(4) of this chapter, beginning June 1, 2016, the 30-day rolling average emission rate and 30-day systemwide rolling average emission rate calculated in lbs/MMBtu;

  (6) For an affected electric generating unit which has selected the compliance option of Regulation .04B(4) of this chapter, beginning June 1, 2020, data, information, and calculations which demonstrate the systemwide NOx emission rate as determined on a 24-hour block average or the actual systemwide daily NOx emissions in tons for each day during the month; and

  (7) For an affected electric generating unit which has selected the compliance option of Regulation .04E(1)(b) of this chapter, beginning June 1, 2020, data, information, and calculations which demonstrate the systemwide NOx emission rate as determined on a 24-hour block average for each day during the month.

#### Regulation .07 Electric System Reliability During Ozone Seasons.

*COMAR 26.11.38.07*

A. In the event of emergency operations, a maximum of 12 hours of operations per system per ozone season may be removed from the calculation of the NOx limitations in Regulation .04B(4) of this chapter from the unit or units responding to the emergency operations provided that:

  (1) Within one business day following the emergency operation, the owner or operator of the affected electric generating unit or units notifies the Manager of the Air Quality Compliance Program of the emergency operations taken by PJM Interconnection; and

  (2) Within five business days following the emergency operation, the owner or operator of the affected electric generating unit or units provides the Department with the following information:

    (a) PJM documentation of the emergency event called and the unit or units requested to operate;

    (b) Unit or units dispatched for the emergency operation;

    (c) Number of hours that the unit or units responded to the emergency operation and the consecutive hours that will be used towards the calculation of the NOx limitations in Regulation .04B(4) of this chapter; and

    (d) Other information regarding efforts the owner or operator took to minimize NOx emissions in accordance with Regulation .03A(1) of this chapter on the day that the emergency operation was called.

B. Any partial hour in which a unit operated in response to emergency operations under §A of this regulation shall constitute a full hour of operations.

### Chapter 39 — Architectural and Industrial Maintenance (AIM) Coatings

**Authority:** Environment Article, §§1-404, 2-103, and 2-301—2-303, Annotated Code of Maryland

**Administrative History:** Effective date: April 25, 2016 (43:8 Md. R. 497)

#### Regulation .01 Applicability and Exemptions.

*COMAR 26.11.39.01*

A. Except as provided in §B of this regulation, this chapter applies to a person who:

  (1) Supplies, sells, offers for sale, or manufactures an architectural coating for use within the State; or

  (2) Uses or applies an architectural coating within the State.

B. This chapter does not apply to the following products:

  (1) Any architectural coating that is supplied, sold, offered for sale or manufactured for:

    (a) Use outside of the State; or

    (b) Shipment to other manufacturers for reformulation or repackaging.

  (2) Any aerosol coating product; or

  (3) An architectural coating that is sold in a container with a volume of 1 liter (1.057 quart) or less, including kits of containers of different colors, types, or categories of coatings and two component products.

C. The exemption in §B(3) of this regulation does not include:

  (1) Bundling of containers 1 liter or less, which are sold together as a unit; or

  (2) Coatings with packaging or marketing which implies that multiple containers 1 liter or less be combined into one container.

D. The exemption in §B(3) of this regulation includes multiple containers of 1 liter or less that are packaged and shipped together, but are sold individually.

E. Except as provided in Regulation .04H of this chapter, this chapter is effective on January 1, 2017.

#### Regulation .02 Test Methods—Incorporation by Reference.

*COMAR 26.11.39.02*

A. In this chapter, the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) Fire-Resistance Rating. The fire-resistance rating of a fire-resistive coating shall be determined by ASTM Test Method E119-08, “Standard Test Methods for Fire Tests of Building Construction and Materials”.

  (2) Gloss Determination. The gloss of a coating shall be determined by ASTM Test Method D523-89(1999), “Standard Test Method for Specular Gloss”.

  (3) Metal Content of Coatings. The metallic content of a coating shall be determined by South Coast Air Quality Management District (SCAQMD) Method 318-95, “Determination of Weight Percent Elemental Metal in Coatings by X-Ray Diffraction”, (Approved July 1996) SCAQMD “Laboratory Methods of Analysis for Enforcement Samples”.

  (4) Acid Content of Coatings. The acid content of a coating shall be determined by ASTM Test Method D1613-06, “Standard Test Method for Acidity in Volatile Solvents and Chemical Intermediates Used in Paint, Varnish, Lacquer, and Related Products”.

  (5) Exempt Compounds—Siloxanes. Exempt compounds that are cyclic, branched, or linear, completely methylated siloxanes, shall be analyzed as exempt compounds by methods referenced in ASTM D3960-05 “Standard Practice for Determining Volatile Organic Compound (VOC) Content of Paints and Related Coatings” or Bay Area Air Quality Management District (BAAQMD) Method 43, “Determination of Volatile Methylsiloxanes in Solvent Based Coatings, Inks and Related Materials,” BAAQMD Manual of Procedures, Volume III, adopted November 6, 1996.

  (6) Exempt Compounds—Parachlorobenzotrifluoride (PCBTF). The exempt compound parachlorobenzotrifluoride, shall be analyzed by methods referenced in ASTM D3960-05 “Standard Practice for Determining Volatile Organic Compound (VOC) Content of Paints and Related Coatings” or BAAQMD Method 41 “Determination of Volatile Organic Compounds in Solvent Based Coatings and Related Materials Containing Parachlorobenzotrifluoride,” BAAQMD Manual of Procedures, Volume III, adopted December 20, 1995.

  (7) Exempt Compounds. The content of compounds exempt under U.S. EPA Method 24 shall be analyzed by methods referenced in ASTM D3960-05 “Standard Practice for Determining Volatile Organic Compound (VOC) Content of Paints and Related Coatings” or South Coast Air Quality Management District (SCAQMD) Method 303-91 “Determination of Exempt Compounds (Revised 1993)”, SCAQMD Laboratory Methods of Analysis for Enforcement Samples.

  (8) VOC Content of Coatings. The VOC content of a coating shall be determined by U.S. EPA Method 24 as it exists in Appendix A-7 of 40 CFR Part 60, “Determination of Volatile Matter Content, Water Content, Density, Volume Solids, and Weight Solids of Surface Coatings”.

  (9) Alternative VOC Content of Coatings. The VOC content of coatings may be analyzed by either U.S. EPA Method 24 as it exists in Appendix A-7 of 40 CFR Part 60, “Determination of Volatile Matter Content, Water Content, Density, Volume Solids, and Weight Solids of Surface Coatings” or SCAQMD Method 304-91 “Determination of Volatile Organic Compounds (VOC) in Various Materials (Revised 1996)”, SCAQMD “Laboratory Methods of Analysis for Enforcement Samples”.

  (10) Methacrylate Traffic Marking Coatings. The VOC content of methacrylate multicomponent coatings used as traffic marking coatings shall be analyzed by the procedures in 40 CFR Part 59, Subpart D, Appendix A, “Determination of Volatile Matter Content of Methacrylate Multicomponent Coatings Used as Traffic Marking Coatings”.

  (11) Radiation Resistance—Nuclear Coatings. The radiation resistance of a nuclear coating shall be determined by ASTM D4082-02 “Standard Test Method for Effects of Gamma Radiation on Coatings for Use in Light-Water Nuclear Power Plants”

  (12) Chemical Resistance—Nuclear Coatings. The chemical resistance of nuclear coatings shall be determined by ASTM D3912-95(2001) “Standard Test Method for Chemical Resistance of Coatings Used in Light-Water Nuclear Power Plants”.

  (13) Hydrostatic Pressure for Basement Specialty Coatings. The hydrostatic pressure resistance for basement specialty coatings shall be analyzed using ASTM D7088-04, “Standard Practice for Resistance to Hydrostatic Pressure for Coatings Used in Below Grade Applications Applied to Masonry”.

  (14) Tub and Tile refinishing Coating Adhesion. The adhesion of tub and tile coating shall be determined by ASTM D4585-99, “Standard Practice for Testing Water Resistance of Coatings Using Controlled Condensation” and ASTM D3359-02, “Standard Test Methods for Measuring Adhesion by Tape Test”.

  (15) Tub and Tile Refinish Coating Hardness. The hardness of tub and tile refinish coating shall be determined by ASTM D3363-05, “Standard Test Method for Film Hardness by Pencil Test”.

  (16) Tub and Tile Refinish Coating Abrasion Resistance. Abrasion resistance of tub and tile refinish coating shall be analyzed by ASTM D4060-07, “Standard Test Methods for Abrasion Resistance of Organic Coatings by the Taber Abraser”.

  (17) Tub and Tile Refinish Coating Water Resistance. Water resistance of tub and tile refinish coatings shall be determined by ASTM D4585-99, “Standard Practice for Testing Water Resistance of Coatings Using Controlled Condensation” and ASTM D714-02e1, “Standard Test Method for Evaluating Degree of Blistering of Paints”.

  (18) Waterproofing Membrane. Waterproofing membrane shall be tested by ASTM C836-06, “Standard Specification for High Solids Content, Cold Liquid-Applied Elastomeric Waterproofing Membrane for Use with Separate Wearing Course”.

  (19) Mold and Mildew Growth for Basement Specialty Coatings. Mold and mildew growth resistance for basement specialty coatings shall be determined by ASTM D3273-00, “Standard Test Method for Resistance to Growth of Mold on the Surface of Interior Coatings in an Environmental Chamber” and ASTM D3274-95, “Standard Test Method for Evaluating Degree of Surface Disfigurement of Paint Films by Microbial (Fungal or Algal) Growth or Soil and Dirt Accumulation”.

  (20) Reactive Penetrating Sealer Water Repellency. Reactive penetrating sealer water repellency shall be analyzed by ASTM C67-07, “Standard Test Methods for Sampling and Testing Brick and Structural Clay Tile”; or ASTM C97-02, “Standard Test Methods for Absorption and Bulk Specific Gravity of Dimension Stone”; or ASTM C140-06, “Standard Test Methods for Sampling and Testing Concrete Masonry Units and Related Units”.

  (21) Reactive Penetrating Sealer Water Vapor Transmission. Reactive penetrating sealer water vapor transmission shall be analyzed ASTM E96/E96M-05, “Standard Test Method for Water Vapor Transmission of Materials”.

  (22) Reactive Penetrating Sealer — Chloride Screening Applications. Reactive penetrating sealers shall be analyzed by National Cooperative Highway Research Report 244 (1981), “Concrete Sealers for the Protection of Bridge Structures”.

  (23) Stone Consolidants. Stone consolidants shall be tested using ASTM E2167-01, “Standard Guide for Selection and Use of Stone Consolidants”.

#### Regulation .03 Definitions.

*COMAR 26.11.39.03*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Adhesive” means a chemical substance that is applied for the purpose of bonding two surfaces together other than by mechanical means.

  (2) “Aerosol coating product” means a pressurized coating product containing pigments or resins that:

    (a) Dispenses product ingredients by means of a propellant; and

    (b) Is packaged in a disposable can for handheld application, or for use in specialized equipment for ground traffic/marking applications.

  (3) “Aluminum roof coating” means a coating labeled and formulated exclusively for application to roofs and containing at least 84 grams of elemental aluminum pigment per liter of coating (at least 0.7 pounds per gallon).

  (4) Appurtenance.

    (a) “Appurtenance” means an accessory to a stationary structure that is coated at the site of installation, whether installed or detached.

    (b) “Appurtenance” includes:

      (i) Bathroom and kitchen fixtures;

      (ii) Cabinets;

      (iii) Concrete forms;

      (iv) Doors;

      (v) Elevators;

      (vi) Fences;

      (vii) Hand railings;

      (viii) Heating equipment, air conditioning equipment, and other fixed mechanical equipment or stationary tools;

      (ix) Lampposts;

      (x) Partitions;

      (xi) Pipes and piping systems;

      (xii) Rain gutters and downspouts;

      (xiii) Stairways;

      (xiv) Fixed ladders;

      (xv) Catwalks and fire escapes; and

      (xvi) Window screens.

  (5) Architectural Coating.

    (a) “Architectural coating” means a coating to be applied to:

      (i) Stationary structures or their appurtenances at the site of installation;

      (ii) Portable buildings at the site of installation;

      (iii) Pavements; or

      (iv) Curbs.

    (b) “Architectural coating” does not include:

      (i) Coatings applied in shop applications or to non-stationary structures such as airplanes, ships, boats, railcars, or automobiles; or

      (ii) Adhesives.

  (6) “Basement specialty coating” means a clear or opaque coating that:

    (a) Is labeled and formulated for application to concrete and masonry surfaces to provide a hydrostatic seal for basements and other below-grade surfaces;

    (b) Is capable of withstanding at least 10 psi of hydrostatic pressure;

    (c) Is resistant to mold and mildew growth; and

    (d) Achieves a microbial growth rating of 8 or more.

  (7) “Bituminous roof coating” means a coating that:

    (a) Incorporates bitumens;

    (b) Is labeled and formulated exclusively for roofing; and

    (c) Is intended for the primary purpose of preventing water penetration.

  (8) “Bituminous roof primer” means a primer that:

    (a) Incorporates bitumens;

    (b) Is labeled and formulated exclusively for roofing; and

    (c) Is intended for one of the following purposes:

      (i) Preparing a weathered or aged surface; or

      (ii) Improving the adhesion of subsequent surfacing components.

  (9) “Bond breaker” means a coating labeled and formulated for application between layers of concrete to prevent a freshly poured top layer of concrete from bonding to the layer over which it is poured.

  (10) “Calcimine recoater” means a flat solvent borne coating formulated and recommended specifically for recoating calcimine-painted ceilings and other calcimine-painted substrates.

  (11) Coating.

    (a) “Coating” means a material applied onto or impregnated into a substrate for protective, decorative, or functional purposes.

    (b) “Coating” includes paints, varnishes, sealers, and stains.

  (12) “Colorant” means a concentrated pigment dispersion in water, solvent, or binder that is added to an architectural coating to produce a desired color.

  (13) “Concrete curing compound” means a coating labeled and formulated for application to freshly poured concrete to perform one or more of the following functions:

    (a) Retard the evaporation of water; or

    (b) Harden or dustproof the surface of freshly poured concrete.

  (14) “Concrete/masonry sealer” means a clear or opaque coating that is labeled and formulated primarily for application to concrete and masonry surfaces to perform one or more of the following functions:

    (a) Prevent penetration of water;

    (b) Provide resistance against abrasion, alkalis, acids, mildew, staining, or ultraviolet light; or

    (c) Harden or dustproof the surface of aged or cured concrete.

  (15) “Concrete surface retarder” means a mixture of retarding ingredients such as extender pigments, primary pigments, resin, and solvent that interact chemically with the cement to prevent hardening on the surface where the retarder is applied, allowing the retarded mix of cement and sand at the surface to be washed away to create an exposed aggregate finish.

  (16) Conjugated oil varnish.

    (a) “Conjugated oil varnish” means a clear or semi-transparent wood coating that:

      (i) Is labeled as such;

      (ii) Is based on a natural occurring conjugated vegetable oil (tung oil) and modified with other natural or synthetic resins, with a minimum of 50 percent of the resins solids consisting of conjugated oil;

      (iii) Is supplied as a single component that penetrates and seals the wood;

      (iv) Results in film formation due to polymerization of the oil; and

      (v) Contains small amounts of pigment to control the final gloss or sheen.

    (b) “Conjugated oil varnish” does not include lacquers or shellacs.

  (17) “Conversion varnish” means a clear acid curing coating with an alkyd, or other resin blended with amino resins that:

    (a) Is supplied as a single component or two-component product designed for professional application to wood flooring to produce a hard, durable, clear finish; and

    (b) Results in a film formation from an acid-catalyzed condensation reaction, affecting a transetherification of the reactive ethers of the amino resins.

  (18) “Driveway sealer” means a coating labeled and formulated for application to worn asphalt driveway surfaces to perform one or more of the following functions:

    (a) Fill cracks;

    (b) Seal the surface to provide protection; or

    (c) Restore or preserve the appearance.

  (19) “Dry fog coating” means a coating labeled and formulated only for spray application such that overspray droplets dry before subsequent contact with incidental surfaces in the vicinity of the surface coating activity.

  (20) “Exempt compound” means a compound identified as exempt under the definition of volatile organic compound (VOC) under COMAR 26.11.01.01B(53).

  (21) “Faux finishing coating” means a coating labeled and formulated to meet one or more of the following criteria:

    (a) A glaze or textured coating used to create artistic effects, including:

      (i) Dirt;

      (ii) Suede;

      (iii) Old age;

      (iv) Smoke damage;

      (v) Simulated marble; and

      (vi) Wood grain;

    (b) A decorative coating used to create a metallic, iridescent, or pearlescent appearance that contains at least 48 grams of pearlescent mica pigment or other iridescent pigment per liter of coating as applied (at least 0.4 pounds per gallon);

    (c) A decorative coating used to create a metallic appearance that contains less than 48 grams of elemental metallic pigment per liter of coating as applied (less than 0.4 pounds per gallon);

    (d) A decorative coating used to create a metallic appearance that:

      (i) Contains greater than 48 grams of elemental metallic pigment per liter of coating as applied (greater than 0.4 pounds per gallon); or

      (ii) Requires a clear topcoat to prevent the degradation of the finish under normal use conditions.

    (e) A clear topcoat sold and used solely as part of a faux finishing coating system to seal and protect a faux finishing coating that meets one or more of the requirements in §B(21)(a)—(d) of this regulation.

  (22) Fire-Resistive Coating.

    (a) “Fire-resistive coating” means a coating that has been labeled and formulated to protect structural integrity by increasing the fire endurance of interior or exterior structural materials.

    (b) “Fire-resistive coating” includes sprayed fire resistive materials and intumescent fire coatings that are used to bring structural materials into compliance with federal, state, and local building code requirements.

  (23) “Flat coating” means a coating that is not defined under any other definition in this regulation and that registers a gloss of less than 15 on an 85-degree meter or less than 5 on a 60-degree meter.

  (24) “Floor coating” means an opaque coating that is labeled and formulated for application to flooring such as decks, porches, steps, garage floors and other horizontal surfaces that may be subjected to foot traffic.

  (25) “Form-release coating” means a coating labeled and formulated for application to a form to prevent freshly poured concrete from bonding to the form.

  (26) Graphic Arts Coating (Sign Paint).

    (a) “Graphic arts coating (sign paint)” means a coating labeled and formulated for hand-application, using brush, airbrush, or roller techniques to one or more of the following:

      (i) Indoor and outdoor signs; and

      (ii) Murals.

    (b) “Graphic arts coating (sign paint)” includes letter enamels, poster colors, copy blockers, and bulletin enamels.

    (c) “Graphic arts coating (sign paint)” does not include coatings applied to structural components.

  (27) “High-temperature coating” means a high performance coating labeled and formulated for application to substrates exposed continuously or intermittently to temperatures above 204°C (400°F).

  (28) “Impacted immersion coating” means a high performance maintenance coating that is:

    (a) Formulated and recommended for application to steel structures subject to immersion in turbulent, debris-laden water; and

    (b) Specifically resistant to high-energy impact damage caused by floating ice or debris.

  (29) Industrial Maintenance Coating.

    (a) “Industrial maintenance coating” means a high performance architectural coating formulated for application to substrates exposed to one or more of the following extreme environmental conditions:

      (i) Immersion in water, wastewater, chemical solutions (aqueous and non-aqueous solutions), or chronic exposures of interior surfaces to moisture condensation;

      (ii) Acute or chronic exposure to corrosive, caustic, or acidic agents, or to chemicals, chemical fumes, or chemical mixtures or solutions;

      (iii) Frequent exposure to temperatures above 121°C (250°F)

      (iv) Frequent and heavy abrasion, including mechanical wear and scrubbing with industrial solvents, cleansers, or scouring agents; or

      (v) Exterior exposure of metal structures and structural components.

    (b) “Industrial maintenance coating includes primers, sealers, undercoaters, intermediate coats, and topcoats.

  (30) “Low-solids coating” means a coating containing 0.12 kilogram or less of solids per liter (1 pound or less of solids per gallon) of coating material as recommended for application by the manufacturer.

  (31) “Magnesite cement coating” means a coating labeled and formulated for application to magnesite cement decking to protect the magnesite cement substrate from erosion by water.

  (32) “Mastic texture coating” means a coating:

    (a) Labeled and formulated to cover holes and minor cracks and to conceal surface irregularities; and

    (b) Applied in a single coat of at least 10 mils (0.010 inch) dry film thickness.

  (33) “Metallic pigmented coating” means a coating labeled and formulated to provide a metallic appearance that contains at least 48 grams of elemental metallic pigment (excluding zinc) per liter of coating as applied (0.4 pounds per gallon).

  (34) “Multi-color coating” means a coating that is:

    (a) Packaged in a single container; and

    (b) Labeled and formulated to exhibit more than one color when applied in a single coat.

  (35) “Non-flat coating” means a coating that:

    (a) Is not defined under any other definition in this regulation; and

    (b) Registers a gloss of 15 or greater on an 85-degree meter and 5 or greater on a 60-degree meter.

  (36) “Non-flat—high gloss coating” means a non-flat coating that registers a gloss of 70 or greater on a 60-degree meter.

  (37) “Nuclear coating” means a protective coating that:

    (a) Is formulated and recommended to seal porous surfaces that otherwise would be subject to intrusion by radioactive materials;

    (b) Is resistant to long-term (service life) cumulative radiation exposure;

    (c) Is relatively easy to decontaminate; and

    (d) Is resistant to various chemicals to which the coatings are likely to be exposed.

  (38) “Post-consumer coating” means finished coatings generated by a business or consumer that have served their intended end uses, and are recovered from or otherwise diverted from the waste stream for the purpose of recycling.

  (39) “Pre-treatment wash primer” means a primer that:

    (a) Contains a minimum of 0.5 percent acid, by weight; and

    (b) Is labeled and formulated for application directly to bare metal surfaces to provide corrosion resistance and promote adhesion of subsequent topcoats.

  (40) “Primer, sealer, and undercoater” means a coating labeled and formulated for one or more of the following purposes:

    (a) To provide a firm bond between the substrate and subsequent coatings;

    (b) To prevent subsequent coatings from being absorbed by the substrate;

    (c) To prevent harm to subsequent coatings by materials in the substrate;

    (d) To provide a smooth surface for the subsequent application of coatings;

    (e) To provide a clear finish coat to seal the substrate; or

    (f) To block materials from penetrating into or leaching out of a substrate.

  (41) Reactive penetrating sealer.

    (a) “Reactive penetrating sealer” means a clear or pigmented coating that is labeled and formulated for application to above-grade concrete and masonry substrates to provide protection from water and waterborne contaminants, including:

      (i) Alkalis;

      (ii) Acids; and

      (iii) Salts.

    (b) “Reactive penetrating sealers” meet the following criteria:

      (i) Penetrate into concrete and masonry substrates and chemically react to form covalent bonds with naturally occurring minerals in the substrate;

      (ii) Line the pores of concrete and masonry substrates with a hydrophobic coating, but do not form a surface film;

      (iii) Improve water repellency at least 80 percent after application on a concrete or masonry substrate as verified on standardized test specimens; and

      (iv) Do not reduce the water vapor transmission rate by more than 2 percent after application on a concrete or masonry substrate.

    (c) “Reactive penetrating sealers” labeled and formulated for vehicular traffic surface chloride screening applications shall meet the performance criteria listed in the National Cooperative Highway Research Report 244 (1981).

  (42) Reactive Penetrating Carbonate Stone Sealer.

    (a) “Reactive penetrating carbonate stone sealer” means a clear or pigmented coating that is labeled and formulated for application to above-grade carbonate stone substrates to provide protection from water and waterborne contaminants, including:

      (i) Alkalis;

      (ii) Acids; and

      (iii) Salts.

    (b) “Reactive penetrating sealers” meet the following criteria:

      (i) Penetrate into carbonate stone substrates and chemically reacts to form covalent bonds with naturally occurring minerals in the substrate;

      (ii) Line the pores of carbonate stone substrates with a hydrophobic coating, but do not form a surface film;

      (iii) Improve water repellency at least 80 percent after application on a carbonate stone substrate; and

      (iv) Do not reduce the water vapor transmission rate by more than 10 percent after application on a carbonate stone substrate.

  (43) “Recycled coating” means an architectural coating formulated so that it contains a minimum of 50 percent by volume post-consumer coating, with a maximum of 50 percent secondary industrial materials or virgin materials.

  (44) “Roof coating” means a non-bituminous coating labeled and formulated for application to roofs for the primary purpose of preventing water penetration, reflecting ultraviolet light, or reflecting solar radiation.

  (45) Rust Preventive Coating.

    (a) “Rust preventive coating” means a coating formulated to prevent the corrosion of metal surfaces for one or more of the following applications:

      (i) Direct-to-metal coating; or

      (ii) Coating intended for application over rusty, previously coated surfaces.

    (b) “Rust preventive coating” does not include:

      (i) Coatings that are required to be applied as a topcoat over a primer; or

      (ii) Coatings that are intended for use on wood or any other nonmetallic surface.

  (46) “Secondary industrial materials” means products or by-products of the paint manufacturing process that are of known composition and have economic value but can no longer be used for their intended purpose.

  (47) “Shellac” means a clear or opaque coating formulated solely with the resinous secretions of the Lac beetle (Laciffer lacca), and formulated to dry by evaporation without a chemical reaction.

  (48) “Shop application” means application of a coating to a product or a component of a product in or on the premises of a factory or a shop as part of a manufacturing, production, or repairing process (e.g. original equipment manufacturing coatings).

  (49) “Specialty primer, sealer, and undercoater” means a coating that is formulated for application to a substrate to block water-soluble stains resulting from:

    (a) Fire damage;

    (b) Smoke damage; or

    (c) Water damage.

  (50) “Stain” means a semi-transparent, or opaque coating labeled and formulated to change the color of a surface, but not conceal the grain pattern or texture.

  (51) “Stone consolidant” means a coating that:

    (a) Is labeled and formulated for application to stone substrates to repair structures that have been damaged by weathering or other decay mechanisms; and

    (b) Penetrates into stone substrates to create bonds between particles and consolidate deteriorated material.

  (52) Swimming Pool Coating.

    (a) “Swimming pool coating” means a coating labeled and formulated to coat the interior of swimming pools and to resist swimming pool chemicals.

    (b) “Swimming pool coating” includes coatings used for swimming pool repair and maintenance.

  (53) “Thermoplastic rubber coating and mastic” means a coating or mastic that:

    (a) Is formulated and recommended for application to roofing or other structural surfaces; and

    (b) Incorporates no less than 40 percent by weight of thermoplastic rubbers in the total resin solids.

  (54) “Tint base” means colorant which is added to an architectural coating.

  (55) “Traffic marking coating” means a coating labeled and formulated for marking and striping streets, highways, or other traffic surfaces such as curbs, berms, driveways, parking lots, sidewalks, and airport runways.

  (56) “Tub and tile refinish coating” means a clear or opaque coating that:

    (a) Is labeled and formulated exclusively for refinishing the surface of a bathtub, shower, sink, or countertop;

    (b) Has a scratch hardness of 3H or harder and a gouge hardness of 4H or harder that is determined on bonderite 1000;

    (c) Has a weight loss of 20 milligrams or less after 1000 cycles determined with CD-17 wheels on bonderite 1000;

    (d) Withstands 1000 hours or more of exposure with few or no #8 blisters that is determined on unscribed borderite; and

    (e) Has an adhesion rating of 4B or better after 24 hours of recovery that is determined on inscribed bonderite.

  (57) “VOC actual” means the weight of VOC per volume of coating, including water and exempt compounds.

  (58) VOC Content.

    (a) “VOC content” means the weight of VOC per volume of coating and is VOC regulatory for all coatings except those in the low solids category.

    (b) “VOC content” includes the following:

      (i) The VOCs emitted during curing if the coating contains silanes, siloxanes, or other ingredients that generate ethanol or other VOCs during the curing process; and

      (ii) The maximum amount of thinning solvent recommended by the manufacturer.

  (59) “VOC regulatory” means the weight of VOC per volume of coating, less the volume of water and exempt compounds.

  (60) Waterproofing Membrane.

    (a) “Waterproofing membrane” means a clear or opaque coating that is labeled and formulated for application to concrete and masonry surfaces to provide a seamless waterproofing membrane that prevents any penetration of liquid water into the substrate.

    (b) “Waterproofing membrane” is intended for one or more of the following waterproofing applications:

      (i) Below-grade surfaces;

      (ii) Between concrete slabs;

      (iii) Inside tunnels;

      (iv) Inside concrete planners; or

      (v) Under flooring materials.

    (c) “Waterproofing membrane” is applied in a single coat of at least 25 mils (at least 0.025 inch) dry film thickness.

    (d) “Waterproofing membrane” does not include topcoats that are included in the concrete masonry sealer category.

  (61) Wood Coatings.

    (a) “Wood coatings” means coatings labeled and formulated for application to wood substrates only.

    (b) “Wood coatings” includes the following clear and semitransparent coatings:

      (i) Lacquers;

      (ii) Varnishes;

      (iii) Sanding sealers;

      (iv) Penetrating oils;

      (v) Clear stains;

      (vi) Wood conditioners used as undercoats; and

      (vii) Wood sealers used as topcoats.

    (c) “Wood coatings” also includes the following opaque wood coatings:

      (i) Opaque lacquers;

      (ii) Opaque sanding sealers; and

      (iii) Opaque lacquer undercoaters.

    (d) “Wood coatings” does not include the following:

      (i) Clear sealers that are labeled and formulated for use on concrete/masonry surfaces; or

      (ii) Coatings intended for substrates other than wood.

  (62) “Wood preservative” means a coating that:

    (a) Is labeled and formulated to protect exposed wood from decay or insect attack; and

    (b) Registered with both the U.S. EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §136 et seq.) and with the State.

  (63) Wood Substrate.

    (a) “Wood substrate” means a substrate made of wood, particleboard, plywood, medium density fiberboard, rattan, wicker, bamboo, or composite products with exposed wood grain.

    (b) “Wood substrate” does not include items comprised of simulated wood.

  (64) “Zinc-rich primer” means a coating that:

    (a) Contains at least 65 percent metallic zinc powder or zinc dust by weight of total solids; and

    (b) Is formulated for application to metal substrates to provide a firm bond between the substrate and subsequent applications of coatings.

#### Regulation .04 General Requirements and Standards.

*COMAR 26.11.39.04*

A. VOC Content Limits.

  (1) Except as provided in this regulation, a person may not manufacture, blend, repackage for sale, supply, sell, offer for sale, or apply within the State an architectural coating with a VOC content in excess of the corresponding limit specified in Regulation .05 of this chapter.

  (2) Limits are expressed as VOC content, thinned to the manufacturer’s maximum thinning recommendation, excluding any colorant added to tint bases.

B. Most Restrictive VOC Limit. If anywhere on the container of an architectural coating, label or sticker affixed to the container, or in any sales, advertising, or technical literature supplied by a manufacturer or anyone acting on behalf of a manufacturer, any representation is made that indicates that the coating meets the definition of or is recommended for use for more than one of the coating categories listed in Regulation .05 of this chapter, then the most restrictive VOC content limit applies.

C. The provisions of §B of this regulation do not apply to the following coating categories:

  (1) Aluminum roof coatings;

  (2) Bituminous roof primers;

  (3) High-temperature coatings;

  (4) Industrial maintenance coatings;

  (5) Low-solids coatings;

  (6) Metallic pigmented coatings;

  (7) Pretreatment wash primers;

  (8) Shellacs;

  (9) Specialty primers, sealers, and undercoaters;

  (10) Wood coatings;

  (11) Wood preservatives;

  (12) Zinc-rich primers

  (13) Calcimine recoaters;

  (14) Impacted immersion coatings;

  (15) Nuclear coatings;

  (16) Thermoplastic rubber coatings and mastic; and

  (17) Concrete surface retarders.

D. Sell-Through of Coatings.

  (1) A coating manufactured before the effective date of January 1, 2017, that complied with the standards in effect at the time the coating was manufactured may be sold, supplied, or offered for sale until January 1, 2020.

  (2) A coating that complies with the standards in effect in this State at the time of manufacture may be applied at any time.

  (3) The provisions of this section do not apply to a coating that does not display a date or date code representing the date of manufacture.

  (4) Notwithstanding §D(2) of this regulation, a person may not apply any rust preventative coating manufactured before January 1, 2017 for industrial use, unless such a rust preventative coating complies with the industrial maintenance coating limit specified in Regulation .05 of this chapter.

E. Painting Practices.

  (1) All architectural coating containers used to apply the contents therein to a surface by pouring, siphoning, brushing, rolling, padding, ragging, or other means, shall be closed when not in use.

  (2) Architectural coatings containers include, but are not limited to drums, buckets, cans, pails, trays, or other application containers.

  (3) Containers of any VOC-containing materials used for thinning and cleanup shall also be closed when not in use.

F. Thinning. A person may not apply any architectural coating if the coating is thinned to exceed the applicable VOC limit specified in Table 1 of Regulation .05 of this chapter.

G. Coatings Not Listed in Regulation .05 of this Chapter. A coating that does not meet the definitions for the specialty coatings categories listed in Regulation .05 of this chapter is subject to the VOC content limit for either a flat, non-flat, or non-flat high gloss coating based on its gloss as determined in Regulation .02B(2) of this chapter.

H. New Coatings Categories. Beginning May 1, 2016, the following new coatings categories shall be considered in compliance if the coating meets the applicable VOC limit specified in Table 1 of Regulation .05 of this chapter and the other provisions of this chapter:

  (1) Aluminum roof coatings;

  (2) Basement specialty coatings;

  (3) Concrete/masonry sealers;

  (4) Conjugated oil varnish;

  (5) Driveway sealers;

  (6) Reactive penetrating sealer;

  (7) ) Reactive penetrating carbonate stone sealers;

  (8) Stone consolidant;

  (9) Tub and tile refinishing coating;

  (10) Waterproofing membranes;

  (11) Wood coatings; and

  (12) Zinc-rich primers.

#### Regulation .05 VOC Content Limits.

*COMAR 26.11.39.05*

Table 1. VOC Content Limits for Architectural and Industrial Maintenance Coatings.

Coating Category
            VOC Content Limit (grams per liter)
          
        
        
          
            Flat coatings
            50
          
          
            Non-flat coatings
            100
          
          
            Non-flat-high gloss coatings
            150
          
          
            Specialty coatings:
            
          
          
            Aluminum roof coatings
            450
          
          
            Basement specialty coatings
            400
          
          
            Bituminous roof coatings
            270
          
          
            Bituminous roof primers
            350
          
          
            Bond breakers
            350
          
          
            Calcimine recoater
            475
          
          
            Concrete curing compounds
            350
          
          
            Concrete/masonry sealers
            100
          
          
            Concrete surface retarders
            780
          
          
            Conjugated oil varnish
            450
          
          
            Conversion varnish
            725
          
          
            Driveway sealers
            50
          
          
            Dry fog coatings
            150
          
          
            Faux finishing coatings
            350
          
          
            Fire-resistive coatings
            350
          
          
            Floor coatings
            100
          
          
            Form-release coatings
            250
          
          
            Graphic arts coatings (Sign paints)
            500
          
          
            High-temperature coatings
            420
          
          
            Impacted immersion coatings
            780
          
          
            Industrial maintenance coatings
            250
          
          
            Low-solids coatings
            120
          
          
            Magnesite cement coatings
            450
          
          
            Mastic texture coatings
            100
          
          
            Metallic pigmented coatings
            500
          
          
            Multi-color coatings
            250
          
          
            Nuclear coatings
            450
          
          
            Pre-treatment wash primers
            420
          
          
            Primers, sealers, and undercoaters
            100
          
          
            Reactive penetrating sealers
            350
          
          
            Reactive penetrating carbonate stone sealers
            500
          
          
            Recycled coatings
            250
          
          
            Roof coatings
            250
          
          
            Rust preventative coatings
            250
          
          
            Shellacs:
            
          
          
            Clear
            730
          
          
            Opaque
            550
          
          
            Specialty primers, sealers, and undercoaters
            100
          
          
            Stains
            250
          
          
            Stone consolidant
            450
          
          
            Swimming pool coatings
            340
          
          
            Thermoplastic rubber coatings and mastic
            550
          
          
            Traffic marking coatings
            100
          
          
            Tub and tile refinish coatings
            420
          
          
            Waterproofing membranes
            250
          
          
            Wood coatings
            275
          
          
            Wood preservatives
            350
          
          
            Zinc-rich primers
            340

#### Regulation .06 Container Labeling Requirements.

*COMAR 26.11.39.06*

A. A person who manufactures an architectural coating subject to this chapter shall display the information listed in this regulation on the coating container or container label in which the coating is sold or distributed.

B. Date Code.

  (1) The date the coating was manufactured, or a date code representing the date of manufacture, shall be indicated on the label, lid, or bottom of the container.

  (2) If the manufacturer uses a date code for a coating, the manufacturer shall file an explanation of each code with the Department.

C. Thinning Recommendations.

  (1) A statement of the manufacturer’s recommendation regarding thinning of the coating shall be indicated on the label or lid of the container.

  (2) This requirement does not apply to the thinning of architectural coatings with water.

  (3) If thinning of the coating before use is not necessary, the recommendation shall specify that the coating is to be applied without thinning.

D. VOC Content.

  (1) A container of a coating subject to this chapter shall display one of the following values in grams of VOC per liter of coating:

    (a) Maximum VOC content as determined from all potential product formulations;

    (b) VOC content as determined from actual formulation data; or

    (c) VOC content as determined using the procedures specified in Regulation .08 of this chapter.

  (2) If the manufacturer does not recommend thinning, the container shall display the VOC content, as supplied.

  (3) If the manufacturer recommends thinning, the container shall display the VOC content including the maximum amount of thinning solvent recommended by the manufacturer.

  (4) If the coating is a multi-component product, the container shall display the VOC content as mixed or catalyzed.

  (5) If the coating contains silanes, siloxanes, or other ingredient that generate ethanol or other VOCs during the curing process, the VOC content shall include the VOCs emitted during curing.

  (6) The VOC content shall be determined using the procedures in Regulation .08 of this chapter.

E. Faux Finishing Coatings. The labels of all clear topcoat faux finishing coatings shall prominently display the statement “This product can only be sold or used as part of a Faux Finishing coating system.”

F. Industrial Maintenance Coatings. A manufacturer of an industrial maintenance coating shall prominently display at least one of the following statements:

  (1) “For industrial use only”;

  (2) “For professional use only”;

  (3) “Not for residential use”; or

  (4) “Not intended for residential use”.

G. Rust Preventive Coatings. The labels of a rust preventive coating shall prominently display the statement “For Metal Substrates Only”.

H. Specialty Primers, Sealers, and Undercoaters. The label of a specialty primer, sealer, or undercoater shall, as applicable, prominently display one or more of the following descriptions:

  (1) “For blocking stains”;

  (2) “For fire-damaged substrates”;

  (3) “For smoke-damaged substrates”; or

  (4) “For water-damaged substrates”;

I. Non-Flat—High-Gloss Coatings. The label of a non-flat—high-gloss coating shall prominently display the words “High Gloss”.

J. Reactive Penetrating Sealers. The labels of all reactive penetrating sealers shall prominently display the statement “Reactive Penetrating Sealer”.

K. Reactive Penetrating Carbonate Stone Sealers. The labels of all reactive penetrating carbonate stone sealers shall prominently display the statement “Reactive Penetrating Carbonate Stone Sealers”.

L. Stone Consolidants. The labels of all stone consolidants shall prominently display the statement “Stone Consolidants—For Professional Use Only”.

M. Wood Coatings. The labels of all wood coatings shall prominently display the statement “For Wood Substrates Only”.

N. Zinc Rich Primers. The labels of all zinc rich primers shall prominently display one or more of the following statements:

  (1) “For professional use only”;

  (2) “For industrial use only”;

  (3) “Not for residential use”; or

  (4) “Not intended for residential use”.

#### Regulation .07 Reporting Requirements.

*COMAR 26.11.39.07*

A person who manufactures a coating subject to this chapter shall provide within 180 days of written request, data concerning the distribution and sales of architectural coatings, including:

A. The name and mailing address of the manufacturer;

B. The name, address, and telephone number of a contact person;

C. The name of the coating product as it appears on the label;

D. The application coating category;

E. A description whether the product is marketed for interior or exterior use or both;

F. The number of gallons sold in the State in containers greater than 1 liter and equal to or less than 1 liter;

G. The VOC actual content and VOC regulatory content in grams per liter.

  (1) If thinning is recommended, list the VOC actual content and VOC regulatory content after maximum recommended thinning.

  (2) If containers less than 1 liter have a different VOC content than containers greater than 1 liter, list separately.

  (3) If the coating is a multi-component product, provide the VOC content as mixed or catalyzed.

H. The names and CAS numbers of the VOC constituents in the product;

I. The names and CAS numbers of any compounds in the product specifically exempted from the VOC definition under COMAR 26.11.01.01B(53);

J. A description whether the product is marketed as solventborne, waterborne, or 100 percent solids;

K. A description of resin or binder in the product;

L. A description whether the coating is a single-component or multi-component product;

M. The density of the product in pounds per gallon;

N. The percent by weight of solids, all volatile materials, water, and any compounds in the product specifically exempted from the VOC definition under COMAR 26.11.01.01B(53); and

O. The percent by volume of solids, water, and any compounds in the product specifically exempted from the VOC definition under COMAR 26.11.01.01B(53).

#### Regulation .08 Compliance Procedures.

*COMAR 26.11.39.08*

A. Calculation of VOC Content.

  (1) For the purpose of determining compliance with the VOC content limits in Table 1 of Regulation .05 of this chapter, the VOC content of a coating shall be determined using the following procedures, as applicable:

    (a) With the exception of low solids coatings, determine the VOC content (regulatory) in grams of VOC per liter of coating thinned to the manufacturer’s maximum recommendation, excluding the volume of any water and exempt compounds using the following equation:

    (b) For low solids coatings, determine the VOC content (actual) in units of grams of VOC per liter of coating thinned to the manufacturer’s maximum recommendation, including the volume of any water and exempt compounds using the following equation:

  (2) The VOC content of a tint base shall be determined without colorant that is added after the tint base is manufactured.

  (3) If the manufacturer does not recommend thinning, the VOC content shall be calculated for the product as supplied.

  (4) If the manufacturer recommends thinning, the VOC content shall be calculated including the maximum amount of thinning solvent recommended by manufacturer.

  (5) If the coating is a multi-component product, the VOC content shall be calculated as mixed or catalyzed.

  (6) If the coating contains silanes, siloxanes, or other ingredients that generate ethanol or other VOCs during the curing process, the VOC content shall include the VOCs emitted during curing.

B. VOC Content of Coatings.

  (1) Except as provided in §C of this regulation, a person shall determine the VOC content of a coating using one of the test methods listed in Regulation .02 of this chapter, or an alternative method approved by the Department.

  (2) If there are any inconsistencies between the results of EPA Method 24 test and any other means for determining VOC content, the EPA Method 24 test results will govern.

  (3) The exempt compounds content shall be determined by one of the test methods listed in Regulation .02 of the chapter, as applicable.

C. Methacrylate Traffic Coating Markings. Analysis of methacrylate multicomponent coatings used as traffic marking coatings shall be conducted according to a modification of U.S. EPA Method 24 (40 CFR 59, subpart D, Appendix A). This method has not been approved for methacrylate multicomponent coatings used for other purposes than as traffic marking coatings or for other classes of multicomponent coatings.

### Chapter 40 — NO

**Authority:** Environment Article, §§1-404, 2-103, and 2-301—2-303, Annotated Code of Maryland

**Administrative History:** Effective date: April 23, 2018 (45:8 Md. R. 422)

**Administrative History:** Regulation .02A, C amended effective April 15, 2024 (50:7 Md. R. 334)

**Administrative History:** Regulation .03B amended effective April 15, 2024 (50:7 Md. R. 334)

#### Regulation .01 Definitions.

*COMAR 26.11.40.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Boiler” means an enclosed fossil or other fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam, or other medium.

  (2) “Combined cycle system” means a system comprised of one or more combustion turbines, heat recovery steam generators, and steam turbines configured to improve overall efficiency of electricity generation or steam production.

  (3) “Combustion turbine” means an enclosed fossil or other fuel-fired device:

    (a) That is comprised of a compressor, a combustor, and a turbine; and

    (b) In which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine.

  (4) “Fossil fuel” means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.

  (5) “Fossil fuel-fired” means:

    (a) The combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during any year; or

    (b) For a new unit, the combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel is projected to comprise more than 50 percent of the annual heat input on a Btu basis during the year that the new unit begins combusting fossil fuel.

  (6) “New unit” means:

    (a) A non-trading large NOx unit that is installed after May 1, 2018; or

    (b) An existing unit that is modified to meet the definition of §B(8) of this regulation.

  (7) “New unit set aside” means remaining NOx ozone season emission tons available for new units.

  (8) “Non-trading large NOx unit” means a fossil-fuel fired stationary boiler, combustion turbine, or combined cycle system unit with;

    (a) A maximum design heat input greater than 250 mmBtu per hour; or

    (b) A name plate capacity greater than 25.0 MW.

  (9) “Ozone season” means May 1 through September 30 of any calendar year.

#### Regulation .02 Applicability.

*COMAR 26.11.40.02*

A. The owner or operator of a non-trading large NOx unit, that is not a unit subject to a federal trading program for ozone season emissions of NOx established under 40 CFR Part 97 to address interstate transport of ozone and NOx in accordance with 40 CFR 52.38(b), or a state trading program for ozone season emissions of NOx approved by the EPA Administrator as meeting the requirements of 40 CFR 52.38(b), shall comply with the ozone season NOx emission limitation, monitoring, record-keeping, and reporting requirements for ozone season emissions of NOx set forth in this chapter.

B. The requirements of this chapter apply to a person who owns or operates a non-trading large NOx unit located at the affected sources in §C of this regulation.

C. Affected Sources and Units.

  (1) American Sugar Unit No. C6;

  (2) Cove Point LNG Units No. Frame 5-1 (Turbine S009), Frame 5-2 (Turbine S010), Frame 7-A, Frame 7-B, Aux A and Aux B;

  (3) National Institutes of Health Unit 5-1156; and

  (4) A person who owns or operates a new unit subject to this chapter.

#### Regulation .03 NO

*COMAR 26.11.40.03*

A. The total combined NOx ozone season emissions for all non-trading large NOx units subject to this chapter may not exceed 1013 tons in accordance with the 40 CFR Part 97, Subpart E, Appendix C.

B. NOx Ozone Season Emission Caps.

  (1) The total combined ozone season NOx emissions from all the affected units at an affected source as identified in Regulation .02C of this chapter may not exceed the NOx ozone season emission caps in §B(2) of this regulation.

  (2) Table — NOx Ozone Season Emission Caps.

C. NOx ozone season emission caps for new units shall be determined by the Department from available tonnage allocated to New Unit Set Aside under §B(2) of this regulation.

#### Regulation .04 Monitoring and Reporting Requirements.

*COMAR 26.11.40.04*

A. For non-trading large NOx units subject to this chapter, the owner or operator shall:

  (1) Continuously monitor NOx emissions with a CEM system in accordance with 40 CFR Part 75, Subpart H and 40 CFR §51.121(i)(4); and

  (2) Maintain records and submit reports regarding NOx emissions in accordance with 40 CFR Part 75.

B. The owner or operator of a non-trading large NOx unit subject to this regulation shall include emissions data obtained from a CEM system pursuant to §A of this regulation in the CEM quarterly reports submitted to the Department pursuant to COMAR 26.11.01.11E(2).

### Chapter 41 — Control of Methane Emissions from the Natural Gas Industry

**Authority:** Environment Article, §§1-404, 2-103, 2-1202, and 2-1205, Annotated Code of Maryland

**Administrative History:** Effective date: November 16, 2020 (47:23 Md. R. 978)

#### Regulation .01 Definitions.

*COMAR 26.11.41.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Affected facilities” means any one of the following facilities:

    (a) Cove Point Liquefied Natural Gas Facility;

    (b) Myersville Natural Gas Compressor Station;

    (c) Accident Natural Gas Compressor Station and Storage;

    (d) Rutledge Natural Gas Compressor Station;

    (e) Ellicott City Natural Gas Compressor Station; and

    (f) Any new, modified, or reconstructed natural gas compressor station, natural gas underground storage facility, or liquefied natural gas facility.

  (2) “Audio, visual, and olfactory inspection” means sensory monitoring to detect natural gas leaks utilizing a human ear, eyes, and nose.

  (3) Blowdown.

    (a) “Blowdown” means the release of pressurized natural gas from a station, equipment, or pipelines into the atmosphere conducted with the intent to lower the pressure in a vessel or pipeline.

    (b) “Blowdown” does not include natural gas pneumatics emissions, fugitive components emissions, or compressor seal leakage.

  (4) “Bubble test” means the alternative screening procedure as described at EPA Method 21 (40 CFR 60, Appendix A-7, §8.3.3).

  (5) “Component” means a valve, fitting, flange, threaded-connection, process drain, stuffing box, pressure-vacuum valve, pressure-relief device, pipes, seal fluid system, diaphragm, hatch, sight-glass, meter, open-ended line, well casing, natural gas powered pneumatic device, natural gas powered pneumatic pump, reciprocating compressor rod packing/seal, metal to metal joint or seal of nonwelded connection separated by a compression gasket, screwed thread (with or without thread sealing compound), metal to metal compression, or fluid barrier through which natural gas or liquid can escape to the atmosphere.

  (6) “Continuous bleed” means the continuous venting of natural gas from a gas-powered pneumatic device to the atmosphere.

  (7) “Difficult-to-monitor” means fugitive emissions components that cannot be monitored for natural gas leakage without the monitoring personnel needing specialized equipment to reach components above the grade.

  (8) “Direct measurement” means use of high volume sampling, calibrated bagging, a calibrated flow measuring instrument, or a temporary meter.

  (9) “Fuel gas system” means components and equipment that collect and transfer natural gas to be used as a fuel source to on-site natural gas-powered equipment other than a vapor control device.

  (10) Fugitive Emissions Component.

    (a) “Fugitive emission component” means any component that has the potential to emit fugitive emissions of natural gas, including but not limited to valves, connectors, pressure relief devices, open-ended lines, flanges, covers, and vapor collection systems.

    (b) “Fugitive emission component” does not include devices that vent as a part of normal operations, such as natural gas-driven pneumatic devices or annulus vents, insofar as the natural gas discharged from the device’s vent is not considered a fugitive emission.

    (c) “Fugitive emission component” includes thief hatches or other openings on a storage vessel, compressor, instrument, natural gas-powered pneumatic device, or meter that are not venting.

  (11) “Intermittent bleed” means a pneumatic controller that is designed to vent noncontinuously.

  (12) “Leak detection and repair” or “LDAR” means the inspection of fugitive emissions components to detect leaks of total methane and the repair of components with leaks above the standards specified in this chapter and within the time frames specified in this chapter.

  (13) “Leak or fugitive leak” means any visible emission from a fugitive emissions component observed by optical gas imaging or an instrument reading of 500 ppm or greater of methane using U.S. EPA Method 21 (40 CFR 60, Appendix A-7) or any emissions discovered from a fugitive emissions component observed using an auditory, visual, and olfactory inspection.

  (14) “Liquefied natural gas” or “LNG” means natural gas or synthetic gas having methane as its major constituent which has been changed to a liquid.

  (15) “LNG facility” means a pipeline facility that is used for liquefying natural gas or synthetic gas or transferring, storing, or vaporizing liquefied natural gas, and includes all components and stationary equipment within the fence line.

  (16) “Natural gas” means a naturally occurring mixture or process derivative of hydrocarbon and nonhydrocarbon gases, which has methane as its major constituent.

  (17) “Natural gas compressor station” means all equipment and components located within a facility fence line associated with moving natural gas from production fields or natural gas processing plants through natural gas transmission pipelines, or within natural gas storage fields.

  (18) “Natural gas storage well” means a well located and used in a natural gas storage reservoir for injection or withdrawal purposes, or an observation well.

  (19) “Natural gas underground storage” means all equipment and components associated with the temporary subsurface storage of natural gas in depleted crude oil or natural gas reservoirs or salt dome caverns, not including gas disposal wells.

  (20) “Observation well” means a well used to monitor the operational integrity and conditions in a natural gas storage reservoir, the reservoir protective area, or the strata above or below the gas storage horizon.

  (21) “Optical gas imaging” or “OGI” means an instrument that makes emissions visible to the naked eye that may otherwise be invisible.

  (22) “Pneumatic device” means an automation device that uses natural gas or compressed air to control a process.

  (23) “Process gas system” means components and equipment that collect and transfer the natural gas to be used through the intended process of the facility, including storage, transmission, or liquefaction.

  (24) “Reciprocating natural gas compressor” means equipment that increases the pressure of natural gas by positive displacement of a piston in a compression cylinder and is powered by an internal combustion engine or electric motor with a horsepower rating designated by the manufacturer.

  (25) “Reciprocating natural gas compressor rod packing” means a seal composed of a series of flexible rings in machined metal cups that fit around the reciprocating compressor piston rod to create a seal limiting the amount of compressed natural gas that leaks into the atmosphere.

  (26) “Reciprocating natural gas compressor seal” means any device or mechanism used to limit the amount of natural gas that leaks from a compression cylinder into the atmosphere.

  (27) “Successful repair” means tightening, adjusting, or replacing equipment or a component for the purpose of stopping or reducing fugitive leaks below the minimum leak threshold or emission flow rate standard specified in this chapter.

  (28) “Unsafe-to-monitor” means fugitive emissions components that cannot be monitored for natural gas leakage because monitoring personnel would be exposed to immediate danger while conducting a monitoring survey.

  (29) “Vapor collection system” means equipment and components installed on pressure vessels, separators, tanks, sumps, piping, connections, reciprocating compressors, natural gas-powered pneumatic devices, and flow-inducing devices used to collect and route emission vapors to a processing gas system, fuel gas system, or vapor control device.

  (30) “Vapor control device” means destructive or nondestructive equipment used to control otherwise vented emissions.

#### Regulation .02 Applicability.

*COMAR 26.11.41.02*

The provisions of this chapter apply to an affected facility as that term is defined in Regulation .01B of this chapter.

#### Regulation .03 Leak Detection and Repair Requirements.

*COMAR 26.11.41.03*

A. Affected facilities that are natural gas compressor stations or natural gas underground storage facilities and that use natural gas-powered equipment to compress natural gas shall comply with the following leak detection and repair requirements.

  (1) Owners and operators of affected facilities subject to this section shall develop and submit to the Department an initial methane emissions monitoring plan that includes a technique for determining fugitive emissions (for example, EPA Method 21 at 40 CFR part 60, appendix A–7, or optical gas imaging).

  (2) If an affected facility uses optical gas imaging for leak detection, the following information shall be included in the initial methane emissions monitoring plan:

    (a) A list of the unsafe-to-monitor components;

    (b) Procedures and time frames for identifying and repairing fugitive emissions components;

    (c) A defined observation path throughout the site to confirm all components can be viewed and recorded;

    (d) Manufacturer and model number of fugitive emissions detection equipment to be used; and

    (e) Equipment specifications and procedures as specified in 40 CFR §60.5397a(c)(7), as published in July 2017.

  (3) If an affected facility uses EPA Method 21 (40 CFR 60, Appendix A-7) for leak detection, the following information shall be included in the initial methane emissions monitoring plan:

    (a) A list of all fugitive emission components, difficult-to-monitor components, and unsafe-to-monitor components at an affected facility;

    (b) Procedures and time frames for identifying and repairing fugitive emission components; and

    (c) Equipment specifications and procedures as specified in 40 CFR §60.5397a(c)(8), as published in July 2017.

  (4) Each difficult-to-monitor and unsafe-to-monitor component shall be identified in the written initial methane monitoring plan explaining the location and why the fugitive emissions components are difficult-to-monitor and unsafe-to-monitor.

  (5) Initial Methane Emissions Monitoring Plan Submission.

    (a) Except for a new natural gas compressor station or natural gas underground storage facility, owners and operators of the affected facilities subject to this section shall submit the initial methane emissions monitoring plan required in §A(1)—(4) of this regulation to the Department within 90 days of the adoption of this regulation.

    (b) Owners and operators of a new natural gas compressor station or natural gas underground storage facility subject to this section shall submit the initial methane emissions monitoring plan required in §A(1)—(4) of this regulation to the Department within 60 days of startup.

  (6) Owners and operators of affected facilities that modify or reconstruct a natural gas compressor station or underground storage facility shall submit an initial monitoring plan with the elements in §A(1)—(4) of this regulation within 90 days of the facility startup operation for each new collection of fugitive emissions components at the modified or reconstructed compressor station or underground storage facility.

  (7) Owners or operators of affected facilities subject to this section shall conduct an audio, visual, and olfactory inspection of all fugitive emission components for leaks or indications of leaks at least once per calendar week except for:

    (a) Unsafe-to-monitor components; and

    (b) Natural gas storage wells and observations, which shall conduct audio, visual, and olfactory inspections according to §A(10) of this regulation.

  (8) Leak Monitoring Survey.

    (a) Owners and operators of affected facilities shall follow the initial monitoring methane plan and shall inspect all fugitive emission components, except for unsafe-to-monitor components, for leaks using OGI or EPA Method 21 within 180 days of the adoption of this chapter and quarterly thereafter.

    (b) Owners and operators of affected facilities that install any new, modified, or reconstructed natural gas compressor station or underground storage facility that uses natural gas-powered equipment to compress natural gas shall meet the requirements of §A(8)(a) of this regulation within 180 days of the startup of the facility’s operations.

    (c) At least annually, all difficult-to-monitor fugitive emissions components shall be inspected for leaks using an OGI camera.

  (9) Repair Requirements.

    (a) Any leaking fugitive emissions component identified during a leak monitoring survey or audio, visual, and olfactory inspection shall be successfully repaired, replaced, or removed from service as soon as practicable, but no later than 30 calendar days after leak detection.

    (b) Fugitive Emissions Component Resurvey.

      (i) Each repaired or replaced fugitive emissions component shall be resurveyed within 30 days after being repaired or replaced using either OGI or EPA Method 21 (40 CFR 60, Appendix A-7).

      (ii) Owners and operators of facilities subject to this section that use EPA Method 21 (40 CFR 60, Appendix A-7) to resurvey the repaired or replaced fugitive emissions component shall consider the fugitive emissions component repaired when the EPA Method 21 (40 CFR 60, Appendix A-7) instrument indicates a concentration of less than 500 ppm of methane or when no soap bubbles are observed during a bubble test.

      (iii) Owners and operators of affected facilities subject to this section that use OGI to resurvey the repaired or replaced fugitive emissions component shall consider the fugitive emissions component repaired when the OGI instrument shows no indication of visible emissions or when no soap bubbles are observed during a bubble test.

    (c) A delay of repair may occur when, upon request, the owner or operator provides documentation to the Department that supports the following:

      (i) The parts or equipment required to make necessary repairs will take longer than 30 days to be ordered and delivered, but the repair may not exceed 1 year;

      (ii) The repair is unsafe to perform during the operation of the unit; or

      (iii) The repair requires a blowdown or facility shutdown in order to complete.

    (d) Leaking fugitive emission components awaiting repair or replacement under a delay of repair shall be clearly marked or identified in the facility’s records.

    (e) Leaking fugitive emission components under a delay of repair according to §A(9)(c)(i) of this regulation shall:

      (i) Be repaired or replaced within 7 days after the owner or operator receives parts or equipment; or

      (ii) Be repaired or replaced at the next vent or compressor station blowdown if the owner or operator has identified this fugitive emission component as needing a vent or compressor station blowdown.

    (f) Fugitive emission components under a delay of repair according to §A(9)(c)(ii) and (iii) of this regulation shall be repaired or replaced within 1 year, at the next vent blowdown or facility shutdown, whichever occurs first.

    (g) If a repair of a leak cannot be successfully completed according to this subsection, the owner or operator of the affected facility shall prepare a plan, for Department approval, that includes:

      (i) An explanation of the technical difficulty;

      (ii) A timeline to successfully repair the fugitive emission components;

      (iii) A calculation of the additional methane that is expected to be released while on delay of repair; and

      (iv) Upon written request from the Department, any other information that the Department determines is necessary to evaluate the plan.

    (h) The owner or operator of the affected facility shall submit any plan required under §A(9)(g) of this regulation to the Department within 30 days from identifying the leak.

  (10) Natural Gas Storage Field Inspections.

    (a) Owners and operators of natural gas underground storage facilities shall conduct an audio, visual, and olfactory inspection of every natural gas storage well and observation well in the natural gas storage field at least once each month.

    (b) For each inspection according to §A(10)(a) of this regulation, owners and operators shall record:

      (i) The well-head pressure or water level measurement, as appropriate;

      (ii) The open flow on the annulus of the production casing or the annulus pressure if the annulus is shut in;

      (iii) A measurement of gas escaping the well if there is evidence of a gas leak; and

      (iv) Evidence of progressive corrosion, rusting, or other signs of equipment deterioration.

    (c) For each natural gas storage well with emissions that exceed 1,440 cubic feet per day, owners and operators shall:

      (i) Notify the Department within 1 business day of discovering the emission rate exceedance; and

      (ii) File a written report within 10 days which shall include an explanation of the problem and corrective action taken or planned.

    (d) For each audio, visual, and olfactory inspection that detects a leaking fugitive emission component, the owner and operator shall comply with the repair requirements specified in §A(9) of this regulation, as applicable.

B. Affected facilities that are natural gas compressor stations and natural gas underground storage facilities, that exclusively use electric-powered equipment to compress natural gas, shall comply with the following leak detection and repair requirements.

  (1) Owners and operators of facilities in this section shall meet the requirements of §A(1)—(6), (9), and (10) of this regulation.

  (2) Except for unsafe-to-monitor components, owners or operators of facilities in this section shall conduct an audio, visual, and olfactory inspection of all fugitive emission components for leaks or indications of leaks at least once per calendar month.

  (3) Leak Monitoring Survey.

    (a) Except for unsafe-to-monitor components, owners and operators of affected facilities subject to this section shall inspect all fugitive emission components, including difficult-to-monitor components, for leaks using OGI or EPA Method 21 (40 CFR 60, Appendix A-7) within 180 days of the adoption of this chapter and annually thereafter.

    (b) Owners and operators of affected facilities that install any new, modified, or reconstructed natural gas compressor station or underground storage facility that uses electric-powered equipment to compress natural gas shall meet the requirements of §B(3)(a) of this regulation within 180 days of the startup of the facility’s operations.

C. Cove Point Liquefied Natural Gas facility shall comply with:

  (1) The leak detection and repair requirements as specified by the Climate Action Plan, which is defined, prepared, and approved under COMAR 26.09.02.06.B—E; and

  (2) The leak detection and repair plan defined and approved under the Certificate of Public Convenience and Necessity, issued by the Maryland Public Service Commission on May 30, 2014, Order No. 86372, Case No. 9318, as amended on February 6, 2018, with Order No. 88565, and Errata on February 23, 2018, Order No. 88565, as amended.

D. Any new liquefied natural gas facility that begins operations or repairs after the effective date of this chapter shall comply with §A of this regulation.

E. If an owner requests approval, the Department may approve a new technology or alternative practice to identify leaking fugitive emissions components as an equivalent substitution for the requirements in §A or B of this regulation.

#### Regulation .04 Natural Gas-Powered Pneumatic Devices Methane Emission Control Requirements.

*COMAR 26.11.41.04*

A. Beginning January 1, 2021, each continuous and intermittent bleed natural gas-powered pneumatic device shall comply with the leak detection and repair requirements specified in Regulation .03 of this chapter, as applicable, when the device is idle and not controlling.

B. By January 1, 2022, continuous bleed natural gas-powered pneumatic devices shall not vent natural gas at a rate greater than 6 standard cubic feet per hour.

C. By January 1, 2023, all continuous bleed natural gas-powered pneumatic device shall be converted to use compressed air or electricity to operate unless an exemption is provided in §D of this regulation.

D. Exemption. Continuous bleed natural gas-powered pneumatic devices may be used if:

  (1) The owner and operator collect all vented natural gas from the pneumatic device with the use of a vapor collection system according to Regulation .06 of this chapter; or

  (2) The owner and operator submit justification for approval to the Department which demonstrates the need for the continuous bleed pneumatic device for safety or process purposes, as follows:

    (a) Each continuous bleed pneumatic device that is approved for use shall be tagged with the month and year of installation, reconstruction, or modification and shall also have a permanent tag that identifies the natural gas flow rate as less than or equal to 6 standard cubic feet per hour; and

    (b) The owner and operator shall:

      (i) Inspect each continuous bleed pneumatic device on a monthly basis;

      (ii) Perform necessary maintenance (including cleaning, tuning, and repairing leaking gaskets, tubing fittings, and seals and tuning to operate over a broader range of proportional band to eliminate unnecessary valve positioners);

      (iii) Maintain the pneumatic device according to manufacturer specifications to ensure that the device’s natural gas emissions are minimized;

      (iv) By April 1, test each pneumatic device annually using a direct measurement method (high volume sampling, bagging, calibrated flow measuring instrument, etc.); and

      (v) Successfully repair any device with a measured emissions flow rate that exceeds 6 standard cubic feet per hour within 14 calendar days from the date of the exceedance.

#### Regulation .05 Reciprocating Natural Gas Compressor Methane Emission Control Requirements.

*COMAR 26.11.41.05*

A. All reciprocating natural gas compressor components at an affected facility shall comply with the leak detection and repair requirements in Regulation .03 of this chapter where applicable.

B. Control Measures for Reciprocating Natural Gas Compressor.

  (1) By January 1, 2021, compressor vent stacks used to vent rod packing/seal emissions shall be controlled with the use of a vapor collection system as specified in Regulation .06 of this chapter; or

  (2) By April 1, the reciprocating natural gas compressor rod packing/seal emission flow rate through the rod packing/seal vent stack shall be measured annually through direct measurement (high volume sampling, bagging, calibrated flow measuring instrument, etc.) while the compressor is operating at normal operating temperature.

    (a) Direct measurements shall use one of the following methods:

      (i) Vent stacks shall be equipped with a meter or instrumentation to measure the rod packing or seal emissions flow rate; or

      (ii) Vent stacks shall be equipped with a clearly identified access port to measure individual or combined rod packing or seal emission flow rates.

    (b) If the measurement is not obtained because the compressor is not operating for the scheduled test date, testing shall be conducted within 7 calendar days of resumed operation.

  (3) A reciprocating natural gas compressor with a rod packing/seal with a measured emission flow rate that exceeds 1 standard cubic foot per minute, or a combined rod packing or seal emission flow rate that exceeds the number of compression cylinders multiplied by 1 standard cubic foot per minute shall:

    (a) Be successfully repaired or replaced within 30 calendar days from the date of the exceedance; or

    (b) Conduct natural gas compressor rod packing/seal emission flow rate measurements every 6 months or when the compressor resumes operation, whichever is later.

  (4) A reciprocating natural gas compressor with a measured emission flow rate that exceeds 2 standard cubic feet per minute, or a combined rod packing or seal emission flow rate that exceeds the number of compression cylinders multiplied by 2 standard cubic feet per minute, shall be successfully repaired or replaced within 30 calendar days from the date of the exceedance.

C. Delay of Repair for Reciprocating Natural Gas Compressor.

  (1) A delay of repair may occur provided the owner or operator provides documentation, upon request from the Department, that the delivery of parts or equipment required to make necessary repairs will take more than 30 days from the last emission flow rate measurement and that the parts have been ordered.

  (2) A delay of repair to obtain parts or equipment may not exceed 60 days from the date of the last emission flow rate measurement unless the owner or operator notifies the Department, in writing, of the extended delay and provides an estimated time by which the repairs will be completed.

  (3) A reciprocating natural gas compressor with a rod packing/seal emission flow rate measured above the standard specified in §B(4) of this regulation, and which has leaking parts deemed unsafe to monitor or requiring a facility shutdown, shall be successfully repaired by the end of the next planned process shutdown or within 12 months from the date of the flow rate measurement, whichever is sooner.

#### Regulation .06 Vapor Collection System and Vapor Control Devices.

*COMAR 26.11.41.06*

A. Owners or operators of affected facilities that utilize vapor collection systems and vapor control device to comply with this chapter shall follow the requirements as specified in §§B and C of this regulation.

B. If a vapor collection system does not route all gases, vapors, and fumes to either a process gas system or a fuel gas system by January 1, 2021, a vapor control device shall be installed which meets the requirements of §E of this regulation.

C. The vapor collection system shall have no detectable emissions, as determined using auditory, visual, and olfactory inspections as specified in Regulation .03A(7) of this chapter.

D. The vapor collection system shall comply with the leak monitoring survey and repair requirements as specified in Regulation .03 of this chapter, where applicable.

E. Vapor control devices shall meet one of the following requirements:

  (1) A nondestructive vapor control device manufacturer-designed to achieve at least 95 percent vapor control efficiency of methane emissions and may not result in emissions of nitrogen oxides (NOx); or

  (2) A destructive vapor control device manufacturer-designed to achieve at least 95 percent vapor control efficiency of methane emissions and does not generate more than 15 parts per million volume (ppmv) NOx when measured at 3 percent oxygen; or require the use of supplemental fuel gas, other than gas required for a pilot burner, to operate.

#### Regulation .07 Record-Keeping and Reporting Requirements.

*COMAR 26.11.41.07*

A. Owners or operators of affected facilities shall maintain, submit as described in this section, and make available upon request by the Department a copy of records necessary to verify compliance with the provisions of this chapter, as follows:

  (1) For each leak monitoring survey and audio, visual, and olfactory inspection conducted according to Regulation .03 of this chapter, owners and operators shall:

    (a) Submit a report to the Department within 60 days of each leak monitoring survey with the following information:

      (i) Date of the survey;

      (ii) A list of each fugitive emission and repair;

      (iii) Any deviations from the initial methane monitoring plan or a statement that there were no deviations from the initial methane monitoring plan;

      (iv) Number and type of components for which fugitive emissions were detected;

      (v) Number and type of difficult-to-monitor fugitive emission components monitored;

      (vi) Instrument reading of each fugitive emissions component that requires repair when EPA Method 21 (40 CFR 60, Appendix A-7) is used for monitoring;

      (vii) Number and type of fugitive emissions components that were not repaired;

      (viii) Number and type of fugitive emission components placed on delay of repair and explanation for each delay of repair;

      (ix) The date of successful repair of the fugitive emissions component; and

      (x) Instrumentation used to resurvey a repaired fugitive emissions component that could not be repaired during the initial fugitive emissions finding;

    (b) Maintain, for a minimum of 5 years, record of each leak monitoring survey along with the following information:

      (i) Reports submitted according to §A(1)(a) of this regulation;

      (ii) Beginning and end time of the survey;

      (iii) Name of operator(s) performing survey;

      (iv) Monitoring instrument used, including the manufacturer, model number, serial number, and calibration documentation;

      (v) When optical gas imaging is used to perform the survey, one or more digital photographs or videos, captured from the optical gas imaging instrument used for conduct of monitoring, of each required monitoring survey being performed;

      (vi) Fugitive emissions component identification when EPA Method 21 (40 CFR 60, Appendix A-7) is used to perform the monitoring survey;

      (vii) Ambient temperature, sky conditions, and maximum wind speed at the time of the survey;

      (viii) Any deviations from the initial methane monitoring plan or a statement that there were no deviations from the initial methane monitoring plan;

      (ix) Proof that parts or equipment required to make necessary repairs, as required by this chapter, have been ordered;

      (x) If a fugitive emissions component is not tagged, a digital photograph or video of each fugitive emissions component that could not be repaired during the leak monitoring survey at the time the fugitive emissions were initially found; and

      (xi) Repair methods applied in each attempt to repair the fugitive emissions components;

    (c) Post a quarterly report summary to a publicly available website of each leak monitoring survey, including the information required in §A(1)(a) of this regulation, 60 days after the leak monitoring survey; and

    (d) Maintain records of audio, visual, and olfactory inspections for at least 5 years from the date of inspection.

  (2) For each natural gas-powered continuous bleed pneumatic device, owners and operators shall:

    (a) Maintain a record of the emission flow rate measurement and report annually beginning April 1, 2021, for at least 5 years from the date of each emissions flow rate measurement;

    (b) Maintain records of the date, location, and manufacturer specifications for each continuous bleed pneumatic device constructed, modified, or reconstructed and report annually beginning April 1, 2021;

    (c) Maintain records of the manufacturer’s specifications indicating that the device is designed such that natural gas bleed rate is less than or equal to 6 standard cubic feet per hour, if applicable;

    (d) Maintain records of deviations in cases where the pneumatic device was not operated in compliance with the requirements specified in Regulation .04 of this chapter and report annually beginning April 1, 2021;

    (e) Maintain purchase orders, work orders, or any in-house or third-party reports produced or provided to the affected facility relating to the device for at least 5 years; and

    (f) Maintain a record of each continuous bleed pneumatic inspection and any corrective or maintenance action taken for at least 5 years.

  (3) For each reciprocating natural gas compressor, owners and operators shall:

    (a) Maintain a record of each rod packing leak concentration measurement found above the minimum leak threshold and report annually beginning April 1, 2021, for at least 5 years from the date of each leak concentration measurement;

    (b) Maintain a record of each rod packing or seal emission flow rate measurement and report annually beginning April 1, 2021, for at least 5 years from the date of each emissions flow rate measurement;

    (c) Maintain a record that documents the date(s) and hours of operation a compressor is operated in order to demonstrate compliance with the rod packing leak concentration or emission flow rate measurement in the event that the compressor is not operating during a scheduled inspection for at least 1 calendar year;

    (d) Maintain records that provide proof that parts or equipment required to make necessary repairs required by this chapter have been ordered;

    (e) Report annually the cumulative number of hours of operation or the number of months since initial startup or the previous reciprocating compressor rod packing replacement, whichever is later, beginning April 1, 2021;

    (f) If applicable, submit a statement that emissions from the rod packing are being routed to applicable vapor control system under Regulation .06 of this chapter;

    (g) Report records of deviations from this chapter that occurred during the reporting period annually, beginning April 1, 2021; and

    (h) Maintain a record of purchase orders, work orders, or any in-house or third-party reports produced or provided to the affected facility necessary to demonstrate compliance with the delay of repair provisions of this chapter for at least 5 years.

B. Blowdown Events and Reports.

  (1) Within 90 days of the effective date of this chapter, affected facilities shall submit a blowdown notification plan to the Department for approval of any blowdown event in excess of 1,000,000 standard cubic feet.

  (2) The blowdown notification plan according to §B(1) of this regulation shall include:

    (a) The notification format (for example, website, email, robocall, text message, social media announcement, etc.) to local authorities, the Department, and interested parties for blowdown emissions in excess of 1,000,000 standard cubic feet;

    (b) A public outreach plan to inform interested parties of the availability to be notified of blowdown events in excess of 1,000,000 standard cubic feet;

    (c) The affected facility’s responsible personnel for blowdown notifications; and

    (d) A sitemap of the facility with clearly marked designated area(s) for blowdown emissions in excess of 1,000,000 standard cubic feet.

  (3) For any blowdown event in excess of 1,000,000 standard cubic feet, affected facilities shall make information publicly available in accordance with the facility’s approved blowdown notification plan, including notification to the Department, at least 7 days prior.

  (4) For any blowdown event in excess of 1,000,000 standard cubic feet that is scheduled less than 7 days prior to the blowdown event, affected facilities shall, as soon as practicable:

    (a) Make information publicly available in accordance with the facility’s approved blowdown notification plan; and

    (b) Provide an explanation to the Department of the reason for the blowdown event.

  (5) For any emergency or unplanned blowdown event in excess of 1,000,000 standard cubic feet, affected facilities shall make information publicly available in accordance with the facility’s approved blowdown notification plan and notify the Department within 1 hour of the emergency or unplanned blowdown event.

  (6) When safety concerns preclude a facility from providing prior notification of an emergency or unplanned blowdown under §B(5) of this regulation, the facility shall send notice to the Department within 24 hours of the blowdown event indicating the reason(s) why prior notice was not possible.

  (7) Affected facilities shall report the following information to the Department of blowdown emissions in excess of 50 cubic feet within the facility’s fence line annually by April 1 of each year:

    (a) Date and type (that is, planned or emergency) of each blowdown event;

    (b) Methane emissions in metric tons released from each blowdown event; and

    (c) Annual methane emissions in metric tons from all blowdown events.

  (8) Methane emissions shall be calculated according to procedures in 40 CFR Part 98, Subpart W, §98.233.

C. Greenhouse Gas Emissions Reporting.

  (1) Owners and operators of affected facilities shall report methane, carbon dioxide, and nitrous oxide mass emissions to the Department annually by April 1 of each year.

  (2) Owners and operators of affected facilities shall follow the procedures for emission calculation, monitoring, quality assurance, missing data, record keeping, and reporting that are specified in 40 CFR Part 98, Subpart C, and 40 CFR Part 98, Subpart W.

  (3) When reporting to the Department, owners and operators of affected facilities shall expand the fugitive emissions reporting requirements of 40 CFR Part 98, Subpart W, to include a Microsoft Excel format list providing calculations summarized by category under 40 CFR §98.232(e)—(h) as applicable.

  (4) The reporting threshold in 40 CFR §§98.2, 98.31 and 98.231 of 25,000 metric tons of CO2 equivalent does not exempt an affected facility from following the requirements of this section.

D. All required reports shall be submitted to the Industrial Compliance Division in written or electronic format and mailed to Maryland Department of the Environment, Air Quality Compliance Program, 1800 Washington Boulevard, 7th Floor, Baltimore, MD 21230, Attention: Industrial Compliance Division.

### Chapter 42 — Control of Methane Emissions from Municipal Solid Waste Landfills

**Authority:** Environment Article, §§1-404, 2-103, 2-301—2-303, 10-102, and 10-103, Annotated Code of Maryland

**Administrative History:** Effective date: June 12, 2023 (50:11 Md. R. 446)

**Administrative History:** Regulation .03B amended effective August 5, 2024 (51: 15 Md. R. 711)

**Administrative History:** Regulation .04B amended effective August 5, 2024 (51: 15 Md. R. 711)

**Administrative History:** Regulation .05 amended effective August 5, 2024 (51: 15 Md. R. 711)

**Administrative History:** Regulation .06B amended effective August 5, 2024 (51: 15 Md. R. 711)

**Administrative History:** Regulation .09 amended effective August 5, 2024 (51: 15 Md. R. 711)

**Administrative History:** Regulation .10C amended effective August 5, 2024 (51: 15 Md. R. 711)

**Administrative History:** Regulation .11D, F amended effective August 5, 2024 (51: 15 Md. R. 711)

#### Regulation .01 Applicability and Exemptions.

*COMAR 26.11.42.01*

A. This chapter applies to a person who owns or operates a municipal solid waste (MSW) landfill that has accepted waste after November 8, 1987.

B. This chapter does not apply to:

  (1) Landfills that are permitted to accept controlled hazardous substances (CHS) as defined in COMAR 26.13.01.03B or are currently regulated under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Chapter 103;

  (2) Landfills that receive only construction and demolition wastes, inert waste, or non-decomposable wastes;

  (3) Closed or inactive MSW landfills with:

    (a) Less than 450,000 tons of waste-in-place; or

    (b) A design capacity of less than 2,750,000 tons (2.5 million megagrams) and 3,260,000 cubic yards (2.5 million cubic meters) that last accepted waste before December 31, 1993; or

  (4) Closed or inactive MSW landfills, or closed or inactive areas of an active MSW landfill, that have commenced installation of solar panels or arrays on or before January 1, 2024 and which meet the following requirements:

    (a) The landfill, or inactive area of an active landfill, was closed or last accepted waste on or before July 17, 2014;

    (b) The landfill, including all active and/or inactive areas combined, has less than 2,750,000 tons (2.5 million megagrams) or 3,260,000 cubic yards (2.5 million cubic meters) of MSW; and

    (c) The request to install solar panels or arrays is approved by the Department in writing based on project specifications and impacts to other requirements under this chapter.

C. Title V Operating Permits.

  (1) The owner or operator of a MSW landfill which is subject to the provisions of this chapter and that has a design capacity equal to or greater than 2,750,000 tons and 3,260,000 cubic yards of MSW shall obtain an operating permit for the landfill in accordance with COMAR 26.11.03.

  (2) When a MSW landfill subject to this section is closed, the owner or operator is no longer subject to the requirement to maintain an operating permit under COMAR 26.11.03 for the landfill if the landfill is not otherwise subject to the requirements of COMAR 26.11.03 and if either of the following conditions are met:

    (a) The landfill was never subject to the requirement to install and operate a gas collection and control system under Regulation .04 of this chapter; or

    (b) The landfill meets the conditions for control system removal specified in Regulation .06A of this chapter.

#### Regulation .02 Incorporation by Reference — Test Methods.

*COMAR 26.11.42.02*

A. In this chapter, the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) EPA Method 2 (40 CFR Part 60, Appendix A-1, Section 10.3, as amended).

  (2) EPA Method 3A (40 CFR Part 60, Appendix A, as amended).

  (3) EPA Method 3C (40 CFR Part 60, Appendix A, as amended).

  (4) EPA Method 10 (40 CFR Part 60, Appendix A, as amended).

  (5) EPA Method 18 (40 CFR Part 60, Appendix A, as amended).

  (6) EPA Method 21 (40 CFR Part 60, Appendix A, as amended).

  (7) EPA Method 25 (40 CFR Part 60, Appendix A, as amended).

  (8) EPA Method 25C (40 CFR Part 60, Appendix A, as amended).

  (9) ASTM D6522-11, “Standard Test Method for Determination of Nitrogen Oxides, Carbon Monoxide, and Oxygen Concentrations in Emissions from Natural Gas-Fired Reciprocating Engines, Combustion Turbines, Boilers, and Process Heaters Using Portable Analyzers, December 1, 2011.

  (10) ASTM D6522-20, “Standard Test Method for Determination of Nitrogen Oxides, Carbon Monoxide, and Oxygen Concentrations in Emissions from Natural Gas-Fired Reciprocating Engines, Combustion Turbines, Boilers, and Process Heaters Using Portable Analyzers, June 1, 2020.

#### Regulation .03 Definitions.

*COMAR 26.11.42.03*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Active MSW landfill” means a MSW landfill in which solid waste is being placed or a MSW landfill that has been constructed at least in part and that is planned to accept waste in the future.

  (2) “Bioreactor” means a landfill or portion of a landfill where any liquid other than leachate (leachate includes landfill gas condensate) is added in a controlled fashion into the waste mass (often in combination with recirculating leachate) to reach a minimum average moisture content of at least 40 percent by weight to accelerate or enhance the anaerobic (without oxygen) biodegradation of the waste.

  (3) “Closed MSW landfill” means a MSW landfill that is no longer accepting solid waste for disposal and has documentation that the closure was conducted in accordance with the applicable statutes, regulations, and local ordinances in effect at the time of closure.

  (4) “Component” means any equipment that is part of the gas collection and control system and that contains landfill gas including, but not limited to:

    (a) Wells;

    (b) Pipes;

    (c) Flanges;

    (d) Fittings;

    (e) Flame arrestors;

    (f) Knock-out drums;

    (g) Sampling ports;

    (h) Blowers;

    (i) Compressors; and

    (j) Connectors.

  (5) Component Leak.

    (a) “Component leak” means the concentration of methane measured one half an inch or less from a component source that equals or exceeds 500 parts per million by volume (ppmv), other than non-repeatable, momentary readings.

    (b) “Component leak” includes measurements from any vault taken within 3 inches above the surface of the vault exposed to the atmosphere.

  (6) “Construction and demolition waste” means waste building materials, packing, and rubble resulting from construction, remodeling, repair, and demolition operations on pavements, houses, commercial buildings, and other structures.

  (7) “Continuous operation” means a gas collection and gas control system that is operated continuously, with the gas collection wells operating under vacuum while maintaining landfill gas flow and the collected landfill gas is processed by a gas control system 24 hours per day.

  (7-1) Controlled MSW Landfill.

    (a) “Controlled MSW landfill” means any MSW landfill at which gas collection and control systems are required as a result of triggering the threshold for:

      (i) The calculated methane generation rate; or

      (ii) The calculated methane generation rate and the concentration of methane.

    (b) “Controlled MSW landfill” is considered to be controlled at the time a gas collection and control system design plan is submitted to the Department in accordance with applicable regulations.

  (8) “Corrective action analysis” means a description of all reasonable interim and long-term measures, if any, that are available, and an explanation of why the selected corrective action(s) is/are the best alternative(s), including, but not limited to consideration of:

    (a) Cost effectiveness;

    (b) Technical feasibility;

    (c) Safety; and

    (d) Secondary impacts.

  (9) “Destruction efficiency” means a measure of the ability of a gas control device to combust, transform, or otherwise prevent emissions of methane from entering the atmosphere.

  (10) “Disposal facility” means all contiguous land and structures, appurtenances, and other improvements used for the disposal of solid waste.

  (11) “Enclosed combustor” means an enclosed flare, steam generating boiler, internal combustion engine, or gas turbine.

  (12) “Energy recovery device” means any combustion device that uses landfill gas to recover energy in the form of steam or electricity, including, but not limited to:

    (a) Gas turbines;

    (b) Internal combustion engines;

    (c) Boilers; and

    (d) Boiler-to-steam turbine systems.

  (13) “Gas collection system” means any system that employs various gas collection wells and connected piping and gas mover equipment, or any system that is a passive collection system.

  (14) “Gas collection and control system” means any system consisting of a gas collection system and a gas control system.

  (15) “Gas control device” means any device used to dispose of or treat collected landfill gas, including, but not limited to:

    (a) Enclosed flares;

    (b) Internal combustion engines;

    (c) Boilers and boiler-to-steam turbine systems;

    (d) Fuel cells; and

    (e) Gas turbines.

  (16) “Gas control system” means any system that disposes of or treats collected landfill gas by one or more of the following methods:

    (a) Combustion;

    (b) Gas treatment for subsequent sale; or

    (c) Sale for processing offsite, including for transportation fuel and injection into the natural gas pipeline.

  (17) “Gas mover equipment” means the equipment (e.g., fan, blower, compressor) used to transport landfill gas through the header system.

  (18) “Inactive area” means a separate area of a MSW landfill in which solid waste is no longer being placed.

  (19) “Inactive MSW landfill” means a MSW landfill that is no longer accepting solid waste for disposal and can subsequently document that solid waste is no longer being placed at the landfill.

  (20) “Landfill gas” means the gases generated by a MSW landfill through the natural process of decomposing organic material or through the chemical reaction of other substances in the municipal solid waste.

  (21) “Landfill surface” means the area of the landfill under which decomposable solid waste has been placed, excluding the working face.

  (22) “Leachate recirculation” means the practice of taking the leachate collected from the landfill and reapplying it to the landfill by any of one of a variety of methods, including:

    (a) Pre-wetting of the waste;

    (b) Direct discharge into the working face;

    (c) Spraying;

    (d) Infiltration ponds;

    (e) Vertical injection wells;

    (f) Horizontal gravity distribution systems; and

    (g) Pressure distribution systems.

  (23) “Municipal solid waste (MSW)” means household waste, commercial solid waste, and industrial solid waste, as defined in 40 CFR §60.751.

  (24) Municipal Solid Waste Landfill (MSW Landfill).

    (a) “Municipal solid waste landfill” means an entire disposal facility in a contiguous geographical space where household waste is placed in or on land, portions of which may be separated by access roads.

    (b) “Municipal solid waste landfill” includes landfills that also receive other types of federal (40 CFR §257.2) Resource Conservation and Recovery Act (RCRA) Subtitle D defined wastes such as commercial solid waste, nonhazardous sludge, conditionally exempt small quantity generator waste, and industrial solid waste.

  (25) Non-Decomposable Solid Waste.

    (a) “Non-decomposable solid waste” means materials that do not degrade biologically to form landfill gas.

    (b) “Non-decomposable solid waste” includes but is not limited to:

      (i) Earth;

      (ii) Rock;

      (iii) Concrete asphalt paving fragments;

      (iv) Uncontaminated concrete (including fiberglass or steel reinforcing rods embedded in the concrete);

      (v) Brick;

      (vi) Glass;

      (vii) Ceramics;

      (viii) Clay products;

      (ix) Inert slag;

      (x) Asbestos-containing waste;

      (xi) Demolition materials containing minor amounts (less than 10 percent by volume) of wood and metals; and

      (xii) Coal combustion byproducts (CCBs) and incinerator ash.

  (26) “Non-repeatable momentary readings” means indications of the presence of methane, total organic compounds, or toxic air contaminants, which persist for less than 5 seconds and do not recur when the sampling probe of a portable gas detector is placed in the same location.

  (27) “Open flare” means an open combustor without enclosure or shroud.

  (28) “Owner or Operator” means a person who owns or operates a MSW landfill.

  (29) “Passive gas collection system” means a gas collection system that solely uses positive pressure within the MSW landfill to move gas rather than using gas mover equipment.

  (30) “Root cause analysis” means an assessment conducted through a process of investigation to determine the primary cause, and any other contributing causes, of positive pressure at a wellhead.

  (31) “Solar array” means multiple solar panels used in conjunction to produce electricity.

  (32) Solar Panel.

    (a) “Solar panel” means any photovoltaic energy system designed for the generation of electrical power from the collection of sunlight.

    (b) “Solar panel” includes without limitation:

      (i) Photovoltaic panels;

      (ii) Foundations;

      (iii) Support structures;

      (iv) Braces; and

      (v) Related equipment.

  (33) “Total waste landfilled” means the same as waste-in-place.

  (34) “Treatment system” means a system that filters, de-waters, and compresses landfill gas for sale or subsequent use.

  (35) Waste-In-Place.

    (a) “Waste-in-place” means the total amount of solid waste placed in the MSW landfill estimated in tons and is also referred to as “total waste landfilled.”

    (b) “Waste-in-place” assumes both the refuse density to be 1,300 pounds per cubic yard and the decomposable fraction to be 70 percent by weight.

  (36) Well Raising.

    (a) “Well raising” means a MSW landfill activity where an existing gas collection well is temporarily disconnected from a vacuum source, and the non-perforated pipe attached to the well is extended vertically to allow the addition of a new layer of solid waste or the final cover; or is extended horizontally to allow the horizontal extension of an existing layer of solid waste or cover material.

    (b) “Well raising” includes re-connecting the extended pipe (well extension) to continue collecting gas from that well.

  (37) “Working face” means the open area where solid waste is deposited daily and compacted with landfill equipment.

#### Regulation .04 Requirements for Municipal Solid Waste (MSW) Landfills.

*COMAR 26.11.42.04*

A. Active MSW Landfills With Less Than 450,000 Tons of Waste-in-Place.

  (1) A person who owns or operates an active MSW landfill having less than 450,000 tons of waste-in-place shall submit to the Department a copy of the annual tonnage report required pursuant to the Refuse Disposal Permit issued under COMAR 26.04.07 which includes all the following information:

    (a) Annual waste accepted;

    (b) Total waste landfilled or waste-in-place; and

    (c) Calculation of remaining airspace.

  (2) Once the active MSW landfill reaches a size greater than or equal to 450,000 tons of waste-in-place, the owner or operator shall be subject to requirements of §B of this regulation.

B. MSW Landfills Greater Than or Equal to 450,000 Tons of Waste-in-Place.

  (1) Within 90 days of the effective date of this regulation, the owner or operator of a MSW landfill having greater than or equal to 450,000 tons of waste-in-place shall perform the following:

    (a) Submit an initial waste-in-place report to the Department; and

    (b) Calculate the methane generation rate in accordance with the test methods in Regulation .11D of this chapter and submit a methane generation rate report to the Department.

  (2) If the calculated methane generation rate is less than 732 tons per year reported, the owner or operator shall recalculate the methane generation rate annually in accordance with the test methods in Regulation .11D of this chapter.

    (a) If the MSW landfill is active, the owner or operator shall submit an annual methane generation rate report to the Department until either of the following conditions is met:

      (i) The calculated methane generation rate is greater than or equal to 732 tons per year; or

      (ii) The owner or operator submits a closure notification to the Department in accordance with Regulation .10C(1) of this chapter.

    (b) If the MSW landfill is closed or inactive, the owner or operator shall submit the following information to the Department:

      (i) A final methane generation rate report in accordance with the provisions in Regulation .10C(6) of this chapter; and

      (ii) A closure notification in accordance with the provisions in Regulation .10C(1) of this chapter.

  (3) If the calculated methane generation rate is greater than or equal to 732 tons per year but less than 8,548 tons per year, the owner or operator shall either:

    (a) Install and operate a gas collection and control system in accordance with the provisions in Regulation .05 and comply with the requirements in Regulations .04 —.11 of this chapter; or

    (b) Undertake four consecutive quarterly surface emissions monitoring periods using the instantaneous surface emissions monitoring procedures specified in Regulation .11F of this chapter, in order to demonstrate that there is no measured concentration of methane of 200 parts per million by volume (ppmv) or greater.

  (4) An owner or operator of an MSW landfill who chooses to conduct consecutive quarterly surface emissions monitoring pursuant to §B(3)(b) of this regulation shall begin quarterly instantaneous surface emissions monitoring no later than 90 days after the methane generation rate report is required to be submitted under §B(1)(b) of this regulation.

  (5) The owner or operator who chooses to conduct consecutive quarterly surface emissions monitoring pursuant to §B(3)(b) of this regulation shall perform one of the following actions based on the monitoring results:

    (a) Except as provided in Regulation .09A(1) of this chapter, if there is any measured concentration of methane of 200 ppmv or greater from the surface of an active, inactive, or closed MSW landfill, other than non-repeatable, momentary readings, the owner or operator shall cease the quarterly monitoring, and instead, install a gas collection and control system in accordance with the provisions in Regulation .05, and shall comply with the requirements in Regulations .04—.11 of this chapter beginning with the next quarter.

    (b) If there is no measured concentration of methane of 200 ppmv or greater from the surface of an active MSW landfill after four consecutive quarterly instantaneous surface emissions monitoring periods, the owner or operator shall comply with all the following requirements:

      (i) Recalculate the methane generation rate annually in accordance with the test methods in Regulation .11D of this chapter and submit a methane generation rate report to the Department;

      (ii) Continue quarterly instantaneous surface emissions monitoring in accordance with the test methods and procedures specified in Regulation .11F of this chapter; and

      (iii) Prepare and submit an annual instantaneous surface emissions monitoring report to the Department in accordance with Regulation .10C(11) of this chapter.

    (c) If there is no measured concentration of methane of 200 ppmv or greater from the surface of a closed or inactive MSW landfill, the provisions of this chapter shall no longer apply provided that the owner or operator has completed all of the following requirements:

      (i) Satisfied all applicable requirements for the permanent shutdown and removal of a gas collection and control system in Regulation .06 of this chapter;

      (ii) Submitted a final waste-in-place report to the Department in accordance with the provisions in Regulation .10C(5) of this chapter;

      (iii) Submitted a closure notification to the Department in accordance with the recordkeeping and reporting requirements in Regulation .10C(1) of this chapter; and

      (iv) Submitted all instantaneous surface emissions monitoring reports to the Department in accordance with requirements of Regulation .10C(11) of this chapter.

  (6) If the calculated methane generation rate is greater than or equal to 8,548 tons per year, the owner or operator of a MSW landfill shall install and operate a gas control and collection system in accordance with the provisions in Regulation .05 and comply with the requirements in Regulations .04 —.11 of this chapter.

C. Liquids Addition. If the owner or operator of a MSW landfill with more than 450,000 tons of waste-in-place adds any liquid, other than leachate in a controlled fashion, to the waste mass to reach a minimum average moisture content of at least 40 percent by weight to accelerate or enhance the anaerobic biodegradation of the waste, the owner or operator shall install and operate a gas collection and control system that meets the criteria in Regulation .05 of this chapter in accordance with the following:

  (1) Install the gas collection and control system for the bioreactor before initiating liquids addition and extend the collection and control system into each new cell or area of the bioreactor prior to initiating liquids addition in that area;

  (2) Begin operating the gas collection and control system within 180 days after initiating liquids addition or within 180 days after achieving a moisture content of 40 percent by weight, whichever is later; and

  (3) Calculate the bioreactor moisture content in accordance with Regulation .11J of this chapter.

D. Maintenance Requirements. The owner or operator of a MSW landfill shall maintain the cover integrity in accordance with the provisions in COMAR 26.04.07.10D and implement a program for cover repairs as necessary on a quarterly basis.

#### Regulation .05 Requirements for Gas Collection and Control Systems.

*COMAR 26.11.42.05*

A. Design Plan and Installation.

  (1) If a gas collection and control system which meets the requirements in §B of this regulation has not been installed, the owner or operator of a MSW landfill shall submit a design plan to the Department within 1 year of meeting the criteria requirement to install and operate a gas collection and control system in accordance with the provisions in Regulation  .04B(3) and (6) and C of this chapter.

  (2) A design plan shall meet the following requirements:

    (a) Be prepared and certified by a professional engineer;

    (b) Address the following issues:

      (i) Depths of solid waste;

      (ii) Solid waste gas generation rates and flow characteristics;

      (iii) Cover properties;

      (iv) Gas system expandability;

      (v) Leachate and condensate management;

      (vi) Accessibility;

      (vii) Compatibility with filling operations;

      (viii) Integration with closure end use;

      (ix) Air intrusion control;

      (x) Corrosion resistance;

      (xi) Fill settlement;

      (xii) Resistance to the solid waste decomposition heat; and

      (xiii) The ability to isolate individual components or sections for repair or troubleshooting without shutting down the entire collection system.

    (c) Provide for the control of the collected gas using a gas collection and control system meeting the applicable requirements of  §B(1), (2), (3), or (4) of this regulation or an alternative method approved in accordance with the provisions in Regulation .08 of this chapter;

    (d) Demonstrate that the gas collection and control system is designed to handle the maximum expected gas generation flow rate from the entire area of the MSW landfill that warrants control over the intended use period of the gas control system equipment;

    (e) Include any proposed alternatives to the requirements, justification for the need for any proposed alternatives, test methods, procedures, compliance measures, monitoring, and recordkeeping or reporting requirements in accordance with the provisions in Regulation .08 of this chapter;

    (f) Include a description of potential mitigation measures to be used to prevent the release of methane or other pollutants into the atmosphere during the installation or preparation of wells, piping, or other equipment, during repairs or the temporary shutdown of gas collection system components, or when solid waste is to be excavated and moved;

    (g) For active MSW landfills, identify areas of the landfill that are closed or inactive;

    (h) Design the gas collection and control system to handle the expected gas generation flow rate from the entire area of the landfill and to collect gas at an extraction rate to comply with the surface methane concentration standards in Regulation .07A of this chapter, component leak standards in Regulation .09B(7) of this chapter, and which is sufficient to meet all operational and performance standards in this chapter;

    (i) Identify any areas of the MSW landfill that contains only asbestos-containing or non-decomposable solid waste that may be excluded from gas collection provided that the owner or operator submits documentation to the Department containing the nature of the waste, date of deposition, and location and amount of asbestos-containing or non-decomposable solid waste deposited in the area;

    (j) Design the gas collection and control system to maintain a negative pressure at all wellheads in the collection system without causing air infiltration, including any wellheads connected to the system as a result of expansion or excess surface emissions;

    (k) Ascertain the density of wells, horizontal collectors, surface collectors, or other gas extraction devices necessary to achieve compliance with §B of this regulation; and

    (l) Include any procedures for detecting and suppressing any internal landfill fires or thermal waste oxidation events that might occur within the waste, and for mitigating any damage that may have occurred to pollution control devices such as the liner, leachate collection system, cap, or gas collection system elements as a result of the event.

  (3) The maximum expected gas generation flow rate in §A(2)(d) of this regulation shall be calculated using the test method in Regulation .11B of this chapter or an alternative test method approved in accordance with Regulation .08 of this chapter.

  (4) The owner or operator of a MSW landfill that is required or chooses to install and operate a gas collection and control system, shall do so within 30 months after approval of the design plan.

  (5) If an owner or operator is modifying an existing gas collection and control system to meet the requirements of this regulation, the owner or operator shall submit an amended design plan to the Department that includes the information in §A(2) of this regulation and any necessary updates or addenda in accordance with Regulation .10C(9) of this chapter.

  (6) The gas collection and control system shall be operated, maintained, and expanded in accordance with the procedures and schedules in the approved design plan.

  (7) The owner or operator of a controlled MSW landfill shall place each well or design component as specified in the approved design plan.

  (8) Following initial construction, the owner or operator of a controlled MSW landfill shall install each new component no later than 60 days after the date on which the area controlled by the well is required to be controlled in accordance with the provisions in this regulation.

B. Standards and Requirements for Gas Collection and Control Systems.

  (1) General Requirements.

    (a) Route the collected gas to a gas control device(s) and operate the gas collection and control system continuously, except as provided in §D and §F of this regulation.

    (b) Operate the gas collection and control system to comply with the requirements in §A(2)(h) of this regulation.

    (c) Design and operate the gas collection and control system to draw all the gas toward the gas control device or devices.

    (d) Design and operate the gas collection system to minimize off-site and on-site migration of subsurface gas in compliance with COMAR 26.04.07.03B(9), COMAR 26.04.07.08B(15), and COMAR 26.04.07.10I.

    (e) In the event the gas collection or control system is inoperable, the gas mover system shall be shut down and all valves in the gas collection and control system contributing to venting of the gas to the atmosphere shall be closed within 1 hour of the gas collection or control system not operating.

    (f) Efforts to repair the gas collection or control system shall be initiated and completed in a manner such that downtime is kept to a minimum, and the gas collection and control system is returned to operation as expeditiously as practicable.

    (g) For a MSW landfill with a design capacity equal to or greater than 2,750,000 tons and 3,260,000 cubic yards of MSW:

      (i) Install all passive gas collection systems with liners on the bottom and all sides in all areas in which gas is to be collected; and

      (ii) Install all liners in accordance with 40 CFR §258.40, as amended.

    (h) Any nonproductive area of the MSW landfill as identified in §A(2)(i) of this regulation may be excluded from control, provided that the total of all excluded areas can be shown to contribute less than 1 percent of the total amount of methane emissions from the landfill and:

      (i) The amount, location, and age of the material or waste shall be documented and provided to Department;

      (ii) If data on actual amounts and age of the material or waste is not available, the owner or operator shall estimate based on known information and provide all documentation used to make the estimates;

      (iii) A separate methane emissions estimate shall be made for each section proposed for exclusion, and the sum of all such sections shall be compared to the methane emissions estimate for the entire landfill, and all calculations, data and documentation used to perform the calculations shall be submitted to the Department; and

      (iv) The methane emissions from each section proposed for exclusion shall be calculated using the test methods provided in Regulation .11D of this chapter.

    (i) reserved

    (j) The landfill gas extraction components shall be constructed of polyvinyl chloride (PVC), high density polyethylene (HDPE) pipe, fiberglass, stainless steel, or other nonporous corrosion resistant material of suitable dimensions to:

      (i) Convey projected amounts of gases;

      (ii) Withstand installation, static, and settlement forces; and

      (iii) Withstand planned overburden or traffic loads.

    (k) The gas collection system shall extend as necessary to comply with emission and migration standards.

    (l) Gas collection devices such as wells and horizontal collectors shall be perforated to allow gas entry without head loss which may impair performance across the intended extent of control.

    (m) Perforations shall be situated with regard to the need to prevent excessive air infiltration.

    (n) Vertical wells shall be placed so as not to endanger underlying liners and shall address the occurrence of water within the landfill.

      (i) Holes and trenches constructed for piped wells and horizontal collectors shall be of sufficient cross-section so as to allow for their proper construction and completion including, for example, centering of pipes and placement of gravel backfill.

      (ii) Collection devices shall be designed so as not to allow indirect short circuiting of air into the soil cover, into the MSW, or into the collection system, or gas into the air.

      (iii) Any gravel used around pipe perforations should be of a dimension so as not to penetrate or block the perforations.

    (o) Gas collection devices may be connected to the collection header pipes below or above the landfill surface.

      (i) The connector assembly shall include a positive closing throttle valve, any necessary seals and couplings, access couplings, and at least one sampling port.

      (ii) The collection devices shall be constructed of PVC, HDPE, fiberglass, stainless steel, or other nonporous material of suitable thickness.

    (p) Landfill gas shall be conveyed through the gas collection system header pipe(s) to a gas control device.

    (q) The gas mover equipment shall be sized to handle the maximum gas generation flow rate expected over the intended use period of the gas moving equipment using the following procedures:

      (i) For existing gas collection systems, the flow data shall be used to project the maximum flow rate;

      (ii) If no flow data exists, the procedures in §B(l)(q)(iii) of this regulation shall be used; and

      (iii) For new gas collection systems, the maximum flow rate shall be determined in accordance with Regulation .11B of this chapter.

  (2) Requirements for Enclosed Flares.

    (a) An owner or operator of a MSW landfill that routes landfill gas to an enclosed flare shall achieve a methane destruction efficiency of at least 99 percent by weight and meet the following specifications:

      (i) The device shall be equipped with automatic dampers, an automatic shutdown device, a flame arrester, and continuous recording temperature sensors; and

      (ii) The device shall have a sufficient flow of propane, natural gas, or another fuel source approved by the Department to the pilot light to prevent unburned collected methane from being emitted to the atmosphere during restart and startup.

    (b) The owner or operator of a MSW landfill shall install, calibrate, operate and maintain the flare system in accordance with the manufacturer’s specifications and if applicable, within the parameter ranges established in the landfill’s permit to construct issued by the Department.

    (c) An owner or operator that used an enclosed flare shall install, calibrate, and maintain a gas flow rate measuring device that either records the flow to the control device at least every 15 minutes or secures the bypass line valve in the closed position with a car-seal or a lock-and-key type configuration.

  (3) Requirements for Open Flares.

    (a) The owner or operator of a MSW landfill that routes landfill gas to an open flare shall operate the equipment according to the requirements included in 40 CFR §60.18, as amended.

    (b) The owner or operator of a MSW landfill using an open flare shall install, calibrate, maintain, and operate the following equipment according to the manufacturer’s specifications:

      (i) A heat sensing device, such as an ultraviolet beam sensor or thermocouple, at the pilot light or the flame itself to indicate the continuous presence of a flame; and

      (ii) A device that records flow to the flare and bypass of the flare (if applicable).

    (c) An owner or operator that uses an open flare shall install, calibrate, and maintain a gas flow rate measuring device that either records the flow to the control device at least every 15 minutes or secures the bypass line valve in the closed position with a car-seal or a lock-and-key type configuration.

    (d) An owner or operator that is subject to §B(3)(b) of this regulation shall perform a visual inspection of the seal or closure mechanism at least once every month to ensure that the valve is maintained in the closed position and that the gas flow is not diverted through the bypass line.

    (e) The operation of an open flare on or after January 1, 2025 is prohibited unless the owner or operator demonstrates that one of the following conditions apply and receives the Department’s prior written approval:

      (i) The methane generation rate is less than 732 tons per year in accordance with the test methods in Regulation .11D of this chapter and is insufficient to support the continuous operation of an enclosed flare or other gas control device;

      (ii) The owner or operator is seeking to temporarily operate an open flare during the repair or maintenance of the gas control system, or while awaiting the installation of an enclosed flare, or to address offsite gas migration issues;

      (iii) The owner or operator has landfill gas emissions that are unable to be controlled using enclosed flare gas control devices in the gas control system; or

      (iv) The owner or operator otherwise has received written approval from the Department to operate an open flare in accordance with Regulation .08 of this chapter.

    (f) An owner or operator seeking to operate an open flare in accordance with one of the provisions of §B(3)(e) of this regulation shall submit a written request to the Department which includes the following information:

      (i) Proof that the landfill gas emissions being controlled using an open flare does not exceed 732 tons per year of methane; or

      (ii) An analysis verifying there is no feasible alternative control device configuration that would use the landfill gas emissions without use of an open flare.

  (4) Requirements for Gas Control Devices Other than Flares. An owner or operator of a MSW landfill may operate a gas control device other than a flare if it complies with one of the following requirements:

    (a) The device is a boiler or process heater with a design heat input capacity equal to or greater than 44 megawatts per hour (150 MMBtu/hr), provided that the landfill gas stream is introduced into the flame zone;

    (b) The collected gas is routed to an energy recovery device, or series of devices, that shall meet all the following requirements:

      (i) Achieves a methane destruction efficiency of at least 99 percent by weight;

      (ii) For lean burn internal combustion engines, reduces the outlet methane concentration to less than 3,000 ppmv, dry basis, corrected to 15 percent oxygen; and

      (iii) The gas control device operates within the parameter ranges established during the initial or most recent performance test that demonstrates compliance with the methane destruction efficiency standard in §B(4)(b)(i) of this regulation or within engineering or manufacturer’s established parameter ranges until a performance test is performed as specified in §B(7) of this regulation; or

    (c) The collected gas is routed to a treatment system that processes the collected gas for subsequent sale or beneficial use provided that:

      (i) The venting of treated landfill gas to the ambient air is not allowed; and

      (ii) If, for any reason, the treated landfill gas cannot be routed for subsequent sale or beneficial use, then the treated landfill gas shall be controlled in accordance with the applicable requirements of §B(2), (3), or (4)(a) or (b) of this regulation.

  (5) The owner or operator subject to the requirements of §B(4)(c) in this regulation shall prepare a site-specific treatment monitoring plan, submitted with the gas collection and control design plan, to include all of the following:

    (a) Monitoring records of parameters that are identified in the treatment system monitoring plan and that ensure the treatment system is operating properly for each intended end use of the treated landfill gas;

    (b) At a minimum, records shall include records of filtration, de-watering, and compression parameters that ensure the treatment system is operating properly for each intended end use of the treated landfill gas;

    (c) Monitoring methods, frequencies, and operating ranges for each monitored operating parameter based on manufacturer’s recommendations or engineering analysis for each intended end use of the treated landfill gas;

    (d) Documentation of the monitoring methods and ranges, along with justification for their use;

    (e) Processes and methods used to collect the necessary data; and

    (f) A description of the procedures and methods that are used for quality assurance, maintenance, and repair of all continuous monitoring systems.

  (6) The owner or operator subject to the provisions in §B(4)(c) of this regulation shall demonstrate compliance by using a device that records flow to the treatment system and bypass of the treatment system, if applicable, that shall be calibrated, maintained, and operated according to the manufacturer’s specifications.

    (a) The owner or operator shall maintain and operate all monitoring systems associated with the treatment system in accordance with the site-specific treatment system monitoring plan prepared in accordance with the provisions of §B(5) of this regulation.

    (b) The owner or operator shall comply with the following requirements:

      (i) Install, calibrate, and maintain a gas flow rate measuring device that records the flow to the treatment system at least every 15 minutes;

      (ii) If using a passive collection system, install liners or equivalent non-permeable materials as required under 40 CFR §258.40, as amended, on the bottom and all sides in all areas in which gas is to be collected; and

      (iii) Secure the bypass line valve in the closed position with a car-seal or a lock-and-key type configuration and perform a visual inspection of the seal or closure mechanism at least once every month to ensure that the valve is maintained in the closed position and that the gas flow is not diverted through the bypass line.

  (7) Performance Test Requirements.

    (a) The owner or operator shall conduct annual performance tests for any gas control device or devises subject to the requirements of §B(2), (3) and (4) of this regulation using the test methods identified in Regulation .11C of this chapter.

    (b) An initial performance test shall be conducted within 180 days of start-up of the gas collection and control system.

    (c) Following an initial performance test, the owner or operator shall conduct a complete annual performance test no later than 45 days following the 1-year anniversary date of the initial performance test.

    (d) The owner or operator of an existing gas control device shall demonstrate compliance with this regulation no later than 180 days following the effective date of this regulation in accordance with the test methods and procedures specified in Regulation .11C of this regulation.

    (e) The owner or operator shall conduct performance tests under conditions specified by the Department based on representative performance of the affected source for the period being tested.

    (f) Representative conditions shall exclude periods of startup and shutdown unless specified by the Department.

    (g) The owner or operator may not conduct performance tests during periods of malfunction.

    (h) The owner or operator shall record the process information that is necessary to document operating conditions during the test and include in such record an explanation to support that such conditions represent normal operation.

    (i) The owner or operator shall make available records necessary to determine the conditions of performance tests available upon request by the Department.

    (j) If a gas control device remains in compliance after three consecutive performance tests, the owner or operator may conduct the performance test every 3 years.

    (k) Once a gas control device is placed on the 3-year performance test schedule, if a subsequent performance test shows the gas collection and control system is out of compliance with the requirements of this regulation, the performance testing frequency shall return to annual.

    (l) The performance test is not required for boilers and process heaters with design heat input capacities equal to or greater than 44 megawatts per hour (150 MMBtu/hr) that burn landfill gas for compliance with the requirements in §B(4) of this regulation.

C. Wellhead Gauge Pressure Requirement. Each landfill gas collection and control system wellhead shall be operated under negative pressure without causing air filtration, except as provided in §§D and F of this regulation, or under any of the following conditions:

  (1) Use of a Geomembrane or Synthetic Cover. The owner or operator shall develop acceptable pressure limits for the wellheads and include them in the design plan;

  (2) A Decommissioned Well. A well may experience a static positive pressure after shutdown to accommodate for declining flows; or

  (3) A Fire or Increased Well Temperature.

    (a) The owner or operator shall record all instances when positive pressure occurs, in efforts to avoid a fire.

    (b) These records shall be submitted as part of the semi-annual report to the Department in accordance with the requirements of Regulation .10C(3) of this chapter.

D. Well Raising. The requirements of §B(1)(a)—(b) and §E of this regulation do not apply to individual wells involved in well raising provided the following conditions are met:

  (1) New fill is being added or compacted in the immediate vicinity around the well; and

  (2) Once installed, a gas collection well extension is sealed or capped until the raised well is reconnected to a vacuum source.

E. Wellhead Sampling. The owner or operator that is required to comply with §B of this regulation for an active gas collection system shall install a sampling port and measuring devices, or an access port for measuring devices, at each wellhead and comply with the following, using measuring devices that meet the requirements of Regulation .11H of this chapter:

  (1) Monitor nitrogen or oxygen concentration in the landfill gas on a monthly basis as provided in Regulation .09C of this chapter;

  (2) Monitor temperature of the landfill gas on a monthly basis as provided in Regulation .09C in this chapter; and

  (3) Measure the gauge pressure in the gas collection header on a monthly basis as provided in Regulation .09B(8) of this chapter.

F. Repairs and Temporary Shutdown of Gas Collection System Components. The requirements of §B(1)(a) and (b) of this regulation do not apply to individual landfill gas collection system components that are temporarily shut down in order to repair the components, due to an emergency, caused by catastrophic events such as earthquakes, to connect new landfill gas collection system components to the existing system, to extinguish landfill fires, or to perform construction activities in accordance with Regulation .07C of this chapter, provided the following requirements are met:

  (1) Any new gas collection system components required to maintain compliance with this regulation shall be included in the most recent design plan in accordance with §A of this regulation;

  (2) Methane emissions are minimized during shutdown in accordance with §A(2)(f) of this regulation; and

  (3) The owner or operator submits a notification to the Department after any temporary shutdown due to an emergency, catastrophic event, or landfill fire(s) in accordance with Regulation .10C(13) of this chapter.

#### Regulation .06 Requirements for the Permanent Shutdown and Removal of a Gas Collection and Control System.

*COMAR 26.11.42.06*

A. A gas collection and control system installed at a closed MSW landfill or closed area of a MSW landfill may be capped and permanently removed provided the following requirements are met:

  (1) The gas collection and control system was in operation for at least 15 years, unless the owner or operator can demonstrate to the Department that due to declining methane rates the MSW landfill will be unable to operate the gas collection and control system for a 15-year period;

  (2) The calculated or measured methane generation rate at the MSW landfill is less than 732 tons per year on three successive test dates, provided that:

    (a) For measured methane generation rates, the test dates shall be no less than 90 days apart, and no more than 180 days apart; or

    (b) The calculated methane generation rate shall be calculated in accordance with the provisions of Regulation .11D of this chapter;

  (3) Surface methane concentration measurements do not exceed 200 ppmv;

  (4) The concentrations of methane gas at the MSW landfill do not exceed 25 percent of the lower explosive limit in facility structures (excluding gas collection and control system components) or the lower explosive limit at the property boundary; and

  (5) The owner or operator submits an equipment removal report to the Department in accordance with the provisions of Regulation .10(2) of this chapter.

B. The owner or operator of a MSW landfill that has capped or removed a gas collection and control system subject to §A of this regulation shall conduct instantaneous surface methane concentration measurements over the portion of the landfill with the capped or removed gas collection and control system in accordance with the procedures in Regulation .11F(1) and (2) of this chapter for at least eight consecutive calendar quarters after the gas collection and control system is capped or removed. The measurements shall comply with the following requirements:

  (1) The walking grid in Regulation .11F(1)(d) of this chapter may be reduced to 100-foot spacing so long as the walking grid is offset by 25-feet each quarter so that by the end of 1 year of monitoring, the entire surface area has been monitored every 25 feet;

  (2) If there is no measured concentration of methane of 200 ppmv or greater from the surface of the closed MSW landfill in any of these measurement events, the owner or operator shall submit a final gas collection and control system closure notification to the Department in accordance with the provisions in Regulation .10C(1) of this chapter; and

  (3) If there is any measured concentration of methane of 200 ppmv or greater in any of these measurement events, other than nonrepeatable, momentary readings, as determined by instantaneous surface emissions monitoring from the surface of the closed MSW landfill, the owner or operator shall comply with the provisions in Regulation .09A(1) of this chapter.

#### Regulation .07 Compliance Standards.

*COMAR 26.11.42.07*

A. Surface Methane Concentration Standards. Except as provided in Regulations .05D and F, Regulation .09A of this chapter, and §C of this regulation, beginning January 1, 2024, or upon commencing operation of a newly installed gas collection and control system or modification of an existing gas collection and control system in accordance with Regulation .05A of this chapter, whichever is later, no location on the MSW landfill surface shall equal or exceed either of the following methane concentration limits:

  (1) Excluding non-repeatable, momentary readings, a methane concentration limit of 500 ppmv as determined by instantaneous surface emissions monitoring in accordance with Regulation .11F(1) and (2) of this chapter; and

  (2) An average methane concentration limit of 25 ppmv as determined by integrated surface emissions monitoring in accordance with Regulation .11F(1) and (3) of this chapter.

B. Wellhead Temperature Requirement.

  (1) Each interior wellhead of a landfill gas collection and control system shall be operated with a landfill gas temperature of less than 62.8°C (145°F), unless a higher operating temperature is approved in writing by the Department.

  (2) The Department shall approve an alternate temperature only where a MSW landfill owner or operator submits to the Department a request which uses supporting data to adequately demonstrate that the higher operating temperature value at a particular well will not:

    (a) cause a fire; and

    (b) significantly inhibit anaerobic decomposition by killing methanogens.

C. Construction Activities. The requirements of §A of this regulation do not apply to the working face of the landfill or to areas of the landfill surface where the landfill cover material has been removed and refuse has been exposed for the following activities:

  (1) The purpose of installing, expanding, replacing, or repairing components of the landfill gas, leachate, or gas condensate collection and removal system; or

  (2) For law enforcement activities requiring excavation.

#### Regulation .08 Alternative Compliance Standards.

*COMAR 26.11.42.08*

A. The owner or operator may request alternatives to the compliance measures, monitoring requirements, test methods and procedures of Regulations .05, .09 and .11 of this chapter. Any alternative compliance options requested by the owner or operator shall be submitted in writing to the Department for approval and may include, but are not limited to, the following:

  (1) Semi-continuous (batch) operation of the gas collection and control system due to insufficient landfill gas flow rates;

  (2) Alternative wind speed requirements for landfills consistently having winds in excess of the limits specified in this regulation;

  (3) Alternative walking patterns to address potential safety and other issues, such as steep or slippery slopes, monitoring instrument obstructions, and physical obstructions;

  (4) Exclusion of construction areas and other dangerous areas from landfill surface inspection; and

  (5) Exclusion of paved roads that do not have any cracks, potholes, or other penetrations from landfill surface inspection.

B. The owner or operator of a MSW landfill seeking an alternative compliance option in accordance with the provisions of this regulation shall provide information satisfactory to the Department and EPA demonstrating that:

  (1) The off-site migration of landfill gas is being, and will be, effectively controlled; and

  (2) The proposed alternative compliance option provides an equivalent level of methane emission control, as compared with the methane controls that would have been required under Regulations .05, .09 and .11 of this chapter.

C. The Department and EPA may approve any alternative compliance option as long as the proposed alternative effectively controls the off-site migration of landfill gas and provides an equivalent level of methane emission control.

#### Regulation .09 Monitoring Requirements and Corrective Actions.

*COMAR 26.11.42.09*

A. Surface Emissions Monitoring Requirements. The owner or operator of a MSW landfill shall conduct instantaneous and integrated surface emissions monitoring of the landfill surface on a quarterly basis in accordance with the procedures specified in Regulation .11F of this chapter. All the following requirements shall apply to surface monitoring:

  (1) Instantaneous Surface Emissions Monitoring. Any reading equal to or exceeding a limit specified in Regulation .04B(3)(b), .06B(3), or .07A(1) of this chapter shall be recorded as an exceedance and the following actions shall be taken:

    (a) The owner or operator of an MSW landfill shall:

      (i) Record the date, location, and value of each test, including re-tests, with the location of the grids, the gas collection system, and the tests clearly mark and identify on a topographic map of the MSW landfill which is drawn to scale; and

      (ii) Retain and submit to the Department in accordance with the provisions of Regulation .10 of this chapter, a copy of the documentation required under §A(1)(a)(i) of this regulation.

    (b) The owner or operator shall take corrective action such as, but not limited to, cover maintenance, cover repair, or well vacuum adjustments;

    (c) The owner or operator shall re-monitor the location within 10 calendar days of the measured exceedance and comply with all the following requirements:

      (i) If after the initial monitoring of the location a second exceedance is detected, additional corrective action shall be taken, and the location shall be re-monitored again no later than 10 calendar days after detecting the second exceedance;

      (ii) If after the re-monitoring in A(1)(c)(i) of this regulation a third exceedance is detected, the owner or owner or operator shall install a new or replacement well or collection device and demonstrate compliance no later than 120 calendar days after detecting the third exceedance;

      (iii) If after the re-monitoring in A(1)(c)(i) of this regulation a location has demonstrated no subsequent exceedance, that location shall be re-monitored 1 month from the initial exceedance;

      (iv) If the 1-month re-monitoring in A(1)(c)(iii) of this regulation shows a concentration less than 500 ppmv methane (for compliance with Regulation.07A(1) of this chapter), or less than 200 ppmv methane (for compliance with Regulations .04B(3)(b) or .06B(3) of this chapter), no further monitoring of that location is required until the next quarterly monitoring period;

      (v) If the 1-month re-monitoring in A(1)(c)(iii) of this regulation shows an exceedance, the owner or operator shall install a new or replacement well or collection device no later than 120 days after detecting the third exceedance;

      (vi) For any location where the monitored methane concentration had a third exceedance within a quarterly period, and there is no gas collection and control system, the owner or operator shall design and install a system following Regulations .05—.11; and

      (vii) An alternative remedy to the exceedance, such as upgrading the blower, header pipes or control device, and a corresponding timeline for installation may be submitted for approval to the Department in accordance with requirements of Regulation .08 of this chapter.

    (d) The owner or operator of a closed or inactive MSW landfill, or of any closed or inactive areas on an active MSW landfill, that has no monitored exceedances of the limit specified in Regulation .07A(1) of this chapter after four consecutive quarterly instantaneous surface monitoring periods may shift to annual instantaneous surface monitoring; and

    (e) Any exceedances of the limit specified in Regulation .07A(1) of this chapter as detected during any compliance inspections or annual instantaneous surface monitoring that cannot be remediated within 10 calendar days will result in a return to quarterly instantaneous surface monitoring of the MSW landfill.

  (2) Integrated Surface Emissions Monitoring: Any reading exceeding the limit specified in Regulation .07A(2) of this chapter shall be recorded as an exceedance and the following actions shall be taken:

    (a) The owner or operator shall:

      (i) Record the date, location, and the average surface concentration measured as methane for each test, including re-tests, with the location of the grids, the gas collection system, and each test clearly marked and identified on a topographic map of the MSW landfill which is drawn to scale; and

      (ii) Retain, and submit to the Department in accordance with the provisions of Regulation .10 of this chapter, a copy of the documentation required under §A(2)(a)(i) of this regulation.

    (b) Within 10 calendar days of a measured exceedance, the owner or operator shall take corrective action such as, but not limited to:

      (i) Cover maintenance or repair; or

      (ii) Well vacuum adjustments.

    (c) The owner or operator who takes corrective action as required under §A(2)(b) of this regulation shall re-monitor the grid and comply with the requirements under §A(1)(c) of this regulation when an exceedance of Regulation .07A(2) of this chapter is recorded for the grid.

    (d) Any closed or inactive MSW landfill, or any closed or inactive areas on an active MSW landfill that has no monitored exceedances of the limit specified in Regulation .07A(2) of this chapter after four consecutive quarterly integrated surface emissions monitoring periods may shift to annual integrated surface emissions monitoring; and

    (e) An owner or operator of a MSW landfill that has shifted to annual integrated surface monitoring under §A(2)(d) of this regulation shall return to quarterly integrated surface emissions monitoring upon the occurrence of any exceedances of the limits specified in Regulation .07A(2) of this chapter detected during the annual integrated surface emissions monitoring or during any compliance inspection.

B. Gas Control System Equipment Monitoring. The owner or operator shall monitor the gas control system.

  (1) For enclosed combustors (including enclosed flares), the following equipment shall be installed, calibrated, maintained, and operated according to the manufacturer’s specifications:

    (a) A temperature monitoring device equipped with a continuous recorder which has an accuracy of plus or minus (±) 1 percent of the temperature being measured expressed in degrees Celsius or Fahrenheit; and

    (b) A device which records the gas flow to the control device(s) and bypass of the control device. The owner or operator shall:

      (i) Install, calibrate, and maintain a gas flow rate measuring device that records the flow to the control device at least every 15 minutes;

      (ii) Secure the bypass line valve in the closed position with a car-seal or a lock-and-key type configuration; and

      (iii) Perform a visual inspection of the seal or closure mechanism at least once every month to ensure that the valve is maintained in the closed position and that the gas flow is not diverted through the bypass line.

    (c) A temperature monitoring device is not required for boilers and process heaters with a design heat input capacity of 44 megawatts (150 MMBtu/hr) or greater.

  (2) For open flares, the following equipment shall be installed, calibrated, maintained, and operated according to the manufacturer’s specifications:

    (a) A heat sensing device, such as an ultraviolet beam sensor or thermocouple, at the pilot light or the flame itself to indicate the continuous presence of a flame; and

    (b) A device which records the gas flow to the flare and bypass if applicable. The owner or operator shall:

      (i) Install, calibrate, and maintain a gas flow rate measuring device that records the flow to the control device at least every 15 minutes;

      (ii) Secure the bypass line valve in the closed position with a car-seal or a lock-and-key type configuration; and

      (iii) Perform a visual inspection of the seal or closure mechanism at least once every month to ensure that the valve is maintained in the closed position and that the gas flow is not diverted through the bypass line.

  (3) For a gas control device other than an enclosed flare, the owner or operator shall demonstrate compliance by providing and complying with the following information and instructions:

    (a) A description of the operation of the gas control device;

    (b) Operating parameters that would indicate proper performance;

    (c) Appropriate monitoring procedures; and

    (d) The manufacturer’s instructions and specifications.

  (4) The owner or operator subject to §B(3) of this regulation shall maintain, operate, and monitor the device in accordance with written manufacturer instructions and specifications.

  (5) The owner or operator subject to §B(3) of this regulation may submit alternative compliance procedures to the Department for approval in accordance with the provisions in Regulation .08 of this chapter.

  (6) Notwithstanding §B(3) and (4) of this regulation, the Department may specify additional monitoring procedures for a gas control device other than an enclosed flare, and the owner or operator shall comply with any such requirement.

  (7) Components containing landfill gas and under positive pressure shall be monitored quarterly for leaks.

    (a) Any component leak of 500 ppmv or greater shall be tagged and repaired within 10 calendar days.

    (b) Any component leak of 250 ppmv or greater shall be recorded in accordance with the provisions in Regulation .10B(1)(s) of this chapter.

    (c) Quarterly component leak testing at a MSW landfill having a landfill gas-to-energy facility shall be conducted prior to scheduled maintenance or planned outage periods.

  (8) The owner or operator shall measure gauge pressure in the gas collection header applied to each individual well on a monthly basis.

    (a) If a positive pressure exists, other than as provided in Regulation .05C of this chapter, action shall be initiated to correct the positive pressure within 5 days.

    (b) Any attempted corrective action shall not cause exceedances of other operational or performance standards.

  (9) For a gas treatment system, the following equipment shall be installed, calibrated, maintained, and operated according to the manufacturer’s specifications:

    (a) A device which records the gas flow to the treatment system and bypass if applicable.

    (b) The owner or operator shall:

      (i) Install, calibrate, and maintain a gas flow rate measuring device that records the flow to the treatment system at least every 15 minutes;

      (ii) Secure the bypass line valve in the closed position with a car-seal or a lock-and-key type configuration; and

      (iii) Perform a visual inspection of the seal or closure mechanism at least once every month to ensure that the valve is maintained in the closed position and that the gas flow is not diverted through the bypass line.

C. Wellhead Monitoring. The owner or operator shall monitor each individual wellhead monthly to determine and record the gauge pressure, temperature, and nitrogen or oxygen content of gas emissions, and follow the procedures listed as applicable.

  (1) If there is any positive pressure reading other than as provided in Regulation .05D and E, the owner or operator shall take the following actions and shall not cause exceedances of other operational or performance standards from any attempted corrective measure:

    (a) Initiate corrective action within 5 calendar days of the positive pressure measurement;

    (b) If negative pressure cannot be achieved without excess air infiltration within 15 calendar days of the first measurement of positive pressure, the owner or operator shall conduct a root cause analysis and correct the exceedance as soon as practicable, but no later than 60 days after positive pressure was first measured and submit reports in accordance with the reporting requirements of Regulation .10B and .10C(3) of this chapter;

    (c) If corrective actions cannot be fully implemented within 60 days following the positive pressure measurement for which the root cause analysis was required, the owner or operator shall also conduct a corrective action analysis and develop an implementation schedule to complete the corrective action(s) as soon as practicable, but no more than 120 days following the positive pressure measurement and submit reports in accordance with the requirements of Regulation .10B, .10C(3) and .10C(4); and

    (d) If corrective action is expected to take longer than 120 days to complete after the initial exceedance, the owner or operator shall submit the root cause analysis, corrective action analysis, and corresponding implementation timeline to the Department for approval in accordance with the requirements of Regulation .10C(10) and .10C(14) of this chapter.

  (2) If a well exceeds the operating parameter for temperature, action shall be initiated to correct the exceedance within 5 days.

  (3) The owner or operator shall not cause exceedances of other operational or performance standards from any attempted corrective measure and shall comply with all the following requirements:

    (a) If a landfill gas temperature less than 62.8ºC (145ºF), or as established in Regulation .07B, cannot be achieved within 15 days of the first measurement of landfill gas temperature greater than 62.8ºC (145ºF), the owner or operator shall conduct a root cause analysis and correct the exceedance as soon as practicable, but no later than 60 days after a landfill gas temperature greater than 62.8ºC (145ºF) was first measured;

    (b) If corrective actions cannot be fully implemented within 60 days following the temperature measurement for which the root cause analysis was required, the owner or operator shall also conduct a corrective action analysis and develop an implementation schedule to complete the corrective action(s) as soon as practicable, but no more than 120 days following the measurement of landfill gas temperature greater than 62.8ºC (145ºF) and submit records in accordance with the provisions of Regulation .10B and .10C(3);

    (c) If corrective action is expected to take longer than 120 days to complete after the initial exceedance, the owner or operator shall submit the root cause analysis, corrective action analysis, and corresponding implementation timeline to the Department for approval, in accordance with the provisions of Regulation .10C(10) and .10C(14) of this chapter and §C(1)(c) of this regulation;

    (d) If a landfill gas temperature measured at either the wellhead or at any point in the well is greater than or equal to 76.7ºC (170ºF) and the carbon monoxide concentration measured, according to the procedures in Regulation .11H of this chapter, is greater than or equal to 1,000 ppmv the corrective action(s) for the wellhead temperature standard 62.8ºC (145ºF) shall be completed within 15 days; and

    (e) If a higher operating temperature has not been approved by the Department, the enhanced monitoring specified in Regulation .11I of this chapter is required at each well with a measurement of landfill gas temperature greater than 62.8ºC (145ºF).

  (4) The owner or operator subject to the requirements in §C(3)(b) of this regulation shall submit the items listed in Regulation .10C(3)(c) to the Department as part of the next semi-annual report.

  (5) The owner or operator subject to the requirements in §C(3)(a)—(c) of this regulation shall keep records in accordance with the provisions of Regulation .10B of this chapter.

  (6) The owner or operator shall monitor each wellhead and record all nitrogen levels at or above 20 percent and all oxygen levels at or above 5 percent according to Regulation .10B(1)(e) and .10C(3) following the procedures of Regulation .11H of this chapter.

D. Requirements for Monitoring Systems—Malfunction, Repair and Other Activities.

  (1) The monitoring requirements in the regulation apply at all times except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, and required monitoring system quality assurance or quality control activities.

  (2) Any sudden, infrequent, not reasonably preventable failure of the monitoring system to provide valid data shall be considered a monitoring system malfunction.

  (3) For purposes of this regulation, monitoring system failures that are caused in part by poor maintenance or careless operation are not malfunctions.

  (4) Monitoring system repairs completed in response to monitoring system malfunctions to return the monitoring system to operation shall be completed as expeditiously as possible.

#### Regulation .10 Recordkeeping and Reporting Requirements.

*COMAR 26.11.42.10*

A. The owner or operator of a MSW landfill that meets the applicability or designated facility requirements in 40 CFR §60.31f, 40 CFR §60.760, or 40 CFR §63.1935 shall comply with the electronic reporting requirements of 40 CFR §60.38f(j), 40 CFR §60.767(i), or CFR §63.1981(i), as applicable.

A-1. Whenever a provision in this chapter requires submission or reporting of test results, reports, or other information to the Department, unless otherwise specified, the information shall be submitted to:

B. Recordkeeping Requirements.

  (1) An owner or operator of a MSW landfill shall maintain the following records for at least 5 years:

    (a) All gas collection system downtime exceeding 5 days, including dates of downtime, individual well shutdown and disconnection times, the reason for the downtime, and any corrective actions conducted in response to the downtime;

    (b) All gas control system downtime in excess of 1 hour, the reason for the downtime, and the length of time the gas control system was shut down, and any corrective actions conducted in response to the downtime;

    (c) All instantaneous surface readings of 100 ppmv methane or greater and all exceedances of the limits in Regulation .04B(3)(b) and Regulation .07, including:

      (i) The location of the leak (or affected grid);

      (ii) The leak concentration of methane (in ppmv);

      (iii) The date and time of measurement;

      (iv) The action(s) taken to repair the leak and the date(s) of repair;

      (v) Any required re-monitoring and the re-monitored concentration of methane (in ppmv);

      (vi) Wind speed during surface sampling; and

      (vii) The installation date and location of each well installed as part of a gas collection system expansion.

    (d) Any positive wellhead gauge pressure measurements, the date of the measurements, the well identification number, and the corrective action taken;

    (e) Each wellhead temperature monitoring value of 62.8ºC (145ºF) or above, each wellhead nitrogen level at or above 20 percent, and each wellhead oxygen level at or above 5 percent;

    (f) The monthly solid waste acceptance rate for active MSW landfills or MSW landfills that have accepted waste within the last 5 years;

    (g) The current amount of waste-in-place including waste composition;

    (h) The nature, location, amount, and date of deposition of non-decomposable waste for any landfill areas excluded from the collection system;

    (i) Results of any performance tests conducted in accordance with the provisions in Regulation .05B(7) of this chapter;

    (j) A description of mitigation measures taken to prevent the release of methane or other emissions into the atmosphere, including:

      (i) When solid waste was brought to the surface during the installation or preparation of wells, piping, or other equipment;

      (ii) During repairs or the temporary shutdown of gas collection system components; or

      (iii) When solid waste was excavated and moved.

    (k) Records of any construction activities in accordance with Regulation .07C of this chapter. Records shall contain the following information:

      (i) A description of the actions being taken, the areas of the landfill that will be affected by these actions, the reason the actions are required, and any landfill gas collection system components that will be affected by these actions;

      (ii) Construction start and finish dates, projected equipment installation dates, and projected shut down times for individual gas collection system components; and

      (iii) A description of the mitigation measures taken to minimize methane emissions and other potential air quality impacts.

    (l) For any root cause analysis for which corrective actions are required, the following information:

      (i) Records of the root cause analysis conducted;

      (ii) The corrective action analysis;

      (iii) The date for corrective action(s) already completed following the positive pressure reading or high temperature reading;

      (iv) For action(s) not already completed, a schedule for implementation, including proposed commencement and completion dates; and

      (v) A copy of any comments or final approval on the corrective action analysis or schedule from the Department.

    (m) Records of the gas control system equipment operating parameters specified to be monitored under Regulation .09B of this chapter as well as records for periods of operation during which the parameter boundaries established during the most recent performance test are exceeded. The records shall include the following information:

      (i) For enclosed flares, all 3-hour periods of operation during which the average temperature difference was more than 28ºC (50º F) below the average combustion temperature during the most recent performance test at which compliance with Regulations .05B(2) and (3) of this chapter was determined;

      (ii) For a boiler or process heater with a design heat input capacity of 44 megawatts (150 MMBtu/hr) or greater to comply with Regulation .05B(3) of this chapter, all periods of operation of the boiler or process heater (e.g., steam use, fuel use, or monitoring data collected pursuant to other federal, State, local, or tribal regulatory requirements;

      (iii) For open flares, continuous records of the flame or flare pilot flame monitoring, and up-to-date, readily accessible records of all periods of operation in which the flame or flare pilot flame is absent; and

      (iv) For the system, the indication of flow to the control system and the indication of bypass flow or records of monthly inspections of car-seals or lock-and-key configurations used to seal bypass lines.

    (n) All gas collection and control system exceedances of the operational standards, the reading in the subsequent month whether or not the second reading is an exceedance, and the location of each exceedance;

    (o) For the owner or operator of a MSW landfill who converts waste-in-place from volume to mass, records of the annual recalculation of site-specific density, design capacity, and the supporting documentation;

    (p) For the owner or operator of a MSW landfill demonstrating that site-specific surface methane emissions are below 200 ppmv by conducting surface emissions monitoring in accordance with Regulation .04B(3)(b) of this chapter, records of all surface emissions monitoring and information related to monitoring instrument calibrations conducted according to sections 8 and 10 of Method 21 of Appendix A of 40 CFR Part 60, including all of the following items:

      (i) Calibration records, including the date of calibration and initials of operator performing the calibration, calibration gas cylinder identification, certification date, and certified concentration, the instrument scale used, description of any corrective action taken if the meter readout could not be adjusted to correspond to the calibration gas value, and, if an owner or operator makes their own calibration gas, a description of the procedure(s) used;

      (ii) Digital photographs of the instrument setup, including the wind barrier. The photographs shall be accurately time and date-stamped and taken at the first sampling location prior to sampling and at the last sampling location after sampling at the end of each sampling day;

      (iii) Timestamp of each surface scan reading which shall be detailed to the nearest second, based on when the sample collection begins and log for the length of time each sample was taken using a stopwatch (e.g., the time the probe was held over the area);

      (iv) Location of each surface scan reading. The owner or operator shall determine the coordinates using an instrument with an accuracy of at least 4 meters and the coordinates shall be in decimal degrees with at least five decimal places and the coordinates will become the location identification label;

      (v) Monitored methane concentration (ppmv) of each reading;

      (vi) Background methane concentration (ppmv) after each instrument calibration test;

      (vii) For readings taken at each surface penetration, the unique identification location label matching the label specified in Regulation .10B(1)(p)(iv) of this chapter; and,

      (viii) Records of the operating hours of the gas collection system for each destruction device.

    (q) For the owner or operator reporting leachate or other liquids addition under Regulation .10C(16) of this chapter, records of any engineering calculations or company records used to estimate the quantities of leachate or liquids added, the surface areas for which the leachate or liquids were applied, and the estimates of annual waste acceptance or total waste in place in the areas where leachate or liquids were applied;

    (r) The date of initial placement of waste in newly constructed MSW landfill cells;

    (s) Documentation of any component leaks of methane equal to or greater than 250 ppmv detected in accordance with the provisions in Regulation .09B(7) of this chapter and all repairs performed in response to any component leaks equal to or greater than 500 ppmv; and

    (t) The maximum design capacity of the MSW landfill.

  (2) The owner or operator of a MSW landfill shall maintain the following records for the life of each gas control device, as measured during the initial performance test or compliance determination:

    (a) The density of wells, horizontal collectors, surface collectors, or other gas extraction devices determined using the procedures and requirements specified in Regulation .05A(1) of this chapter;

    (b) The expected gas generation flow rate as calculated in accordance with Regulation .11B of this chapter;

    (c) The percent reduction of methane achieved by the control device determined in accordance with Regulation .11C of this chapter;

    (d) For a boiler or process heater, the description of the location at which the collected gas vent stream is introduced into the boiler or process heater over the same time period of the performance test;

    (e) Where the owner or operator subject to the provisions of this regulation is demonstrating compliance with Regulation .05B of this chapter through use of an enclosed combustion device other than a boiler or process heater with a design heat input capacity equal to or greater than 44 megawatts per hour (150 million British thermal units per hour):

      (i) The average temperature measured at least every 15 minutes and averaged over the same time period of the performance test; and

      (ii) The percent reduction of methane determined as specified in Regulation .11C of this chapter achieved by the control device;

    (f) For an open flare:

      (i) The flare type (i.e., steam-assisted, air-assisted, or non-assisted);

      (ii) All visible emission readings, heat content determination, flow rate or bypass flow rate measurements, and exit velocity determinations made during the performance test as specified in 40 CFR §60.18, as amended; and

      (iii) Records of the flare pilot flame or flare flame monitoring and records of all periods of operations during which the pilot flame or the flare flame is absent;

    (g) The most recent map showing each existing and planned gas collector in the system;

    (h) Bypass records, including records of the flow of landfill gas to, and bypass of, the treatment system, as used to demonstrate compliance with Regulation .05B

    (i) Site-specific treatment monitoring plan meeting the requirements of Regulation .05B(5) of this chapter.

    (j) The most recent, readily accessible plot map showing all existing and planned collectors in the system and providing a unique identification location label for each collector.

  (3) Bioreactor Moisture Content Calculations.

    (a) A MSW landfill owner or operator conducting calculations to determine the moisture content of a bioreactor shall document the calculations and the basis of any assumptions made to make such calculations.

    (b) The owner or operator shall keep records of the calculations for a minimum of 5 years or until liquids addition ceases.

  (4) Retention of Records and Reports.

    (a) The owner or operator shall keep records of subsequent tests or monitoring in §B(2) of this regulation for a minimum of 5 years and records of the control device vendor specifications until removal.

    (b) The owner or operator shall maintain copies of the records and reports required by this regulation and provide them to the Department upon request.

C. Reporting Requirements.

  (1) Closure Notification.

    (a) The owner or operator of a MSW landfill which has ceased accepting waste shall submit a closure notification to the Department no later than 30 days after waste acceptance cessation.

    (b) The closure notification shall include the last day solid waste was accepted, the anticipated closure date of the MSW landfill, and the estimated waste-in-place.

    (c) The Department may request additional information as necessary to verify that permanent closure has taken place in accordance with the requirements of any applicable federal, State, or local regulations and ordinances in effect at the time of closure.

  (2) Equipment Removal Report.

    (a) A gas collection and control system equipment removal report shall be submitted to the Department 30 days prior to well capping, removal, or cessation of operation of the gas collection, treatment, or control system equipment.

    (b) The report shall contain the following information:

      (i) A copy of the closure notification submitted to the Department in accordance with §C(1) of this regulation;

      (ii) A copy of the initial performance test report or other documentation demonstrating that the gas collection and control system has been installed and operated for a minimum of 15 years, unless the owner or operator can demonstrate that due to declining methane rates the MSW landfill is unable to operate the gas collection and control system for a 15-year period; and

      (iii) Surface emissions monitoring results needed to verify that landfill surface methane concentration measurements do not exceed the limits specified in Regulation .07A of this chapter.

  (3) Semi-annual Report. A MSW landfill owner or operator subject to the requirements of this chapter shall submit a semi-annual report to the Department by the end of the month following the 6-month period beginning January 1, 2024 through June 30, 2024, and each subsequent 6 months thereafter. The semi-annual report shall include the MSW landfill name, owner and operator, and address; and the following information:

    (a) All instantaneous surface readings of 100 ppmv or greater;

    (b) All exceedances of the limits in Regulation .04B(3)(b), Regulation .07A, and Regulation .09B(7) of this chapter including:

      (i) The location of the leak (or affected grid);

      (ii) Leak concentration in ppmv;

      (iii) Date and time of measurement;——

      (iv) The action taken to repair the leak;

      (v) Date of repair;

      (vi) Any required re-monitoring and the re-monitored concentration in ppmv;

      (vii) Wind speed during surface sampling;

      (viii) The concentration recorded at each location for which an exceedance was recorded in the previous month; and

      (ix) The installation date and location of each well installed as part of a gas collection system expansion.

    (c) For any corrective action analysis for which corrective actions are required in Regulation .09C(1)—(3) of this chapter and that take more than 60 days to correct the exceedance:

      (i) The root cause analysis conducted, including a description of the recommended corrective action(s);

      (ii) The date for corrective action(s) already completed following the positive pressure or elevated temperature reading; and

      (iii) For action(s) not already completed, a schedule for implementation, including proposed commencement and completion dates.

    (d) All known, prevented, or suspected subsurface landfill fire(s) along with potential causes and any efforts conducted to avoid or put out the fire(s), including any positive pressure readings that may have contributed to the known, prevented, or suspected fire;

    (e) The number of times that applicable parameters monitored under Regulation .05B or Regulation .07 were exceeded and when the gas collection and control system was not operating in compliance with the provisions of Regulation .05B(1) including periods of startup, shutdown, and malfunction. For each instance, report the date, time, and duration of each exceedance;

    (f) Where the owner or operator subject to the requirements of this regulation is demonstrating compliance with the operational standard for temperature in Regulation .09C(2) and (3) of this chapter, the owner or operator shall provide a statement of the wellhead operational standard for temperature and oxygen level the landfill is complying with for the period covered by the report. The report shall indicate:

      (i) The number of times each of those parameters monitored under Regulation .09C of this chapter were exceeded, reporting for each instance the date, time, and duration of each exceedance; and

      (ii) The number of times the parameters for the site-specific treatment system in Regulation .05B(5) were exceeded.

    (g) Description and duration of all periods when the gas stream was diverted from the control device or treatment system through a bypass line or there was an indication of bypass flow resulting from an inspection required by Regulation .05B(3)(d) of this chapter;

    (h) Description and duration of all periods when the control device or treatment system was not operating and length of time the control device or treatment system was not operating;

    (i) All periods when the collection system was not operating;

    (j) The date of installation and the location of each well or collection system expansion;

    (k) Each owner or operator required to conduct enhanced monitoring in accordance with the provisions of Regulation .11I of this chapter for temperatures exceeding 62.8ºC (145ºF) shall include the results of all monitoring activities conducted during the period;

    (l) For enclosed combustors, except for boilers and process heaters with design heat input capacity of 44 megawatts per hour (150 million British thermal units per hour) or greater, all three-hour periods of operation during which the average temperature was more than 28ºC (82ºF) below the average combustion temperature during the most recent performance test; and

    (m) For boilers or process heaters, whenever there is a change in the location at which the vent stream is introduced into the flame zone.

  (4) Annual Report.

    (a) The owner or operator subject to the requirements of this chapter shall submit to the Department an annual report for the period of January 1 through December 31 of each year.

    (b) Unless otherwise stated, the annual report shall be submitted to the Department no later than March 15 of the following year.

    (c) The annual report shall consist of the semi-annual reports and contain the following additional annual reporting requirements:

      (i) MSW landfill name, owner and operator, and address;

      (ii) Total volume of landfill gas collected for the entire reporting period (reported in standard cubic yards);

      (iii) Average composition of the landfill gas collected over the reporting period (reported in percent methane and percent carbon dioxide by volume);

      (iv) Gas control device type, year of installation, rating, fuel type, and total amount of landfill gas combusted in each control device;

      (v) The date that the gas collection and control system was installed and in full operation;

      (vi) The percent methane destruction efficiency of each gas control device(s);

      (vii) The type and amount of supplemental fuels burned with the landfill gas in each device;

      (viii) The total volume of landfill gas shipped off-site, the composition of the landfill gas collected (reported in percent methane and percent carbon dioxide by volume), and the recipient of the gas;

      (ix) The most recent topographic map of the site showing the areas with final cover and a geomembrane and the areas with final cover without a geomembrane with corresponding percentages over the landfill surface;

      (x) The information required in §B(1)(a)—(e), §B(1)(g), and §B(1)(j)—(l) of this regulation; and

      (xi) Instrument specifications for all instruments used for monitoring compliance with this chapter.

  (5) Waste-in-Place Report. The owner or operator subject to the requirements of Regulation .04B shall prepare a Waste-in-Place report for the period of January 1 through December 31 of each year and submit the following information to the Department by March 15 of the following year:

    (a) MSW landfill name, owner and operator, and address;

    (b) The MSW landfill’s status (active, closed, or inactive);

    (c) The total estimated waste-in-place, in tons, as of December 31 of each year;

    (d) A description of the known and assumed waste composition in the landfill; and

    (e) The most recent topographic map of the site showing the areas with final cover and a geomembrane and the areas with final cover without a geomembrane with a calculation of the corresponding percentage geomembrane coverage over the landfill surface.

  (6) Methane Generation Rate Report. The owner or operator subject to the requirements of Regulation .04B shall calculate the methane generation rate using the calculation procedures specified in Regulation .11D of this chapter and submit the results, along with a summary of efforts being implemented at the MSW landfill to reduce landfill gas emissions to the Department:

    (a) By March 15, 2024 for MSW landfills with greater than 450,000 tons waste-in-place;

    (b) Within 90 days of reaching 450,000 tons of waste-in-place;

    (c) By March 15 of each subsequent year while waste-in-place is greater than 450,000 tons and the methane generation rate is less than 732 tons per year.

    (d) Include in the report the methane generation calculation, along with relevant parameters, and

    (e) Include in the report the results of a visual inspection of the landfill cover and any actions done to fix leaks and minimize methane releases.

  (7) Performance Test Report.

    (a) For a control system designed and operated to meet the requirements of this chapter, the owner or operator shall submit a Performance Test Report to the Department that establishes the reduction efficiency or parts per million by volume no later than 180 days after the initial startup of the approved control system using EPA Method 25 or 25C, 40 CFR Part 60, Appendix A.

    (b) The owner or operator shall submit any additional performance test reports to the Department within 30 days after the date of completing each performance test, including any associated fuel analyses.

    (c) The performance test report shall include the following information:

      (i) A diagram of the collection system showing collection system positioning including all wells, horizontal collectors, surface collectors, or other gas extraction devices, all areas excluded from collection, and the proposed sites for the future collection system expansion;

      (ii) The data upon which the sufficient density of wells, horizontal collectors, surface collectors, or other gas extraction devices and the gas mover equipment sizing are based;

      (iii) The documentation of the presence of asbestos or non-decomposable material for each area from which collection wells have been excluded based on the presence of asbestos or non-decomposable material;

      (iv) The sum of the gas generation flow rates for all areas from which collection wells have been excluded based on nonproductivity and the calculations of gas generation flow rate for each excluded area;

      (v) The process for increasing gas mover equipment capacity with increased gas generation flow rate, if the present gas mover equipment is inadequate to move the maximum flow rate expected over the life of the landfill; and

      (vi) The process for controlling off-site migration.

    (d) The control device shall be operated within the parameter ranges established during the initial or most recent performance test, or manufacturer written specifications.

    (e) The operating parameters shall be monitored in accordance with the procedures specified in Regulation .09B of this chapter.

  (8) Gas Collection and Control System Design Plans. The collection and control system design plan shall be prepared by a professional engineer and shall meet the following requirements:

    (a) The gas collection and control system as described in the design plan shall meet the design requirements and deadlines in Regulation .05A of this chapter;

    (b) In the event that the design plan is required to be modified to obtain approval, the owner or operator shall take any steps necessary to conform any prior actions to the approved design plan; and

    (c) If the owner or operator chooses to demonstrate compliance with the emission control requirements of this chapter using a treatment system as defined in this chapter, then the owner or operator shall prepare and submit to the Department a site-specific treatment system monitoring plan as specified in Regulation .05B(5) of this chapter.

  (9) Amended Design Plans. The owner or operator who has previously been required to submit a design plan under Regulation .05Aof this chapter shall submit an amended design plan to the Department at least 90 days in advance of any of the following events:

    (a) Expanding operations to an area not covered by the previously approved design plan; or

    (b) Installing, repairing, or expanding the gas collection system in a way that is not consistent with the design plan previously approved by the Department.

  (10) Corrective Action and Corresponding Timeline Reports.

    (a) For corrective action that is required in accordance with the provisions in Regulation .09C of this chapter and is expected to take longer than 120 days after the initial exceedance to complete, the MSW landfill owner or operator shall submit the root cause analysis, corrective action analysis, and corresponding implementation timeline to the Department for approval as soon as practicable but no later than 75 days after the first measurement of positive pressure or temperature monitoring value of 62.8ºC (145ºF).

    (b) For corrective action that is required according to Regulation .09C and is not completed within 60 days after the initial exceedance, the MSW landfill owner or operator shall submit a notification to the Department as soon as practicable but no later than 75 days after the first measurement of positive pressure or temperature exceedance.

  (11) Instantaneous Surface Emissions Monitoring Report.

    (a) A MSW landfill owner or operator conducting surface emission monitoring in accordance with the provisions in Regulation .04B(3)(b) and (4) of this chapter shall submit an instantaneous surface emissions monitoring report to the Department within 30 days after the fourth consecutive quarter of monitoring if no exceedances are detected, or 30 days after a measured concentration of methane of 200 ppmv or greater, whichever is first.

    (b) The instantaneous surface emissions monitoring report shall include:

      (i) All results of the surface emissions monitoring, clearly identifying the location, date and time (to nearest second), average wind speeds including wind gusts, reading (in parts per million) of concentrations of methane above 100 ppmv, other than non-repeatable, momentary readings, and any corrective actions taken;

      (ii) For location, the owner or operator shall determine the latitude and longitude coordinates using an instrument with an accuracy of at least 4 meters and the coordinates in decimal degrees with at least five decimal places; and

      (iii) The results of the most recent methane generation rate calculation.

  (12) 24-Hour High Temperature Report. Where an owner or operator seeks to demonstrate compliance with the operational standard for temperature in Regulation .09C(2)—(3) of this chapter and the landfill gas temperature measured at either the wellhead or at any point in the well is greater than or equal to 76.7ºC (170ºF), and the carbon monoxide concentration measured is greater than or equal to 1,000 ppmv, the owner or operator shall report the date, time, well identifier, temperature and carbon monoxide reading to the Department within 24 hours of the measurement unless a higher operating temperature value has been approved by the Department for the well.

  (13) Repairs and Temporary Shutdown Notification.

    (a) The owner or operator of an MSW landfill that intends to temporarily shut down a gas collection and control system in accordance with Regulation .05F of this chapter shall submit a notification of the shutdown to the Department at least 30 days in advance that includes a justification for the shutdown, the system component(s) that will require shutdown, and the approximate timeline for the shutdown.

    (b) If a shutdown occurs due to catastrophic or other unplanned events as listed in Regulation .05F(3) of this chapter, the notification shall be submitted to the Department within 10 days after the shutdown.

  (14) Root Cause Analysis Report.

    (a) If a person who owns or operates a MSW landfill cannot fully implement a corrective action required according to Regulation .09C within 120 days after the initial exceedance, the owner or operator shall submit the root cause analysis and additional analysis and reporting in accordance with §C(10) of this regulation as soon as practicable but no later than 75 days after the first measurement of positive pressure or temperature monitoring value of 62.8ºC (145ºF).

    (b) The root cause analysis shall include a thorough investigation of the landfill gas collection and control system to determine the primary cause, and any other contributing causes, of positive pressure or high temperature at a wellhead.

    (c) The report shall include each factor investigated, methods used, and alternative causes that were analyzed.

  (15) Bioreactor Moisture Content Report. If a MSW landfill owner or operator calculates moisture content to establish the date the bioreactor is required to begin operating the collection and control system, the owner or operator shall submit not later than 90 days after the bioreactor achieves 40-percent moisture content a bioreactor moisture content report to the Department that includes all of the following information:

    (a) Results of the calculation;

    (b) The date the bioreactor achieved 40-percent moisture content by weight; and

    (c) The date the owner or operator will begin collection and control system operation.

  (16) Liquids Addition Report.

    (a) An owner or operator subject to the provisions in Regulation .04C of this chapter that has employed leachate recirculation or added liquids based on a research, development, and demonstration permit for landfill operations (issued through Resource Conservation and Recovery Act, subtitle D, part 258) within the last 10 years shall submit to Department, annually, the following information:

      (i) Volume of leachate recirculated (gallons per year) and the reported basis of those estimates (records or engineering estimates);

      (ii) Total volume of all other liquids added (gallons per year) and the reported basis of those estimates (records or engineering estimates);

      (iii) Surface area (acres) over which the leachate is recirculated (or otherwise applied);

      (iv) Surface area (acres) over which any other liquids are applied;

      (v) The total waste disposed (megagrams) in the areas with recirculated leachate, added liquids, or both, based on on-site records to the extent data are available, or engineering estimates and the reported basis of those estimates; and

      (vi) The annual waste acceptance rates (megagrams per year) in the areas with recirculated leachate, added liquids, or both, based on on-site records to the extent data are available, or engineering estimates.

    (b) The initial report shall include the information listed in §C(16)(a) of this regulation for the initial annual reporting period as well as for each of the previous 10 years, to the extent historical data is in possession or control of the owner or operator.

    (c) The initial report shall be submitted to the Department no later than 12 months after the date of commenced construction, modification, or reconstruction.

    (d) Subsequent annual reports shall include the information listed in §C(16)(a) of this regulation for the 365-day period following the 365-day period included in the previous annual report.

    (e) All subsequent annual reports shall be submitted to the Department no later than 365 days after the date the previous report was submitted.

    (f) Landfills may cease annual reporting of the information listed in §C(16)(a) of this regulation once they have submitted the closure notification in §C(1) of this regulation to the Department.

  (17) Design Capacity Report.

    (a) An amended design capacity report shall be submitted to the Department within 90 days of an increase in the maximum design capacity of the landfill to meet or exceed 2,750,000 tons and 3,260,000 cubic yards.

    (b) An increase in design capacity may result from an increase in the permitted volume of the MSW landfill and/or an increase in the density.

#### Regulation .11 Test Methods and Procedures.

*COMAR 26.11.42.11*

The owner or operator of a MSW landfill shall use the following test methods and procedures to demonstrate compliance with the provisions of this chapter:

A. Hydrocarbon Detector Specification. Any instrument used for the measurement of methane shall be a gas detector or other equivalent instrument approved by the Department that meets the calibration, specifications, and performance criteria of EPA Reference Method 21, Determination of Volatile Organic Compound Leaks, 40 CFR Part 60, Appendix A, as amended except for the following modifications and adjustments:

  (1) “Methane” shall replace all references to volatile organic compounds (VOC);

  (2) The calibration gas shall be methane, diluted to a nominal concentration of 500 parts per million in air;

  (3) To meet the performance evaluation requirements in section 8.1 of Method 21 of 40 CFR Part 60, Appendix A the instrument evaluation procedures of section 8.1 of Method 21 of 40 CFR. Part 60, Appendix A shall be used; and

  (4) The calibration procedures provided in sections 8 and 10 of Method 21 of 40 CFR Part 60, Appendix A shall be followed immediately before commencing a surface monitoring survey.

B. Determination of Expected Gas Generation Flow Rate. The expected gas generation flow rate shall be determined in accordance with 40 CFR §63.1960(a)(1), as amended.

C. Determination of Control Device Destruction Efficiency. The following methods of analysis shall be used to determine the efficiency of the control device in reducing methane:

  (1) Enclosed Combustors. One of the following test methods shall be used to determine the efficiency of the control device in reducing methane by at least 99 percent, or in reducing the outlet methane concentration for lean burn engines to less than 3,000 ppmv, dry basis, corrected to 15 percent oxygen:

    (a) U.S. EPA Reference Method 18, Measurement of Gaseous Organic Compound Emissions by Gas Chromatography;

    (b) U.S. EPA Reference Method 25, Determination of Total Gaseous Nonmethane Organic Emissions as Carbon;

    (c) U.S. EPA Reference Method 25A, Determination of Total Gaseous Organic Concentration Using a Flame Ionization Analyzer; or

    (d) U.S. EPA Reference Method 25C, Determination of Nonmethane Organic Compounds in Landfill Gases.

  (2) The following equation shall be used to calculate destruction efficiency:

D. Determination of Methane Generation Rate. The following methods and procedures shall be used to determine the methane generation rate, as applicable:

  (1) MSW Landfills without Carbon Adsorption or Passive Venting Systems.

    (a) The methane generation rate shall be calculated using the procedures specified in 40 CFR §98.343(a)(1), as amended.

    (b) The Department may request additional information as may be necessary to verify the methane generation rate from the landfill and site-specific data may be substituted when available.

  (2) MSW Landfills with Carbon Adsorption Systems.

    (a) The methane generation rate shall be determined by measuring the actual total landfill gas flow rate, in standard cubic feet per minute (scfm), using a flow meter or other flow measuring device such as a standard pitot tube and the methane concentration (percent by volume) using a hydrocarbon detector meeting the requirements of Regulation .11A of this chapter.

    (b) The total landfill gas flow rate shall be multiplied by the methane concentration to determine the methane generation rate.

  (3) MSW Landfills with Passive Venting Systems. The methane generation rate shall be determined using the following methods and shall be the higher of those determined values:

    (a) The test methods in Regulation .11D(1)(a); and

    (b) The measured actual landfill gas flow rates (in units of scfm) using a flow measuring device such as a standard pitot tube and methane concentration (percent by volume) using a hydrocarbon detector meeting the requirements of Regulation .11A from each venting pipe that is within the waste mass.

      (i) Each gas flow rate shall be multiplied by its corresponding methane concentration to obtain the individual methane flow rate.

      (ii) The individual methane flow rates shall be added together to determine the methane generation rate.

  (4) The methane generation rate shall include waste received during the previous calendar year, from January 1 through December 31.

E. Open Flares. Open flares shall meet the requirements of 40 CFR §60.18, as amended.

F. Surface Emissions Monitoring. The owner or operator shall measure the landfill surface concentration of methane using a hydrocarbon detector meeting the requirements of Regulation .11A of this chapter. The landfill surface shall be inspected using the following procedures:

  (1) General Procedures for Instantaneous and Integrated Monitoring.

    (a) The entire MSW landfill surface or monitoring area shall be divided into individually identified 50,000 square foot grids and include the entire perimeter of the collection area.

    (b) The grids shall be used for both instantaneous and integrated surface emissions monitoring.

    (c) Surface emissions monitoring shall be performed in accordance with section 8.3.1 of EPA Method 21 of Appendix A of 40 CFR. Part 60 by holding the inlet probe of the hydrocarbon detector within 2 inches of the landfill surface while traversing the grid.

    (d) The walking pattern shall be no more than a 25-foot spacing interval and shall traverse each monitoring grid.

      (i) If the owner or operator has no exceedances of the limits specified in Regulation .07A of this chapter after any four consecutive quarterly monitoring periods, the walking pattern spacing may be increased to 100-foot intervals.

      (ii) The owner or operator shall return to a 25-foot spacing interval upon any exceedances of the limits specified in Regulation .07A of this chapter that cannot be remediated within 10 calendar days or upon any exceedances detected during a compliance inspection.

      (iii) If an owner or operator of a MSW landfill can demonstrate that in the past 3 years before the effective date of this regulation that there were no measured exceedances of the limit specified in Regulation .07A(1) of this chapter by annual or quarterly monitoring, the owner or operator may increase the walking pattern spacing to 100-foot intervals.

    (e) Average wind speed shall be determined on a 5-minute interval using an on-site anemometer with a continuous recorder and data logger for the entire duration of the monitoring event.

    (f) The owner or operator shall use a wind barrier, similar to a funnel, when onsite average wind speed exceeds 4 miles per hour or 2 meters per second or gust exceeding 10 miles per hour.

    (g) The wind barrier shall surround the surface emission monitoring monitor, and shall be placed on the ground, to ensure wind turbulence is blocked.

    (h) Surface emissions monitoring shall not be conducted if average wind speed exceeds 25 miles per hour.

    (i) Surface emissions monitoring shall be performed during typical meteorological conditions.

  (2) Instantaneous Surface Emissions Monitoring Procedures.

    (a) The owner or operator of a MSW landfill shall record any instantaneous surface readings of methane 100 ppmv or greater and shall document if the reading is a confirmed reading or whether it is a non-repeatable, momentary reading.

    (b) Surface areas of the MSW landfill that equal or exceed a methane concentration limit of 500 ppmv, or 200 ppmv if this is to determine compliance with the requirements in Regulation .04B(3)(b), shall be marked and remediated in accordance with Regulation .09A(1) of this chapter.

    (c) Surface areas of the MSW landfill that equal or exceed a methane concentration limit of 250 ppmv (for compliance with Regulation .09B(7) of this chapter), or 100 ppmv (for compliance with Regulation .04B(3)(b) of this chapter), shall be monitored in a 5-foot grid around the location to determine the extents of the methane leak.

    (d) The wind speed shall be recorded during the sampling period.

    (e) The landfill surface areas with cover penetrations, distressed vegetation, cracks, or seeps shall also be inspected visually and with a hydrocarbon detector meeting the requirements in §A of this regulation.

    (f) If a MSW landfill is not subject to quarterly monitoring but is otherwise required to monitor in accordance with the provisions in 40 CFR Part 63 Subpart AAAA, 40 CFR 60 Subpart WWW or XXX, the MSW landfill owner or operator may reduce monitoring to annually at a specific penetration location if no methane is detected with the hydrocarbon detector at that specific penetration location for four consecutive quarters, but the penetration location shall return to quarterly monitoring if any subsequent methane concentration is detected during annual monitoring.

    (g) The location of each monitored exceedance shall be marked and the location and concentration recorded.

      (i) The location shall be recorded using an instrument with an accuracy of at least 4 meters.

      (ii) The coordinates shall be in decimal degrees with at least five decimal places.

  (3) Integrated Surface Emissions Monitoring Procedures.

    (a) Integrated surface readings shall be recorded and then averaged for each grid.

    (b) Individual monitoring grids that exceed an average methane concentration of 25 ppmv shall be identified and remediated in accordance with Regulation .09A(2) of this chapter.

    (c) The wind speed shall be recorded during the sampling period.

G. Gas Collection and Control System Leak Inspection Procedures. Leaks shall be measured using a hydrocarbon detector meeting the requirements of Regulation .11A of this chapter.

H. Wellhead Monitoring.

  (1) An owner or operator of a MSW landfill shall determine wellhead nitrogen levels using EPA Reference Method 3C, Determination of Volatile Organic Compound Leaks, 40 CFR Part 60, Appendix A, as amended, unless an alternative test method is approved by the Department.

  (2) Unless an alternative test method is established and approved by the Department, an owner or operator of an MSW landfill shall determine wellhead oxygen levels by an oxygen meter using EPA Reference Method 3A or 3C, 40 CFR Part 60, Appendix A, or ASTM D6522-20, (if sample location is prior to combustion) except that:

    (a) The span shall be set between 10 and 12 percent oxygen;

    (b) A data recorder is not required;

    (c) Only two calibration gases are required, a zero and span;

    (d) A calibration error check is not required; and

    (e) The allowable sample bias, zero drift, and calibration drift are ±10 percent.

  (3) The owner and operator of a MSW landfill may use a portable gas composition analyzer to monitor wellhead oxygen levels provided that the analyzer is calibrated and the analyzer meets all quality assurance and quality control requirements for 40 CFR Part 60, Appendix A-1, Method 3A or ASTM D6522-11.

  (4) Determination of Gauge Pressure.

    (a) Wellhead gauge pressure shall be determined using a hand-held manometer, magnehelic gauge, or other pressure measuring device approved by the Department.

    (b) The device shall be calibrated and operated in accordance with the manufacturer’s specifications.

  (5) An owner or operator of a MSW landfill shall calibrate the wellhead temperature measuring devices annually using the procedure in 40 CFR Part 60, Appendix A-1, Method 2, Section 10.3, except that a minimum of two temperature points, bracket within 10 percent of all landfill absolute temperature measurements or two fixed points of ice bath and boiling water, corrected for barometric pressure, are used.

I. Enhanced Monitoring. The owner or operator of a MSW landfill shall initiate enhanced monitoring at each well with a measurement of landfill gas temperature greater than 62.8 ºC (145 ºF) as follows:

  (1) Visual observations for subsurface oxidation events (smoke, smoldering ash, damage to well) within the radius of influence of the well;

  (2) Monitor oxygen or nitrogen concentration as provided in Regulation .09C of this chapter;

  (3) Monitor temperature of the landfill gas at the wellhead as provided in Regulation .09C of this chapter;

  (4) Monitor temperature of the landfill gas every 10 vertical feet of the well as provided in Regulation .09C of this chapter and §I(10) of this regulation;

  (5) Monitor the methane concentration with a methane meter using EPA Method 3C of Appendix A-6 to 40 CFR Part 60, EPA Method 18 of Appendix A-6 to 40 CFR. part 60, or a portable gas composition analyzer to monitor the methane levels provided that the analyzer is calibrated and the analyzer meets all quality assurance and quality control requirements for EPA Method 3C or EPA Method 18;

  (6) Monitor carbon monoxide concentrations, as follows:

    (a) Collect the sample from the wellhead sampling port in a passivated canister or multi-layer foil gas sampling bag (such as the Cali-5-Bond Bag) and analyze that sample using EPA Method 10, 40 CFR Part 60, Appendix A-4, or an equivalent method with a detection limit of at least 100 ppmv of carbon monoxide in high concentrations of methane; and

    (b) Collect and analyze the sample from the wellhead using EPA Method 10, 40 CFR Part 60, Appendix A-4 to measure carbon monoxide concentrations.

  (7) The enhanced monitoring shall begin 7 days after the first measurement of landfill gas temperature greater than 62.8ºC (145ºF);

  (8) The enhanced monitoring shall be conducted on a weekly basis.

    (a) If four consecutive weekly carbon monoxide readings are under 100 ppmv, then enhanced monitoring may be decreased to a monthly basis;

    (b) If monthly carbon monoxide readings exceed 100 ppmv, the MSW landfill shall return to weekly monitoring.

  (9) The enhanced monitoring can be stopped once a higher operating value is approved, at which time the monitoring provisions issued with the higher operating value shall be followed, or once the measurement of landfill gas temperature at the wellhead is less than or equal to 62.8ºC (145ºF);

  (10) For each wellhead with a measurement of landfill gas temperature greater than or equal to 73.9ºC (165ºF), annually monitor temperature of the landfill gas every 10 vertical feet of the well; and

  (11) The owner or operator may use a removable thermometer or use temporary or permanent thermocouples installed in the well to monitor the temperature of the landfill gas.

J. Bioreactor Moisture Content.

  (1) The bioreactor moisture content calculation shall consider the following:

    (a) Waste mass;

    (b) Moisture content of the incoming waste;

    (c) Mass of water added to the waste including leachate recirculation and other liquids addition and precipitation;

    (d) Mass of water removed through leachate or other water losses; and

    (e) Moisture level sampling or mass balances.

  (2) The owner or operator of a MSW landfill subject to the requirements in Regulation .04C of this chapter shall document the calculations and the basis of any assumptions and keep the record of the calculations until liquids addition ceases.

K. Alternative Test Methods. Alternative test methods may be used upon written approval by the Department and EPA.

### Chapter 43 — Advanced Clean Trucks Program

**Authority:** Environment Article, §§1-404, 2-102, 2-103, 2-301, 2-1102,  2-1103, and 2-1103.1, Annotated Code of Maryland

**Administrative History:** Effective date: December 25, 2023 (50:25 Md. R. 1090)

**Administrative History:** Regulation .02B amended effective December 22, 2025 (52:25 Md. R. 1269)

**Administrative History:** Regulation .04A amended effective December 23, 2024 (51.25 Md. R. 1142)

#### Regulation .01 Purpose.

*COMAR 26.11.43.01*

The purpose of this chapter is to implement the requirements of the Maryland Clean Trucks Act of 2023 by establishing regulations implementing California’s Advanced Clean Truck regulation.

#### Regulation .02 Incorporation by Reference.

*COMAR 26.11.43.02*

A. In this chapter, the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1963 Advanced Clean Trucks Purpose, Applicability, Definitions, and General Requirements, as effective May 9, 2025.

  (2) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1963.1 Advanced Clean Truck Deficits, as effective May 9, 2025.

  (3) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1963.2 Advanced Clean Trucks Credit Generation, Banking, and Trading, as effective May 9, 2025.

  (4) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1963.3 Advanced Clean Trucks Compliance Determination, as effective May 9, 2025.

  (5) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1963.4 Advanced Clean Trucks Reporting and Recordkeeping, as effective May 9, 2025.

  (6) Title 13, California Code of Regulations (CCR), Division 3, Chapter 1, Article 2, §1963.5 Advanced Clean Trucks Enforcement, as effective May 9, 2025.

C. In all provisions of CCR Title 13 incorporated by reference, replace the year “2021” with the year “2027,” except at 13 CCR §1963.2(g) and 13 CCR §1963.2(e).

D. Unless specifically excluded by this chapter, when a provision of the CCR is incorporated by reference, all notes, comments, appendices, diagrams, tables, forms, figures, publications, and cross-references are also incorporated by reference.

#### Regulation .03 Definitions.

*COMAR 26.11.43.03*

A. In General.

  (1) In this chapter, the following terms have the meanings indicated.

  (2) Any term that is not defined in this regulation shall be as defined in the California documents incorporated by reference in Regulation .02 of this chapter.

  (3) Definitions in the California documents shall prevail in any case of discrepancy.

B. Terms Defined.

  (1) “California Air Resources Board” or “CARB” means the agency, or its successor agency, established and empowered to regulate sources of air pollution in the State of California, including motor vehicles, pursuant to the California Health and Safety Code §39003, as amended or supplemented.

  (2) “CCR” means the California Code of Regulations.

  (3) “Class 2b-3” means an on-road vehicle with a GVWR that is 8,501 pounds up to 14,000 pounds.

  (4) “Class 2b-3 group” means the group of all on-road vehicles with a GVWR that is 8,501 pounds up to 14,000 pounds.

  (5) “Class 4” means an on-road vehicle with a GVWR that is 14,001 pounds up to 16,000 pounds.

  (6) “Class 4-8 group” means the group of all on-road vehicles with a GVWR that is 14,001 pounds and above, including “yard tractors” as defined in 13 CCR §1963(c)(20), except for a “tractor” as defined in 13 CCR §1963(c)(18).

  (7) “Class 5” means an on-road vehicle with a GVWR that is 16,001 pounds up to 19,500 pounds.

  (8) “Class 6” means an on-road vehicle with a GVWR that is 19,501 pounds up to 26,000 pounds.

  (9) “Class 7” means an on-road vehicle with a GVWR that is 26,001 pounds up to 33,000 pounds.

  (10) “Class 7-8 tractor group” means a group of on-road vehicles, that have a GVWR 26,001 pounds and above, including all vehicles that meet the definition of “tractor” as defined in 13 CCR §1963(c)(18), except “yard tractors” as defined in 13 CCR §1963(c)(20).

  (11) “Class 8” means an on-road vehicle with a GVWR that is 33,001 pounds and above.

  (12) “Department” means the Maryland Department of the Environment.

  (13) “Executive Officer” means the Executive Officer of the California Air Resources Board as used in California-adopted statutes, regulations, and procedures related to the California Standards. This meaning is extended for purposes of the application of California Standards in Maryland to include the Secretary, who shall act as the agent of the California Executive Officer in Maryland.

  (14) “GVWR” means the same as the term “gross vehicle weight rating” as defined at 13 CCR §1963(c).

  (15) “Model year (MY)” means the following: For tractors and vocational vehicles with a date of manufacture on or after January 1, 2021, the vehicle's model year is the calendar year corresponding to the date of manufacture; however, the vehicle's model year may be designated to be the year before the calendar year corresponding to the date of manufacture if the engine's model year is also from an earlier year. Note that 40 Code of Federal Regulations (CFR) §1037.601(a)(2), as amended October 25, 2016, limits the extent to which vehicle manufacturers may install engines built in earlier calendar years.

  (16) “NZEV” means the same as the term “near-zero-emission vehicle” as defined at 13 CCR §1963(c).

  (17) “Ultimate purchaser” means in respect to any vehicle, the first person who in good faith purchases a new motor vehicle for purposes other than resale and registers it with the Maryland Motor Vehicle Administration.

  (18) “ZEV” means the same as the term “zero-emission vehicle” as defined at 13 CCR §1963(c).

#### Regulation .04 Applicability and Exemptions.

*COMAR 26.11.43.04*

A. Applicability.

  (1) Except as provided in §B of this regulation, this chapter applies to all manufacturers that produce 2027 and subsequent model year on-road vehicles over 8,500 pounds GVWR for sale in Maryland that are subject to the California Advanced Clean Truck regulation.

  (2) Beginning with model year 2025, any manufacturer that produces on-road vehicles over 8,500 pounds GVWR may generate, bank, and trade ZEV and NZEV credits pursuant to 13 CCR §1963.2, as incorporated by reference in this chapter.

  (3) In the event that there are inconsistencies or duplications in the requirements of the provisions incorporated by reference from the CCR and the rules set forth in this chapter, the provisions incorporated by reference from the CCR shall prevail.

B. Exemptions. This chapter does not apply to the following vehicles:

  (1) An emergency vehicle;

  (2) A vehicle defined as an “excluded bus” pursuant to 13 CCR §1963(c)(11); and

  (3) A vehicle designed exclusively for off-highway use.

#### Regulation .05 Advanced Clean Trucks Reporting and Recordkeeping.

*COMAR 26.11.43.05*

A. Sales Reporting. Beginning with the 2027 model year, and no later than 90 days following the end of each model year, a manufacturer shall report the following information to the Department for each on-road vehicle produced and delivered for sale in Maryland for each model year, except as provided in 13 CCR §1963.4(e):

  (1) Vehicle Identification Number (VIN) for each vehicle;

  (2) Vehicle weight class;

  (3) Whether the vehicle type is a tractor, yard tractor, or is another vehicle type;

  (4) Fuel and drivetrain type;

  (5) Volume produced and delivered for sale in Maryland for the vehicle type; and

  (6) If the vehicle is a NZEV, the tested all-electric range of the vehicle.

B. Credit Transfer Reporting.

  (1) A manufacturer that transfers to or receives ZEV or NZEV added credits from another manufacturer shall submit to the Executive Officer an annual report of all credit trades, transfers, and transactions.

  (2) The Department will not recognize any credit transfers until the report is received.

  (3) Reports shall be submitted no later than 90 days following the end of each model year to demonstrate compliance.

  (4) Manufacturers that transfer or receive ZEV or NZEV credits shall submit a letter or document signed by authorized agents of both parties to the transaction summarizing the transfer, which shall include the following:

    (a) Corporate name of credit transferor;

    (b) Corporate name of credit transferee;

    (c) Number of ZEV credits transferred for each model year, rounded to the nearest tenth according to 13 CCR §1963.2(c);

    (d) Number of NZEV credits transferred for each model year, rounded to the nearest tenth according to 13 CCR §1963.2(c); and

    (e) Indication of whether the ZEV or NZEV credits are Class 7-8 Tractor credits, or other credits.

C. Class 2b-3 Credit Declaration. A manufacturer that generates ZEV or NZEV credits from the Class 2b-3 group shall submit no later than 90 days following the end of each model year a declaration to the Executive Officer which includes:

  (1) The number of on-road vehicles produced and delivered for sale in Maryland to generate credits according to 13 CCR §1963.2; and

  (2) The number of on-road vehicles produced and delivered for sale in Maryland to generate credits according to 13 CCR §1962.2.

D. Retention of Records. Records of reported information required in 13 CCR §1963.4 and documentation showing vehicle delivery to the ultimate purchaser at a location in Maryland shall be kept by manufacturers for the Department to audit for a period of 8 years from the end of the model year the vehicles were produced.

E. Grouped Sales Reporting.

  (1) Manufacturers may optionally submit information required in 13 CCR §1963.4(a) grouped by categories for vehicles that are not ZEVs or NZEVs without providing individual VINs.

  (2) If exercising the option in §E(1) of this regulation, manufacturers shall still retain records available for the Department to audit, including the individual VINs according to 13 CCR §1963.4(d).

### Chapter 44 — Maryland Heating Fuel Provider Reporting Program

**Authority:** Environmental Article, §§1-404(b), 2-101(b), 2-103(b)(1), 2-301(a)(1), §2-1203, 2-1204.2, Annotated Code of Maryland

**Administrative History:** Effective date: December 22, 2025 (52:25 Md. R. 1269)

#### Regulation .01 Purpose.

*COMAR 26.11.44.01*

The purpose of this chapter is to establish reporting requirements for heating fuel providers of the amount of heating fuel delivered for final sale or consumption in the State.

#### Regulation .02 Applicability.

*COMAR 26.11.44.02*

This chapter applies to heating fuel providers delivering heating fuel in the State.

#### Regulation .03 Definitions.

*COMAR 26.11.44.03*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Biofuel” means a liquid fuel and blending components produced from biomass feedstocks.

  (2) “Biomethane” means a mixture of methane and other gases produced by decomposing matter in an oxygen-free environment with the assistance of microbes.

  (3) Commercial Sector.

    (a) “Commercial sector” means the part of the State’s economy that consists of service-providing facilities and equipment.

    (b) “Commercial sector” includes:

      (i) Businesses;

      (ii) Federal, state, and local government facilities;

      (iii) Institutional living quarters;

      (iv) Private and public organizations; and

      (v) Sewage treatment facilities.

  (4) “Coal” means a combustible rock that includes carbonaceous material and is formed from plant remains that have been compacted, hardened, chemically altered, and metamorphosed by heat and pressure over geologic time.

  (5) “Conservative missing data parameter” means data that are:

    (a) Substituted for missing data; and

    (b) Known to result in an amount of reported cubic feet, gallons, or tons for a delivery of a heating fuel under Regulation .05 of this chapter that is at least as large as the actual amount of the delivery.

  (6) “Deliver” means, regarding a heating fuel, to physically transfer, instruct or otherwise cause to be physically transferred.

  (7) “Department” means the Maryland Department of the Environment.

  (8) “Diesel fuel” means a fuel composed of distillates obtained in petroleum refining operations or blends of such distillates with residual oil used in motor vehicles.

  (9) Electric Power Sector.

    (a) “Electric power sector” means the part of the State’s economy whose primary business is to sell electricity, or electricity and heat, to the public.

    (b) “Electric power sector” includes:

      (i) Electric generating stations; and

      (ii) Combined heat and power (CHP) plants.

  (10) “Gallon” means a unit of volume (U.S. gallon) equaling 231 cubic inches.

  (11) Heating Fuel.

    (a) “Heating fuel” means any material substance, whether solid, liquid, or gaseous, that can be used to supply heat.

    (b) “Heating fuel” includes:

      (i) Biofuel;

      (ii) Biomethane;

      (iii) Coal;

      (iv) Hydrogen;

      (v) Kerosene;

      (vi) Natural gas;

      (vii) No. 1 fuel oil;

      (viii) No. 2 fuel oil;

      (ix) No. 4 fuel oil;

      (x) No. 5 fuel oil;

      (xi) No. 6 fuel oil;

      (xii) Other fuel oil; and

      (xiii) Propane.

    (c) “Heating fuel” does not include:

      (i) Diesel fuel;

      (ii) Motor gasoline;

      (iii) Wood and wood-derived fuels; and

      (iv) Solid waste.

  (12) “Heating fuel provider” means a person that delivers heating fuel for final sale or consumption in the State.

  (13) “Hydrogen fuel” means the use of hydrogen as a fuel source.

  (14) Industrial Sector.

    (a) “Industrial sector” means the part of the State’s economy that consists of all facilities and equipment used for producing, processing, or assembling goods.

    (b) “Industrial sector” includes the following types of activity:

      (i) Agriculture;

      (ii) Construction;

      (iii) Forestry;

      (iv) Manufacturing;

      (v) Mining; and

      (vi) Oil and gas extraction.

  (15) Keronse.

    (a) “Kerosene” means a light petroleum distillate that has a maximum distillation temperature of 400 degrees Fahrenheit at the 10-percent recovery point, a final boiling point of 572 degrees Fahrenheit, and a minimum flash point of 100 degrees Fahrenheit.

    (b) “Kerosene” includes:

      (i) No. 1-K and No. 2-K, as defined in ASTM D3699-25; and

      (ii) Range or stove oil.

  (16) “Motor gasoline” means a complex mixture of relatively volatile hydrocarbons with or without small quantities of additives, blended to form a fuel suitable for use in spark-ignition engines and, as defined in ASTM D 4814-25 or Federal Specification VV-G-1690C, is characterized as having a boiling range of 122 to 158 degrees Fahrenheit at the 10 percent recovery point to 365 to 374 degrees Fahrenheit at the 90 percent recovery point.

  (17) “Natural gas” means a gaseous mixture of hydrocarbon compounds with methane as the primary compound and sufficient energy content and a small enough share of impurities for transport through commercial gas pipelines and sale to end-users.

  (18) “No. 1 fuel oil” means a light distillate fuel oil that has distillation temperatures of 400 degrees Fahrenheit at the 10-percent recovery point and 550 degrees Fahrenheit at the 90-percent recovery point and meets the specifications in ASTM D396-24.

  (19) “No. 2 fuel oil” means a distillate fuel oil that has distillation temperatures of 400 degrees Fahrenheit at the 10-percent recovery point and 640 degrees Fahrenheit at the 90-percent recovery point and meets the specifications in ASTM D396-24.

  (20) “No. 4 fuel oil” means fuel oil made by blending distillate fuel oil and residual fuel oil stocks and meeting the specifications in ASTM D396-24 or Federal Specification VV-F-815C.

  (21) “No. 5 fuel oil” means heavier oils that remain after the distillate fuel oils and lighter hydrocarbons are distilled away in refinery operations and that meet the specifications in ASTM D396-24, ASTM D975-24a, and Federal Specification VV-F-815C.

  (22) “No. 6 fuel oil” means the heaviest oils that remain after the distillate fuel oils and lighter hydrocarbons are distilled away in refinery operations and that meet the specifications in ASTM D396-24, ASTM D975-24a, and Federal Specification VV-F-815C.

  (23) “Other fuel oil” means a blend of fuel oils.

  (24) “Other energy-consuming sectors” means any consumption of heating fuel that is not associated with the commercial sector, electric power sector, industrial sector, or residential sector.

  (25) “Person” means any individual, corporation, partnership, association, joint-stock company, business trust, unincorporated organization, firm, company, limited liability company, government agency, or any other legal entity or form of organization.

  (26) Propane.

    (a) “Propane” means a straight-chain, paraffinic hydrocarbon, C3H8, extracted from natural gas or refinery gas streams, which is gaseous at standard temperature and pressure, boils at a temperature of -44 degrees Fahrenheit, and meets the specifications in ASTM D1835-22.

    (b) “Propane” includes HD-5 and HD-10, as defined in ASTM D1835-22.

  (27) “Residential sector” means the part of the State’s economy that consists of living quarters for private households.

  (28) “Ton” means a unit of weight equaling 2,000 pounds.

  (29) Wood and Wood-Derived Fuels.

    (a) “Wood and wood-derived fuels” means wood and products derived from wood that are used as a fuel.

    (b) “Wood and wood-derived fuels” include:

      (i) Round wood (also known as cord wood);

      (ii) Limb wood;

      (iii) Wood chips;

      (iv) Bark;

      (v) Sawdust;

      (vi) Forest residues;

      (vii) Charcoal;

      (viii) Paper pellets;

      (ix) Railroad ties;

      (x) Utility poles;

      (xi) Black liquor;

      (xii) Red liquor;

      (xiii) Sludge wood;

      (xiv) Spent sulfite liquor;

      (xv) Densified biomass (which includes wood pellets); and

      (xvi) Other wood-based solids and liquids..

#### Regulation .04 Incorporation by Reference.

*COMAR 26.11.44.04*

A. In this chapter, the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) ASTM International, ASTM Designation D396-24, “Standard Specification for Fuel Oils”.

  (2) ASTM International, ASTM Designation D3699-25, “Standard Specification for Kerosene”.

  (3) ASTM International, ASTM Designation D975-24a, “Standard Specification for Diesel Fuel”.

  (4) ASTM International, ASTM Designation D1835-22, “Standard Specification for Liquefied Petroleum (LP) Gases”.

  (5) ASTM International, ASTM Designation D4814-25, “Standard Specification for Automotive Spark-Ignition Engine Fuel”.

  (6) Federal Specification VV-F-815C, “Federal Specification: Fuel Oil, Burner”.

#### Regulation .05 Fuel Delivery Reports.

*COMAR 26.11.44.05*

A. Beginning April 1, 2027, and annually thereafter, a heating fuel provider shall submit to the Department a fuel delivery report of any heating fuel that the provider delivered for final sale or consumption in the State during the previous calendar year.

  (1) The annual fuel delivery report required under this section shall contain:

    (a) The heating fuel provider’s name;

    (b) The year covered by the report; and

    (c) The following information separated by each county and delineated by month:

      (i) Subject to subparagraph (iii) of this paragraph, the total amount of cubic feet, gallons, or tons of each heating fuel delivered by type, as specified in Table 1 of §C of this regulation;

      (ii) List the sector (i.e., commercial, electric power, industrial, residential, or other energy-consuming sectors) receiving the heating fuel as specified under §A(1)(c)(i) of this regulation; and

      (iii) If the total amount or the amount for any delivery of a heating fuel is not specified in the heating fuel provider’s records, invoices, or other documentation, a conservative missing data parameter for the total amount for that product.

  (2) The annual fuel delivery report shall include an attestation by the heating fuel provider that the report contains the required information, which is true and correct to the best available knowledge of the heating fuel provider.

  (3) The annual report to be submitted pursuant to this section shall be submitted to the Department:

    (a) In an electronic format specified by the Department; and

    (b) No later than April 1 following the end of the previous year.

B. Missing Data.

  (1) If a conservative missing data parameter is submitted pursuant to §A(1)(c)(iii) of this regulation, the heating fuel provider shall also submit documentation in the required report providing identification of, and explanation for, the data elements selected and utilized to develop the conservative missing data parameter.

  (2) If a heating fuel provider fails to submit a complete fuel delivery report in accordance with §A(1) of this regulation, the Department may assign, for each heating fuel specified in Table 1 of §C of this regulation, an estimated amount of cubic feet, gallons, or tons at least as large as the amount actually delivered based on information that the Department deems relevant.

C. Heating Fuels.

#### Regulation .06 Recordkeeping Requirements.

*COMAR 26.11.44.06*

A. A person subject to this chapter shall maintain the following records for at least 5 years:

  (1) Copies of the annual reports submitted to the Department pursuant to Regulation .05 of this chapter;

  (2) All material received, reviewed, generated, or used to complete the report; and

  (3) Any additional information requested by the Department.

B. A person shall provide, by request of the Department, the records required under this regulation.

## Subtitle 12 — Radiation Management

### Chapter 01 — Radiation Protection

**Authority:** Environment Article, §§8-106, 8-301, and 8-304, Annotated Code of Maryland

**Administrative History:** Effective date: February 4, 1976 (3:3 Md. R. 150)

**Administrative History:** Regulation .01 amended effective May 25, 1977 (4:11 Md. R. 866)

**Administrative History:** Regulation .01 repealed and new Regulation .01 adopted effective December 6, 1982 (9:24 Md. R. 2390)

**Administrative History:** Regulation .01 amended effective September 21, 1986 (13:19 Md. R. 2121); October 9, 1995 (22:20 Md. R. 1546)

**Administrative History:** COMAR 10.14.02.01 recodified to COMAR 26.12.01.01

**Administrative History:** Regulation .01 amended effective December 16, 1996 (23:25 Md. R. 1787); November 3, 1997 (24:22 Md. R. 1552); June 29, 1998 (25:13 Md. R. 997); December 28, 1998 (25:26 Md. R. 1926); June 14, 1999 (26:12 Md. R. 926); February 7, 2000 (27:2 Md. R. 149); April 1, 2002 (29:6 Md. R. 570); October 13, 2003 (30:20 Md. R. 1448); October 27, 2003 (30:21 Md. R. 1530); March 29, 2004 (31:6 Md. R. 510); June 7, 2004 (31:11 Md. R. 858); June 20, 2005 (32:12 Md. R. 1048); December 8, 2005 (32:24 Md. R. 1906); October 9, 2006 (33:20 Md. R. 1617); December 17, 2007 (34:25 Md. R. 2216); June 15, 2009 (36:12 Md. R. 839); November 15, 2010 (37:23 Md. R. 1612); November 15, 2010 (37:23 Md. R. 1612); September 19, 2011 (38:19 Md. R. 1148); August 6, 2012 (39:15 Md. R. 965); October 29, 2012 (39:21 Md., R. 1380); January 6, 2014 (40:26 Md. R. 2165); September 15, 2014 (41:18 Md. R. 1011); January 19, 2015 (42:1 Md. R. 19); June 22, 2015 (42:12 Md. R. 764); September 14, 2015 (42:18 Md. R. 1180); October 26, 2015 (42:21 Md. R. 1303); November 24, 2016 (43:23 Md. R. 1281); May 21, 2018 (45:10 Md. R. 504); February 22, 2021 (48:4 Md. R. 178); December 27, 2021 (48:26 Md. R. 1113); December 12, 2022 (49:12 Md. R. 1052)​; August 7, 2023 (50:15 Md. R. 683); August 19, 2024 (51:16 Md. R. 744); September 15, 2025 (52:18 Md. R. 924)

#### Regulation .01 Incorporation by Reference.

*COMAR 26.12.01.01*

All provisions of the Regulations for the Control of Ionizing Radiation (1994) as amended by Supplement 1 through Supplement 35 are incorporated by reference.

### Chapter 02 — Inspection and Certification

**Authority:** Environment Article, §§8-104(a), 8-106, 8-301, 8-304, and 8-306, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .02—.06 adopted April 30, 1987 (14:4 Md. R. 418)

**Administrative History:** COMAR 10.14.02.02—.06 recodified to COMAR 26.12.02.01—.05

**Administrative History:** Regulation .01B amended effective March 29, 2004 (31:6 Md. R. 510)

**Administrative History:** Regulation .02 amended effective March 29, 2004 (31:6 Md. R. 510)

**Administrative History:** Regulation .02A amended effective May 21, 2018 (45:10 Md. R. 504)

**Administrative History:** Regulation .02B amended effective October 20, 1997 (24:21 Md. R. 1453)

**Administrative History:** Regulation .02C amended effective February 15, 1993 (20:3 Md. R. 261); October 20, 1997 (24:21 Md. R. 1453); November 15, 2010 (37:23 Md. R. 1613); February 22, 2021 (48:4 Md. R. 178)

**Administrative History:** Regulation .02D amended effective May 14, 1990 (17:9 Md. R. 1092)

**Administrative History:** Regulation .03 amended effective March 29, 2004 (31:6 Md. R. 510)

**Administrative History:** Regulation .03B, C amended effective January 19, 2015 (42:1 Md. R. 19)

**Administrative History:** Regulation .04B amended effective March 29, 2004 (31:6 Md. R. 510)

**Administrative History:** Regulation .05A, B amended effective March 29, 2004 (31:6 Md. R. 510)

**Administrative History:** Regulation .05D adopted effective October 20, 1997 (24:21 Md. R. 1453)

#### Regulation .01 Definitions.

*COMAR 26.12.02.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Applied radiation machine experience” means employment at activities that:

    (a) Involve the operation, maintenance, or quality control of radiation machines; and

    (b) Produce data that can be used in the determination of radiation machine compliance with the regulations of Maryland, the Federal Government, or any other state.

  (2) “Device” means any assemblage of components of a radiation machine that includes:

    (a) Not more than one control panel;

    (b) The necessary supporting structures; and

    (c) Any additional components or auxiliary equipment that function with the assemblage to produce the result desired by using the machine.

  (3) “Inspect” means the process of observing the use and operation of a radiation machine for the purpose of judging whether its use may violate a provision of the Maryland Radiation Act or any regulations issued under this Act.

  (4) “Inspector” means a person who has a valid and current license, issued by the Department pursuant to Regulation .03 of this chapter, to inspect radiation machines and radiation machine facilities.

  (5) “Major component” means a part of a radiation machine that if improperly installed, maintained, or operating could result in a higher radiation dose to humans than would occur if the component were properly installed, maintained, or operating.

  (6) “Medical physicist” means a person who has a valid and current license, issued by the Department pursuant to Regulation .03 of this chapter, to evaluate performance of mammography equipment and facility quality assurance programs.

  (7) “Radiation” means:

    (a) Ionizing radiation, including gamma rays, X-rays, alpha particles, beta particles, neutrons, high speed electrons, high speed protons, and any other atomic or nuclear particles or rays;

    (b) All electromagnetic radiation that can be generated during the operation of a manufactured device that has an electronic circuit; or

    (c) All sonic, ultrasonic, or infrasonic waves that are emitted as a result of the operation, in a manufactured device, of an electronic circuit that can generate a physical field of radiation.

  (8) “Radiation machine” means a device that is capable of producing radiation.

  (9) “State certification” or “State-certified” means a declaration by the Department that the use of a radiation machine complies with the Maryland Radiation Act and all regulations adopted under this Act.

  (10) “Reference inspection procedure” means an inspection procedure that:

    (a) Is used by the Department to determine compliance of a radiation machine with a provision of the Maryland Radiation Act or any regulations issued under this Act; and

    (b) Has been described in the “Maryland State Catalog of Reference Inspection Procedures for Inspecting Radiation Machines” (April 15, 1986) which is incorporated by reference.

#### Regulation .02 State Certification of Radiation Machines.

*COMAR 26.12.02.02*

A. Applicability. This regulation does not apply to persons using the following radiation machines:

  (1) Those used for dental diagnosis or screening (machines classified in Group 6);

  (2) Those used for veterinary diagnosis or screening (machines classified in Group 7);

  (3) Those used for mammography diagnostic or screening purposes located in a mammography facility regulated under 21 CFR Part 900 (machines classified in Group 8);

  (4) Those used for veterinary dental diagnosis or screening (machines classified in Group 9);

  (5) Radiation machines exempted from the requirements of Section B.3 of the Regulations for the Control of Ionizing Radiation 1994, which is incorporated by reference in COMAR 26.12.01.01; and

  (6) Radiation machines that are licensed by the Department as provided by Section C. of the incorporated document in COMAR 26.12.01.01.

B. Classification of Radiation Machines. Radiation machines are classified according to the following system:

  (1) Group 1 — Radiation machines that can generate radiation levels of 500 rems in one hour at one meter from the source of radiation and are used to irradiate materials. These are the radiation machines subject to  Section D.602 of the incorporated document in COMAR 26.12.01.01.

  (2) Group 2 — Radiation machines that are used for human medical therapy. These are the radiation machines subject to  Sections F.8 and F.9 of the incorporated document in COMAR 26.12.01.01.

  (3) Group 3 — Radiation machines other than those in Group 2 that are used for healing arts purposes in hospitals certified by the Joint Commission on Accreditation of Hospitals.

  (4) Group 4 — Radiation machines that are not included in Group 3 or Group 5 but their use is prescribed by a physician, chiropractor, or podiatrist.

  (5) Group 5 — Radiation machines that are not included in Groups 1 through 4 but are used:

    (a) In industrial applications;

    (b) For research purposes;

    (c) For security fluoroscopy of baggage or parcels; or

    (d) Solely for educational purposes.

C. State Certification Required for Radiation Machines.

  (1) Exemptions from Other Regulations Not Implied. A person is not exempted from complying with an applicable provision of the incorporated document in COMAR 26.12.01.01 because of compliance with this regulation.

  (2) General State Certification. Other than during inspections for compliance with these regulations, a person may not cause or permit the use of any radiation machine after the State certification due date specified for that machine in §C(5) of this regulation if it has not been State certified by the Department.

  (3) Recertification After Replacement or Rebuilding of Major Components. Except for routine X-ray tube replacement, a person may not cause or permit the use of any radiation machine that has had any major component replaced or substantially rebuilt until the major component that has been affected has been reinspected and the radiation machine has again been State certified.

  (4) Interim State Certification.

    (a) The following classes of radiation machines are State certified until the time the Department promulgates regulations controlling the use of these radiation machines:

      (i) Radiation machines that produce non-ionizing electromagnetic radiation; and

      (ii) Radiation machines that produce sonic, ultrasonic, or infrasonic radiation.

    (b) A radiation machine shall be considered State-certified by the Department until the first State certification due date established in §C(5) of this regulation, if:

      (i) The machine has been registered by the Department under Sections B. and F. of the Regulations for the Control of Ionizing Radiation (1994), which is incorporated by reference in COMAR 26.12.01.01; or

      (ii) The person responsible for the use of the machine has not been notified by the Department that the machine does not meet a provision of this subtitle.

  (5) Due Dates for State Certification. Due dates for State certification of radiation machines are established according to the Group as set forth in §B of this regulation. These dates are as follows:

1 “All” means all facilities of that group regardless of registration number. The certification due date for Group 1 machines shall be July 1st of each year. The certification due date for Group 2 machines shall be December 31st of each year.

D. Application for State Certification.

  (1) Each person responsible for the use of a radiation machine shall apply for State certification of the machine at least 45 days, but not more than 180 days, before the scheduled due date established in §C(5) of this regulation.

  (2) The application shall be made on forms issued by the Department and shall contain:

    (a) All information indicated on the forms; and

    (b) A Departmental inspection report that has been completed and signed by an inspector licensed under Regulation .03 of this chapter.

E. Denial of Certification.

  (1) The Department shall deny State certification of a radiation machine if it determines that the use of the machine will result in a violation of either the Maryland Radiation Act or any regulation promulgated under this Act.

  (2) A determination made by the Department under §E(1) may be made based on information contained on the inspection report, an independent inspection made by the Department, or any other pertinent information known by the Department.

#### Regulation .03 Licensing of Inspectors.

*COMAR 26.12.02.03*

A. Application For a License. A person may apply to the Department, on forms provided by the Department, for a license to inspect radiation machines or for the renewal or reinstatement of a previously issued license. The application shall contain all information indicated on the form.

B. Denial of Application.

  (1) The Department shall deny an application for a license to inspect radiation machines if the applicant:

    (a) Has not demonstrated compliance with the State Workers' Compensation Laws as required by Environment Article, §1-202, Annotated Code of Maryland; or

    (b) Has a financial arrangement with any business entity offering commercial sales or servicing of radiation machines.

  (2) The Department may deny an application, or suspend or revoke a license, or grant a license with conditions, if it determines that the applicant or licensee does not have sufficient training or applied radiation machine experience to carry out the requirements of this regulation, has demonstrated improper performance in the inspection of radiation machines as provided under §C of this regulation, or has not performed any State certifications during a licensing period.

  (3) Determination Criteria. The determination made by the Department under §B(2) of this chapter shall be made using the following criteria:

    (a) The licensee shall have a level of training and applied radiation machine experience equal to or greater than one of the following sets of criteria:

      (i) A bachelor's degree with 30 credit hours in the physical or biological sciences or mathematics, and 4 years of applied radiation machine experience acceptable to the Department;

      (ii) A master's degree in health physics or medical radiological physics, and 2 years of applied radiation machine experience acceptable to the Department;

      (iii) A doctor's degree in health physics or medical radiological physics, and 1 year of applied radiation machine experience acceptable to the Department;

      (iv) Certification by the American Board of Health Physics or the American Board of Radiology, and 1 year of applied radiation machine experience acceptable to the Department; or

      (v) An associate's degree with 15 credit hours in the physical or biological sciences or mathematics, and 10 years of applied radiation experience acceptable to the Department;

    (b) In addition to the requirements of §B(3)(a) of this regulation, a licensee who inspects radiation machines having energy levels greater than one million electron volts shall have at least 1 year of experience at activities that provide information useful in the determination of compliance of these radiation machines with Section F.(9) and I. of the Regulations for the Control of Ionizing Radiation (1994), which is incorporated by reference in COMAR 26.12.01.01 or the equivalent regulations of the federal government or of any other state.

    (c) In addition to the requirements of §B(3)(a) or B(3)(b) of this regulation, a licensee who evaluates the performance of mammography equipment and facility quality assurance programs shall meet all qualifications for a medical physicist set forth in 21 CFR §900.12(a)(3).

C. Suspension or Revocation of License.  The Department may deny a renewal application or suspend or revoke a license if it determines that the inspector:

  (1) Has a financial arrangement with any business entity offering commercial sales or servicing of radiation machines;

  (2) Has falsified data on a report;

  (3) Has used an inspection procedure found unacceptable under Regulation .05C;

  (4) Is negligent in the performance of inspections such that significant errors result;

  (5) Has performed an inspection for the purpose of State certification without having filed a report with the Department within 30 days of the inspection;

  (6) Has violated any other applicable regulation in this chapter; or

  (7) Has failed to provide, in the initial or renewal application for a medical physicist, documentation of information, such as continuing education.

D. Duration of Licenses. Unless a license is suspended or revoked as provided in §C of this regulation or has been issued with conditions, a license shall remain in effect for 3 years from the date of issuance.

E. License To Be Available.

  (1) An inspector shall maintain the license or a copy of the license in his possession and shall show the license to every person for whom an inspection is to be performed before the inspection.

  (2) The inspector shall make the license immediately available to the Department upon request.

#### Regulation .04 Notification and Hearings.

*COMAR 26.12.02.04*

A. Notification of Denial, Suspension, or Revocation; Hearing. An order denying, suspending, or revoking a license or certificate, or the granting of a license or certificate with conditions, shall be personally served as summonses are served, or by certified mail, upon the applicant or licensee and shall be final unless the applicant or licensee requests a hearing before the Department within 10 days after service.

B. When a hearing is requested by the applicant or licensee, under §A of this regulation, it shall be held pursuant to the Administrative Procedure Act, State Government Article, §§10-201—10-226, Annotated Code of Maryland.

#### Regulation .05 Inspection Procedures.

*COMAR 26.12.02.05*

A. Procedures Common To All Radiation Machine Inspections. The inspector shall:

  (1) Notify the Department's Radiological Health Program immediately by telephone if a situation is discovered where a person could receive an excess radiation dose due to a radiation machine not meeting the requirements of Sections A., B., E., F., H., I., or J. of the Regulations for the Control of Ionizing Radiation (1994), which is incorporated by reference in COMAR 26.12.01.01 and if that dose may cause an imminent and substantial endangerment to health;

  (2) Record all information required by the State Certification Data Forms;

  (3) Observe if the notices to workers are posted as required by Section J. of the incorporated document in COMAR 26.12.01.01;

  (4) Observe if the warning signs and instructions of Sections D. and F. of the incorporated document in COMAR 26.12.01.01 are posted when required;

  (5) Determine the adequacy of the personnel monitoring system if a system is required by Section D.202 of the incorporated document in COMAR 26.12.01.01;

  (6) Forward a copy of the inspection report to the Department not later than 30 calendar days after the beginning of each radiation machine inspection; and

  (7) Record the nature of any machine adjustments or repairs that are carried out during the time of the inspection on the appropriate spaces provided on the Department inspection report forms.

B. Inspections Performed According to Procedures.

  (1) While inspecting a radiation machine, an inspector shall use a procedure that is adequate to determine compliance with the requirement of this subtitle.

  (2) An inspector may not use an inspection test procedure that has been found by the Department to be an unacceptable test procedure under §C of this regulation.

  (3) The Department will periodically audit the performance of inspectors, including verification that at least one State certification was performed during the licensing period.

C. Finding of Unacceptability of Test Procedure.

  (1) Upon request by the Department, an inspector shall provide a schedule of forthcoming inspections of radiation machines.

  (2) An inspector shall cooperate with any agent of the Department while the agent is auditing the performance of a radiation machine inspection.

  (3) Initial Finding.

    (a) Based upon audit information, inspection report information or any other pertinent information known to the Department, the Department may notify an inspector that a procedure or part of a procedure used under §B is questionable and shall provide the reasons for this finding.

    (b) Not later than 20 calendar days following receipt of the notification under §C(3)(a), of this regulation, the inspector shall forward to the Department a detailed, written description of the questionable inspection procedure.

    (c) If an inspector does not meet the requirement of §C(3)(b), of this regulation, a finding that a procedure is questionable under §C(3)(a), of this regulation, shall become a finding of unacceptability for the purpose of §B of this regulation.

    (d) Based upon the information received under §C(3)(a) and (b), of this regulation, the Department shall notify the inspector within 25 calendar days following the forwarding of the written description under §C(3)(b), of this regulation, that the questionable inspection procedure is found to be:

      (i) Acceptable; or

      (ii) Initially unacceptable.

  (4) Final Finding.

    (a) If an initially unacceptable finding is made under §C(3)(d)(ii), the inspector may request that a final finding be made under this regulation.

    (b) A finding that a procedure is initially unacceptable shall become a final finding of unacceptability for the purpose of §B, of this regulation, if the inspector does not request a final finding within 14 calendar days following the inspector's receipt of notification under §C(3)(d) of this regulation.

    (c) Not later than 60 calendar days following the Department's receipt of the request for a final finding under §C(4)(a), of this regulation, the inspector shall conduct a personal demonstration for the Department of the inspection procedure in question. The personal demonstration may include:

      (i) A physical demonstration of the procedure using the type of radiation machine that it was designed to inspect;

      (ii) A mathematical demonstration of the theory upon which the procedure is based; or

      (iii) Any other method of demonstration agreed to by the Department.

    (d) A demonstration arranged by the inspector under §C(4)(c) of this regulation shall be made:

      (i) At a time and location convenient to the Department;

      (ii) At a reasonable expense to the Department; and

      (iii) According to a demonstration protocol prepared by the inspector and approved by the Department.

    (e) In making its final finding, the Department will determine whether the inspector has presented sufficient additional information that will allow the Department to change the initially unacceptable finding to an acceptable finding.

  (5) In making its initial or final finding, the Department will determine whether the inspector has demonstrated, to the satisfaction of the Department, that the questionable inspection procedure can produce data that is as accurate and precise as the applicable reference inspection procedure.

D. Use of Unlicensed Personnel.

  (1) Other than as provided in §C(2) of this regulation, the use of unlicensed persons in the conduct of a certification inspection is not allowed.

  (2) An inspector may use an unlicensed assistant or trainee during the course of an inspection if the assistant or trainee is under the personal supervision of the licensee at all times. “Personal supervision” means guidance and instruction provided to an assistant or trainee by an inspector licensed under this chapter who is present at the site, in visual contact with the assistant or trainee while the assistant or trainee is using sources of radiation, and in such proximity that immediate advice or assistance can be given.

### Chapter 03 — State Radiation Control Fund

**Authority:** Environment Article, §§8-301(b)(1)(iii), 8-301(c), 8-304(c), and 8-306, Annotated Code of Maryland

**Administrative History:** Effective date: May 14, 1990 (17:9 Md. R. 1092)

**Administrative History:** Regulation .02C amended effective February 15, 1993 (20:3 Md. R. 261)

**Administrative History:** Regulation .02D, E amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .02F, G amended effective July 4, 1994 (21:13 Md. R. 1160)

**Administrative History:** Regulation .03 amended effective July 4, 1994 (21:13 Md. R. 1160)

**Administrative History:** Regulation .03A amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulations .01—.03 repealed and new Regulations .01—.03 adopted effective January 26, 1998 (25:2 Md. R. 81)

**Administrative History:** Regulation .01B amended effective March 29, 2004 (31:6 Md. R. 511); August 16, 2004 (31:16 Md. R. 1256); January 1, 2015 (41:17 Md. R. 971)

**Administrative History:** Regulation .02 amended effective March 29, 2004 (31:6 Md. R. 511)

**Administrative History:** Regulation .02A, J amended effective August 29, 2016 (43:17 Md. R. 959)

**Administrative History:** Regulation .02I, J adopted effective August 16, 2004 (31:16 Md. R. 1256)

**Administrative History:** Regulation .02I amended effective March 21, 2011 (38:6 Md. R. 397)

**Administrative History:** Regulation .02I, J amended effective January 1, 2015 (41:17 Md. R. 971)

**Administrative History:** Regulation .03 amended effective August 16, 2004 (31:16 Md. R. 1256); March 21, 2011 (38:6 Md. R. 397); January 1, 2015 (41:17 Md. R. 971); August 29, 2016 (43:17 Md. R. 959)

**Administrative History:** Regulation .03A, B amended effective March 29, 2004 (31:6 Md. R. 511)

**Administrative History:** Regulation .04 adopted effective March 21, 2011 (38:6 Md. R. 397)

**Administrative History:** Regulation .04A amended effective August 29, 2016 (43:17 Md. R. 959)

**Administrative History:** Regulation .04C amended effective January 1, 2015 (41:17 Md. R. 971)

#### Regulation .01 Definitions.

*COMAR 26.12.03.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Calendar year 2011 base” or “CY 2011 base” means the base year fee from calendar year 2011. The base year fee is adjusted annually in accordance with the Consumer Price Index as provided in Regulation .04 of this chapter.

  (2) “Facility” means the location at which one or more sources of radiation are:

    (a) Installed or located within one building, vehicle, or under one roof; and

    (b) Under the same administrative control.

  (3) “Group” means the classification of radiation machine established by COMAR 26.12.02.02B.

  (4) “Irradiator license” means a category of specific license authorizing a person to possess and use radioactive material to perform intentional exposure of various products to ionizing radiation to effect polymerization, sterilization, or other effects.

  (5) “Radiation machine” means a device that is capable of producing radiation. On any radiation producing equipment having at least one X-ray tube, or other single point from which radiation may be emitted, each X-ray tube or other radiation emission point is considered a separate radiation machine for purposes of this section.

  (6) “Sealed source and device registration” means the administrative process by which Maryland companies who intend to manufacture or distribute a sealed radioactive source or device containing a radioactive sealed source under a specific or general license obtain the Department's approval of a document containing the radiation safety and engineering evaluation of the product information.

  (7) “Teletherapy license” means a category of specific license authorizing a person to possess or use radioactive materials to administer teletherapy as defined in §A.2 of the Regulations for the Control of Ionizing Radiation (1994), which is incorporated by reference in COMAR 26.12.01.01.

  (8) “Unregistered facility” means a facility at which one or more radiation machines is installed without the facility having been registered with the Department, in violation of the provisions of §B.5 of the Regulations for the Control of Ionizing Radiation (1994), which is incorporated by reference in COMAR 26.12.01.01.

  (9) “X-ray tube” means any electron tube that is designed to be used primarily for the production of X-rays. For the purpose of this regulation, a tube means an X-ray tube, unless otherwise specified.

#### Regulation .02 Fee Required.

*COMAR 26.12.03.02*

A. Exemptions. This regulation does not apply to persons using the following sources of radiation:

  (1) Radiation machines exempted from registration by the Department according to §B.3 of Regulations for the Control of Ionizing Radiation (1994), which is incorporated by reference in COMAR 26.12.01.01;

  (2) Radioactive materials that are not subject to licensing by Part C of Regulations for the Control of Ionizing Radiation (1994), which is incorporated by reference in COMAR 26.12.01.01;

  (3) Radiation machines located at a school of dentistry accredited by the Commission on Dental Accreditation of the American Dental Association; and

  (4) Temporary dental clinics that:

    (a) Hold a permit under Health Occupations Article, Title 4, Annotated Code of Maryland;

    (b) Provide all services on a pro bono basis; and

    (c) Operate fewer than 100 hours per year.

B. The Agency may, upon application or upon its own initiative, grant other exemptions or exceptions from the requirements of this chapter that it determines are authorized by law.

C. Past Due Fees for Unregistered Facilities. A person submitting an application for registration of a radiation machine or machines in an unregistered facility shall remit a past due fee for each machine at the facility for each year the facility was in operation without having been registered in accordance with §B.5 of Regulations for the Control of Ionizing Radiation (1994). The fee is based on the schedule in Regulation .03A of this chapter.

D. Biennial Fees for Radiation Machine Facilities. Except for dental facilities, which must pay annually, each radiation machine facility shall pay to the Department a biennial fee for each radiation machine in that facility based on the fee schedule in Regulation .03B of this chapter. The fee shall be paid on or before the first day of the month in which the anniversary of the registration date occurs. The Department shall collect the biennial fee in two equal annual installments.

E. Annual Fees for Licenses to Possess or Use Radioactive Materials. A person with a license to possess or use radioactive material shall pay to the Department an annual licensing fee in accordance with the fee schedule set forth in Regulation .03C of this chapter. The fee shall be paid on or before the first day of the month in which the anniversary of the license date occurs.

F. Radioactive Material License Reciprocity Fee. A person granted a general license to conduct an activity under the authority of §C.90 of Regulations for the Control of Ionizing Radiation (1994) shall remit a fee equal to the amount shown in Regulation .03C of this chapter. The fee shall be received by the Department before the person may conduct any activity covered by the license during the 180-day period in which the general license is effective.

G. All fees shall be:

  (1) Payable to the Maryland Department of the Environment Radiation Control Fund;

  (2) Accompanied by required documents provided by the Department; and

  (3) Applied to the year following the date payment of the fee is due.

H. Dental Radiation Machine Fees.

  (1) The annual fee for dental radiation machines shall be $60 per tube, as shown in Regulation .03, Table 2, beginning July 1, 2002.

  (2) The annual fee for dental radiation machines shall be $70 per tube beginning June 30, 2004.

  (3) The annual fee for dental radiation machines shall be $80 per tube during the period from July 1, 2006 through June 30, 2010. The annual fee for dental radiation machines shall remain at $80 per tube after June 30, 2010, unless altered by the General Assembly.

I. Sealed Source and Device Registration Fees.

  (1) Each holder of a Maryland-issued sealed source and device registration sheet shall pay an annual fee [of $1,600 per source or device registration sheet] in accordance with Regulation .03D of this chapter as adjusted each year in accordance with the Consumer Price Index as provided in Regulation .04 of this chapter. This fee shall be paid on or before the first day of the month of the initial issuance date of the registration sheet or sheets.

  (2) Application fees for evaluating requests for new or modified in entirety sealed source and device registration sheets shall be in accordance with Regulation .03D of this chapter as adjusted each year in accordance with the Consumer Price Index as provided in Regulation .04 of this chapter and shall be paid upon application.

J. Annual General License Fees. Each person as defined in §A.2 of the Regulations for the Control of Ionizing Radiation who possesses radioactive material under the provisions of a general license in §C.22(a), (d), and (e) of COMAR 26.12.01.01  shall pay a calendar year 2016 base annual fee of $50 as adjusted each calendar year in accordance with the Consumer Price Index as provided in Regulation .04 of this chapter.

#### Regulation .03 Fee Schedule.

*COMAR 26.12.03.03*

A. Table I — Past Due Fees for Unregistered Facilities.

B. Table 2 — Radiation Machine Fees.

C. Table 3 — Fees for Specific Radioactive Material Licenses and Reciprocity.

D. Table 4—Fees for Sealed Source and Device Sheets.

#### Regulation .04 Consumer Price Index Adjustment.

*COMAR 26.12.03.04*

A. Beginning January 1, 2012, the annual fees set forth in this chapter, with the exception of Group 6 dental facilities and Group 9 veterinary dental machines, shall be increased each year by the percentage, if any, by which the Consumer Price Index for the most recent calendar year exceeds the Consumer Price Index for the previous calendar year.

B. The Consumer Price Index for a calendar year is the average of the Consumer Price Index for all urban consumers published by the Department of Labor as of the close of the 12-month period ending on August 31 of each calendar year.

C. For radioactive materials licensees with a calendar year 2011 base fee greater than $1,000 and sealed source and device sheets, each annual fee adjustment to reflect a change in the Consumer Price Index will be rounded to the nearest higher hundred-dollar increment.  For radiation machine fees except dental fees, for general license fees, and for those radioactive material licensees with a calendar year 2011 base fee of $1,000 or less, each annual fee adjustment to reflect a change in the Consumer Price Index will be rounded to the nearest higher one-dollar increment.

## Subtitle 13 — Disposal of Controlled Hazardous Substances

### Chapter 01 — Hazardous Waste Management System: General

**Authority:** Environment Article, §6-905.3 and Title 7, Subtitle 2, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.04 adopted as an emergency provision effective November 18, 1980 (7:25 Md. R. S-1); adopted permanently effective April 3, 1981 (8:7 Md. R. 642)

**Administrative History:** Regulations .02A and .03B amended effective January 18, 1982 (9:1 Md. R. 20)

**Administrative History:** Regulation .02A-1 adopted effective February 13, 1984 (11:3 Md. R. 202)

**Administrative History:** Regulation .02D adopted effective January 18, 1982 (9:1 Md. R. 20)

**Administrative History:** Regulation .03B amended effective January 31, 1983 (10:2 Md. R. 110); February 13, 1984 (11:3 Md. R. 202); July 30, 1984 (11:15 Md. R. 1330); April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .04C amended, D—I adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .05 adopted effective January 31, 1983 (10:2 Md. R. 110)

**Administrative History:** Regulation .05A amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Chapter recodified from COMAR 10.51.01 to COMAR 26.13.01

**Administrative History:** Regulation .01B amended effective October 16, 2000 (27:20 Md. R. 1843)

**Administrative History:** Regulation .02A amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .02F adopted effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .03B amended effective April 1, 1991 (18:6 Md. R. 690); December 23, 1991 (18:25 Md. R. 2759); May 24, 1993 (20:10 Md. R. 853); April 11, 1994 (21:7 Md. R. 533); August 28, 1995 (22:17 Md. R. 1321); September 10, 1997 (24:5 Md. R. 413); September 7, 1998 (25:18 Md. R. 1438); October 16, 2000 (27:20 Md. R. 1843); November 1, 2002 (29:21 Md. R. 1647); September 11, 2006 (33:18 Md. R. 1507); May 1, 2008 (35:8 Md. R. 809); January 18, 2016 (43:1 Md. R. 14); May 3, 2021 (48:9 Md. R. 359); January 13, 2022 (49:1 Md. R. 14); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .03-1 adopted effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .04 amended effective October 16, 2000 (27:20 Md. R. 1843); November 1, 2002 (29:21 Md. R. 1647); January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .04F amended effective May 24, 1993 (20:10 Md. R. 853)

**Administrative History:** Regulation .04I amended effective December 23, 1991 (18:25 Md. R. 2759); October 16, 2000 (27:20 Md. R. 1843)

**Administrative History:** Regulation .04L amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .05A amended effective December 23, 1991 (18:25 Md. R. 2759); May 24, 1993 (20:10 Md. R. 853); September 10, 1997 (24:5 Md. R. 413); October 16, 2000 (27:20 Md. R. 1843)

**Administrative History:** Regulation .05B amended effective October 16, 2000 (27:20 Md. R. 1843); November 1, 2002 (29:21 Md. R. 1647); May 1, 2008 (35:8 Md. R. 809); January 18, 2016 (43:1 Md. R. 14); May 3, 2021 (48:9 Md. R. 359); January 13, 2022 (49:1 Md. R. 14); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .05C adopted effective October 16, 2000 (27:20 Md. R. 1843)

#### Regulation .01 General.

*COMAR 26.13.01.01*

A. This chapter provides definitions of terms, general standards, and overview information applicable to this subtitle.

B. In this chapter:

  (1) Regulation .02 sets forth the rules that the Department will use in making information it receives available to the public and sets for the requirements that generators, transporters, or owners or operators of treatment, storage, or disposal facilities shall follow to assert claims of business confidentiality with respect to information that is submitted to the Department under this subtitle.

  (2) Regulation .03 defines terms which are used in this subtitle.

  (3) Regulation .04A establishes procedures for petitioning the Department to amend, modify, or revoke any provision of this subtitle and establishes procedures governing the Department's action on these petitions.

  (4) Regulation .04B establishes procedures for petitioning the Department to approve testing methods as equivalent to those prescribed in COMAR 26.13.02, 26.13.05, or 26.13.06.

  (5) Regulation .04C establishes procedures for petitioning the Department to amend COMAR 26.13.02.03 or 26.13.02.15—.19 to exclude a waste from a particular facility.

C. The provisions of this subtitle shall be supplemental and additional to the air control regulations under COMAR 26.11.01—26.11.20 and may not be interpreted as in derogation of any authority of the Secretary to implement and enforce those regulations.

#### Regulation .02 Availability of Information Confidentiality of Information.

*COMAR 26.13.01.02*

A. Except in accordance with §E or F of this regulation, the Department shall protect any information contained in the application, or other records, reports, or plans as confidential upon a showing by any person that the information, if made public, would divulge methods or processes entitled to protection as trade secrets, or proprietary business information relating to processes of production, methods of manufacturing, or production volume which are of financial or commercial value.

B. Claims of confidentiality for the name and address of any permit applicant or permittee will be denied. Claims for other information shall be made and substantiated at the time the application is submitted. If substantiation is not provided, the Secretary will notify the applicant by certified mail of the requirement. If the substantiation is not provided after 10 days of receipt of the certified mail, the information in question shall be placed in the public file.

C. The Department shall insure that any permit forms or any public comment upon those forms shall be available to the public for inspection and copying. The Department shall make available to the public any other records, reports, plans, or any information obtained by the State other than that information designated as confidential.

D. The Department shall provide facilities for the inspection of information relating to permit forms and insure that State employees honor requests for inspection promptly without undue requirements or restrictions. The Department shall insure that a machine or device for the copying of papers and documents is available for a reasonable fee, or otherwise provide for coordination with copying facilities or services so that requests for copies of nonconfidential documents may be honored promptly.

E. Information that is required to be supplied to the Department contained in any application or other record that would be considered as confidential shall still be made available by the Department to the U.S. Environmental Protection Agency at their request or shall be included in any regular report, if the information has been submitted by the Department with this claim to the EPA. If EPA obtains from the State information that is not claimed to be confidential, that information is available for public distribution.

F. Manifest Information.

  (1) After August 6, 2014, a person may not assert a claim of business confidentiality with respect to information entered on:

    (a) A hazardous waste manifest (EPA Form 8700–22);

    (b) A hazardous waste manifest continuation sheet (EPA Form 8700–22A); or

    (c) An electronic manifest format that may be prepared and used in accordance with COMAR 26.13.03.04A(1)(b) or 40 CFR §262.20(a)(3).

  (2) EPA, as the designated custodian of the electronic manifest system under federal law:

    (a) Is responsible for making available to the public any:

      (i) Electronic manifest that is prepared and used in accordance with COMAR 26.13.03.04A(1)(b) or 40 CFR §262.20(a)(3); and

      (ii) Paper manifest that is submitted to the system under COMAR 26.13.05.05B(1)(e), COMAR 26.13.06.05A, 40 CFR §264.71(a)(6), or 40 CFR §265(a)(6); and

    (b) Will make the information identified in §F(2)(a) of this regulation for an electronic or paper manifest that has been submitted to the electronic manifest system available to the public:

      (i) When EPA considers the manifest to be a complete and final document, as specified in §F(2)(b)(ii) of this regulation; and

      (ii) After 90 days have passed since the delivery of the hazardous waste shipment identified in the manifest to the designated facility, the time at which EPA considers the manifest to be a complete and final document.

#### Regulation .03 Definitions.

*COMAR 26.13.01.03*

A. When used in this subtitle the following terms have the meanings given.

B. Terms Defined.

  (1) “Above-ground tank” means a tank that is situated in such a way that the entire surface area of the tank is completely above the plane of the adjacent surrounding surface and the entire surface area of the tank, including the tank bottom, is able to be visually inspected.

  (1-1) “Active life” of a facility means the period from the initial receipt of hazardous waste at the facility until the Secretary receives certification of final closure.

  (2) “Active portion” means that portion of a facility where treatment, storage, or disposal operations are being or have been conducted after the effective date of this subtitle and which is not a closed portion.

  (2-1) “Active range” means a military range that is currently in service and is being regularly used for range activities.

  (2-2) “Acute hazardous waste” means a hazardous waste that meets the listing criteria in COMAR 26.13.02.09A(2) and has therefore been assigned a hazard code of (H) in accordance with COMAR 26.13.02.15B;

  (2-3) “Aerosol can” means a non-refillable receptacle that:

    (a) Contains a gas compressed, liquified, or dissolved under pressure, the sole purpose of which is to expel a liquid, paste, or powder; and

    (b) Is fitted with a self-closing relief device that allows the contents to be ejected by the gas.

  (2-4) “Airbag inflator” means a small metal canister within an airbag module that generally houses explosive propellant and an initiator, and that causes an airbag module to deploy when an electronic pulse is received from a vehicle’s crash sensor.

  (2-5) “Airbag module” means a fully assembled unit that includes both an airbag inflator and the fabric cushion that is designed to inflate and deploy in the event of a vehicle crash.

  (2-6) “Airbag waste” means a hazardous waste airbag module or hazardous waste airbag inflator.

  (2-7) Airbag Waste Collection Facility.

    (a) “Airbag waste collection facility” means a facility that receives airbag waste from an airbag handler that is operating under the provisions of COMAR 26.13.02.04-7; and

    (b) “Airbag waste collection facility” does not include a facility that accumulates in-transit airbag waste for 10 days or less.

  (2-8) “Airbag waste handler” means a person, by site, that generates airbag waste that is subject to regulation under this subtitle.

  (2-9) “Ampule” means an airtight vial made of glass, plastic, metal, or any combination of these materials.

  (2-10) “Ancillary equipment” means a device including, but not limited to, such devices as piping, fittings, flanges, valves, and pumps, that is used to distribute, meter, or control the flow of hazardous waste from its point of generation to a storage or treatment tank or tanks, between hazardous waste storage and treatment tanks to a point of disposal on site, or to a point of shipment for disposal off site.

  (3) “Aquifer” means a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of ground water to wells or springs.

  (4) “Authorized representative” means the person responsible for the overall operation of a facility or an operational unit (that is, part of a facility); for example, the plant manager, superintendent, or person of equivalent responsibility.

  (4-1) “Battery” means:

    (a) A device consisting of one or more electrically connected electrochemical cells which is designed to receive, store, and deliver electric energy; or

    (b) An intact, unbroken device which would otherwise meet the definition of battery in §B(4-1)(a) of this regulation from which the electrolyte has been removed.

  (5) “Boiler” means an enclosed device using controlled flame combustion and having one of the following characteristics:

    (a) The unit satisfies all of the following criteria:

      (i) The unit shall have physical provisions for recovering and exporting thermal energy in the form of steam, heated fluids, or heated gases.

      (ii) The unit's combustion chamber and primary energy recovery section or sections shall be of integral design. To be of integral design, the combustion chamber and the primary energy recovery section or sections, such as waterwalls and superheaters, shall be physically formed into one manufactured or assembled unit. A unit in which the combustion chamber and the primary energy recovery section or sections are joined only by ducts or connections carrying flue gas is not integrally designed. However, secondary energy recovery equipment such as economizers or air preheaters need not be physically formed into the same unit as the combustion chamber and the primary energy recovery section. Process heaters which are units that transfer energy directly to a process stream and fluidized bed combustion units are not precluded from being boilers solely because they are not of integral design.

      (iii) While in operation, the unit shall maintain a thermal energy recovery efficiency of at least 60 percent, calculated in terms of the recovered energy compared with the thermal value of the fuel.

      (iv) The unit shall export and utilize at least 75 percent of the recovered energy, calculated on an annual basis. In this calculation, credit may not be given for recovered heat used internally in the same unit. Examples of internal use are the preheating of fuel or combustion air, and the driving of induced or forced draft fans or feedwater pumps.

    (b) The unit is one which the Secretary has determined, on a case-by-case basis, to be a boiler, after considering the standards in Regulation .04F of this chapter.

  (5-1) “Cathode ray tube (CRT)” means a vacuum tube, composed primarily of glass, that is the visual or video display component of an electronic device.

  (5-2) “Cathode ray tube (CRT) collector” means a person who receives used, intact CRTs for recycling, repair, resale or donation.

  (5-3) “Cathode ray tube (CRT) exporter” means any person in the United States who initiates a transaction to send used CRTs outside the United States and its territories for recycling or reuse, or any intermediary in the United States arranging for export of used CRTs to a location outside the United States and its territories for recycling or reuse.

  (5-4) “Cathode ray tube (CRT) glass manufacturer” means an operation or part of an operation that uses a furnace to manufacture CRT glass.

  (5-5) “Cathode ray tube (CRT) processing” means conducting together all of the following activities:

    (a) Receiving broken or intact CRTs;

    (b) Intentionally breaking intact CRTs or further breaking or separating broken CRTs; and

    (c) Sorting or otherwise managing glass removed from CRT monitors.

  (5-6) Chemical Agents and Munitions.

    (a) “Chemical agents and munitions” means an agent or munition that, through its chemical properties, produces lethal or other damaging effects on human beings.

    (b) “Chemical agents and munitions” does not include riot control agents, chemical herbicides, smoke, and other obscuration materials.

  (6) “Closed portion” means that portion of a facility which an owner or operator has closed in accordance with the approved facility closure plan and all applicable closure requirements. (See also “active portion” and “inactive portion”.)

  (6-1) “Component” means either the tank or ancillary equipment of a tank system.

  (7) “Confined aquifer” means an aquifer:

    (a) Bounded above and below by impermeable beds or by beds of distinctly lower permeability than that of the aquifer itself;

    (b) Containing confined ground water.

  (7-1) “Consignee” means the ultimate treatment, storage, or disposal facility in a receiving country to which a hazardous waste will be sent.

  (8) “Constituent” or “hazardous waste constituent” means a constituent which caused the Secretary to list the hazardous waste in COMAR 26.13.02.15—.19 or a constituent listed in Table 1 of COMAR 26.13.02.14.

  (8-1) “Contained” means held in a unit, including a land-based unit, that meets the criteria of Regulation .04L(4) of this chapter;

  (9) “Container” means any portable device in which a material is stored, transported, treated, disposed of, or otherwise handled.

  (9-1) “Containment building” means a hazardous waste management unit that:

    (a) Is a completely enclosed, self-supporting structure;

    (b) Is designed and constructed of manmade materials; and

    (c) Provides for containment of hazardous constituents within the unit comparable to the degree of containment that would be provided by a:

      (i) Container managed in accordance with COMAR 26.13.05.09; or

      (ii) Tank managed in accordance with COMAR 26.13.05.10.

  (10) “Contingency plan” means a document setting out an organized, planned, and coordinated course of action to be followed in case of a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment.

  (10-1) “Controlled hazardous substance” means a hazardous waste as defined in COMAR 26.13.02, except as provided in COMAR 26.13.02.06.

  (10-2) “Corrosion expert” means an individual who is:

    (a) Qualified to engage in the practice of corrosion control on buried or submerged metal piping systems and metal tanks by reason of that individual's knowledge of the physical sciences and the principles of engineering and mathematics, acquired by a professional education and related practical experience; and

    (b) Certified as being qualified by the National Association of Corrosion Engineers (NACE), or who is a registered professional engineer who has certification or licensing that includes education and experience in corrosion control on buried or submerged metal piping systems and metal tanks.

  (10-3) Debris.

    (a) “Debris” means solid material exceeding a 60-millimeter particle size that is intended for disposal and that is:

      (i) A manufactured object;

      (ii) Plant or animal material;

      (iii) Natural geologic material; or

      (iv) A mixture consisting of debris as defined in §B(10-3)(a)(i)—(iii) of this regulation that has not been treated to the standards established in 40 CFR §268.45, and other material if the mixture is comprised primarily of debris, by volume, based on visual inspection.

    (b) “Debris” does not mean any material for which a specific treatment standard is provided in 40 CFR Part 268 Subpart D, namely:

      (i) Lead acid batteries;

      (ii) Cadmium batteries;

      (iii) Radioactive lead solids;

      (iv) Process residuals such as smelter slag and residues from the treatment of waste, wastewater, sludges, or air emission residues; and

      (v) Intact containers of hazardous waste that are not ruptured and that retain at least 75 percent of their original volume.

  (11) “Department” means the Department of the Environment.

  (12) “Designated facility” means:

    (a) A hazardous waste treatment, storage, disposal, or recycling facility which has been designated on the manifest by the generator under COMAR 26.13.03.04, a corresponding regulation of another state, or 40 CFR §262.20, and:

      (i) Has received a permit or interim status in accordance with the requirements of COMAR 26.13.07;

      (ii) Has received a permit or interim status in accordance with the requirements of 40 CFR Parts 270 and 124;

      (iii) Has received a permit or interim status from a state authorized in accordance with 40 CFR Part 271;

      (iv) Is allowed by the state in which the facility is located to accept the waste, if the state has been authorized in accordance with 40 CFR Part 271 but the state has not yet obtained authorization from EPA to regulate that particular waste as hazardous; or

      (v) Is regulated under COMAR 26.13.02.06C(2), COMAR 26.13.10.04, 40 CFR §261.6(c)(2), 40 CFR Part 266, Subpart F, or analogous authorities in other states; or

    (b) A generator site designated on the manifest to receive its waste as a return shipment from a facility that has rejected the waste in accordance with COMAR 26.13.05.05C(6) or 26.13.06.05A.

  (12-1) Destination Facility.

    (a) “Destination facility” means a facility that treats, disposes of, or recycles a particular category of universal waste, except as provided in §B(12-1)(b) of this regulation.

    (b) “Destination facility” does not mean:

      (i) A facility for which the treatment, disposal, or recycling of a particular category of universal waste consists only of the management activities described in COMAR 26.13.10.12, .14, or .15B(3), including large quantity handlers of universal waste that are made subject to these requirements in COMAR 26.13.10.20A, C, and D; or

      (ii) A facility at which a particular category of universal waste is only accumulated, with respect to that category of universal waste.

  (13) “Dike” means an embankment or ridge of either natural or man-made materials used to prevent the movement of liquids, sludges, solids, or other materials.

  (13-1) “Dioxins” means tetra, penta, hexa, hepta, and octa-chlorinated dibenzo dioxins.

  (14) “Discharge” or “hazardous waste discharge” means the accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, or dumping of hazardous waste into or on any land or water.

  (15) “Disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that the solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.

  (16) “Disposal facility” means a facility or part of a facility at which hazardous waste is intentionally placed into or on any land or water, and at which waste will remain after closure.

  (16-1) “Drip pad” means an engineered structure consisting of a curbed, free-draining base which is constructed of non-earthen materials and designed to convey preservative kick-back or drippage from treated wood, precipitation, and surface water run-on to an associated collection system at wood-preserving plants.

  (16-2) “Drug Enforcement Administration” means the United States Drug Enforcement Administration;

  (16-3) “Electrochemical cell” means a system consisting of an anode, a cathode, an electrolyte, and any electrical or mechanical connections that may be needed to allow the system to deliver or receive electrical energy.

  (16-4) “Electronic manifest (e-manifest)” means the electronic format of the hazardous waste manifest that is obtained from EPA’s national electronic manifest system and transmitted electronically to the system, and that is the legal equivalent of EPA Forms 8700-22 (manifest) and 8700-22A (continuation sheet).

  (16-5) “Electronic manifest system (e-manifest system)” means EPA’s national information technology system through which the electronic manifest may be obtained, completed, transmitted, and distributed to users of the electronic manifest and to regulatory agencies.

  (17) “Elementary neutralization unit” means a device which:

    (a) Is used for neutralizing wastes which are hazardous waste only because they exhibit the corrosivity characteristic defined in COMAR 26.13.02.12, or are listed in COMAR 26.13.02.16—.19 only for this reason; and

    (b) Is a tank, tank system, container, transport vehicle, or vessel.

  (17-1) “EPA” means the United States Environmental Protection Agency.

  (17-2) “EPA Acknowledgement of Consent” means the cable sent to EPA from the U.S. Embassy in a receiving country that acknowledges the written consent of the receiving country to accept a hazardous waste and describes the terms and conditions of the receiving country's consent to the shipment.

  (18) “EPA hazardous waste number” means the number assigned by EPA to each hazardous waste listed in COMAR 26.13.02.15—.19, and to each characteristic identified in COMAR 26.13.02.10—.14.

  (19) “EPA identification number” means the number assigned by EPA or by a state acting on EPA's behalf to each generator, transporter, and treatment, storage, or disposal facility.

  (20) “Equivalent method” means any testing or analytical method approved by the Secretary under Regulation .04A and B of this chapter.

  (20-1) “Evaluated hazardous waste pharmaceutical” means a prescription hazardous waste pharmaceutical that:

    (a) Has been evaluated by a reverse distributor in accordance with COMAR 26.13.10.49 and 40 CFR §266.510(a)(3); and

    (b) Will not be sent to another reverse distributor for further evaluation or verification of manufacturer credit.

  (21) “Existing hazardous waste management facility” or “existing facility” means a facility which was in operation, or for which construction had commenced, on or before November 18, 1980. Construction had commenced if:

    (a) The owner or operator has obtained all necessary federal, State, and local preconstruction approvals or permits;

    (b) A continuous physical, on-site construction program has begun, or the owner or operator has entered into contractual obligations, which cannot be cancelled or modified without substantial loss, for construction of the facility to be completed within a reasonable time.

  (22) “Existing portion” means that land surface area of an existing hazardous waste management facility on which wastes have been placed before July 26, 1982.

  (22-1) “Existing tank system” or “existing component” means a tank system or component that is used for the storage or treatment of hazardous waste and that satisfies the following criteria:

    (a) It is in operation; or

    (b) It is an underground tank which cannot be entered for inspection for which installation has begun on or before July 14, 1986, or it is any other tank for which installation has begun by July 1, 1993, with the beginning of installation being determined by the criteria of COMAR 26.13.05.10A(4).

  (22-2) “Explosive or munitions emergency” means a situation that:

    (a) In the professional opinion of an explosive or munitions emergency response specialist, creates an actual or imminent threat to:

      (i) Human health, including safety; or

      (ii) The environment, including property; and

    (b) May require immediate and expeditious action by an explosives or munitions specialist to control, mitigate, or eliminate the threat involving the suspected or detected presence of:

      (i) Unexploded ordnance (UXO);

      (ii) Damaged explosives or munitions;

      (iii) Deteriorated explosives or munitions;

      (iv) An improvised explosive device (IED);

      (v) Some other material or device that is potentially explosive; or

      (vi) Some other potentially harmful military chemical munition or device.

  (22-3) “Explosives or munitions emergency response” means all immediate response activities by an explosives and munitions emergency response specialist to control, mitigate, or eliminate the actual or potential threat encountered during an explosives or munitions emergency, including:

    (a) For example, the following activities:

      (i) In-place render-safe procedures;

      (ii) Treatment or destruction of explosives or munitions; or

      (iii) Transporting explosives or munitions to another location to be rendered safe, treated, or destroyed;

    (b) Activities undertaken to deal with an explosives or munitions emergency after a reasonable delay caused by a necessary, unforeseen, or uncontrollable circumstance; and

    (c) Activities undertaken to deal with an explosives or munitions emergency on public lands, on private lands, at RCRA facilities, and at locations that are not RCRA facilities.

  (22-4) “Explosives or munitions emergency response specialist” means an individual trained in chemical or conventional munitions or explosives handling, transportation, render-safe procedures, or destruction techniques, including:

    (a) Department of Defense (DOD) emergency explosive ordnance disposal (EOD) personnel;

    (b) DOD technical escort unit (TEU) personnel;

    (c) DOD-certified civilian or contractor personnel; and

    (d) Other federal, State, or local government or civilian personnel trained in explosives or munitions emergency responses similar to the individuals identified in §B(22-4)(a)—(c) of this regulation.

  (23) “Facility” means all continuous land, and structures, other appurtenances, and improvements on the land, used for treating, storing, or disposing of hazardous waste. A facility may consist of several treatment, storage, or disposal operational units (for example, one or more landfills, surface impoundments, or combinations of them).

  (23-1) “Facility mailing list” means the mailing list developed by the Department in accordance with COMAR 26.13.07.20-2E(1)(d).

  (24) “Federal agency” means any department, agency, or other instrumentality of the federal government, any independent agency or establishment of the federal government, including any government corporation, and the Government Printing Office.

  (24-1) “FFDCA” means the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§321-394.

  (24-2) “FIFRA” means the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §136-136y.

  (25) “Final closure” means the closure of all hazardous waste management units at the facility in accordance with all applicable closure requirements so that hazardous waste management activities under COMAR 26.13.05 and 26.13.06 are no longer conducted at the facility unless subject to the provisions in COMAR 26.13.03.03-3—.03-10 and COMAR 26.13.03.05-1—.05-2.

  (26) “Food-chain crops” means tobacco, crops grown for human consumption and crops grown for feed for animals whose products are consumed by humans.

  (27) “Freeboard” means the vertical distance between the top of a tank or surface impoundment dike, and the surface of the waste contained in it.

  (28) “Free liquids” means liquids which readily separate from the solid portion of a waste under ambient temperature and pressure.

  (28-1) “Fully regulated generator” means a person who generates hazardous waste and does not meet the definition of a Maryland-defined small quantity generator;

  (29) “Generator” means any person, by site, whose act or process produces hazardous waste identified or listed in COMAR 26.13.02 or whose act first causes a hazardous waste to become subject to regulation.

  (30) “Ground water” means water below the land surface in a zone of saturation.

  (30-1) “Hazardous debris” means debris that contains a hazardous waste listed in COMAR 26.13.02.15—.19 or that exhibits a characteristic of hazardous waste identified in COMAR 26.13.02.10—.14.

  (30-2) “Hazardous secondary material” means a secondary material, such as a spent material, by-product, or sludge, that, if discarded, would be identified as a hazardous waste under COMAR 26.13.02.

  (31) “Hazardous waste” means a hazardous waste as defined in COMAR 26.13.02. Hazardous waste shall be synonymous with Controlled Hazardous Substance or CHS, except as provided in COMAR 26.13.02.06.

  (32) “Hazardous waste discharge” means the accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, or dumping of hazardous waste or a material listed in COMAR 26.13.02.19 which, because it is discharged, becomes a hazardous waste, onto or into the land or water.

  (33) “Hazardous waste incinerator” means an enclosed device used to thermally treat or decompose a hazard waste that:

    (a) Uses controlled flame combustion, does not meet the criteria for classification as a boiler, sludge dryer, or carbon regeneration unit, and is not listed as an industrial furnace; or

    (b) Meets the definition of infrared incinerator or plasma arc incinerator.

  (34) “Hazardous waste management unit” is a contiguous area of land on or in which hazardous waste is placed, or the largest area in which there is significant likelihood of mixing hazardous waste constituents in the same area. Examples of hazardous waste management units include a surface impoundment, a waste pile, a land treatment area, a landfill cell, an incinerator, a tank and its associated piping and underlying containment system, and a container storage area. A container alone does not constitute a unit. The unit includes containers and the land or pad upon which they are placed.

  (34-1) Hazardous Waste Pharmaceutical.

    (a) “Hazardous waste pharmaceutical” means a pharmaceutical that is a solid waste as defined in COMAR 26.13.02.02 and:

      (i) Exhibits one or more characteristics identified in COMAR 26.13.02.10—.14; or

      (ii) Is listed in COMAR 26.13.02.15—.19.

    (b) “Hazardous waste pharmaceutical” does not include:

      (i) A pharmaceutical that will be legitimately used or reused by, for example, being lawfully donated for use for its intended purpose;

      (ii) A pharmaceutical that is reclaimed, as described in COMAR 26.13.02.01D(7);

      (iii) An over-the-counter pharmaceutical, dietary supplement, or homeopathic drug for which there is a reasonable expectation that the item will be legitimately used or reused by, for example, being lawfully redistributed for use for its intended purpose; or

      (iv) An over-the-counter pharmaceutical, dietary supplement, or homeopathic drug for which there is a reasonable expectation that the item will be reclaimed.

  (34-2) Healthcare Facility.

    (a) “Healthcare facility” means any person that is legally authorized to:

      (i) Provide preventative, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care with respect to the physical or mental condition, or functional status, of a human or animal or that affects the structure or function of the human or animal body;

      (ii) Act as a provider of counseling, service, assessment, or procedure with respect to the physical or mental condition, or functional status, of a human or animal or that affects the structure or function of the human or animal body; or

      (iii) Distribute, sell, or dispense pharmaceuticals, including over-the counter pharmaceuticals, dietary supplements, homeopathic drugs, or prescription pharmaceuticals.

    (b) “Healthcare facility” includes, but is not limited to:

      (i) Wholesale distributors;

      (ii) Third-party logistics providers that serve as forward distributors;

      (iii) Military medical logistics facilities;

      (iv) Hospitals, psychiatric hospitals, and ambulatory surgical centers;

      (v) Health clinics and physicians’ offices;

      (vi) Optical and dental providers;

      (vii) Chiropractors;

      (viii) Long-term care facilities;

      (ix) Ambulance services;

      (x) Pharmacies, long term-care pharmacies, mail-order pharmacies, and retailers of pharmaceuticals;

      (xi) Veterinary clinics; and

      (xii) Veterinary hospitals.

    (c) “Healthcare facility” does not include:

      (i) Pharmaceutical manufacturers;

      (ii) Reverse distributors with respect to the receipt, accumulation, and processing of prescription pharmaceuticals for the purpose of facilitating or verifying manufacturer credit; or

      (iii) Reverse logistics centers.

  (34-3) “Household waste pharmaceutical” means a pharmaceutical that is a solid waste, as defined in COMAR 26.13.02.02, but is excluded from being a hazardous waste under COMAR 26.13.02.04-1A(1).

  (35) “In operation” refers to a facility which is treating, storing, or disposing of hazardous waste.

  (36) “Inactive disposal facility” means a disposal facility that is no longer operated but is maintained to permanently contain CHS.

  (37) “Inactive portion” means that portion of a facility which is not operated after the effective date of this subtitle. (See also “active portion” and “closed portion”).

  (37-1) “Inactive range” means a military range that:

    (a) Is not currently being used;

    (b) Is still under military control and considered by the military to be a potential range area; and

    (c) Has not been put to a new use that is incompatible with range activities.

  (38) “Incompatible waste” means a hazardous waste which is unsuitable for:

    (a) Placement in a particular device or facility because it may cause corrosion or decay of containment materials (for example, container inner liners or tank walls); or

    (b) Commingling with another waste or material under uncontrolled conditions because the commingling might produce heat or pressure, fire or explosion, violent reaction, toxic dusts, mists, fumes, or gases, or flammable fumes or gases (see COMAR 26.13.05.24 for examples).

  (39) “Individual generation site” means the contiguous site at or on which one or more hazardous wastes are generated. An individual generation site, such as a large manufacturing plant, may have one or more sources of hazardous waste but is considered a single or individual generation site if the site or property is contiguous.

  (40) “Industrial furnace” means any of the following enclosed devices that are integral components of manufacturing processes and that use controlled flame devices to accomplish recovery of materials or energy:

    (a) Cement kilns;

    (b) Lime kilns;

    (c) Aggregate kilns;

    (d) Phosphate kilns;

    (e) Coke ovens;

    (f) Blast furnaces;

    (g) Smelting, melting and refining furnaces including pyrometallurgical devices such as cupolas, reverberator furnaces, sintering machines, roasters, and foundry furnaces;

    (h) Titanium dioxide chloride process oxidation reactor;

    (i) Methane reforming furnaces;

    (j) Pulping liquor recovery furnace;

    (k) Combustion devices used in the recovery of sulfur values from spent sulfuric acid; and

    (l) Such other devices as the Secretary may, by regulation, add to this list on the basis of one or more of the following factors:

      (i) The design and use of the devices primarily to accomplish recovery of material products;

      (ii) The use of the device to burn or reduce raw materials to make a material product;

      (iii) The use of the device to burn or reduce secondary materials as effective substitutes for raw materials, in processes using raw materials as principal feedstocks;

      (iv) The use of the device to burn or reduce secondary materials as ingredients in an industrial process to make a material product;

      (v) The use of the device in common industrial practice to provide a material product; and

      (vi) Other factors, as appropriate.

  (40-1) “Infrared incinerator” means an enclosed device that:

    (a) Uses electric powered resistance heaters as a source of radiant heat followed by an afterburner using controlled flame combustion; and

    (b) Is not listed as an industrial furnace.

  (40-2) “In-ground tank” means a tank which has a portion of the tank wall situated to any degree within the ground, thereby preventing visual inspection of the external surface area of the tank that is in the ground.

  (41) “Injection well” means a well into which fluids are injected. (See also “underground injection”.)

  (42) “Inner liner” means a continuous layer of material placed inside a tank or container which protects the construction materials of the tank or container from the contained waste or reagents used to treat the waste.

  (42-1) “Installation inspector” means an individual who is qualified to supervise the installation of tank systems by reason of that individual's knowledge of the physical sciences and the principles of engineering, acquired by a professional education and related practical experience.

  (42-2) “Interim status” means:

    (a) The period of time beginning when the owner or operator complies with COMAR 26.13.06.01B(2), and ending when the owner or operator:

      (i) Obtains a CHS permit under COMAR 26.13.07;

      (ii) Meets the requirements of COMAR 26.13.06.07—.15; or

      (iii) Has the interim status terminated under COMAR 26.13.07.23D; or

    (b) A designation by the Secretary that the owner or operator of an affected hazardous waste management facility has met the requirements of COMAR 26.13.06.01B(2) — (4) and 26.13.07.23A.

  (43) “International shipment” means the transportation of hazardous waste into or out of the jurisdiction of the United States.

  (43-1) “Kick-back” means the excessive preservative that exudes slowly from pressure-treated wood as the wood is removed from a treatment vessel and gradually returns to atmospheric pressure.

  (43-2) “Lamp” means an item that is:

    (a) The bulb or tube portion of an electric lighting device; and

    (b) Specifically designed to produce radiant energy, most often in the ultraviolet, visible, and infrared regions of the electromagnetic spectrum.

  (43-3) Land-Based Unit.

    (a) “Land-based unit” means an area where a hazardous secondary material is placed in or on the land before recycling.

    (b) “Land-based unit” does not include a land-based production unit.

  (44) “Landfill” means a disposal facility or part of a facility where hazardous waste is placed in or on land and which is not a pile, a land treatment facility, a surface impoundment, an underground injection well, a salt dome formation, a salt bed formation, an underground mine, or a cave.

  (45) “Landfill cell” means a discrete volume of a hazardous waste landfill which uses a liner to provide isolation of wastes from adjacent cells or wastes. Examples of landfill cells are trenches and pits.

  (46) “Land treatment facility” means a facility or part of a facility at which hazardous waste is applied onto or incorporated into the soil surface. These facilities are disposal facilities if the waste will remain after closure.

  (46-1) “Large quantity handler of universal waste” means a universal waste handler which accumulates 5,000 kilograms or more of universal waste at any time during a calendar year.

  (47) “Leachate” means any liquid, including any suspended components in the liquid, that has percolated through or drained from hazardous waste.

  (47-1) “Leak-detection system” means a system, capable of detecting the failure of either the primary or secondary containment structure or the presence of a release of hazardous waste or accumulated liquid in the secondary containment structure, which:

    (a) Employs operational controls, such as daily visual inspections for releases into the secondary containment system of above-ground tanks; or

    (b) Consists of an interstitial monitoring device designed to detect continuously and automatically the failure of the primary or secondary containment structure or the presence of a release of hazardous waste into the secondary containment structure.

  (48) “Liner” means a continuous layer of natural or man-made materials, beneath or on the sides of a surface impoundment, landfill, or landfill cell, which restricts the downward or lateral escape of hazardous waste constituents, or leachate.

  (48-1) Long-term Care Facility.

    (a) “Long-term care facility” means a licensed entity that provides assistance with activities of daily living, including managing and administering pharmaceuticals to one or more individuals at the facility.

    (b) “Long-term care facility” includes, but is not limited to, hospice facilities, nursing facilities, skilled nursing facilities, and the nursing and skilled nursing care portions of continuing care retirement communities.

    (c) “Long-term care facility” does not include:

      (i) A group home;

      (ii) An independent living community;

      (iii) An assisted living facility; or

      (iv) The independent and assisted living portions of a continuing care retirement community.

  (49) “Management” or “hazardous waste management” means the systematic control of the collection, source separation, storage, transportation, processing, treatment, recovery, and disposal of hazardous waste.

  (50) “Manifest” means the shipping document EPA Form 8700-22, including, if necessary, EPA Form 8700-22A, originated and signed in accordance with the applicable requirements of:

    (a) COMAR 26.13.02—26.13.06;

    (b) 40 CFR Parts 262—265; or

    (c) Regulations of the state in which the shipment originated that are analogous to 40 CFR Parts 262—265.

  (51) “Manifest tracking number” means the alphanumeric identification number consisting of a unique three letter suffix preceded by nine numerical digits that is preprinted in Item 4 of the manifest by a person approved by the U.S. EPA to be a source of manifests in accordance with 40 CFR §262.21(c) and (e).

  (51-1) “Manufactured gas plant waste” means wastes generated from environmental remediation of facilities that produced gas from coal or oil for lighting, cooking, and heating during the 1800s until the mid-1900s, including, for example, tars, sludges, lampblack, light oils, spent oxide wastes, and other hydrocarbons, and soils and debris contaminated with these materials.

  (51-2) Mercury-Containing Equipment.

    (a) “Mercury-containing equipment” means a device or part of a device that contains elemental mercury integral to its function, such as a thermostat.

    (b) “Mercury-containing equipment” does not mean a battery or a lamp.

  (51-3) “Military” means the United States Department of Defense (DOD), United States Armed Services, United States Coast Guard, National Guard, United States Department of Energy (DOE), or other parties that handle military munitions under contract with or acting as an agent for these agencies.

  (51-4) Military Munitions.

    (a) “Military munitions” means all ammunition products and components produced or used by or for the U.S. Department of Defense (DOD) or the United States Armed Services for national defense and security, including military munitions under the control of the DOD, the United States Coast Guard, the U.S. Department of Energy (DOE), and National Guard personnel.

    (b) “Military munitions” includes:

      (i) Component items such as liquid propellants, solid propellants, confined gaseous propellants, explosives including bulk explosives, pyrotechnics, chemical agents including bulk chemical warfare agents, riot control agents, smokes, incendiaries, warheads, cluster munitions and dispensers, and demolition charges;

      (ii) Munition product items such as chemical munitions, rockets, guided and ballistic missiles, bombs, mortar rounds, artillery ammunition, small arms ammunition, grenades, mines, torpedoes, depth charges, and demolition devices;

      (iii) Components of munition product items; and

      (iv) Nonnuclear components of nuclear devices managed under DOE's nuclear weapons program after all required sanitization operations have been completed as required by the Atomic Energy Act of 1954.

    (c) “Military munitions” does not include wholly inert items, improvised explosive devices, nuclear weapons, nuclear devices, or nuclear components of weapons or devices.

  (51-5) Military Range.

    (a) “Military range” means designated land and water areas set aside, managed, and used to conduct research on, develop, test, and evaluate military munitions and explosives, other ordnance, or weapon systems, or to train military personnel in their use and handling.

    (b) “Military range” includes, for example, firing lines and positions, maneuver areas, firing lanes, test pads, detonation pads, impact areas, and buffer zones with restricted access and exclusionary areas used for the purposes identified in §B(51-5)(a) of this regulation.

  (52) “Mining overburden returned to the mine site” means any material overlying an economic mineral deposit which is removed to gain access to that deposit and is then used for reclamation of a surface mine.

  (53) “Miscellaneous unit” means a hazardous waste management unit where hazardous waste is treated, stored, or disposed of and that is not a container, tank, surface impoundment, pile, land treatment unit, landfill, incinerator, boiler, industrial furnace, underground injection well, containment building, or unit eligible for a research, development, and demonstration permit under COMAR 26.13.07.19.

  (54) “Movement” means that hazardous waste transported to a facility in an individual vehicle.

  (55) “New hazardous waste management facility” or “new facility” means a facility which began operation, or for which construction commenced after November 18, 1980. (See also “existing hazardous waste management facility”.)

  (55-1) “New tank system” or “new tank system component” means a tank system or component that is used for the storage or treatment of hazardous waste and that is:

    (a) An underground tank which cannot be entered for inspection for which installation has begun after July 14, 1986, with the beginning of installation being determined by the criteria of COMAR 26.13.05.10A(4); or

    (b) A tank for which installation has begun after July 1, 1993, and is either an underground tank which can be entered for inspection, an above-ground tank, an in-ground tank, or an on-ground tank.

  (55-2) Non-creditable Hazardous Waste Pharmaceutical.

    (a) “Non-creditable hazardous waste pharmaceutical” means:

      (i) A prescription hazardous waste pharmaceutical that does not have a reasonable expectation to be eligible for manufacturer credit; or

      (ii) A nonprescription hazardous waste pharmaceutical that does not have a reasonable expectation to be reclaimed, legitimately used, or legitimately reused.

    (b) “Non-creditable hazardous waste pharmaceutical” includes, but is not limited to:

      (i) Investigational drugs;

      (ii) Free samples of pharmaceuticals received by healthcare facilities;

      (iii) Residues of pharmaceuticals remaining in empty containers;

      (iv) Contaminated personal protective equipment;

      (v) Floor sweepings; and

      (vi) Cleanup material from the spills of pharmaceuticals.

  (55-3) “Non-hazardous waste pharmaceutical” means a pharmaceutical that:

    (a) Is a solid waste as defined in COMAR 26.13.02.02;

    (b) Is not listed in COMAR 26.13.02.15—.19; and

    (c) Does not exhibit any of the characteristics of hazardous waste identified in COMAR 26.13.02.10—.14.

  (55-4) “Non-pharmaceutical hazardous waste” means a solid waste, as defined in COMAR 26.13.02.02, that is not a pharmaceutical, as defined in this section, and:

    (a) Is listed in COMAR 26.13.02.15—.19; or

    (b) Exhibits one or more of the characteristics of hazardous waste identified in COMAR 26.13.02.10—.14.

  (55-5) Offeror.

    (a) “Offeror” means a person that:

      (i) Performs, or is responsible for performing, any pretransportation function required under the U.S. Department of Transportation's hazardous material regulations of 49 CFR Parts 171—180 for transportation of a hazardous material in commerce; or

      (ii) Tenders or makes a hazardous material available to a carrier for transportation in commerce.

    (b) Unless the carrier is otherwise considered an offeror, “offeror” does not mean a carrier that:

      (i) Performs a function required by 49 CFR Parts 171—180 as a condition of acceptance of a hazardous material for transportation in commerce, such as reviewing shipping papers, examining packages to ensure that they are in conformance with 49 CFR Parts 171—180, or preparing shipping documentation for the carrier's own use; or

      (ii) Transfers a hazardous material to another carrier for continued transportation in commerce without performing a pretransportation function.

  (55-6) “On-ground tank” means a tank that is situated in such a way that the bottom of the tank is on the same level as the adjacent surrounding surface so that the external tank bottom cannot be visually inspected.

  (56) “On-site” means the same or geographically contiguous property which may be divided by public or private right-of-way, provided the entrance and exit between the properties is at a cross-roads intersection, and access is by crossing, as opposed to going along, the right-of-way. Noncontiguous properties, owned by the same person but connected by a right-of-way which the property owner controls and to which the public does not have access, are also considered on-site property.

  (57) “Open burning” means the combustion of any material without the following characteristics:

    (a) Control of combustion air to maintain adequate temperature for efficient combustion;

    (b) Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and

    (c) Control of emission of the gaseous combustion products. (See also “thermal destruction” and “thermal treatment”.)

  (58) “Operator” means the person responsible for the overall operation of a facility.

  (59) “Owner” means the person who owns a facility or part of a facility.

  (59-1) “Part A” means information submitted to satisfy the informational requirements of COMAR 26.13.07.02D(1)—(14).

  (59-2) “Part B” means information submitted to satisfy the informational requirements of COMAR 26.13.07.02D(15)—(38), .02-1-.02-11, and any additional information requested by the Secretary in connection with an application for a CHS facility permit.

  (60) “Partial closure” means the closure of a hazardous waste management unit in accordance with the applicable closure requirements of COMAR 26.13.05 and 26.13.06 at a facility that contains other active hazardous waste management units. For example, partial closure may include the closure of a tank (including its associated piping and underlying containment systems), landfill cell, surface impoundment, waste pile, or other hazardous waste management unit, while other units of the same facility continue to operate.

  (60-1) “PCB-containing lamp ballast” means a device that:

    (a) Limits the lamp current of fluorescent or mercury lamps to the value required for proper operation by means of inductance, capacitance, or resistance, singly or in combination;

    (b) Provides for low-voltage cathode heating for rapid-start lamps;

    (c) May include capacitor-discharge resistors and a capacitor for power-factor correction; and

    (d) Incorporates polychlorinated biphenyls (PCBs) as an element of the device's composition.

  (61) “Person” means an individual, trust, firm, joint stock company, federal agency, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body.

  (62) “Personnel” or “facility personnel” means all persons who work at, or oversee the operations of, a hazardous waste facility, and whose actions or failure to act may result in noncompliance with the requirements of COMAR 26.13.05 or 23.13.06.

  (62-1) Pesticide.

    (a) “Pesticide” means a substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, or intended for use as a plant regulator, defoliant, or desiccant, other than the substances identified in §B(62-1)(b) of this regulation;

    (b) “Pesticide” does not mean:

      (i) A new animal drug under §201(w) of FFDCA;

      (ii) An animal drug that has been determined by regulation of the Secretary of Health and Human Services not to be a new animal drug; or

      (iii) An animal feed under §201(x) of FFDCA that bears or contains any substances identified in §B(62-1)(b)(i)—(ii) of this regulation.

  (62-2) Pharmaceutical.

    (a) “Pharmaceutical” means:

      (i) A drug or dietary supplement for use by humans or other animals;

      (ii) An electronic nicotine delivery system, such as an electronic cigarette or vaping pen; or

      (iii) A liquid nicotine-containing product packaged for retail sale for use in electronic nicotine delivery systems, and including a pre-filled cartridge, pre-filled vial, or other packaging.

    (b) “Pharmaceutical” includes, but is not limited to:

      (i) A dietary supplement, as defined by the Federal Food, Drug and Cosmetic Act;

      (ii) A prescription drug, as defined by 21 CFR §203.3(y);

      (iii) An over-the-counter drug;

      (iv) A homeopathic drug;

      (v) A compounded drug;

      (vi) An investigational new drug;

      (vii) A pharmaceutical remaining in a nonempty container;

      (viii) Personal protective equipment contaminated with a pharmaceutical; and

      (ix) Clean-up material from a spill of a pharmaceutical.

    (c) “Pharmaceutical” does not include dental amalgam or sharps.

  (63) “Pile” means any noncontainerized accumulation of solid, nonflowing hazardous waste that is used for treatment or storage and that is not a containment building.

  (63-1) “Plasma arc incinerator” means an enclosed device that:

    (a) Uses a high intensity electrical discharge or arc as a source of heat followed by an afterburner using controlled flame combustion; and

    (b) Is not listed as an industrial furnace.

  (64) “Point source” means any discernible, confined, and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture.

  (64-1) Potentially Creditable Hazardous Waste Pharmaceutical.

    (a) “Potentially creditable hazardous waste pharmaceutical” means a prescription hazardous waste pharmaceutical that:

      (i) Has a reasonable expectation to receive manufacturer credit;

      (ii) Is in original manufacturer packaging;

      (iii) Is not a pharmaceutical that was subject to a recall;

      (iv) Is undispensed; and

      (v) Is unexpired or is less than 1 year past its expiration date.

    (b) “Potentially creditable hazardous waste pharmaceutical” does not include:

      (i) An evaluated hazardous waste pharmaceutical; or

      (ii) Nonprescription pharmaceuticals including, but not limited to, over-the-counter drugs, homeopathic drugs, and dietary supplements.

  (64-2) “Primary exporter” means a person who is:

    (a) Required to originate the manifest for a shipment of hazardous waste in accordance with COMAR 26.13.03.04, who specifies a treatment, storage, or disposal facility in a receiving country as the facility to which the hazardous waste will be sent; or

    (b) An intermediary arranging for the export of a hazardous waste to a receiving country.

  (65) “Publicly owned treatment works” or “POTW” means any device or system used in the treatment (including recycling and reclamation) of municipal sewage or industrial waste of a liquid nature which is owned by a State or municipality (as defined by Section 502(4) of the CWA).

  (65-1) “Qualified ground water scientist” means a scientist or engineer who:

    (a) Has received a baccalaureate or a post-graduate degree in the natural sciences or engineering;

    (b) Is able to make sound professional judgements regarding ground water monitoring and contaminant fate and transport as a result of having obtained sufficient training and experience in ground water hydrology and related fields; and

    (c) Is able to demonstrate the capability described in §B(65-1)(b) of this regulation by having:

      (i) Obtained relevant state registration;

      (ii) Obtained relevant professional certifications; or

      (iii) Completed relevant accredited university courses.

  (66) “RCRA” means the Solid Waste Disposal Act, as amended (42 U.S.C. §§6901—6991i).

  (66-1) “Receiving country” means a foreign country to which a hazardous waste is sent for the purpose of treatment, storage, or disposal, except short-term storage incidental to transportation.

  (66-2) “Recognized trader” means a person domiciled in the United States, by site of business, who acts to arrange and facilitate transboundary movements of wastes destined for recovery or disposal operations, either by purchasing from and subsequently selling to United States and foreign facilities, or by acting under arrangements with a United States waste facility to arrange for the export or import of the wastes.

  (67) “Representative sample” means a sample of a universe or whole (for example, waste pile, lagoon, ground water) which can be expected to exhibit the average properties of the universe or whole.

  (67-1) Reverse Distributor.

    (a) “Reverse distributor” means a person that receives and accumulates prescription pharmaceuticals that are potentially creditable hazardous waste pharmaceuticals for the purpose of facilitating or verifying manufacturer credit.

    (b) “Reverse distributor” includes a forward distributor, a third-party logistics provider, a pharmaceutical manufacturer, or another person who processes prescription pharmaceuticals for the facilitation or verification of manufacturer credit.

  (68) “Run-off” means any rainwater, leachate, or other liquid that drains over land from any part of a facility.

  (69) “Run-on” means any rainwater, leachate, or other liquid that drains over land onto any part of a facility.

  (69-1) “Sanitization operation” means the irreversible modification or destruction of a component or part of a component of a nuclear weapon, device, trainer, or test assembly as necessary to prevent revealing classified or otherwise controlled information, such as unclassified information that is restricted from the standpoint of export control because of its significance for nuclear explosives research, development, fabrication, or proliferation purposes, as required by the Atomic Energy Act of 1954, as amended.

  (70) “Saturated zone” or “zone of saturation” means that part of the earth's crust in which all voids are filled with water.

  (70-1) Secondary Material.

    (a) “Secondary material” means a used or residual waste-like material.

    (b) “Secondary material” includes:

      (i) A by-product, as defined in COMAR 26.13.02.01D;

      (ii) A commercial chemical product;

      (iii) Sludge;

      (iv) Spent material, as defined in COMAR 26.13.02.01D; and

      (v) Scrap metal, as defined in COMAR 26.13.02.01D.

  (71) “Secretary” means the Secretary of the Environment or the designee of the Secretary of the Environment.

  (72) “Sludge” means any solid, semisolid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment plant.

  (72-1) “Sludge dryer” means an enclosed thermal treatment device that is used to dehydrate sludge and that has a maximum total thermal input, excluding the heating value of the sludge itself, of 2,500 Btu per pound of sludge treated on a wet-weight basis.

  (72-2) “Small quantity handler of universal waste” means a universal waste handler that does not accumulate 5,000 kilograms or more of universal waste at any time during a calendar year.

  (73) “Solid waste” means a solid waste as defined in COMAR 26.13.02.

  (73-1) “Solvent-contaminated wipe” means a wipe that, after use or after cleaning up a spill, meets any of the following conditions:

    (a) Contains one or more of the F001 through F005 solvents listed in COMAR 26.13.02.16A or the corresponding P- or U-listed solvents found in COMAR 26.13.02.19;

    (b) Exhibits a hazardous characteristic found in COMAR 26.13.02.10—.14 if that characteristic results from a solvent listed in COMAR 26.13.02.15—.19; or

    (c) Exhibits only the characteristic of ignitability found in COMAR 26.13.02.11 due to the presence of one or more solvents that are not listed in COMAR 26.13.02.15—.19.

  (74) “Spill” means the accidental spilling, leaking, pumping, pouring, emitting, or dumping of hazardous wastes or materials which, when spilled, become hazardous wastes into or onto any land or water.

  (75) “State” means any of several states, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

  (76) “Storage” means the holding of hazardous waste for a temporary period, at the end of which the hazardous waste is treated, disposed of, or stored elsewhere.

  (76-1) Sump.

    (a) “Sump” means, except as provided in §B(76-1)(b) of this regulation, any pit or reservoir that is a tank, and the troughs or trenches connected to it, that serves to collect hazardous waste for transport to hazardous waste storage, treatment, or disposal facilities.

    (b) “Sump” means, in the context of regulations in this subtitle for landfills, surface impoundments, and waste piles, a lined pit or reservoir that serves to collect liquids drained from a leachate collection and removal system or leak detection system for subsequent removal from the system.

  (77) “Surface impoundment” or “impoundment” means a facility or part of a facility which is a natural topographic depression, man-made excavation, or diked area formed primarily of earthen materials (although it may be lined with man-made materials), which is designed to hold an accumulation of liquid wastes or wastes containing free liquids, and which is not an injection well. Examples of surface impoundments are holding, storage, settling, and aeration pits, ponds, and lagoons.

  (78) “Tank” means a stationary device, designed to contain an accumulation of hazardous wastes which is constructed primarily of nonearthen materials (for example, wood, concrete, steel, plastic) which provide structural support.

  (78-1) “Tank system” means a hazardous waste storage or treatment tank and its associated ancillary equipment and containment system.

  (79) “Thermal destruction” means thermal treatment using controlled flame combustion. “Thermally destroy” or “incinerate” means the act of thermal destruction.

  (80) “Thermal treatment” means the treatment of hazardous waste in a device which uses elevated temperatures as the primary means to change the chemical, physical, or biological character or composition of the hazardous waste. Examples of thermal treatment processes are incineration, molten salt, pyrolysis, calcination, wet air oxidation, and microwave discharge. (See also “hazardous waste incinerator” and “open burning”.)

  (80-1) “Thermostat” means:

    (a) A temperature control device that contains metallic mercury in an ampule attached to a bimetal sensing element; or

    (b) A mercury-containing ampule that has been removed from a temperature control device described in §B(80-1)(a) of this regulation in accordance with the requirements of COMAR 26.13.10.14B(2), either by:

      (i) A small quantity handler of universal waste; or

      (ii) A large quantity handler of universal waste operating in compliance with COMAR 26.13.10.20C.

  (81) “Totally enclosed treatment facility” means a facility for the treatment of hazardous waste which is directly connected to an industrial production process and which is constructed and operated in a manner which prevents the release of any hazardous waste or any constituent of hazardous waste into the environment during treatment.

  (81-1) “Transit country” means a foreign country, other than a receiving country, through which a hazardous waste is transported.

  (82) “Transportation” means the movement of hazardous waste by air, rail, highway, or water.

  (83) “Transport vehicle” means a motor vehicle, vessel, or rail car used for the transportation of hazardous waste by any mode. Each cargo-carrying body (trailer, railroad car, etc.) is a separate transport vehicle.

  (84) “Transporter” means a person engaged in the off-site transportation of hazardous waste by air, rail, highway, or water.

  (85) Treatability Study.

    (a) “Treatability study” means a study in which a hazardous waste is subjected to a treatment process to determine whether the waste is amenable to the treatment process, what pretreatment if any is required, the optimal process conditions needed to achieve the desired treatment, the efficiency of a treatment process for a specific waste or wastes, or the characteristics and volumes of residuals from a particular treatment process.

    (b) “Treatability study” also includes, for the purpose of the exemptions of COMAR 26.13.02.04-4 and .04-5, liner compatibility, corrosion, and other material compatibility studies, and toxicological and health effects studies.

  (86) “Treatment” means any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so far as to:

    (a) Neutralize the waste;

    (b) Recover energy or material resources from the waste;

    (c) Render the waste:

      (i) Nonhazardous or less hazardous;

      (ii) Safer to transport, store, or dispose of; or

      (iii) Amenable for recovery, amenable for storage, or reduced in volume.

  (87) “Underground injection” means the subsurface emplacement of fluids through a bored, drilled, or driven well, or through a dug well, where the depth of the dug well is greater than the largest surface dimension. (See also “injection well”.)

  (87-1) “Underground tank” means a tank that has its entire surface area totally below the surface of and covered by the ground.

  (87-2) “Unexploded ordnance (UXO)” means military munitions that:

    (a) Have been primed, fused, armed, or otherwise prepared for action;

    (b) Have been fired, dropped, launched, projected, or placed in such a manner as to constitute a hazard to operations, installations, personnel, or material; and

    (c) Remain unexploded either by malfunction, design, or any other cause.

  (87-3) “Unfit-for-use tank system” means a tank system that has been determined through an integrity assessment or other inspection to be capable no longer of storing or treating hazardous waste without posing a threat of release of hazardous waste to the environment.

  (88) “Unsaturated zone” or “zone of aeration” means the zone between the land surface and the water table.

  (89) “United States” means the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

  (89-1) “Universal waste” means any of the following hazardous wastes that are managed under the universal waste requirements of COMAR 26.13.10.06—.25:

    (a) Batteries as described in COMAR 26.13.10.07;

    (b) Pesticides as described in COMAR 26.13.10.08;

    (c) Mercury-containing equipment, lamps, or PCB-containing lamp ballasts, each as described in COMAR 26.13.10.09; or

    (d) Aerosol cans as described in COMAR 26.13.10.09-1.

  (89-2) Universal Waste Handler.

    (a) “Universal waste handler” means:

      (i) A generator of universal waste;

      (ii) The owner or operator of a facility, including all contiguous property, that receives universal waste from other universal waste handlers, accumulates universal waste, and sends universal waste to another universal waste handler, a destination facility, or a foreign destination;

      (iii) A person that treats universal waste as described in COMAR 26.13.10.12, .14, or .15B(3)(c), including large quantity handlers as described in COMAR 26.13.10.20A, B, or D; or

      (iv) A person that recycles universal waste under the provisions of COMAR 26.13.10.16-1, including large quantity handlers as described in COMAR 26.13.10.20F.

    (b) “Universal waste handler” does not mean a:

      (i) Person that treats universal waste, except for persons identified in §B(89-2)(a)(iii) of this regulation;

      (ii) Person that disposes of universal waste;

      (iii) Person that recycles universal waste, except for persons identified in §B(89-2)(a)(iv) of this regulation;

      (iv) Person engaged in the off-site transportation of universal waste by air, rail, highway, or water; or

      (v) Universal waste transfer facility.

  (89-3) “Universal waste transfer facility” means any transportation-related facility, including loading docks, parking areas, storage areas, and other similar areas, where shipments of universal waste are held during the normal course of transportation.

  (89-4) “Universal waste transporter” means a person engaged in the off-site transportation of universal waste by air, rail, highway, or water.

  (90) “Uppermost aquifer” means the geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected with this aquifer within the facilities' property boundary.

  (90-1) “Used, broken cathode ray tube (CRT)” means a CRT for which the glass has been removed from its housing or casing and from which the vacuum has been eliminated.

  (90-2) “Used, intact cathode ray tube (CRT) means a CRT from which the vacuum has not been eliminated.

  (90-3) “Used oil” means oil that has been refined from crude oil, or any synthetic oil, that has been used and, as a result of the use, is contaminated by physical or chemical impurities.

  (90-4) “Used oil re-refining distillation bottoms” means the heavy fraction produced by vacuum distillation of filtered and dehydrated used oil.

  (90-5) “User of the electronic manifest system” means a hazardous waste generator, a hazardous waste transporter, an owner or operator of a hazardous waste treatment, storage, recycling, or disposal facility, or any other person who:

    (a) Is required to use a manifest to comply with:

      (i) Any federal or state requirement to track the shipment, transportation, and receipt of hazardous waste or other waste material that is shipped from the site of generation to an off-site designated facility for treatment, storage, recycling, or disposal; or

      (ii) Any federal or state requirement to track the shipment, transportation, and receipt of rejected wastes or regulated container residues that are shipped from a designated facility to an alternative facility, or returned to the generator; and

    (b) Elects to use the:

      (i) Electronic manifest system to obtain, complete, and transmit an electronic manifest format supplied by the EPA electronic manifest system; or

      (ii) Paper manifest form and submits information to the electronic manifest system in the form of a paper copy of the manifest or data from a paper copy of the manifest for data processing purposes in accordance with COMAR 26.13.05.05B(1)(e) or COMAR 26.13.06.05A.

  (91) “Vessel” means every description of watercraft used, or capable of being used, as a means of transportation on the water.

  (92) “Wastewater treatment unit” means a device which:

    (a) Is part of a wastewater treatment facility which is subject to regulation under either §402 or 307(b) of the Clean Water Act;

    (b) Receives and treats or stores an influent wastewater which is a hazardous waste as defined in COMAR 26.13.02 or generates and accumulates a wastewater treatment sludge which is hazardous waste as defined in COMAR 26.13.02 or treats or stores a wastewater treatment sludge which is a hazardous waste as defined in COMAR 26.13.02; and

    (c) Is a tank or tank system.

  (93) “Water (bulk shipment)” means the bulk transportation of hazardous waste which is loaded or carried on board a vessel without containers or labels.

  (94) “Well” means any shaft or pit dug or bored into the earth, generally of a cylindrical form, and often walled with bricks or tubing to prevent the earth from caving in.

  (95) “Well injection” (see “underground injection”).

  (95-1) “Wipe” means a woven or non-woven shop towel, rag, pad, or swab made of wood pulp, fabric, cotton,  polyester blends, or other material.

  (96) “Zone of engineering control” means an area under the control of an owner or operator that, upon detection of a hazardous waste release, can be readily cleaned up before any hazardous waste or hazardous constituents are released to ground water or surface water.

#### Regulation .03-1 General Provisions for Manifests.

*COMAR 26.13.01.03-1*

A. Manifest Copy Submission — Certain Interstate Waste Shipments. If the state in which a waste is generated or the state in which waste will be transported to a designated facility requires that the waste be regulated as a hazardous waste or otherwise tracked through a hazardous waste manifest, the designated facility that receives the waste shall, regardless of the state in which the facility is located:

  (1) Complete the facility portion of the applicable manifest;

  (2) Sign and date the facility certification;

  (3) Submit to the electronic manifest system a final copy of the manifest for data processing purposes; and

  (4) Satisfy requirements established and enforced by the federal government to pay the appropriate per-manifest fee to EPA for each manifest submitted to the electronic manifest system, subject to the fee determination methodology, payment methods, dispute procedures, sanctions, and other fee requirements that are specified in 40 CFR Part 264, Subpart FF.

B. Applicability of E-manifest System and User Fee Requirements — Facilities Receiving State-Only Regulated Waste.

  (1) For the purposes of this section, “state-only regulated waste” means a:

    (a) Waste that is not regulated as hazardous under the federal RCRA Subtitle C regulatory program that a state regulates more broadly under its state regulatory program; or

    (b) Waste that is regulated as hazardous under the federal RCRA Subtitle C regulatory program that is federally exempt from manifest requirements, but not exempt from manifest requirements under state law.

  (2) If a state requires a manifest as defined in Regulation .03B of this chapter to be used under state law to track the shipment and transportation of a state-only regulated waste to a receiving facility, the facility receiving the state-only regulated waste shall:

    (a) Comply with the provisions of:

      (i) COMAR 26.13.05.05B, regarding use of the manifest; and

      (ii) COMAR 26.13.05.05C, regarding manifest discrepancies; and

    (b) Satisfy requirements established and enforced by the federal government to pay the appropriate per-manifest fee to EPA for each manifest submitted to the electronic manifest system, subject to the fee determination methodology, payment methods, dispute procedures, sanctions, and other fee requirements that are specified in 40 CFR Part 264, Subpart FF.

#### Regulation .04 Rule-Making Petitions.

*COMAR 26.13.01.04*

A. General.

  (1) Any person may petition the Secretary to modify or revoke any provision in this subtitle. This section sets forth general requirements which apply to these petitions. Section B of this regulation sets forth additional requirements for petitions to add a testing or analytical method to COMAR 26.13.02, 26.13.05, or 26.13.06. Section C of this regulation sets forth additional requirements for petitions to exclude a waste at a particular facility from COMAR 26.13.02.03 or the lists of hazardous wastes in COMAR 26.13.02.15—.19. Section J of this regulation sets forth additional requirements for petitions to amend COMAR 26.13.10.06—.25 to include additional hazardous waste as universal waste.

  (2) Each petition shall be submitted to the Secretary by certified mail and shall include:

    (a) The petitioner's name and address;

    (b) A statement of the petitioner's interest in the proposed action;

    (c) A description of the proposed action, including (when appropriate) suggested regulatory language; and

    (d) A statement of the need and justification for the proposed action, including any supporting tests, studies, or other information.

  (3) The Secretary will make a tentative decision to grant or deny a petition and will publish notice of the tentative decision, either in the form of an advanced notice of proposed rule making, a proposed rule, or a tentative determination to deny the petition, in the Maryland Register for written public comment.

  (4) Upon the written request of any interested person, the Secretary may, at his discretion, hold an informal public hearing to consider oral comments on the tentative decision. A person requesting a hearing shall state the issues to be raised and explain why written comments would not suffice to communicate the person's views. The Secretary may in any case decide on his own motion to hold an informal public hearing.

  (5) After evaluating all public comments, the Secretary will make a final decision by publishing in the Maryland Register a regulatory amendment or a denial of the petition.

B. Petitions for Equivalent Testing or Analytical Methods.

  (1) Any person seeking to add a testing or analytical method to COMAR 26.13.02, 26.13.05, or 26.13.06 may petition for a regulatory amendment under this section and §A of this regulation. To be successful, the person shall demonstrate to the satisfaction of the Secretary that the proposed method is equal to or superior to the corresponding method prescribed in COMAR 26.13.02, 26.13.05, or 26.13.06 in terms of its sensitivity, accuracy, and precision, that is, its reproducibility.

  (2) Each petition shall include, in addition to the information required by §A(2) of this regulation:

    (a) A full description of the proposed method, including all procedural steps and equipment used in the method;

    (b) A description of the types of wastes or waste matrices for which the proposed method may be used;

    (c) Comparative results obtained from using the relevant or corresponding methods prescribed in COMAR 26.13.02, 26.13.05, or 26.13.06;

    (d) An assessment of any factors which may interfere with, or limit the use of, the proposed method; and

    (e) A description of the quality control procedures necessary to ensure the sensitivity, accuracy, and precision of the proposed method.

  (3) After receiving a petition for an equivalent method, the Secretary may request any additional information on the proposed method which he may reasonably require to evaluate the method.

B-1. Procedures to Amend COMAR 26.13.02 to Exclude a Waste Produced at a Particular Facility.

  (1) This section establishes procedures under which waste from a particular generating facility may be excluded from the lists in COMAR 26.13.02.15—.19.

  (2) For a waste that is listed as a hazardous waste in both 40 CFR Part 261, Subpart D, and COMAR 26.13.02.15—.19:

    (a) A person who seeks to exclude the waste from the lists in COMAR 26.13.02.15—.19 shall do so by petitioning the Administrator of the U.S. Environmental Protection Agency, following the procedures in 40 CFR §260.22; and

    (b) If the petition submitted in accordance with §B-1(2)(a) of this regulation is successful:

      (i) EPA will add the waste to the appropriate table in Appendix IX of 40 CFR Part 261; and

      (ii) The waste will be excluded from the lists of hazardous wastes in COMAR 26.13.02.15—.19 through the action of COMAR 26.13.02.25.

  (3) For a waste that is listed as a hazardous waste in COMAR 26.13.02.15—.19, but not in 40 CFR Part 261, Subpart D:

    (a) A person who seeks to exclude the waste from the lists in COMAR 26.13.02.15—.19 shall do so by following the procedures in §C of this regulation; and

    (b) If the petition submitted in accordance with §C of this regulation is successful, the Department will identify the waste in COMAR 26.13.02.26.

C. Petitions to Amend COMAR 26.13.02 to Exclude a Waste Produced at a Particular Facility.

  (1) A person seeking to exclude a waste identified in §B-1(3) of this regulation that is generated at a particular generating facility from the lists in COMAR 26.13.02.15—.19 may petition for a regulatory amendment under this section and §A of this regulation, but the petitioner shall be successful only if:

    (a) The petitioner demonstrates to the satisfaction of the Secretary that the waste produced by a particular generating facility does not meet any of the criteria under which the waste was listed as a hazardous or an acutely hazardous waste;

    (b) The petitioner satisfies the requirements of §C(3)—(8) of this regulation; and

    (c) Even if the Secretary has a reasonable basis to believe that factors other than those for which the waste was listed could cause the waste to be a hazardous waste, the Secretary determines that these factors do not warrant retaining the waste as a hazardous waste, subject to the following:

      (i) The Secretary's determination shall be based on a petition that is a complete application, in that it includes all information required by this section;

      (ii) The other factors considered by the Secretary in evaluating whether the waste should be excluded from the waste listing may include the presence of additional constituents in the waste other than those that caused the waste to be listed; and

      (iii) Even if the Secretary concludes that the waste should be excluded from the waste listing, the waste still may be a hazardous waste by operation of COMAR 26.13.02.10—.14.

  (2) Procedures.

    (a) Subject to §C(2)(b) of this regulation, a person may use the procedures in this section and §A of this regulation to petition the Secretary for a regulatory amendment to exclude from COMAR 26.13.02.03A(2)(b) or B a waste that is described in those sections and is a waste that:

      (i) Is listed in COMAR 26.13.02.15—.19;

      (ii) Contains a waste listed in COMAR 26.13.02.15—.19; or

      (iii) Is derived from a waste listed in COMAR 26.13.02.15—.19.

    (b) The following conditions apply in connection with petitions made under this section:

      (i) An exclusion granted in response to the petition may only be issued for a particular generating, storage, treatment, or disposal facility;

      (ii) The petitioner shall make the same demonstration as required by §C(1) of this regulation, except that if the waste is a mixture of solid waste and one or more listed hazardous wastes or if the waste is derived from one or more hazardous wastes, the petitioner's demonstration may be made with respect to each constituent listed waste or the waste mixture as a whole; and

      (iii) A waste which is excluded as a result of the petition may still be a hazardous waste by operation of COMAR 26.13.02.10—14.

  (3) If the waste is listed with codes “I”, “C”, “R”, or “E” in COMAR 26.13.02.15—.19:

    (a) The petitioner shall show that the waste does not exhibit the relevant characteristic for which the waste was listed as defined in COMAR 26.13.02.11—.14 using any applicable methods prescribed there. The petitioner shall also show that the waste does not exhibit any of the other characteristics defined in COMAR 26.13.02.11—.14 using any applicable methods prescribed there.

    (b) Based on a complete application, the Secretary shall determine when he has a reasonable basis to believe that factors, including additional constituents, other than those for which the waste was listed could cause the waste to be a hazardous waste, that these factors do not warrant retaining the waste as a hazardous waste. A waste which is so excluded, however, still may be a hazardous waste by operation of COMAR 26.13.02.10—.14.

  (4) For waste listed with code “T” in COMAR 26.13.02.15—.19:

    (a) The petitioner shall demonstrate that the waste:

      (i) Does not contain the constituent or constituents, as defined in COMAR 26.13.02.23, that caused the Secretary to list the waste, using the appropriate test methods prescribed in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”, EPA Publication SW-846, as incorporated by reference in Regulation .05 of this chapter; or

      (ii) Although containing one or more of the hazardous constituents as defined in COMAR 26.13.02.24 that caused the Secretary to list the waste, does not meet the criterion of COMAR 26.13.02.09A(3) when considering the COMAR 26.13.02.09A(3)(a)—(k) under which the waste was listed as a the waste was listed as a hazardous waste;

    (b) Based on a complete application, the Secretary shall determine, when he has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that these factors do not warrant retaining the waste as a hazardous waste;

    (c) The petitioner shall demonstrate that the waste does not exhibit any of the characteristics defined in COMAR 26.13.02.10—.14 using any applicable methods prescribed there; and

    (d) A waste which is so excluded, however, still may be a hazardous waste under COMAR 26.13.02.10—.14.

  (5) If the waste is listed with the code “H” in COMAR 26.13.02.15—.19:

    (a) The petitioner shall demonstrate that the waste does not meet the criterion of COMAR 26.13.02.09A(2);

    (b) Based on a complete application, the Secretary shall determine, when he has a reasonable basis to believe that additional factors, including additional constituents, other than those for which the waste was listed could cause the waste to be a hazardous waste, that these factors do not warrant retaining the waste as a hazardous waste;

    (c) The petitioner shall demonstrate that the waste does not exhibit any of the characteristics defined in COMAR 26.13.02.11—.14 using any applicable methods prescribed there; and

    (d) A waste which is so excluded, however, still may be a hazardous waste by operation of COMAR 26.13.02.10—.14.

  (6) Demonstration samples shall consist of enough representative samples, but not less than four samples, taken over a period of time sufficient to represent the variability or the uniformity of the waste.

  (7) Each petition shall include, in addition to the information required by Regulation .04A(2):

    (a) The name and address of the laboratory facility performing the sampling or tests of the waste;

    (b) The names and qualifications of the persons sampling and testing the waste;

    (c) The dates of sampling and testing;

    (d) The location of the generating facility;

    (e) A description of the manufacturing processes or other operations and feed materials producing the waste and an assessment of whether these processes, operations, or feed materials can or might produce a waste that is not covered by the demonstration;

    (f) A description of the waste and an estimate of the average and maximum monthly and annual quantities of waste covered by the demonstration;

    (g) Pertinent data on and discussion of the factors delineated in the respective criterion for listing a hazardous waste, where the demonstration is based on the factors in COMAR 26.13.02.09A(3);

    (h) A description of the methodologies and equipment used to obtain the representative samples;

    (i) A description of the sample handling and preparation techniques used for extraction, containerization, and preservation of the samples;

    (j) A description of the tests performed (including results);

    (k) The names and model numbers of the instruments used in performing the tests; and

    (l) The following statement signed by the generator of the waste or his authorized representative: I certify under penalty of law that I have personally examined and am familiar with the information submitted in this demonstration and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment.

  (8) After receiving a petition for an exclusion, the Secretary may request any additional information which he may reasonably require to evaluate the petition.

  (9) An exclusion will only apply to the waste generated at the individual facility covered by the demonstration and will not apply to waste from any other facility.

  (10) The Secretary may exclude only part of the waste from which the demonstration is submitted when he has reason to believe that variability of the waste justifies a partial exclusion.

D. Variances from Classification as a Solid Waste. In accordance with the standards and criteria in §E of this regulation and the procedures in §G of this regulation, the Secretary may determine on a case-by-case basis that the following recycled materials are not solid wastes:

  (1) Material accumulated speculatively without sufficient amounts being recycled as defined in COMAR 26.13.02.01D;

  (2) Materials that are reclaimed and then reused within the original primary production process in which they were generated;

  (3) Materials that have been reclaimed but must be reclaimed further before the materials are completely recovered;

  (4) Hazardous secondary materials that are reclaimed in a continuous industrial process; and

  (5) Hazardous secondary materials that are indistinguishable in all relevant aspects from a product or intermediate.

E. Standards and Criteria for Variances from Classification as a Solid Waste.

  (1) The Secretary may grant requests for a variance from classifying as a solid waste those materials that are accumulated speculatively without sufficient amounts being recycled if the applicant demonstrates that sufficient amounts of the material will be recycled or transferred for recycling in the following year. If a variance is granted, it is valid only for the following year, but can be renewed, on an annual basis, by filing a new application. The Secretary's decision will be based on all of the following standards and criteria:

    (a) The manner in which the material is expected to be recycled, when the material is expected to be recycled, and whether this expected disposition is likely to occur, as evidenced by, for example, past practices, market factors, the nature of the material, or contractual arrangements for recycling.

    (b) The reason that the applicant has accumulated the material for one or more years without recycling 75 percent of the volume accumulated at the beginning of the year.

    (c) The quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is recycled.

    (d) The extent to which the material is handled to minimize loss.

    (e) Other relevant factors.

  (2) The Secretary may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused as feedstock within the original primary production process in which the materials were generated if the reclamation operation is an essential part of the production process. This determination will be based on the following criteria:

    (a) How economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials;

    (b) The prevalence of the practice on an industry-wide basis;

    (c) The extent to which the material is handled before reclamation to minimize loss;

    (d) The time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process;

    (e) The location of the reclamation operation in relation to the production process;

    (f) Whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form;

    (g) Whether the person who generates the material also reclaims it; and

    (h) Other relevant factors.

  (3) The Secretary:

    (a) May grant requests for a variance from classifying as a solid waste those hazardous secondary materials that have been partially reclaimed but must be reclaimed further before recovery is completed if the partial reclamation has produced a commodity-like material; and

    (b) Shall base a determination that a partially reclaimed material is commodity-like on whether the hazardous secondary material is legitimately recycled, as specified in §L of this regulation, and on whether all of the following decision criteria are satisfied:

      (i) Whether the degree of partial reclamation is substantial, as demonstrated by the partial reclamation being accomplished through use of a partial reclamation process other than the process that generated the hazardous waste;

      (ii) Whether the partially reclaimed material has sufficient economic value so that it will be purchased for further reclamation;

      (iii) Whether the partially reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials, and is used in subsequent production steps;

      (iv) Whether there is a market for the partially reclaimed material, as demonstrated by there being a known customer or customers engaged in further reclaiming the material, supported by evidence such as records of sales, contracts, or bills of lading or other indicators of subsequent use; and

      (v) Whether the partially reclaimed material is handled to minimize loss.

F. Variance to be Classified as a Boiler. In accordance with the standards and criteria in Regulation .03B(5) of this chapter defining “boiler”, and the procedure in §G of this regulation, the Secretary may determine on a case-by-case basis that certain enclosed devices using controlled flame combustion are boilers, even though they do not otherwise meet the definition of boiler contained in Regulation .03B(5) of this chapter, after considering the following criteria:

  (1) The extent to which the unit has provisions for recovering and exporting thermal energy in the form of steam, heated fluids, or heated gases;

  (2) The extent to which the combustion chamber and energy recovery equipment are of integral design;

  (3) The efficiency of energy recovery, calculated in terms of the recovered energy compared with the thermal value of the fuel;

  (4) The extent to which exported energy is used;

  (5) The extent to which the device is in common and customary use as a “boiler” functioning primarily to produce steam, heated fluids, or heated gases; and

  (6) Other factors, as appropriate.

G. Procedures for Variances from Classification as a Solid Waste or Classification as a Boiler. The Secretary shall use the following procedures in evaluating applications for variances from classification as a solid waste or applications to classify particular enclosed flame combustion devices as boilers:

  (1) The applicant shall apply to the Secretary. The application shall address the relevant criteria contained in §E or F of this regulation.

  (2) The Secretary:

    (a) Shall evaluate the application for the variance and issue a draft notice tentatively granting or denying the application;

    (b) Shall provide notification of this tentative decision by newspaper advertisement and radio broadcast in the locality where the recycler is located;

    (c) Shall accept comment on the tentative decision for 45 days;

    (d) May hold a public hearing on the tentative decision upon request or at the Secretary's discretion; and

    (e) Shall issue a final decision after receipt of comments and after any scheduled hearing.

  (3) If there is a change in circumstances that affects how a hazardous secondary material meets the relevant criteria in §E or F of this regulation upon which a variance had been based, the applicant shall send a description of the change to the Secretary. The Secretary may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance, or may require the applicant to reapply for the variance.

  (4) Expiration of Variances.

    (a) The Secretary shall specify a fixed term not to exceed 10 years during which a variance is effective.

    (b) If a person wishes to continue to operate under a variance, the person shall, no later than 6 months before the end of the fixed term specified under §G(4)(a) of this regulation, reapply for the variance.

    (c) If a person submits a complete application within 6 months of the end of the fixed term of the variance, the person may continue to operate under the expired variance until receiving a decision on the reapplication from the Secretary.

  (5) A person who receives a variance under this section shall provide notification in accordance with §K of this regulation.

H. Additional Regulation of Certain Hazardous Waste Recycling Activities on a Case-By-Case Basis.

  (1) The Secretary may decide on a case-by-case basis that persons accumulating or storing the recyclable materials described in COMAR 26.13.02.06A(2)(b)(iii) shall be regulated under COMAR 26.13.02.06B and C. The basis for this decision is that the materials are being accumulated or stored in a manner that does not protect human health and the environment because the materials or their toxic constituents have not been adequately contained, or because the materials being accumulated or stored together are incompatible. In making this decision, the Secretary shall consider the following factors:

    (a) The types of materials accumulated or stored and the amounts accumulated or stored;

    (b) The method of accumulation or storage;

    (c) The length of time the materials have been accumulated or stored before being reclaimed;

    (d) Whether any contaminants are being released into the environment, or are likely to be so released; and

    (e) Other relevant factors.

  (2) The procedures for this decision are set forth in §I of this regulation.

I. Procedures for Case-By-Case Regulation of Hazardous Waste Recycling Activities. The Secretary shall use the following procedures when determining whether to regulate hazardous waste recycling activities described in COMAR 26.13.02.06A(2)(b)(iii), under the provisions of COMAR 26.13.02.06B and C, rather than under the provisions of COMAR 26.13.10.03:

  (1) If a generator is accumulating the waste:

    (a) The Secretary shall issue a notice setting forth the factual basis for the decision to regulate and stating that the person shall comply with the applicable requirements of COMAR 26.13.03.01—.03 and .05—.07;

    (b) The notice referred to in §I(1)(a) of this regulation becomes final within 30 days, unless the person served challenges the decision; and

    (c) If the person who is served a notice under §I(1)(a) of this regulation challenges the serving of the notice, the Secretary shall:

      (i) Hold a public hearing;

      (ii) Provide notice of the public hearing to the public and allow public participation at the hearing;

      (iii) Issue a final order after the public hearing stating whether or not compliance with COMAR 26.13.03 is required;

      (iv) Make the order required by §I(1)(c)(iii) of this regulation effective 30 days after it is received by the person to whom it is directed, unless the Secretary specifies a later date.

  (2) If the person is accumulating the recyclable material at a storage facility, the Secretary shall issue a notice stating that the person shall obtain a permit in accordance with all applicable provisions of COMAR 26.13.07.

  (3) The following additional requirements apply in instances when the person is accumulating the recyclable material at a storage facility:

    (a) The owner or operator of the facility shall apply for a permit within not less than 60 days and not more than 6 months of notice under §I(2) of this regulation, as specified in the notice;

    (b) The owner or operator of the facility may challenge the Secretary's decision under §I(2) of this regulation to require a permit in:

      (i) The permit application;

      (ii) A public hearing held on the draft permit; or

      (iii) Comments filed on the draft permit or the notice of intent to deny the permit;

    (c) The Secretary shall specify in the fact sheet accompanying the permit for the storage facility the reasons for the Secretary's determination that a permit is required; and

    (d) The question of whether the Secretary's decision to require a permit was proper remains open for consideration during the public comment period associated with the permit and in any subsequent hearing on the permit.

J. Petitions to Amend COMAR 26.13.10.06—.25 to Include Additional Hazardous Wastes as Universal Wastes.

  (1) A person seeking to add a hazardous waste or a category of hazardous waste to the universal waste regulations of COMAR 26.13.10.06—.25 may petition for a regulatory amendment under this section, §A of this regulation, and COMAR 26.13.10.25.

  (2) To be successful, a petitioner shall:

    (a) Demonstrate to the satisfaction of the Secretary that regulation under the universal waste regulations of COMAR 26.13.10.06—.25:

      (i) Is appropriate for the waste or category of waste;

      (ii) Will improve management practices for the waste or category of waste; and

      (iii) Will improve implementation of the hazardous waste program;

    (b) Include in the petition the information required by §A(2) of this regulation; and

    (c) Address in the petition as many of the factors listed in COMAR 26.13.10.25B as are appropriate for the waste or category of waste that is the subject of the petition.

  (3) The Secretary shall:

    (a) Grant or deny a petition to include additional hazardous wastes as universal wastes using the factors listed in COMAR 26.13.10.25B to evaluate the merits of the petition;

    (b) Base the decision to grant or deny the petition on the weight of evidence showing that regulation under COMAR 26.13.10.06—.25:

      (i) Is appropriate for the waste or category of waste;

      (ii) Will improve management practices for the waste or category of waste; and

      (iii) Will improve implementation of the hazardous waste program.

  (4) The Secretary may request additional information to evaluate the merits of a petition to include additional hazardous wastes as universal wastes.

K. Notification Requirements for Variances from Classification as a Solid Waste.

  (1) A person managing a hazardous secondary material under a variance granted in accordance with §D of this regulation shall provide notification in accordance with the requirements of this section.

  (2) A person providing notification under §K(1) of this regulation shall:

    (a) Provide notification to the Department before operating under the variance and by March 1 of each even-numbered year thereafter using EPA Form 8700-12 or another method acceptable to the Department; and

    (b) Include the following information in the notification:

      (i) The name, address, and, if applicable, the EPA ID number of the facility;

      (ii) The name and telephone number of a contact person;

      (iii) The NAICS code of the facility;

      (iv) The regulation under which the hazardous secondary material will be managed;

      (v) The date when the facility expects to begin managing the hazardous secondary material in accordance with the regulation;

      (vi) A list of hazardous secondary materials that will be managed according to the regulation, reported as the EPA hazardous waste numbers that would apply if the hazardous secondary material were managed as hazardous waste;

      (vii) For each hazardous secondary material, whether the hazardous secondary material, or any portion of the hazardous secondary material, will be managed in a land-based unit;

      (viii) The quantity of each hazardous secondary material to be managed annually; and

      (ix) The certification included in EPA Form 8700-12 signed and dated by an authorized representative of the facility.

  (3) If a person managing hazardous secondary materials has submitted a notification, but then subsequently stops managing hazardous secondary materials under a variance granted under §D of this regulation, the person shall notify the Department within 30 days using EPA Form 8700-12. For the purposes of this requirement, a facility is considered to have stopped managing hazardous secondary materials if the facility no longer generates, manages, or reclaims hazardous secondary materials under §D of this regulation and does not expect to manage any amount of hazardous secondary materials for at least 1 year.

L. Legitimate Recycling of Hazardous Secondary Materials.

  (1) General Considerations.

    (a) The recycling of a hazardous secondary material may qualify for an exclusion or exemption from the hazardous waste regulations only if the recycling is legitimate, as specified in this section.

    (b) A hazardous secondary material that is not legitimately recycled is discarded material and is a solid waste.

    (c) To demonstrate that an activity claimed to be recycling is legitimate recycling, a person shall:

      (i) Address all the requirements of §L(2) of this regulation; and

      (ii) Consider the requirements of §L(3) of this regulation.

    (d) The Secretary:

      (i) Shall determine that an activity claimed to be recycling is legitimate recycling only if all the criteria of §L(2) of this regulation are met; and

      (ii) May determine that an activity claimed to be recycling is not legitimate recycling based on consideration of the supplemental factors identified in §L(3) of this regulation.

  (2) Mandatory Criteria. In order to be considered legitimate recycling, an activity is required to:

    (a) Involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process by:

      (i) Contributing valuable ingredients to a product or intermediate;

      (ii) Replacing a catalyst or carrier in the recycling process;

      (iii) Serving as the source of a valuable constituent that is recovered in the recycling process;

      (iv) Being recovered or regenerated by the recycling process; or

      (v) Being used as an effective substitute for a commercial product;

    (b) Produce a valuable product or intermediate, as indicated by the product or intermediate being:

      (i) Sold to a third party; or

      (ii) Used by the recycler or the generator as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process; and

    (c) Be conducted in a manner that results in the hazardous secondary material being managed as a valuable commodity when it is under the control of the generator and the recycler, as indicated by the generator and recycler:

      (i) Managing the hazardous secondary material in a manner consistent with the management of an analogous raw material, if any, or in an equally protective manner as the typical method of management of an analogous raw material;

      (ii) Ensuring that the hazardous secondary material is contained, as described in §L(4) of this regulation, if there is no analogous raw material; and

      (iii) Immediately recovering any hazardous secondary material that is released to the environment, with any released secondary hazardous material that is not immediately recovered being subject to regulation as a discarded material.

  (3) Supplemental Factors.

    (a) In evaluating whether an activity that is claimed to be recycling is legitimate recycling, a person shall consider whether the product of the recycling process:

      (i) Contains significant concentrations of any hazardous constituents identified in COMAR 26.13.02.24 that are not found in analogous products;

      (ii) Contains hazardous constituents identified in COMAR 26.13.02.24 at concentrations that are significantly elevated from those found in analogous products; or

      (iii) Exhibits a hazardous characteristic as defined in COMAR 26.13.02.10—.14 that analogous products do not exhibit.

    (b) If one or more of the conditions in §L(3)(a) of this regulation is met by a product of a recycling process:

      (i) This may be an indication that the process is not legitimate recycling; or

      (ii) The process may still be classified as legitimate recycling in consideration of other factors related to the presence of hazardous constituents or the exhibiting of a hazardous characteristic, such as potential exposures to toxics in the product, the bioavailability of the toxics in the product, and other relevant considerations.

  (4) Criteria to Be Considered Contained.

    (a) For the purposes of this section, a hazardous secondary material is considered to be contained if the material is held in a unit, including a land-based unit, that meets the following criteria:

      (i) The unit is in good condition;

      (ii) The unit has no leaks or other continuing or intermittent releases of hazardous secondary material to the environment, except for releases that are authorized by a permit, such as a permit to discharge to water or air;

      (iii) The unit is designed, operated, constructed, and maintained to prevent unpermitted releases to the environment that include, but are not limited to, releases through surface transport by precipitation runoff, releases to soil and ground water, wind-blown dust, fugitive air emissions, and catastrophic unit failures;

      (iv) The unit is properly labeled or operated with an inventory log or other system to allow the immediate identification of the hazardous secondary material in the unit;

      (v) The unit is operated so that only mutually compatible materials are placed in the unit;

      (vi) The materials being held in the unit are compatible with the materials of construction of the unit; and

      (vii) The unit is designed and operated in a manner that addresses any potential risks of fires or explosions.

    (b) A hazardous secondary material is presumptively contained if it is held in a unit that meets the standards in COMAR 26.13.05 or 26.13.06 that would be applicable to the hazardous secondary material if it were regulated as a hazardous waste.

#### Regulation .05 Incorporation by Reference.

*COMAR 26.13.01.05*

A. When used in COMAR 26.13.01—26.13.10, the following publications are incorporated by reference:

  (1) “ASTM Standard Test Methods of Flash Point of Liquids by Setaflash Closed Tester.” ASTM Standard D-3278-78 is available from American Society for Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19103.

  (2) “ASTM Standard Test Methods for Flash Point by Pensky-Martens Closed Tester,” ASTM Standard D-93-79 or D-93-80. D-93-80 is available from American Society for Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19103.

  (3) “NFPA 30 Flammable and Combustible Liquids Code” (1990), available from the National Fire Protection Association, Batterymarch Park, Quincy, Massachusetts 02269.

  (4) “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”, EPA SW-846, Third Edition (1986), as amended by Update I (July, 1992), Update II (September, 1994), Update IIA (August, 1993), and Update IIB (January, 1995). Refer to 40 CFR §260.11 for information on availability of these documents.

B. Incorporation of Federal Regulations by Reference.

  (1) As qualified by §B(2) of this regulation, certain federal regulations are incorporated by reference as follows:

    (a) When used in COMAR 26.13.05, 40 CFR §§144.3 and 264.140—264.151 as of July 1, 2024, are incorporated by reference;

    (b) When used in COMAR 26.13.06, the federal regulations as of July 1, 2024, in 40 CFR §§265.90—265.94, 265.140—265.148, 265.270—265.282, 265.340—265.351, 265.370—265.382, and 265.400—265.406 are incorporated by reference;

    (c) When used in COMAR 26.13.01—26.13.10, Appendix IX of 40 CFR Part 264, as amended (Ground Water Monitoring List is incorporated by reference;

    (d) When used in COMAR 26.13.03.07, the federal regulations as of July 1, 2024, in 40 CFR §§262.81—262.89 are incorporated by reference;

    (e) When used in COMAR 26.13.02, Appendix VIII of 40 CFR Part 261, as amended, and Appendix IX of 40 CFR Part 261, as amended, are incorporated by reference;

    (f) When used in COMAR 26.13.01—26.13.10, 49 CFR 171—180, 387, and 396, as amended, are incorporated by reference;

    (g) When used in COMAR 26.13.02.17D, the federal regulations as of July 1, 2024 in 40 CFR §261.32(d) are incorporated by reference;

    (h) When used in COMAR 26.13.02.19-7, the federal regulations as of July 1, 2024, in 40 CFR §261.39(a)(5) are incorporated by reference;

    (i) When used in COMAR 26.13.02.19-8 the federal regulations as of July 1, 2024, in 40 CFR §261.41 are incorporated by reference;

    (j) When used in COMAR 26.13.03.05F(4), the federal regulations as of July 1, 2024, in 40 CFR §314(e) are incorporated by reference;

    (k) When used in COMAR 26.13.03.07, the federal regulations as of July 1, 2024, in 40 CFR Part 262, Subpart H, are incorporated by reference;

    (l) When used in COMAR 26.13.05.02C(1), the federal regulations as of July 1, 2024, in 40 CFR §264.12(a) are incorporated by reference;

    (m) When used in COMAR 26.13.05.04G(4), 40 CFR Part 302, as amended, is incorporated by reference;

    (n) When used in COMAR 26.13.05.11, the federal regulations as of July 1, 2024, in 40 CFR §§264.221(c)(2)(i)—(iv) and .223(b)—(d) are incorporated by reference;

    (o) When used in COMAR 26.13.05.12, the federal regulations as of July 1, 2024, in 40 CFR §253(b) and (c) are incorporated by reference;

    (p) When used in COMAR 26.13.05.14, the federal regulations as of July 1, 2024, in 40 CFR §§264.301(c)(3)(i)—(v), .301(c)(5), .303(c), and .304(b) are incorporated by reference;

    (q) When used in COMAR 26.13.06.19, the federal regulations as of July 1, 2024, in 40 CFR §§265.222 and .223 are incorporated by reference;

    (r) When used in COMAR 26.13.06.20, the federal regulations as of July 1, 2024, in 40 CFR §§265.254, .255, and .259 are incorporated by reference;

    (s) When used in COMAR 26.13.06.22, the federal regulations as of July 1, 2024, in 40 CFR §§265.302 and .303 are incorporated by reference;

    (t) When used in COMAR 26.13.07.13-2A(13), the federal regulations as of July 1, 2024, in Appendix I of 40 CFR §270.42 are incorporated by reference; and

    (u) Except as qualified by COMAR 26.13.09.03, when used in used in COMAR 26.13.01—26.13.10, the federal regulations as of July 1, 2024, in 40 CFR Part 268 are incorporated by reference.

    (v) When used in COMAR 26.13.10.49C, the federal regulations as of July 1, 2024, in 40 CFR §§266.510(a), (b)(1), b(2), b(4), c(1)—(4), and c(7)—(10) are incorporated by reference.

  (2) References to Other Federal Regulations in Federal Regulations That Have Been Incorporated by Reference.

    (a) Unless otherwise noted in this subtitle, for the purposes of this subtitle a reference to a federal regulation within a federal regulation that has been incorporated by reference in §B(1) of this regulation shall be to the analogous provision within the Code of Maryland Regulations.

    (b) The following table lists federal regulations and the analogous provisions within the Code of Maryland Regulations:

C. When used in COMAR 26.13.01—26.13.10, the following federal statutory provisions are incorporated by reference:

  (1) The minimum technological requirements of:

    (a) §3004(o)(1) of RCRA,

    (b) §3004(o)(2) and (3) of RCRA, except that “the Administrator” shall be replaced by “the Administrator or the Secretary”;

  (2) The requirements concerning interim status surface impoundments in:

    (a) §3005(j)(1)—(4) of RCRA, and

    (b) §3005(j)(13) of RCRA, except that the phrase “The Administrator may modify the requirements of paragraph (1)” shall be replaced by the phrase “The Administrator or the Secretary may modify the requirements of paragraph (1)”;

  (3) The notification requirements of §3010 of RCRA; and

  (4) The requirements concerning exposure information in §3019 of RCRA.

### Chapter 02 — Identification and Listing of Hazardous Waste

**Authority:** Environment Article, §6-905.3 and Title 7, Subtitle 2, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.17 adopted as an emergency provision effective November 18, 1980 (7:25 Md. R. S-1); adopted permanently effective April 3, 1981 (8:7 Md. R. 642)

**Administrative History:** Regulations .02C, F; .04A, B, D; .05D, .06B, .15, .16, and .17E, F amended, .05F adopted, and .07C repealed effective February 13, 1984 (11:3 Md. R. 202)

**Administrative History:** Regulations .02F, .03A. .06B, .13B, .14, .15, .17E—F and Appendices IV and V amended, and .05G adopted effective July 30, 1984 (11:5 Md. R. 1330)

**Administrative History:** Regulations .02F, .04D, .07C, and .16-1 adopted effective January 31, 1983 (10:2 Md. R. 110)

**Administrative History:** Regulations .03A, .04A and B, .07A and B, .10A, .11A, .12A, and .17F amended effective January 31, 1983 (10:2 Md. R. 110)

**Administrative History:** Regulations .04, .05C, .06B, .15, .16, .17E, F, and Appendix IV amended effective January 18, 1982 (9:1 Md. R. 20)

**Administrative History:** Regulation .05A, B amended effective August 12, 1985 (12:16 Md. R. 1607)

**Administrative History:** Regulation .16 amended as an emergency provision effective January 13, 1987 (14:3 Md. R. 269); emergency status expired June 29, 1987; adopted permanently effective July 12, 1987 (14:14 Md. R. 1573)

**Administrative History:** Regulation .16-1 amended as an emergency provision effective January 13, 1987 (14:3 Md. R. 269); emergency status expired June 29, 1987; adopted permanently effective July 12, 1987 (14:14 Md. R. 1573)

**Administrative History:** Annotation: COMAR 10.51.02 cited in Thomas v. State of Maryland, 62 Md. App. 160 (1985)

**Administrative History:** Regulation .01 amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .02A—F repealed, and new A—G adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .03C amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .04A, B amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .05A—F amended, and G repealed effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .06 repealed and new Regulation .06 adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .06-1 adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .14E amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .15 amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .16 amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .16-1 amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .17 amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Appendices III, IV, and V amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .06-1 recodified to Regulation .07

**Administrative History:** Regulations .07—.16 recodified to Regulations .08—.17

**Administrative History:** Regulation .16-1 recodified to Regulation .18

**Administrative History:** Regulation .17A—E recodified to Regulation .19A—E

**Administrative History:** Regulation .17E-1, F, and G recodified to Regulation .19F, G, and H

**Administrative History:** Appendices I—VI codified as Regulations .20—.25

**Administrative History:** Chapter recodified from COMAR 10.51.02 to COMAR 26.13.02

**Administrative History:** Regulation .01C amended effective December 23, 1991 (18:25 Md. R. 2759); May 24, 1993 (20:10 Md. R. 853)

**Administrative History:** Regulation .02A amended effective August 28, 1995 (22:17 Md. R. 1321)

**Administrative History:** Regulation .02A, G amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .02C amended effective May 24, 1993 (20:10 Md. R. 853)

**Administrative History:** Regulation .03A amended effective December 23, 1991 (18:25 Md. R. 2759); September 7, 1998 (25:18 Md. R. 1438)

**Administrative History:** Regulation .04 amended and recodified to Regulations .04 and .04-1—.04-3 effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .04A amended effective May 24, 1993 (20:10 Md. R. 853); August 28, 1995 (22:17 Md. R. 1321); September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulations .04-1 amended effective April 11, 1994 (21:7 Md. R. 533); September 7, 1998 (25:18 Md. R. 1438)

**Administrative History:** Regulations .04-4 and .04-5 adopted effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .04-4B amended effective May 5, 1997 (24:9 Md. R. 659)

**Administrative History:** Regulation .05B amended effective September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .05C amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .05D amended effective May 24, 1993 (20:10 Md. R. 853); May 8, 1995 (22:9 Md. R. 648)

**Administrative History:** Regulation .05E amended effective September 7, 1998 (25:18 Md. R. 1438)

**Administrative History:** Regulation .06 amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .06A amended effective May 24, 1993 (20:10 Md. R. 853); August 28, 1995 (22:17 Md. R. 1321); September 10, 1997 (24:5 Md. R. 413); September 7, 1998 (25:18 Md. R. 1438)

**Administrative History:** Regulation .06D adopted effective August 28, 1995 (22:17 Md. R. 1321)

**Administrative History:** Regulation .09A amended effective April 11, 1994 (21:7 Md. R. 533)

**Administrative History:** Regulation .10A amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .14 repealed and new Regulation .14 adopted effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .15B and C amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .16 amended effective December 23, 1991 (18:25 Md. R. 2759); May 24, 1993 (20:10 Md. R. 853); April 11, 1994 (21:7 Md. R. 533); September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .17 amended effective June 10, 1992 (18:25 Md. R. 2759); April 11, 1994 (21:7 Md. R. 533); August 28, 1995 (22:17 Md. R. 1321)

**Administrative History:** Regulation .18 amended effective March 6, 1989 (16:4 Md. R. 498)

**Administrative History:** Regulation .19 amended effective December 23, 1991 (18:25 Md. R. 2759); May 24, 1993 (20:10 Md. R. 853); April 11, 1994 (21:7 Md. R. 533)

**Administrative History:** Regulation .22 amended effective May 24, 1993 (20:10 Md. R. 853); April 11, 1994 (21:7 Md. R. 533); September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .23 amended effective December 23, 1991 (18:25 Md. R. 2759); April 11, 1994 (21:7 Md. R. 533); August 28, 1995 (22:17 Md. R. 1321); September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .24 amended effective April 11, 1994 (21:7 Md. R. 533); September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .25 amended effective December 23, 1991 (18:25 Md. R. 2759); April 11, 1994 (21:7 Md. R. 533); September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .26 adopted effective March 6, 1989 (16:4 Md. R. 498)

**Administrative History:** Chapter revised effective October 16, 2000 (27:20 Md. R. 1843)

**Administrative History:** Regulation .01B amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .01C amended effective November 1, 2002 (29:21 Md. R. 1647); May 1, 2008 (35:8 Md. R. 809); January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .02A, C amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .02B amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .02G amended effective November 1, 2002 (29:21 Md. R. 1647); January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .02H adopted effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .03 amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .03A amended effective January 18, 2016 (43:1 Md. R. 14)

**Administrative History:** Regulation .04A amended effective November 1, 2002 (29:21 Md. R. 1647); May 1, 2008 (35:8 Md. R. 809); January 18, 2016 (43:1 Md. R. 14); January 13, 2022 (49:1 Md. R. 14); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .04C adopted effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .04-1 amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .04-1A amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .04-3A amended effective May 1, 2008 (35:8 Md. R. 809); January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .04-3D adopted January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .04-4 amended effective May 1, 2008 (35:8 Md. R. 809); May 3, 2021 (48:9 Md. R. 359)

**Administrative History:** Regulation .04-4A amended January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .04-4F adopted January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .04-5 amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .04-5A amended effective May 3, 2021 (48:9 Md. R. 359)

**Administrative History:** Regulation .04-6 adopted effective January 18, 2016 (43:1 Md. R. 14)

**Administrative History:** Regulation .04-7 adopted effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .05 amended effective November 1, 2002 (29:21 Md. R. 1647); May 3, 2021 (48:9 Md. R. 359)

**Administrative History:** Regulation .05A amended effective January 1, 2007 (33:26 Md. R. 1999); January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .05A, D amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .05B amended effective September 11, 2006 (33:18 Md. R. 1507)

**Administrative History:** Regulation .05G adopted effective January 1, 2007 (33:26 Md. R. 1999)

**Administrative History:** Regulation .06 amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .06A amended effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .06A, A-1 amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .06A-1 amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .06B adopted effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .06C amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .06D repealed effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .06E adopted effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .06E repealed effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .07A, B amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .07B amended effective September 11, 2006 (33:18 Md. R. 1507); May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .07-1 adopted effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .07-1B amended effective May 1, 2008 (35:8 Md. R. 809); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .10 amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .10B amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .11 amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .11A, C amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .11-1 adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .12B amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .13 amended effective May 1, 2008 (35:8 Md. R. 809); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .14 amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .15D amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .16 amended effective January 18, 2016 (43:1 Md. R. 14)

**Administrative History:** Regulation .16A amended effective May 1, 2008 (35:8 Md. R. 809); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .17 amended effective July 8, 2002 (29:13 Md. R. 992); May 1, 2008 (35:8 Md. R. 809); January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .17A amended effective January 18, 2016 (43:1 Md. R. 14)

**Administrative History:** Regulation .18 amended effective July 8, 2002 (29:13 Md. R. 992)

**Administrative History:** Regulation .19 amended effective May 1, 2008 (35:8 Md. R. 809); May 3, 2021 (48:9 Md. R. 359)

**Administrative History:** Regulation .19C, G amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .19-1 adopted effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .19-2 adopted effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .19-2 amended effective May 3, 2021 (48:9 Md. R. 359)

**Administrative History:** Regulation .19-3 adopted effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .19-4 adopted effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .19-5 adopted effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .19-6 adopted effective January 18, 2016 (43:1 Md. R. 14)

**Administrative History:** Regulation .19-6A, D amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .19-7 adopted effective January 18, 2016 (43:1 Md. R. 14)

**Administrative History:** Regulation .19-7 repealed and new Regulation .19-7 adopted effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .19-8 adopted effective January 18, 2016 (43:1 Md. R. 14)

**Administrative History:** Regulation .19-8 repealed and new Regulation .19-8 adopted effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .23 amended effective November 1, 2002 (29:21 Md. R. 1647); May 1, 2008 (35:8 Md. R. 809); January 13, 2022 (49:1 Md. R. 14); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .24 repealed and new Regulation .24 adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .25 adopted effective January 18, 2016 (43:1 Md. R. 14)

**Administrative History:** Regulation .26 repealed and new Regulation .26 adopted effective July 8, 2002 (29:13 Md. R. 992)

#### Regulation .01 Purpose and Scope.

*COMAR 26.13.02.01*

A. This chapter identifies those solid wastes which are subject to regulation as hazardous wastes under COMAR 26.13.03—26.13.10.

B. In this chapter:

  (1) Regulations .01—.07 define the terms “solid waste” and “hazardous waste”, identify those wastes which are excluded from regulation under COMAR 26.13.03—26.13.07, 26.13.09 and 26.13.10 and establish special management requirements for hazardous waste produced by small quantity generators and hazardous waste which is used, re-used, recycled, or reclaimed.

  (2) Regulations .08 and .09 set forth the criteria used by the Department to identify characteristics of hazardous waste and to list particular hazardous wastes.

  (3) Regulations .10—.14 identify characteristics of hazardous waste.

  (4) Regulations .15—.19 list particular hazardous wastes.

C. General.

  (1) The definition of solid waste contained in this chapter applies only to wastes that also are hazardous for purposes of this subtitle. For example, it does not apply to materials such as nonhazardous scrap, paper, textiles, or rubber that are not otherwise hazardous wastes and that are recycled.

  (2) This chapter identifies only some of the materials which are solid wastes and hazardous wastes under Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland.

D. Definitions. For the purposes of Regulations .02, .04, and .06 of this chapter, the following terms have the meanings indicated:

  (1) By-Product.

    (a) “By-product” means a material that is not one of the primary products of a production process and is not solely or separately produced by the production process, such as slags, distillation column bottoms, or other process residues.

    (b) “By-product” does not include a co-product that is produced for the general public's use and is ordinarily used in the form produced by the process.

  (2) “Excluded scrap metal” means processed scrap metal, unprocessed home scrap metal, and unprocessed prompt scrap metal.

  (3) “Home scrap metal” means scrap metal as generated by steel mills, foundries, and refineries, and includes, for example, turnings, cuttings, punchings, and borings.

  (4) Material Accumulated Speculatively.

    (a) “Material accumulated speculatively” means a material that is accumulated before being recycled.

    (b) “Material accumulated speculatively” does not include a material for which the person accumulating the material can show that the material is potentially recyclable and has a feasible means of being recycled, and that during the calendar year which commences on January 1, the amount of material that is recycled or transferred to a different site for recycling equals at least 75 percent by weight or volume of the amount of that material accumulated at the beginning of the period, subject to the following:

      (i) The person shall have placed the material in a storage unit that has a label indicating the first date that the material began to be accumulated, or, if placing a label on the storage unit is not practicable, the person shall have documented the accumulation period through an inventory log or other appropriate method;

      (ii) In calculating the percentage of turnover, the 75 percent requirement is to be applied to each material of the same type, such as slags from a single smelting process, that is recycled in the same way, such as by recovering the same material from the recyclable material, or by using the material in the same way;

      (iii) Materials accumulating in units that would be exempt from regulation under Regulation .04-2 of this chapter are not to be included in making the calculation;

      (iv) Materials that are already defined as solid wastes are not to be included in making the calculation; and

      (v) A material is no longer in the category of material being accumulated speculatively once it has been removed from accumulation for recycling.

  (5) Processed Scrap Metal.

    (a) “Processed scrap metal” means scrap metal which has been manually or physically altered to either separate it into distinct materials to enhance economic value or to improve the handling of materials.

    (b) “Processed scrap metal” includes, but is not limited to, scrap metal which has been baled, shredded, sheared, chopped, crushed, flattened, cut, melted, or separated by metal type, and fines, drosses, and related materials which have been agglomerated.

    (c) “Processed scrap metal” does not include shredded circuit boards being sent for recycling, which are excluded from the definition of solid waste under Regulation .04A(12) of this chapter.

  (6) Prompt Scrap Metal.

    (a) “Prompt scrap metal”, also known as “industrial scrap metal” or “new scrap metal”, means scrap metal as generated by the metal working or metal fabrication industries.

    (b) “Prompt scrap metal” includes scrap metal such as turnings, cuttings, punchings, and borings.

  (7) Reclaimed Material.

    (a) “Reclaimed material” means material that is processed to recover a usable product or is regenerated.

    (b) “Reclaimed material” includes, for example, recovery of lead values from spent batteries and regeneration of spent solvents.

  (8) “Recycled material” means material that is used, reused, or reclaimed.

  (9) “Reused or used material” means a material that is employed in either one of the following:

    (a) As an ingredient including use as an intermediate, in an industrial process to make a product, such as distillation bottoms from one process used as feedstock in another process, except that a material does not satisfy this condition if distinct components of the material are recovered as separate end products, as when metals are recovered from metal-containing secondary materials; or

    (b) In a particular function or application as an effective substitute for a commercial product such as spent pickle liquor used as phosphorus precipitant and sludge conditioner in wastewater treatment.

  (10) “Scrap metal” means bits and pieces of metal parts such as bars, turnings, rods, sheets, or wire or metal pieces that may be combined together with bolts or soldering such as radiators, scrap automobiles, or railroad box cars, which when worn or superfluous can be recycled.

  (11) “Sludge” has the meaning stated in COMAR 26.13.01.03B(72).

  (12) “Spent material” means any material that has been used and as a result of contamination can no longer serve the purpose for which it was produced without processing.

#### Regulation .02 Definitions of Solid Waste.

*COMAR 26.13.02.02*

A. Solid Waste and Discarded Material.

  (1) A solid waste is any discarded material that is not excluded by Regulation .04 of this chapter or that is not excluded by a variance granted under COMAR 26.13.01.04D and E.

  (2) A discarded material is any material which is:

    (a) Abandoned, as explained in §B of this regulation;

    (b) Recycled, as explained in §C of this regulation;

    (c) Considered inherently waste-like, as explained in §D of this regulation; or

    (d) A military munition identified as a solid waste in COMAR 26.13.10.27B.

B. Materials are solid waste if they are abandoned. For purposes of this subtitle, “abandoned” means:

  (1) Disposed of;

  (2) Burned or incinerated;

  (3) Accumulated, stored, or treated (but not recycled) before or instead of being abandoned by being disposed of, burned, or incinerated; or

  (4) Sham recycled, as explained in §H of this regulation.

C. Materials are solid wastes if they are recycled, or accumulated, stored, or treated before recycling, as follows:

  (1) Used in a Manner Constituting Disposal.

    (a) Except as provided in §C(1)(b) of this regulation, materials noted with an asterisk in §G of this regulation, column 1 of Table 1, are solid wastes when they are:

      (i) Applied to or placed on the land in a manner that constitutes disposal; or

      (ii) Used to produce products that are applied to or placed on the land or are otherwise contained in products that are applied to the land (in which case the product itself remains a solid waste).

    (b) Commercial chemical products that exhibit a characteristic of hazardous waste or that are listed in Regulation .19 of this chapter are not solid wastes if they are applied to the land and that is their ordinary manner of use.

  (2) Materials Burned for Energy Recovery.

    (a) Except as provided in §C(2)(b) of this regulation, materials noted with an asterisk in §G of this regulation, column 2, are solid wastes when they are:

      (i) Burned to recover energy;

      (ii) Used to produce a fuel;

      (iii) Contained in fuels, in which case the fuel itself remains a solid waste.

    (b) Commercial chemical products that exhibit a characteristic of hazardous waste or that are listed in Regulation .19 of this chapter are not solid wastes if they are themselves fuels.

  (3) Materials Reclaimed. Materials noted with an asterisk in §G, column 3 of Table 1 are solid wastes when reclaimed.

  (4) Materials Accumulated Speculatively. Materials noted with an asterisk in §G, column 4 of Table 1 are solid wastes when accumulated speculatively.

D. Inherently Waste-Like Materials.

  (1) The following materials are solid wastes when they are recycled in any manner: Hazardous Waste Nos. F020, F021, unless otherwise used as an ingredient to make a product at the site of generation, and F022, F023, F026, and F028.

  (2) The Secretary shall use the following criteria to add wastes to the list in §D(1):

    (a) The materials are ordinarily disposed of, burned, or incinerated;

    (b) The materials contain toxic constituents listed in Regulation .24 of this chapter and these constituents are not ordinarily found in raw materials or products for which the materials substitute, or are found in raw materials or products in smaller concentrations, and are not used or reused during the recycling process; or

    (c) The materials may pose a substantial hazard to human health and the environment when recycled.

E. Materials That Are Not Solid Waste When Recycled.

  (1) Materials are not solid wastes when they can be shown to be recycled by being:

    (a) Used or reused as ingredients in an industrial process to make a product, provided the materials are not being reclaimed;

    (b) Used or reused as effective substitutes for commercial products; or

    (c) Returned to the original process from which they are generated, without first being reclaimed. The material shall be returned as a substitute for raw material feedstock, and the process shall use raw materials as principal feedstocks, in order for this paragraph to apply.

  (2) The following materials are solid wastes, even if the recycling involves use, reuse, or return to the original process, described in §E(1), of this regulation:

    (a) Materials used in a manner constituting disposal, or used to produce products that are applied to the land;

    (b) Materials burned for energy recovery, used to produce a fuel, or contained in fuels;

    (c) Materials accumulated speculatively; or

    (d) Materials listed in §D(1) of this regulation.

F. Documentation of Claims That Materials Are Not Solid Wastes or Are Conditionally Exempt from Regulation.

  (1) A respondent in an action to enforce regulations implementing Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland, who raises a claim that a certain material is not a solid waste, or is conditionally exempt from regulation, shall demonstrate that:

    (a) There is a known market or disposition for the material; and

    (b) The respondent meets the terms of the exclusion or exemption.

  (2) To satisfy the requirements of §F(1) of this regulation, a person shall provide appropriate documentation, such as contracts showing that a second person uses the material as an ingredient in a production process, to demonstrate that the material is not a waste, or is exempt from regulation.

  (3) In addition to meeting the requirements of §F(2) of this regulation, owners or operators of facilities claiming that they actually are recycling materials shall show that they have the necessary equipment to do so.

G. Table 1.

H. Sham Recycling.

  (1) A hazardous secondary material found to be sham recycled, as defined in §H(2) of this regulation, is considered discarded and a solid waste.

  (2) “Sham recycling” means recycling that is not legitimate, as determined in accordance with COMAR 26.13.01.04L.

#### Regulation .03 Definition of Hazardous Waste.

*COMAR 26.13.02.03*

A. A solid waste, as defined in Regulation .02 of this chapter, is a hazardous waste if:

  (1) It is not excluded from regulation as a hazardous waste under Regulation .04-1 of this chapter; and

  (2) It meets any of the following criteria:

    (a) It exhibits any of the characteristics of hazardous waste identified in this chapter except as otherwise provided in §A-1 of this regulation concerning waste from the extraction, benefication, and processing of ores and minerals;

    (b) It is listed in Regulations .15—.19 of this chapter and has not been excluded from the lists by:

      (i) COMAR 26.13.01.04A and C;

      (ii) Regulation .16A(1) of this chapter; or

      (iii) Regulation .17A(1) of this chapter;

    (c) It is a mixture of solid waste and a hazardous waste that is listed in this chapter solely because it exhibits one or more of the characteristics of ignitability, corrosivity, or reactivity identified in Regulations .11—.13 of this chapter unless the:

      (i) Resultant mixture no longer exhibits any characteristic of hazardous waste as identified in this chapter; or

      (ii) Solid waste is excluded from regulation under Regulation .04-1A(7) of this chapter and the resultant mixture no longer exhibits any characteristic of hazardous waste identified in this chapter for which the hazardous waste in the mixture was listed in this chapter;

    (d) It is a mixture of solid waste and one or more hazardous wastes listed in this chapter and has not been excluded from being regulated as a hazardous waste under COMAR 26.13.01.04 or §A(2)(c), A-2, or F of this regulation; or

    (e) Except as provided in COMAR 26.13.02.04-1A(11), it is used oil which contains more than 1,000 parts per million total halogens and is therefore presumed to have been mixed with halogenated hazardous waste listed in Regulations .16—.19 of this chapter.

A-1. Any mixture of a waste from the extraction, beneficiation, and processing of ores and minerals excluded under Regulation .04-1A(7) of this chapter and any other solid waste which exhibits a characteristic of hazardous waste under Regulations .10—.14 of this chapter, is a hazardous waste only under the following circumstances:

  (1) The mixture exhibits a characteristic that would not have been exhibited by the excluded waste alone if this mixture had not occurred;

  (2) The mixture continues to exhibit any of the characteristics exhibited by the non-excluded wastes before mixture; or

  (3) The mixture exhibits the characteristic of toxicity and either of the following conditions hold:

    (a) For one or more of the contaminants that cause the mixture to exhibit the characteristic of toxicity, the maximum concentration listed in Table 1 of Regulation .14B of this chapter would not have been exceeded by the excluded waste alone had the mixture not occurred, or

    (b) For any contaminant that caused the nonexempt waste to exhibit the characteristic of toxicity before the mixture occurred, the mixture continues to exceed the maximum concentration for that contaminant listed in Table 1 of Regulation .14B of this chapter.

A-2. The following mixtures of solid wastes and hazardous wastes listed in this chapter are not hazardous wastes, except by application of §A(2)(a) and (b) of this regulation, if the generator can demonstrate that the mixture consists of wastewater, the discharge of which is subject to regulation under either §402 or 307(b) of the Clean Water Act, including wastewater at facilities which have eliminated the discharge of wastewater, and:

  (1) One or more of the following solvents listed in Regulation .16 of this chapter if the maximum total weekly usage of these solvents, less amounts that can be demonstrated not to be discharged to wastewater, divided by the average weekly flow of wastewater into the headworks of the facility's wastewater treatment or pretreatment system, does not exceed one part per million:

    (a) Carbon tetrachloride;

    (b) Tetrachloroethylene; and

    (c) Trichloroethylene;

  (2) One or more of the following spent solvents listed in Regulation .16 of this chapter if the maximum total weekly usage of these solvents, less amounts that can be demonstrated not to be discharged to wastewater, divided by the average weekly flow of wastewater into the headworks of the facility's wastewater treatment or pretreatment system, does not exceed 25 parts per million:

    (a) Methylene chloride;

    (b) 1,1,1-trichloroethane;

    (c) Chlorobenzene;

    (d) o-dichlorobenzene;

    (e) Cresols;

    (f) Crecylic acid;

    (g) Nitrobenzene;

    (h) Toluene;

    (i) Methyl ethyl ketone;

    (j) Carbon disulfide;

    (k) Isobutanol;

    (l) Pyridine; and

    (m) Spent chlorofluorocarbon solvents;

  (3) One or more of the following wastes listed in Regulation .17 of this chapter, if the wastes are discharged to the refinery oil recovery sewer before primary separation of oil, water, and solids:

    (a) Heat exchanger bundle cleaning sludge from the petroleum refining industry as listed under EPA Hazardous Waste Number K050;

    (b) Crude oil storage tank sediment from petroleum refining operations as listed under EPA Hazardous Waste Number K169;

    (c) Clarified slurry oil tank sediment, in-line filter/separation solids, or both, from petroleum refining operations as listed under EPA Hazardous Waste Number K170;

    (d) Spent hydrotreating catalyst as listed under EPA Hazardous Waste Number K171; and

    (e) Spent hydrorefining catalyst as listed under EPA Hazardous Waste Number K172;

  (4) A discarded commercial chemical product or chemical intermediate listed in Regulation .19 of this chapter arising from de minimis losses of these materials from manufacturing operations in which these materials are used as raw materials or are produced in the manufacturing process, where, for purposes of this section, “de minimis” losses include:

    (a) Losses from normal material handling operations including, for example, spills from the unloading or transfer of materials from bins or other containers or leaks from pipes, valves, or other devices used to transfer materials;

    (b) Minor leaks of process equipment, storage tanks, or containers;

    (c) Leaks from well maintained pump packings and seals;

    (d) Sample purgings;

    (e) Relief device discharges;

    (f) Discharges from safety showers and rinsing and cleaning of personal safety equipment; and

    (g) Rinsate from empty containers or from containers that are rendered empty by that rinsing;

  (5) Wastewater resulting from laboratory operations containing toxic (T) wastes listed in Regulations .15—.26 of this chapter if:

    (a) The annualized average flow of laboratory wastewater does not exceed 1 percent of the total wastewater flow into the headworks of the facility's wastewater treatment or pretreatment system; or

    (b) The combined annualized average concentration of the wastes does not exceed 1 part per million in the headworks of the facility's wastewater treatment or pretreatment facility, not counting, for the purposes of this calculation, toxic (T) wastes used in laboratories that are demonstrated not to be discharged to wastewater;

  (6) Wastewaters from the production of carbamates and carbamoyl oximes, as listed in Regulation .17 of this chapter under EPA Hazardous Waste Number K157, as follows:

    (a) The aggregate maximum weekly usage of formaldehyde, methyl chloride, methylene chloride, and triethylamine, divided by the average weekly flow of process wastewater before any dilutions into the headworks of the facility's wastewater treatment system, does not exceed a total of 5 parts per million by weight; and

    (b) “Maximum weekly usage” for the purpose of §A-2(6)(a) of this regulation means all amounts of the compounds listed in §A-2(6)(a) of this regulation that are discharged or volatilized; that is, the amounts that cannot be demonstrated to be recovered, reacted in the process, or destroyed through treatment; or

  (7) Wastewaters derived from the treatment of organic waste, including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates, from the production of carbamates and carbamoyl oximes, as listed in Regulation .17 of this chapter under EPA Hazardous Waste Number K156, if the sum of the concentrations of formaldehyde, methyl chloride, methylene chloride, and triethylamine in the wastewater before any dilutions into the headworks of the facility's wastewater treatment system does not exceed a total of 5 milligrams per liter.

B. A solid waste which is not excluded from regulation under §A(1) of this regulation becomes a hazardous waste when any of the following events occurs:

  (1) In the case of a waste listed in Regulations .15—.19 of this chapter, when the waste first meets the listing description set forth in Regulations .15—.19 of this chapter;

  (2) In the case of a mixture of solid waste and one or more listed hazardous wastes, when a hazardous waste listed in Regulations .15—.19 of this chapter is first added to the solid waste;

  (3) In the case of any other waste (including a waste mixture), when the waste exhibits any of the characteristics identified in Regulations .10—.14 of this chapter.

C. Unless and until it meets the criteria of §D of this regulation:

  (1) A hazardous waste will remain a hazardous waste.

  (2) Any solid waste generated from the treatment, storage, or disposal of a hazardous waste, including any sludge, spill residue, ash, emission control dust, or leachate but not including precipitation runoff, is a hazardous waste, except:

    (a) As otherwise provided in:

      (i) §C-1 of this regulation; or

      (ii) §F(1)(c) of this regulation, concerning hazardous wastes listed solely for one or more of the characteristics of ignitability, corrosivity, or reactivity; and

    (b) Materials that are reclaimed from solid waste and that are used beneficially are not hazardous wastes under this provision unless the reclaimed material is burned for energy recovery or used in a manner constituting disposal.

C-1. The following solid wastes are not hazardous wastes even though they are generated from the treatment, storage, or disposal of a hazardous waste, unless they exhibit one or more of the characteristics of hazardous waste:

  (1) Waste pickle liquor sludge generated by lime stabilization of spent pickle liquor from the iron and steel industry (SIC Codes 331 and 332);

  (2) Waste from burning any of the materials exempted from regulation by Regulation .06A-1(1)(c) and (2)(c)—(e) of this chapter;

  (3) Nonwastewater residues, such as slag, resulting from high temperature metals recovery (HTMR) processing of K061, K062, or F006 waste if:

    (a) The processing is conducted in units identified as:

      (i) Rotary kilns, flame reactors, electric furnaces, plasma arc furnaces, slag reactors, or combinations of rotary hearth furnaces and electric furnaces; or

      (ii) Industrial furnaces as defined in COMAR 26.13.01.03B(40)(f), (g), or (l);

    (b) The residues:

      (i) Are disposed in a subtitle D unit, that is, a unit regulated under Subtitle D of RCRA:

      (ii) Meet the generic exclusion levels in Table 1 and Table 2 in §C-2 of this regulation for all constituents; and

      (iii) Exhibit no characteristics of hazardous waste;

    (c) The generator of the residues incorporates testing requirements into a facility's waste analysis plan or a generator's self-implementing waste analysis plan to demonstrate that the criteria of §C-1(3)(b)(ii) and (iii) of this regulation are met by collecting and analyzing composite samples:

      (i) At least quarterly; and

      (ii) Whenever the process or operation generating the residues changes;

    (d) The person claiming this exclusion for the residues is able to prove, by clear and convincing evidence, that the material meets all of the exclusion requirements if the Department brings an enforcement action concerning the claim;

    (e) The generator of the residues prepares a one-time notification that includes:

      (i) The name and address of all subtitle D units receiving the shipments of the residues;

      (ii) The EPA hazardous waste numbers of the residues at the initial point of generation;

      (iii) The treatability group or groups, that is, wastewater or nonwastewater as defined in 40 CFR §268.2, of the residues at the initial point of generation; and

      (iv) The treatment standards under 40 CFR Part 268 applicable to the waste at the initial point of generation;

    (f) The generator of the residues obtains a certification signed by an authorized representative of the generator that states “I certify under penalty of law that the generic exclusion levels for all constituents have been met without impermissible dilution and that no characteristic of hazardous waste is exhibited. I am aware that there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.”; and

    (g) The generator of the residues:

      (i) Places the notification required by §C-1(3)(e) of this regulation and the certification required by §C-1(3)(f) of this regulation in the facility's files;

      (ii) Retains the notification and the certification for at least 3 years, with the 3-year record retention period being automatically extended during the course of any unresolved enforcement action regarding the regulated activity, or as requested by the Secretary;

      (iii) Submits a copy of the notification and the certification to the Department, with a notation that the notification and certification should be directed to the attention of the group within the Department responsible for oversight of hazardous waste management;

      (iv) Updates the notification and the certification that are in the facility's files if the process or operation generating the waste changes, if the waste is sent to a different subtitle D facility, or both; and

      (v) Provides the Department with an updated notification and certification on an annual basis if the changes identified in §C-1(3)(g)(iv) of this regulation occur, with it being acceptable to make a single submission to the Department covering all changes during a calendar year, provided the Department receives the submission not later than December 31 of the year in which the changes occur;

  (4) Biological treatment sludge from one of the following wastes listed under “organic chemicals” in Regulation .17 of this chapter:

    (a) Organic waste, including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates, from the production of carbamates and carbamoyl oximes (EPA Hazardous Waste Number K156); and

    (b) Wastewaters from the production of carbamates and carbamoyl oximes (EPA Hazardous Waste Number K157); and

  (5) Catalyst inert support media separated from one of the following wastes listed in Regulation .17 of this chapter:

    (a) Spent hydrotreating catalyst (EPA Hazardous Waste Number K171); and

    (b) Spent hydrorefining catalyst (EPA Hazardous Waste Number K172).

C-2. Table 1 and Table 2—Generic Exclusion Levels.

D. Any solid waste described in §C of this regulation is not a hazardous waste if it meets the following criteria:

  (1) In the case of any solid waste, it does not exhibit any of the characteristics of hazardous waste identified in Regulations .10—.14 of this chapter; and

  (2) In the case of a waste which is a listed waste under Regulations .15—.19 of this chapter, contains a waste or wastes listed under Regulations .15—.19 of this chapter or is derived from a waste listed in Regulations .15—.19 of this chapter, it also has been excluded from §C of this regulation under COMAR 26.13.01.04A(3) and C.

Agency Note: Wastes that exhibit a characteristic of hazardous waste at the point of generation may still be subject to the requirements of 40 CFR Part 268 even if they no longer exhibit a characteristic of hazardous waste at the point of land disposal.

E. Notwithstanding §§A—D of this regulation, the following materials are not subject to regulation under COMAR 26.13.01—26.13.09 and COMAR 26.13.10.01—.04 if the debris does not exhibit a characteristic of hazardous waste identified in Regulations .10—.14 of this chapter:

  (1) Hazardous debris, as defined in COMAR 26.13.01.03B, that has been treated using one of the required extraction or destruction technologies specified in Table 1 of 40 CFR §268.45, with the understanding that in an enforcement action concerning this provision, a person claiming this exemption will have the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements; and

  (2) Debris, as defined in COMAR 26.13.01.03B, that the Secretary, considering the extent of contamination, has determined is no longer contaminated with hazardous waste.

F. Exclusions for Wastes Listed as Hazardous Waste Solely Because They Exhibit One or More Characteristics of Hazardous Waste.

  (1) The following wastes are not hazardous waste if the waste no longer exhibits any characteristic of hazardous waste defined in Regulations .10—.14 of this chapter:

    (a) A hazardous waste that is listed in Regulations .15—.19 of this chapter solely because it exhibits one or more of the characteristics of:

      (i) Ignitability as defined in Regulation .11 of this chapter;

      (ii) Corrosivity as defined in Regulation .12 of this chapter; or

      (iii) Reactivity as defined in Regulation .13 of this chapter;

    (b) Any mixture of a solid waste and a hazardous waste listed in Regulations .15—.19 of this chapter solely because it exhibits one or more of the characteristics of ignitability, corrosivity, or reactivity, as regulated under §A(2)(d) of this regulation; and

    (c) Any solid waste generated from treating, storing, or disposing of a hazardous waste listed in Regulations .15—.19 of this chapter solely because it exhibits one or more of the characteristics of ignitability, corrosivity, or reactivity, as regulated under §C(2) of this regulation.

  (2) Wastes excluded under §F(1) and (3) of this regulation are subject to 40 CFR Part 268, as applicable, even if they no longer exhibit a characteristic of hazardous waste at the point of land disposal.

  (3) A mixture of a solid waste excluded from regulation under Regulation .04-1A(7) of this chapter, relating to waste from the extraction, beneficiation, and processing of ores and minerals, and a hazardous waste listed in Regulations .15—.19 of this chapter solely because it exhibits one or more of the characteristics of ignitability, corrosivity, or reactivity, as otherwise regulated under §A(2)(d) of this regulation, is not a hazardous waste if the mixture no longer exhibits any characteristic of hazardous waste that was the basis for listing the waste as hazardous.

#### Regulation .04 Materials Which Are Not Solid Wastes.

*COMAR 26.13.02.04*

A. The following materials are not solid wastes for the purpose of this chapter:

  (1) Domestic sewage, as defined in §B of this regulation, and, except as prohibited by COMAR 26.13.10.33 and Clean Water Act requirements at 40 CFR §403.5(b), any mixture of domestic sewage and other wastes that passes through a sewer system to a publicly owned treatment works for treatment;

  (2) Industrial wastewater discharges that are point source discharges permitted pursuant to §402 of the Clean Water Act, as amended, or permitted pursuant to Environment Article, §§9-324—9-332, Annotated Code of Maryland;

  (3) Irrigation return flows;

  (4) Materials subjected to in situ mining techniques which are not removed from the ground as part of the extraction process;

  (5) Black liquor or other pulping liquors that are reclaimed in a pulping liquor recovery furnace and then reused in the pulping process, unless it is a material accumulated speculatively as defined in Regulation .01D of this chapter;

  (6) Spent sulfuric acid used to produce virgin sulfuric acid, unless it is a material accumulated speculatively as defined in Regulation .01D of this chapter;

  (7) Secondary materials that are reclaimed and returned to the original process or processes in which they were generated where they are reused in the production process if:

    (a) Only tank storage is involved, and the entire process through completion of reclamation is closed by being entirely connected with pipes or other comparable enclosed means of conveyance;

    (b) Reclamation does not involve controlled flame combustion, such as occurs in boilers, industrial furnaces, or incinerators;

    (c) The secondary materials are never accumulated in the tanks for over 12 months without being reclaimed; and

    (d) The reclaimed material is neither used to produce a fuel, nor used to produce products that are used in a manner constituting disposal;

  (8) EPA hazardous waste numbers K060, K087, K141, K142, K143, K144, K145, K147, and K148, and any wastes from the coke by-products processes that are hazardous only because they exhibit the toxicity characteristic (TC) specified in Regulation .14 of this chapter if:

    (a) Subsequent to generation, these materials are recycled to coke ovens or to the tar recovery process as a feedstock to produce coal tar, or are mixed with coal tar before the tar's sale or refining; and

    (b) There is no land disposal of the wastes from the point at which they are generated to the point at which they are mixed with coal tar, or the point at which they are recycled to coke ovens, tar recovery processes, or tar refining processes;

  (9) The following wastes from wood preserving, as qualified by §C of this regulation:

    (a) Spent wood-preserving solutions that have been reclaimed and are reused for their original intended purpose;

    (b) Wastewaters from the wood-preserving process that have been reclaimed and are reused to treat wood; and

    (c) Before reuse, the wood-preserving wastewaters and spent wood-preserving solutions described in §A(9)(a) and (b) of this regulation if they meet all of the following conditions:

      (i) The wood-preserving wastewaters and spent wood-preserving solutions are generated from processes that use waterborne preservatives;

      (ii) The wood-preserving wastewaters and spent wood-preserving solutions are reused on-site in the production process for their originally intended purpose at plants using waterborne preservatives in the production process;

      (iii) Before reuse, the wastewaters and spent wood-preserving solutions are managed to prevent release to land and ground water;

      (iv) Any unit used to manage wastewaters or spent wood-preserving solutions or both before reuse can be evaluated visually or by other means to verify that the unit is capable of containing and preventing these materials from being released to the environment;

      (v) Any drip pad used to manage the wastewaters, spent wood-preserving solutions, or both before reuse is in compliance with the standards of COMAR 26.13.06.26, regardless of whether the plant generates a total of less than 100 kilograms per month of hazardous waste;

      (vi) Before operating under the exclusion provided by §A(9)(c) of this regulation, the plant owner or operator submits a one-time notification to the Secretary stating that the plant intends to claim the exclusion and giving the date on which the plant intends to begin operating under the exclusion;

      (vii) The plant owner or operator includes, in the notification required by §A(9)(c)(vi) of this regulation, the following statement: “I have read the applicable regulation establishing an exclusion for wood-preserving wastewaters and spent wood-preserving solutions and understand it requires me to comply at all times with the conditions set out in the regulation.”; and

      (viii) The plant maintains a copy of the notification required by §A(9)(c)(vi) of this regulation in its on-site records for a period of not less than 3 years from the date specified in the notification;

  (10) Nonwastewater splash condenser dross residue from the treatment of K061 in high temperature metals recovery units, if this material is:

    (a) Shipped in drums if it is shipped; and

    (b) Not land-disposed before recovery;

  (11) Excluded scrap metal being recycled, including the following as defined and qualified in Regulation .01D of this chapter:

    (a) Processed scrap metal;

    (b) Unprocessed home scrap metal; and

    (c) Unprocessed prompt scrap metal;

  (12) Shredded circuit boards being recycled if they are:

    (a) Stored in containers sufficient to prevent a release to the environment before recovery; and

    (b) Free of mercury switches, mercury relays, nickel-cadmium batteries, and lithium batteries;

  (13) Spent caustic solutions from petroleum refining liquid treating processes used as a feedstock to produce cresylic acid or naphthenic acid if the spent caustic solutions are not:

    (a) Placed on the land; or

    (b) Material accumulated speculatively as defined in Regulation .01D of this chapter;

  (14) Condensates derived from the overhead gases from kraft mill steam strippers that are used to comply with 40 CFR §63.446(e) if the condensates are combusted at the mill at which the condensates are generated;

  (15) Oil-bearing hazardous secondary materials, that is, sludges, byproducts, or spent materials, that are generated at a petroleum refinery (SIC code 2911), when:

    (a) The secondary materials are inserted into the petroleum refining process (SIC code 2911), including, but not limited to, distillation, catalytic cracking, fractionation, or thermal cracking units, that is, “cokers”;

    (b) The material, before it is inserted into the petroleum refining process:

      (i) Is not placed on the land; and

      (ii) Is not a material accumulated speculatively as defined in Regulation .01D of this chapter;

    (c) If the material is inserted into a thermal cracking unit, the coke product does not exhibit a characteristic of hazardous waste defined in Regulations .10—.14 of this chapter; and

    (d) The oil-bearing secondary hazardous material is either:

      (i) Inserted into the same petroleum refinery where it is generated; or

      (ii) Sent directly to another petroleum refinery;

    (e) Except as provided in §A(16) of this regulation, the oil-bearing hazardous secondary material was not generated elsewhere in the petroleum industry, that is, from a source other than a petroleum refinery; and

    (f) Residuals generated from recycling or processing oil-bearing hazardous secondary materials excluded under this provision that, as generated, would have otherwise met a listing under Regulations .15—.19 of this chapter are designated as listed wastes with EPA hazardous waste number F037 if disposed of or intended for disposal;

  (16) Recovered oil that is recycled by being inserted into the petroleum refining process, as described in §A(15) of this regulation, subject to the following:

    (a) For the purposes of this section, “recovered oil” means oil that has been reclaimed from wastewater or other secondary materials generated from normal petroleum industry practices, including refining, exploration and production, bulk storage, and transportation incident to these activities (SIC codes 1311, 1321, 1381, 1382, 1389, 2911, 4612, 4613, 4922, 4923, 4789, 5171, and 5172);

    (b) For the purposes of this section, “recovered oil” does not mean:

      (i) Oil-bearing hazardous wastes listed in Regulations .16—.19 of this chapter, except that oil recovered from these wastes may be considered recovered oil; or

      (ii) Used oil as defined in COMAR 26.13.01.03B; and

    (c) The conditions of §A(15)(b), (c), and (f) of this regulation are met;

  (17) Petrochemical recovered oil from an associated organic chemical manufacturing facility that is to be inserted into the petroleum refining process (SIC code 2911) along with normal petroleum refining process streams, subject to the following:

    (a) For the purposes of this section, “associated organic chemical manufacturing facility” means a facility:

      (i) Where the primary SIC code is 2869, but where operations may also include SIC codes 2821, 2822, and 2865;

      (ii) That is physically co-located with a petroleum refinery; and

      (iii) That receives hydrocarbon feedstocks from the refinery to which the recovered oil is being sent for recycling;

    (b) For the purposes of this section, “petrochemical recovered oil” means oil that has been:

      (i) Reclaimed from secondary materials, that is, sludges, byproducts, or spent materials, including wastewater, from normal organic chemical manufacturing operations; or

      (ii) Recovered from organic chemical manufacturing processes;

    (c) The oil would otherwise be regulated as a hazardous waste only because it exhibits the characteristic of ignitability of Regulation .11 of this chapter, the toxicity characteristic for benzene as defined in Regulation .14 of this chapter, or both; and

    (d) Before the oil generated by the organic chemical manufacturing facility is recycled into the petroleum refining process, it is not:

      (i) Placed on the land; or

      (ii) A material accumulated speculatively as defined in Regulation .01D of this chapter;

  (18) A used cathode ray tube (CRT) under the following conditions:

    (a) A used, intact CRT, as defined in COMAR 26.13.01.03B, that is within the United States that:

      (i) Has not been disposed; and

      (ii) Is not material accumulated speculatively, as defined in Regulation .01D of this chapter, by a CRT collector or a facility engaged in CRT processing;

    (b) A used, intact CRT that is being exported for recycling, if it is managed in accordance with the requirements of Regulation .19-8A of this chapter;

    (c) A used, broken CRT as defined in COMAR 26.13.01.03B, if it is managed in accordance with the requirements of Regulations .19-6 and .19-7 of this chapter; and

    (d) Glass removed from a CRT if it is managed in accordance with the requirements of Regulation .19-6D of this chapter; and

  (19) Beginning at the point of generation, a solvent-contaminated wipe that is sent for cleaning and reuse, if the following conditions are met:

    (a) The wipe:

      (i) Contains no free liquids, as determined by Method 9095B, the Paint Filter Liquids Test, included in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”, EPA SW-846, which is incorporated by reference at COMAR 26.13.01.05A(4);

      (ii) Contains no hazardous waste listed in Regulations .15—.19 of this chapter other than solvents; and

      (iii) If it exhibits any of the characteristics of toxicity, corrosivity, or reactivity, does so only as a result of contamination by solvent contaminants, and not as a result of contamination by non-solvent contaminants;

    (b) While being accumulated, stored, and transported, the wipe is contained in a nonleaking, closed container that is labeled “Excluded Solvent-Contaminated Wipes”;

    (c) The container in which the wipe is placed:

      (i) Is able to contain any free liquid that is expressed from materials in the container; and

      (ii) Is kept closed except when it is necessary to open the container to add material, remove material, or examine the contents of the container, with closure of the container achieved by complete contact between a fitted lid of the container and the container rim;

    (d) Each container that is being used to accumulate solvent contaminated wipes is marked with the earlier of the following dates as the accumulation start-date:

      (i) The date on which the first solvent-contaminated wipe was placed in the container; or

      (ii) If a wipe is transferred to the container from another container, the accumulation start-date associated with the container from which the wipe is being transferred;

    (e) The wipe is sent for cleaning not later than 180 days after the accumulation start date associated with the container in which the wipe is being accumulated;

    (f) The container in which the wipe is being accumulated is sealed, with all lids properly and securely affixed to the container, and all openings tightly bound or closed sufficiently to prevent leaks and emissions, if:

      (i) The container is full;

      (ii) Solvent-contaminated wipes that will be cleaned for reuse are no longer being generated; or

      (iii) The container is being transported;

    (g) At the point of being sent for cleaning on site, or at the point of being transported off site for cleaning:

      (i) The wipe continues to contain no free liquids, as specified in §A(19)(a) of this regulation; and

      (ii) The container in which the wipe has been placed contains no free liquid;

    (h) The generator manages free liquids removed from solvent-contaminated wipes, and free liquid removed from a container in which a solvent contaminated wipe is being accumulated in accordance with applicable requirements of COMAR 26.13.01—26.13.10;

    (i) The generator maintains the following documentation at the generator’s site:

      (i) The name and address of the laundry or dry cleaner that is receiving the solvent-contaminated wipes;

      (ii) Documentation that the 180-day accumulation time limit of §A(19)(e) of this regulation is being met; and

      (iii) A description of the process that the generator is using to ensure that the solvent-contaminated wipes contain no free liquids at the point of being laundered or dry cleaned on site, or at the point of being transported off site for laundering or dry cleaning; and

    (j) The solvent-contaminated wipe is sent to a laundry or dry cleaner whose discharge, if any, is regulated under §§301 and 402 of the Clean Water Act, or §307 of the Clean Water Act.

Agency Note: In rare circumstances, a facility that processes solvent-contaminated wipes for reuse may receive a container of wipes that includes free liquids, either unexpectedly as a result of effects such as compression, gravity, or percolation, or as a result of improper management by the generator before transport.  In such circumstances, the processing facility is required to remove the free liquids from the solvent-contaminated wipes and the container, characterize the liquids as to whether they meet the definition of hazardous waste, and manage the liquids in accordance with the applicable requirements of COMAR 26.13.03.  After removal of the free liquids, the facility may still process the wipes for reuse.

B. Definition. “Domestic sewage” means untreated sanitary wastes that pass through a sewer system.

C. Qualifiers on Exclusions of Materials from Regulation as Solid Waste.

  (1) The exclusion of §A(9)(c) of this regulation, concerning wood-preserving wastewaters and spent wood-preserving solutions that are to be reused, applies only as long as the plant at which the exclusion is being applied meets all of the conditions of §A(9)(c)(i)—(vii) of this regulation.

  (2) Reinstatement of Eligibility for Exclusion.

    (a) If a plant goes out of compliance with any of the conditions of §A(9)(c)(i)—(vii) of this regulation, the owner or operator of the plant may apply to the Secretary for reinstatement of eligibility for the exclusion of §A(9)(c) of this regulation.

    (b) The Secretary may reinstate eligibility for the exclusion of §A(9)(c) of this regulation if the Secretary finds that the plant has returned to compliance with the requirements of §A(9)(c)(i)—(vii) of this regulation and that violations are not likely to recur.

#### Regulation .04-1 Solid Wastes Which Are Not Hazardous Wastes.

*COMAR 26.13.02.04-1*

A. The following solid wastes are not hazardous wastes:

  (1) Household waste, as defined in §B of this regulation, including household waste that has been collected, transported, stored, treated, disposed of, recovered (for example, refuse-derived fuel), or reused;

  (2) Solid wastes generated by any of the following and which are returned to the soils as fertilizers:

    (a) The growing and harvesting of agricultural crops,

    (b) The raising of animals, including animal manures;

  (3) Mining overburden returned to the mine site;

  (4) Fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels;

  (5) Drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy;

  (6) Contaminated soils and other solids recovered from spills or removed from old disposal sites containing PCB at concentrations of less than 50 ppm which shall be disposed of at approved sites only if they do not qualify as a hazardous waste under any other section of this regulation;

  (7) Solid waste from the extraction, and beneficiation and processing of ores and minerals as specified in §§E and F of this regulation, including coal, phosphate rock, and overburden from the mining of uranium ore, except that the Secretary, on a case-by-case basis, may impose by Order those requirements of COMAR 26.13 determined by the Secretary to be necessary to protect human health and the environment;

  (8) Cement kiln dust waste;

  (9) Solid waste which consists of discarded arsenical-treated wood or wood products that, as a result of the wood treating process, fail the test for the toxicity characteristic for Hazardous Waste Codes D004D017, and which is not a hazardous waste for any other reason if the waste is generated by persons who use the arsenical-treated wood and wood products for the material's intended end use;

  (10) Chromium waste which meets one of the following criteria:

    (a) Wastes which fail the test for the toxicity characteristic because chromium is present, or are listed in Regulations .15—.19 of this chapter due to the presence of chromium, which do not fail the test for the toxicity characteristic for any other constituent or are not listed due to the presence of any other constituent, and which do not fail the test for any other characteristic, if it is shown by a waste generator or by waste generators that:

      (i) The chromium in the waste is exclusively (or nearly exclusively) trivalent chromium,

      (ii) The waste is generated from an industrial process which uses trivalent chromium exclusively (or nearly exclusively) and the process does not generate hexavalent chromium, and

      (iii) The waste is typically and frequently managed in non-oxidizing environments;

    (b) Specific wastes which meet the standard in §A(10)(a) of this regulation, so long as they do not fail the test for the toxicity characteristic for any other constituent other than chromium, and do not exhibit any other characteristic of hazardous waste, are:

      (i) Chrome (blue) trimmings generated by the following subcategories of the leather tanning and finishing industry: hair pulp/chrome tan/retan/wet finish, hair save/chrome tan/retan/wet finish, retan/wet finish, no beamhouse, through-the-blue, and shearling,

      (ii) Chrome (blue) shavings generated by the following subcategories of the leather tanning and finishing industry: hair pulp/chrome tan/retan/wet finish, hair save/chrome tan/retan/wet finish, retan/wet finish, no beamhouse, through-the-blue, and shearling,

      (iii) Buffing dust generated by the following subcategories of the leather tanning and finishing industry: hair pulp/chrome tan/retan/wet finish, hair save/chrome tan/retan/wet finish, retan/wet finish, no beamhouse, through-the-blue,

      (iv) Sewer screenings generated by the following subcategories of the leather tanning and finishing industry: hair pulp/chrome tan/retan/wet finish, hair save/chrome tan/retan/wet finish, retan/wet finish, no beamhouse, through-the-blue, and shearling,

      (v) Wastewater treatment sludges generated by the following subcategories of the leather tanning and finishing industry: hair pulp/chrome tan/retan/wet finish, hair save/chrome tan/retan/wet finish, retan/wet finish, no beamhouse, through-the-blue, and shearling,

      (vi) Wastewater treatment sludges generated by the following subcategories of the leather tanning and finishing industry: hair pulp/chrome tan/retan/wet finish, hair save/chrome tan/retan/wet finish, and through-the-blue,

      (vii) Waste scrap leather from the leather tanning industry, the shoe manufacturing industry, and other leather product manufacturing industries,

      (viii) Wastewater treatment sludges from the production of TiO2 pigment using chromium-bearing ores by the chloride process;

  (11) Used oil which contains more than 1,000 parts per million total halogens if:

    (a) The used oil:

      (i) Has been demonstrated not to contain hazardous waste through the use of an analytical method, or some other means acceptable to the Secretary, to show, to the Secretary's satisfaction, that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in Regulation .24 of this chapter,

      (ii) Is a metalworking oil or metalworking fluid which contains chlorinated paraffins and is processed, through a tolling agreement, to reclaim metalworking oil or fluid, or

      (iii) Is contaminated with chlorofluorocarbons (CFCs) removed from refrigeration units and the CFCs are destined for reclamation; and

    (b) The used oil is not regulated as hazardous for any other reason.

  (12) Petroleum-contaminated media and debris that fail the test for the toxicity characteristic of Regulation .14 of this chapter (Hazardous Waste Codes D018 through D043 only) and are subject to the corrective action regulations under 40 CFR 280;

  (13) Used chlorofluorocarbon refrigerants from totally enclosed heat transfer equipment, including mobile air conditioning systems, mobile refrigeration, and commercial and industrial air conditioning and refrigeration systems that use chlorofluorocarbons as the heat transfer fluid in a refrigeration cycle, provided the refrigerant is reclaimed for further use;

  (14) Non-terne-plated used oil filters from internal combustion engines, if:

    (a) The filter has not been mixed with any waste that is listed in Regulations .15.19 of this chapter;

    (b) The filter has been drained by initiating the draining with the oil near operating temperature and conducting the draining in an environment warmer than 60°F;

    (c) One of the following alternatives has been used in conjunction with draining as described in §A(14)(b) of this regulation to remove oil from the filter:

      (i) Puncturing the filter anti-drain back valve or the filter dome end, and draining,

      (ii) Draining, followed by crushing the filter,

      (iii) Dismantling the filter and draining, or

      (iv) Using an alternative technique in conjunction with draining which will remove oil from the filter at least as well as the techniques described in §A(14)(c)(i)(iii) of this regulation; and

    (d) In complying with §A(14)(c) of this regulation, the filter has been allowed to drain under the influence of gravity for at least 12 hours;

  (15) Used oil re-refining distillation bottoms that are used as feedstock to manufacture asphalt products;

  (16) Leachate or gas condensate collected from a landfill where certain solid wastes have been disposed if the following conditions are met:

    (a) The solid wastes that have been disposed in the landfill would have met one or more of the listing descriptions of Regulation .17 of this chapter for EPA Hazardous Waste Numbers K169, K170, K171, K172, K174, K175, K176, K177, and K178 if the wastes had been generated after the effective dates of these waste listings as identified in §A(16)(e) of this regulation;

    (b) The solid wastes identified in §A(16)(a) of this regulation were disposed in the landfill before the effective dates of the waste listings as identified in §A(16)(e) of this regulation;

    (c) Neither the leachate nor the gas condensate:

      (i) Exhibits any characteristic of hazardous waste identified in Regulations .10.14 of this chapter; or

      (ii) Is derived from any other listed hazardous waste;

    (d) Discharge of the leachate or gas condensate, including leachate or gas condensate transferred from the landfill to a publicly owned treatment works (POTW) by truck, rail, or dedicated pipe, is subject to regulation under §307(b) or 402 of the Clean Water Act;

    (e) For the purposes of §A(16)(a) and (b) of this regulation, effective dates are as follows:

      (i) For K169K172, February 8, 1999;

      (ii) For K174 and K175, May 7, 2001;

      (iii) For K176 and K177, May 20, 2002; and

      (iv) For K178, May 1, 2008; and

    (f) The leachate or gas condensate is not regulated as a hazardous waste under §A-1 of this regulation; and

  (17) From the point of generation, a solvent-contaminated wipe that is sent for disposal or treatment if the wipe is not a hazardous waste due to the presence of trichloroethylene and the following conditions are met:

    (a) The wipe:

      (i) Contains no hazardous waste listed in Regulations .15—.19 of this chapter other than solvents; and

      (ii) If it exhibits any of the characteristics of toxicity, corrosivity, or reactivity, does so only as a result of contamination by solvent contaminants, and not as a result of contamination by non-solvent contaminants;

    (b) While being accumulated, stored, and transported, the wipe is contained in a nonleaking, closed container that is labeled “Excluded Solvent-Contaminated Wipes”;

    (c) The container in which the wipe is placed:

      (i) Is able to contain any free liquid that is expressed from materials in the container; and

      (ii) Is kept closed except when it is necessary to open the container to add material, remove material, or examine the contents of the container, with closure of the container achieved by complete contact between a fitted lid of the container and the container rim;

    (d) Each container that is being used to accumulate solvent contaminated wipes is marked with the earlier of the following dates as the accumulation start-date:

      (i) The date on which the first solvent-contaminated wipe was placed in the container; or

      (ii) If a wipe is transferred to the container from another container, the accumulation start-date associated with the container from which the wipe is being transferred;

    (e) The wipe is sent for disposal or treatment not later than 180 days after the accumulation start date associated with the container in which the wipe is being accumulated;

    (f) The container in which the wipe is being accumulated is sealed, with all lids properly and securely affixed to the container, and all openings tightly bound or closed sufficiently to prevent leaks and emissions, if:

      (i) The container is full;

      (ii) Additional solvent-contaminated wipes will not be placed in the container; or

      (iii) The container is being transported;

    (g) At the point of being transported for disposal or treatment:

      (i) The wipe contains no free liquids, as specified in Regulation .04A(19)(a) of this chapter; and

      (ii) The container in which the wipe has been placed contains no free liquid;

    (h) The generator manages free liquids removed from solvent-contaminated wipes, and free liquid removed from a container in which a solvent contaminated wipe is being accumulated in accordance with applicable requirements of COMAR 26.13.01—26.13.10;

    (i) The generator maintains the following documentation at the generator’s site:

      (i) The name and address of the landfill or combustor that is receiving the solvent-contaminated wipes;

      (ii) Documentation that the 180-day accumulation time limit of §A(17)(e) of this regulation is being met; and

      (iii) A description of the process that the generator is using to ensure that the solvent-contaminated wipes contain no free liquids at the point of being transported off site for treatment or disposal;

    (j) The wipe is sent for disposal or treatment to a:

      (i) Landfill that is permitted, licensed, or registered by a state to manage municipal solid waste and is in compliance with the requirements of 40 CFR Part 258 or equivalent state regulations;

      (ii) Landfill that is authorized to accept hazardous waste under a permit or interim status and that meets the applicable requirements for permitted and interim status hazardous waste landfills in 40 CFR Parts 264 and 265, or equivalent state regulations;

      (iii) Municipal waste combustor or other facility regulated under Section 129 of the Clean Air Act; or

      (iv) Combustor, boiler, or industrial furnace that is authorized to burn hazardous waste, and is operated in accordance with applicable requirements of 40 CFR Parts 264, 265, and 266 Subpart H, or equivalent state regulations.

A-1. Leachate or Gas Condensate.

  (1) Except as provided in §A-1(2) of this regulation, the following are subject to regulation as hazardous waste:

    (a) Leachate or gas condensate derived from K169, K170, K171, or K172 that, after February 12, 2001, is stored or managed in a surface impoundment before discharge; and

    (b) Leachate or gas condensate derived from K176, K177, or K178 that, after November 21, 2003, is stored or managed in a surface impoundment before discharge.

  (2) Notwithstanding the provisions of §A-1(1) of this regulation, leachate or gas condensate derived from any of K169K172 and K176K178 continue to be exempt from management as hazardous waste even if stored in a surface impoundment if:

    (a) The surface impoundment is temporarily used to store the leachate or gas condensate in response to an emergency situation, such as the shutdown of a wastewater treatment system;

    (b) The surface impoundment has a double liner; and

    (c) The leachate or gas condensate is removed from the surface impoundment after the emergency ends and is then managed in compliance with §A-1(1) of this regulation.

B. For the purpose of §A(1) of this regulation, “household waste” means any waste material (including garbage, trash, and sanitary wastes in septic tanks) derived from households (including single and multiple residences, hotels, motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas).

C. A resource recovery facility managing municipal solid waste may not be considered to be treating, storing, disposing of, or otherwise managing hazardous wastes for the purposes of regulation under this subtitle, if the facility:

  (1) Receives and burns only:

    (a) Household waste from single and multiple dwellings, hotels, motels, and other residential sources, and

    (b) Solid waste from commercial or industrial sources that does not contain hazardous waste; and

  (2) Does not accept hazardous wastes and the owner or operator of the facility has established contractual requirements or other appropriate notification or inspection procedures to assure that hazardous wastes are not received or burned in the facility.

D. For the purpose of disposal of waste mixtures containing insignificant amounts of CHS which are not hazardous wastes as defined by COMAR 26.13.02.03A(2), it is the obligation of the waste generator to show that the concentration of the CHS is such that the waste mixture can be disposed of in places other than a facility.

E. For the purposes of §A(7) of this regulation, beneficiation of ores and minerals is restricted to the following activities:

  (1) Amalgamation;

  (2) Briquetting;

  (3) Calcining to remove water or carbon dioxide, or both;

  (4) Crushing;

  (5) Crystallization;

  (6) Dissolution;

  (7) Drying;

  (8) Electrostatic separation;

  (9) Electrowinning;

  (10) Filtration;

  (11) Flotation;

  (12) Gravity concentration;

  (13) Grinding;

  (14) Heap, dump, vat, tank, and in situ leaching;

  (15) Ion exchange;

  (16) Magnetic separation;

  (17) Pelletizing;

  (18) Precipitation;

  (19) Roasting, autoclaving, or chlorination, or all of these, in preparation for leaching, except when the sequences of roasting, autoclaving, or chlorination, or all of these, and leaching produces a final or intermediate product that does not undergo further beneficiation or processing;

  (20) Sintering;

  (21) Sizing;

  (22) Solvent extraction;

  (23) Sorting; and

  (24) Washing.

F. For the purposes of §A(7) of this regulation, solid waste from the processing of ores and minerals includes only the following wastes:

  (1) Slag from primary copper processing;

  (2) Slag from primary lead processing;

  (3) Red and brown muds from bauxite refining;

  (4) Phosphogypsum from phosphoric acid production;

  (5) Slag from elemental phosphorus production;

  (6) Gasifier ash from coal gasification;

  (7) Process wastewater from coal gasification;

  (8) Calcium sulfate wastewater treatment plant sludge from primary copper processing;

  (9) Slag tailings from primary copper processing;

  (10) Fluorogypsum from hydrofluoric acid production;

  (11) Process wastewater from hydrofluoric acid production;

  (12) Air pollution control dust or sludge, or both, from iron blast furnaces;

  (13) Iron blast furnace slag;

  (14) Treated residue from roasting/leaching of chrome ore;

  (15) Process wastewater from primary magnesium processing by the anhydrous process;

  (16) Process wastewater from phosphoric acid production;

  (17) Basic oxygen furnace and open hearth furnace air pollution control dust/sludge from carbon steel production;

  (18) Basic oxygen furnace and open hearth furnace slag from carbon steel production;

  (19) Chloride process waste solids from titanium tetrachloride production; and

  (20) Slag from primary zinc processing.

#### Regulation .04-2 Hazardous Wastes Which Are Exempt from Certain Regulations.

*COMAR 26.13.02.04-2*

A hazardous waste which is generated in a product or raw material storage tank, a product or raw material transport vehicle or vessel, or in an associated nonwaste-treatment manufacturing unit, is not subject to regulations until it exits the unit in which it was generated, unless the unit is a surface impoundment, or unless the hazardous waste remains in the unit more than 90 days after the unit ceases to be operated for manufacturing, or for storage or transportation of products or raw material.

#### Regulation .04-3 Samples.

*COMAR 26.13.02.04-3*

A. Except as provided in §§B and D of this regulation, a sample of solid waste or a sample of water, soil, or air, the quantity of which is to be determined by the Department, which is collected for the sole purpose of testing to determine its characteristics or composition, is not subject to any requirement of this chapter, COMAR 26.13.03—26.13.07, or COMAR 26.13.09, or to the notification requirements of §3010 of the Resource Conservation and Recovery Act, when the sample is being:

  (1) Transported to a laboratory for the purpose of testing;

  (2) Transported back to the sample collector after testing;

  (3) Stored by the sample collector before transport to a laboratory for testing;

  (4) Stored in a laboratory before testing;

  (5) Stored in a laboratory after testing but before it is returned to the sample collector; or

  (6) Stored temporarily in the laboratory after testing for a specific purpose (for example, until conclusion of a court case or enforcement action if further testing of the sample may be necessary).

B. In order to qualify for the exemption in §A(1) and (2) of this regulation, a sample collector shipping samples to a laboratory and a laboratory returning samples to a sample collector shall:

  (1) Comply with U.S. Department of Transportation (DOT), U.S. Postal Service (USPS), or any other applicable shipping requirements; or

  (2) Comply with the following requirements if the sample collector determines that DOT, USPS, or other shipping requirements do not apply to the shipment of the sample:

    (a) Package the sample so that it does not leak, spill, or vaporize from its packaging; and

    (b) Assure that the following information accompanies the samples:

      (i) The sample collector's name, mailing address, and telephone number,

      (ii) The laboratory's name, mailing address, and telephone number,

      (iii) The quantity of the sample,

      (iv) The date of shipment, and

      (v) A description of the sample.

C. This exemption does not apply if the laboratory determines that the waste is hazardous but the laboratory is no longer meeting any of the conditions stated in §A of this regulation.

D. In order to qualify for the exemption in §A(1) and (2) of this regulation, the mass of a sample that will be exported to a foreign country or that will be imported to a U.S. laboratory from a foreign source may not exceed 25 kilograms.

#### Regulation .04-4 Treatability Study Samples.

*COMAR 26.13.02.04-4*

A. Except as provided in §§B and F of this regulation, persons who generate or collect samples for the purpose of conducting treatability studies as defined in COMAR 26.13.01.03B are not subject to any requirement of COMAR 26.13.02—.04 or to the notification requirements of Section 3010 of RCRA, nor are those samples included in the quantity determinations of Regulation .05 of this chapter and COMAR 26.13.03.03-4C(3) when one of the following conditions is met:

  (1) The sample is being collected and prepared for transportation by the generator or sample collector;

  (2) The sample is being accumulated or stored by the generator or sample collector prior to transportation to a laboratory or testing facility; or

  (3) The sample is being transported to the laboratory or testing facility for the purpose of conducting a treatability study.

B. The exemption in §A of this regulation is applicable to samples of hazardous waste being collected and shipped for the purpose of conducting treatability studies, provided that all of the following conditions are met:

  (1) For each process being evaluated for each generated waste stream, the generator or sample collector uses, in treatability studies, no more than:

    (a) 10,000 kilograms of media contaminated with nonacute hazardous waste;

    (b) 1,000 kilograms of nonacute hazardous waste, other than contaminated media;

    (c) 100 kilograms of any waste that is:

      (i) Identified in this chapter as an acute hazardous waste by having been assigned a hazard code of (H) in accordance with regulations .09 and .15B of this chapter; and

      (ii) Not identified as an acute hazardous waste in 40 CFR Part 261;

    (d) 1 kilogram of acute hazardous waste that does not meet the criteria of §B(1)(c) of this regulation; or

    (e) 2,500 kilograms of media contaminated with acute hazardous waste;

  (2) The mass of each sample shipment:

    (a) Does not exceed 10,000 kilograms; and

    (b) May consist entirely of media contaminated with nonacute hazardous waste, or may include, in addition to media contaminated with nonacute hazardous waste, up to:

      (i) 2,500 kilograms of media contaminated with acute hazardous waste;

      (ii) 1,000 kilograms of hazardous waste other than contaminated media;

      (iii) 1 kilogram of acute hazardous waste that is not contaminated media and does not meet the criteria of §B(1)(c) of this regulation; and

      (iv) 100 kilograms of acute hazardous waste that meets the criteria of §B(1)(c) of this regulation and is not contaminated media;

  (3) The sample is packaged so that it does not leak, spill, or vaporize from its packaging during shipment;

  (4) The transportation of each sample shipment complies with U. S. Department of Transportation (DOT), U. S. Postal Service (USPS), or any other applicable shipping requirements, or if the DOT, USPS, or other shipping requirements do not apply to the shipment of the sample, with the requirements of §B(5) of this regulation;

  (5) If the DOT, USPS, or other shipping requirements do not apply to the shipment of the sample, all of the following information accompanies the sample:

    (a) The name, mailing address, and telephone number of the originator of the sample;

    (b) The name, address, and telephone number of the facility that will perform the treatability study;

    (c) The quantity of the sample;

    (d) The date of shipment; and

    (e) A description of the sample, including its EPA or State hazardous waste number;

  (6) The sample is shipped to a laboratory or testing facility which is exempt under Regulation .04-5 of this chapter or which has an appropriate CHS facility permit, RCRA permit, or interim status;

  (7) The generator or sample collector maintains all of the following records for a period ending 3 years after completion of the treatability study:

    (a) Copies of the shipping documents;

    (b) A copy of the contract with the facility conducting the treatability study;

    (c) Documentation showing the amount of waste shipped under this exemption;

    (d) Documentation showing the name, address, and EPA identification number of the laboratory or testing facility that received the waste;

    (e) Documentation showing the date the shipment was made; and

    (f) Documentation showing whether or not unused samples and residues were returned to the generator; and

  (8) The generator includes the information required under §B(7)(c)—(f) of this regulation with its annual or biennial report submitted under COMAR 26.13.03.06B.

C. Allowance for Additional Quantities.

  (1) Quantities and Bases for Requests.

    (a) The Secretary may grant requests on a case-by-case basis for quantity limits in excess of those specified in §B(1) and (2) of this regulation and Regulation .04-5A(4) of this chapter for up to an additional 500 kilograms of nonacute hazardous waste, 5,000 kilograms of media contaminated with nonacute hazardous waste, 1 kilogram of acute hazardous waste that does not meet the criteria of §B(1)(c) of this regulation, 100 kilograms of acute hazardous waste that meets the criteria of §B(1)(c) of this regulation, and 2,500 kilograms of media contaminated with acute hazardous waste, to conduct further treatability study evaluation in response to requests for authorization to ship, store, and conduct treatability studies on additional quantities.

    (b) In advance of the commencement of treatability studies, the Secretary may grant requests for larger quantity limits under §C(1)(a) of this regulation based on consideration of the following factors:

      (i) The nature of the technology;

      (ii) The type of process, for example, batch versus continuous;

      (iii) The size of the unit undergoing testing, particularly in relation to scale-up considerations;

      (iv) The time or quantity of material required to reach steady-state operating conditions; or

      (v) Test design considerations, such as mass balance calculations.

    (c) After initiation or completion of initial treatability studies, the Secretary may grant requests for larger quantity limits under §C(1)(a) of this regulation if:

      (i) There has been an equipment or mechanical failure during the conduct of a treatability study;

      (ii) There is a need to verify the results of a previously conducted treatability study;

      (iii) There is a need to study and analyze alternative techniques within a previously evaluated treatment process; or

      (iv) There is a need to do further evaluation of an ongoing treatability study to determine final specifications for treatment.

  (2) The additional quantities allowed under §C(1) of this regulation are subject to all the provisions of §§A and B of this regulation, except for §B(1) and (2) of this regulation.

  (3) In order to be granted an allowance for additional quantities, the generator or sample collector shall apply to the Secretary and provide in writing all of the following information:

    (a) The reason why the generator or sample collector requires an additional quantity of sample for the treatability study evaluation and the additional quantity needed;

    (b) Documentation accounting for all samples of hazardous waste from the waste stream which have been sent for or undergone treatability studies, including the date each previous sample from the waste stream was shipped, the quantity of each previous shipment, the laboratory or testing facility to which it was shipped, what treatability study processes were conducted on each sample shipped, and the available results of each treatability study;

    (c) A description of the technical modifications or changes in specifications which will be evaluated and the expected results;

    (d) If the request for permission to exceed the quantity limits of §B(1) of this regulation is being made due to equipment or mechanical failure, information regarding the reason for the failure or breakdown, and also a description of the modifications to procedures or improvements to equipment that have been made to protect against further breakdowns; and

    (e) Other information the Secretary considers necessary.

D. Allowance for Additional Time.

  (1) For a treatability study involving bioremediation, the Secretary may grant requests on a case-by-case basis for an extension of the deadline for completing the treatability study under Regulation .04-5A(5) of this chapter.

  (2) The Secretary may grant an extension of up to 2 years under §D(1) of this regulation.

  (3) A person shall manage samples that are being used in a treatability study for which the completion deadline has been extended in accordance with all of the requirements of §A of this regulation and §B(3)—(8) of this regulation.

  (4) A person seeking an extension of time under §D(1)—(2) of this regulation shall:

    (a) Make a written request for the extension to the Secretary; and

    (b) Provide, as part of the written request for the extension:

      (i) The reason why the person requires additional time for the completion of the treatability study;

      (ii) The information listed in §C(3)(b) and (c) of this regulation;

      (iii) If the request for the extension is being made due to equipment or mechanical failure, information regarding the reason for the failure or breakdown, and also a description of the modifications to procedures or improvements to equipment that have been made to protect against further breakdowns; and

      (iv) Other information the Secretary considers necessary.

E. Return of Samples and Residues from Treatability Studies.

  (1) Subject to §E(3) of this regulation, a person who has generated or collected a sample for the purpose of conducting a treatability study may receive shipments of the following from the laboratory or testing facility that conducted the treatability study:

    (a) Unused portions of the sample; and

    (b) Residues generated in conducting the treatability study on the sample.

  (2) Until they are accepted by the sample generator or collector to whom they are being sent, the materials identified in §E(1)of this regulation:

    (a) Are not subject to:

      (i) Any requirement of COMAR 26.13.02—26.13.04 other than those of §E(3) of this regulation; or

      (ii) The notification requirements of §3010 of RCRA; and

    (b) Are not included in the quantity determinations of Regulation .05 of this chapter and COMAR 26.13.03.03-4C(3).

  (3) A person managing the materials identified in §E(1) of this regulation shall assure that the materials are managed in accordance with the following requirements until the materials are accepted by the sample generator or collector to whom they are being sent:

    (a) For unused portions of samples that are being returned, the person shall comply with the requirements of §B(3)—(5) of this regulation, which concern packaging, shipping requirements, and information required to accompany shipments;

    (b) For residues generated in conducting treatability studies, the person shall comply with the requirements of §B(3)—(5) of this regulation, except that where the word “sample” appears in §B(3)—(5) of this regulation, the person shall substitute “treatability study residue”; and

    (c) A laboratory or testing facility that sends a shipment of treatment residues to a sample generator or collector as provided for in §E(1) of this regulation shall maintain the following records for a period ending 3 years after completion of the treatability study that generated the residues:

      (i) Copies of the shipping documents required by §E(3)(a) and (b) of this regulation;

      (ii) Documentation showing the amount of treatment residues shipped;

      (iii) Documentation showing the name and address of the sample generator or collector to whom the shipment was sent; and

      (iv) Documentation showing the date the shipment was made.

  (4) Once the sample generator or collector accepts the materials identified in §E(1) of this regulation, the sample generator or collector shall:

    (a) Determine whether those materials meet the definition of hazardous waste under Regulation .03 of this chapter; and

    (b) Manage materials that meet the definition of hazardous waste in accordance with the requirements of COMAR 26.13.01—26.13.10.

F. In order to qualify for the exemption in §A(1) of this regulation, the mass of a sample that will be exported to a foreign laboratory or testing facility or that will be imported to a U.S. laboratory or testing facility from a foreign source may not exceed 25 kilograms.

#### Regulation .04-5 Samples Undergoing Treatability Studies at Laboratories and Testing Facilities.

*COMAR 26.13.02.04-5*

A. Samples undergoing treatability studies and the laboratories or testing facility conducting the treatability studies, to the extent those facilities are not otherwise subject to requirements under COMAR 26.13, are not subject to any requirements of COMAR 26.13.02—26.13.07 or 26.13.10 or 40 CFR Part 268 or to the notification requirements of §3010 of RCRA provided that all of the following conditions are met:

  (1) Not less than 45 days before conducting treatability studies, the facility notifies the Secretary in writing that it intends to conduct treatability studies under this section;

  (2) The laboratory or testing facility conducting the treatability study has an EPA identification number;

  (3) No more than 10,000 kilograms of “as received” media contaminated with nonacute hazardous waste, 2,500 kilograms of media contaminated with acute hazardous waste, or 250 kilograms of other “as received” hazardous waste is subjected to initiation of treatment in all treatability studies in any single day, when “as received” waste refers to the waste as received in the shipment from the generator or sample collector;

  (4) The quantity of “as received” hazardous waste stored at the facility for the purpose of evaluation in treatability studies, exclusive of treatment materials, including nonhazardous solid waste, added to “as received” hazardous waste, does not exceed 10,000 kilograms, the total of which may consist entirely of media contaminated with nonacute hazardous waste, or may include, in addition to media contaminated with nonacute hazardous waste, up to:

    (a) 2,500 kilograms of media contaminated with acute hazardous waste;

    (b) 1,000 kilograms of nonacute hazardous waste other than contaminated media;

    (c) 1 kilogram of acute hazardous waste that does not meet the criteria of Regulation .04-4B(1)(c) of this chapter; and

    (d) 100 kilograms of acute hazardous waste that meets the criteria of Regulation .04-4B(1)(c) of this regulation.

  (5) The earliest of the following dates has not passed:

    (a) The 90th day after the date the treatability study for the sample was completed;

    (b) 1 year after the generator or sample collector shipped the sample to the laboratory or testing facility, if the treatability study does not involve bioremediation; and

    (c) 2 years after the generator or sample collector shipped the sample to the laboratory or testing facility, if the treatability study involves bioremediation;

  (6) The treatability study does not involve the placement of hazardous waste on the land or open burning of hazardous waste;

  (7) The facility maintains records for 3 years following completion of each study that show compliance with the treatment rate limits and the storage time and quantity limits, with all of the following specific items included for each treatability study conducted:

    (a) The name, address, and EPA identification number of the generator or sample collector of each waste sample;

    (b) The date the shipment was received;

    (c) The quantity of waste accepted;

    (d) The quantity of “as received” waste in storage each day;

    (e) The date the treatment study was initiated and the amount of “as received” waste introduced to treatment each day;

    (f) The date the treatability study was concluded; and

    (g) The date any unused sample or residues generated from the treatability study were returned to the generator or sample collector or, if sent to a designated facility, the name of the facility and the EPA identification number;

  (8) The facility keeps on-site a copy of the treatability study contract and all shipping papers associated with the transport of treatability study samples to and from the facility for a period ending 3 years from the completion date of each treatability study;

  (9) The facility prepares and submits a report to the Secretary by March 15 of each year that estimates the number of studies and the amount of waste expected to be used in treatability studies during the current year, and includes all of the following information for the previous calendar year:

    (a) The name, address, and EPA identification number of the facility conducting the treatability studies;

    (b) The types, by process, of treatability studies conducted;

    (c) The names and addresses of persons for whom studies have been conducted, including their EPA identification numbers;

    (d) The total quantity of waste in storage each day;

    (e) The quantity and types of waste subjected to treatability studies;

    (f) When each treatability study was conducted; and

    (g) The final disposition of residues and unused sample from each treatability study;

  (10) The facility determines whether any unused sample or residues generated by the treatability study are hazardous waste under Regulation .03 of this chapter;

  (11) The facility manages any unused samples or residues generated by the treatability study that are determined to be hazardous waste in accordance with the requirements of this chapter, COMAR 26.13.03—26.13.10, and 40 CFR Part 268, unless:

    (a) The residues and unused samples are returned to the sample originator under the exemption of Regulation .04-4E of this chapter; or

    (b) The residues consist of treated material from a particular waste stream that is being archived for future evaluation, subject to the following requirements:

      (i) The amount of treated material from a particular waste stream from treatability studies that is being archived does not exceed 500 kilograms;

      (ii) The treated material from a particular waste stream is held for not more than 5 years from the date of initial receipt;

      (iii) The laboratory or testing facility maintains records while the treated material is being archived to demonstrate that the 5-year storage limit of §A(11)(b)(ii) of this regulation has not been exceeded; and

      (iv) The archived material, if it meets the definition of hazardous waste of COMAR 26.13.02.03, counts against the total storage limit for the facility established in §A(4) of this regulation;

  (12) The facility notifies the Secretary by letter when the facility is no longer planning to conduct any treatability studies at the site;

  (13) The treatability study is not being used merely as a means to treat or dispose of hazardous waste; and

  (14) If a person intends to use, in a treatability study, more than 1 kilogram of waste identified in Regulation .04-4B(1)(c) of this chapter, the person:

    (a) Notifies the Department of that intention no later than 30 days before the initiation of the treatability study;

    (b) Provides the Department with an explanation of why the quantity in excess of 1 kilogram is needed for the study; and

    (c) Provides the Department with any information that the Department considers necessary to evaluate:

      (i) The need to use the additional quantity of waste; and

      (ii) Whether the treatability study will be conducted in a manner consistent with the protection of human health and the environment;

B. Mobile Treatment Units.

  (1) A mobile treatment unit may qualify as a testing facility subject to §A of this regulation.

  (2) When a group of mobile treatment units are located at the same site, the limitations specified in §A of this regulation apply to the entire group of mobile treatment units collectively as if the group were one mobile treatment unit.

#### Regulation .04-6 Dredged Material That Is Not a Hazardous Waste.

*COMAR 26.13.02.04-6*

A. Dredged material, as defined in §B of this regulation, is not a hazardous waste if the dredged material:

  (1) Is subject to the requirements of a permit issued by:

    (a) The U.S. Army Corps of Engineers or an approved state under Section 404 of the Federal Water Pollution Control Act (33 U.S.C. §1344); or

    (b) The U.S. Army Corps of Engineers under Section 103 of Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. §1413); or

  (2) Is:

    (a) Generated in connection with a U.S. Army Corps of Engineers civil works project; and

    (b) Subject to the administrative equivalent of the permits referred to in §A(1) of this regulation, as provided for in the regulations of the U.S. Army Corps of Engineers, such as 33 CFR §336.1, 33 CFR §336.2 and 33 CFR §337.6.

B. For the purposes of this regulation:

  (1) “Dredged material” means material that is excavated or dredged from waters of the United States; and

  (2) “Waters of the United States” has the meaning given in 40 CFR §232.2.

#### Regulation .04-7 Conditional Exemption for Collection of Airbag Waste.

*COMAR 26.13.02.04-7*

A. This regulation:

  (1) Applies to all airbag waste, as defined in COMAR 26.13.01.03B, collected from auto dealers or other airbag waste handlers for the purpose of safe disposal; and

  (2) Provides management standards for airbag waste that an airbag waste handler may comply with as an alternative to managing airbag waste under other requirements of this subtitle that apply to management of hazardous waste generally.

B. Airbag waste at the airbag waste handler or during transport to an airbag waste collection facility or a designated facility is not subject to regulation under COMAR 26.13.03—.07 and .09, and is not subject to the notification requirements of §3010 of RCRA if:

  (1) The airbag waste handler:

    (a) In accumulating airbag waste:

      (i) Accumulates no more than 250 items in its current inventory of waste airbag modules and waste airbag inflators; and

      (ii) Does not accumulate any airbag waste for longer than 180 days;

    (b) Meets the following requirements with respect to packaging the airbag waste:

      (i) While the waste is being accumulated, ensures that the waste is packaged in a container that is designed to address the risks posed by the airbag waste, including reducing the risk of the airbag waste reacting in case of a fire, and reducing the risk of a projectile hazard if a defective airbag inflator were to deploy; and

      (ii) Ensures that, before the airbag waste is offered for transport, the waste packaging meets U.S. Department of Transportation requirements for hazardous materials transportation;

    (c) Ensures that each container in which airbag waste is being accumulated is:

      (i) Marked with the earliest date on which accumulation began for the airbag waste within the container; and

      (ii) Labeled with the words “Airbag Waste – Do Not Reuse”;

    (d) Sends the airbag waste directly to either:

      (i) An airbag waste collection facility in the United States that is under the control of a vehicle manufacturer or the authorized representative of a vehicle manufacturer;

      (ii) An authorized party administering a remedy program in response to a recall under the National Highway Traffic Safety Administration; or

      (iii) A “designated facility” as defined in COMAR 26.13.01.03B; and

    (e) Complies with the record keeping requirements of §C of this regulation; and

  (2) The transport of the airbag waste is conducted in compliance with all applicable U.S. Department of Transportation (DOT) regulations in 49 CFR Part 171—180 during transit.

C. Record Keeping.

  (1) For each off-site shipment of airbag waste  made under this regulation, an airbag waste handler shall maintain the following information and records at the handler facility for a minimum of 3 years:

    (a) Name of the transporter;

    (b) Date of the shipment;

    (c) Name and address of the receiving facility;

    (d) Types of airbag waste included in the shipment , such as airbag modules and airbag inflators;

    (e) The quantity of each type of airbag waste in the shipment;

    (f) Confirmation of receipt of the shipment that includes the:

      (i) Information specified in §C(1)(c)—(e) of this regulation; and

      (ii) Date that the receiving facility received the shipment.

  (2) The airbag waste handler:

    (a) May satisfy the record keeping requirements of this section through the use of routine business records, such as electronic or paper financial records, bills of lading, copies of DOT shipping papers, and electronic or paper confirmation of receipt; and

    (b) Shall make the shipping information and records and the confirmations of receipt required by this section available for inspection by a representative of the Department or the U.S. Environmental Protection Agency upon request.

D. Requirements Applicable to Airbag Waste Received from an Airbag Waste Handler.

  (1) Upon arrival at an airbag waste collection facility or a designated facility, airbag waste from an airbag waste handler operating under this regulation becomes subject to all applicable hazardous waste regulations.

  (2) For airbag waste identified in §D(1) of this regulation, the facility receiving the airbag waste:

    (a) Is considered the generator of the airbag waste; and

    (b) Shall comply with all applicable requirements of COMAR 26.13.03 with respect to that waste.

E. Prohibition on Reuse.  A person may not reuse in a vehicle a defective airbag module or a defective airbag inflator that is subject to a recall under the National Highway Traffic Safety Administration.  An attempt to reuse the defective item in this manner constitutes sham recycling and is prohibited by COMAR 26.13.02.02H.

#### Regulation .05 Special Requirements for Hazardous Waste Generated by Small Quantity Generators.

*COMAR 26.13.02.05*

A. Exemptions.

  (1) Except for those wastes identified in §§B, C, D, and E(2) of this regulation, and except as specified in §G of this regulation and COMAR 26.13.03.01A-3, if a person generates, in a calendar month, a total of less than 100 kilograms (approximately 220 pounds) of hazardous wastes, those wastes are not subject to regulation under COMAR 26.13.03—26.13.07, 26.13.09, or 26.13.10 or to the notification requirements of §3010 of RCRA, provided the generator complies with the requirements of §§B, D, E, and F of this regulation.

  (2) In determining quantities under this chapter and COMAR 26.13.03, a generator shall include all hazardous waste generated, except for hazardous waste that is:

    (a) Exempt from regulation under Regulations .04-2—.04-5, .06A-1(1), and .07A(1) of this chapter;

    (b) Managed immediately upon generation only in on-site elementary neutralization units, wastewater treatment units, or totally enclosed treatment facilities as defined in COMAR 26.13.01.03B;

    (c) Recycled, without prior storage or accumulation, only in an on-site process subject to regulation under Regulation .06C(2) of this chapter;

    (d) Used oil managed under the requirements of COMAR 26.10.15, 26.11.09, Regulation .06A-1(3) of this chapter, and COMAR 26.13.10;

    (e) Spent lead-acid batteries managed under the requirements of COMAR 26.13.10.04;

    (f) Universal waste managed under Regulation .07-1 of this chapter and COMAR 26.13.10.06—.25;

    (g) Managed as part of an episodic generation event in compliance with the requirements of COMAR 26.13.03.05-2—26.13.03.05-4; or

    (h) A hazardous waste pharmaceutical, as defined in COMAR 26.13.01.03B, that is:

      (i) Subject to or managed in accordance with COMAR 26.13.10.32—.49; or

      (ii) Also a Drug Enforcement Administration controlled substance and is conditionally exempt under COMAR 26.13.10.34.

  (3) In determining the quantity of hazardous waste generated, a generator need not include:

    (a) Hazardous waste when it is removed from on-site storage;

    (b) Hazardous waste produced by on-site treatment, including reclamation of the generator's hazardous waste, if the hazardous waste that is treated has been counted once; or

    (c) Spent materials that are generated, reclaimed, and subsequently reused on-site, if the spent materials have been counted once.

B. Hazardous waste that is removed from the site of generation and is accumulated for the purpose of thermal destruction or is thermally destroyed in quantities greater than the minimum quantities specified in §§A and C of this regulation may not be excluded from the requirements of COMAR 26.13.05.16, 26.13.06.23, and 26.13.07.02, .02-6, and .05.

C. If a person generates in a calendar month or accumulates at any time any of the following hazardous wastes in quantities greater than set forth, those wastes are subject to regulation under COMAR 26.13.03—26.13.07 and 26.13.10:

  (1) One kilogram of any commercial product or manufacturing chemical intermediate having the generic name listed in Regulation .19E or F of this chapter;

  (2) One kilogram of any off-specification commercial chemical product or manufacturing chemical intermediate which, if it met specifications, would have the generic name listed in Regulation .19E or F;

  (3) Any containers identified in Regulation .19C of this chapter that are larger than 20 liters in capacity;

  (4) 10 kilograms of inner liners from containers identified under Regulation .19C of this chapter;

  (5) 100 kilograms of any residue or contaminated soil, waste, or other debris resulting from the cleanup of a spill, into or onto any land or water, of any acute hazardous waste listed in Regulation .16, .17, .18, or .19 of this chapter;

  (6) One kilogram of any of the following wastes:

    (a) F020, F021, F022, F023, F026, and F027 as identified in Regulation .16 of this chapter; and

    (b) K991, K992, K993, K994, K995, K996, K997, K998, and K999 as identified in Regulation .17 of this chapter; or

  (7) One kilogram of any combination of wastes identified in §C(1), (2), and (6) of this regulation.

D. In order for hazardous waste to be excluded from regulation under this chapter, the generator:

  (1) Shall comply with COMAR 26.13.03.02—.02-2, which concern hazardous waste determination;

  (2) Shall treat or dispose of the waste in an on-site facility, or ensure delivery to an off-site treatment, storage, or disposal facility, either of which, if located in the United States, is:

    (a) Permitted by EPA under 40 CFR 270, or by a state with a hazardous waste management program authorized under 40 CFR 271;

    (b) In interim status under:

      (i) 40 CFR 270 and 265; or

      (ii) COMAR 26.13.06 and 26.13.07;

    (c) A facility that is:

      (i) Permitted, licensed, or registered by a state to manage municipal solid waste or nonmunicipal, nonhazardous solid waste;

      (ii) In compliance with the requirements of 40 CFR 258 or equivalent state regulations, if the waste is managed in a municipal solid waste landfill;

      (iii) In compliance with the requirements of 40 CFR §§257.5—257.30 or equivalent state regulations, if the waste is managed in a nonmunicipal, nonhazardous waste disposal unit after January 1, 1998; and

      (iv) Permitted to accept the waste;

    (d) Permitted under COMAR 26.11.02.13 (air quality operating permit) and has a limited facility permit;

    (e) A generating station that has been constructed by an electric company and that has a limited facility permit;

    (f) A facility which:

      (i) Beneficially uses or reuses, or legitimately recycles or reclaims its waste; or

      (ii) Treats its waste before beneficial use or reuse, or legitimate recycling or reclamation;

    (g) For universal waste managed under COMAR 26.13.10.06—.25, a universal waste handler or destination facility subject to the requirements of COMAR 26.13.10.06—.25;

    (h) A facility that is under the control of the same person as the generator, as described in COMAR 26.13.03.03-11B(1), if the generator marks the generator's containers of hazardous waste in accordance with the requirements of COMAR 26.13.03.03-10A(1) and (2), and the facility is authorized to accept the waste from the generator for consolidation under the provisions of:

      (i) COMAR 26.13.03.03-11, if the facility is located in Maryland; or

      (ii) 40 CFR §262.14(a)(5)(viii) or analogous regulations of the destination state, as applicable, if the facility to which the waste is being sent is not located in Maryland;

    (i) A reverse distributor as defined in COMAR 26.13.01.03B, if the waste is a potentially creditable hazardous waste generated by a healthcare facility as defined in COMAR 26.13.01.03B;

    (j) For a non-creditable hazardous waste pharmaceutical or a potentially creditable hazardous waste pharmaceutical, a healthcare facility, as defined in COMAR 26.13.01.03B, if:

      (i) The generator meets the applicability requirements in COMAR 26.13.10.36A; and

      (ii) The receiving healthcare facility meets the conditions in COMAR 26.13.10.36C(1); or

    (k) For airbag waste, an airbag waste collection facility or a designated facility subject to Regulation .04-7 of this chapter;

  (3) May not accumulate hazardous waste on-site if the generator accumulates at any time:

    (a) Acute hazardous wastes in quantities greater than those set forth in §C of this regulation, in which case, those accumulated wastes are subject to regulation under COMAR 26.13.03—26.13.07 and 26.13.10 and the applicable notification requirements of §3010 of RCRA, and the time period of COMAR 26.13.03.03-4C for accumulation of wastes on-site begins when the accumulated wastes exceed the applicable exclusion limit; or

    (b) More than a total of 100 kilograms of any hazardous waste not otherwise regulated under §D(3)(a) of this regulation, in which case, those accumulated wastes are subject to regulation under COMAR 26.13.03—26.13.07 and 26.13.10 and the applicable notification requirements of §3010 of RCRA, and the time period of COMAR 26.13.03.03—4C for accumulation of wastes on-site begins for a generator when the initial waste is generated; and

  (4) May not place or arrange to have placed bulk or non-containerized liquid hazardous waste or hazardous waste containing free liquids in a landfill regardless of whether sorbents have been added.

E. Mixed Hazardous Wastes.

  (1) Except as provided in §E(2), hazardous waste subject to the reduced requirements of this chapter may be mixed with non-hazardous waste and remain subject to these reduced requirements even though the resultant mixture exceeds the quantity limitations identified in this chapter, unless the mixture meets any of the characteristics of hazardous waste identified in Regulations .10—.14 of this chapter.

  (2) If a generator's hazardous waste is mixed with used oil, the mixture is subject to regulation under applicable provisions of COMAR 26.10.15, 26.11.09, 26.13.04.01D(4), and 26.13.10.05, if it is destined to be burned for energy recovery. Any material produced from such a mixture by processing, blending, or other treatment is also so regulated if it is destined to be burned for energy recovery.

  (3) If any person mixes a solid waste with a hazardous waste that exceeds a quantity exclusion level of this regulation, the mixture is subject to full regulation under COMAR 26.13.01—26.13.10.

F. Hazardous waste subject to the requirements of COMAR 26.13.10.01—.03 or 26.13.02.06B and C is included in the quantity determination of this section and is subject to the requirements of this regulation.

G. Fluorescent Lamps. A person that generates waste fluorescent lamps that exhibit the toxicity characteristic of Regulation .14 of this chapter shall comply with COMAR 26.13.10.26.

#### Regulation .06 Requirements for Recyclable Materials.

*COMAR 26.13.02.06*

A. General.

  (1) Hazardous wastes that are recycled are subject to the requirements for generators, transporters, and storage facilities of §§B and C of this regulation except for the materials listed in §§A(2) and A-1 of this regulation. Hazardous wastes that are recycled will be known as “recyclable materials”. Recyclable materials, except as otherwise provided in §§A(2), A-1, or C(1) of this regulation or COMAR 26.13.10, are not controlled hazardous substances (CHS) for purposes of COMAR 26.13.07.

  (2) Exemption from Regulation.

    (a) The following recyclable materials are not CHS for purposes of the regulations indicated:

      (i) Recyclable materials that are reclaimed to recover economically significant amounts of gold, silver, platinum, palladium, iridium, osmium, rhodium, ruthenium, or any combination of these are not CHS for the purposes of COMAR 26.13.05.01—.04, .05A, D—H, and .06—.24, 26.13.06, and 26.13.07, if these materials are not accumulated speculatively as defined in Regulation .01D of this chapter;

      (ii) Spent lead-acid batteries that are recyclable materials are not CHS for the purposes of COMAR 26.13.03, 26.13.04, 26.13.05.02D, .05B, C, .13—.24, and 26.13.06, and, for persons who store but do not reclaim, are not CHS for the purposes of COMAR 26.13.05, 26.13.06, and 26.13.07.

    (b) The following recyclable materials are not subject to the requirements of this section but are regulated under either COMAR 26.13.05.16, 26.13.06.23, or 26.13.10 and all applicable provisions in COMAR 26.13.07 and 26.13.09:

      (i) Recyclable materials used in a manner constituting disposal;

      (ii) Hazardous wastes burned for energy recovery in boilers and industrial furnaces that are regulated under COMAR 26.13.05.16 or 26.13.06.23, and COMAR 26.13.07.05;

      (iii) Recyclable materials from which precious metals are reclaimed; or

      (iv) Spent lead-acid batteries that are being reclaimed under COMAR 26.13.10.

A-1. Exclusions.

  (1) The following recyclable materials are not CHS for purposes of the regulations indicated:

    (a) Industrial ethyl alcohol that is reclaimed is not a CHS for purposes of COMAR 26.13.03—26.13.09, except that:

      (i) Exports and imports are subject to the requirements of 40 CFR Part 262, Subpart H, as made applicable in COMAR 26.13.03.07 ;

      (ii) A person initiating a shipment for reclamation in a foreign country, and any intermediary arranging for the shipment, shall comply with the requirements of §B(2) of this regulation; and

      (iii) A transporter transporting a shipment for export shall comply with the requirements of §B(3) of this regulation.

    (b) Scrap metal that is not excluded under Regulation .04A(11) of this chapter, for purposes of COMAR 26.13.03—26.13.07; and

    (c) Fuels produced from the refining of oil-bearing hazardous wastes along with normal process streams at a petroleum refining facility if those wastes result from normal petroleum refining, production, and transportation practices, for purposes of COMAR 26.13.03—26.13.07 and 40 CFR Part 268.

  Agency Note: The exclusion of §A-1(1)(c) of this regulation does not apply to fuels produced from oil recovered from oil-bearing hazardous waste in cases where the recovered oil is already excluded under Regulation .04A(15) and (16) of this chapter.

  (2) The following recyclable materials are not subject to regulation under COMAR 26.13.03—26.13.07 and are not subject to the regulations indicated, 40 CFR Part 268, or the notification requirements of §3010 of RCRA:

    (a) Industrial ethyl alcohol that is reclaimed is not subject to COMAR 26.13.03—26.13.07, except for the requirements specified in §A-1(1)(a)(i) of this regulation;

    (b) Scrap metal that is not excluded under Regulation .04A(11) of this chapter;

    (c) Hazardous waste fuel produced from oil-bearing hazardous wastes from petroleum refining, production, or transportation practices, or produced from oil reclaimed from any of these hazardous wastes if:

      (i) The hazardous wastes from which the fuel is produced are reintroduced into a process that does not use distillation or does not produce products from crude oil;

      (ii) The fuel meets the used oil fuel specification under COMAR 26.11.09.10B; and

      (iii) No other hazardous wastes are used to produce the hazardous waste fuel;

    (d) Hazardous waste fuel produced from oil-bearing hazardous wastes from petroleum refining, production, or transportation practices, if:

      (i) The hazardous waste from which the fuel is produced are reintroduced into a refining process after a point at which contaminants are removed; and

      (ii) The fuel meets the used oil specification under COMAR 26.11.09.10B; and

    (e) Oil reclaimed from oil-bearing hazardous wastes from petroleum refining, production, or transportation practices if the reclaimed oil:

      (i) Is burned as a fuel without reintroduction to a refining process: and

      (ii) Meets the used oil specification under COMAR 26.11.09.10B.

  (3) Used oil is not subject to the requirements of 40 CFR Part 268, COMAR 26.13.03—26.13.04.01D(3) and 26.13.04.01E—26.13.07, but is regulated instead under COMAR 26.13.10.05 and 26.10.15 if it:

    (a) Would be regulated as a hazardous waste solely because it exhibits a characteristic of hazardous waste under Regulations .11—.14 of this chapter; and

    (b) Is recycled by being reused, following its original use, for any beneficial purpose, through such means as re-refining, reclamation, burning for energy recovery, or reprocessing.

B. Generators and Transporters.

  (1) Generators and transporters of recyclable materials are subject to the applicable requirements of COMAR 26.13.03—26.13.04 and the notification requirements under §3010 of RCRA, except as provided in §§A(2) and A-1 of this regulation.

  (2) A person initiating a shipment of industrial ethyl alcohol for reclamation in a foreign country, and any intermediary arranging for the shipment:

    (a) Shall comply with the requirements applicable to a primary exporter in 40 CFR §§262.83(b), 262.83(g)(1)—(4) and (6), and 262.84(h); and

    (b) May export such materials only upon consent of the receiving country and in conformance with the EPA Acknowledgment of Consent as defined in 40 CFR Part 262 Subpart H; and

    (c) Shall provide a copy of the EPA Acknowledgment of Consent to the transporter transporting the shipment for export.

  (3) A transporter transporting a shipment of industrial ethyl alcohol for export:

    (a) May not accept a shipment if the transporter knows the shipment does not conform to the EPA Acknowledgment of Consent; and

    (b) Shall ensure that a copy of the EPA Acknowledgment of Consent:

      (i) Accompanies the shipment; and

      (ii) Is delivered to the facility designated by the person initiating the shipment.

C. Storage of Recyclable Materials.

  (1) Owners or operators of facilities that store recyclable materials before they are recycled are regulated under all applicable provisions of COMAR 26.13.01—26.13.10 and the notification requirements under §3010 of RCRA, except as provided in §§A(2) and A-1 of this regulation.

  (2) Owners or operators of facilities that recycle recyclable materials without storing them before they are recycled are subject to the following requirements, except as provided in §A(1) of this regulation:

    (a) Notification requirements under §3010 of RCRA; and

    (b) COMAR 26.13.05.05B and C; and

    (c) Biennial reporting requirements of COMAR 26.13.05.05F.

#### Regulation .07 Residues of Hazardous Waste in Empty Containers.

*COMAR 26.13.02.07*

A. General.

  (1) Hazardous waste remaining in either an empty container or an inner liner removed from an empty container, as defined in §B of this regulation, is not subject to regulation under this subtitle, unless it is determined by the Secretary that sufficient amounts of the hazardous waste remain to pose a potential threat to human health or the environment.

  (2) Any hazardous waste in either a container that is not empty, or an inner liner removed from a container that is not empty, as defined in §B of this regulation, is subject to regulation under this subtitle.

B. Definition of Empty.

  (1) Except as provided in §B(2)—(4) of this regulation, a container or an inner liner removed from a container that has held any hazardous waste is empty if all wastes have been removed that can be removed using the practices commonly employed to remove materials from that type of container, such as pouring, pumping, and aspirating, and either:

    (a) Not more than 2.5 centimeters (1 inch) of residue remain on the bottom of the container or inner liner; or

    (b) One of the following conditions is met:

      (i) Not more than 3 percent by weight of the total capacity of the container remains in the container or inner liner if the container is less than or equal to 119 gallons in size; or

      (ii) Not more than 0.3 percent by weight of the total capacity of the container or inner liner remains in the container or inner liner if the container is greater than 119 gallons in size.

  (2) A container that has held a hazardous waste that is a compressed gas is empty when the pressure in the container approaches atmospheric.

  (3) A container or an inner liner removed from a container that has held an acute hazardous waste identified in Regulations .16—.19 is empty if:

    (a) The container or inner liner has been triple rinsed using a solvent capable of removing the hazardous waste;

    (b) The container or inner liner has been cleaned by another method that has been shown in the scientific literature, or by tests conducted by the generator, to achieve equivalent removal; or

    (c) In the case of a container, the inner liner that prevented contact of the hazardous waste with the container has been removed.

  (4) A container that held a hazardous waste pharmaceutical or that contains a residue of a hazardous waste pharmaceutical is empty if it meets the criteria specified in COMAR 26.13.10.35.

#### Regulation .07-1 Requirements for Universal Waste.

*COMAR 26.13.02.07-1*

A. Except as specified in COMAR 26.13.10.06—.25, the wastes listed in §B of this regulation are exempt from regulation under COMAR 26.13.03—26.13.07, COMAR 26.13.09, and COMAR 26.13.10.01—.05, and, therefore, are not fully regulated as hazardous waste.

B. The following wastes are subject to regulation under COMAR 26.13.10.06.25:

  (1) Batteries, as described in COMAR 26.13.10.07;

  (2) Pesticides, as described in COMAR 26.13.10.08;

  (3) Mercury-containing equipment, lamps, or PCB-containing lamp ballasts, each as described in COMAR 26.13.10.09; and

  (4) Aerosol cans, as described in COMAR 26.13.10.09-1.

#### Regulation .08 Criteria for Identifying the Characteristics of Hazardous Waste.

*COMAR 26.13.02.08*

The Secretary shall identify and define a characteristic of hazardous waste in Regulations .10—.14 only upon determining that:

A. A solid waste that exhibits the characteristic may:

  (1) Cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

  (2) Pose a substantial present or potential hazard to human health or the environment when it is improperly treated, stored, transported, disposed of or otherwise managed; and

B. The characteristic can be:

  (1) Measured by an available standardized test method which is reasonably within the capability of generators of solid waste or private sector laboratories that are available to serve generators of solid waste; or

  (2) Reasonably detected by generators of solid waste through their knowledge of their waste.

#### Regulation .09 Criteria for Listing Hazardous Waste.

*COMAR 26.13.02.09*

A. The Secretary shall list a solid waste as a hazardous waste only upon determining that the solid waste meets one of the following criteria:

  (1) It exhibits any of the characteristics of hazardous waste identified in Regulations .10—.14 of this chapter.

  (2) It has been found to be fatal to humans in low doses or, in the absence of data on human toxicity, it has been shown in studies to have an oral LD50 toxicity (rat) of less than 50 milligrams per kilogram, an inhalation LC50 toxicity (rat) of less than 2 milligrams per liter, or a dermal LD50 toxicity (rabbit) of less than 200 milligrams per kilogram or is otherwise capable of causing or significantly contributing to an increase in serious irreversible, or incapacitating reversible, illness. Waste listed in accordance with these criteria will be designated Acute Hazardous Waste.

  (3) It contains any of the toxic constituents listed in Regulation .24 of this chapter and, after considering the following factors, the Secretary concludes that the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed:

    (a) The nature of the toxicity presented by the constituent.

    (b) The concentration of the constituent in the waste.

    (c) The potential of the constituent or any toxic degradation product of the constituent to migrate from the waste into the environment under the types of improper management considered in §A(3)(g), of this regulation.

    (d) The persistence of the constituent or any toxic degradation product of the constituent.

    (e) The potential for the constituent or any toxic degradation product of the constituent to degrade into non-harmful constituents and the rate of degradation.

    (f) The degree to which the constituent or any degradation product of the constituent bioaccumulates in ecosystems.

    (g) The plausible types of improper management to which the waste could be subjected.

    (h) The quantities of the waste generated at individual generation sites or on a regional or national basis.

    (i) The nature and severity of the human health and environmental damage that has occurred as a result of the improper management of wastes containing the constituent.

    (j) Actions taken by other governmental agencies or regulatory programs based on the health or environmental hazard posed by the waste or waste constituents.

    (k) Such other factors as may be appropriate.

B. Substances will be listed in Regulation .24 of this chapter, only if they have been shown in scientific studies to have toxic, carcinogenic, mutagenic, or teratogenic effects on humans or other life forms. Wastes listed in accordance with these criteria will be designated Toxic Wastes.

C. The Secretary may list classes or types of solid waste as hazardous waste if he has reason to believe that individual wastes, within the class or type of waste, typically or frequently are hazardous under the definition of hazardous waste found in COMAR 26.13.02.

D. The Secretary will use the criteria for listing specified in this subsection to establish the exclusion limits referred to in Regulation .05C of this chapter.

#### Regulation .10 General Characteristics of Hazardous Waste.

*COMAR 26.13.02.10*

A. A solid waste, as defined in Regulation .02 of this chapter, which is not excluded from regulation as a hazardous waste under Regulation .04-1 of this chapter is a hazardous waste if it exhibits any of the characteristics identified in this regulation and in Regulations .11—.14 of this chapter.

B. A hazardous waste which is identified by a characteristic in Regulations .10—.14 of this chapter is assigned every EPA Hazardous Waste Number that is applicable as set forth in the respective characteristic. This number or these numbers shall be used in complying with the notification requirement of §3010 of RCRA and with certain record keeping and reporting requirements under COMAR 26.13.03—26.13.07 and 26.13.09.

C. For purposes of Regulations .10—.14 of this chapter, the Secretary will consider a sample obtained using any of the applicable sampling methods specified in Regulation .20 to be a representative sample within the meaning of COMAR 26.13.01.

#### Regulation .11 Characteristic of Ignitability.

*COMAR 26.13.02.11*

A. A solid waste exhibits the characteristic of ignitability if a representative sample of the waste has any of the following properties:

  (1) Except as provided in §A-1 of this regulation, it is a liquid that has a flash point less than 60°C (140°F), as determined by using one of the methods specified in 40 CFR §261.21(a)(1);

  (2) It is not a liquid and is capable, under standard temperature and pressure, of causing fire through friction, absorption of moisture, or spontaneous chemical changes and, when ignited, burns so vigorously and persistently that it creates a hazard;

  (3) It is an ignitable compressed gas as described in §C(2) and (3) of this regulation; or

  (4) It is an oxidizer as defined in §C(4) of this regulation.

A-1. A liquid that is an alcohol-containing solution that contains less than 24 percent alcohol by volume and at least 50 percent water by weight is not considered to exhibit the characteristic of ignitability under §A(1) of this regulation.

B. A solid waste that exhibits the characteristic of ignitability has the EPA Hazardous Waste Number of D001.

C. For the purposes of this regulation:

  (1) “Aerosol” means any nonrefillable receptacle that:

    (a) Contains a gas that has been compressed, liquefied, or dissolved under pressure, the sole purpose of which is to expel a liquid, paste, or powder that is:

      (i) Nonpoisonous, that is, it is not a poisonous material under 49 CFR §173.132; or

      (ii) A Division 6.1 Packing Group III material under 49 CFR §173.133; and

    (b) Is fitted with a self-closing release device that allows the contents of the receptacle to be ejected by the gas described in §C(1)(a) of this regulation;

  (2) “Compressed gas” means:

    (a) A contained material or mixture that has within the container:

      (i) An absolute pressure exceeding 40 pounds per square inch at 70°F; or

      (ii) An absolute pressure exceeding 104 pounds per square inch at 130°F regardless of the pressure at 70°F; or

    (b) Any liquid flammable material having a vapor pressure exceeding 40 pounds per square inch absolute at 100°F as determined by the test method in 40 CFR §261.21(a)(3)(i);

  (3) A compressed gas shall be characterized as ignitable if any of the following criteria are met:

    (a) At atmospheric temperature and pressure, using the test method identified in 49 CFR §173.115(a), either:

      (i) A mixture of 13 percent or less by volume of the gas with air forms a flammable mixture; or

      (ii) The flammable range for mixtures of the gas with air is wider than 12 percent regardless of the lower limit;

    (b) It meets the definition of “flammable gas (Division 2.1)” under 49 CFR §173.115(a); or

    (c) It is an aerosol as described in §C(1) of this regulation and the compressed gas meets the definition of “flammable gas (Division 2.1)” under 49 CFR §173.115(a) and (l);

  (4) “Oxidizer” means a substance such as a chlorate, permanganate, inorganic peroxide, organic peroxide, or a nitrate that yields oxygen readily to stimulate the combustion of organic matter; and

  (5) “Organic peroxide”:

    (a) Means an organic compound containing the bivalent -O-O- structure and which may be considered a derivative of hydrogen peroxide where one or more of the hydrogen atoms have been replaced by organic radicals; and

    (b) Does not include a material that:

      (i) Meets the definition of a Division 1.1, 1.2, or 1.3 explosive, as defined in 49 CFR §173.50 and 49 CFR §173.53, in which case the material is classed as an explosive;

      (ii) Is forbidden to be offered for transportation by 49 CFR §172.101 or 49 CFR §173.21;

      (iii) Contains an organic peroxide but it is determined that the predominant hazard of the material is other than that of an organic peroxide; or

      (iv) Does not present a hazard in transportation according to data on file with the U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration, or its successor agency.

#### Regulation .11-1 Equipment and Procedures—Bureau of Explosives' Test Apparatus.

*COMAR 26.13.02.11-1*

A. This regulation describes the equipment and procedures that shall be used in evaluating the criteria of Regulation .11C(3)(c)(ii)—(iv) of this chapter to determine whether an aerosol is ignitable.

B. Flame Projection Test.

  (1) Equipment. The test equipment for the Flame Projection Test consists of a base 4 inches wide and 2 feet long. A 30-inch rule with inches marked is supported horizontally on the side of the base and about 6 inches above it. A plumber's candle of such height that the top third of the flame is at the height of the horizontal rule is placed at the zero point in the base.

  (2) Procedure. The test is conducted in a draft-free area that can be ventilated and in which the atmosphere can be cleared between each test. The self-pressurized container being tested is placed at a distance of 6 inches from the ignition source and the spray is jetted into the top third of the flame with the valve opened fully for periods of 15 to 20 seconds. The length of the flame projection from the candle position is read on the horizontal scale. Three or more readings are taken on each sample and the average of the readings is taken as the result of the test. Samples are also tested with the container valve in partially open positions to test for “burning back” to the valve.

C. Drum Tests.

  (1) Equipment. The equipment for the open drum test and the closed drum test consists of a 55-gallon open-head steel drum or similar container that is placed on its side and fitted with a hinged cover over the open end that will open at a pressure of 5 pounds per square inch. The closed or solid end of the container is equipped with one shuttered opening at the top. The shuttered opening is for the introduction of the spray being tested. The opening is approximately 2 inches from the edge of the drum head and is 2 inches in diameter. There is a safety glass or plastic window 6 inches square in the center of the solid end. A lighted plumber's candle is placed inside the drum on the lower side and midway between the ends.

  (2) Drum Test Procedures.

    (a) The Open Drum Test and the Closed Drum Test shall be conducted in the open and when the temperature is between 60°F and 80°F.

    (b) Open Drum Test. This test is conducted with the hinged end of the test equipment in a completely open position and with the shutter closed. The spray from the dispenser of the item being tested, with valve opened fully, is directed into the upper half of the open end and above the ignition source for 1 minute. Any significant propagation of flame through the vapor-air mixture away from the ignition source shall be considered a positive result, except that any minor and unsustained burning in the immediate area of the ignition source is not considered a positive result.

    (c) Closed Drum Test. This test is conducted with the hinged cover of the test equipment dropped into position to rest freely against the end of the equipment and to close the open end of the drum to make a seal that is reasonably secure, but not necessarily air-tight. The shutter is opened and the spray is jetted into the drum through the shutter with the valve fully opened for 1 minute. After clearing the atmosphere in the drum, the jetting is repeated similarly three times. Any explosion or rapid burning of the vapor-air mixture sufficient to cause the hinged cover to move is considered a positive result.

#### Regulation .12 Characteristic of Corrosivity.

*COMAR 26.13.02.12*

A. A solid waste exhibits the characteristic of corrosivity if a representative sample of the waste has either of the following properties:

  (1) It is aqueous and has a pH less than or equal to 2 or greater than or equal to 12.5, as determined by a pH meter using Method 9040 in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”, EPA Publication SW-846, as incorporated by reference in COMAR 26.13.01.05A(4);

  (2) It is a liquid and corrodes steel (SAE 1020) at a rate greater than 6.35 mm (0.250 inch) per year at a test temperature of 55°C (130°F) as determined by the test method specified in NACE (National Association of Corrosion Engineers) Standard TM-01-69* as standardized in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”, EPA Publication SW-846, which is incorporated by reference in COMAR 26.13.01.05A(4).

* The NACE Standard is available from the National Association of Corrosion Engineers, P.O. Box 986, Katy, Texas 77450.

B. A solid waste that exhibits the characteristics of corrosivity has the EPA Hazardous Waste Number of D002.

#### Regulation .13 Characteristic of Reactivity.

*COMAR 26.13.02.13*

A. A solid waste exhibits the characteristic of reactivity if a representative sample of the waste has any of the following properties:

  (1) It is normally unstable and readily undergoes violent change without detonating;

  (2) It reacts violently with water;

  (3) It forms potentially explosive mixtures with water;

  (4) When mixed with water, it generates toxic gases, vapors, or fumes in a quantity sufficient to present a danger to human health or the environment;

  (5) It is a cyanide or sulfide bearing waste which, when exposed to pH conditions between 2 and 12.5, can generate toxic gases, vapors, or fumes in a quantity sufficient to present a danger to human health or the environment;

  (6) It is capable of detonation or explosive reaction if it is subjected to a strong initiating source or if heated under confinement;

  (7) It is readily capable of detonation or explosive decomposition or reaction at standard temperature and pressure;

  (8) It is a:

    (a) Forbidden explosive as defined in 49 CFR §173.54; or

    (b) Division 1.1, 1.2, or 1.3 explosive as defined in 49 CFR §173.50 and 173.53.

B. A solid waste that exhibits the characteristic of reactivity has the EPA Hazardous Waste Number of D003.

#### Regulation .14 Toxicity Characteristic.

*COMAR 26.13.02.14*

A. A solid waste, except manufactured gas plant waste, exhibits the characteristic of toxicity if, using the Toxicity Characteristic Leaching Procedure, Test Method 1311 in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”, EPA Publication SW-846, which is incorporated by reference in COMAR 26.13.01.05A(4), the extract from a representative sample of the waste contains any of the contaminants listed in Table 1 at the concentration equal to or greater than the respective value given in that table. When the waste contains less than 0.5 percent filterable solids, the waste itself, after filtering using the methodology outlined in Test Method 1311, is considered to be the extract for the purpose of this section.

B. A solid waste that exhibits the characteristic of toxicity has the EPA hazardous waste number specified in the following Table 1, which corresponds to the toxic contaminant causing it to be hazardous:

C. Clarification Concerning Manufactured Gas Plant Waste. Manufactured gas plant waste that would exhibit the characteristic of toxicity in the absence of the exception provided in §A of this regulation may not be managed in a landfill that is permitted, licensed, or registered to manage municipal solid waste.

#### Regulation .15 Lists of Hazardous Wastes: General.

*COMAR 26.13.02.15*

A. A solid waste is a hazardous waste if it is listed in Regulations .16—.19 unless it has been excluded from this list under COMAR 26.13.01.04A and B.

B. The Secretary will indicate his basis for listing the classes or types of wastes listed in Regulations .16—.19 of this chapter by employing one or more of the following hazard codes:

  (1) Ignitable waste ------------------------------------------(i);

  (2) Corrosive waste ---------------------------------------- (C);

  (3) Reactive waste ----------------------------------------- (R);

  (4) Toxicity characteristic waste ------------------------- (E);

  (5) Acute hazardous waste -------------------------------- (H);

  (6) Toxic waste --------------------------------------------- (T).

C. Regulation .23 of this chapter identifies the constituent which caused the Secretary to list the waste as a toxicity characteristic waste (E) or toxic waste (T) in Regulations .16 and .17 of this chapter.

D. Each hazardous waste listed in Regulations .16—.19 of this chapter is assigned a Hazardous Waste Number which precedes the name of the waste. This number shall be used in complying with the notification requirements, and certain record-keeping and reporting requirements under COMAR 26.13.03—26.13.06 and 26.13.09.

E. The following hazardous wastes also listed in Regulations .16 and .17 of this chapter are subject to the exclusion limits for acute hazardous wastes established in Regulation .05 of this chapter:

  (1) F020, F021, F022, F023, F026, and F027 of Regulation .16 of this chapter; and

  (2) K991—K999 of Regulation .17 of this chapter.

#### Regulation .16 Hazardous Waste from Nonspecific Sources.

*COMAR 26.13.02.16*

A. As qualified by §§B and D of this regulation, the solid wastes listed in the “Hazardous Waste” column of Table 1 of this regulation are listed as hazardous wastes from nonspecific sources unless they are excluded under:

  (1) 40 CFR §260.20 and 40 CFR §260.22, listed in Appendix IX to 40 CFR Part 261, and referenced in Regulation .25 of this chapter;

  (2) COMAR 26.13.01.04A and C and listed in Regulation .26 of this chapter; or

  (3) Section C or D of this regulation:

*(I,T) should be used to specify mixtures containing ignitable and toxic constituents.

B. Clarifications for Listing of Wastes from Nonspecific Sources — Hazardous Waste Numbers F037 and F038.

  (1) For the purpose of the F037 and F038 listings in §A of this regulation, “oil/water/solids” means oil, water, or solids, or any combination of these.

  (2) Aggressive Biological Treatment.

    (a) For the purposes of the F037 and F038 listings, “aggressive biological treatment units” means units which employ one of the following four treatment methods:

      (i) Activated sludge;

      (ii) Trickling filter;

      (iii) Rotating biological contactor for the continuous accelerated biological oxidation of wastewaters; or

      (iv) High rate aeration.

    (b) For the purposes of §B(2)(a) of this regulation, “high rate aeration” means a system of surface impoundments or tanks, in which intense mechanical aeration is used to completely mix the wastes and enhance biological activity, in which the units employ a minimum of 6 horsepower per 1,000,000 gallons of treatment volume, and in which either the:

      (i) Hydraulic retention time is not longer than 5 days; or

      (ii) Hydraulic retention time is not longer than 30 days and the unit does not generate a sludge that is a hazardous waste by the toxicity characteristic.

  (3) Generators and treatment, storage, and disposal facilities have the burden of proving that their sludges are exempt from listing as F037 and F038 wastes. If seeking to exempt a sludge from listing as F037 and F038 waste, a person shall maintain, in an operating record or in other on-site records, documents, and data sufficient to prove that the:

    (a) Unit is an aggressive biological treatment unit as defined in §B(2) of this regulation; and

    (b) Sludges for which an exemption from the definitions of F037 or F038, or both, is being sought were actually generated in the aggressive biological treatment unit.

  (4) For the purposes of the F037 listing, sludges are considered to be generated at the moment of deposition in the unit, when “deposition” means at least a temporary cessation of lateral particle movement.

  (5) For the F038 listing:

    (a) Sludges are considered to be generated at the moment of deposition in the unit, when “deposition” means at least a temporary cessation of lateral particle movement; and

    (b) Floats are considered to be generated at the moment they are formed in the top of the unit.

C. Deletion of the F032 Hazardous Waste Code Following Equipment Cleaning and Replacement.

  (1) Wastes from wood preserving processes at plants that do not resume or initiate use of chlorophenolic preservatives will not meet the listing definition of F032 in §A of this regulation once the generator has met all of the requirements of §C(3) of this regulation.

  (2) The waste in §C(1) of this regulation, however, may still be regulated as hazardous waste for other reasons under the provisions of this chapter.

  (3) A generator who seeks to have the F032 waste code deleted from a waste shall:

    (a) Clean or replace all process equipment that may have come into contact with chlorophenolic formulations or their constituents, including, but not limited to:

      (i) Treatment cylinders,

      (ii) Sumps,

      (iii) Tanks,

      (iv) Piping systems,

      (v) Drip pads,

      (vi) Fork lifts, and

      (vii) Trams;

    (b) Clean or replace all process equipment described in §C(3)(a) of this regulation in a manner that minimizes or eliminates the release of hazardous waste, hazardous waste constituents or decomposition products, leachate, or contaminated drippage to the ground water, surface water, or atmosphere;

    (c) Do one of the following:

      (i) Prepare, sign, and follow an equipment cleaning plan that meets the requirements of §C(3)(d) of this regulation and clean equipment in accordance with this section,

      (ii) Prepare, sign, and follow an equipment replacement plan that meets the requirements of §C(3)(h) of this regulation and replace equipment in accordance with this section, or

      (iii) Document that equipment cleaning and replacement carried out after the termination of use of chlorophenolic preservatives, and before June 6, 1991, was performed in accordance with the requirements of this section;

    (d) Ensure that an equipment cleaning plan prepared under §C(3)(c) of this regulation describes:

      (i) What equipment will be cleaned,

      (ii) How equipment will be cleaned,

      (iii) What solvent will be used in cleaning,

      (iv) How solvent rinses will be tested, and

      (v) How cleaning residues will be disposed;

    (e) Ensure that cleaning performed under §C(3)(c) of this regulation complies with the following requirements:

      (i) All visible residues are removed from equipment, and

      (ii) Equipment is rinsed with an appropriate solvent until dioxins and dibenzofurans are not detected in the final solvent rinse;

    (f) Ensure that the following analytical requirements are met:

      (i) Rinses are tested in accordance with SW-846, Method 8290, which is incorporated by reference in COMAR 26.13.01.05A(4), and

      (ii) If a result is characterized as “not detected”, it is at or below the lower method calibration limit (MCL) in SW-846, Method 8290, Table 1, which is incorporated by reference in COMAR 26.13.01.05A(4);

    (g) Manage all residues from the cleaning process as F032 wastes;

    (h) Ensure that an equipment replacement plan prepared under §C(3)(c) of this regulation describes:

      (i) What equipment will be replaced,

      (ii) How equipment will be replaced, and

      (iii) How equipment will be disposed;

    (i) Manage as F032 wastes equipment that is discarded as a result of compliance with §C(3)(c) of this regulation;

    (j) Document that previous equipment cleaning and replacement was performed in accordance with this section and occurred after the cessation of use of chlorophenolic preservatives; and

    (k) Maintain the following records documenting the equipment cleaning and replacement as part of the facility's operating record:

      (i) The name and address of the facility,

      (ii) A list of formulations previously used and the date on which their use was terminated in each process at the plant,

      (iii) A list of formulations currently used in each process at the plant,

      (iv) The equipment cleaning or replacement plan,

      (v) The name and address of the persons who conducted the equipment cleaning and replacement,

      (vi) The dates on which equipment cleaning and replacement were accomplished,

      (vii) The dates of sampling and testing,

      (viii) A description of the sample handling and preparation techniques, including techniques used for extraction, containerization, preservation, and chain-of-custody of the samples,

      (ix) A description of the tests performed, the dates the tests were performed, and the results of the tests,

      (x) The names and model numbers of instruments used in performing the tests,

      (xi) Quality assurance/quality control (QA/QC) documentation, and

      (xii) The following statement signed by the generator or his authorized representative: “I certify under penalty of law that all process equipment required to be cleaned or replaced under COMAR 26.13.02.16C was cleaned or replaced as represented in the equipment cleaning and replacement plan and accompanying documentation. I am aware that there are significant penalties for providing false information, including the possibility of fine or imprisonment.”

D. Hazardous Waste Number F019 — Conditional Exemption and Record Keeping for Waste Generated in Manufacturing Motor Vehicles.

  (1) Wastewater treatment sludges from the chemical conversion coating of aluminum are not considered Hazardous Waste Number F019 under §A of this regulation at the point of generation if:

    (a) The sludges are derived from the use of a zinc phosphating process in the manufacturing of:

      (i) Automobiles; or

      (ii) Light trucks or utility vehicles, such as light duty vans, pickup trucks, minivans, and sport utility vehicles;

    (b) The facility where the sludges are generated is engaged in manufacturing:

      (i) Complete vehicles of either unibody construction or body and chassis construction; or

      (ii) Vehicle chassis;

    (c) The sludges are disposed off site in a landfill that is permitted, licensed or otherwise authorized to accept the waste;

    (d) The landfill in which the sludges are disposed is either:

      (i) A municipal or industrial solid waste landfill that is regulated under Subtitle D of RCRA or equivalent state authority, and is equipped with a single clay liner; or

      (ii) A landfill that is subject to and meets the requirements of COMAR 26.04.07.07C(12), COMAR 26.04.07.19C(2), COMAR 26.13.05.14B, COMAR 26.13.06.22C, 40 CFR §258.40, 40 CFR §264.301, or 40 CFR §265.301, or equivalent state requirements;

    (e) The sludges are not placed outside on the land before shipment off site to a landfill for disposal.

  (2) A person who generates sludge exempted from being regulated as Hazardous Waste Number F019 under §D(1) of this regulation shall maintain, on site:

    (a) Documentation and information sufficient to prove that the requirements of §D(1)(a)—(e) of this regulation have been met, including:

      (i) The volume of sludge generated and disposed off site;

      (ii) Documentation showing when the waste volumes were generated and sent off site;

      (iii) The name and address of the receiving facility; and

      (iv) Documentation confirming receipt of the waste by the receiving facility; and

    (b) The records required by §D(2)(a) of this regulation for at least 3 years, with the required retention period extended:

      (i) Automatically during the course of any enforcement action; or

      (ii) As required by the Secretary or the Regional Administrator of Region 3 of the EPA.

#### Regulation .17 Hazardous Waste from Specific Sources.

*COMAR 26.13.02.17*

A. As qualified by §B of this regulation, the following solid wastes are listed as hazardous wastes from specific sources unless they are excluded under:

  (1) 40 CFR §260.20 and 40 CFR §260.22, listed in Appendix IX to 40 CFR Part 261, and referenced in Regulation .25 of this chapter; or

  (2) COMAR 26.13.01.04A and C and listed in Regulation .26 of this chapter:

B. Qualifiers Concerning Hazardous Waste from Specific Sources.

  (1) General. This section provides qualifiers concerning the wastes listed in §A of this regulation.

  (2) The following requirements apply to Hazardous Waste Number K174 listed under the organic chemicals industry in the table in §A of this regulation:

    (a) A respondent in an action brought to enforce the requirements of Subtitle C of RCRA shall, upon a showing by the government that the respondent managed wastewater treatment sludges from the production of vinyl chloride monomer or ethylene dichloride, demonstrate that the respondent met the terms of the exclusion provided in the listing for Hazardous Waste Number K174 in §A of this regulation; and

    (b) In order to make the demonstration required in §B(2)(a) of this regulation, the respondent shall provide appropriate documentation that the terms of the exclusion were met, such as contracts between the generator and the landfill owner or operator, or invoices documenting delivery of waste to an appropriate landfill.

  (3) The following qualifiers apply to Hazardous Waste Number K181 listed under the organic chemicals industry in the table in §A of this regulation:

    (a) A nonwastewater that otherwise meets the listing for K181 in §A of this regulation does not meet that waste listing if the nonwastewater is:

      (i) Disposed in a RCRA Subtitle D landfill unit subject to the design criteria in 40 CFR §258.40 or equivalent state regulations;

      (ii) Disposed in a RCRA Subtitle C landfill unit subject to either 40 CFR §264.301, 40 CFR §265.301, or equivalent state regulations;

      (iii) Disposed in other RCRA Subtitle D landfill units that meet the design criteria in 40 CFR §258.40, 40 CFR §264.301, 40 CFR §265.301, or equivalent state regulations; or

      (iv) Treated in a combustion unit that is permitted under RCRA Subtitle C or is an on-site combustion unit that is permitted under the Clean Air Act.

    (b) The scope of “dyes and pigments production” for the purposes of the K181 waste listing includes the manufacture of the following product classes:

      (i) Dyes;

      (ii) Pigments; or

      (iii) FDA certified colors that are classified as azo, triarylmethane, perylene or anthraquinone classes.

    (c) In identifying applicable product classes under §B(3)(b) of this regulation:

      (i) Azo products include azo, monoazo, diazo, triazo, polyazo, azoic, benzidine, and pyrazolone products; and

      (ii) Triarylmethane products include both triarylmethane and triphenylmethane products.

    (d) The K181 listing does not apply to the following wastes:

      (i) Wastes that are not generated at a dyes or pigments manufacturing site, such as wastes from the off-site use, formulation, and packaging of dyes or pigments;

      (ii) Wastes that are otherwise identified as hazardous under COMAR 26.13.02.11—.14 and 26.13.02.16—.19 at the point of generation; and

      (iii) Wastes generated before any annual mass loading limit is met.

C. K181 Listing Levels.

  (1) Unless the conditions in the K181 listing are met, nonwastewaters are subject to the K181 listing if, during any calendar year, they contain constituents in amounts equal to or exceeding the levels listed in Table 1 in §C(2) of this regulation.

  (2) Table 1.

D. To demonstrate that a nonwastewater does not qualify for the K181 listing in the organic chemicals industry category, a person shall follow the procedures in 40 CFR §261.32(d).

#### Regulation .18 Hazardous Waste from Specific Sources (State).

*COMAR 26.13.02.18*

Industry
            EPA Hazardous Waste Number
            Hazardous Waste
            Hazard Code
          
        
        
          
            Organic Chemical
            MD01
            Filter cake and chemical sludge from API separators, generated during the production of phthalate esters
            (T)
          
          
            Military
            MD02
            Except for those wastes excluded by Regulation .26 of this chapter, reaction products resulting from the decontamination of any of the following compounds, including residues from the decontamination of mixtures containing one or more of these compounds:
            (T)
          
          
            
            
            Ethyl dimethylamidocyanophosphate, also known by the common names GA and Tabun and the following alternate chemical names:
            
          
          
            
            
            Ethyl N,N dimethylphosphoramidocyanidate; and
            
          
          
            
            
            Dimethylamidoethoxyphosphoryl cyanide;
            
          
          
            
            
            Isopropyl methanefluorophosphonate, also known by the common names GB and Sarin and the following alternate chemical names:
            
          
          
            
            
            Isopropyl methylphosphonofluoridate; and
            
          
          
            
            
            Isopropyl ester of methylphosphonofluoridic acid;
            
          
          
            
            
            3,3-dimethyl-n-but-2-yl methylphosphonofluoridate, also known by the common names GD and Soman and the following alternate chemical names:
            
          
          
            
            
            Pinacolyl methylphosphonofluoridate;
            
          
          
            
            
            1,2,2-trimethylpropyl methylphosphonofluoridate; and
            
          
          
            
            
            Pinacoloxymethylphosphoryl fluoride;
            
          
          
            
            
            O-ethyl S-(2-diisopropyl-aminoethyl) methylphosphonothioate, also known by the common name VX;
            
          
          
            
            
            Chlorovinylarsine dichloride, also known by the common names L and Lewisite and the following alternate chemical names:
            
          
          
            
            
            Dichloro (2-chlorovinyl) arsine; and
            
          
          
            
            
            2-chlorovinyldichlorarsine;
            
          
          
            
            
            Phenarsazine chloride, also known by the common names DM and Adamsite;
            
          
          
            
            
            Bis(2-chloroethyl) sulfide, also known by the common names sulfur mustard, H, HS, and HD;
            
          
          
            
            
            2-2'-di(3-chloroethylthio)-diethyl ether, also known by the common name T and the following alternate chemical name:
            
          
          
            
            
            Bis-(2-chloroethylthioethyl) ether
            
          
          
            
            MD03
            Except for those wastes as excluded by Regulation .26 of this chapter:
            (T)
          
          
            
            
            (a) Residues from the treatment of a liquid having one or more of the hazardous waste numbers K991—K999 if the treatment method, to the Secretary's satisfaction, consistently produces no residue that meets the criteria of Regulation .09A(2) of this chapter for listing as an acute hazardous waste; or
            
          
          
            
            
            (b) A solid item that:
            
          
          
            
            
            (i) Is known to or is thought to have contained, on the item's surface or within the item through sorption, one or more of the hazardous wastes K991—K999;
            
          
          
            
            
            (ii) Has been successfully decontaminated, that is, has been decontaminated sufficiently to allow safe disposition through commercial hazardous waste treatment, storage, and disposal facilities; and
            
          
          
            
            
            (iii) Contains none of the wastes K991—K999 in greater than very small, insignificant amounts.
            
          
          
            
            
            Agency note: Once the MD03 hazardous waste number is assigned to a waste, the K hazardous waste number associated with the waste from which the MD03 waste is derived is no longer applicable.
            
          
          
            
            
            Agency note: A solid item, assigned a hazardous waste number K991—K999 because it contained the corresponding waste, no longer carries the K hazardous waste number if the solid item has been successfully decontaminated and no longer contains the K waste in more than very small, insignificant amounts. A solid item that no longer contains residues from the decontamination of a hazardous waste K991—K999 does not carry the MD03 hazardous waste number.

#### Regulation .19 Discarded Commercial Chemical Products, Off-Specification Species, Containers, and Spill Residues of These.

*COMAR 26.13.02.19*

The following materials or items are hazardous wastes if and when they are discarded or intended to be discarded as described in Regulation .02A(2)(a) of this chapter, when they are mixed with waste oil or used oil or other material and applied to the land for dust suppression or road treatment, when they are otherwise applied to the land instead of their original intended use or when they are contained in products that are applied to the land instead of their original intended use or when, instead of their original intended use, they are produced for use as (or as a component of) a fuel, distributed for use as a fuel, or burned as a fuel:

A. Any commercial chemical product, or manufacturing chemical intermediate, having the generic name listed in §E, F, G, or H of this regulation.

B. Any off-specification commercial chemical product or manufacturing chemical intermediate which, if it met specifications, would have the generic name listed in §E, F, G, or H of this regulation.

C. Any residue remaining in a container or inner liner removed from a container that has been used to hold any commercial chemical product or manufacturing chemical intermediate having the generic name listed in §E, F, G, or H of this regulation unless the container or inner liner is empty as defined in Regulation .07B of this chapter or as specified in COMAR 26.13.10.35.

D. Any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any commercial chemical product or manufacturing chemical product or manufacturing chemical intermediate having the generic name listed in §E or G or mixtures containing polychlorinated biphenyls (PCBs) at concentrations greater than 50 ppm. The hazardous waste number for these mixtures is MX 01.

E. The commercial chemical products, or manufacturing chemical intermediates, or off-specification commercial chemical products or manufacturing chemical intermediates referred to in §§A—D of this regulation are identified as acute hazardous wastes (H) and are subject to the small quantity exclusion defined in Regulation .05C of this chapter. These wastes and their corresponding EPA Hazardous Waste Numbers are:

F. Additionally, the following wastes are identified as acute hazardous (H) and are subject to the small quantity exclusion defined in Regulation .05C:

G. The commercial chemical products, manufacturing chemical intermediates, or off-specification commercial chemical products, referred to in §§A—D of this regulation, are identified as toxic wastes (T) unless otherwise designated and are subject to the small quantity exclusion defined in Regulation .05A and C of this chapter. These wastes and their corresponding EPA Hazardous Waste Numbers are:

H. Additionally, the following wastes are identified as Maryland Toxic (MT) and are subject to the same provisions as those identified in Regulation .19G:

#### Regulation .19-1 Comparable Fuel and Synthesis Gas Fuel Exclusion — Repealed

*COMAR 26.13.02.19-1*

#### Regulation .19-2 Comparable Fuel and Synthesis Gas Fuel Exclusion — Implementation — Repealed

*COMAR 26.13.02.19-2*

#### Regulation .19-3 Comparable Fuel and Syngas Fuel Waste Analysis Plan — Repealed

*COMAR 26.13.02.19-3*

#### Regulation .19-4 Comparable Fuel or Syngas Fuel Exclusion Sampling and Analysis — Repealed

*COMAR 26.13.02.19-4*

#### Regulation .19-5 Comparable Fuel or Syngas Fuel Exclusion Record Keeping — Repealed

*COMAR 26.13.02.19-5*

#### Regulation .19-6 Conditional Exclusion — Used, Broken Cathode Ray Tubes (CRTs) and Processed CRT Glass Undergoing Recycling.

*COMAR 26.13.02.19-6*

A. General.

  (1) This regulation establishes conditions that shall be met in order for the following materials to be excluded from the definition of solid waste when the materials are undergoing recycling:

    (a) A used, broken cathode ray tube (CRT); and

    (b) Processed CRT glass.

  (2) Use Constituting Disposal. If a used, broken CRT or glass from a used CRT is going to be recycled by being used in a manner constituting disposal, as described in Regulation .02C(1)(a)(i) and (ii) of this chapter, the used, broken CRT or glass from a used CRT shall be managed in accordance with the requirements of COMAR 26.13.10.01 rather than the requirements of this regulation.

  (3) Speculative Accumulation. A used, broken CRT or glass from a used CRT that is material accumulated speculatively, as defined in Regulation .01D of this chapter, is a solid waste when recycled unless otherwise excluded from the definition of solid waste by Regulation .02 of this chapter.

  (4) Management Requirements. Requirements concerning:

    (a) Management of used, broken CRTs before processing are established in §B of this regulation;

    (b) Exports of broken CRTs are established in Regulation .19-7 of this chapter, including requirements on notification of intent to export and consent of the receiving country;

    (c) Processing used, broken CRTs are established in §C of this regulation; and

    (d) Processed CRT glass are established in §D of this regulation.

B. Management before Processing. In order for a used, broken CRT that is undergoing recycling to be excluded from the definition of solid waste under Regulation .04A(19)(c) of this chapter the following conditions shall be met:

  (1) The used, broken CRT shall be:

    (a) Stored in a building with a roof, floor and walls; or

    (b) Placed in a container, that is, a package or a vehicle, that is constructed, filled, and closed to minimize releases to the environment of CRT glass, including fine solid materials;

  (2) The container, that is, the package or vehicle, that constitutes the primary containment for the used, broken CRT shall be labeled or clearly marked with the following phrases:

    (a) Either:

      (i) “Used cathode ray tube(s) — contains leaded glass”; or

      (ii) “Leaded glass from televisions or computers”; and

    (b) “Do not mix with other materials”;

  (3) The used, broken CRT shall be transported in a container that meets the requirements of §B(1)(b) and §B(2) of this regulation; and

  (4) The used, broken CRT may not be:

    (a) Used in a manner constituting disposal, as described in §A(2) of this regulation; or

    (b) Accumulated speculatively, as described in §A(3) of this regulation.

C. Requirements for Used CRT Processing. In order for a used, broken CRT that is undergoing cathode ray tube processing as defined in COMAR 26.13.01.03B to be excluded from the definition of solid waste under Regulation .04A(19)(c) of this chapter, the following requirements shall be met:

  (1) A used, broken CRT that a processor has accepted for processing and that is being held before beginning the processing activities identified in §C(2)(a) of this regulation:

    (a) Shall be stored in a building with a roof, floor and walls; or

    (b) If stored somewhere other than a building with a roof, floor and walls, shall be stored in a container, that is, a package or a vehicle, that is constructed, filled, and closed to minimize releases to the environment of CRT glass, including fine solid materials;

  (2) The used, broken CRT shall be processed in accordance with the following requirements:

    (a) The following activities shall be performed in a building with a roof, floor and walls:

      (i) Intentionally breaking intact CRTs or further breaking or separating broken CRTs; and

      (ii) Sorting or otherwise managing glass removed from CRT monitors; and

    (b) No activities may be performed that use temperatures high enough to volatilize lead from CRTs; and

  (3) The used, broken CRT may not be:

    (a) Used in a manner constituting disposal, as described in §A(2) of this regulation; or

    (b) Accumulated speculatively, as described in §A(3) of this regulation.

D. Requirements for Processed CRT Glass. Glass from used CRTs that is destined for recycling at a CRT glass manufacturer or a lead smelter after processing is not a solid waste unless it is material accumulated speculatively as defined in Regulation .01D of this chapter.

#### Regulation .19-7 Exports — Used, Broken Cathode Ray Tubes (CRTs) and Processed CRT Glass Undergoing Recycling.

*COMAR 26.13.02.19-7*

A. General.

  (1) This regulation establishes requirements concerning exports of used, broken CRTs being recycled that must be met in order for the used, broken CRTs to be excluded from the definition of solid waste.

  (2) The requirements of this regulation are in addition to the requirements of Regulation .19-6 of this chapter.

  (3) Processed CRT glass, that is, CRT glass that has been sorted or otherwise managed under the definition of CRT processing in COMAR 26.13.01.03B, is not subject to the export notification requirements of this regulation.

  (4) Unsorted CRT glass is considered to be a used, broken CRT for the purposes of this regulation.

B. A person engaged in the export of used, broken CRTs for recycling:

  (1) Shall comply with applicable requirements of 40 CFR §261.39(a)(5); and

  (2) In complying with the requirements of 40 CFR §261.39(a)(5), shall:

    (a) Comply with provisions in the Code of Federal Regulations as referenced rather than analogous provisions in COMAR; and

    (b) Make the required notification to EPA as specified, rather than to the Department.

#### Regulation .19-8 Used, Intact Cathode Ray Tubes (CRTs) Exported for Recycling or Reuse.

*COMAR 26.13.02.19-8*

A. A used, intact CRT exported for recycling is not a solid waste if the used, intact CRT:

  (1) Is managed in accordance with the requirements concerning notice and consent that apply to used, broken CRTs in Regulation .19-7B of this chapter; and

  (2) Is not material accumulated speculatively as defined in Regulation .01D of this chapter.

B. Notification and Record Keeping.

  (1) As qualified by §B(2) of this regulation, a CRT exporter who exports used, intact CRTs for reuse shall comply with the notification and record-keeping requirements of 40 CFR §261.41; and

  (2) In complying with the notification requirements of 40 CFR §261.41, a person shall make the required notification to EPA as specified, rather than to the Department.

#### Regulation .20 Representative Sampling Methods.

*COMAR 26.13.02.20*

A. The methods and equipment used for sampling waste materials will vary with the form and consistency of the waste materials to be sampled. Samples collected using the sampling protocols listed in §B, of this regulation, for sampling waste with properties similar to the indicated materials, will be considered by the Department to be representative of the waste.

B. Sampling Protocols.

  (1) Extremely viscous liquid — ASTM Standard D140-70.

  (2) Crushed or powdered material — ASTM Standard D346-75.

  (3) Soil or rock-like material — ASTM Standard D420-69.

  (4) Soil-like material — ASTM Standard D1452-65.

  (5) Fly Ash-like material — ASTM Standard D2234-76. (ASTM Standards are available from ASTM, 1916 Race St., Philadelphia, PA 19103.)

  (6) Containerized liquid wastes — “COLIWASA” described in “Test Methods for the Evaluation of Solid Waste, Physical/Chemical Methods”*, U.S. Environmental Protection Agency, Office of Solid Waste, Washington, D.C. 29460 (copies may be obtained from Solid Waste Information, U.S. Environmental Protection Agency, 26 W. St. Clair St., Cincinnati, Ohio 45268).

  (7) Liquid waste in pits, ponds, lagoons, and similar reservoirs — “Pond Sampler” described in “Test Methods for the Evaluation of Solid Waste, Physical/Chemical Methods”.*

------* These methods are also described in “Samplers and Sampling Procedures for Hazardous Waste Streams”,  EPA 600/2-80-018, January 1980.-----

C. This regulation also contains additional information on application of these protocols.

#### Regulation .21 Test Procedures—EP Toxicity and Toxicity Characteristic.

*COMAR 26.13.02.21*

A. The EP Toxicity (Method 1310A) is published in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”, EPA Publication SW-846, which is incorporated by reference in COMAR 26.13.01.05A(4).

B. The Toxicity Characteristic Leaching Procedure (TCLP) (Method 1311) is published in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”, EPA Publications SW-846, which is incorporated by reference in COMAR 26.13.01.05A(4).

#### Regulation .22 Chemical Analysis Test Methods.

*COMAR 26.13.02.22*

A. Appropriate analytical procedures to determine whether a sample contains a given toxic constituent are specified in Chapter Two, “Choosing the Correct Procedure”, found in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”, EPA Publication SW-846, which is incorporated by reference in COMAR 26.13.01.05A(4).

B. Before selecting a final sampling and analysis method, a person shall consult the specific section or method described in SW-846 for additional guidance on which of the approved methods should be employed for a specific situation involving sample analysis.

#### Regulation .23 Basis for Listing Hazardous Wastes.

*COMAR 26.13.02.23*

EPA HazardousWaste Number
            Hazardous Constituents For Which Listed
          
        
        
          
            F001
            tetrachloroethylene, methylene chloride, trichloroethylene, 1,1,1-trichloroethane, chlorinated fluorocarbons, carbon tetrachloride
          
          
            F002
            tetrachloroethylene, methylene chloride, trichloroethylene, 1,1,1-trichloroethane, 1,1,2-trichloroethane, chlorobenzene, 1,1,2-trichloro-1,2,2-trifluoroethane, o-dichlorobenzene, trichlorofluoromethane
          
          
            F003
            N.A.*  —Waste is hazardous because it meets either the ignitability, corrosivity, or reactivity characteristic.
          
          
            F004
            cresols and cresylic acid, nitrobenzene
          
          
            F005
            toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, 2-ethoxyethanol, benzene,2-nitropropane
          
          
            F006
            cadmium, hexavalent chromium, nickel, cyanide (complexed)
          
          
            F007
            cyanide (salts)
          
          
            F008
            cyanide (salts)
          
          
            F009
            cyanide (salts)
          
          
            F010
            cyanide (salts)
          
          
            F011
            cyanide (salts)
          
          
            F012
            cyanide (complexed)
          
          
            F019
            hexavalent chromium, cyanide (complexed)
          
          
            F020
            tetra- and pentachlorodibenzo-p-dioxins, tetra- and pentachlorodibenzofurans; tri- and tetrachlorophenols and their chlorophenoxy derivative acids, esters, ethers, amine and other salts
          
          
            F021
            penta- and hexachlorodibenzo-p-dioxins, penta- and hexachlorodibenzofurans, pentachlorophenol and its derivatives
          
          
            F022
            tetra-, penta-, and hexachlorodibenzo-p-dioxins; tetra-, penta-, and hexachlorodibenzofurans
          
          
            F023
            tetra-, and pentachlorodibenzo-p-dioxins, tetra- and pentachlorodibenzofurans, tri- and tetrachlorophenols and their chlorophenoxy derivative acids, esters, ethers, amine and other salts
          
          
            F024
            chloromethane,dichloromethane, trichloromethane, carbon tetrachloride, chloroethylene,1,1-dichloroethane, 1-2 dichloroethane, trans-1-2-dichloroethylene, 1,1-dichloroethylene,1,1,1-trichloroethane, 1,1,2-trichloroethane, trichloroethylene, 1,1,1,2-tetrachloroethane,1,1,2,2-tetrachloroethane, tetrachloroethylene, pentachloroethane, hexachloroethane, allyl chloride (3-chloropropene), dichloropropane, dichloropropene, 2-chloro-1,3-butadiene,hexachloro-1,3-butadiene, hexachlorocyclopentadiene, hexachlorocyclohexane, benzene, chlorobenzene, dichlorobenzenes, 1,2,4-trichlorobenzene, tetrachlorobenzene, pentachlorobenzene, hexachlorobenzene, toluene, naphthalene
          
          
            F025
            chloromethane, dichloromethane, trichloromethane, carbon tetrachloride, chloroethylene,1,1-dichloroethane, 1,2-dichloroethane, trans-1,2-dichloroethylene, 1,1-dichloroethylene,1,1,1-trichlororethane, 1,1,2-trichloroethane, trichloroethylene, 1,1,1,2-tetrachloroethane, 1,1,2,2-tetrachloroethane, tetrachloroethylene, pentachloroethane, hexachloroethane,allyl chloride (3-chloropropene), dichloropropane, dichloropropene, 2-chloro-1,3-butadiene, hexachloro-1,3-butadiene, hexachlorocyclopentadiene, benzene, chlorobenzene, dichlorobenzene, 1,2,4-trichlorobenzene, tetrachlorobenzene, pentachlorobenzene, hexachlorobenzene, toluene, naphthalene
          
          
            F026
            tetra-, penta-, and hexachlorodibenzo-p-dioxins, tetra-, penta-, and hexachlorodibenzofurans
          
          
            F027
            tetra- and penta-, and hexachlorodinenzo-p-dioxins, tetra-, penta-, and hexachlorodibenzofurans, tri-, tetra-, and pentachlorophenols and their chlorophenoxy derivative acids, esters, ethers, amine and other salts
          
          
            F028
            tetra-, penta-, and hexachlorodibenzo-p-dioxins, tetra-, penta-, and hexachlorodibenzofurans, tri-, tetra-, and pentachlorophenols and their chlorophenoxy derivative acids, esters, ethers, amine and other salts
          
          
            F032
            benz(a)anthracene, benzo(a)pyrene, dibenz(a,h)anthracene, indeno(1,2,3-cd)pyrene, pentachlorophenol, arsenic, chromium, tetra-, penta-, hexa-, heptachlorodibenzo-p-dioxins, tetra-, penta-, hexa-, heptachlorodibenzofurans
          
          
            F034
            benz(a)anthracene, benzo(k)fluoranthene, benzo(a)pyrene, dibenz(a,h)anthracene,indeno(1,2,3-cd)pyrene, naphthalene, arsenic, chromium
          
          
            F035
            arsenic, chromium, lead
          
          
            F037
            benzene, benzo(a)pyrene, chrysene, lead, chromium
          
          
            F038
            benzene, benzo(a)pyrene, chrysene, lead, chromium
          
          
            F039
            All constituents for which treatment standards are specified for multi-source leachate, both wastewaters and nonwastewaters, under 40 CFR §268.43, Table CCW
          
          
            K001
            pentachlorophenol, phenol, 2-chlorophenol, p-chloro-m-cresol, 2,4-dimethylphenol,2,4-dinitrophenol, trichlorophenols, tetrachlorophenols, creosote, chrysene, naphthalene, fluoranthene, benzo(b)fluoranthene, benzo(a)pyrene, indeno(1,2,3-cd)pyrene, benz(a)anthracene, dibenz(a)anthracene, acenaphthalene
          
          
            K002
            hexavalent chromium, lead
          
          
            K003
            hexavalent chromium, lead
          
          
            K004
            hexavalent chromium
          
          
            K005
            hexavalent chromium, lead
          
          
            K006
            hexavalent chromium
          
          
            K007
            cyanide (complexed), hexavalent chromium
          
          
            K008
            hexavalent chromium
          
          
            K009
            chloroform, formaldehyde, methylene chloride, methyl chloride, paraldehyde, formic acid
          
          
            K010
            chloroform, formaldehyde, methylene chloride, methyl chloride, paraldehyde, formic acid, chloroacetaldehyde
          
          
            K011
            acrylonitrile, acetonitrile, hydrocyanic acid
          
          
            K013
            hydrocyanic acid, acrylonitrile, acetonitrile
          
          
            K014
            acetonitrile, acrylamide
          
          
            K015
            benzyl chloride, chlorobenzene, toluene, benzothrichloride
          
          
            K016
            hexachlorobenzene, hexachlorobutadiene, carbon tetrachloride, hexachloroethane, perchloroethylene
          
          
            K017
            epichlorohydrin, chloroethers, (bis(chloromethyl) ether and bis(2-chloroethyl) ethers), trichloropropane, dichloropropanols
          
          
            K018
            1,2-dichloroethane, trichloroethylene, hexachlorobutadiene, hexachlorobenzene
          
          
            K019
            ethylene dichloride, 1,1,1-trichloroethane, 1,1,2-trichloroethane, tetrachloroethanes  (1,1,2,2-tetrachloroethane and 1,1,1,2-tetrachloroethane), trichloroethylene, tetrachloroethylene, carbon tetrachloride, chloroform, vinyl chloride, vinylidene chloride
          
          
            K020
            ethylene dichloride, 1,1,1-trichloroethane, 1,1,2-trichloroethane, tetrachloroethanes(1,1,2,2-tetrachloroethane and 1,1,1,2-tetrachloroethane), trichloroethylene, tetrachloroethylene, carbon tetrachloride, chlorophorm, vinyl chloride, vinylidene chloride
          
          
            K021
            antimony, carbon tetrachloride, chloroform
          
          
            K022
            phenol, tars (polycyclic aromatic hydrocarbons)
          
          
            K023
            phthalic anhydride, maleic anhydride
          
          
            K024
            phthalic anhydride, 1,4-naphthoquinone
          
          
            K025
            meta-dinitrobenzene, 2,4-dinitrotoluene
          
          
            K026
            paraldehyde, pyridines, 2-picoline
          
          
            K027
            toluene diisocyanate, toluene-2,4-diamine
          
          
            K028
            1,1,1-trichloroethane, vinyl chloride
          
          
            K029
            1,2-dichloroethane, 1,1,1-trichloroethane, vinyl chloride, vinylidene chloride, chloroform
          
          
            K030
            hexachlorobenzene, hexachlorobutadiene, hexachloroethane, 1,1,1,2-tetrachloroethane,1,1,2,2-tetrachloroethane, ethylene dichloride
          
          
            K031
            arsenic
          
          
            K032
            hexachlorocyclopentadiene
          
          
            K033
            hexachlorocyclopentadiene
          
          
            K034
            hexachlorocyclopentadiene
          
          
            K035
            creosote, chrysene, naphthalene, fluoranthene, benzo(b)fluoranthene, benzo(a)anthracene, benzo(a)pyrene, indeno(1,2,3-cd)pyrene
          
          
            K036
            toluene, phosphorodithioic and phosphorothioic acid esters
          
          
            K037
            toluene, phosphorodithioic and phosphorothioic acid esters
          
          
            K038
            phorate, formaldehyde, phosphorodithioic and phosphorothioic acid esters
          
          
            K039
            phosphorodithioic and phosphorothioic acid esters
          
          
            K040
            phorate, formaldehyde, phosphorodithioic and   phosphorothioic acid esters
          
          
            K041
            toxaphene
          
          
            K042
            hexachlorobenzene, ortho-dichlorobenzene
          
          
            K043
            2,4-dichlorophenol, 2,6-dichlorophenol, 2,4,6-trichlorophenol
          
          
            K044
            N.A.
          
          
            K045
            N.A.
          
          
            K046
            lead
          
          
            K047
            N.A.
          
          
            K048
            hexavalent chromium, lead
          
          
            K049
            hexavalent chromium, lead
          
          
            K050
            hexavalent chromium
          
          
            K051
            hexavalent chromium, lead
          
          
            K052
            lead
          
          
            K060
            cyanide, naphthalene, phenolic compounds, arsenic
          
          
            K061
            hexavalent chromium, lead, cadmium
          
          
            K062
            hexavalent chromium, lead
          
          
            K069
            hexavalent chromium, lead, cadmium
          
          
            K071
            mercury
          
          
            K073
            chloroform, carbon tetrachloride, hexachloroethane, trichloroethane, tetrachloroethylene, dichloroethylene, 1,1,2,2-tetrachloroethane
          
          
            K083
            aniline, nitrobenzene, diphenylamine, phenylenediamine
          
          
            K084
            arsenic
          
          
            K085
            benzene, dichlorobenzenes, trichlorobenzene, tetrachlorobenzene, pentachlorobenzene, hexachlorobenzene, benzyl chloride
          
          
            K086
            hexavalent chromium, lead
          
          
            K087
            phenol, naphthalene
          
          
            K088
            cyanide (complexes)
          
          
            K093
            phthalic anhydride, maleic anhydride
          
          
            K094
            phthalic anhydride
          
          
            K095
            1,1,2-trichloroethane, 1,1,1,2-tetrachloroethane, 1,1,2,2-tetrachloroethane
          
          
            K096
            1,2-dichloroethane, 1,1,1-trichloroethane, 1,1,2-trichloroethane chlordane, heptachlor
          
          
            K097
            chlordane, heptachlor
          
          
            K098
            toxaphene
          
          
            K099
            2,4-dichlorophenol, 2,4,6-trichlorophenol
          
          
            K100
            hexavalent chromium, lead, cadmium
          
          
            K101
            arsenic
          
          
            K103
            aniline, nitrobenzene, phenylenediamine
          
          
            K104
            aniline, benzene, diphenylamine, nitrobenzene, phenylenediamine
          
          
            K105
            benzene, monochlorobenzene, dichlorobenzenes, 2.4.6-trichlorophenol
          
          
            K106
            mercury
          
          
            K107
            1,1-dimethylhydrazine (UDMH)
          
          
            K108
            1,1-dimethylhydrazine (UDMH)
          
          
            K109
            1,1-dimethylhydrazine (UDMH)
          
          
            K110
            1,1-dimethylhydrazine (UDMH)
          
          
            K111
            2,4-dinitrotoluene
          
          
            K112
            2,4-toluenediamine, o-toluidine, p-toluidine, aniline
          
          
            K113
            2,4-toluenediamine, o-toluidine, p-toluidine, aniline
          
          
            K114
            2,4-toluenediamine, o-toluidine, p-toluidine
          
          
            K115
            2,4-toluenediamine
          
          
            K116
            carbon tetrachloride, tetrachloroethylene, chloroform, phosgene
          
          
            K117
            ethylene dibromide
          
          
            K118
            ethylene dibromide
          
          
            K123
            ethylene thiourea
          
          
            K124
            ethylene thiourea
          
          
            K125
            ethylene thiourea
          
          
            K126
            ethylene thiourea
          
          
            K131
            dimethyl sulfate, methyl bromide
          
          
            K132
            methyl bromide
          
          
            K136
            ethylene dibromide
          
          
            K141
            Benzene, benz(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, benzo(k)fluoranthene, dibenz(ah)anthracene, indeno(1,2,3-cd)pyrene
          
          
            K142
            Benzene, benz(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, benzo(k)fluoranthene, dibenz(ah)anthracene, indeno(1,2,3-cd)pyrene
          
          
            K143
            Benzene, benz(a)anthracene, benzo(b)fluoranthene, benzo(k)fluoranthene
          
          
            K144
            Benzene, benz(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, benzo(k)fluoranthene, dibenz(a)anthracene
          
          
            K145
            Benzene, benz(a)anthracene, benzo(a)pyrene, dibenz(ah)anthracene, naphthalene
          
          
            K147
            Benzene, benz(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, benzo(k)fluoranthene, dibenz(ah)anthracene, indeno (1,2,3-cd)pyrene
          
          
            K148
            Benz(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, benzo(k)fluoranthene, dibenz(ah)anthracene, indeno(1,2,3-cd)pyrene
          
          
            K149
            Benzotrichloride, benzyl chloride, chloroform, chloromethane, chlorobenzene,1,4-dichlorobenzene, hexachlorobenzene, pentachlorobenzene, 1,2,4,5-tetrachlorobenzene, toluene
          
          
            K150
            Carbon tetrachloride, chloroform, chloromethane, 1,4-dichlorobenzene, hexachlorobenzene, pentachlorobenzene, 1,2,4,5-tetrachlorobenzene, 1,1,2,2-tetrachloroethane, tetrachloroethylene, 1,2,4-trichlorobenzene
          
          
            K151
            Benzene, carbon tetrachloride, chloroform, hexachlorobenzene, pentachlorobenzene, toluene, 1,2,4,5-tetrachlorobenzene, tetrachloroethylene
          
          
            K156
            benomyl, carbaryl, carbendazim, carbofuran, carbosulfan, formaldehyde, methylene chloride, triethylamine
          
          
            K157
            carbon tetrachloride, formaldehyde, methyl chloride, methylene chloride, pyridine, triethylamine
          
          
            K158
            benomyl, carbendazim, carbofuran, carbosulfan, chloroform, methylene chloride
          
          
            K159
            benzene, butylate, eptc, molinate, pebulate, vernolate
          
          
            K161
            antimony, arsenic, metam-sodium, ziram
          
          
            K169
            benzene
          
          
            K170
            benzo(a)pyrene, dibenz(a,h)anthracene, benzo (a) anthracene, benzo (b)fluoranthene, benzo(k)fluoranthene, 3- methylcholanthrene, 7,12- dimethylbenz(a)anthracene
          
          
            K171
            benzene, arsenic
          
          
            K172
            benzene, arsenic
          
          
            K174
            1,2,3,4,6,7,8-Heptachlorodibenzo-p- dioxin (1,2,3,4,6,7,8-HpCDD); 1,2,3,4,6,7,8-Heptachlorodibenzofuran (1,2,3,4,6,7,8-HpCDF); 1,2,3,4,7,8,9- Heptachlorodibenzofuran (1,2,3,6,7,8,9-HpCDF); HxCDDs (All Hexachlorodibenzo-p-dioxins); HxCDFs (All Hexachlorodibenzofurans); PeCDDs (All Pentachlorodibenzo-p-dioxins); OCDD (1,2,3,4,6,7,8,9- Octachlorodibenzo-p-dioxin); OCDF (1,2,3,4,6,7,8,9- Octachlorodibenzofuran); PeCDFs (All Pentachlorodibenzofurans); TCDDs (All Tetrachlorodibenzo-p-dioxins); TCDFs (All Tetrachlorodibenzofurans)
          
          
            K175
            mercury
          
          
            K176
            arsenic, lead
          
          
            K177
            antimony
          
          
            K178
            thallium
          
          
            K181
            Aniline, o-anisidine, 4-chloroaniline, p-cresidine, 2,4-dimethylaniline, 1,2-phenylenediamine, 1,3-phenylenediamine

#### Regulation .24 Hazardous Constituents.

*COMAR 26.13.02.24*

For the purposes of this regulation, “hazardous constituent” means any of the substances listed in Appendix VIII of 40 CFR Part 261.

#### Regulation .25 Wastes Excluded from COMAR 26.13.02.16 and COMAR 26.13.02.17

*COMAR 26.13.02.25*

Wastes identified in Appendix IX to 40 CFR Part 261, which the EPA has excluded from the lists of hazardous waste in 40 CFR Part 261, Subpart D, are considered to have been excluded from the list of hazardous waste from nonspecific sources in Regulation .16 of this chapter and the list of hazardous waste from specific sources in Regulation .17 of this chapter.

#### Regulation .26 Wastes Excluded Under COMAR 26.13.01.04A and C.

*COMAR 26.13.02.26*

A. Wastes with State Hazardous Waste Number MD02.

  (1) In accordance with COMAR 26.13.01.04A and C, wastes that are residuals from the decontamination of the chemical warfare agents identified in §A(2) of this regulation that would otherwise be assigned State Hazardous Waste Number MD02 are excluded from the list of hazardous wastes in Regulation .18 of this chapter if the decontamination:

    (a) Has been conducted according to the protocol presented in §4.2 of the report “To Support the Delisting of Decontaminated Liquid Chemical Surety Materials as Listed Hazardous Waste from Specific Sources COMAR 10.51.02.16 and 10.51.02.16-1 K991—K999 and Residues from K991—K999” (U.S. Army Chemical Research, Development and Engineering Center, Aberdeen Proving Ground, Maryland, 1988), which is incorporated by reference; and

    (b) Is performed at a facility located at the U.S. Army Aberdeen Proving Ground that is operated by:

      (i) The Edgewood Chemical Biological Center or a successor organization; or

      (ii) The Medical Research Institute of Chemical Defense or a successor organization. (Agency note: The document cited in §A(1)(a) of this regulation was subsequently retitled and republished without other changes by the U. S. Army Chemical Research, Development and Engineering Center as “Support for the Delisting of Decontaminated Liquid Chemical Surety Materials as Listed Hazardous Waste from Specific Sources (State) MD02 in COMAR 10.51.02.16-1”, Report Number CRDEC-TR-009, November 1988.)

  (2) The exclusion of §A(1) of this regulation is applicable to residuals from the decontamination of the following chemical warfare agents:

    (a) Ethyl dimethylamidocyanophosphate, also known by the common names GA and Tabun and the following alternate chemical names:

      (i) Ethyl N,N dimethylphosphoramidocyanidate; and

      (ii) Dimethylamidoethoxyphosphoryl cyanide;

    (b) Isopropyl methanefluorophosphonate, also known by the common names GB and Sarin and the following alternate chemical names:

      (i) Isopropyl methylphosphonofluoridate; and

      (ii) Isopropyl ester of methylphosphonofluoridic acid;

    (c) 3,3-dimethyl-n-but-2-yl methylphosphonofluoridate, also known by the common names GD and Soman and the following alternate chemical names:

      (i) Pinacolyl methylphosphonofluoridate;

      (ii) 1,2,2-trimethylpropyl methylphosphonofluoridate; and

      (iii) Pinacoloxymethylphosphoryl fluoride;

    (d) O-ethyl S-(2-diisopropyl-aminoethyl) methylphosphonothioate, also known by the common name VX;

    (e) Chlorovinylarsine dichloride, also known by the common names L and Lewisite, and the following alternate chemical names:

      (i) Dichloro (2-chlorovinyl) arsine; and

      (ii) 2-chlorovinyldichloroarsine; and

    (f) Bis(2-chloroethyl) sulfide, also known by the common names sulfur mustard, H, HS, and HD.

B. Wastes with State Hazardous Waste Number MD03. In accordance with COMAR 26.13.01.04A and C, wastes that are residuals from the decontamination and treatment of the waste chemical warfare agents having Hazardous Waste Numbers K991—K995 or K997 that would otherwise be assigned State Waste Hazardous Number MD03 are excluded from the list of hazardous wastes in Regulation .18 of this chapter if the decontamination and treatment:

  (1) Has been conducted according to the protocol presented in §4.2 of the report “To Support the Delisting of Decontaminated Liquid Chemical Surety Materials as Listed Hazardous Waste from Specific Sources COMAR 10.51.02.16 and 10.51.02.16-1 K991—K999 and Residues from K991—K999” (U.S. Army Chemical Research, Development and Engineering Center, Aberdeen Proving Ground, Maryland, 1988), which is incorporated by reference; and

  (2) Is performed at a facility located at the U.S. Army Aberdeen Proving Ground that is operated by the Edgewood Chemical Biological Center or a successor organization. (Agency note: The document cited in §B(1) of this regulation was subsequently retitled and republished without other changes by the U. S. Army Chemical Research, Development and Engineering Center as “Support for the Delisting of Decontaminated Liquid Chemical Surety Materials as Listed Hazardous Waste from Specific Sources (State) MD02 in COMAR 10.51.02.16-1”, Report Number CRDEC-TR-009, November 1988.)

C. HD Hydrolysate. In accordance with COMAR 26.13.01.04A and C, HD hydrolysate, the effluent from the chemical neutralization by a hydrolysis reaction of waste chemical warfare agent HD (Hazardous Waste Number K997), that would otherwise be assigned State Hazardous Waste Number MD03, is excluded from the list of hazardous wastes in Regulation .18 of this chapter if:

  (1) The HD hydrolysate is produced as a result of a hydrolysis reaction between HD and water in a low temperature, low pressure environment, that is, at a temperature on the order of 200 degrees Fahrenheit and a pressure on the order of 30 pounds per square inch absolute;

  (2) Analysis of a representative sample of the HD hydrolysate, using a method acceptable to the Secretary, demonstrates that the concentration of HD in the hydrolysate is nondetect with a method detection limit of 20 parts per billion or less; and

  (3) The HD hydrolysate is solely produced at the U.S. Army Aberdeen Proving Ground, Aberdeen Chemical Agent Neutralization Facility, Aberdeen Proving Ground, Maryland under:

    (a) A controlled hazardous substances treatment facility permit issued by the Department; or

    (b) An order issued under authority of Environment Article, §7-207(a), Annotated Code of Maryland.

D. Exclusion of Wastes Generated by Organizations Not Identified in §§A—C of this Regulation. A waste having State Hazardous Waste Number MD02 or MD03, that is generated by an organization at the U.S. Army Aberdeen Proving Ground not identified in §§A—C of this regulation, may be excluded from the list of hazardous wastes in Regulation .18 of this chapter if the generator of the waste:

  (1) Ensures that the waste will be generated from a treatment or decontamination process or will be subjected to a treatment or decontamination process that is identified in §§A—C of this regulation;

  (2) Provides the Secretary with a written notification that includes:

    (a) A statement that the generator believes that the waste should be excluded from the list of hazardous wastes in Regulation .18 of this chapter;

    (b) The identity of the generator and the facility where the waste will be generated, decontaminated, or treated; and

    (c) A description of how the waste will be generated, decontaminated or treated, and why the generator believes it should be excluded from the list of hazardous wastes in Regulation .18 of this chapter;

  (3) Provides the Secretary with additional information that the Secretary may consider necessary to evaluate the appropriateness of excluding the waste; and

  (4) Receives written approval of the exclusion from the Secretary.

### Chapter 03 — Standards Applicable to Generators of Hazardous Waste

**Authority:** Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 adopted as an emergency provision effective November 18, 1980 (7:25 Md. R. S-1); adopted permanently effective April 3, 1981 (8:7 Md. R. 642)

**Administrative History:** Regulations .01; .04A, D; .05D, E; .07B amended effective January 18, 1982 (9:1 Md. R. 20)

**Administrative History:** Regulations .01B; .02B; .04A, B, D; .05E; .06A—C; and .07A amended, and .01G and .04E adopted effective July 30, 1984 (11:15 Md. R. 1330)

**Administrative History:** Regulations .01E and .05E amended effective February 13, 1984 (11:3 Md. R. 202)

**Administrative History:** Regulations .01F, .04D, .06C, and .07A amended effective January 31, 1983 (10:2 Md. R. 110)

**Administrative History:** Regulation .05E amended effective August 12, 1985 (12:16 Md. R. 1607)

**Administrative History:** Chapter recodified from COMAR 10.51.03 to COMAR 26.13.03

**Administrative History:** Regulation .01B, D amended effective August 28, 1995 (22:17 Md. R. 1321)

**Administrative History:** Regulation .01G amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .01H and I adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .02A amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .04 amended effective April 18, 1988 (15:8 Md. R. 1009); September 11, 2006 (33:18 Md. R. 1507)

**Administrative History:** Regulation .04A, C amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .04A, D, E amended effective May 24, 1993 (20:10 Md. R. 853)

**Administrative History:** Regulation .05 amended effective September 11, 2006 (33:18 Md. R. 1507)

**Administrative History:** Regulation .05C amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .05E amended effective April 18, 1988 (15:8 Md. R. 1009); May 24, 1993 (20:10 Md. R. 853); September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .06A amended effective May 5, 1997 (24:9 Md. R. 659)

**Administrative History:** Regulation .06B amended effective April 18, 1988 (15:8 Md. R. 1009); December 23, 1991 (18:25 Md. R. 2759); August 28, 1995 (22:17 Md. R. 1321); May 5, 1997 (24:9 Md. R. 659)

**Administrative History:** Regulation .06C amended effective September 11, 2006 (33:18 Md. R. 1507)

**Administrative History:** Regulation .07A amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .07 repealed and new Regulations .07 and .07-1—.07-4 adopted effective August 28, 1995 (22:17 Md. R. 1321)

**Administrative History:** Regulation .08 repealed effective May 5, 1997 (24:9 Md. R. 659)

**Administrative History:** Chapter revised effective October 16, 2000 (27:20 Md. R. 1843)

**Administrative History:** Regulation .01B-1 adopted effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .01G amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .01J adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .02 amended effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .04 amended effective September 11, 2006 (33:18 Md. R. 1507)

**Administrative History:** Regulation .04A amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .05E amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .07 amended effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .07A amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .07-1 amended effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .07-2A amended effective September 11, 2006 (33:18 Md. R. 1507)

**Administrative History:** Regulation .07-2C amended effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .07-3 amended effective September 11, 2006 (33:18 Md. R. 1507)

**Administrative History:** Regulation .07-5 adopted effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Chapter revised effective May 3, 2021 (48:9 Md. R. 359)

**Administrative History:** Regulation .01A-2 amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .01D amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .01G amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .01K, L adopted effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .01-1B-1 adopted effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .02C amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .03-3E amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .03-4C amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .03-5C amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .03-7B amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .04 amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .05F adopted effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .05-4C amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .06B amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .06C amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .07 repealed and new Regulation .07 adopted effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulations .07-1—.07-3 repealed effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .07-4 amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulations .07-5 repealed effective January 13, 2022 (49:1 Md. R. 14)

#### Regulation .01 Purpose, Scope, and Applicability.

*COMAR 26.13.03.01*

A. These regulations establish standards for generators of hazardous waste, and include:

  (1) Requirements that must be met in order for a generator to qualify for exemptions from specified requirements of COMAR 26.13; and

  (2) Requirements that a generator must meet independently of those requirements that determine eligibility for a conditional exemption, with these independent requirements including:

    (a) Hazardous waste determination and record keeping requirements of Regulations .02, .02-1, and .02-2 of this chapter;

    (b) Determination of applicability of requirements of this chapter based on amounts of hazardous waste generated and amounts of hazardous waste accumulated, as specified in §§A-1 and A-2 of this regulation;

    (c) Requirements concerning EPA identification numbers and renotification in Regulations .03—.03-2 of this chapter;

    (d) Manifest requirements of Regulation .04 of this chapter;

    (e) Pre-transport requirements of Regulation .05 of this chapter;

    (f) Record keeping and reporting requirements of Regulation .06 of this chapter; and

    (g) Requirements of 40 CFR Part 262 Subpart H, concerning transboundary movements of hazardous waste for recovery and disposal.

A-1. To determine the applicability of a provision of this chapter that depends on the amount of hazardous waste generated per calendar month, a person shall use the criteria of COMAR 26.13.02.05A(2) and (3) in calculating the amount of hazardous waste generated.

A-2. Except as provided in §§J—L of this regulation, a person is subject to the requirements of this chapter if the person meets any of the following criteria:

  (1) Generates 100 kilograms or more of hazardous waste in a calendar month;

  (2) Accumulates, at any time, more than 100 kilograms of hazardous waste;

  (3) Generates in a calendar month or accumulates at any time more than 1 kilogram of acute hazardous waste as specified in COMAR 26.13.02.05C(1), (2), (6,) and (7);

  (4) Generates in a calendar month or accumulates at any time:

    (a) Any containers identified in COMAR 26.13.02.19C that are larger than 20 liters in capacity;

    (b) 10 kilograms or more of inner liners from containers identified in COMAR 26.13.02.19C; or

    (c) 100 kilograms or more of any residue or contaminated soil, waste, or other debris resulting from the cleanup of a spill into or onto any land or water of any acute hazardous waste listed in COMAR 26.13.02.16—.19.

A-3. Requirements for Maryland-defined Small Quantity Generators.

  (1) A person who does not meet any of the criteria in §A-2 of this regulation is referred to as a “Maryland-defined small quantity generator”.

  (2) A Maryland-defined small quantity generator is subject to the requirements of COMAR 26.13.02.05 rather than this chapter, except:

    (a) For the requirements of Regulations .05-3—.05-5 of this chapter, regarding episodic generation; and

    (b) As specified in COMAR 26.13.02.05;

  (3) A person's eligibility to operate under the requirements applicable to Maryland-defined small quantity generators under COMAR 26.13.02.05 may be determined on a month-to-month basis, based on the amounts of hazardous waste and acute hazardous waste that:

    (a) Are generated in a given month; and

    (b) Have been accumulated on site at any time during that month.

  (4) Renotification Requirements for Maryland-defined Small Quantity Generators. Except as provided in Regulation .03-1 of this chapter, a person in possession of an EPA identification number issued under Regulation .03B of this chapter is not required to notify the Department of a change in the person's generator status if the generator status changes as a result of the person either newly qualifying as a Maryland-defined small quantity generator or no longer qualifying as a Maryland-defined small quantity generator. However, if the person expects the new status to remain unchanged for an extended period, the person is encouraged to notify the Department of the change in status by completing EPA Form 8700-12 with current information and submitting the revised form to the Department.

B. A generator who treats, stores, or disposes of hazardous wastes on-site shall comply with the following sections of this chapter with regards to that waste:

  (1) Requirements identified in §A(2) of this regulation;

  (2) If applicable, Regulation .07-4 of this chapter for farmers;

  (3) Regulations .03-3—.03-10 of this chapter, concerning accumulation of hazardous waste; and

  (4) Applicable requirements of §§C—J of this regulation.

C. Any person who imports foreign hazardous waste into the State shall comply with the standards applicable to generators established in this chapter.

D. A farmer who generates waste pesticides which are hazardous wastes and who complies with all of the requirements of Regulation .07-4 of this chapter is not required to comply with other standards in this chapter or COMAR 26.13.05, 26.13.06, 26.13.07, or 26.13.09 with respect to these pesticides.

E. A person who generates a hazardous waste as defined by COMAR 26.13.02 is subject to the compliance requirements and penalties prescribed in Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland, if that person does not comply with the requirements of this chapter.

F. An owner or operator who initiates a shipment of hazardous waste from a treatment, storage, or disposal facility shall comply with the generator standards established in this chapter.

G. A generator of hazardous waste who treats, stores, or disposes hazardous waste on-site shall comply with the applicable standards and permit requirements of COMAR 26.13.05, 26.13.06, 26.13.07, and 26.13.09, but may be exempted from certain of these requirements under Regulation .03-4 of this chapter.

H. A generator subject to regulation under this chapter shall also comply with the “Emergency Procedures” requirements of COMAR 26.13.05.04G(4).

I. A generator subject to regulation under this chapter shall follow the notification requirements of Section 3010 of RCRA by complying with the requirements of Regulation .03A—C of this chapter, or, if applicable, Regulation .03F of this chapter.

J. Persons responding to an explosives or munitions emergency in accordance with the following are not required to comply with the standards of this chapter:

  (1) COMAR 26.13.07.01A; and

  (2) Any of the following:

    (a) COMAR 26.13.05.01A(3)(h)(iv);

    (b) COMAR 26.13.05.01D(5) and (6);

    (c) COMAR 26.13.06.01A(4)(h)(iv); or

    (d) COMAR 26.13.06.01A(5)(b) and (c).

K. A reverse distributor, as defined in COMAR 26.13.01.03B, is subject to COMAR 26.13.10.32—.49 instead of this chapter for the management of hazardous waste pharmaceuticals.

L. A healthcare facility, as defined in COMAR 26.13.01.03B:

  (1) Shall determine whether the healthcare facility is subject to the provisions of COMAR 26.13.10.32—.49 for the management of hazardous waste pharmaceutical based on:

    (a) The total hazardous amount of waste that the healthcare facility generates each calendar month, including both hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste; and

    (b) The criteria in COMAR 26.13.10.32E and F; and

  (2) Shall, if the healthcare facility is a very small quantity generator under federal regulations, as described in COMAR 26.13.03.01-1B, when counting all of the hazardous waste it generates in a calendar month, including both hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste, refer to COMAR 26.13.10.32D(1)(c) and (d) to determine the applicable requirements for managing the generator’s hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste.

#### Regulation .01-1 Federally-defined Hazardous Waste Generator Categories — Applicability in Maryland.

*COMAR 26.13.03.01-1*

A. Federal hazardous waste regulations in 40 CFR Parts 260—270 define and use the terms “very small quantity generator”, “small quantity generator”, and “large quantity generator”. This regulation:

  (1) Restates the definitions of the federally-defined hazardous waste generator categories;

  (2) Identifies certain requirements for which the applicability of the requirements to a Maryland generator of hazardous waste depends on the generator’s federally-defined hazardous waste generator category; and

  (3) Identifies certain reduced requirements that a Maryland generator of hazardous waste may take advantage of if the generator meets the federal definition of a small quantity generator.

B. Federal Categories for Hazardous Waste Generators. Under federal regulations at 40 CFR §260.10, a:

  (1) “Very small quantity generator” is a generator who generates less than or equal to the following amounts in a calendar month:

    (a) 100 kilograms (220 lbs) of nonacute hazardous waste;

    (b) 1 kilogram (2.2 lbs) of acute hazardous waste listed in 40 CFR §261.31 or 40 CFR §261.33(e); and

    (c) 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in 40 CFR §261.31 or 40 CFR §261.33(e);

  (2) “Small quantity generator” is a generator who generates that following amounts in a calendar month:

    (a) Greater than 100 kilograms (220 pounds) but less than 1,000 kilograms (2,200 pounds) of non-acute hazardous waste;

    (b) Less than or equal to 1 kilogram (2.2 pounds) of acute hazardous waste listed in 40 CFR §261.31 or 40 CFR §261.33(e); and

    (c) Less than or equal to 100 kilograms (220 pounds) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in 40 CFR §261.31 or 40 CFR §261.33(e);

  (3) “Large quantity generator” is a generator who generates any of the following amounts in a calendar month:

    (a) Greater than or equal to 1,000 kilograms (2200 pounds) of non-acute hazardous waste;

    (b) Greater than 1 kilogram (2.2 pounds) of acute hazardous waste listed in 40 CFR §261.31 or 40 CFR §261.33(e) of this chapter; or

    (c) Greater than 100 kilograms (220 pounds) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in 40 CFR §261.31 or 40 CFR §261.33(e).

B-1. Federal Generator Categories — Healthcare Facilities that Generate Hazardous Waste Pharmaceuticals.  To determine the applicable federally-defined hazardous waste generator category, a healthcare facility as defined in COMAR 26.13.01.03B shall refer to COMAR 26.13.10.32F.

C. A Maryland generator of hazardous waste shall:

  (1) Determine the applicable generator category under federal regulations using the procedures in 40 CFR §262.13, except that the generator shall:

    (a) Use the provisions of COMAR 26.13.02.05A(2) instead of the provisions of 40 CFR §262.13(c) in identifying waste that should not be counted in determining the federal generator category;

    (b) Exclude from the quantity of waste that determines the generator’s federal generator category any hazardous waste that is regulated as a hazardous waste under Maryland regulations but not federal regulations; and

    (c) Use the provisions of COMAR 26.13.02.05A(3)instead of the provisions of 40 CFR §262.13(d) in identifying the quantity of hazardous waste generated in a calendar month.

  (2) Use the federal generator category determined under §C(1) of this regulation for the purposes of:

    (a) Completing forms associated with:

      (i) Obtaining an EPA identification number under Regulation .03 of this chapter;

      (ii) Satisfying the renotification requirement of Regulation .03-1 of this chapter; and

      (iii) Reactivating an EPA identification number under Regulation .03-2 of this chapter;

    (b) Completing forms associated with the biennial report of hazardous waste activity required by Regulation .06B of this chapter; and

    (c) Determining eligibility for exemptions from certain requirements that are available to persons who qualify as a small quantity generator under federal regulations, as specified in §D of this regulation.

D. Exemptions from Certain Requirements Based on a Generator’s Federal Generator Category. A generator who qualifies as a small quantity generator under federal regulations, and who does not accept hazardous waste from off site for consolidation under the provisions of Regulation .03-11 of this chapter, is not required to comply with:

  (1) The requirement of Regulation .03-5D(1) of this chapter and COMAR 26.13.05.04D(2) regarding submission of copies of the contingency plan;

  (2) The requirement of Regulation .03-5E of this chapter to prepare and distribute a quick reference guide to the facility contingency plan;

  (3) The requirement of Regulation .03-6G(1) of this chapter that containers holding ignitable or reactive waste are to be located at least 15 meters (50 feet) from the facility property line;

  (4) The requirements of Regulations .03-6J and .03-7B(1)(d) of this chapter to comply with air emissions standards in 40 CFR Part 265 Subparts AA, BB, and CC; and

  (5) The closure notification requirements of regulation .05-2B of this chapter.

#### Regulation .02 Hazardous Waste Determination — Generator's Obligations.

*COMAR 26.13.03.02*

A. A person who generates a solid waste, as defined in COMAR 26.13.02.02:

  (1) Shall:

    (a) Make an accurate determination as to whether that waste is a hazardous waste, with an “accurate determination” being a determination that allows the person to determine the requirements that are applicable to the waste and the generator of the waste under the provisions of COMAR 26.13.01—26.13.10 and federal hazardous waste regulations; and

    (b) Take into account, when the determination required by §A(1)(a) of this regulation is made, changes in the properties of the waste that are known or likely to occur before the ultimate disposition of the waste due to:

      (i) Exposure of the waste to the environment; or

      (ii) Other factors;

  (2) Shall, in complying with §A(1) of this regulation, make the determination for each solid waste:

    (a) At the point of waste generation before any dilution, mixing, or other alteration of the waste occurs; and

    (b) At any time in the course of the management of the waste when:

      (i) The properties of the waste have, or may have, changed as a result of exposure of the waste to the environment or because of other factors; and

      (ii) The change or potential change to the properties of the waste may cause a change to the classification of the waste made under §A(2)(a) of this regulation;

  (3) May, subject to the requirements of §A(4) of this regulation, designate the solid waste to be a hazardous waste if the person:

    (a) Assumes that the solid waste is a hazardous waste without having made a formal determination following the procedures in Regulation .02-1 of this chapter; or

    (b) Has decided to voluntarily designate and manage the solid waste as a hazardous waste despite a determination, using the procedures in Regulation .02-1 of this chapter, that the waste does not have to be managed as a hazardous waste; and

  (4) Shall, if the person has made the assumption that the waste is hazardous, as specified in §A(3)(a) of this regulation:

    (a) Determine whether the waste is an acute hazardous waste, as specified in Regulation .02-1 of this chapter;

    (b) Comply with the record keeping requirements of Regulation .02-2 of this chapter, if applicable; and

    (c) Identify all hazardous wastes numbers that may be associated with the waste, in accordance with the requirements of §D(1) of this regulation, if applicable.

B. A person making the determination required by §A of this regulation shall:

  (1) Follow the procedures specified in Regulation .02-1 of this chapter in characterizing the waste; and

  (2) Unless the person qualifies as a Maryland-defined small quantity generator, comply with the record keeping requirements specified in Regulation .02-2 of this chapter.

C. If the result of the determination required by §A of this regulation is that the waste is a hazardous waste, the generator of the waste shall refer to COMAR 26.13.02, 26.13.05, 26.13.06, 26.13.09, and 26.13.10 for possible exclusions or restrictions pertaining to management of the specific waste.

D. A person who generates hazardous waste and who does not meet the criteria to be considered a Maryland-defined small quantity generator shall:

  (1) Identify, for each hazardous waste generated, all hazardous waste numbers and EPA hazardous waste numbers, as specified in COMAR 26.13.02.11—.19, that apply to the hazardous waste; and

  (2) Comply with the record keeping requirements of Regulation .02-2 of this chapter.

Agency Note: information from the complete determination of applicable hazardous waste numbers required by §D(1) of this regulation is needed in order to comply with the container marking requirements of Regulation .03-10 of this chapter.

#### Regulation .02-1 Hazardous Waste Determination — Procedures.

*COMAR 26.13.03.02-1*

A. This regulation specifies procedures that a person shall follow in determining whether a solid waste is a hazardous waste, and establishes record keeping requirements with respect to hazardous waste determinations.

B. In order to determine whether a solid waste is a hazardous waste, a person shall, in accordance with the requirements of §§C—D of this regulation:

  (1) Determine if the waste is excluded from regulation under COMAR 26.13.02.04—.04-5;

  (2) If the waste is not excluded from regulation under COMAR 26.13.02.04—.04-5:

    (a) Determine if the waste is listed as a hazardous waste in COMAR 26.13.02.15—.19; and

    (b) Determine whether the waste exhibits any of the characteristics of hazardous waste specified in COMAR 26.13.02.10—.14.

C. To determine if a waste is listed as a hazardous waste in COMAR 26.13.02.15—.19, a person shall:

  (1) Use knowledge of the waste to determine if the waste meets any of the listing descriptions in COMAR 26.13.02.10—.14; and

  (2) Ensure that the information that the person uses in making the determination is sufficient to result in an accurate characterization that can serve as the basis for determining the management standards that apply, such as information on:

    (a) The origin of the waste;

    (b) Waste composition;

    (c) The process that produced the waste;

    (d) The feedstock for the process from which the waste is derived; and

    (e) Other reliable and relevant information.

Agency Note: Even if the waste is listed as a hazardous waste, the generator still has an opportunity under 40 CFR 260.20 and 260.22 for a waste listed as hazardous by the federal government, and COMAR 26.13.01.04A and C for a Maryland-only listed waste, to demonstrate that the waste from the generator’s particular facility or operation does not meet the criteria for listing. However, the waste must be managed as a hazardous waste until a petition to delist the waste under these provisions is successful.

D. Determining Whether a Waste Exhibits a Characteristic of Hazardous Waste.

  (1) To determine whether a waste exhibits a characteristic of hazardous waste, a person shall:

    (a) Apply knowledge of the characteristics of the waste in accordance with §D(2) of this regulation;

    (b) Test the waste in accordance with §D(3) of this regulation; or

    (c) Use a combination of both application of knowledge of the waste and testing of the waste.

  (2) In using knowledge of waste characteristics as the basis for determining whether a waste exhibits any of the characteristics of hazardous waste defined in COMAR 26.13.02.10—.14, a person:

    (a) Shall apply knowledge of the hazard characteristics of the waste in light of the materials and the processes used to generate the waste;

    (b) Shall ensure that the information that the person uses in making the determination is sufficient to result in an accurate characterization that can serve as the basis for determining the management standards that apply, relying on such things as:

      (i) Process knowledge, such as information about the identities and properties of chemical feedstocks and other inputs to the production process and the transformations that occur as part of the process;

      (ii) Knowledge of products, by-products, and intermediates produced by the manufacturing process;

      (iii) Chemical or physical characteristics of wastes;

      (iv) Information on the chemical and physical properties of the chemicals used or produced by the process or otherwise contained in the waste;

      (v) Testing that illustrates the properties of the waste; or

      (vi) Other reliable and relevant information about the properties of the waste or its constituents; and

    (c) May use a test method other than a test method specified in COMAR 26.13.02.10—.14, or an equivalent test method approved by the Secretary under COMAR 26.13.01.04A and B, as part of the person’s knowledge if the person:

      (i) Understands that such tests, by themselves, do not provide definitive results; and

      (ii) Ensures that any testing that is performed is done on a representative sample as defined in COMAR 26.13.01.03B.

  (3) If available knowledge is insufficient to allow an accurate determination of whether a waste exhibits a characteristic of hazardous waste, a person required to characterize the waste shall:

    (a) Test the waste according to the applicable methods specified in COMAR 26.13.02.10—.14, or an equivalent test method approved by the Department under COMAR 26.13.01.04A and B; and

    (b) Perform the testing on a representative sample as defined in COMAR 26.13.01.03B.

  (4) The results from a properly performed test using a test method that is specified in COMAR 26.13.02.10—.14 are definitive for determining the regulatory status of the waste.

  (5) If a person who is required to characterize a waste concludes, based on the person’s knowledge of the characteristics of the waste, that the waste does not exhibit a characteristic of hazardous waste specified in COMAR 26.13.02.10—.14, but subsequent testing of a representative sample of the waste using a test method specified in COMAR 26.13.02.10—.14 shows the waste to exhibit a characteristic of hazardous waste, the person is subject to any liability that applies as a result of the person’s mischaracterization of the waste.

#### Regulation .02-2 Hazardous Waste Determination — Record Keeping Requirements.

*COMAR 26.13.03.02-2*

A. A person who generates hazardous waste and who does not meet the criteria to be considered a Maryland-defined small quantity generator shall maintain records that support the generator’s hazardous waste determinations, including records that identify whether a solid waste is a hazardous waste as defined by COMAR 26.13.02.03.

B. Record Retention Period.

  (1) A generator who is required under §A of this regulation to maintain records of a hazardous waste determination shall maintain the records for at least 3 years from the date that the waste was last sent to on-site or off-site treatment, storage, or disposal.

  (2) The period of record retention specified in §B(1) of this regulation is extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the Department.

C. A person required to maintain records under §A of this regulation shall ensure that the records:

  (1) Comprise the generator’s knowledge of the waste and support the generator’s determinations made in accordance with Regulation .02-1B—D of this chapter; and

  (2) Include, at a minimum, the following types of information:

    (a) The results of any tests, sampling, waste analyses, or other determinations made in accordance with Regulations .02 and .02-1 of this chapter;

    (b) Records documenting the tests and sampling referenced in §C(2)(a) of this regulation, and information on analytical methods used to demonstrate the validity and relevance of such tests;

    (c) Records that were consulted in order to determine the process by which the waste was generated, the composition of the waste, and the properties of the waste; and

    (d) Records that explain the basis for the knowledge that the generator relied on in determining whether a waste exhibits a characteristic of hazardous waste, in accordance with Regulation .02-1D of this chapter.

#### Regulation .03 EPA Identification Numbers — General Requirements for Generators.

*COMAR 26.13.03.03*

A. A generator may not treat, store, dispose of, transport, or offer for transportation, hazardous waste without having received an EPA identification number from the Department.

B. A generator who has not received an EPA identification number may obtain one by applying to the Department using EPA Form 8700-12 or another form specified by the Department.

C. Upon receiving a request for an EPA identification number, the Department will:

  (1) Assign an identification number to the generator; or

  (2) Inform the generator that an EPA identification number has previously been assigned to the site for which the generator is applying for a number, provide the previously assigned number to the generator, and instruct the generator to use the previously assigned number for the purposes of compliance with this chapter.

D. In completing EPA Form 8700-12, a generator:

  (1) Shall determine the generator's federally defined hazardous waste generator category as specified in Regulation .01-1B—C of this chapter; and

  (2) May elect to identify on the form as being in a more stringently regulated category of generator than is actually the case based on the generator's current rate of hazardous waste generation, such as identifying as a large quantity generator when the generator's current rate of generation corresponds to the small quantity generator category.

E. A generator may not offer the generator's hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received an EPA identification number.

F. A recognized trader may not arrange for import or export of hazardous waste without having received an EPA identification number from the Department.

G. Temporary EPA Identification Number.

  (1) A generator who is required to obtain an EPA identification number in order for a shipment of hazardous waste to be made from a particular location may apply to the Department for a temporary EPA identification number if the location has not previously been issued an EPA identification number or a temporary EPA identification number.

  (2) To obtain a temporary EPA identification number, a person shall contact the Department and provide the Department with any information that the Department considers to be relevant to the request for the temporary EPA identification number, including information on the site location, information about the generator, information about the waste, information about the person who will transport the waste, and information about the destination facility to which the waste will be sent.

  (3) If additional hazardous waste is generated at the site subsequent to the completion of shipment off site of the hazardous waste that necessitated issuance of a temporary EPA identification number for the site, the generator:

    (a) May not continue to use the temporary EPA identification number that had been issued for the site; and

    (b) Shall obtain an EPA identification number for the site as specified in §B of this regulation, unless the generator is otherwise excluded from the requirement to obtain an EPA identification number for the site.

#### Regulation .03-1 Renotification.

*COMAR 26.13.03.03-1*

A. Periodic Renotification Requirement. Periodically, except as specified in §B of this regulation, the hazardous waste generator or the owner or operator associated with a site for which an EPA identification number has been issued shall file a renotification with the Department to provide current information about the generator and the site, as specified in §§C and D of this regulation.

B. Exclusions. The renotification requirement of §A of this regulation does not apply with respect to a site:

  (1) With an EPA identification number that has been deactivated in accordance with Regulation .03-2 of this chapter, unless a person has initiated or resumed a hazardous waste activity at the site that requires an EPA identification number; or

  (2) For which only a temporary EPA identification number has been issued under Regulation .03G of this chapter.

C. Initial Renotification.

  (1) Applicability. Except as provided in §B of this regulation, this initial renotification requirement applies with respect to each site with an EPA identification number where:

    (a) A person qualified as a fully regulated generator of hazardous waste, as defined in COMAR 26.13.01.03B, at any time during the period running from January 1, 2011 through December 31, 2020; or

    (b) As of December 31, 2020, the hazardous waste generator status was identified in the U.S. Environmental Protection Agency’s RCRAInfo data base as a federally-defined small quantity generator or a large quantity generator.

  (2) Initial Renotification Requirement. For a site identified in §C(1) of this regulation, the owner, the operator, and the hazardous waste generator associated with the site shall jointly ensure that one of them satisfies the renotification requirement of §A of this regulation by either:

    (a) Having submitted a biennial report of hazardous waste activity for 2019; or

    (b) Submitting, to the Department, by September 1, 2021, a subsequent notification of hazardous waste activity using EPA Form 8700-12.

D. Subsequent Renotifications.

  (1) Applicability. Except as provided in §B of this regulation, a subsequent notification requirement applies with respect to each site with an EPA identification number where:

    (a) A person qualified as a fully regulated generator of hazardous waste, as defined in COMAR 26.13.01.03B, at any time during a 4-year period specified in §D(2) of this regulation; or

    (b) As of January 1 of the last calendar year of a 4-year period specified in §D(2) of this regulation, the hazardous waste generator status was identified in the U.S. Environmental Protection Agency’s RCRAInfo data base as a federally-defined small quantity generator or a large quantity generator.

  (2) Periods of Activity for Subsequent Renotifications. The subsequent renotification requirements of §D(1) and (3) of this regulation apply to the 4-year period that runs from September 1, 2021 to September 1, 2025 and to each successive 4-year period defined by adding whole number multiples of 4 years to these starting and ending dates.

  (3) Subsequent Renotification Requirements. For a site identified in §D(1) of this regulation, the owner, operator, and hazardous waste generator associated with the site shall jointly ensure that one of them satisfies the renotification requirement of §D(1) of this regulation by either:

    (a) Having submitted a biennial report of hazardous waste activity for the full odd-numbered year that falls in the 4-year period specified in §D(2) of this regulation, such as 2023 for the period September 1, 2021 to September 1, 2025; or

    (b) Submitting, to the Department, a subsequent notification of hazardous waste activity using EPA Form 8700-12 during the period that runs from January 1 to September 1 of the last calendar year of the 4-year period specified in in §D(2) of this regulation, such as 2025 for the period September 1, 2021 to September 1, 2025.

#### Regulation .03-2 . Deactivation and Reactivation of an EPA Identification Number.

*COMAR 26.13.03.03-2*

A. Deactivation at the Request of the Holder of an EPA Identification Number.

  (1) If, at a site that has been issued an EPA identification number, no hazardous waste activity that requires possession of an EPA identification number is being conducted, the owner or the operator of the site may request that the Department deactivate the EPA identification number.

  (2) To request deactivation of an EPA identification number, a person shall:

    (a) Complete EPA Form 8700-12 with current information;

    (b) Indicate that the form is being submitted in order to deactivate the specific EPA identification number associated with the site because no hazardous waste activities that require an EPA identification number are being conducted at the site; and

    (c) Submit the completed form to the Department.

  (3) An EPA identification number that has been deactivated:

    (a) Will remain associated with the location to which it was assigned for tracking purposes in State and federal databases to indicate that hazardous waste activity has occurred at the site; and

    (b) Shall be reactivated in accordance with §C of this regulation if any activities that require an EPA identification number are conducted at the site subsequent to the deactivation.

B. Deactivation on the Initiative of the Department. The Department may deactivate an EPA identification number on the Department’s own initiative if the Department determines that no activity that requires an EPA identification number is being conducted at the location associated with the EPA identification number, and no such activity is likely to be conducted for the foreseeable future.

C. Reactivation. If a person initiates or resumes an activity that requires possession of an EPA identification number at a site at which the EPA identification number has been deactivated, the person shall request that the EPA identification number be reactivated by:

  (1) Completing EPA Form 8700-12 with current information;

  (2) Indicating on the form that the form is being submitted in order to reactivate the specific EPA identification number associated with the site; and

  (3) Submitting the completed form to the Department.

#### Regulation .03-3 Satellite Accumulation Areas.

*COMAR 26.13.03.03-3*

A. Applicability.

  (1) This regulation establishes conditions under which a person may accumulate a limited quantity of hazardous waste in containers at or near the point of generation of the waste without having to:

    (a) Manage the area where the waste is being accumulated under the hazardous waste accumulation requirements of Regulations .03-4—.03-10 of this chapter, except as otherwise specified in this regulation;

    (b) Obtain a CHS permit issued under COMAR 26.13.07 for the area in which the hazardous waste is being accumulated; or

    (c) Qualify for interim status, as defined in COMAR 26.13.01.03B, with respect to the area where the hazardous waste is being accumulated.

  (2) A hazardous waste management area referred to in §A(1) of this regulation is known as a satellite accumulation area.

B. Eligible Locations. A location is only eligible to be used as a satellite accumulation area for hazardous waste if the location is:

  (1) At or near a point of generation where the waste initially accumulates; and

  (2) Under the control of the operator of the process generating the waste.

C. Satellite Accumulation Area Waste Removal Triggers.

  (1) If a person accumulates more than the following amounts of hazardous waste in a satellite accumulation area, the person shall take the actions specified in §D of this regulation with respect to that waste:

    (a) 55 gallons of nonacute hazardous waste; or

    (b) Acute hazardous waste in excess of:

      (i) 1 quart of liquid acute hazardous waste;

      (ii) Either 1 kilogram of solid acute hazardous waste or 1 quart of solid acute hazardous waste, at the discretion of the person who is accumulating the waste; or

      (iii) 1 kilogram of any combination of solid and liquid acute hazardous waste.

  (2) If a waste removal trigger has been reached in a satellite accumulation area for nonacute hazardous waste but not for acute hazardous waste, or vice versa, the actions specified in §D of this regulation are only required for the waste for which the waste removal trigger has been exceeded.

D. Actions Required if a Waste Removal Trigger is Exceeded.

  (1) The requirements of this section apply separately to containers of acute hazardous waste and containers of nonacute hazardous waste.

  (2) Upon accumulation in a satellite accumulation area of an amount of hazardous waste that exceeds a quantity specified in §C(1) of this regulation, the generator of the waste shall:

    (a) Immediately mark each container of hazardous waste that is contributing to the exceedance with the date on which the exceedance occurred; and

    (b) If the generator begins using an additional container for the accumulation of hazardous waste in the satellite accumulation area, contributing to the exceedance of the waste removal trigger, before the actions required by §D(3) of this regulation are taken, the generator shall mark the container with the date identified in §D(2)(a) of this regulation.

  (3) Not later than the end of the third day after the date of exceedance identified in §D(2)(a) of this regulation, the generator shall either:

    (a) Begin operating the satellite accumulation area as a hazardous waste accumulation area in accordance with the requirements of Regulation .03-4 of this chapter; or

    (b) Remove all waste required to have been marked with the date of exceedance from the satellite accumulation area and transfer it to:

      (i) A hazardous waste accumulation area operated in accordance with the requirements of Regulation .03-4 of this chapter;

      (ii) An on-site interim status or permitted hazardous waste treatment, storage, or disposal facility; or

      (iii) An off-site designated facility authorized to accept the waste.

E. Management Standards.

  (1) The generator of a hazardous waste that is being managed in a satellite accumulation area shall ensure that the waste is managed in accordance with the requirements of this section. If the generator fails to do so, then, during the period of noncompliance, the generator will lose the exemption from the requirement to have a CHS permit or interim status, and may be subject to enforcement action for operating a CHS facility without a permit or interim status authorization.

  (2) Container Standards.

    (a) The generator shall use a container made of or lined with materials that will not react with, and are otherwise compatible with, the hazardous waste to be accumulated, so that the ability of the container to contain the waste is not impaired.

    (b) If a container of hazardous waste in a satellite accumulation area is not in good condition, or if it begins to leak, the generator shall immediately:

      (i) Transfer the hazardous waste from the container to a container that is in good condition and that does not leak; or

      (ii) Transfer the hazardous waste to a hazardous waste accumulation area operated in compliance with the requirements of Regulation .03-4 of this chapter.

  (3) Special Standards for Incompatible Wastes. A person:

    (a) May not place incompatible wastes, or incompatible wastes and materials, examples of which are found in COMAR 26.13.05.24, in the same container unless the requirements of COMAR 26.13.05.02H(2) are met;

    (b) May not place hazardous waste in an unwashed container that previously held an incompatible waste or material unless the requirements of COMAR 26.13.05.02H(2) are met; and

    (c) Shall ensure that a container that holds hazardous waste that is incompatible with any waste or other materials accumulated nearby in other containers is separated from the other materials or protected from them by any practical means.

  (4) A container holding hazardous waste shall be kept closed at all times during accumulation except when:

    (a) Adding, removing, or consolidating waste; or

    (b) Temporary venting of the container is necessary:

      (i) For the proper operation of equipment; or

      (ii) To prevent dangerous situations, such as the buildup of extreme pressure.

  (5) The generator shall mark or label a container that is being used to accumulate hazardous waste with

    (a) The words “Hazardous Waste”; and

    (b) An indication of the hazards of the contents of the container, with the marking or label communicating the hazards by:

      (i) Listing the hazardous waste characteristic or characteristics that the waste exhibits;

      (ii) Providing hazard communication information consistent with the U.S. Department of Transportation requirements at 49 CFR Part 172 Subpart E (labeling) or Subpart F (placarding);

      (iii) Providing a hazard statement or pictogram consistent with the U.S. Occupational Health and Safety Administration Hazard Communication Standard at 29 CFR §1910.1200;

      (iv) Providing a chemical hazard label consistent with the National Fire Protection Association code 704; or

      (v) Some other method that is at least as effective as any of the methods listed in §E(5)(b)(i)—(iv) of this regulation.

  (6) The generator shall ensure that the satellite accumulation area is operated in accordance with the:

    (a) Preparedness and prevention requirements of Regulation .03-5C of this chapter; and

    (b) Contingency plan and emergency procedure requirements of Regulation .03-5D and E of this chapter.

#### Regulation .03-4 Accumulation of Hazardous Waste — Exemption from Permit Requirement.

*COMAR 26.13.03.03-4*

A. General.

  (1) Except as specified in §A(2) of this regulation, this regulation and Regulations .03-5—.03-11 of this chapter, Regulation .05E of this chapter, and Regulations .05-1—.05-2 of this chapter specify requirements with which a person subject to this chapter shall comply in order for the person to be allowed to temporarily accumulate hazardous waste on-site without having met the requirement to either:

    (a) Obtain a CHS permit issued under COMAR 26.13.07 for the unit in which the hazardous waste is being managed; or

    (b) Qualify for interim status, as defined in COMAR 26.13.01.03B, with respect to the unit in which the hazardous waste is being managed.

  (2) The requirements specified in this regulation and Regulations .03-5—.03-11 of this chapter, Regulation .05E of this chapter, and Regulations .05-1—.05-2 of this chapter do not apply to the management of hazardous waste:

    (a) In a satellite accumulation area in accordance with the requirements of Regulation .03-3 of this chapter; or

    (b) In accordance with the alternative standards for episodic generation events in Regulations .05-3—.05-5 of this chapter.

  (3) A person who fails to comply with a requirement of this regulation, Regulations .03-5—.03-11 of this chapter, Regulation .05E of this chapter, or Regulations .05-1—.05-2 of this chapter while accumulating hazardous waste:

    (a) Shall, while out of compliance, lose the exemption from the requirement to have a CHS permit or be operating under interim status authority; and

    (b) May be subject to enforcement action for operating a CHS facility without a permit or having qualified for interim status.

  (4) A person who is accumulating hazardous waste without a permit or without having qualified for interim status under the exemption provided by this regulation shall, before the time limit specified in §C of this regulation is exceeded:

    (a) Ship the waste to an off-site facility permitted or authorized to accept it;

    (b) Place the waste in an on-site permitted hazardous waste management unit; or

    (c) Otherwise arrange for final disposition of the waste in accordance with State and federal regulations regarding hazardous waste management.

B. Types of Waste Management Units Authorized for Accumulation of Hazardous Waste. A person may accumulate hazardous waste under the exemption from permit requirements provided by this regulation:

  (1) In containers, as specified in Regulation .03-6 of this chapter;

  (2) In tanks, as specified in Regulation .03-7 of this chapter;

  (3) On drip pads, as specified in Regulation .03-8 of this chapter, if the waste is drippage from a wood preserving process, precipitation, or surface water run-on; or

  (4) In a containment building, as specified in Regulation .03-9 of this chapter.

C. Limits on Time of Accumulation of Hazardous Waste. A person may accumulate a hazardous waste on site for no more than 90 days, unless:

  (1) The generator has been granted an extension on accumulation time by the Department, in accordance with §D of this regulation;

  (2) The waste is being managed in a satellite accumulation area under the provisions of Regulation .03-3 of this chapter;

  (3) The waste is being managed in a container or a tank by a person who qualifies for an additional 90 days of accumulation time under the provisions of §D(2) of this regulation, for a maximum accumulation limit of 180 days, by being a person who:

    (a) Either:

      (i) Meets the federal definition of a small quantity generator; or

      (ii) Does not qualify as a Maryland-defined small quantity generator under Regulation .01A-3(1) of this chapter, and meets the federal definition of a very small quantity generator;

    (b) Never accumulates more than:

      (i) 1,000 kilograms of hazardous waste; and

      (ii) 1 kilogram of acute hazardous waste; and

    (c) Does not receive hazardous waste from an off-site generator under the provisions of Regulation .03-11 of this chapter;

  (4) The waste is being managed in a unit that has:

    (a) Been approved for management of the waste under the terms of a CHS permit; or

    (b) Qualified for interim status; or

  (5) The waste is being managed under the provisions for an episodic generation event in Regulations .05-3—.05-5 of this chapter.

D. Allowance for Accumulation of Hazardous Waste for Additional Periods of Time.

  (1) The Department may grant an extension of up to 30 days to the 90-day accumulation time limit of §C of this regulation or the 180 day accumulation time limit of §D(2) of this regulation if the Department determines that an extension is necessary due to temporary, unforeseen, and uncontrollable circumstances.

  (2) A generator who meets the criteria in §C(3) of this regulation may accumulate hazardous waste for up to 90 days beyond the 90 day limit specified in §C of this regulation.

E. In order to be eligible for the exemption from permitting and interim status requirements with respect to accumulation of hazardous waste identified in §A of this regulation, a person shall comply with all requirements of this regulation and Regulations .03-5—.03-11 of this chapter, Regulation .05E of this chapter, and Regulations .05-1—.05-2 of this chapter.

#### Regulation .03-5 General Requirements for Persons Accumulating Hazardous Waste.

*COMAR 26.13.03.03-5*

A. Except as provided in Regulation .03-4A(2) of this chapter, a person who is accumulating hazardous waste without authorization provided by a permit or interim status, or under the exclusions applicable to Maryland-defined small quantity generators shall comply with all provisions of this regulation.

B. Personnel Training. The generator of a hazardous waste that is being accumulated:

  (1) Shall:

    (a) Implement a personnel training program that meets the requirements of COMAR 26.13.05.02G, as modified by §B(1)(b), (2) and (3) of this regulation; and

    (b) Ensure that the training program is designed to teach facility personnel how to:

      (i) Perform their duties in a way that ensures compliance with State and federal regulations regarding hazardous waste management; and

      (ii) Respond effectively and appropriately to emergencies that may involve hazardous waste;

  (2) May implement the personnel training program required by §B(1) of this regulation through a program of online training, classroom instruction, on-the-job training, or all of these; and

  (3) Is not required to provide separate emergency response training to facility personnel who receive emergency response training in accordance with the requirements of 29 CFR §1910.120(p)(8) and 29 CFR §1910.120(q) if the overall training program otherwise meets the requirements of §B(1) and (2) of this regulation.

C. Preparedness and Prevention.

  (1) Except as provided in §C(2) of this regulation, a person subject to this regulation:

    (a) Shall:

      (i) Ensure that, for each area at a site where hazardous waste is generated or accumulated, the requirements of COMAR 26.13.05.03 for preparedness and prevention at a hazardous waste facility are met; and

      (ii) Maintain records documenting arrangements made with local emergency response agencies required by COMAR 26.13.05.03H, or, in cases where such arrangements do not exist, documenting attempts that were made to make such arrangements; and

    (b) May determine the most appropriate locations within the facility to locate equipment necessary to prepare for and respond to emergencies.

  (2) A person is not required to have a particular kind of equipment specified in COMAR 26.13.05.03C at a given location at a site if the person can demonstrate to the Department that, for safety reasons, the location does not lend itself to having the particular kind of equipment.

D. Contingency Plan and Emergency Procedures.

  (1) Except as provided in §D(2) of this regulation, a person subject to this regulation shall comply with the requirements of COMAR 26.13.05.04B—G.

  (2) A hazardous waste generator is exempt from the requirement of COMAR 26.13.05.04D(2) regarding submission of copies of the contingency plan, and the requirements of §E of this regulation regarding a quick reference guide for emergency responders if the generator:

    (a) Meets the federal definition of a small quantity generator; and

    (b) Does not receive hazardous waste from an off-site Maryland-defined small quantity generator under the provisions of Regulation .03-11 of this chapter.

  (3) In addition to submitting a copy of the contingency plan to the persons identified in COMAR 26.13.05.04D(2), the generator may also submit the plan to a local emergency planning committee, as appropriate.

E. Quick Reference Guide for Emergency Responders.

  (1) Except for persons identified in §D(2) of this regulation, a generator shall, by the deadline specified in §E(3) of this regulation, submit a quick reference guide for emergency responders that meets the requirements of this section.

  (2) The generator shall submit the quick reference guide to:

    (a) All local emergency responders who may be called upon to provide emergency services, such as police departments, fire departments, hospitals, and State and local emergency response teams; or

    (b) As appropriate, a local emergency planning committee.

  (3) Deadlines for Submission.

    (a) A person who was accumulating hazardous waste under the provisions of Regulation .03-4 of this chapter before December 1, 2021 shall distribute the quick reference guide in accordance with §E(1) of this regulation when the generator first amends the generator’s contingency plan after December 1, 2021; and

    (b) A person who begins accumulating hazardous waste under the provisions of Regulation .03-4 of this chapter on or after December 1, 2021 shall have distributed the quick reference guide before having begun the accumulation of hazardous waste.

  (4) The generator shall include the following in the quick reference guide:

    (a) Identification, in layman’s terms, of the types or names of hazardous wastes being managed, such as “toxic paint waste”, “spent ignitable solvent”, or “corrosive acid”;

    (b) The maximum amount of hazardous waste that may be present at any time;

    (c) Identification of any hazardous waste for which an exposure to the waste would require unique or special treatment by medical or hospital staff;

    (d) A map of the facility that shows where hazardous wastes are generated, accumulated, and treated, and routes for accessing these wastes;

    (e) A street map that shows the location of the facility in relation to surrounding businesses, schools, and residential areas, with sufficient detail to allow emergency response personnel to determine how best to:

      (i) Get to the facility; and

      (ii) Evacuate citizens and workers;

    (f) The locations and capacities of sources of water supply, such as fire hydrants and their flow rates;

    (g) Identification of on-site emergency notification systems, such as smoke alarms or a fire alarm that rings off-site; and

    (h) The name of each emergency coordinator and the telephone number at which each emergency coordinator can be reached at any time, or, if the facility continuously has an emergency coordinator on duty, the telephone number at which the on-duty emergency coordinator can be reached.

  (5) Revisions. The generator shall:

    (a) Update, if necessary, the quick reference guide to the contingency plan whenever the generator amends the contingency plan; and

    (b) Submit the revised contingency plan and quick reference guide to the persons identified in §E(2) of this regulation.

F. Status of Recovered Material Following an Emergency. Unless the generator can demonstrate, in accordance with COMAR 26.13.02.03C and D and COMAR 26.13.02.04-1 that material recovered following an emergency is not a hazardous waste, then the recovered material is a newly generated hazardous waste, and the generator shall manage the waste in accordance with all applicable requirements and conditions of this chapter, COMAR 26.13.04, and COMAR 26.13.06.

#### Regulation .03-6 Requirements for Accumulation of Hazardous Waste in Containers.

*COMAR 26.13.03.03-6*

A. Except as provided in §B of this regulation, a hazardous waste generator who is accumulating hazardous waste in a container without authorization provided by a permit or interim status shall comply with all provisions of this regulation and the requirements of Regulation .03-10 of this chapter.

B. The requirements of this regulation do not apply to a container being managed in accordance with the requirements for satellite accumulation areas in Regulation .03-3 of this chapter.

C. Condition of Containers. If a container holding hazardous waste is not in good condition, or if a container holding hazardous waste begins to leak, the generator shall immediately:

  (1) Transfer the hazardous waste from the container to a container that is in good condition; or

  (2) Manage the waste in some other way that complies with the requirements identified in Regulation .03-4 of this chapter.

D. Compatibility of Waste with Container. The generator shall use a container made of or lined with materials that do not react with, and are otherwise compatible with, the hazardous waste to be stored, so that the ability of the container to contain the waste is not impaired.

E. Management of Containers. The generator shall ensure that a container holding hazardous waste:

  (1) Is always closed during storage, except when it is necessary to add or remove waste; and

  (2) Is not opened, handled, or stored in a manner that may rupture the container or cause it to leak.

F. Inspections. The generator shall:

  (1) Inspect each area where a container is stored, at least weekly, looking for leaks and for deterioration of containers and the containment system caused by corrosion or other factors; and

  (2) Maintain an inspection log or summary in accordance with the following:

    (a) The log or summary documents inspections performed in accordance with §F(1) of this regulation;

    (b) The log or summary includes the date and time of each inspection, the name of the inspector, a notation of the observations made, and the date and nature of any repairs made or other remedial actions taken; and

    (c) The generator keeps the log on file for a minimum of 3 years from the date of inspection.

G. Special Conditions for Accumulation of Ignitable Waste and Reactive Waste. The generator shall:

  (1) Ensure that all containers holding ignitable waste or reactive waste are located at least 15 meters (50 feet) from the facility’s property line unless the generator:

    (a) Has obtained a written approval from the authority having jurisdiction over the local fire code allowing ignitable or reactive waste to be accumulated within the restricted area; or

    (b) Qualifies for the exemption from this requirement under Regulation .01-1D(3) of this chapter that is available to certain persons who qualify as a federally-defined small quantity generator;

  (2) Maintain a record of the written approval required by §G(1)(a) of this regulation for as long as the ignitable or reactive waste is accumulated in the otherwise-restricted area; and

  (3) Take precautions to prevent accidental ignition or reaction of ignitable or reactive waste by complying with the requirements of COMAR 26.13.05.03G.

H. Special Conditions for Accumulation of Incompatible Wastes. The generator shall comply with the requirements of COMAR 26.13.05.09G.

I. Containment. The generator shall ensure that each area in which hazardous waste is being accumulated in containers meets the requirements of COMAR 26.13.05.09H.

J. Air Emission Standards. The generator shall comply with all applicable requirements of Subparts AA, BB, and CC of 40 CFR Part 265 unless the generator qualifies for the exemption that is available under Regulation .01-1D(4) of this chapter to certain persons who qualify as a federally-defined small quantity generator.

#### Regulation .03-7 Requirements for Accumulation of Hazardous Waste in Tanks.

*COMAR 26.13.03.03-7*

A. A hazardous waste generator who is accumulating hazardous waste in a tank without authorization provided by a permit or interim status shall comply with all provisions of this regulation and the requirements of Regulation .03-10B of this chapter.

B. A person subject to this regulation shall:

  (1) Comply with the requirements of:

    (a) COMAR 26.13.05.10A and C—E, .10-1, .10-2, .10-6A, and COMAR 26.13.06.18D(1)—(3);

    (b) COMAR 26.13.05.10-3B, except that the person need not obtain approval by the Department of the written assessment required by COMAR 26.13.05.10-3B(1) before managing hazardous waste in the tank system;

    (c) COMAR 26.13.05.10-4; and

    (d) All applicable requirements of Subparts AA, BB, and CC of 40 CFR Part 265 unless the generator qualifies for the exemption that is available under Regulation .01-1D(4) of this chapter to certain persons who qualify as a federally-defined small quantity generator.

  (2) Inspect overfill controls at least once each operating day;

  (3) Maintain an inspection log or summary in accordance with the following:

    (a) The log or summary documents inspections performed in accordance with §B(2) of this regulation and COMAR 26.13.05.10D;

    (b) The log or summary includes the date and time of each inspection, the name of the inspector, a notation of the observations made, and the date and nature of any repairs made or other remedial actions taken; and

    (c) The generator keeps the log on file for a minimum of 3 years from the date of inspection;

  (4) Use inventory logs, monitoring equipment, or other records to demonstrate that:

    (a) If using a batch process, hazardous waste has been emptied within 90 days of first entering the tank or by an alternate deadline established under Regulation .03-4C(1) or C(3) of this chapter; and

    (b) If using a continuous flow process, the volumes of hazardous waste that are estimated to be entering the tank each day are exiting the tank within 90 days of first entering the tank or by an alternate deadline established under Regulation .03-4C(1) or C(3) of this chapter;

  (5) Keep inventory logs or records with the information required by §B(4) of this regulation on site and available for inspection;

  (6) Submit to the Department, by the deadline specified in §B(7) of this regulation, the following information for each tank being used to accumulate hazardous waste:

    (a) Date of installation of the tank, or, if the date of installation is unknown, the age of the facility;

    (b) Tank capacity;

    (c) Secondary containment capacity;

    (d) Whether the tank is an above-ground tank, on-ground tank, in-ground tank, or underground tank;

    (e) For underground tanks, whether the tank can be entered for inspection; and

    (f) Waste code of each waste managed in the tank; and

  (7) Provide the information required by §B(6) of this regulation by the following deadlines:

    (a) For an existing tank system, as defined in COMAR 26.13.01.03B by January 1, 1994;

    (b) For a new tank system, as defined in COMAR 26.13.01.03B, before the tank is used to manage hazardous waste.

#### Regulation .03-8 Requirements for Accumulation of Hazardous Waste on Drip Pads.

*COMAR 26.13.03.03-8*

A. A hazardous waste generator who is accumulating hazardous waste on a drip pad without authorization provided by a permit or interim status shall comply with all provisions of this regulation.

B. If hazardous waste is placed on a drip pad, the generator shall:

  (1) Manage the waste in accordance with the requirements of COMAR 26.13.05.17-1—.17-4;

  (2) Remove all wastes from the drip pad at least once every 90 days;

  (3) Manage any waste removed from the drip pad by:

    (a) Accumulating the waste for no more than 90 days in containers, tanks, or a containment building in accordance with the requirements of Regulation .04-1 of this chapter;

    (b) Managing the waste in accordance with the requirements for satellite accumulation areas in Regulation .03-3 of this chapter;

    (c) Shipping the waste to an off-site facility permitted or authorized to accept it;

    (d) Placing the waste in an on-site permitted hazardous waste management unit; or

    (e) Otherwise arranging for final disposition of the waste in accordance with State and federal regulations regarding hazardous waste management.

  (4) Maintain, at the facility, the following records readily available for inspection:

    (a) A written description of procedures that are followed to ensure that all wastes are removed from the drip pad, the sump, and the collection system at least once every 90 days; and

    (b) Documentation, for each waste removal, of the date, the time, and the quantity of waste removed from the drip pad, the sump, and the collection system; and

  (5) Notify the Department in writing of the intent to close the drip pad at least 45 days before closure begins.

#### Regulation .03-9 Requirements for Accumulation of Hazardous Waste in Containment Buildings.

*COMAR 26.13.03.03-9*

A. A hazardous waste generator who is accumulating hazardous waste in a containment building without authorization provided by a permit or interim status shall comply with all provisions of this regulation.

B. If hazardous waste is placed in a containment building, the generator shall:

  (1) Manage the waste in accordance with the requirements of COMAR 26.13.05.18—.18-3;

  (2) Label the containment building with the words “Hazardous Waste” in a conspicuous place easily visible to employees, visitors, emergency responders, waste handlers, and other persons on site;

  (3) Provide, in a conspicuous place, a label or signage that:

    (a) Indicates the hazards of the waste that is being accumulated;

    (b) Communicates the hazards associated with the waste by:

      (i) Listing the hazardous waste characteristic or characteristics that the waste exhibits;

      (ii) Providing hazard communication information consistent with the U.S. Department of Transportation requirements at 49 CFR Part 172 Subpart E (labeling) or Subpart F (placarding);

      (iii) Providing a hazard statement or pictogram consistent with the U.S. Occupational Health and Safety Administration Hazard Communication Standard at 29 CFR §1910.1200;

      (iv) Providing a chemical hazard label consistent with the National Fire Protection Association Code 704; or

      (v) Some other method that is at least as effective as one of the methods listed in §B(3)(b)(i)—(iv) of this regulation;

  (4) Before accumulating hazardous waste in the unit, obtain and place in the facility’s operating record a certification by a qualified registered professional engineer that the containment building design meets the requirements of COMAR 26.13.05.18-1; and

  (5) Maintain records at the facility documenting that hazardous waste is not accumulated in the containment building for periods of accumulation longer than 90 days, with the records:

    (a) Being generated by use of inventory logs, monitoring equipment, or another equally effective means;

    (b) Consisting of either:

      (i) Documentation that the containment building is emptied at least once every 90 days; or

      (ii) A written description of the procedures that are followed to ensure that each waste volume remains in the unit for no more than 90 days, a written description of the waste generation and management practices at the facility that shows these practices are consistent with respecting the 90-day limit, and documentation demonstrating that the procedures have been followed; and

    (c) Being readily available for inspection.

#### Regulation .03-10 Labeling and Marking of Containers and Tanks.

*COMAR 26.13.03.03-10*

A. Containers. A person accumulating hazardous waste in a container shall mark or label the container with:

  (1) The words “Hazardous Waste”;

  (2) An indication of the hazards of the contents of the container, with the marking or label communicating the hazards by:

    (a) Listing each hazardous waste characteristic of those identified in COMAR 26.13.02.11—.14 that the waste exhibits;

    (b) Providing hazard communication information consistent with the U.S. Department of Transportation requirements at 49 CFR Part 172 Subpart E (labeling) or Subpart F (placarding);

    (c) Providing a hazard statement or pictogram consistent with the U.S. Occupational Health and Safety Administration Hazard Communication Standard at 29 CFR §1910.1200;

    (d) Providing a chemical hazard label consistent with the National Fire Protection Association Code 704; or

    (e) Some other method that is at least as effective as any of the methods listed in §A(2)(a)—(d) of this regulation; and

  (3) The date upon which each period of accumulation begins, with the date clearly visible for inspection.

B. Tanks. A person accumulating hazardous waste in a tank shall mark or label the tank with:

  (1) The words “Hazardous Waste”; and

  (2) An indication of the hazards of the contents of the tank, with the marking or label communicating the hazards by one of the methods identified in §A(2)(a)—(e) of this regulation.

#### Regulation .03-11 Consolidation of Waste Received from Maryland-Defined Small Quantity Generators and Others.

*COMAR 26.13.03.03-11*

A. Purpose. This regulation establishes conditions under which a person may accept hazardous waste from an off-site generator who is under the control of the person:

  (1) Without having to obtain a hazardous waste storage facility permit under COMAR 26.13.05 and COMAR 26.13.07, or having to qualify as an interim status storage facility under COMAR 26.13.06;

  (2) Without having to comply with requirements of Chapters .05—.07 of this subtitle and 40 CFR Part 268 to which facilities are subject if they hold a hazardous waste storage facility permit or operate as a hazardous waste storage facility under interim status; and

  (3) Without having to comply with the notification requirements of Section 3010 of RCRA that apply to facilities that require a hazardous waste storage facility permit or authorization to operate a hazardous waste storage facility under interim status.

B. Scope. This regulation conditionally authorizes a person to accept, at a site of hazardous waste generation, hazardous waste from an off-site generator for consolidation, if:

  (1) The generator associated with the point of consolidation and the off-site generator are under the control of the same person, subject to the following:

    (a) “Person” has the meaning given by the definition in COMAR 26.13.01.03B; and

    (b) For the purposes of this regulation, “control”:

      (i) Means the power to direct the policies of the generator, whether by the ownership of stock, voting rights, or otherwise; and

      (ii) Does not include the situation where a contractor operates a proposed site of consolidation and an off-site generator facility on behalf of a different person;

  (2) The generator from whom the waste is being accepted is located:

    (a) In Maryland and is regulated as a Maryland-defined small quantity generator;

    (b) Outside of Maryland, located in a jurisdiction in which the U.S. Environmental Protection Agency is the primary implementing authority of the hazardous waste regulatory program, and qualifies as a very small quantity generator as defined in 40 CFR §260.10; or

    (c) Outside of Maryland and is:

      (i) Classified by the state or other implementing authority as being in a category that is equivalent to the federal very small quantity generator category; and

      (ii) Allowed, under the regulations of the implementing authority, to send hazardous waste to the Maryland point of consolidation;

  (3) The generator at the site that is accepting the off-site waste does not take advantage of any of the exemptions that are identified in Regulation .01-1D of this chapter that are available to generators who qualify as a small quantity generator under federal regulations; and

  (4) The requirements of §§C—E of this regulation are met.

C. Notification. A generator who wishes to accept hazardous waste from an off-site generator, as allowed under §§A—B of this regulation, shall:

  (1) Notify the Department:

    (a) At least 30 days before receiving the first shipment of hazardous waste from the off-site generator; and

    (b) Using EPA Form 8700-12, unless the Department specifies an alternate method;

  (2) As part of the notification, identify the name and the address of each off-site generator from whom hazardous waste will be accepted; and

  (3) Submit an updated notification to the Department within 30 days after a change in the name or in the site address of an off-site generator from whom hazardous waste is accepted under this regulation, using EPA Form 8700-12 unless the Department specifies an alternate method.

D. Record Keeping. A generator who accepts hazardous waste from an off-site generator under this regulation shall:

  (1) Maintain a record of each shipment received from off-site for 3 years from the date the hazardous waste was received from the off-site generator;

  (2) Include in the record of each shipment received:

    (a) The name, site address, and contact information for the off-site generator; and

    (b) A description of the hazardous waste received, along with information on the quantity of waste and the date received.

E. Waste Management Requirements. A generator who accepts hazardous waste from off-site under this regulation shall, in managing that waste:

  (1) Comply with the requirements of this chapter that apply to a hazardous waste generator independently of any conditional exemptions, as specified in Regulation .01A(2) of this chapter;

  (2) Comply with the requirements of Regulations .03-4—.03-11 of this chapter, Regulation .05E of this chapter, and Regulations .05-1—.05-2 of this chapter, consistent with the limitation in §B(3) of this regulation that prevents a person from taking advantage of certain exemptions available to persons who qualify as a small quantity generator under federal regulations; and

  (3) For the purposes of the labeling and marking requirements of Regulations .03—.10 of this chapter, label the container or unit with:

    (a) The date that the waste was received from the off-site generator as the date on which accumulation started; or

    (b) If the generator is consolidating waste from the off-site generator with the generator’s own waste, or with hazardous waste from other off-site generators, label the container or unit with the starting date for accumulation as the earliest of the following dates:

      (i) The earliest date of receipt of any of the off-site waste that has been consolidated in the container or unit; or

      (ii) The start date of waste accumulation in the generator’s container or unit into which the off-site waste is being consolidated.

#### Regulation .04 The Manifest.

*COMAR 26.13.03.04*

A. General Requirements.

  (1) A generator who transports, or offers for transport, hazardous waste for off-site treatment, storage, or disposal, or a treatment, storage, or disposal facility who offers for transport a rejected hazardous waste load:

    (a) Shall prepare a manifest (OMB control number 2050-0039) on EPA Form 8700-22, and, if necessary, EPA Form 8700-22A; or

    (b) May, instead of using the manifest forms specified in §A(1)(a) of this regulation, prepare and use an electronic manifest if the person complies with the requirements of:

      (i) Section E-1 of this regulation for use of electronic manifests; and

      (ii) 40 CFR §3.10 for the reporting of electronic documents to EPA.

  (2) A generator shall designate on the manifest one facility which is permitted to handle the waste described on the manifest.

  (3) A generator may also designate on the manifest one alternate facility which is permitted to handle the generator’s waste if an emergency prevents delivery of the waste to the primary designated facility.

  (4) A generator whose manifest for an interstate shipment has not been returned to the generator within the prescribed time of 45 days shall give notice of that to the:

    (a) State in which the designated facility is located;

    (b) State in which the shipment may have been delivered, or to the EPA in the case of an unauthorized state; and

    (c) Department.

  (5) If the transporter is unable to deliver the hazardous waste to the designated facility or the alternate facility, the generator shall either designate another facility or instruct the transporter to return the waste.

  (6) Contiguous Property.

    (a) The requirements of this regulation and Regulation .05C(2) of this chapter do not apply to the transport on a public or private right-of-way within or along the border of contiguous property under the control of the same person, even if this contiguous property is divided by a public or private right-of-way.

    (b) Notwithstanding COMAR 26.13.04.01A(1), the generator or transporter shall comply with the requirements for transporters in COMAR 26.13.04.03 in the event of a discharge of hazardous waste on a public or private right-of-way.

B. Manifest Printing — Requirements for Registrants.

  (1) General Requirements.

    (a) In this section, the following terms have the meanings indicated:

      (i) “Registrant” means a person that seeks approval to print, or have printed, the manifest for use or distribution; and

      (ii) “Approved registrant” means a person that has received approval from the EPA Director of the Office of Resource Conservation and Recovery or other authorized EPA official to print, or have printed, the manifest for use or distribution.

    (b) A registrant may not print, or have printed, the manifest for use or distribution unless the registrant has received approval from the EPA Director of the Office of Resource Conservation and Recovery or other authorized EPA official to do so.

  (2) Approval Process for Registrants.

    (a) EPA implements the program of review and approval of requests to  print, or have printed, the manifest for use or distribution.

    (b) A person who seeks to print, or have printed, the manifest for use or distribution shall apply to the EPA to become an approved registrant, following the procedures and subject to the requirements in 40 CFR §262.21(a)—(f) and 40 CFR A§262.21(h)—(m).

    (c) EPA is the implementing authority for the requirements referenced in §B(2)(b) of this regulation and does not delegate this authority to states. In complying with §B(2)(b) of this regulation, the person shall comply with the referenced requirements in 40 CFR §262.21 as written, rather than substituting “the Department” for “EPA”.

C. Obtaining Manifests and Information on State Requirements.

  (1) A generator may use manifests printed by any source that has received approval from EPA to print the manifest under the provisions of 40 CFR §262.21(c) and (e).

  (2) Examples of entities that may be approved by the EPA to be a source of manifests include state agencies, commercial printers, hazardous waste generators, hazardous waste transporters, hazardous waste treatment, storage, and disposal facilities, and hazardous waste brokers or other persons who prepare or arrange shipments of hazardous waste for transportation.

  (3) The generator shall determine whether the generator state or the consignment state for a shipment:

    (a) Regulates any additional wastes beyond those federally regulated as hazardous wastes under the states' authorized hazardous waste regulatory programs; and

    (b) Requires the generator to submit any copies of the manifest to these states.

D. Number and Distribution of Copies.

  (1) The manifest consists of five preprinted copies and the additional number of photocopies needed so that copies can be distributed as described in §D(2) of this regulation.

  (2) Manifest copies shall be distributed as follows:

    (a) The generator shall retain one copy, in accordance with Regulation .06A(1) of this chapter;

    (b) Each transporter shall retain one copy in accordance with COMAR 26.13.04.02C, reproducing the preprinted form if necessary;

    (c) The designated facility shall retain one copy in accordance with COMAR 26.13.05.05B;

    (d) The designated facility shall forward copies as indicated on the manifest to the:

      (i) Generator; and

      (ii) Electronic manifest system, in accordance with COMAR 26.13.05.05B if the designated facility is located in Maryland, or in accordance with 40 CFR §264.71(a)(2)(v)(B) if the designated facility is not located in Maryland; and

    (e) The generator, in accordance with §E(1) and (2) of this regulation:

      (i) Shall forward a legible photocopy of the manifest to the consignment state if the consignment state is other than Maryland and the consignment state requires the generator to submit a copy of the manifest; and

      (ii) Is not required to submit a copy of the manifest to the Department.

E. Use of the Manifest.

  (1) The generator shall:

    (a) Sign the manifest certification by hand;

    (b) Obtain the handwritten signature of the initial transporter and date of acceptance on the manifest; and

    (c) Retain one copy, in accordance with Regulation .06A(1) of this chapter.

  (2) The generator shall forward a legible photocopy of the manifest to the consignment state if the consignment state:

    (a) Is a state other than Maryland; and

    (b) Requires the generator to submit a copy of the manifest.

  (3) The generator shall give the transporter the remaining copies of the manifest.

  (4) For shipment of hazardous waste within the United States solely by water (bulk shipments only), the generator shall send three copies of the manifest dated and signed in accordance with this regulation to the owner or operator of the designated facility or the last water (bulk shipment) transporter to handle the waste in the United States if exported by water. Copies of the manifest are not required for each transporter.

  (5) For rail shipments of hazardous waste within the United States which originate at the site of generation, the generator shall send at least three copies of the manifest dated and signed in accordance with this section to the:

    (a) Next nonrail transporter, if any;

    (b) Designated facility if transported solely by rail; or

    (c) Last rail transporter to handle the waste in the United States if exported by rail.

  (6) For shipments of hazardous waste to a designated facility in an authorized state which has not yet obtained authorization to regulate that particular waste as hazardous, the generator shall assure that:

    (a) The owner or operator of the designated facility agrees to sign and return the manifest to the generator; and

    (b) Any out-of-State transporter signs and forwards the manifest to the designated facility.

  (7) For rejected shipments of hazardous waste or container residues contained in non-empty containers that are returned to the generator by the designated facility in accordance with the requirements of COMAR 26.13.05.05C, COMAR 26.13.06.05A, or analogous regulations effective in the state in which the destination facility is located, the generator shall:

    (a) Sign either:

      (i) Item 20 of the new manifest if a new manifest is used for the returned shipment; or

      (ii) Item 18c of the original manifest if the original manifest is used for the returned shipment;

    (b) Provide the transporter with a copy of the manifest;

    (c) Within 30 days of delivery of the rejected shipment or container residues contained in the non-empty containers, send a copy of the manifest to the designated facility that returned the shipment to the generator; and

    (d) Retain at the generator's site a copy each manifest for at least 3 years from the date of delivery.

E-1. Use of the Electronic Manifest.

  (1) Legal Equivalence to Paper Manifests. For the purposes of COMAR 26.13.01—.10:

    (a) An electronic manifest that is obtained, completed, and transmitted in accordance with §A(1)(b) of this regulation, and used in accordance with this section instead of using EPA Forms 8700-22 and 8700-22A, is the legal equivalent of paper manifest forms bearing handwritten signatures and satisfies for all purposes any requirement to obtain, complete, sign, provide, use, or retain a manifest;

    (b) A requirement to sign a manifest or manifest certification by hand, or to obtain a handwritten signature, is satisfied by signing with or obtaining a valid and enforceable electronic signature within the meaning of §E-2 of this regulation;

    (c) A requirement to give, provide, send, forward, or return to another person a copy of the manifest is satisfied when an electronic manifest is transmitted to the other person by submission to the electronic manifest system;

    (d) A requirement for a generator to keep or retain a copy of a manifest is satisfied by retention of a signed electronic manifest in the generator's account on the national electronic manifest system if the copy is readily available for viewing and production if requested by an inspector representing the Department or EPA; and

    (e) If a generator is unable to produce an electronic manifest for inspection in accordance with §E-1(1)(d) of this regulation, the generator is not considered to be in violation of the requirement to have a copy of the manifest readily available if the generator can demonstrate that the inability to produce the electronic manifest is due exclusively to a technical difficulty with the electronic manifest system for which the generator bears no responsibility.

  (2) Accessing the Electronic Manifest System. A generator may participate in the electronic manifest system either by accessing the electronic manifest system from the generator's own electronic equipment, or by accessing the electronic manifest system from portable equipment brought to the generator's site by the transporter who accepts the hazardous waste shipment from the generator for off-site transportation.

  (3) Restriction on Use of Electronic Manifests.

    (a) Except as provided in §E-1(3)(b) of this regulation, a generator may use an electronic manifest for the tracking of waste shipments involving any hazardous waste only if it is known at the time the manifest is originated that all waste handlers named on the manifest participate in the use of the electronic manifest.

    (b) A generator may sign by hand and retain a paper copy of the manifest signed by hand by the initial transporter, instead of executing the generator copy electronically, thereby enabling the transporter and subsequent waste handlers to execute the remainder of the manifest copies electronically.

  (4) Requirement for One Printed Copy. To the extent that the U.S. Department of Transportation hazardous materials regulation on shipping papers for carriage by public highway requires shippers of hazardous materials to supply a paper document for compliance with 49 CFR §177.817, a generator originating an electronic manifest shall also provide the initial transporter with one printed copy of the electronic manifest.

  (5) Special Procedures When the Electronic Manifest System Is Unavailable. If a generator has prepared an electronic manifest for a hazardous waste shipment, but the electronic manifest system becomes unavailable for any reason before the time that the initial transporter has signed electronically to acknowledge the receipt of the hazardous waste from the generator, then the generator shall:

    (a) Obtain and complete a paper manifest and, if necessary, a continuation sheet (EPA Forms 8700-22 and 8700-22A) in accordance with the manifest instructions; and

    (b) Use the paper forms identified in §E-1(5)(a) of this regulation from this point forward for the shipment in accordance with the requirements of §E of this regulation.

  (6) Special Procedures for Electronic Signature Methods Undergoing Tests. If a generator has prepared an electronic manifest for a hazardous waste shipment, and signs this manifest electronically using an electronic signature method that is undergoing pilot or demonstration tests aimed at demonstrating the practicality or legal dependability of the signature method, then the generator shall also sign with an ink signature the certification of the generator or offeror on the printed copy of the manifest provided under §E-1(4) of this regulation.

  (7) Post-Receipt Manifest Data Corrections.

    (a) After facilities have certified to the receipt of hazardous wastes by signing Item 20 of the manifest, any post-receipt data corrections may be submitted at any time by any interested person named on the manifest, such as a waste handler; and

    (b) Generators may participate electronically in the post-receipt data corrections process by following the process described in COMAR 26.13.05.05B(11), which applies to corrections made to either paper or electronic manifest records.

E-2. Electronic Manifest Signatures. An electronic signature method used in connection with the electronic manifest system is acceptable only if:

  (1) Use of the method results in the creation of a legally valid and enforceable signature under applicable EPA and other federal requirements pertaining to electronic signatures; and

  (2) The method has been designed and implemented in a manner that EPA considers to be as cost-effective and practical as possible for the users of the manifest.

F. Waste Minimization Certification.

  (1) For the purposes of the certification in §F(2) of this regulation:

    (a) “Large quantity generator” means a person that generates, in a calendar month:

      (i) 1,000 kilograms or more of hazardous waste; or

      (ii) 1 kilogram or more of acute hazardous waste; and

    (b) “Small quantity generator” means a person that generates, in a calendar month:

      (i) Less than 1,000 kilograms of hazardous waste; and

      (ii) Less than 1 kilogram of acute hazardous waste.

  (2) A generator that initiates a shipment of hazardous waste and that is required to prepare a manifest in accordance with §A of this regulation shall certify to one of the following statements in Item 15 of the uniform hazardous waste manifest:

    (a) “I am a large quantity generator. I have a program in place to reduce the volume and toxicity of waste generated to the degree I have determined to be economically practicable and I have selected the practicable method of treatment, storage, or disposal currently available to me which minimizes the present and future threat to human health and the environment.”; or

    (b) “I am a small quantity generator. I have made a good faith effort to minimize my waste generation and select the best waste management method that is available to me and that I can afford.”

#### Regulation .05 Pretransport Requirements.

*COMAR 26.13.03.05*

A. Packaging. Before transporting hazardous waste or offering hazardous waste for transportation off-site, a generator shall package the waste in accordance with the applicable Department of Transportation regulations on packaging under 49 CFR 173, 178, and 179.

B. Labeling. Before transporting or offering hazardous waste for transportation off-site, a generator shall label each package in accordance with the applicable Department of Transportation regulations on hazardous materials, under 49 CFR 172.

C. Marking.

  (1) Before transporting or offering hazardous waste for transportation off-site, a generator shall mark each package of hazardous waste in accordance with the applicable Department of Transportation regulations on hazardous materials under 49 CFR 172.

  (2) Except as provided in §C(4) of this regulation, before transporting hazardous waste or offering hazardous waste for transportation off-site, a generator shall mark each container of 119 gallons or less used in the transportation with the following words and information displayed in accordance with the requirements of 49 CFR §172.304:

  (3) To satisfy the requirement of §C(2) of this regulation to mark a container with the EPA hazardous waste numbers of the wastes in the container, a generator may use an electronic system for data capture, storage, and retrieval, such as bar coding, if the electronic system allows the destination facility to be informed of the container's contents for the purposes of compliance with applicable hazardous waste management regulations.

  (4) A generator is not required to mark EPA Hazardous Waste Numbers on a lab pack container that will be incinerated in compliance with 40 CFR §268.42(c), except for EPA Hazardous Waste Numbers D004, D005, D006, D007, D008, D010 and D011, when applicable.

D. Placarding. Before transporting hazardous waste or offering hazardous waste for transportation off-site, a generator shall placard or offer the initial transporter the appropriate placards according to U.S. Department of Transportation regulations for hazardous materials under 49 CFR Part 172, Subpart F.

E. Returned, Rejected Loads.

  (1) A generator who sends a shipment of hazardous waste to a designated facility with the understanding that the designated facility can accept and manage the waste, and later receives that shipment or part of that shipment back as a rejected load or residue in accordance with the manifest discrepancy provisions of COMAR 26.13.05.05C, COMAR 26.13.06.05A, 40 CFR §264.72, 40 CFR §265.72, or analogous regulations of the designated facility's state, may accumulate the returned waste onsite in accordance with Regulations .03-3—.03-10 of this chapter.

  (2) Upon receipt of a shipment returned in accordance with §E(1) of this regulation, the generator shall:

    (a) Sign Item 18c of the manifest, if the transporter returned the shipment using the original manifest; or

    (b) Sign Item 20 of the manifest, if the transporter returned the shipment using a new manifest.

F. Liquids in Landfills Prohibition.

  (1) A person may not place or arrange to have placed bulk or non-containerized liquid hazardous waste or hazardous waste containing free liquids in a landfill.

  (2) The prohibition of §F(1) of this regulation applies regardless of whether sorbents have been added to the waste.

  (3) To demonstrate the absence or presence of free liquids, a person shall use Method 9095, Paint Filter Liquids Test, as described in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”, EPA Publication SW-846, which is incorporated by reference in COMAR 26.13.01.05A(4).

  (4) A person may not use a sorbent to eliminate free liquids from a waste that is to be disposed of in a landfill unless the sorbent meets the requirements of 40 CFR §264.314(d).

#### Regulation .05-1 Closure Requirements — Hazardous Waste Accumulation Areas and Waste Management Units.

*COMAR 26.13.03.05-1*

A. Purpose and Scope. This regulation:

  (1) Establishes requirements with which a hazardous waste generator must comply in connection with the permanent removal from service, for the purposes of hazardous waste management, of:

    (a) An area in which hazardous waste was accumulated in a manner that was subject to the requirements of this chapter, other than accumulation in a satellite accumulation area;

    (b) A waste management unit, such as a tank, used to manage hazardous waste in an accumulation area described in §A(1)(a) of this regulation; and

    (c) A site or facility that had an area or waste management unit of the type described in §A(1)(a) or (b) of this regulation;

  (2) Establishes a general closure performance standard that a hazardous waste generator must meet for all hazardous waste accumulation areas and hazardous waste management units identified in §A(1) of this regulation;

  (3) Identifies specific requirements that must be met in implementing closure, including requirements:

    (a) That apply to all types of accumulation units; and

    (b) Specific to particular types of accumulation units; and

  (4) Identifies:

    (a) Record keeping requirements with respect to closure; and

    (b) Closure notification requirements that apply to a generator who qualified as a federally-defined large quantity generator for significant periods of time.

B. Closure Requirements.

  (1) Applicability. The general closure performance standard and other requirements of this section:

    (a) Apply to an area or waste management unit in which hazardous waste was managed, as described in §A(1)(a) of this regulation; and

    (b) Apply to a site or facility that had an area or waste management unit identified in §A(1)(a) of this regulation and at which the generator:

      (i) Will no longer be generating or accumulating hazardous waste; or

      (ii) Is ceasing operations entirely;

    (c) May be deferred for an accumulation area or unit if the generator anticipates that the area or unit may again be used to accumulate hazardous waste, if the:

      (i) Notification requirements of Regulation .05-2 of this chapter are met; and

      (ii) Closure performance standard and other requirements of this section are met before the facility is closed.

  (2) General Closure Performance Standard. A generator shall ensure that, if a hazardous waste accumulation area, a hazardous waste management unit, or a facility or site at which hazardous waste was generated or accumulated is closed by being permanently removed from service for the purposes of hazardous waste management:

    (a) The closure is conducted in a manner that minimizes the need for further maintenance by controlling, minimizing, or eliminating, to the extent necessary to protect human health and the environment, the post-closure escape of hazardous waste, hazardous constituents, leachate, contaminated runoff, or hazardous waste decomposition products to the ground, to ground water, to surface water, or to the atmosphere; and

    (b) Any hazardous waste that is generated in closing the generator’s facility or a portion of the facility is managed in accordance with all applicable requirements of:

      (i) This chapter, including, for hazardous waste that is being accumulated in a unit that is being closed, accumulation time limits of Regulation .03-4C of this chapter;

      (ii) Chapters .04 and .06 of this subtitle; and

      (iii) 40 CFR Part 268.

  (3) Additional Unit-specific Closure Requirements for Container, Tank System, and Containment Building Accumulation Units. For the closure of a hazardous waste accumulation unit in which hazardous waste was managed in a container, a tank system, or a containment building:

    (a) The generator shall ensure that closure of the unit provides, to the extent necessary to meet the general closure performance standard of §B(2) of this regulation, for the removal or decontamination of:

      (i) All contaminated equipment, structures, and soil, and any remaining hazardous waste residues from waste accumulation units, including containment system components such as pads or liners;

      (ii) Contaminated soils, subsoils, bases, and structures; and

      (iii) Structures and equipment contaminated with waste; and

    (b) If the generator is unable to practicably remove or decontaminate contaminated soils or wastes as required by §B(3)(a) of this regulation, then the waste accumulation unit is considered to be a landfill for the purposes of closure, post-closure, and financial responsibility, and the generator shall:

      (i) Close the waste accumulation unit and perform post-closure care in accordance with the closure and post-closure requirements of COMAR 26.13.05.14J, which apply to landfills;

      (ii) Meet all of the requirements for landfills specified in COMAR 26.13.05.07 and 26.13.05.08; and

      (iii) Submit a complete and sufficient application to the Department for a CHS post-closure permit in accordance with a deadline to be specified by the Department.

  (4) Unit Specific Closure Requirements for Drip Pads. At the closure of a drip pad waste accumulation unit, as defined in COMAR 26.13.01.03B, the generator shall:

    (a) Comply with the closure requirements of COMAR 26.13.05.17-4A—C; and

    (b) If required to close the facility and provide post-closure care as a landfill, in accordance with COMAR 26.13.05.17—4B, submit a complete and sufficient application to the Department for a CHS post-closure permit in accordance with a deadline to be specified by the Department.

  (5) Closure Plan. A generator who is closing a waste accumulation area, waste accumulation unit, or facility under this regulation shall:

    (a) Perform the closure in accordance with a written closure plan;

    (b) Ensure that the closure plan includes:

      (i) A description of how the requirements of §B(2)—(4) of this regulation will be met in performing the closure, taking into account the nature of facility operations and the history of any spills or releases of hazardous wastes;

      (ii) A detailed description of the steps needed to remove or decontaminate all hazardous waste residues and contaminated containment system components, equipment, structures, and soils during closure, including, but not limited to, procedures for cleaning equipment and removing contaminated soils, methods for testing surrounding soils, and criteria for determining the extent of decontamination required to satisfy the closure performance standard; and

      (iii) A detailed description of other activities necessary during the closure to ensure that closure activities satisfy the closure performance standard, including, but not limited to, groundwater monitoring, and run-on and runoff control; and

    (c) For each implemented closure action:

      (i) Maintain, as part of the generator’s facility operating record, a copy of the written closure plan that was followed in implementing the closure;

      (ii) Make a copy of the written closure plan available to the Department on request; and

      (iii) Retain a copy of the written closure plan for a period of 3 years following the date of final closure of the facility.

#### Regulation .05-2 Closure Notification Requirements.

*COMAR 26.13.03.05-2*

A. Applicability.

  (1) This regulation applies to a generator who is closing, in accordance with Regulation .05-1 of this chapter, a hazardous waste accumulation area, a hazardous waste management unit, or a site or facility where hazardous waste was accumulated.

  (2) Sections B—C of this regulation apply to a generator and to a site at which the generator either:

    (a) At the time of initiation of a closure activity, qualifies as a large quantity generator under federal regulations, as described in Regulation .01-1 of this chapter; or

    (b) For a significant period of time before initiation of the closure action, generated quantities of hazardous waste that met the threshold for the federal large quantity generator category, with “significant period of time” determined by the criteria of §A(4) of this regulation.

  (3) Section D of this regulation applies to a generator and a site at which the generator at the time of initiation of a closure activity:

    (a) Does not qualify as a Maryland-defined small quantity generator as defined in COMAR 26.13.01.03B; and

    (b) Did not meet the criteria of §A(2) of this regulation.

  (4) For the purposes of §A(2)(b) of this regulation, a generator is considered to have operated for a significant period of time as a generator who would qualify as a large quantity generator under federal regulations if any of the following apply:

    (a) At any time during the 12 months before the initiation of the closure activity, the generator qualified as a large quantity generator under federal regulations in 5 or more months; or

    (b) During any 24-month period, the generator qualified as a large quantity generator under federal regulations in 10 or more months.

B. Closure Notification Requirements for a Waste Accumulation Unit.

  (1) A generator who qualified as a large quantity generator under federal regulations as described in §A(2) of this regulation, shall, before closing a unit that was used to accumulate hazardous waste in a container, in a tank, on a drip pad, or in a containment building, shall either:

    (a) Place a notice in the facility’s operating record within 30 days after closure identifying the location of the unit within the facility, and temporarily defer full implementation of required closure activities and notification of the Department; or

    (b) Meet the closure requirements and the closure performance standard of Regulation .05-1 of this chapter and notify the Department as specified §C of this regulation.

  (2) A generator may remove from the facility operating record a notification of closure of an area or unit made in accordance with §B(1)(a) of this regulation if the generator resumes using the area or unit for the accumulation of hazardous waste.

C. Facility Closure Notification Requirements.

  (1) A generator who qualified as a large quantity generator under federal regulations as described in §A(2) of this regulation shall, if intending to close a facility:

    (a) Notify the Department of the intent to close:

      (i) No later than 30 days before closing the facility; and

      (ii) Using EPA Form 8700-12, unless another method is specified by the Department;

    (b) Within 90 days after closing the facility, or by a later deadline specified by the Department under the provisions of §C(2) of this regulation, either:

      (i) Notify the Department, using EPA Form 8700-12 or another method specified by the Department, that the generator has complied with the closure performance standard and closure requirements of Regulation .05-1 of this chapter; or

      (ii) If unable to meet the closure requirements and closure performance standard of Regulation .05-1 of this chapter, notify the Department using EPA Form 8700-12 or another method specified by the Department that the generator will close as a landfill under COMAR 26.13.05.14J in the case of a container unit, tank unit, or containment building unit, or, for a facility with a drip pad, that the generator will close under the standards of COMAR 26.13.05.17-4.

  (2) A generator:

    (a) May request additional time to clean close, which the Department may or may not grant; and

    (b) If requesting additional time to clean close, shall do so by notifying the Department within 75 days after the date of notification under §C(1)(a)(i) of this regulation, using EPA Form 8700-12 or another method specified by the Department to make the notification, and providing an explanation as to why the extra time is required.

D. Closure Notification — Generators Who Do Not Meet Criteria to be Considered a Large Quantity Generator. A generator who does not meet the criteria of §A(2) of this regulation, and who intends to cease accumulating hazardous waste throughout a site, either by permanently ending the on-site operation of hazardous waste accumulation units, or by ceasing operation at the site entirely, shall:

  (1) Notify the Department by submitting a subsequent site notification using EPA Form 8700-12, indicating the change in generator status, and, if applicable, requesting that the Department deactivate the EPA identification number associated with the site; and

  (2) Submit the notification required by §D(1) of this regulation not later than 30 days before the scheduled date of cessation of the accumulation of hazardous waste or 30 days before the anticipated final date of facility operations.

#### Regulation .05-3 Special Provisions for Episodic Generation Events — Purpose and Scope.

*COMAR 26.13.03.05-3*

A. This regulation and Regulations .05-4 and .05-5 of this chapter:

  (1) Establish provisions that, if followed, allow a generator of hazardous waste to maintain the generator’s status as a Maryland-defined small quantity generator despite the occurrence of an event that causes the generator to exceed an upper limit on waste generation or accumulation that defines the generator’s current hazardous waste generator category; and

  (2) Are not applicable to a person who meets the federal definition of a small quantity generator.

B. This regulation and Regulations .05-4 and .05-5 of this chapter address waste that is generated in connection with an episodic generation event, which is an event that:

  (1) Is either:

    (a) A planned event, as described in §C of this regulation; or

    (b) An unplanned event, as described in §D of this regulation;

  (2) Does not normally occur during the operations of the waste generator; and

  (3) Results in an increase in the amount of hazardous waste generated or accumulated that causes the generator to exceed waste generation or accumulation limits for the generator’s current generator category.

C. For the purposes of this regulation and Regulations .05-4 and .05-5 of this chapter, a planned episodic generation event:

  (1) Is an activity that the generator scheduled in advance, and made arrangements, plans, and preparations to conduct; and

  (2) Includes such things as:

    (a) Periodic maintenance of facility equipment or features;

    (b) Tank cleanouts;

    (c) Short-term projects; and

    (d) Removal of excess chemical inventory.

D. For the purposes of this regulation and Regulations .05-4 and .05-5 of this chapter, an unplanned episodic generation event:

  (1) Is an event that the generator:

    (a) Did not plan; and

    (b) Reasonably did not expect to occur; and

  (2) Includes such things as:

    (a) A production process upset;

    (b) An emergency product recall;

    (c) An accidental spill; and

    (d) A catastrophic, naturally occurring event, such as a tornado, hurricane, or flood.

#### Regulation .05-4 Episodic Generation Events — Maryland-Defined Small Quantity Generators.

*COMAR 26.13.03.05-4*

A. person who qualifies as a Maryland-defined small quantity generator may maintain that generator status following an episodic generation event, as described in regulation .05-3 of this chapter, by complying with the requirements of §§B—D of this regulation.

B. General Requirements.

  (1) Limit on Number of Episodic Generation Events.

    (a) A generator may maintain the generator’s status as a Maryland-defined small quantity generator following, at most, one episodic generation event during a calendar year, unless the Department grants a petition for an additional episodic generation event under Regulation .05-5 of this chapter.

    (b) For an episodic generation event beyond the one or two allowed by §B(1)(a) of this regulation, the generator is subject to all applicable requirements of this chapter, based on the amount of hazardous waste generated and accumulated as a result of the event, in addition to any other hazardous waste generated or accumulated.

  (2) Notification. The generator shall:

    (a) Notify the Department using EPA Form 8700-12 no later than 30 days before initiating a planned episodic generation event, as described in Regulation .05-3C of this chapter;

    (b) For an unplanned episodic generation event, as described in Regulation .05-3D of this chapter, notify the Department within 72 hours of the unplanned event, contacting the unit in the Department that is responsible for oversight of hazardous waste management, making the notification:

      (i) Initially, by phone, email, or fax communication; and

      (ii) Subsequent to the initial notification, by submitting a notification using EPA Form 8700-12; and

    (c) Include, as part of the notification:

      (i) The start date of the episodic generation event;

      (ii) The anticipated end date of the episodic generation event;

      (iii) The reason or reasons for the event;

      (iv) The types and estimated quantities of hazardous waste expected to be generated as a result of the event;

      (v) Contact information for a facility contact with whom the Department may discuss the submittal; and

      (vi) Contact information for an emergency coordinator with 24-hour telephone access who will respond to emergencies in compliance with §B(4) of this regulation.

  (3) EPA ID Number. If the generator does not have an EPA identification number, the generator shall obtain one from the Department using EPA Form 8700-12.

  (4) Emergency Coordinator. The generator shall ensure that at all times when hazardous waste is being managed under the provisions for an episodic generation event, there is an employee who has been designated as the emergency coordinator who:

    (a) Has the responsibility for coordinating all emergency response measures specified in §B(5) of this regulation;

    (b) Is either on the premises or is on-call by being able to be readily contacted; and

    (c) If is on-call rather than at the premises, is available to respond to an emergency by reaching the facility within a short period of time.

  (5) Response to Emergencies. The generator shall ensure that appropriate actions, as specified in §B(6) of this regulation, are taken in response to an emergency, with the actions being taken by:

    (a) The generator;

    (b) The emergency coordinator;

    (c) A person working for the generator at the site of the episodic generation event who is confronted with the emergency;

    (d) A contractor operating on behalf of the generator; or

    (e) Any of these.

  (6) Emergency Response Measures. A person identified in §B(5) of this regulation shall, in responding to an emergency, respond as follows:

    (a) In the event of a fire:

      (i) Call the fire department;

      (ii) Attempt to extinguish the fire using the appropriate fire extinguisher; or

      (iii) Both;

    (b) In the event of a spill:

      (i) Contain the flow of hazardous waste to the extent possible; and

      (ii) As soon as is practical, clean up materials contaminated with spilled hazardous waste, and any contaminated soil or other contaminated environmental media resulting from the spill; and

    (c) In the event of a fire, explosion, or other release that could threaten human health outside the facility, or if the generator or an agent of the generator has knowledge that a spill has reached surface water, immediately notify the National Response Center using the 24-hour toll free number (800) 424-8802, and include, as part of the notification:

      (i) The name, address, and EPA identification number of the generator;

      (ii) The date and time of the incident;

      (iii) The type of incident, such as a spill or fire;

      (iv) The quantity and type of hazardous waste involved in the incident;

      (v) The extent of injuries, if any; and

      (vi) The estimated quantity and disposition of recovered materials, if any.

  (7) Record Keeping. The generator shall maintain the following information for 3 years from the end date of the episodic generation event:

    (a) The starting date and the end date of the event;

    (b) A description of the event;

    (c) A description of the types and quantities of hazardous waste generated during the event;

    (d) A description of how the hazardous waste that was generated during the event was managed;

    (e) The name of the designated facility, as defined in COMAR 26.13.01.03B, that received the hazardous waste from the event;

    (f) The name of each transporter that transported hazardous waste from the event; and

    (g) A copy of the approval letter issued by the Department if the event is a second episodic generation event during the same calendar year.

C. Management Standards.

  (1) A Maryland-defined small quantity generator managing hazardous waste from an episodic generation event:

    (a) May accumulate the waste in a:

      (i) Container, if the requirements of §C(2) and (3) of this regulation are met; or

      (ii) Tank, if the requirements of §C(4) of this regulation are met;

    (b) May not accumulate the waste on a drip pad or in a containment building; and

    (c) Shall manage the waste in a manner that minimizes the possibility of a fire, explosion, or release of hazardous waste or hazardous waste constituents to the air, soil, or water.

  (2) Container Management Standards. The generator shall ensure that if a container is being used to accumulate hazardous waste from an episodic generation event, the container is:

    (a) In good condition;

    (b) Compatible with the waste that is being accumulated;

    (c) Kept closed, except to add or remove waste; and

    (d) Marked or labeled with the following information clearly visible for inspection:

      (i) The words “Episodic hazardous waste”;

      (ii) An indication of the hazards of the contents of the container, as specified in §C(3) of this regulation; and

      (iii) The date on which the episodic generation event began.

  (3) The following are acceptable indications of hazards for the purposes of labeling containers under §C(2)(ii) of this regulation:

    (a) The hazardous waste characteristic or characteristics of those identified in COMAR 26.13.02.11—.14 that the waste exhibits;

    (b) Hazard communication information consistent with the U.S. Department of Transportation requirements at 49 CFR Part 172 Subpart E (labeling) or Subpart F (placarding);

    (c) A hazard statement or pictogram consistent with the U.S. Occupational Health and Safety Administration Hazard Communication Standard at 29 CFR §1910.1200;

    (d) A chemical hazard label consistent with the National Fire Protection Association Code 704; or

    (e) Some other method that is at least as effective as any of the methods listed in §C(3)(a)—(d) of this regulation.

  (4) Tank Management Standards. The generator shall ensure that if a tank is being used to accumulate hazardous waste from an episodic event, the tank is:

    (a) In good condition;

    (b) Compatible with the waste that is being accumulated in the tank;

    (c) Provided with design features and operational procedures that will prevent overflow of the tank, such as the tank being equipped with a high-level alarm and a means to quickly stop waste inflow; and

    (d) Inspected at least once each operating day to ensure that:

      (i) All applicable discharge control equipment, such as waste feed cutoff systems, bypass systems, and drainage systems are in good working order;

      (ii) The tank is operated according to its design, as determined by reviewing the data gathered from monitoring equipment, associated with the tank, such as level gauges, pressure gauges, and temperature gauges; and

    (e) Marked or labeled:

      (i) With the words “Episodic Hazardous Waste”; and

      (ii) An indication of the hazards of the contents of the tank using one of the methods listed in §C(3)(a)—(e) of this regulation

  (5) Manifest Requirements. The generator shall comply with the hazardous waste manifest provisions of Regulation .04 of this chapter and applicable provisions of 40 CFR Part 262 Subpart B when the generator sends hazardous waste from an episodic event off site to a designated facility as defined in COMAR 26.13.01.03B.

  (6) Time Limit on Waste Accumulation. Not later than 60 calendar days after the starting date of the episodic generation event, the generator shall have manifested and sent all hazardous waste from the episodic generation event to a designated facility as defined in COMAR 26.13.01.03B.

#### Regulation .05-5 Petitions to Operate under Episodic Event Provisions for an Additional Event.

*COMAR 26.13.03.05-5*

A. A generator may petition the Department to be allowed to operate under the provisions applicable to an episodic generation event for a second event in a calendar year under the following conditions:

  (1) If the generator has already held a planned episodic generation event in a calendar year, the generator may petition the Department for an additional event that is an unplanned episodic generation event within 72 hours of the beginning of the unplanned event; and

  (2) If the generator has already operated under provisions for an episodic generation event for an unplanned event in a calendar year, the generator may petition the Department for an additional event that is a planned episodic event that will occur in that calendar year.

B. A generator submitting a petition under this regulation shall include, as part of the petition:

  (1) The reason or reasons why the generator needs to operate under the provisions for an episodic generation event for a second event;

  (2) Information on the nature of the second episodic generation event;

  (3) An estimate of the amount of hazardous waste to be managed in connection with the episodic generation event;

  (4) A description of how the waste from the episodic generation event is to be managed;

  (5) The estimated length of time, not to exceed 60 days, of the period needed to complete management of the hazardous waste generated from the episodic generation event; and

  (6) Information about the generator’s previous episodic generation event from the current calendar year, including the nature of the event, whether it was a planned event or an unplanned event, and how the generator complied with the conditions of this chapter with which the event was required to have been conducted.

C. The generator shall make the petition to the Department in writing, either on paper or electronically.

D. The generator shall:

  (1) Retain in the generator’s records a copy of a written approval by the Department of a petition submitted by the generator under this regulation; and

  (2) Retain the copy of the Department’s written approval for 3 years from the date the second episodic generation event ended.

#### Regulation .06 Record Keeping and Reporting.

*COMAR 26.13.03.06*

A. Record Keeping.

  (1) A generator shall keep a copy of each manifest signed in accordance with Regulation .04A(1) for 3 years or until he receives a signed copy from the designated facility which received the waste. This signed copy shall be retained as a record for at least 3 years from the date the waste was accepted by the initial transporter.

  (2) A generator shall keep a copy of each annual report or biennial report required under §B of this regulation, and each exception report required under §C of this regulation, for a period of at least 3 years from the due date of the report, or the date the report was submitted, whichever is later.

  (3) A generator shall keep records documenting hazardous waste determinations in accordance with the requirements of Regulation .02-1 of this chapter.

  (4) The periods of retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the Secretary.

B. Annual or Biennial Reporting.

  (1) Except as provided in B(5) of this regulation, a person who generates hazardous waste and ships it off-site to a facility within the United States shall:

    (a) Periodically, submit reports to the Secretary concerning hazardous waste generated during the preceding calendar year on EPA Form 8700-13A/B, or on an alternate form provided by the Department;

    (b) Submit the reports required by §B(1)(a) of this regulation with the following frequency:

      (i) Annually, for reporting periods through December 31, 1995; and

      (ii) Biennially, for reporting periods beginning January 1, 1997;

    (c) Submit the reports required by §B(1)(a) of this regulation not later than:

      (i) March 1 of the following year for reporting periods through December 31, 1995; and

      (ii) March 1 of each even numbered year for the preceding calendar year for reporting periods beginning January 1, 1997; and

    (d) Assure that the reports required by §B(1)(a) of this regulation contain, at a minimum, the following information, unless otherwise specified in the currently available currently applicable version of EPA Form 8700-13A/B:

      (i) The EPA identification number, name, and address of the generator;

      (ii) The calendar year covered by the report;

      (iii) The EPA identification number, name, and address for each off-site treatment, storage, or disposal facility in the United States to which waste was shipped during the year;

      (iv) The name and EPA identification number of each transporter used during the reporting year for shipments to a treatment, storage, or disposal facility within the United States;

      (v) For shipments of hazardous waste to a treatment, storage, or disposal facility within the United States, the description, the EPA or State hazardous waste number from COMAR 26.13.02, the DOT hazard class, and the quantity of each hazardous waste listed by the EPA identification number of each off-site facility to which waste was shipped;

      (vi) A description of the efforts undertaken during the year to reduce the volume and toxicity of waste generated;

      (vii) Except as provided in §B4 of this regulation, a description of the changes in the volume and toxicity of waste actually achieved during the year in comparison to previous years; and

      (viii) The certification on EPA Form 8700-13A/B signed by the generator or authorized representative.

  (2) A generator who treats, stores, or disposes of hazardous waste on-site shall submit an annual or biennial report covering those wastes in accordance with the provisions of COMAR 26.13.05.05F, 26.13.06.05A and B(3) and (4), 26.13.07.15E(3), and 26.13.10.

  (3) Information on exports of hazardous waste is not required to be included in the report required by §B(1) and (2) of this regulation. Instead, exporters of hazardous waste shall comply with the annual reporting requirements that are established by 40 CFR §262.83(g) and administered by EPA, as specified in Regulation .07B of this chapter.

  (4) Information required by §B(1)(d)(vii) of this regulation on changes in volume and toxicity of waste actually achieved in comparison to years before 1984 is only required to the extent that this information is available.

  (5) The reporting requirement of this section does not apply to person who qualifies as a Maryland-defined small quantity generator in every month of a year for which a report under this section would otherwise have to be submitted, but does apply if the person did not qualify as a Maryland-defined small quantity generator in any month of that year.

C. Exception Reporting.

  (1) A generator who does not receive a copy of the manifest with the handwritten signature of the owner or operator of the designated facility within 35 days of the date the waste was accepted by the initial transporter shall contact the transporter and/or the owner or operator of the designated facility to determine the status of the hazardous waste.

  (2) A generator shall submit an exception report to the Secretary if the generator has not received a copy of the manifest with the handwritten signature of the owner or operator of the designated facility within 45 days of the date the waste was accepted by the initial transporter and include in the exception report the following:

    (a) A legible copy of the manifest for which the generator does not have confirmation of delivery;

    (b) A cover letter signed by the generator or his authorized representative explaining the efforts taken to locate the hazardous waste and the results of those efforts.

  (3) If the designated facility is located out-of-State in a state which administers the federal program, the generator who does not receive a copy of the manifest as described in §C(1) of this regulation, shall submit an exception report to that state's approving authority as specified in §C(2) of this regulation. If that state's program is administered by the EPA, the Report shall be forwarded to the EPA Regional Administrator for the region in which the designated facility is located.

  (4) For a rejected shipment of hazardous waste or container residues contained in non-empty containers that a designated facility forwards to an alternate facility using a new manifest, following the procedures of COMAR 26.13.05.05C(5)(b)(i)—(ix), the generator shall :

    (a) Comply with the requirements of §C(1) and (2) of this regulation for the shipment that is forwarding the material from the designated facility to the alternate facility instead of for the shipment from the generator to the designated facility; and

    (b) In complying with §C(1) and (2) of this regulation with respect to the shipment to the alternate facility:

      (i) Take the required actions based on whether the generator has received, by the specified deadlines, a copy of the manifest with the handwritten signature of the owner or operator of the alternate facility rather than a copy of the manifest with the handwritten signature of the owner or operator of the original designated facility; and

      (ii) Determine whether the 35-day and 45-day deadlines have passed by comparing the current date to the date that the waste was accepted by the initial transporter forwarding the hazardous waste shipment from the designated facility to the alternate facility.

D. Additional Reporting. The Secretary, as he deems necessary, may require generators to furnish additional reports concerning the quantities and disposition of wastes identified or listed in COMAR 26.13.02.

#### Regulation .07 Transboundary Movements of Hazardous Waste for Recovery or Disposal.

*COMAR 26.13.03.07*

A. Applicability.

  (1) Except as provided in §A(3) of this regulation, this regulation applies to transboundary movements of hazardous wastes.

  (2) The requirements identified in §B(1) of this regulation are administered by the U.S. Environmental Protection Agency as a foreign policy matter and are not delegated to the states.

  (3) State Wastes Excluded from this Regulation.

    (a) Except for a waste that exhibits one or more of the characteristics of hazardous waste identified in COMAR 26.13.02.10—.14, this regulation does not apply to a waste that is listed as a hazardous waste by the State but not by the U.S. Environmental Protection Agency.

    (b) The waste codes for the wastes referred to in §B(3(a) of this regulation that are listed as hazardous by the State but not by EPA, and the sections of COMAR where the waste codes are assigned are:

      (i) MD01, MD02, and MD03, assigned in COMAR 26.13.02.17;

      (ii) MX01, assigned in COMAR 26.13.02.19D;

      (iii) M001, assigned in COMAR 26.13.02.19F; and

      (iv) MT01, assigned in COMAR 26.13.02.19H.

B. Requirements.

  (1) A person involved in the transboundary movement of hazardous waste shall comply with the requirements of 40 CFR Part 262, Subpart H, as qualified by §B(2) of this regulation.

  (2) In complying with the requirements of 40 CFR Part 262, Subpart H, a person shall comply with provisions in the Code of Federal Regulations as referenced rather than analogous provisions in COMAR, except in instances when the federal reference includes the qualifier “or the state equivalent”.

#### Regulation .07-1 Export Notification — Repealed

*COMAR 26.13.03.07-1*

#### Regulation .07-2 Exports of Hazardous Waste — Manifesting, Reporting, and Record Keeping — Repealed

*COMAR 26.13.03.07-2*

#### Regulation .07-3 Imports of Hazardous Waste — Repealed

*COMAR 26.13.03.07-3*

#### Regulation .07-4 Farmers.

*COMAR 26.13.03.07-4*

A farmer disposing of waste pesticides from the farmer's own use which are hazardous wastes is not required to comply with the standards of this chapter or other standards in COMAR 26.13.05, 26.13.06, 26.13.07, or 26.13.09 for those wastes, provided the farmer triple rinses each emptied pesticide container in accordance with COMAR 26.13.02.07B(3) and disposes of the pesticide residues on the farmer's own farm in a manner consistent with disposal instructions on the pesticide label.

### Chapter 04 — Standards Applicable to Transporters of Hazardous Waste

**Authority:** Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.03 adopted as an emergency provision effective November 18, 1980 (7:25 Md. R. S-1); adopted permanently effective April 3, 1981 (8:7 Md. R. 642)

**Administrative History:** Regulations .01A—C, .02A, C amended, and .03C adopted effective July 30, 1984 (11:15 Md. R. 1330)

**Administrative History:** Regulation .01C adopted effective January 18, 1982 (9:1 Md. R. 20)

**Administrative History:** Regulations .01C and .02A and C amended effective January 31, 1983 (10:2 Md. R. 110)

**Administrative History:** Regulations .01C, .02A, .04A and C amended, and .01D—F adopted effective February 13, 1984 (11:3 Md. R. 202)

**Administrative History:** Regulations .02C and .03A amended effective January 18, 1982 (9:1 Md. R. 20)

**Administrative History:** Regulation .04 adopted effective January 18, 1982 (9:1 Md. R. 20)

**Administrative History:** Chapter recodified from COMAR 10.51.04 to COMAR 26.13.04

**Administrative History:** Regulation .01 amended effective June 18, 2018 (45:12 Md. R. 619)

**Administrative History:** Regulation .01A amended effective May 1, 2008 (35:8 Md. R. 809); January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .01C amended and G adopted effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .01D amended effective September 7, 1998 (25:18 Md. R. 1438); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .01F amended effective December 23, 1991 (18:25 Md. R. 2759); November 9, 1992 (19:22 Md. R. 1991); September 11, 2006 (33:18 Md. R. 1507)

**Administrative History:** Regulation .02 amended effective September 11, 2006 (33:18 Md. R. 1507); January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .02A amended effective April 18, 1988 (15:8 Md. R. 1009); August 28, 1995 (22:17 Md. R. 1321)

**Administrative History:** Regulation .03A and C amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .03C amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .04 amended effective April 18, 1988 (15:8 Md. R. 1009)

#### Regulation .01 General.

*COMAR 26.13.04.01*

A. Scope.

  (1) These regulations establish standards which apply to persons transporting hazardous waste within the State if the transportation requires a manifest under COMAR 26.13.03.

  (2) These regulations do not apply to on-site transportation of hazardous waste by generators or by owners or operators of permitted hazardous waste management facilities.

  (3) A transporter of hazardous waste shall also comply with COMAR 26.13.03, Standards Applicable to Generators of Hazardous Waste, if the generator:

    (a) Transports hazardous waste into the United States from abroad; or

    (b) Mixes hazardous waste of different DOT shipping descriptions by placing them into a single container.

  (4) This chapter does not apply to transportation during an explosives or munitions emergency response conducted in accordance with:

    (a) COMAR 26.13.07.01A; and

    (b) Either:

      (i) COMAR 26.13.05.01A(3)(h)(iv) and D(5) and (6); or

      (ii) COMAR 26.13.06.01A(4)(h)(iv), (5)(b), and (5)(c).

  (5) COMAR 26.13.10.28 identifies how the requirements of this chapter apply to military munitions classified as solid waste under COMAR 26.13.10.27B.

  (6) A transporter of hazardous waste that is being imported from or exported to any other country for purposes of recovery or disposal is subject to this chapter and to all other relevant requirements of 40 CFR Part 262, Subpart H, as made applicable in COMAR 26.13.03.07, including, but not limited to, 40 CFR 262.83(d) and 262.84(d) for movement documents.

B. EPA Identification Number.

  (1) A transporter may not transport hazardous wastes without having received an EPA identification number from the Secretary.

  (2) A transporter who has not received an EPA identification number may obtain one by applying to the Secretary using EPA Form 8700-12. Upon receiving the request, the Secretary shall assign an EPA identification number to the transporter.

C. Certificate.

  (1) Except for CHS used for residential purposes or those regulated by the Maryland Department of Agriculture, a person may not transport a CHS to a facility within the State or from a source within the State unless the person obtains a certificate from the Department. For the purpose of these regulations, CHS used for residential purposes means those CHS used in a household or domestic situation, and normally discarded in small quantities in refuse and other household waste collected for disposal in conventional sanitary landfills. A CHS Hauler Certificate is required of persons engaged in transporting CHS. All vehicles or articulated transports, to a facility within the State or from a source within the State, shall carry the vehicle certification and a copy of the hauler certification in the cab of the controlled hazardous substance vehicle and present the certifications upon request.

  (2) As a condition to being issued and operating under a certificate, a person shall do the following:

    (a) Report periodically, on a form provided by the Department, on the source, disposal destination, volume, and nature of the CHS transported;

    (b) Provide a copy of the manifest supplied by the waste generator to the operator of facilities;

    (c) Secure and maintain a bond of not less than $50,000 for the purpose of indemnifying the State for abatement of pollution resulting from the improper transportation or spill of CHS;

    (d) Pay a yearly fee for certification not to exceed $50 per vehicle used for hauling CHS;

    (e) Have a vehicle safety inspection performed on each vehicle (truck, truck tractor, and trailer/semitrailer) in accordance with §G of this regulation; and

    (f) Submit proof of liability insurance coverage meeting the requirements of 49 CFR 387.

  (3) A request for certification shall be submitted annually in writing and shall include information pertaining to the nature and quantity of the CHS to be transported, the source and destination, the method of transportation, specific information pertaining to the vehicles used to transport CHS, such as vehicle age and construction specifications, the safety inspection of the vehicle, proof of liability insurance, and the fee for certification. Failure to provide this information, the fee for certification, or other information required by the Department shall constitute grounds for denial of certification.

  (4) The State Fire Marshal, and other public safety agencies approved by him, are certified CHS transporters.

  (5) Utility maintenance crews are certified CHS transporters for CHS transported during the normal execution of their duties.

  (6) This regulation does not apply to transportation within industrial plant sites such as transport of a CHS from an in-plant storage area to an in-plant waste treatment facility.

  (7) Approved personnel of the Department of the Environment are certified CHS transporters.

  (8) Interstate Certificates.

    (a) Interstate carriers with more than 10 trucks operating in or out of the State, and servicing more than three States, may apply for Interstate Certificates if the carrier:

      (i) Has 5 vehicle certificates currently issued; and

      (ii) Meets the insurance requirements of 49 CFR 387— Minimum Levels of Financial Responsibility for Motor Carriers.

    (b) Interstate certificates are transferable from one vehicle to another. The location of the certificate shall be registered with the Department.

    (c) The carrier shall notify the Department 24 hours before use of the certificate. The notification will include information detailing the type of vehicle, serial number, make, model, State of registration, license destination, material transported, and other information as may be requested.

    (d) The maximum number of transferable certificates issued may not exceed the number of permanent certificates issued to a carrier.

    (e) Each certificate issued shall carry a fee of $50.

D. Mixing.

  (1) Except under the supervision of the Department during an emergency, a CHS hauler may not mix, as defined by this regulation, any CHS except in a CHS facility.

  (2) Mixing includes any blending, mingling, combining, consolidating or putting together of CHS unless specifically excluded under §D(3) of this regulation.

  (3) Mixing does not include the blending, mingling, combining, or putting together of waste within but not among the following categories of hazardous waste from the same or different sources provided the substances are chemically and physically compatible:

    (a) Acids of less than 1 molar concentrations;

    (b) Bases of less than 1 molar concentrations;

    (c) Cyanides with EPA Hazardous Waste Numbers F007, F008, F009, F010, F011, F013, or F016, or all of these;

    (d) Halogenated solvents—contaminated with 1 percent or less of non-halogenated;

    (e) Solvents non-halogenated—contaminated with 1 percent or less of halogenated.

  (4) If a person transports used oil in a truck that has been used to transport hazardous waste, the person shall either:

    (a) Assure that the truck is empty according to the criteria of COMAR 26.13.02.07 before loading the used oil onto the truck; or

    (b) Manage the mixture of the used oil and the previously transported hazardous waste:

      (i) As hazardous waste, or

      (ii) As otherwise allowed under the provisions of COMAR 26.13.10.05.

  (5) When consolidating the contents of two or more containers with the same hazardous waste into a new container, or when combining and consolidating two different hazardous wastes that are compatible with each other, the transporter shall do the following for each container of 119 gallons or less that is being used to hold the consolidated waste:

    (a) Mark the container with the words “Hazardous Waste”; and

    (b) Either:

      (i) Mark the container with each applicable EPA hazardous waste number (EPA hazardous waste code) identified in COMAR 26.13.02.10—.19; or

      (ii) Use the method specified in COMAR 26.13.03.05C(3) to satisfy the requirement to mark the container with the EPA hazardous waste numbers of the wastes in the container.

E. Stoppage.

  (1) Except under the supervision of the Department during an emergency, a CHS hauler may not store CHS except in a CHS facility. Storage in a CHS vehicle does not include periods of stoppage, as defined by §E(2), of this regulation, if the conditions in §E(3) of this regulation are met.

  (2) Stoppage is a period of time not to exceed 72 hours during which a CHS vehicle is at rest. The cumulative period of stoppage may not exceed 5 days for a particular shipment of CHS within the State. Any stoppage in excess of 12 hours shall be at a facility or other suitable site.

  (3) During periods of stoppage, for instance, at truck stops or truck terminals, a CHS hauler shall comply with COMAR 26.13.05.02G and H; .03E—H; .04; .05; .09; and .10.

F. Inspection, Repair, and Maintenance. Before a person may receive a hazardous waste vehicle certificate and certification sticker, the person shall:

  (1) Certify that the vehicle is in compliance with the requirements of 49 CFR 396;

  (2) Submit, to the Secretary, a copy of the most recent inspection report prepared in accordance with 49 CFR §396.21(a) to document that the vehicle has been inspected in accordance with the requirements of 49 CFR §396.17.

#### Regulation .02 Compliance with the Manifest System and Record Keeping.

*COMAR 26.13.04.02*

A. The Manifest System.

  (1) A transporter:

    (a) May not accept hazardous waste from a generator unless the transporter is also provided with:

      (i) A manifest signed in accordance with the provisions of COMAR 26.13.03.04E; or

      (ii) An electronic manifest that is obtained, completed, and transmitted in accordance with COMAR 26.13.03.04A(1)(b), and signed with a valid and enforceable electronic signature as described in COMAR 26.13.03.04E-2; and

    (b) May only accept hazardous waste intended for export that is subject to COMAR 26.13.03.07 if:

      (i) The waste is accompanied by a manifest signed in accordance with COMAR 26.13.03.04A;

      (ii) For exports occurring under the terms of a consent issued by EPA on or after December 31, 2016, the waste is accompanied by a movement document that includes all information required by 40 CFR §262.83(d); and

      (iii) A copy of the EPA Acknowledgement of Consent is attached to the shipping paper if the shipment is a bulk shipment by water, or is attached to the manifest if the shipment is neither by rail nor a bulk shipment by water.

  (2) Before transporting the hazardous waste, the transporter shall sign and date the manifest acknowledging acceptance of the hazardous waste from the generator. The transporter shall return a signed copy to the generator before leaving the generator's property.

  (3) The transporter shall:

    (a) Ensure that the manifest accompanies the hazardous waste;

    (b) For exports occurring under the terms of a consent issued by EPA to the exporter on or after December 31, 2016, ensure that a movement document that includes all the information required by 40 CFR §262.83(d) also accompanies the hazardous waste;and

    (c) In the case of imports occurring under the terms of a consent issued by EPA to the country of export or the importer on or after December 31, 2016, ensure that a movement document that includes all information required by 40 CFR §262.84(d) also accompanies the hazardous waste.

  (4) A transporter who delivers a hazardous waste to another transporter or to the designated facility shall:

    (a) Obtain the date of delivery and the handwritten signature of that transporter or of the owner or operator of the designated facility on the manifest;

    (b) Retain one copy of the manifest in accordance with §C of this regulation; and

    (c) Give the remaining copies of the manifest to the accepting transporter or designated facility.

  (5) The requirements of §A(3), (4), and (6) of this regulation do not apply to water (bulk shipment) transporters if:

    (a) The hazardous waste is delivered by water (bulk shipment) to the designated facility;

    (b) The hazardous waste is accompanied by:

      (i) A shipping paper containing all the information required on the manifest, excluding the EPA identification numbers, generator certification, and signatures; and

      (ii) For exports or imports occurring under the terms of a consent issued by EPA on or after December 31, 2016, a movement document that includes all information required by 40 CFR §262.83(d) or 262.84(d);

    (c) The delivering transporter obtains the date of delivery and handwritten signature of the owner or operator of the designated facility on either the manifest or the shipping paper;

    (d) The person delivering the hazardous waste to the initial water (bulk shipment) transporter obtains the date of delivery and signature of the water (bulk shipment) transporter or the manifest and forwards it to the designated facility; and

    (e) A copy of the shipping paper or manifest is retained by each water (bulk shipment) transporter in accordance with §C of this regulation.

  (6) Rail Shipments. For shipments involving rail transportation, the requirements of §A(3)—(5) of this regulation do not apply, but the following requirements do apply:

    (a) When accepting hazardous waste from a nonrail transporter, the initial rail transporter shall:

      (i) Sign and date the manifest acknowledging acceptance of the hazardous waste;

      (ii) Return a signed copy of the manifest to the nonrail transporter;

      (iii) Forward at least three copies of the manifest to the next nonrail transporter, if any, the designated facility, if the shipment is delivered to that facility by rail, or the last rail transporter designated to handle the waste in the United States;

      (iv) Retain one copy of the manifest and rail shipping paper in accordance with §C(3) of this regulation.

    (b) Rail transporters shall ensure that:

      (i) A shipping paper containing all the information required on the manifest, excluding the EPA identification numbers, generator certification, and signatures, accompanies the hazardous waste at all times; and

      (ii) For exports or imports occurring under the terms of a consent issued by EPA on or after December 31, 2016, a movement document that includes all information required by 40 CFR §262.83(d) or 262.84(d) accompanies the hazardous waste at all times.

    (c) Intermediate rail transporters are not required to sign either the manifest or shipping paper.

    (d) When delivering hazardous waste to the designated facility, a rail transporter shall:

      (i) Obtain the date of delivery and handwritten signature of the owner or operator of the designated facility on the manifest or the shipping paper (if the manifest has not been received by the facility); and

      (ii) Retain a copy of the manifest or signed shipping paper in accordance with §C of this regulation.

    (e) When delivering hazardous waste to a nonrail transporter, a rail transporter shall:

      (i) Obtain the date of delivery and the handwritten signature of the next nonrail transporter on the manifest; and

      (ii) Retain a copy of the manifest in accordance with §C of this regulation.

    (f) Before accepting hazardous waste from a rail transporter, a nonrail transporter shall sign and date the manifest and provide a copy to the rail transporter.

  (7) Transporters who transport hazardous waste out of the United States shall:

    (a) Sign and date the manifest in the International Shipments block to indicate the date that the shipment left the United States;

    (b) Retain one copy in accordance with §C of this regulation;

    (c) Return a signed copy of the manifest to the generator; and

    (d) For paper manifests only, send a copy of the manifest to the e-manifest system in accordance with the allowable methods specified in 40 CFR §264.71(a)(2)(v).

A-1. Use of Electronic Manifest.

  (1) Legal Equivalence to Paper Forms for Participating Transporters. For the purposes of COMAR 26.13.01—.10:

    (a) An electronic manifest that is obtained, completed, and transmitted in accordance with COMAR 26.13.03.04A(1)(b), and used in accordance with this section instead of using EPA Forms 8700–22 and 8700–22A, is the legal equivalent of paper manifest forms bearing handwritten signatures and satisfies for all purposes any requirement to obtain, complete, sign, provide, use, or retain a manifest;

    (b) A requirement to sign a manifest or manifest certification by hand, or to obtain a handwritten signature, is satisfied by signing with or obtaining a valid and enforceable electronic signature within the meaning of COMAR 26.13.03.04E-2;

    (c) A requirement to give, provide, send, forward, or return to another person a copy of the manifest is satisfied when a copy of an electronic manifest is transmitted to the other person by submission to the electronic manifest system;

    (d) A requirement for a manifest to accompany a hazardous waste shipment:

      (i) Except as provided in §A-1(1)(d)(ii) of this regulation, is satisfied when a copy of an electronic manifest is accessible during transportation and forwarded to the person or persons who are scheduled to receive delivery of the waste shipment; and

      (ii) Includes a requirement for a transporter to carry one printed copy of the electronic manifest on the transport vehicle to the extent that the U.S. Department of Transportation hazardous materials regulation on shipping papers for carriage by public highway requires transporters of hazardous materials to carry a paper document to comply with 49 CFR §177.817;

    (e) A requirement for a transporter to keep or retain a copy of a manifest is satisfied by the retention of an electronic manifest in the transporter's account on the national electronic manifest system if the copy is readily available for viewing and production if requested by an inspector representing the Department or EPA; and

    (f) If a transporter is unable to produce an electronic manifest for inspection in accordance with §A-1(1)(e) of this regulation, the generator is not considered to be in violation of the requirement to have a copy of the manifest readily available if the generator can demonstrate that the inability to produce the electronic manifest is due exclusively to a technical difficulty with the electronic manifest system for which the generator bears no responsibility.

  (2) Accessing the Electronic Manifest System. A transporter may participate in the electronic manifest system either by accessing the electronic manifest system from the transporter's own electronic equipment, or by accessing the electronic manifest system from the equipment provided by a participating generator, by another transporter, or by a designated facility.

  (3) Special Procedures When the Electronic Manifest System Is Unavailable. If, after a manifest has been originated electronically and signed electronically by the initial transporter, the electronic manifest system becomes unavailable for any reason, then:

    (a) The transporter in possession of the hazardous waste when the electronic manifest becomes unavailable shall reproduce:

      (i) A copy of the printed manifest that is carried on the transport vehicle in accordance with §A-1(1)(d)(ii) of this regulation, or obtain and complete another paper manifest for this purpose; and

      (ii) Sufficient copies of the document identified in §A-1(3)(a)(i) of this regulation to provide the transporter and all subsequent waste handlers with a copy for their files, plus two additional copies that will be delivered to the designated facility with the hazardous waste;

    (b) On each printed copy being used to substitute for the unavailable electronic manifest, the transporter shall include:

      (i) A notation in the Special Handling and Additional Description space (Item 14) that the paper manifest is a replacement manifest for a manifest originated in the electronic manifest system;

      (ii) If not pre-printed on the replacement manifest, the manifest tracking number of the electronic manifest that is replaced by the paper manifest; and

      (iii) A brief explanation of why the electronic manifest was not available for completing the tracking of the shipment electronically;

    (c) A transporter signing a replacement manifest to acknowledge receipt of the hazardous waste shall ensure that each paper copy is individually signed and that a legible handwritten signature appears on each copy; and

    (d) From the point at which the electronic manifest is no longer available for tracking the waste shipment, each transporter shall ensure that the paper replacement manifest copies are carried, signed, retained as records, and given to a subsequent transporter or to the designated facility, following the instructions, procedures, and requirements that apply to the use of all other paper manifests.

  (4) Special Procedures for Electronic Signature Methods Undergoing Tests. If a transporter using an electronic manifest signs the manifest electronically using an electronic signature method that is undergoing pilot or demonstration tests aimed at demonstrating the practicality or legal dependability of the signature method, then the transporter shall:

    (a) Sign the electronic manifest electronically and also sign with an ink signature the transporter acknowledgement of receipt of materials on the printed copy of the manifest that is carried on the vehicle in accordance with §A-1(1)(d)(ii) of this regulation;

    (b) Present the printed copy of the manifest bearing the generator's and transporter's ink signatures to the designated facility to sign in ink to indicate the receipt of the waste materials or to indicate discrepancies; and

    (c) After the owner or operator of the designated facility has signed the printed manifest copy with the owner or operator's ink signature, deliver the printed manifest copy to the designated facility with the waste materials.

  (5) Post-Receipt Manifest Data Corrections.

    (a) After a facility has certified to the receipt of hazardous wastes by signing Item 20 of the manifest, any post-receipt data corrections may be submitted at any time by any interested person named on the manifest, such as a waste handler.

    (b) A transporter may participate electronically in the post-receipt data corrections process by following the process described in COMAR 26.13.05.05B(11), which applies to corrections made to either paper or electronic manifest records.

B. Compliance with the Manifest.

  (1) The transporter shall deliver the entire quantity of hazardous waste which he has accepted from a generator or a transporter to the:

    (a) Designated facility listed on the manifest;

    (b) Alternate designated facility, if the hazardous waste cannot be delivered to the designated facility because an emergency prevents delivery;

    (c) Next designated transporter; or

    (d) Place outside the United States designated by the generator.

  (2) Emergency Condition. If the hazardous waste cannot be delivered in accordance with §B(1) of this regulation because of an emergency condition other than rejection of the waste by the designated facility, then:

    (a) The transporter shall contact the generator for further directions and shall revise the manifest according to the generator's instructions; and

    (b) The requirements of §B(5)—(7) of this regulation apply.

  (3) If hazardous waste is rejected by the designated facility while the transporter is on the facility's premises, and the rejection involves a partial load rejection or regulated quantities of container residues, the transporter shall:

    (a) Obtain a copy of the original manifest that includes:

      (i) The date and signature entered on the manifest by the facility;

      (ii) The manifest tracking number of the new manifest that will accompany the shipment of the rejected waste, entered in the manifest reference number line in the discrepancy block, Item 18a of the manifest; and

      (iii) A description of the partial rejection or container residue in the discrepancy block;

    (b) Retain a copy of the manifest described in §B(3)(a) of this regulation in accordance with §C of this regulation, and give the remaining copies of the original manifest to the rejecting designated facility;

    (c) Obtain a new manifest to accompany the shipment if the transporter is forwarding the rejected part of the shipment or a regulated container residue to an alternate facility or returning it to the generator; and

    (d) Assure that the new manifest required by §B(3)(c) of this regulation includes all the information required in COMAR 26.13.05.05C(5)(b), 26.13.05.05C(6)(b), or 26.13.06.05A.

  (4) If hazardous waste is rejected by the designated facility while the transporter is on the facility's premises, and the rejection involves full load rejection that will be taken back by the transporter, the transporter shall:

    (a) Obtain a copy of the original manifest that includes:

      (i) The date and signature entered on the manifest by the facility attesting to the rejection;

      (ii) The description of the rejection in the discrepancy block of the manifest; and

      (iii) The name, address, phone number, and EPA identification number for the alternate facility or generator to whom the shipment will be delivered, in Item 18b of the manifest;

    (b) Retain a copy of the manifest described in §B(4)(a) of this regulation in accordance with §C of this regulation;

    (c) Give a copy of the manifest described in §B(4)(a) of this regulation to the rejecting designated facility; and

    (d) If the original manifest is not used to accompany the shipment of the rejected load, obtain a new manifest for the shipment that has been prepared in compliance with COMAR 26.13.05.05C(5)(a), 26.13.05.05C(6)(a), or 26.13.06.05A.

  (5) Emergency Condition — Transporters Without Agency Authority.

    (a) If, as described in §B(2) of this regulation, hazardous waste is not delivered to the next designated transporter in accordance with §B(1)(c) of this regulation, and the current transporter is without contractual authorization from the generator to act as the generator's agent with respect to transporter additions or substitutions, then the current transporter shall contact the generator for further instructions before making any revisions to the transporter designations on the manifest.

    (b) The current transporter may, after receiving further instructions from the generator in accordance with §B(5)(a) of this regulation, and receiving authorization from the generator to make proposed revisions to the transporter designations on the manifest, make revisions to the transporter designations on the manifest if:

      (i) The hazardous waste is not delivered in accordance §B(1)(c) of this regulation because of an emergency condition; or

      (ii) The current transporter proposes to change the transporter or transporters designated on the manifest by the generator or proposes to add a new transporter during transportation, with the reason for the proposed change being the facilitation of a response to an emergency or for the purposes of transportation efficiency, convenience, or safety.

  (6) Emergency Condition — Transporters with Agency Authority. If, as described in §B(2) of this regulation, hazardous waste is not delivered to the next designated transporter in accordance with §B(1)(c) of this regulation, and the current transporter has authorization from the generator to act as the generator's agent, then the current transporter may change the transporter or transporters designated on the manifest, or add a new transporter, during transportation without the generator's prior, explicit approval, if:

    (a) The current transporter is authorized by a contractual provision that provides explicit agency authority for the transporter to make such transporter changes on behalf of the generator;

    (b) The transporter enters in Item 14 of each manifest for which a change under this authority is made the following statement of its agency authority: “Contract retained by generator confers agency authority on initial transporter to add or substitute additional transporters on generator's behalf.”; and

    (c) The change in designated transporters is necessary to respond to an emergency, or for purposes of transportation efficiency, convenience, or safety.

  (7) Emergency Condition — Generator Liability. The grant by a generator of authority to a transporter to act as the agent of the generator with respect to changes to transporter designations under §B(6) of this regulation does not affect the generator's liability or responsibility for complying with any applicable requirement under COMAR 26.13.01—.10, or grant any additional authority to the transporter to act on behalf of the generator.

C. Record Keeping.

  (1) A transporter of hazardous waste shall keep a copy of the manifest signed by the generator, himself, and the next designated transporter or the owner or operator of the designated facility for a period of 3 years from the date the hazardous waste was accepted by the initial transporter.

  (2) For shipments delivered to the designated facility by water (bulk shipment), each water (bulk shipment) transporter shall retain a copy of a shipping paper containing all the information required in §A(5)(b) of this regulation for a period of 3 years.

  (3) For shipments of hazardous waste by rail within the State the following apply:

    (a) The initial rail transporter shall keep a copy of the manifest and shipping paper with all the information required in §A(6)(b) of this regulation for a period of 3 years from the date the hazardous waste was accepted by the initial transporter;

    (b) The final rail transporter shall keep a copy of the signed manifest, or the shipping paper if signed by the designated facility instead of the manifest, for a period of 3 years from the date the hazardous waste was accepted by the initial transporter;

    (c) Intermediate rail transporters are not required to keep records pursuant to these regulations.

  (4) A transporter who transports hazardous waste internationally out of the State shall keep a copy of the manifest, for a period of 3 years from the date the hazardous waste was accepted by the initial transporter, indicating that the hazardous waste left the United States.

  (5) The periods of retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the Secretary.

D. Electronic Manifest Signatures. An electronic signature method used in connection with the electronic manifest system is acceptable only if:

  (1) Use of the method results in the creation of a legally valid and enforceable signature under applicable EPA and other federal requirements pertaining to electronic signatures; and

  (2) The method has been designed and implemented in a manner that EPA considers to be as cost-effective and practical as possible for the users of the manifest.

#### Regulation .03 Hazardous Waste Discharged.

*COMAR 26.13.04.03*

A. Immediate Action.

  (1) In the event of a discharge of hazardous waste during transportation, the transporter shall take appropriate immediate action to protect human health and the environment (for example, notify local authorities, dike the discharge area), and shall notify the Department and local authorities, if any, within 1 hour of the incident, or, if not immediately discovered, within 1 hour of discovery of the incident, by calling (410)974-3551.

  (2) If a discharge of hazardous waste occurs during transportation, and an official (State or local government or a federal agency) acting within the scope of his official responsibilities determines that immediate removal of the waste is necessary to protect human health or the environment, that official may authorize the removal of the waste by transporters who do not have EPA identification numbers and without the preparation of a manifest.

  (3) An air, rail, highway, or water transporter who has discharged hazardous waste shall:

    (a) Give notice if required by 49 CFR §171.15 to the National Response Center, (800)424-8802;

    (b) Submit a report in writing as required by 49 CFR §171.16 to the Information Systems Manager, DHM-63, Research and Special Programs Administration, Department of Transportation, Washington, DC 20590; and

    (c) Submit a report in writing within 30 days to the Director of the Waste Management Administration, Department of the Environment, 2500 Broening Highway, Baltimore, Maryland 21224.

  (4) A water (bulk shipment) transporter who has discharged hazardous waste shall give notice by 33 CFR §153.203 to the National Response Center, (800)424-8802, or in the District of Columbia, (202)426-2675, and to the State, (410)974-3551.

B. Discharge Cleanup. A transporter shall clean up any hazardous waste discharge that occurs during transportation or take such action as may be required or approved by federal, State, or local officials so that the hazardous waste discharge no longer presents a hazard to human health or the environment.

C. All references to 49 CFR in this regulation mean 49 CFR as it has been adopted as of October 1, 2007.

#### Regulation .04 Bonding.

*COMAR 26.13.04.04*

A. The Department as a condition to the issuance of a CHS Hauler Certificate shall require a person to secure a bond of not less than $50,000 for the purpose of indemnifying the State for abatement of pollution from the improper transportation or spill of CHS. The bond shall be executed by the permittee and corporate surety licensed to do business in the State.

B. Alternative Financial Guarantees. Instead of a corporate surety, one of the following shall be acceptable:

  (1) Deposits of cash or negotiable bonds of the United States Government. The cash deposit or market value of the securities shall be equal at least to the required sum of the bond. The Department, on receipt of any deposit of cash or securities, immediately shall forward it to the State Treasurer, who shall receive and hold the bond in the name of the State, in trust, for the purposes for which the deposit is made. The State Treasurer at all times is responsible for the custody and safekeeping of these deposits. The person making the deposit may demand and receive from the State Treasurer the whole or any portion of any securities so deposited, on depositing with the State Treasurer other negotiable securities of the classes specified in this section having a market value at least equal to the sum of the bond.

  (2) A certificate of deposit, if it is equivalent to the required bond, issued by a bank within the State, and accompanied by written agreement of the bank to pay on demand to the State upon a finding of forfeit by the Secretary.

  (3) An instrument or other financial guarantee, such as an irrevocable letter of credit, which in the discretionary judgment of the Secretary adequately indemnifies the State.

C. Upon expiration of the time limitations specified in the certification, the Department shall release the bond, provided that all provisions of the certificate and Environment Article, §§7-201—7-268, inclusive, Annotated Code of Maryland, have been satisfactorily met. Failure to fully comply with the provisions set forth above, or revocation of the certificate, shall constitute grounds for the Department to initiate forfeiture proceedings.

D. Forfeiture Proceedings. The Department shall notify the permittee by registered mail of its intent to initiate forfeiture proceedings. The permittee has 30 days to show cause why the bond or cash deposit should not be forfeited.

### Chapter 05 — Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities

**Authority:** Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.18 adopted as an emergency provision effective November 18, 1980 (7:25 Md. R. S-1); adopted permanently effective April 3, 1981 (8:7 Md. R. 642)

**Administrative History:** Regulations .01, .05G, .06, .08A, .11C, .12D, and .14C amended effective January 18, 1982 (9:1 Md. R. 20)

**Administrative History:** Regulations .01—.12, .18 amended effective January 31, 1983 (10:2 Md. R. 110)

**Administrative History:** Regulations .01A, B, .02F, .05D, H, .07C, D, G, H, .08A, .09G, .10D, F, .11A-1, C, E—G, .12A, B, D, D-1, E, G, .13, .14, .15A, .16A, .18 (Appendix IV) amended, .15-1 adopted, .06 repealed and new .06adopted, .10I, .12C-1, and .18 (Appendices VI—XIII) repealed effective February 13, 1984 (11:3 Md. R. 202)

**Administrative History:** Regulations .01A, .02D, F, .05G, .06A, I, .07A, D, I, .10D, .11B, F, F-1, .12D-1, .14A—C, J, L, .15-1A, D amended, and .01C adopted effective July 30, 1984 (11:15 Md. R. 1330)

**Administrative History:** Regulation .01A amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .02I, J adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .04G amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .05A, D amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .06A amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .06L adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .07B amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .07C—J repealed and new C—J adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .08A amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .09F, H, and I amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .10D, E amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .10I adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .11A-1, B, C, E, F, F-1 amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .12B, D-1 amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .12H adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .13N adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .14B, C amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .14P adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .15A amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .15-1B, C, and F amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .16G adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .10C-1—I recodified to .10D—J

**Administrative History:** Regulation .11A-1—F recodified to .11B—G

**Administrative History:** Regulation .11F-1—I recodified to .11H—K

**Administrative History:** Regulation .12D-1 and D-2 recodified to .12E and F

**Administrative History:** Regulation .12E—H recodified to .12G—J

**Administrative History:** Regulation .15-1 recodified to Regulation .16

**Administrative History:** Regulations .16—.18 recodified to Regulations .17—.19

**Administrative History:** Appendix I—Appendix V codified as Regulations .20—.24

**Administrative History:** Chapter recodified from COMAR 10.51.05 to COMAR 26.13.05

**Administrative History:** Regulation .01A amended effective May 24, 1993 (20:10 Md. R. 853)

**Administrative History:** Regulation .01C amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .02D amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .02F amended effective April 1, 1991 (18:6 Md. R. 690); May 24, 1993 (20:10 Md. R. 853)

**Administrative History:** Regulation .04G amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .05B amended effective May 24, 1993 (20:10 Md. R. 853)

**Administrative History:** Regulation .05D amended effective April 1, 1991 (18:6 Md. R. 690); December 23, 1991 (18:25 Md. R. 2759); May 24, 1993 (20:10 Md. R. 853)

**Administrative History:** Regulation .05F amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .06A amended effective April 1, 1991 (18:6 Md. R. 690)

**Administrative History:** Regulation .06K amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .07A, E, and F amended effective May 24, 1993 (20:10 Md. R. 853)

**Administrative History:** Regulation .07B, C, E, G, and H amended effective April 1, 1991 (18:6 Md. R. 690)

**Administrative History:** Regulation .07B, F amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .08A amended effective April 1, 1991 (18:6 Md. R. 690)

**Administrative History:** Regulation .08B amended effective November 9, 1992 (19:22 Md. R. 1991)

**Administrative History:** Regulation .10 repealed and new Regulations .10—10-7 adopted effective May 24, 1993 (20:10 Md. R. 853)

**Administrative History:** Regulation .10G amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .11D amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .14B, N amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .16-1 adopted effective April 1, 1991 (18:6 Md. R. 690) (Regulation .16-1 was initially adopted as Regulation .17. The recodification to Regulation .16-1 negated the need for some changes to cross-references shown in the Maryland Register.)

**Administrative History:** Regulation .20A amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Chapter revised effective April 11, 1994 (21:7 Md. R. 533)

**Administrative History:** Regulation .01A amended effective August 28, 1995 (22:17 Md. R. 1321)

**Administrative History:** Regulation .01 amended effective September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .05F, H amended effective May 5, 1997 (24:9 Md. R. 659)

**Administrative History:** Regulation .07D amended effective September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .08A amended effective September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .08B amended effective August 28, 1995 (22:17 Md. R. 1321)

**Administrative History:** Regulation .10A amended effective September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .14N amended effective September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .16A, F amended effective May 8, 1995 (22:9 Md. R. 648)

**Administrative History:** Regulation .16D amended effective September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .17-1 adopted effective September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .17-2 adopted effective September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .17-3 adopted effective September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .17-4 adopted effective September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Regulation .21 repealed effective May 5, 1997 (24:9 Md. R. 659)

**Administrative History:** Chapter revised effective October 16, 2000 (27:20 Md. R. 1843)

**Administrative History:** Regulation .01A amended effective November 1, 2002 (29:21 Md. R. 1647); May 1, 2008 (35:8 Md. R. 809); May 3, 2021 (48:9 Md. R. 359); January 13, 2022 (49:1 Md. R. 14); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .01D amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .02C amended effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .02C, D amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .02-1 recodified from COMAR 26.13.06.01 effective October 16, 2000 (27:20 Md. R. 1843)

**Administrative History:** Regulation .02-2 adopted effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .03E, G amended effective May 3, 2021 (48:9 Md. R. 359)

**Administrative History:** Regulation .04G amended effective May 1, 2008 (35:8 Md. R. 809); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .05 amended effective September 11, 2006 (33:18 Md. R. 1507)

**Administrative History:** Regulation .05A, C amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .05B amended effective November 1, 2002 (29:21 Md. R. 1647); January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .05B, F amended effective May 3, 2021 (48:9 Md. R. 359)

**Administrative History:** Regulation .05C, D amended effective January 13, 2022 (49:1 Md. R. 14); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .07 amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .08B amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .11 amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .12 amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .13L amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .14 amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .14N amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .16F amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .17-3E amended effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .18 adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .18-1 adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .18-2 adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .18-3 adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .21 adopted effective May 1, 2008 (35:8 Md. R. 809)

#### Regulation .01 General.

*COMAR 26.13.05.01*

A. Purpose, Scope, and Applicability.

  (1) The purpose of this regulation is to establish minimum State standards which define the acceptable management of hazardous waste.

  (2) The standards in this chapter apply to:

    (a) Owners and operators of facilities which treat, store, or dispose of hazardous waste;

    (b) All treatment, storage, or disposal of hazardous waste at active facilities or at inactive facilities, except as specifically provided otherwise in this chapter, COMAR 26.13.02, 26.13.06, or 26.13.10;

    (c) Inactive disposal facilities when the Department determines that a substantial present or potential hazard to human health or the environment exists;

    (d) As specified in COMAR 26.13.10.30, the storage of military munitions classified as a solid waste under COMAR 26.13.10.27B;

    (e) The treatment and disposal of hazardous waste military munitions; and

    (f) Owners or operators of all facilities that treat, store, or dispose of hazardous wastes referred to in 40 CFR Part 268.

  (3) The requirements of this chapter do not apply to:

    (a) A person disposing of hazardous waste by means of ocean disposal subject to a permit issued under the Marine Protection, Research, and Sanctuaries Act and complying with the following regulations:

      (i) Regulation .02B of this chapter; and

      (ii) Regulation .05B, C, D(1) and (2)(a), and F and G of this chapter;

    (b) The owner or operator of a facility permitted, licensed, or registered by the State to manage municipal or industrial solid waste, if the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation under this chapter by COMAR 26.13.02.05;

    (c) The owner or operator of a facility managing recyclable materials described in COMAR 26.13.02.06A(2) and (3), except to the extent required in this chapter or by COMAR 26.13.10;

    (d) A generator accumulating waste on-site in compliance with:

      (i) COMAR 26.13.03.03-3—.03-10, except to the extent that a provision in COMAR 26.13.03.03-3—.03-10 requires the generator to comply with the requirements in this chapter; or

      (ii) COMAR 26.13.03.05-3—.05-5;

    (e) A farmer disposing of waste pesticides from his own use in compliance with COMAR 26.13.03.07-4;

    (f) The owner or operator of a totally enclosed treatment facility as defined in COMAR 26.13.01.03B(81);

    (g) The owner or operator of an elementary neutralization unit or a wastewater treatment unit, subject to the following:

      (i) For a wastewater treatment unit, the exclusion from the requirements of this chapter does not apply with respect to treatment of a hazardous waste from off-site, other than waste delivered to a unit via sanitary sewer in accordance with the requirements of the Clean Water Act;

      (ii) The owner or operator shall comply with the requirements of Regulation .02H of this chapter if the owner or operator is using the unit to treat a characteristic hazardous waste by dilution to remove the hazardous characteristic from the waste before land disposal, and the waste is either an ignitable hazardous waste described in §A(3)(g)(iii) of this regulation, or a reactive hazardous waste; and

      (iii) The provisions of §A(3)(g)(ii) of this regulation regarding ignitable hazardous waste apply to an ignitable waste other than a waste in the D001 High TOC Subcategory defined in 40 CFR §268.40;

    (h) A person engaged in treatment or containment activities during immediate response to any of the following situations, except as provided in §D of this regulation:

      (i) A discharge of a hazardous waste;

      (ii) An imminent and substantial threat of a discharge of a hazardous waste;

      (iii) A discharge of a material which, if discharged, becomes a hazardous waste; or

      (iv) An immediate threat to human health, public safety, property, or the environment, from the known or suspected presence of conventional military munitions, other explosive material, or an explosive device, as determined by an explosive or munitions emergency response specialist as defined in COMAR 26.13.01.03B.

    (i) The owner or operator of a publicly owned treatment works (POTW) if the owner or operator:

      (i) Has an NPDES permit;

      (ii) Complies with the conditions of the facility's NPDES permit; and

      (iii) Complies with Regulations .02B, .05B, C, D(1) and (2)(a), F, and G of this chapter;

    (j) The addition of absorbent material to a waste container or the addition of waste to absorbent in a container, if:

      (i) The combining of waste and absorbent occurs when waste is first placed in the container;

      (ii) Regulation .02H(2) of this chapter, which concerns requirements for ignitable, reactive, or incompatible waste, is complied with;

      (iii) Regulation .09B of this chapter, which concerns condition of containers, is complied with; and

      (iv) Regulation .09C of this chapter, which concerns compatibility of waste with containers, is complied with;

    (k) Universal waste handlers and universal waste transporters handling the following wastes:

      (i) Batteries, as described in COMAR 26.13.10.07;

      (ii) Pesticides, as described in COMAR 26.13.10.08;

      (iii) Lamps, mercury-containing equipment, or PCB-containing lamp ballasts, each as described in COMAR 26.13.10.09; and

      (iv) Aerosol cans, as described in COMAR 26.13.10.09-1; or

    (l) A person who operates a device to crush mercury-containing lamps if the person who operates the device is in compliance with the requirements of COMAR 26.13.10.15B(3); or

    (m) A reverse distributor accumulating potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals, as defined in COMAR 26.13.01.03B.

Agency Note: Reverse distributors are subject to regulation under COMAR 26.13.10.32—.49 instead of this chapter for the accumulation of potentially creditable hazardous waste pharmaceuticals and evaluated pharmaceuticals.

B. Relationship to Interim Status Standards. A facility owner or operator who has fully complied with the requirements for interim status, as defined in §3005(e) of RCRA and COMAR 26.13.07.23A, shall comply with the regulations specified in COMAR 26.13.06 in place of the regulations in this chapter, until final administrative disposition of the owner or operator's permit application is made.

C. Imminent Hazard Action. Notwithstanding any other provisions of these regulations, enforcement actions may be brought under Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland.

D. Clarifications Concerning Responses to Emergencies.

  (1) The owner or operator of a facility exempted under §A(3)(h) of this regulation but otherwise subject to the requirements of this chapter shall comply with all applicable requirements of Regulations .03 and .04 of this chapter.

  (2) A person exempted from the requirements of this chapter under §A(3)(h) of this regulation who continues or initiates hazardous waste treatment or containment activities after the immediate response is over is subject to all applicable requirements of this chapter and COMAR 26.13.07 with respect to those activities.

  (3) The exemptions of §A(3)(h)(i)—(iv) of this regulation only apply to activities taken in response to a discharge, an imminent and substantial threat of a discharge, or an explosives or munitions emergency. After the immediate response activities are completed, the applicable regulations of this chapter apply fully to the management of any spill residue or debris that is a hazardous waste under COMAR 26.13.02.

  (4) The Secretary may:

    (a) Require a person to comply with the requirements of this chapter even though the person is otherwise exempted from complying with these requirements under §A(3)(h) of this regulation if the Secretary determines that requiring compliance is necessary for the protection of human health or the environment; and

    (b) Consider the following in making the determination under §D(4)(a) of this regulation that a treatment or containment activity shall be subject to the requirements of this chapter:

      (i) The volume of the waste or material that is the subject of the treatment or containment activity;

      (ii) The toxicity of the waste or material that is the subject of the treatment or containment activity; or

      (iii) The risks associated with the treatment or containment activity.

  (5) In the case of an explosives or munitions emergency response, if a federal, State, tribal, or local official acting within the scope of that individual's official responsibilities, or an explosives or munitions emergency response specialist, determines that immediate removal of the material or waste is necessary to protect human health or the environment, that official or specialist may authorize the removal of the material or waste:

    (a) By transporters who do not have EPA identification numbers;

    (b) By transporters who have not been issued a certificate under COMAR 26.13.04.01C and F; and

    (c) Without the preparation of a manifest.

  (6) In the case of emergencies involving military munitions, the responding military emergency response specialist's organizational unit shall retain records for 3 years identifying:

    (a) The dates of the response;

    (b) The responsible persons responding;

    (c) The type and description of material addressed; and

    (d) The final disposition of the material addressed in the emergency.

#### Regulation .02 General Facility Standards.

*COMAR 26.13.05.02*

A. Applicability. This regulation applies to owners and operators of all hazardous waste facilities, except as Regulation .01A provides otherwise.

B. Identification Number. Every facility owner or operator shall apply to the State for an EPA identification number.

C. Required Notices.

  (1) The owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR Part 262, Subpart H, from a foreign source shall:

    (a) Submit the notices required in 40 CFR §264.12(a); and

    (b) In complying with 40 CFR §264.12(a), comply with provisions in the Code of Federal Regulations as referenced rather than analogous provisions in COMAR.

  (2) Before transferring ownership or operation of a facility during its operating life, or of a disposal facility during the post-closure period, the owner or operator shall notify the new owner or operator in writing of the requirements of this chapter and COMAR 26.13.07.

  (3) The owner or operator of a facility that receives hazardous waste from an off-site source, unless the owner or operator is also the generator, shall inform the generator in writing that the appropriate permit or permits for the facility have been obtained, or that the facility has qualified for interim status, and that the waste the generator is shipping will be accepted. The owner or operator shall keep a copy of this written notice as part of the operating record.

  (4) Hazardous Waste Received at a Recovery Facility from a Foreign Source.

    (a) For the purposes of this subsection:

      (i) “Competent authorities” has the meaning stated in 40 CFR §262.81(a);

      (ii) “Concerned countries” has the meaning stated in 40 CFR §262.81(b);

      (iii) “Notifier” has the meaning stated in 40 CFR §262.81(g);

      (iv) “Recovery facility” has the meaning stated in 40 CFR §262.81(j); and

      (v) “Tracking document” means a document that meets the requirements of 40 CFR §262.84, which is incorporated by reference in COMAR 26.13.01.05B(1)(d).

    (b) The owner or operator of a recovery facility that has arranged to receive hazardous waste subject to COMAR 26.13.03.07-5, which deals with international agreements concerning shipments of hazardous waste, shall provide a copy of the tracking document bearing all required signatures, within 3 working days of receipt of the shipment to:

      (i) The notifier;

      (ii) The U.S. EPA at the address given in 40 CFR §264.12(a)(2); and

      (iii) The competent authorities of all other concerned countries.

    (c) A person required to distribute copies of a tracking document under §C(4)(b) of this regulation shall maintain the original of the signed tracking document at the facility for at least 3 years.

D. General Waste Analysis.

  (1) Chemical and Physical Analysis.

    (a) Before an owner or operator treats, stores, or disposes of any hazardous waste, or non-hazardous waste if applicable under Regulation .07D(6) of this chapter, the owner or operator shall obtain a detailed chemical and physical analysis of a representative sample of the waste. At a minimum, this analysis shall contain all the information which is needed to treat, store, or dispose of the waste in accordance with the:

      (i) Requirements of this chapter and COMAR 26.13.09; or

      (ii) Conditions of a permit issued pursuant to COMAR 26.13.07.

    (b) The analysis may include data developed under COMAR 26.13.02, existing published or documented data on the hazardous waste or on waste generated from similar processes.

    (c) The owner or operator shall repeat the analysis required by §D(1)(a) of this regulation to ensure that it is accurate and up to date, and, in doing so, repeat the analysis at a minimum:

      (i) When the owner or operator is notified, or has reason to believe, that the process or operation generating the hazardous waste, or non-hazardous waste if applicable under Regulation .07D(6) of this chapter, has changed; and

      (ii) For off-site facilities, when the results of the inspection required in §D(1)(d), of this regulation, indicate that the hazardous waste received at the facility does not match the waste designated on the accompanying manifest or shipping paper.

    (d) The owner or operator of an off-site facility shall inspect and, if necessary, analyze each hazardous waste movement received at the facility to determine whether it matches the identity of the waste specified on the accompanying manifest or shipping paper.

  (2) Written Analysis. The owner or operator shall:

    (a) Develop and follow a written waste analysis plan which describes the procedures which the owner or operator will carry out to comply with §D(1) of this regulation.

    (b) Keep the waste analysis plan required by §D(2)(a) of this regulation at the facility;

    (c) Assure that the plan required by §D(2) of this regulation specifies, at a minimum:

      (i) The parameters for which each hazardous waste, or non-hazardous waste if applicable under Regulation .07D(6) of this chapter, will be analyzed and the rationale for the selection of these parameters, explaining how analysis for these parameters will provide sufficient information on the waste's properties to comply with §D(1) of this regulation;

      (ii) The test methods which will be used to test for these parameters;

      (iii) The sampling method which will be used to obtain a representative sample of the waste to be analyzed, which may be either one of the sampling methods described in COMAR 26.13.02.20 or an equivalent sampling method;

      (iv) The frequency with which the initial analysis of the waste will be reviewed or repeated to ensure that the analysis is accurate and up to date;

      (v) For off-site facilities, the waste analyses that hazardous waste generators have agreed to supply; and

      (vi) When applicable, the methods which will be used to meet the additional waste analysis requirements for specific waste management methods as specified in §H of this regulation, Regulations .14N and .16D of this chapter, and COMAR 26.13.09; and

    (d) Assure that, for off-site facilities, the waste analysis plan required in §D(2)(a) of this regulation at a minimum:

      (i) Specifies the procedures which will be used to inspect and, if necessary, analyze each movement of hazardous waste received at the facility to ensure that it matches the identity of the waste designated on the accompanying manifest or shipping paper;

      (ii) Describes the procedures which will be used to determine the identity of each movement of waste managed at the facility; and

      (iii) Describes the sampling method which will be used to obtain a representative sample of the waste to be identified, if the identification method includes sampling.

  (3) Special Requirements for Surface Impoundments. The owner or operator of a surface impoundment exempted from land disposal restrictions under 40 CFR §268.4(a) shall ensure that the waste analysis plan required by §D(2) of this regulation includes the procedures and schedules for the:

    (a) Sampling of impoundment contents;

    (b) Analysis of test data; and

    (c) Annual removal of residues specified in §D(4) of this regulation.

  (4) The requirement of §D(3)(c) of this regulation applies to surface impoundment residues that are regulated as hazardous waste because they exhibit a characteristic of hazardous waste or they have not been delisted under COMAR 26.13.01.04B-1, and either:

    (a) Do not meet the applicable treatment standards of 40 CFR Part 268, Subpart D; or

    (b) In the absence of treatment standards in 40 CFR Part 268, Subpart D, are prohibited from land disposal under:

      (i) 40 CFR §268.32 or RCRA Section 3004(d); or

      (ii) 40 CFR §268.33(f).

E. Security.

  (1) The owner or operator shall prevent the unknowing entry, and minimize the possibility for the unauthorized entry, of persons or livestock onto the active portion of his facility, unless it can be demonstrated to the Secretary that:

    (a) Physical contact with the waste, structures, or equipment within the active portion of the facility does not injure unknowing or unauthorized persons or livestock which may enter the active portion of a facility; and

    (b) Disturbance of the waste or equipment, by the unknowing or unauthorized entry of persons or livestock onto the active portion of a facility, does not cause a violation of the requirements of this chapter.

  (2) Unless exempt under §E(1)(a) and (b), of this regulation, a facility shall have:

    (a) A 24-hour surveillance system (for example, television monitoring or surveillance by guards or facility personnel) which continuously monitors and controls entry onto the active portion of the facility; or

    (b) An artificial or natural barrier (for example, a fence in good repair or a fence combined with a cliff), which completely surrounds the active portion of the facility; and

    (c) A means to control entry, at all times, through the gates or other entrances to the active portion of the facility (for example, an attendant, television monitors, locked entrance, or controlled roadway access to the facility).

  (3) Unless exempt under §E(1)(a) and (b), of this regulation, a sign with the legend “Danger—Unauthorized Personnel Keep Out”, shall be posted at every entrance to the active portion of a facility, and at other locations, in sufficient numbers to be seen from any approach to this active portion. The legend shall be written in English and in any other language predominant in the area surrounding the facility and must be legible from a distance of at least 25 feet. Existing signs with a legend other than “Danger—Unauthorized Personnel Keep Out” may be used if the legend on the sign indicates that only authorized personnel are allowed to enter the active portion, and that entry onto the active portion can be dangerous.

F. General Inspection Requirements.

  (1) The owner or operator shall inspect his facility for malfunctions and deterioration, operator errors, and discharges which may be causing, or may lead to, a release of hazardous waste constituents to the environment or may be causing, or may lead to, a threat to human health. The owner or operator shall conduct these inspections often enough to identify problems in time to correct them before they harm human health or the environment.

  (2) Development of Written Schedule.

    (a) The owner or operator shall develop and follow a written schedule for inspecting all monitoring equipment, safety and emergency equipment, security devices, and operating and structural equipment (such as dikes and sump pumps) that are important to preventing, detecting, or responding to environmental or human health hazards.

    (b) The owner shall keep this schedule at the facility.

    (c) The schedule shall identify the types of problems (for example, malfunctions or deterioration) which are to be looked for during the inspection (for example, inoperative sump pump, leaking fitting, eroding dike, etc.).

    (d) The owner or operator:

      (i) May develop an inspection schedule on which the frequency of inspection for the items on the schedule varies;

      (ii) Shall base the frequency of inspection on the rate of possible deterioration of the equipment and the probability of an environmental or human health incident if the deterioration or malfunction or any operator error goes undetected between inspections;

      (iii) Shall inspect areas subject to spills, such as loading and unloading areas, daily when in use; and

      (iv) Shall include in the inspection schedule, at a minimum, the items and frequencies called for in Regulations .09E, .10D, .10-4G, .11F, .12E, .13D, .14C, .16I, and .16-1C of this chapter.

  (3) The owner or operator shall remedy any deterioration or malfunction of equipment or structures which the inspection reveals on a schedule which ensures that the problem does not lead to an environmental or human health hazard. When a hazard is imminent or has already occurred, remedial action shall be taken immediately.

  (4) The owner or operator shall record inspections in an inspection log or summary. He shall keep these records for at least 3 years from the date of inspection. At a minimum, these records shall include the date and time of the inspection, the name of the inspector, a notation of the observations made, and the date and nature of any repairs or other remedial actions.

G. Personnel Training.

  (1) Program of Instruction or Training.

    (a) Facility personnel shall successfully complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in a way that ensures the facility's compliance with the requirements of this chapter. The owner or operator shall ensure that this program includes all the elements described in the document required under §G(4)(c), of this regulation.

    (b) This program shall be directed by a person trained in hazardous waste management procedures, and shall include instruction which teaches facility personnel hazardous waste management procedures (including contingency plan implementation) relevant to the positions in which they are employed.

    (c) At a minimum the training program shall be designed to ensure that facility personnel are able to respond effectively to emergencies by familiarizing them with emergency procedures, emergency equipment, and emergency systems, including, when applicable:

      (i) Procedures for using, inspecting, repairing, and replacing facility emergency and monitoring equipment;

      (ii) Key parameters for automatic waste feed cutoff systems;

      (iii) Communications or alarm systems;

      (iv) Response to fires or explosions;

      (v) Response to ground water contamination incidents; and

      (vi) Shutdown of operations.

  (2) Facility personnel shall successfully complete the program required in §G(1), of this regulation, within 6 months after the effective date of these regulations or 6 months after the date of their employment or assignment to a facility, or to a new position at a facility, whichever is later. Employees hired after the effective date of these regulations may not work in unsupervised positions until they have completed the training requirements of §G(1), of this regulation.

  (3) Facility personnel shall take part in an annual review of the initial training required in §G(1), of this regulation.

  (4) The owner or operator shall maintain the following documents and records at the facility:

    (a) The job title for each position at the facility related to hazardous waste management, and the name of the employee filling each job.

    (b) A written job description for each position listed under §G(4)(a), of this regulation. This description may be consistent in its degree of specificity with descriptions for other similar positions in the same company location or bargaining unit, but shall include the requisite skill, education, or other qualifications, and duties of employees assigned to each position.

    (c) A written description of the type and amount of both introductory and continuing training that will be given to each person filling a position listed under §G(4)(a), of this regulation.

    (d) Records that document that the training or job experience required under §G(1), (2), and (3) of this regulation, has been given to, and completed by, facility personnel.

  (5) Training records on current personnel shall be kept until closure of the facility. Training records on former employees shall be kept for at least 3 years from the date the employee last worked at the facility. Personnel training records may accompany personnel transferred within the same company.

H. General Requirements for Ignitable, Reactive, or Incompatible Wastes.

  (1) The owner or operator shall take precautions to prevent accidental ignition or reaction of ignitable or reactive waste. This waste shall be separated and protected from the sources of ignition or reaction including, but not limited to open flames, smoking, cutting and welding, hot surfaces, frictional heat, sparks (static, electric, or mechanical), spontaneous ignition (for example, from heat-producing chemical reactions), and radiant heat. While ignitable or reactive waste is being handled, the owner or operator shall confine smoking and open flame to specially designated locations. “No smoking” signs shall be conspicuously placed wherever there is a hazard from ignitable or reactive waste.

  (2) When specifically required by this subtitle, the treatment, storage, or disposal of ignitable or reactive waste, and the mixture or commingling of incompatible wastes, or incompatible wastes and materials, shall be conducted so that it does not:

    (a) Generate extreme heat or pressure, fire or explosion, or violent reaction;

    (b) Produce uncontrolled toxic mists, fumes, dusts, or gasses in sufficient quantities to threaten human health or the environment;

    (c) Produce uncontrolled flammable fumes or gasses in sufficient quantities to pose a risk of fire or explosions;

    (d) Damage the structural integrity of the device or facility containing the waste; or

    (e) Through other like means threaten human health or the environment.

  (3) When required to comply with §H(1) or (2), of this regulation, the owner or operator shall document that compliance. This documentation may be based on references to published scientific or engineering literature, data from trial tests (for example, bench scale or pilot scale tests), waste analysis according to §D of this regulation, or the results of the treatment of similar wastes by similar treatment processes and under similar operating conditions.

I. Aisle Space.

  (1) The facility owner or operator shall provide sufficient aisle space to allow for:

    (a) Inspections by the Department;

    (b) Inspections under §F of this regulation; and

    (c) Compliance with Regulation .03F of this regulation.

  (2) At a minimum, the aisle space shall be no less than 2 feet in width.

J. Transportation Certification.

  (1) Unless §J(2), of this regulation, applies, a facility shall only accept CHS from a certified hauler who has the following:

    (a) The CHS hauler certification;

    (b) His or her CHS driver certification; and

    (c) The vehicle certification.

  (2) A facility shall only accept CHS from a hauler without a certification upon approval from the Department.

#### Regulation .02-1 Site Selection for CHS Facilities.

*COMAR 26.13.05.02-1*

A. A facility may not be located in an active fault zone.

B. Flood Plains.

  (1) Definitions. The following definitions are used in §B(2), of this regulation:

    (a) "100-year flood" means a flood that has a 1 percent chance of being equaled or exceeded in any given year.

    (b) "100-year flood plain" means any land area which is subject to a 1 percent or greater chance of a flooding in any given year from any source.

    (c) “Washout” means the movement of hazardous waste from the active portion of the facility as a result of flooding.

  (2) A facility located in a 100-year flood plain shall be designed, constructed, operated, and maintained to prevent washout of any hazardous waste by a 100-year flood unless the owner or operator demonstrates to the Secretary that procedures are in effect which will cause the waste to be removed safely, before flood waters can reach the facility, to a location where the wastes will not be vulnerable to flood waters.

C. A facility may not be located in a wetland, unless the operator obtains a discharge permit under COMAR 26.10.01 and a wetlands permit under COMAR 08.05.07.

D. A facility may not be located so as to be likely to jeopardize the continued existence of endangered and threatened species, or result in the destruction or adverse modification of their critical habitat. (Reference: COMAR 08.03.08 and Natural Resources Article, §§10-2A-01—2A-09, Annotated Code of Maryland.)

E. A facility may not be located in the recharge zone of a sole source aquifer unless it can be demonstrated that the facility is designed, constructed, operated, and maintained to prevent any endangerment of the aquifer.

F. Salt Dome Formations, Salt Bed Formations, Underground Mines, and Caves. The placement of any noncontainerized or bulk liquid hazardous waste in any salt dome formation, salt bed formation, underground mine, or cave is prohibited.

#### Regulation .02-2 Construction Quality Assurance Program.

*COMAR 26.13.05.02-2*

A. This regulation applies to the owner or operator of a:

  (1) Surface impoundment that is subject to the requirements of Regulation .11D(4) or (5) of this chapter;

  (2) Waste pile that is subject to the requirements of Regulation .12D(1) or (2) of this chapter; or

  (3) Landfill unit that is subject to the requirements of Regulation .14B(3) or (4) of this chapter.

B. The owner or operator of a land disposal unit identified in §A of this regulation shall:

  (1) Incorporate into facility operations a construction quality assurance program that:

    (a) Ensures that the constructed unit meets or exceeds all design criteria and specifications in the facility permit; and

    (b) Has been developed and implemented under the direction of a construction quality assurance officer who is a registered professional engineer; and

  (2) As qualified by §C of this regulation, ensure that the construction quality assurance program meets the requirements of 40 CFR §264.19(a)(2), (b), and (c).

C. In complying with the requirements of 40 CFR §264.19, the owner or operator shall:

  (1) Substitute “Secretary” for “Regional Administrator”; and

  (2) Substitute the corresponding regulation or regulations identified in COMAR 26.13.01.05B(2) for the provisions in other sections of the Code of Federal Regulations that are cited within 40 CFR §264.19.

D. Certification. The owner or operator of a unit identified in §A if this regulation:

  (1) May not accept waste into the unit until the owner or operator has submitted to the Department by certified mail or hand delivery a certification signed by the construction quality assurance officer that the:

    (a) Approved construction quality assurance plan has been successfully carried out;

    (b) Unit meets the requirements of:

      (i) Regulation .11D(4) or (5) of this chapter;

      (ii) Regulation .12D(1) or (2) of this chapter; or

      (iii) Regulation .14B(3) or (4) of this chapter; and

    (c) Procedure of COMAR 26.13.07.15C(2) and (3) regarding inspection by the Department has been carried out; and

  (2) Shall furnish documentation supporting the construction quality assurance officer’s certification to the Department upon request.

#### Regulation .03 Preparedness and Prevention.

*COMAR 26.13.05.03*

A. Applicability. This regulation applies to owners and operators of all hazardous waste facilities, except as Regulation .01A, of this chapter, otherwise provides.

B. Design and Operation of Facility. Facilities shall be designed, constructed, maintained, and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment.

C. Required Equipment. All facilities shall be equipped with the following, unless it can be demonstrated to the Secretary that none of the hazards posed by waste handled at the facility could require a particular kind of equipment specified below:

  (1) An internal communications or alarm system capable of providing immediate emergency instruction (voice or signal) to facility personnel;

  (2) A device, such as a telephone (immediately available at the scene of operations) or a hand-held two-way radio, capable of summoning emergency assistance from local police departments, fire departments, or State or local emergency response teams;

  (3) Portable fire extinguishers, fire control equipment (including special extinguishing equipment, such as that using foam, inert gas, or dry chemicals), spill control equipment, and decontamination equipment; and

  (4) Water at adequate volume and pressure to supply water hose streams, or foam producing equipment, or automatic sprinklers, or water spray systems.

D. Testing and Maintenance of Equipment. All facility communications or alarm systems, fire protection equipment, spill control equipment, and decontamination equipment, where required, shall be tested and maintained as necessary to assure its proper operation in time of emergency.

E. Access to Communications or Alarm System.

  (1) Whenever hazardous waste is being poured, mixed, spread, or otherwise handled, all personnel involved in the operation shall have immediate access to an internal alarm or emergency communications device, either directly or through visual or voice contact with another employee, unless the Secretary has ruled that such a device is not required under §C of this regulation.

  (2) If there is ever just one employee on the premises while the facility is operating, the employee shall have immediate access to a device, such as a telephone or a hand-held two-way radio, capable of summoning external emergency assistance, unless the Secretary has ruled that such a device is not required under §C of this regulation.

F. Required Aisle Space. The owner or operator shall maintain aisle space to allow the unobstructed movement of personnel, fire protection equipment, spill control equipment, and decontamination equipment to any area of facility operation in an emergency, unless it can be demonstrated to the Secretary that aisle space is not needed for any of these purposes.

G. Special Handling for Ignitable or Reactive Waste. The owner or operator shall take precautions to prevent accidental ignition or reaction of ignitable or reactive waste by:

  (1) Separating and protecting the waste from sources of ignition or reaction including but not limited to:

    (a) Open flames;

    (b) Smoking;

    (c) Cutting and welding;

    (d) Hot surfaces;

    (e) Frictional heat;

    (f) Sparks, including electrical sparks, sparks caused by static electricity, and mechanically-caused sparks;

    (g) Spontaneous ignition, such as ignition caused by heat-producing chemical reactions; and

    (h) Radiant heat;

  (2) Confining smoking and open flame, while ignitable or reactive waste is being handled, to specially designated locations where smoking or open flame will not create a risk of causing the waste to ignite or react; and

  (3) Conspicuously placing “No Smoking” signs wherever there is a hazard from ignitable or reactive waste.

H. Arrangements With Local Authorities.

  (1) The owner or operator shall attempt to make the following arrangements, as appropriate for the type of waste handled at his facility and the potential need for the services of these organizations:

    (a) Arrangements to familiarize police, fire departments, and emergency response teams with the layout of the facility, properties of hazardous waste handled at the facility and associated hazards, places where facility personnel would normally be working, entrances to and roads inside the facility and possible evacuation routes;

    (b) When more than one police and fire department might respond to an emergency, agreements designating primary emergency authority to a specific police and a specific fire department, and agreements with any others to provide support to the primary emergency authority. Agreements with State emergency response teams, emergency response contractors, and equipment suppliers; and

    (c) Arrangements to familiarize local hospitals with the properties of hazardous waste handled at the facility and the types of injuries or illnesses which could result from fires, explosions, or releases at the facility.

  (2) When State or local authorities decline to enter into these arrangements, the owner or operator shall document the refusal in the operating record.

#### Regulation .04 Contingency Plan and Emergency Procedures.

*COMAR 26.13.05.04*

A. Applicability. This regulation applies to owners and operators of all hazardous waste facilities, except as Regulation .01 otherwise provides.

B. Purpose and Implementation of Contingency Plan.

  (1) Every owner or operator shall have a contingency plan for his facility. The contingency plan shall be designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water.

  (2) The provisions of the plan shall be carried out immediately whenever there is a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment.

C. Content of Contingency Plan.

  (1) The contingency plan shall describe the actions facility personnel shall take to comply with §§B and G of this regulation, in response to fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water at the facility.

  (2) If the owner or operator has already prepared a Spill Prevention, Control, and Countermeasures (SPCC) Plan in accordance with 40 CFR 112 or 1510, or some other emergency or contingency plan, he need only amend that plan to incorporate hazardous waste management provisions that are sufficient to comply with the requirements of this chapter.

  (3) The plan shall describe arrangements agreed to by local police departments, fire departments, hospitals, contractors, and State and local emergency response teams to coordinate emergency services, pursuant to Regulation .03H of this chapter.

  (4) The plan shall list names, addresses, and phone numbers (office and home) of all persons qualified to act as emergency coordinator (see §F), and this list shall be kept up to date. When more than one person is listed, one shall be named as primary emergency coordinator and others shall be listed in the order in which they will assume responsibility as alternates. For new facilities, this information shall be supplied to the Secretary at the time of certification, rather than at the time of permit application.

  (5) The plan shall include a list of all emergency equipment at the facility (such as fire extinguishing systems, spill control equipment, communications and alarm systems (internal and external), and decontamination equipment), where this equipment is required. This list shall be kept up to date. In addition, the plan shall include the location and a physical description of each item on the list, and a brief outline of its capabilities.

  (6) The plan shall include an evacuation plan for facility personnel where there is a possibility that evacuation could be necessary. This plan shall describe signals to be used to begin evacuation, evacuation routes, and alternate evacuation routes (when the primary routes could be blocked by releases of hazardous waste or fires).

D. Copies of Contingency Plan. A copy of the contingency plan and all revisions to the plan shall be:

  (1) Maintained at the facility; and

  (2) Submitted to all local police departments, fire departments, hospitals, and State and local emergency response teams that may be called upon to provide emergency services.

E. Amendments of Contingency Plan. The contingency plan shall be reviewed, and immediately amended, if necessary, whenever the:

  (1) Facility permit is revised;

  (2) Plan fails in an emergency;

  (3) Facility changes in its design, construction, operation, maintenance, or other circumstances in a way that materially increases the potential for fires, explosions, or releases of hazardous waste or hazardous waste constituents, or changes the response necessary in an emergency;

  (4) List of emergency coordinators changes; or

  (5) List of emergency equipment changes.

F. Emergency Coordinator. At all times, there shall be at least one employee either on the facility premises or on call (that is, available to respond to an emergency by reaching the facility within a short period of time) with the responsibility for coordinating all emergency response measures. This emergency coordinator shall be thoroughly familiar with all aspects of the facility's contingency plan, all operations and activities at the facility, the location and characteristics of waste handled, the location of all records within the facility, and the facility layout. In addition, this person shall have the authority to commit the resources needed to carry out the contingency plan.

G. Emergency Procedures.

  (1) Whenever there is an imminent or actual emergency situation, the emergency coordinator (or his designee when the emergency coordinator is on call) shall immediately:

    (a) Activate internal facility alarms or communication systems, where applicable, to notify all facility personnel; and

    (b) Notify appropriate State or local agencies with designated response roles if their help is needed.

  (2) Whenever there is a release, fire, or explosion, the emergency coordinator shall immediately identify the character, exact source, amount, and areal extent of any released materials. He may do this by observation or review of facility records or manifests, and, if necessary, by chemical analysis.

  (3) Concurrently, the emergency coordinator shall assess possible hazards to human health or the environment that may result from the release, fire, or explosion. This assessment shall consider both direct and indirect effects of the release, fire, or explosion (for example, the effects of any toxic, irritating, or asphyxiating gases that are generated, or the effects of any hazardous surface water run-off from water or chemical agents used to control fire and heat-induced explosions).

  (4) If the emergency coordinator determines that the facility has had a release, fire, or explosion which could threaten human health, or the environment, outside the facility, or if the release is of a quantity which would exceed the Reportable Quantities listed in 40 CFR Part 302, the emergency coordinator shall report these findings as follows:

    (a) If the assessment indicates that evacuation of local areas may be advisable, the emergency coordinator shall immediately notify appropriate local authorities and be available to help appropriate officials decide whether local areas should be evacuated.

    (b) The emergency coordinator shall immediately notify either the government official designated as the on-scene coordinator for that geographical area (in the applicable regional contingency plan under 40 CFR Part 1510) or the National Response Center using their 24-hour toll-free number (800) 424-8802, and the Maryland Department of the Environment, Emergency Response Program (866) 633-4686. The report shall include:

      (i) Name and telephone number of reporter;

      (ii) Name and address of facility;

      (iii) Time and type of incident (for example, release, fire);

      (iv) Name and quantity of materials involved, to the extent known;

      (v) The extent of injuries, if any; and

      (vi) The possible hazards to human health, or the environment, outside the facility.

  (5) During an emergency, the emergency coordinator shall take all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other hazardous waste at the facility. These measures shall include, where applicable, stopping processes and operations, collecting and containing released waste, and removing or isolating containers.

  (6) If the facility stops operations in response to a fire, explosion, or release, the emergency coordinator shall monitor for leaks, pressure buildup, gas generation, or ruptures in valves, pipes, or other equipment, wherever this is appropriate.

  (7) Immediately after an emergency, the emergency coordinator shall provide for treating, storing, or disposing of recovered waste, contaminated soil or surface water, or any other material that results from a release, fire, or explosion at the facility.

  (8) The emergency coordinator shall ensure that, in the affected areas of the facility:

    (a) Waste that may be incompatible with the released material is not treated, stored, or disposed of until cleanup procedures are completed; and

    (b) All emergency equipment listed in the contingency plan is cleaned and fit for its intended use before operations are resumed.

  (9) The owner or operator shall notify the Secretary, and appropriate other State and local authorities, that the facility is in compliance with §G(8) of this regulation before operations are resumed in the affected areas of the facility.

  (10) The owner or operator shall note in the operating record the time, date, and details of any incident that required implementing the contingency plan. Within 15 days after the incident, he shall submit a written report on the incident to the Secretary. The report shall include:

    (a) Name, address, and telephone number of the owner or operator;

    (b) Name, address, and telephone number of the facility;

    (c) Date, time, and type of incident (for example, fire, explosion);

    (d) Name and quantity of materials involved;

    (e) The extent of injuries, if any;

    (f) An assessment of actual or potential hazards to human health or the environment, where this is applicable; and

    (g) Estimated quantity and disposition of recovered material that resulted from the incident.

#### Regulation .05 Manifest System, Record Keeping, and Reporting.

*COMAR 26.13.05.05*

A. Applicability.

  (1) This regulation applies to owners and operators of both on-site and off-site facilities, except as Regulation .01 of this chapter otherwise provides.

  (2) Sections B, C, and G of this regulation do not apply to owners and operators of:

    (a) On-site facilities that do not receive hazardous waste from off-site sources; or

    (b) Off-site facilities with respect to waste military munitions exempted from manifest requirements under COMAR 26.13.10.28B.

  (3) Section D(2)(i) of this regulation only applies to owners or operators who treat, store, or dispose of hazardous wastes on-site where these wastes were generated.

B. Use of Manifest System.

  (1) If a facility receives hazardous waste accompanied by a manifest, the owner or operator, or the owner or operator's agent, shall:

    (a) Sign and date, by hand, each copy of the manifest to certify that the hazardous waste covered by the manifest was:

      (i) Received;

      (ii) Received, except as noted in the manifest discrepancy space; or

      (iii) Rejected, as noted in the manifest discrepancy space;

    (b) Note any discrepancies in the manifest as defined in §C(1) of this regulation on each copy of the manifest;

    (c) Immediately give the transporter at least one copy of the signed manifest;

    (d) Within 30 days after the delivery, send a copy of the manifest to the generator;

    (e) Comply with the following requirements for handling paper manifests:

      (i) Transmit the top copy (page 1) and any continuation sheets to the electronic manifest system for data entry and processing by either transmitting an image file of page 1 of the manifest and any continuation sheet, or transmitting both a data file and the image file corresponding to page 1 of the manifest and any continuation sheet;

      (ii) Make the transmittal required by §B(1)(e)(i) of this regulation within 30 days of the date of delivery to the facility; and

      (iii) Submit copies to the electronic manifest system by directing the copies to the electronic mail submission address specified on the U.S. Environmental Protection Agency's electronic manifest program website's directory of services.

    (f) Retain at the facility a copy of each manifest for at least 3 years from the date of delivery; and

    (g) For hazardous waste subject to 40 CFR Part 262, Subpart H, from a foreign source:

      (i) Additionally, list the relevant consent number from consent documentation supplied by EPA to the facility for each waste listed on the manifest, matched to the relevant list number for the waste from block 9b, using, if additional space is needed, one or more continuation sheet (EPA Form 8700-22A); and

      (ii) Send a copy of the manifest within 30 days of delivery to EPA using the addresses listed in 40 CFR §262.82(e) until the facility can submit such a copy to the e-manifest system in accordance with §B(1)(e) of this regulation.

  (2) If a facility receives, from a rail or water (bulk shipment) transporter, hazardous waste which is accompanied by a shipping paper containing all the information required on the manifest (excluding the EPA identification numbers, generator's certification, and signatures), the owner or operator, or the owner or operator's agent, shall:

    (a) Sign and date each copy of the shipping paper to certify that the hazardous waste covered by the shipping paper was received;

    (b) Note any significant discrepancies in the shipping paper as defined in §C(1)) of this regulation on each copy of the shipping paper;

    (c) Immediately give the rail or water (bulk shipment) transporter at least one copy of the shipping paper;

    (d) Within 30 days after the delivery, send to the generator a copy of the signed and dated:

      (i) Manifest; or

      (ii) Shipping paper if the manifest has not been received within 30 days after delivery; and

    (e) Retain at the facility a copy of each shipping paper and manifest for at least 3 years from the date of delivery.

  (3) Shipments of Hazardous Waste Initiated from a Facility.

    (a) If a facility owner or operator initiates a shipment of hazardous waste from a facility, the facility owner or operator shall comply with the requirements of COMAR 26.13.03.

    (b) The provisions of COMAR 26.13.03-3.03-10 are applicable to the on-site accumulation of hazardous waste by generators, and therefore only apply to the owner or operator of a facility who is shipping hazardous waste that the owner or operator:

      (i) Generated at the facility; or

      (ii) Consolidated at the facility under the provisions of COMAR 26.13.03.11-3 that apply to wastes accepted from off-site generators that are under control of the same person that controls the facility.

  (4) After receiving a shipment of hazardous waste from a foreign source subject to 40 CFR Part 262, Subpart H, the owner or operator of a facility shall comply with the requirements of 40 CFR §264.71(d) regarding the waste tracking system for imports and exports that is maintained by EPA under authority that is not delegated to the states.

  (5) A facility shall determine whether:

    (a) Under the consignment state's hazardous waste program, the consignment state regulates as hazardous for a shipment any additional wastes beyond those regulated federally; and

    (b) The generator state, consignment state, or both, require the facility to submit any copies of the manifest to these states.

  (6) Legal Equivalence to Paper Manifests. For the purposes of COMAR 26.13.01.10:

    (a) An electronic manifest that is obtained, completed, and transmitted in accordance with COMAR 26.13.03.04A(1)(b), and used in accordance with this section instead of using the paper manifest form, is the legal equivalent of paper manifest forms bearing handwritten signatures and satisfies for all purposes any requirement to obtain, complete, sign, provide, use, or retain a manifest;

    (b) A requirement for the owner or operator of a facility to sign a manifest or manifest certification by hand, or to obtain a handwritten signature, is satisfied by signing with or obtaining a valid and enforceable electronic signature within the meaning of COMAR 26.13.03.04E-2;

    (c) A requirement to give, provide, send, forward, or return to another person a copy of the manifest is satisfied when a copy of an electronic manifest is transmitted to the other person;

    (d) A requirement for a manifest to accompany a hazardous waste shipment is satisfied when a copy of an electronic manifest is accessible during transportation and forwarded to the person or persons who are scheduled to receive delivery of the waste shipment;

    (e) A requirement for a facility owner or operator to keep or retain a copy of a manifest is satisfied by retention of the facility's electronic manifest copy in the facility's account on the national electronic manifest system if the copy is readily available for viewing and production if requested by an inspector representing the Department or EPA; and

    (f) If a facility owner or operator is unable to produce an electronic manifest for inspection in accordance with §B(6)(e) of this regulation, the owner or operator is not considered to be in violation of the requirement to have a copy of the manifest readily available if the owner or operator can demonstrate that the inability to produce the electronic manifest is due exclusively to a technical difficulty with the electronic manifest system for which the owner or operator bears no responsibility.

  (7) Accessing the Electronic Manifest System. A facility owner or operator may participate in the electronic manifest system either by accessing the electronic manifest system from the owner or operator's own electronic equipment, or by accessing the electronic manifest system from portable equipment brought to the owner's or operator's site by the transporter who delivers the waste shipment to the facility.

  (8) Special Procedures Applicable to Replacement Manifests. If a facility receives hazardous waste that is accompanied by a paper replacement manifest for a manifest that was originated electronically, the following procedures apply to the delivery of the hazardous waste by the final transporter:

    (a) Upon delivery of the hazardous waste to the designated facility, the owner or operator shall sign and date each copy of the paper replacement manifest by hand in Item 20 (Designated Facility Certification of Receipt) and note any discrepancies in Item 18 (Discrepancy Indication Space) of the paper replacement manifest;

    (b) The owner or operator of the facility shall give back to the final transporter one copy of the paper replacement manifest;

    (c) Within 30 days of delivery of the waste to the designated facility, the owner or operator of the facility shall send one signed and dated copy of the paper replacement manifest to the generator, and send an additional signed and dated copy of the paper replacement manifest to the electronic manifest system; and

    (d) The owner or operator of the facility shall retain at the facility one copy of the paper replacement manifest for at least 3 years from the date of delivery.

  (9) Special Procedures Applicable to Electronic Signature Methods Undergoing Tests. If an owner or operator using an electronic manifest signs this manifest electronically using an electronic signature method which is undergoing pilot or demonstration tests aimed at demonstrating the practicality or legal dependability of the signature method, then the owner or operator shall:

    (a) Also sign with an ink signature the facility's certification of receipt or discrepancies on the printed copy of the manifest provided by the transporter; and

    (b) Upon executing the owner or operator's ink signature on the printed copy of the manifest provided by the transporter, the owner or operator shall retain this original copy among the facility's records for at least 3 years from the date of delivery of the waste.

  (10) Electronic Manifest Signatures. An electronic signature method used in connection with the electronic manifest system is acceptable only if:

    (a) Use of the method results in the creation of a legally valid and enforceable signature under applicable EPA and other federal requirements pertaining to electronic signatures; and

    (b) The method has been designed and implemented in a manner that EPA considers to be as cost-effective and practical as possible for the users of the manifest.

  (11) Post-Receipt Manifest Data Corrections.

    (a) After a facility has certified to the receipt of hazardous wastes by signing Item 20 of the manifest, any post-receipt data corrections may be submitted at any time by any interested person shown on the manifest, such as a waste handler.

    (b) An interested person shall make all corrections to manifest data by electronic submission, either by directly entering corrected data to the web-based service provided in the electronic manifest system for corrections, or by an upload of a data file containing data corrections relating to one or more previously submitted manifests.

    (c) A person submitting a correction shall include the following information as part of the submission:

      (i) The manifest tracking number and date of receipt by the facility of each original manifest for which data are being corrected;

      (ii) The item number of each original manifest that is the subject of a submitted correction; and

      (iii) For each item number with corrected data, the data previously entered and the corresponding data as corrected by the correction submission.

    (d) A person submitting a correction:

      (i) Shall include as part of the submission a statement that the person submitting the corrections certifies that, to the best of the person's knowledge or belief, the corrections that are included in the submission will cause the information reported about the previously received hazardous wastes to be true, accurate, and complete;

      (ii) Shall execute the certification statement with a valid electronic signature; and

      (iii) May submit a batch upload of data corrections under one certification statement.

Agency Note: The U.S. Environmental Protection Agency assesses an owner or operator who is a user of the electronic manifest system a user fee as prescribed in 40 CFR §264.311 and determined in 40 CFR §1312. EPA periodically updates the schedule of user fees and publishes the updated fee schedule to ensure that the e-manifest user community is aware of the revisions, as provided in 40 CFR §264.1313. An owner or operator subject to these user fees is required by EPA to make user fee payments in accordance with the requirements of 40 CFR §264.1314, subject to the informal fee dispute resolution process of 40 CFR §264.1316, and subject to the sanctions for delinquent payments under 40 CFR §264.1315.

C. Manifest Discrepancies.

  (1) Manifest discrepancies are:

    (a) Significant differences, as defined in §C(2) of this regulation, between the quantity or type of hazardous waste designated on the manifest or shipping paper and the quantity or type of hazardous waste a facility actually receives;

    (b) Rejected wastes, which may be a full or a partial shipment of hazardous waste that the designated facility cannot accept; or

    (c) Container residues, which are residues that exceed the quantity limits for a container to be defined as “empty” under COMAR 26.13.02.07B and 26.13.10.35.

  (2) In this section, the following terms have the meanings indicated:

    (a) “Significant differences in quantity” means:

      (i) For bulk waste, variations greater than 10 percent in weight; and

      (ii) For batch waste, any variation in piece count, such as a discrepancy of one drum in a truckload.

    (b) “Significant differences in type” means obvious differences that can be discovered by inspection or waste analysis, such as waste solvent substituted for waste acid or toxic constituents not reported on the manifest or shipping paper.

  (3) If the owner or operator discovers a significant difference in quantity or type for a shipment of waste, the owner or operator shall:

    (a) Upon discovery of the significant difference, attempt to reconcile the discrepancy with the waste generator or transporter, by, for example, telephone conversations; and

    (b) If the discrepancy is not resolved within 15 days after receiving the waste, immediately submit the following to the Secretary:

      (i) A letter describing the discrepancy and the attempts to reconcile it; and

      (ii) A copy of the manifest or shipping paper at issue.

  (4) Management of Rejected Wastes and Container Residues.

    (a) Upon rejecting waste or identifying a container residue that exceeds the quantity limits for “empty” under COMAR 26.13.02.07B, the facility:

      (i) Shall consult with the generator before forwarding the waste to another facility that can manage the waste;

      (ii) May return the rejected waste or residue to the generator if it is impossible to locate an alternative facility that can receive the waste; and

      (iii) Shall send the waste to the alternative facility or to the generator within 60 days of the rejection of the waste or the identification of the excess container residue.

    (b) While the facility is making arrangements for forwarding rejected wastes or residues to another facility in accordance with §C(4)(a) of this regulation, pending delivery of the waste to the first transporter designated on the manifest prepared under §C(5) or (6) of this regulation, the facility shall:

      (i) Ensure that the delivering transporter retains custody of the waste; or

      (ii) Provide for secure, temporary custody of the waste.

  (5) Preparation of Manifests—Shipments of Rejected Loads and Residues to an Alternate Facility.

    (a) Except as provided in §C(5)(c) of this regulation, for full or partial load rejections and residues that are to be sent offsite to an alternate facility, the rejecting facility shall prepare a new manifest in accordance with the requirements of COMAR 26.13.03.04A and the instructions in §C(5)(b) of this regulation.

    (b) The facility shall do the following in preparing the manifest required by §C(5)(a) of this regulation:

      (i) Write the generator's U.S. EPA identification number in Item 1 of the new manifest;

      (ii) Write the generator's name and mailing address in Item 5 of the new manifest;

      (iii) If the generator's mailing address differs from the generator's site address, write the generator's site address in Item 5 of the new manifest;

      (iv) Write the name of the alternate designated facility and the alternate facility's U.S. EPA identification number in Item 8, the designated facility block, of the new manifest;

      (v) Copy the manifest tracking number found in Item 4 of the old manifest to the Special Handling Instructions and Additional Information Block of the new manifest, and indicate in this block that the shipment is a residue or rejected waste from the previous shipment;

      (vi) Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in Item 18a, the Discrepancy Block, of the old manifest;

      (vii) Write the U.S. Department of Transportation description for the rejected load or the residue in Item 9, U.S. DOT Description, of the new manifest;

      (viii) Write the number and type of container, waste quantity, unit of weight or volume, and waste codes for each waste in the appropriate spaces of the new manifest; and

      (ix) Sign the Generator's/Offeror's Certification on the new manifest to certify, as offeror of the shipment, that the waste has been properly packaged, marked, and labeled, and is in proper condition for transportation.

    (c) For full load rejections that are made while the transporter remains at the facility, the facility:

      (i) May forward the rejected shipment to the alternate facility by completing Item 18b of the original manifest and supplying the information on the next destination facility in the Alternate Facility space;

      (ii) Shall retain for the facility's records a copy of the manifest amended as specified in §C(5)(c)(i) of this regulation, and shall give the remaining copies of the amended manifest to the transporter to accompany the shipment; and

      (iii) Shall, if the original manifest is not used in transporting the shipment to the alternate facility, use a new manifest completed in accordance with the requirements of COMAR 26.13.03.04A and the instructions in §C(5)(b) of this regulation.

  (6) Preparation of Manifests— Shipments of Rejected Loads and Residues Returned to Generator.

    (a) Except as provided in §C(6)(c) of this regulation, for rejected wastes and residues that are to be sent back to the generator, the rejecting facility shall prepare a new manifest in accordance with the requirements of COMAR 26.13.03.04A and the instructions in §C(6)(b) of this regulation.

    (b) The facility shall do the following in preparing the manifest required by §C(6)(a) of this regulation:

      (i) Write the rejecting facility's U.S. EPA identification number in Item 1 of the new manifest;

      (ii) Write the rejecting facility's name and mailing address in Item 5 of the new manifest;

      (iii) If the rejecting facility's mailing address differs from the facility's site address, write the facility's site address in Item 5 of the new manifest;

      (iv) Write the name of the initial generator and the generator's U.S. EPA identification number in Item 8, the designated facility block, of the new manifest;

      (v) Copy the manifest tracking number found in Item 4 of the old manifest to the Special Handling Instructions and Additional Information Block of the new manifest, and indicate in this block that the shipment is a residue or rejected waste from the previous shipment;

      (vi) Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in Item 18a, the Discrepancy Block, of the old manifest;

      (vii) Write the U.S. DOT description for the rejected load or the residue in Item 9, U.S. DOT Description, of the new manifest;

      (viii) Write the number and type of container, waste quantity, unit of weight or volume, and waste codes for each waste in the appropriate spaces of the new manifest; and

      (ix) Sign the Generator's/Offeror's Certification on the new manifest to certify, as offeror of the shipment, that the waste has been properly packaged, marked, and labeled, and is in proper condition for transportation.

    (c) For full load rejections that are made while the transporter remains at the facility, the facility:

      (i) May return the shipment to the generator with the original manifest by completing Item 18b of the manifest and supplying the generator's information in the Alternate Facility space;

      (ii) Shall retain for the facility's records a copy of the manifest amended as specified in §C(6)(c)(i) of this regulation, and shall give the remaining copies of the amended manifest to the transporter to accompany the shipment; and

      (iii) Shall, if the original manifest is not used in returning the shipment to the generator, use a new manifest completed in accordance with the requirements of COMAR 26.13.03.04A and the instructions in §C(6)(b) of this regulation.

  (7) For full or partial load rejections and container residues contained in non-empty containers that are returned to the generator, the facility shall also comply with the exception reporting requirements in COMAR 26.13.03.06C.

  (8) Loads and Residues Rejected After Return of Original Manifest. If a facility rejects a waste or identifies a container residue that exceeds the quantity limits for empty under COMAR 26.13.02.07B after the facility has signed, dated, and returned a copy of the manifest to the delivering transporter or to the generator, the facility shall:

    (a) Amend the facility's copy of the manifest to indicate the rejected wastes or residues in the discrepancy space of the amended manifest;

    (b) Record the manifest tracking number from Item 4 of the new manifest that will accompany the shipment in the discrepancy space of the amended original manifest;

    (c) Re-sign and date the amended original manifest to certify to the information as amended;

    (d) Retain the amended original manifest for at least 3 years from the date the manifest was amended; and

    (e) Send, within 30 days after the facility determines that the waste or residue must be rejected, a copy of the amended original manifest to the transporter and generator that received copies of the unamended, original manifest.

D. Operating Record.

  (1) The owner or operator shall keep a written operating record at his facility.

  (2) The owner or operator shall record the following information as it becomes available, and maintain it in the operating record until closure of the facility:

    (a) A description and the quantity of each hazardous waste received, and the methods and dates of its treatment, storage, or disposal at the facility as required by Regulation .20 of this chapter;

    (b) Information on the inventory of hazardous waste at the facility, including:

      (i) The location of each hazardous waste within the facility;

      (ii) The quantity of hazardous waste at each location;

      (iii) For the information required by §D(2)(b)(i) and (ii) of this regulation, cross-references to the specific manifest document numbers, if the waste was accompanied by a manifest; and

      (iv) For disposal facilities, a map or diagram of each cell or disposal area on which has been recorded the location and quantity of each hazardous waste;

    (c) Records and results of waste analyses and determinations performed as specified in:

      (i) Regulations .02D and H, .14N, and .16D of this chapter; and

      (ii) 40 CFR §268.4(a) and 40 CFR §268.7;

    (d) Summary reports and details of all incidents that require implementing the contingency plan as specified in Regulation .04G(10) of this chapter;

    (e) Records and results of inspections as required by Regulation .02F(4) of this chapter, except that these data need be kept only 3 years;

    (f) For off-site facilities, notices to generators as specified in Regulation .02C(3) of this chapter;

    (g) All closure cost estimates under Regulation .08 of this chapter and for disposal facilities all post-closure cost estimates under Regulation .08 of this chapter;

    (h) Monitoring, testing, or analytical data, and corrective action when required by Regulations .06—.06-7, .10D, .10-2, .10-4, .11D-2, .11D-3, .11F, .12D-1, .12D-2, .12E, .13G, .13I, .13K, .14C, .14E, .14F, .14I, .16I, and .16-1C of this chapter;

    (i) A certification by the owner or operator at least annually, that the permittee has a program in place to reduce the volume and toxicity of hazardous waste that he generates to the degree determined by the permittee to be economically practicable; and the proposed method of treatment, storage, or disposal is that practicable method currently available to the permittee which minimizes the present and future threat to human health and the environment;

    (j) Records of:

      (i) The quantities and date of placement for each shipment of hazardous waste placed in land disposal units under an extension to the effective date of any land disposal restriction granted under 40 CFR §268.5, a petition under 40 CFR §268.6, or a certification under 40 CFR §268.8;

      (ii) Monitoring data required in support of a petition under 40 CFR §268.6 that is required to be maintained by 40 CFR §268.6(b)(5); and

      (iii) The applicable notice required by a generator under 40 CFR §268.7(a);

    (k) For an off-site treatment facility, a copy of the notice, and the certification and demonstration, if applicable, required by the generator or the owner or operator under 40 CFR §268.7 or 40 CFR §268.8;

    (l) For an on-site treatment facility, the information contained in the notice, except for the manifest number, and the certification and demonstration, if applicable, required by the generator or the owner or operator under 40 CFR §268.7 or 40 CFR §268.8;

    (m) For an off-site land disposal facility, a copy of the notice, and the certification and demonstration, if applicable, required by the generator or the owner or operator of a treatment facility under 40 CFR §268.7 or 40 CFR §268.8, whichever is applicable;

    (n) For an on-site land disposal facility, the information contained in the notice required by the generator or owner or operator of a treatment facility under 40 CFR §268.7, except for the manifest number, and the certification and demonstration, if applicable, required under 40 CFR §268.8, whichever is applicable;

    (o) owner or operator under 40 CFR §268.7 or 40 CFR §268.8; and

    (p) For an on-site storage facility, the information contained in the notice, except the manifest number, and the certification and demonstration, if applicable, required by the generator or the owner or operator under 40 CFR §268.7 or 40 CFR §268.8.

E. Availability, Retention, and Disposition of Records.

  (1) All records, including plans, required under this chapter shall be furnished upon request, and made available at all reasonable times for inspection by any officer, employee, or representative of the Department who is duly designated by the Secretary.

  (2) The retention period for all records required under this chapter is extended automatically during the course of any unresolved enforcement action regarding the facility or as requested by the Secretary.

  (3) A copy of records of waste disposal locations and quantities under §D(2)(b) of this regulation shall be submitted to the Secretary and local land authority upon closure of the facility.

F. Annual or Biennial Reporting. An owner or operator shall:

  (1) Periodically, submit reports to the Department concerning hazardous waste generated during the preceding calendar year on EPA or State Form 8700-13B, or on an alternate form specified by the Department.

  (2) Submit the reports required by §F(1) of this regulation with the following frequency:

    (a) Annually, for reporting periods through December 31, 1995, and

    (b) Biennially, for reporting periods beginning January 1, 1997;

  (3) Submit the reports required by §F(1) of this regulation not later than:

    (a) March 1 of the following year for reporting periods through December 31, 1995; and

    (b) March 1 of each even numbered year for the preceding calendar year for reporting periods beginning January 1, 1997; and

  (4) Assure that the reports required by §F(1) of this regulation contain, at a minimum, the following information:

    (a) The EPA identification number, name, and address of the facility;

    (b) The calendar year covered by the report;

    (c) For off-site facilities within the United States, the EPA identification number of each hazardous waste generator from whom the facility received a hazardous waste during the year;

    (d) For imported shipments, the name and address of the foreign generator;

    (e) A description and the quantity of each hazardous waste the facility received during the year;

    (f) For off-site facilities within the United States, a listing of the information required by §F(4)(e) of this regulation under the EPA identification number of each generator from whom the facility received hazardous waste;

    (g) The method of treatment, storage, or disposal for each hazardous waste;

    (h) The certification signed by the owner or operator of the facility or the owner's or operator's authorized representative;

    (i) The most recent closure cost estimate under Regulation .08 of this chapter and, for disposal facilities, the most recent post-closure cost estimate under Regulation .08 of this chapter;

    (j) For generators who treat, store, or dispose of hazardous waste on site, a description of the efforts undertaken during the year to reduce the volume and toxicity of the waste generated; and

    (k) For generators who treat, store, or dispose of hazardous waste on site, a description of the changes in volume and toxicity of waste actually achieved during the year in comparison to previous years, except that comparison to years before 1984 is only required to the extent that this information is available.

G. Unmanifested Waste Report.

  (1) If a facility accepts for treatment, storage, or disposal any hazardous waste from an off-site source without an accompanying manifest, or without an accompanying shipping paper as described in COMAR 26.13.04.02A(5)(b), and if the waste is not excluded from the manifest requirement by COMAR 26.13.02.05 or by this chapter, then the owner or operator shall prepare and submit a single copy of a report to the Secretary within 15 days after receiving the waste.

  (2) The owner or operator shall ensure that the report required by §G(1) of this regulation is clearly marked with the words “unmanifested waste report”, and includes the following information:

    (a) The EPA identification number, name, and address of the facility;

    (b) The date the facility received the waste;

    (c) The EPA identification number, name, and address of the generator and the transporter, if available;

    (d) A description and the quantity of each unmanifested hazardous waste the facility received;

    (e) The method of treatment, storage, or disposal for each hazardous waste;

    (f) The certification in COMAR 26.13.07.03D signed by the owner or operator of the facility or the owner or operator's authorized representative; and

    (g) A brief explanation of why the waste was unmanifested, if known.

H. Additional Reports. In addition to submitting the annual report or biennial report, and unmanifested waste reports described in §§F and G of this regulation, the owner or operator shall also report to the Secretary:

  (1) Releases, fires, and explosions as specified in Regulation .04G(10) of this chapter;

  (2) Ground water contamination and monitoring data as specified in Regulation .06-1B and C of this chapter;

  (3) Facility closure as specified in Regulation .07F; and

  (4) As otherwise required by Regulations .06, .06-7, and .11.14 of this chapter.

#### Regulation .06 Ground Water Protection — General.

*COMAR 26.13.05.06*

A. Applicability.

  (1) Except as provided in §A(3) of this regulation, Regulations .06—.06-7 of this chapter apply to owners or operators of facilities that treat, store, or dispose of hazardous waste. The owner or operator shall satisfy the requirements identified in §A(2) of this regulation for all wastes or their constituents, contained in solid waste management units at the facility, regardless of the time at which waste was placed in those units.

  (2) Owners or operators shall ensure that:

    (a) Solid waste management units comply with the requirements of Regulation .06-7 of this chapter;

    (b) A surface impoundment, waste pile, and land treatment unit or landfill that receives a hazardous waste after July 26, 1982, referred to after this as a “regulated unit”, complies with the requirements of §B of this regulation and Regulations .06-1—.06-6 of this chapter instead of Regulation .06-7 of this chapter for purposes of detecting, characterizing, and responding to releases to the uppermost aquifer;

    (c) Regulated units are operated in compliance with the financial responsibility requirements of Regulation .06-7 of this chapter.

  (3) The owner or operator's regulated unit or units are not subject to regulation for releases into the uppermost aquifer under this regulation if one of the following apply:

    (a) The owner or operator is exempted under Regulation .01 of this chapter.

    (b) The owner or operator operates a unit which the Secretary finds:

      (i) Is an engineered structure;

      (ii) Does not receive or contain liquid waste or waste containing free liquids;

      (iii) Is designed and operated to exclude liquid, precipitation, and other run-on and run-off;

      (iv) Has both inner and outer layers of containment enclosing the waste;

      (v) Has a leak detection system built into each containment layer;

      (vi) Will have continuing operation and maintenance of these leak detection systems during the active life of the unit and the closure and post-closure care periods; and

      (vii) To a reasonable degree of certainty, does not allow hazardous constituents to migrate beyond the outer containment layer before the end of the post-closure care period.

    (c) The Secretary finds, under Regulation .13K of this chapter, that the treatment zone of a land treatment unit that qualifies as a regulated unit does not contain levels of hazardous constituents that are above background levels of those constituents by an amount that is statistically significant, and if an unsaturated zone monitoring program meeting the requirements of Regulation .13I of this chapter has not shown a statistically significant increase in hazardous constituents below the treatment zone during the operating life of the unit. An exemption under this paragraph can only relieve an owner or operator of responsibility to meet the requirements of this regulation during the post-closure care period.

    (d) The owner or operator demonstrates to the Secretary's satisfaction that there is no potential for migration of liquid from a regulated unit to the uppermost aquifer during the active life of the regulated unit, including the closure period, and the post-closure care specified under Regulation .07G of this chapter. The owner or operator shall have this demonstration certified by a qualified geologist or geotechnical engineer. In order to provide an adequate margin of safety in the prediction of potential migration of liquid, the owner or operator shall base any predictions made under this paragraph on assumptions that maximize the rate of liquid migration.

    (e) The owner or operator designs and operates a waste pile in compliance with Regulation .12A of this chapter.

  (4) Requirements for Disposal Units that Received Last Volume of Waste before July 26, 1982.

    (a) An owner or operator of a hazardous waste landfill, land treatment facility, surface impoundment, or waste pile who received the last volume of hazardous waste before July 26, 1982, shall comply with all applicable requirements of COMAR 26.13.06.06—.15, and .19—.22.

    (b) The Department may add additional requirements under this regulation if the Secretary determines that these requirements are necessary to protect public health and the environment.

  (5) This regulation and Regulations .06-1—.06-7 of this chapter may apply to miscellaneous units when necessary to comply with Regulation .16-1B—D of this chapter.

  (6) This regulation and Regulations .06-1—.06-7 of this chapter apply during the:

    (a) Active life of the regulated unit, including the closure period;

    (b) Post-closure care period under Regulation .07G of this chapter if the owner or operator is conducting a detection monitoring program under Regulation .06-4 of this chapter; and

    (c) Compliance period under Regulation .06-1E of this chapter if the owner or operator is conducting a compliance monitoring program under Regulation .06-5 of this chapter or a corrective action program under Regulation .06-6 of this chapter.

  (7) This regulation and Regulations .06-1—.06-7 of this chapter do not apply if all waste, waste residues, contaminated containment system components, and contaminated subsoils are removed or decontaminated at closure.

B. Required Program.

  (1) Compliance Monitoring, Corrective Action, and Detection Monitoring.

    (a) Compliance Monitoring.

      (i) The owner or operator shall institute a compliance monitoring program approved by the Secretary under Regulation .06-5 of this chapter whenever hazardous constituents from a regulated unit are detected at the compliance point.

      (ii) The hazardous constituents to which §B(1)(a)(i) of this regulation applies are determined under Regulation .06-1B of this chapter.

      (iii) The compliance point is set under Regulation .06-1D of this chapter.

      (iv) Hazardous constituents are considered to have been detected if there is statistically significant evidence of contamination as described in Regulation .06-4G of this chapter.

    (b) Corrective Action.

      (i) The owner or operator shall institute a corrective action program approved by the Secretary under Regulation .06-6 of this chapter whenever the ground water protection standard under Regulation .06-1A of this chapter is exceeded. The ground water protection standard is considered to have been exceeded if there is statistically significant evidence of contamination as described in Regulation .06-5A(5) of this chapter.

      (ii) The owner or operator shall institute a corrective action program approved by the Secretary under Regulation .06-6 of this chapter whenever hazardous constituents from a regulated unit exceed concentration limits in ground water between the compliance point and the down gradient property boundary. The compliance point is set under Regulation .06-1D of this chapter. Concentration limits are established under Regulation .06-1C of this chapter. The hazardous constituents to which this requirement applies are established under Regulation .06-1B of this chapter.

    (c) Detection Monitoring. In all cases other than those covered by §B(1)(a) or (b) of this regulation, the owner or operator shall institute a detection monitoring program approved by the Secretary under Regulation .06-4 of this chapter.

  (2) Monitoring and Response Program.

    (a) The owner or operator of a facility subject to this regulation shall comply with the specific elements of the monitoring and response program specified by the Secretary in the facility permit.

    (b) The Secretary may include one or more of the programs identified in §B(1) of this regulation in the facility permit as may be necessary to protect human health and the environment and will specify the circumstances under which each of the programs will be required. In deciding whether to require the owner or operator to be prepared to institute a particular program, the Secretary shall consider the potential adverse effects on human health and the environment that might occur before final administrative action on a permit modification application to incorporate such a program could be taken.

#### Regulation .06-1 Ground Water Protection — Program Elements.

*COMAR 26.13.05.06-1*

A. Ground Water Protection Standard.

  (1) During the compliance period established under §E of this regulation, the owner or operator shall comply with conditions specified in the facility permit to ensure that, in the uppermost aquifer underlying the waste management area beyond the point of compliance, hazardous constituents detected in the ground water from a regulated unit do not exceed the concentration limits established under §C of this regulation. The hazardous constituents to which this applies are determined under §B of this regulation. The point of compliance is set under §D of this regulation.

  (2) The Secretary shall establish this ground water protection standard in the facility permit when hazardous constituents have been detected in the ground water.

B. Hazardous Constituents.

  (1) The facility permit shall specify the hazardous constituents to which the ground water protection standard of §A of this regulation applies.

  (2) For the purposes of this regulation, “hazardous constituents” means constituents identified in COMAR 26.13.02.24 that have been detected in ground water in the uppermost aquifer underlying a regulated unit and that are reasonably expected to be in or derived from waste contained in a regulated unit, unless the Secretary has excluded them under §B(3) of this regulation.

  (3) The Secretary may exclude a constituent identified in COMAR 26.13.02.24 from the list of hazardous constituents specified in the facility permit if he finds that the constituent is not capable of posing a substantial present or potential hazard to human health or the environment based on the following considerations:

    (a) Potential adverse effects on ground water quality considering:

      (i) The physical and chemical characteristics of the waste in the regulated unit, including its potential for migration;

      (ii) The hydrogeological characteristics of the facility and surrounding land;

      (iii) The quantity of ground water and the direction of ground water flow;

      (iv) The proximity and withdrawal rates of ground water users;

      (v) The current and future uses of ground water in the area;

      (vi) The existing quality of ground water, including other sources of contamination and their cumulative impact on the ground water quality;

      (vii) The potential for health risks caused by human exposure to waste constituents;

      (viii) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents;

      (ix) The persistence and permanence of the potential adverse effects; and

    (b) Potential adverse effects on hydraulically connected surface water quality, considering:

      (i) The volume and physical and chemical characteristics of the waste in the regulated unit;

      (ii) The hydrogeological characteristics of the facility and surrounding land;

      (iii) The quantity and quality of ground water, and the direction of ground water flow;

      (iv) The patterns of rainfall in the region;

      (v) The proximity of the regulated unit to surface waters;

      (vi) The current and future uses of surface waters in the area and any water quality standards established for those surface waters;

      (vii) The existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality;

      (viii) The potential for health risks caused by human exposure to waste constituents;

      (ix) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and

      (x) The persistence and permanence of the potential adverse effects.

  (4) In making any determination under §B(3) of this regulation about the use of ground water in the area around the facility, the Secretary shall consider any identification of underground sources of drinking water and exempted aquifers made by the Approving Authority for the State's Underground Injection Control Program.

C. Concentration Limits.

  (1) The facility permit shall specify concentration limits in the ground water for hazardous constituents established under §B of this regulation. The concentration of a hazardous constituent:

    (a) May not exceed the background level of that constituent in the ground water at the time that limit is specified in the permit;

    (b) For any of the constituents listed in Table 1, may not exceed the respective value given in that table if the background level of the constituent is below the value given in Table 1; or

    (c) May not exceed an alternate limit established by the Secretary under §C(2) of this regulation.

  (2) The Secretary may establish an alternate concentration limit for a hazardous constituent if the Secretary finds that the constituent does not pose a substantial present or potential hazard to human health or the environment as long as the alternate concentration limit is not exceeded. Establishment of alternate concentration limits is based on consideration of the following factors:

    (a) Potential adverse effects on ground water quality, considering:

      (i) The physical and chemical characteristics of the waste in the regulated unit, including its potential for migration;

      (ii) The hydrogeological characteristics of the facility and surrounding land;

      (iii) The quantity of ground water and the direction of ground water flow;

      (iv) The proximity and withdrawal rates of ground water users;

      (v) The current and future uses of ground water in the areas;

      (vi) The existing quality of ground water, including other sources of contamination and their cumulative impact on the ground water quality;

      (vii) The potential for health risks caused by human exposure to waste constituents;

      (viii) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents;

      (ix) The persistence and permanence of the potential adverse effects; and

    (b) Potential adverse effects on hydraulically connected surface water quality, considering:

      (i) The volume and physical and chemical characteristics of the waste in the regulated unit;

      (ii) The hydrogeological characteristics of the facility and surrounding land;

      (iii) The quantity and quality of ground water, and the direction of ground water flow;

      (iv) The patterns of rainfall in the region;

      (v) The proximity of the regulated unit to surface waters;

      (vi) The current and future uses of surface waters in the area and any water quality standards established for those surface waters;

      (vii) The existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality;

      (viii) The potential for health risks caused by human exposure to waste constituents;

      (ix) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and

      (x) The persistence and permanence of the potential adverse effects.

  (3) In making any determination under §C(2) of this regulation about the use of ground water in the area around the facility, the Secretary shall consider any identification of underground sources of drinking water and exempted aquifers made by the Approving Authority for the State's Underground Injection Control Program.

Table 1

D. Point of Compliance.

  (1) The Secretary shall specify in the facility permit the point of compliance at which the ground water protection standard of §A of this regulation applies and at which monitoring shall be conducted. The point of compliance is a vertical surface located at the hydraulically downgradient limit of the waste management area that extends down into the uppermost aquifer underlying the regulated units.

  (2) Waste Management Area.

    (a) The waste management area is the limit projected in the horizontal plane of the area on which waste will be placed during the active life of a regulated unit.

    (b) The waste management area includes horizontal space taken up by any liner, dike, or other barrier designed to contain waste in a regulated unit.

    (c) If the facility contains more than one regulated unit, the waste management area is described by an imaginary line circumscribing the several regulated units.

E. Compliance Period.

  (1) The Secretary shall specify in the facility permit the compliance period during which the ground water protection standard of §A of this regulation applies. The compliance period is the number of years equal to the active life of the waste management area (including any waste management activity before permitting, and the closure period), unless extended by order of the Secretary.

  (2) The compliance period begins when the owner or operator initiates a compliance monitoring program meeting the requirements of Regulation .06-5 of this chapter.

  (3) If the owner or operator is engaged in a corrective action program at the end of the compliance period specified in §E(1) of this regulation, the compliance period is extended until the owner or operator can demonstrate that the ground water protection standard of §A of this regulation has not been exceeded for a period of 3 consecutive years.

#### Regulation .06-2 General Ground Water Monitoring Requirements.

*COMAR 26.13.05.06-2*

For any ground water monitoring program developed to satisfy Regulation .06-4, .06-5, or .06-6 of this chapter, the owner or operator shall:

A. Obtain approval of the Secretary before installation;

B. Ensure that the ground water monitoring system:

  (1) Consists of a sufficient number of wells, installed at appropriate locations and depths, to yield ground water samples from the uppermost aquifer that represent the quality of background ground water that has not been affected by leakage from a regulated unit; and

  (2) Satisfies the following conditions if the determination of background water quality includes sampling of wells that are not hydraulically upgradient of the waste management area:

    (a) Hydrogeologic conditions do not allow the owner or operator to determine what wells are hydraulically upgradient; and

    (b) Sampling at other wells will provide an indication of background ground water quality that is as representative as, or more representative than, that provided by the upgradient wells;

C. Ensure that the ground water monitoring system:

  (1) Represents the quality of ground water passing the point of compliance; and

  (2) Allows for the detection of contamination when hazardous waste or hazardous constituents have migrated from the waste management area to the uppermost aquifer;

D. Ensure that separate ground water monitoring systems are provided for each regulated unit unless other provisions for sampling the ground water in the uppermost aquifer will enable detection and measurement at the compliance point of hazardous constituents from the regulated units that have entered the ground water in the uppermost aquifer;

E. Ensure that installation of the ground water monitoring system is:

  (1) Approved by an individual who has:

    (a) A bachelor's degree in geology or a related field of earth science from an accredited college or university; and

    (b) At least 3 years experience in the design and installation of these systems; and

  (2) Conducted in accordance with the requirements of COMAR 26.04.04;

F. Ensure that each monitoring well meets all of the following requirements:

  (1) The well is cased in a manner that maintains the integrity of the monitoring well bore hole;

  (2) The casing is screened or perforated and packed with gravel or sand, when necessary, to enable collection of ground water samples; and

  (3) The annular space, that is, the space between the bore hole and well casing, above the sampling depth, is sealed to prevent contamination of samples and the ground water;

G. Ensure that the ground water monitoring program includes consistent sampling and analysis procedures that are designed to provide a reliable indication of ground water quality below the waste management area by including, at a minimum, procedures and techniques for:

  (1) Sample collection;

  (2) Sample preservation and shipment;

  (3) Analytical procedures; and

  (4) Chain of custody control;

H. Ensure that the ground water monitoring program includes sampling and analytical methods that are appropriate for ground water sampling and that accurately measure hazardous constituents in ground water samples;

I. Ensure that the ground water monitoring program includes a determination of the ground water surface elevation each time ground water is sampled;

J. Satisfy the following conditions in implementing the detection monitoring program as required by Regulation .06-4 of this chapter or in implementing the compliance monitoring program as required by Regulation .06-5 of this chapter:

  (1) Collect data on each hazardous constituent specified in the permit to be collected from background wells and wells at the compliance point or points;

  (2) Ensure that the number and kinds of samples collected by the owner or operator to establish the background are appropriate for the form of statistical test employed, following generally accepted statistical principles;

  (3) Ensure that the sample size is as large as necessary to assure with reasonable confidence that a contaminant release to ground water from a facility will be detected; and

  (4) Determine an appropriate sampling procedure and interval for each hazardous constituent listed in the facility permit for specification in the permit upon approval by the Secretary;

K. Ensure that the sampling procedure required by §J of this regulation consists of either:

  (1) A sequence of at least four samples taken by the owner or operator at an interval that assures, to the greatest extent technically feasible, that an independent sample is obtained, considering the:

    (a) Uppermost aquifer's effective porosity;

    (b) Hydraulic conductivity of the uppermost aquifer;

    (c) Hydraulic gradient in the uppermost aquifer; and

    (d) Fate and transport characteristics of the potential contaminants; or

  (2) An alternate sampling procedure proposed by the owner or operator and approved by the Secretary.

L. Maintain, as part of the facility operating record, ground water monitoring data collected in accordance with §§J and K of this regulation, including actual levels of constituents;

M. Submit ground water monitoring data collected in accordance with Regulation .06B of this chapter to the Secretary for the Secretary's review on a schedule as specified in the facility CHS permit.

#### Regulation .06-3 Statistical Methods for Evaluating Ground Water Monitoring Data.

*COMAR 26.13.05.06-3*

A. General.

  (1) The owner or operator shall specify, subject to §B of this regulation, a statistical method to be used in evaluating ground water monitoring data for each hazardous constituent identified in accordance with Regulation .06-1B of this chapter.

  (2) Once a choice of statistical method is approved by the Secretary, the owner or operator shall use the statistical method as a condition of the owner's or operator's CHS facility permit.

  (3) The owner or operator shall conduct the chosen statistical test separately for each hazardous constituent identified in accordance with Regulation .06-1B of this chapter in each well.

  (4) If a practical quantification limit (pql) is to be used in a statistical method specified under this section to comply with the performance standards of §C(9) of this regulation, the owner or operator shall propose the pql to the Secretary for approval.

  (5) The owner or operator shall ensure that a statistical method specified under this section:

    (a) Is protective of human health and the environment; and

    (b) Complies with the performance standards outlined in §C of this regulation.

B. Statistical Methods. In satisfying the requirement of §A(1) of this regulation, the owner or operator shall specify one of the following statistical methods:

  (1) A parametric analysis of variance (ANOVA) followed by multiple comparisons procedures to identify statistically significant evidence of contamination, if the method includes estimation and testing of the contrasts between each compliance well's mean and the background mean levels for each constituent;

  (2) An analysis of variance (ANOVA) based on ranks followed by multiple comparisons procedures to identify statistically significant evidence of contamination, if the method includes estimation and testing of the contrasts between each compliance well's median and the background median levels for each constituent;

  (3) A tolerance or prediction interval procedure in which an interval for each constituent is established from the distribution of the background data, and the level of each constituent in each compliance well is compared to the upper tolerance or prediction limit;

  (4) A control chart approach that gives control limits for each constituent; or

  (5) Another statistical test method submitted by the owner or operator and approved by the Secretary.

C. Performance Standards.

  (1) The owner or operator shall comply with the following requirements for any statistical method chosen under §§A and B of this regulation for specification in the facility permit.

  (2) The owner or operator shall ensure that the statistical method used to evaluate ground water monitoring data is appropriate for the distribution of the chemical parameters or hazardous constituents.

  (3) If the distribution of a chemical parameter or hazardous constituent for which data are collected under the ground water monitoring program is inappropriate for a normal theory test, then the owner or operator shall transform the data into an appropriate form or use a distribution-free theory test.

  (4) If the statistical distributions for the constituents for which data are collected differ, the owner or operator may use more than one statistical method.

  (5) In tests other than those using tolerance intervals, prediction intervals, or control charts, in comparing an individual compliance well constituent concentration with background constituent concentrations or a ground water protection standard, the owner or operator shall ensure that:

    (a) If an individual well comparison is used, the Type I error level is not less than 0.01 for each testing period; and

    (b) If a multiple comparisons procedure is used, the Type I overall experimental error rate for each testing period is not less than 0.05, and the Type I error of not less than 0.01 for individual well comparisons is maintained.

  (6) If a control chart approach is used to evaluate ground water monitoring data, the owner or operator shall propose the specific type of control chart and its associated parameter values for approval by the Secretary, contingent upon the approach being protective of human health and the environment.

  (7) Tolerance Intervals.

    (a) If a tolerance interval or a prediction interval is used by the owner or operator to evaluate ground water monitoring data, the owner or operator shall propose the following for approval by the Secretary, contingent on values for these parameters being protective of human health and the environment:

      (i) Levels of confidence; and

      (ii) For tolerance intervals, the percentage of the population that the interval is to contain.

    (b) The Secretary shall consider the following in reviewing the parameters proposed under §C(7)(a) of this regulation:

      (i) The number of samples in the background data base;

      (ii) The data distribution for each constituent of concern; and

      (iii) The range of the concentration values for each constituent of concern.

  (8) The owner or operator shall ensure that the statistical method accounts for data below the limit of detection with one or more statistical procedures.

  (9) In proposing a practical quantification limit (pql) for use in a statistical procedure to account for data below the limit of detection, the owner or operator shall select the lowest concentration level that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions that are available to the facility.

  (10) The owner or operator shall ensure that the statistical method includes procedures to control or correct for seasonal and spatial variability as well as temporal correlation in the data, as required.

#### Regulation .06-4 Detection Monitoring Program.

*COMAR 26.13.05.06-4*

An owner or operator required to establish a detection monitoring program under this regulation shall, at a minimum, discharge the following responsibilities:

A. The owner or operator shall monitor for waste constituents, reaction products, or indicator parameters, such as specific conductance, total organic carbon, or total organic halogen, that provide a reliable indication of the presence of hazardous constituents in ground water, as specified by the Secretary in the facility permit after considering the following factors:

  (1) The types, quantities, and concentrations of constituents in wastes managed at the regulated unit;

  (2) The mobility, stability, and persistence of waste constituents or their reaction products in the unsaturated zone beneath the waste management area;

  (3) The detectability of indicator parameters, waste constituents, and reaction products in ground water; and

  (4) The concentrations or values and coefficients of variation of proposed monitoring parameters or constituents in the ground water background;

B. The owner or operator shall install a ground water monitoring system at the compliance point, as specified under Regulation .06-1D of this chapter, that is in compliance with Regulation .06-2C(1), D, and F of this chapter;

C. The owner or operator shall ensure that a detection monitoring program satisfies the following requirements:

  (1) The program includes each chemical parameter and hazardous constituent specified in the permit under §A of this regulation in accordance with Regulation .06-2J and K of this chapter; and

  (2) The owner or operator maintains a record of ground water analytical data as measured and in a form necessary for the determination of statistical significance under Regulation .06-3A and B of this chapter;

D. The owner or operator shall, at frequencies specified by the Secretary, collect samples and conduct statistical tests to determine whether there is statistically significant evidence of contamination for any parameter or hazardous constituent specified in the permit under §A of this regulation in accordance with Regulations .06-2J and K, and .06-3A of this chapter;

E. In complying with the requirements of §D of this regulation, during detection monitoring, the owner or operator shall, at a minimum, collect at least semiannually a sequence of at least four samples from each background and compliance well;

F. The owner or operator shall determine the ground water flow rate and direction in the uppermost aquifer at least annually;

G. The owner or operator shall determine whether there is statistically significant evidence of contamination for any chemical parameter or hazardous constituent specified in the facility CHS permit under §A of this regulation by:

  (1) Making the determination at a frequency specified under §D of this regulation;

  (2) Using the method or methods specified in the permit under Regulation .06-3A of this chapter to compare data collected at the compliance point or points to the background ground water quality data; and

  (3) Determining whether there is statistically significant evidence of contamination at each monitoring well at the compliance point within a reasonable period of time after completion of sampling, as specified by the Secretary in the permit based on:

    (a) The complexity of the statistical test; and

    (b) The availability of laboratory facilities to perform the analysis of ground water samples;

H. The owner or operator shall comply with the following requirements if the owner or operator determines, in accordance with §G of this regulation, that there is statistically significant evidence of contamination for chemical parameters or hazardous constituents specified under §A of this regulation at any monitoring well at the compliance point:

  (1) Notify the Secretary of this finding in writing within 7 days, indicating what chemical parameters or hazardous constituents have shown statistically significant evidence of contamination;

  (2) Immediately sample the ground water in all monitoring wells and determine the concentration of all constituents identified in 40 CFR 264, Appendix IX, that are present in ground water;

  (3) Except as provided in §H(6) of this regulation, determine the constituents that will form the basis for compliance monitoring by either:

    (a) Resampling ground water within 1 month of the time that constituents identified in 40 CFR 264, Appendix IX, are detected under §H(2) of this regulation, repeating the analysis to determine constituent concentrations, and if the results of the second analysis confirm the presence of compounds detected in the first analysis, using those constituents as the basis for compliance monitoring; or

    (b) Using the hazardous constituents found during the initial analysis conducted under §H(2) of this regulation as the basis for compliance monitoring;

  (4) Within 90 days, submit to the Secretary an application for a permit modification to establish a compliance monitoring program meeting the requirements of Regulation .06-5 of this chapter, including in the application the following information:

    (a) For each monitoring well at the compliance point, the concentration of any constituent listed in 40 CFR 264, Appendix IX, that was found in the ground water;

    (b) Any proposed changes to the ground water monitoring system at the facility necessary to meet the requirements of Regulation .06-5 of this chapter;

    (c) Any proposed changes to the monitoring frequency, sampling, and analysis procedures or methods, or statistical procedures used at the facility necessary to meet the requirements of Regulation .06-5 of this chapter;

    (d) For each hazardous constituent found at the compliance point, a proposed concentration limit under Regulation .06-1C(1)(a) or (b) of this chapter, or a notice of intent to seek an alternative concentration limit under Regulation .06-1C(2) of this chapter;

  (5) Within 180 days, submit to the Secretary:

    (a) All data necessary to justify an alternate concentration limit sought under Regulation .06-1C(2) of this chapter; and

    (b) An engineering feasibility plan for a corrective action program necessary to meet the requirements of Regulation .06-6 of this chapter, unless:

      (i) All hazardous constituents identified under §H(2) of this regulation are listed in Table 1 of Regulation .06-1C(3) of this chapter and their concentrations do not exceed the respective values given in that table, or

      (ii) The owner or operator has sought an alternate concentration limit under Regulation .06-1C(2) of this chapter for each hazardous constituent identified under §H(2) of this regulation;

  (6) If the resampling conducted under §H(3)(a) of this regulation does not confirm the initial results, then the owner or operator may remain in detection monitoring, and need not make the submissions required by §H(4) and (5) of this regulation;

I. If the owner or operator determines under §G of this regulation that there is statistically significant evidence of contamination for chemical parameters or hazardous constituents specified under §A of this regulation at any monitoring well at the compliance point, the owner or operator may attempt to demonstrate that:

  (1) A source other than a regulated unit caused the contamination; or

  (2) The finding of statistically significant evidence of contamination resulted from error in sampling, analysis, or statistical evaluation, or from natural variation in ground water;

J. The owner or operator shall submit an application for a permit modification within the time specified in §H(4) of this regulation unless a demonstration made under §I of this regulation successfully shows that:

  (1) A source other than a regulated unit caused the contamination; or

  (2) The finding of statistically significant evidence of contamination resulted from error in sampling, analysis, or statistical evaluation, or from natural variation in ground water;

K. In making a demonstration under §I of this regulation, the owner or operator shall:

  (1) Notify the Secretary in writing, within 7 days of determining that there is statistically significant evidence of contamination at the compliance point, of the intention to make a demonstration under §I of this regulation;

  (2) Within 90 days, submit a report to the Secretary which demonstrates that a source other than a regulated unit caused the contamination, or that the finding of statistically significant evidence of contamination resulted from error in sampling, analysis, or evaluation, or from natural variation in the ground water;

  (3) Within 90 days, submit to the Secretary an application for a permit modification to make any appropriate changes to the detection monitoring program at the facility; and

  (4) Continue to monitor in accordance with the detection monitoring program established under this regulation;

L. If the owner or operator determines that the detection monitoring program no longer satisfies the requirements of this regulation, the owner or operator shall, within 90 days, submit an application for a permit modification to make any appropriate changes to the program.

#### Regulation .06-5 Compliance Monitoring.

*COMAR 26.13.05.06-5*

A. Compliance Monitoring Program. An owner or operator required to establish a compliance monitoring program under this regulation shall, at a minimum, discharge the following responsibilities:

  (1) Monitor the ground water to determine whether regulated units are in compliance with the ground water protection standard under Regulation .06-1A of this chapter;

  (2) Comply with the ground water protection standard specified by the Secretary in the facility permit, including the:

    (a) List of the hazardous constituents identified in accordance with Regulation .06-1B of this chapter;

    (b) Concentration limits specified in accordance with Regulation .06-1C of this chapter for each of the hazardous constituents in §A(2)(a) of this regulation;

    (c) Compliance point specified in accordance with Regulation .06-1D of this chapter; and

    (d) Compliance period specified in accordance with Regulation .06-1E of this chapter;

  (3) Install a ground water monitoring system at the compliance point as specified under Regulation .06-1D of this chapter that complies with the requirements of Regulation .06-2B—D and F of this chapter;

  (4) Use sampling procedures and statistical methods appropriate for the constituents and the facility, in accordance with Regulations .06-2J and K and .06-3A and B of this chapter, as follows:

    (a) Implement a sampling program as specified by the Secretary in the facility CHS permit;

    (b) Conduct a sampling program for each chemical parameter or hazardous constituent in accordance with Regulation .06-2J and K of this chapter; and

    (c) Record ground water analytical data as measured and in a form necessary for the determination of statistical significance under Regulation .06-3A and B of this chapter for the compliance period of the facility;

  (5) Make a determination as to whether there is evidence of increased contamination in accordance with the following:

    (a) Determine whether there is statistically significant evidence of increased contamination for any chemical parameter or hazardous constituent specified in the CHS facility permit under §A(1) and (2) of this regulation at a frequency specified under §A(7) and (8) of this regulation;

    (b) Use the methods specified in the CHS facility permit under Regulation .06-3A and B of this chapter to make the determination under §A(5)(a) of this regulation;

    (c) Ensure that the methods under §A(5)(b) of this regulation compare data collected at the compliance point or points to a concentration limit developed under Regulation .06-1C of this chapter;

    (d) Make the determination of whether there is statistically significant evidence of increased contamination at each monitoring well at the compliance point within a reasonable time period after the completion of sampling, as specified by the Secretary in the facility's CHS permit after consideration of the following:

      (i) The complexity of the statistical test; and

      (ii) The availability of the laboratory facilities to perform the analysis of ground water samples;

  (6) Determine the ground water flow rate and direction in the uppermost aquifer at least annually;

  (7) Ensure that the frequencies for collecting samples and conducting statistical tests to determine statistically significant evidence of increased contamination in accordance with Regulation .06-2J and K of this chapter are in accordance with the requirements specified by the Secretary in the facility's CHS permit;

  (8) Collect a sequence of at least four samples from each well, including background and compliance wells, at least semiannually during the compliance period of the facility;

  (9) Analyze samples from all monitoring wells at the compliance point for all constituents listed in 40 CFR 264, Appendix IX, at least annually to determine whether additional hazardous constituents are present in the uppermost aquifer and, if so, at what concentration, in accordance with procedures under Regulation .06-4G of this chapter;

  (10) If constituents listed in 40 CFR 264, Appendix IX, are found in the ground water under §A(9) of this regulation, and some of these constituents have not already been identified in the facility's CHS permit as monitoring constituents, the owner or operator shall either:

    (a) Report the concentrations of the newly identified constituents to the Secretary within 7 days after the initial analysis and add them to the facility's monitoring list; or

    (b) Resample within 1 month and repeat the analysis for constituents listed in 40 CFR 264, Appendix IX, and comply with the following requirements:

      (i) Report the results of the analysis to the Secretary within 7 days of the completion of the second analysis; and

      (ii) If the results of the resampling confirm the initial testing results, add the constituents to the list of constituents monitored under the facility's permit;

  (11) Comply with the following requirements if the owner or operator determines, under §A(5) of this regulation, that any concentration limit under Regulation .06-1C of this chapter is being exceeded at any monitoring well at the point of compliance:

    (a) Notify the Secretary of this finding in writing within 7 days, indicating in the notification the concentration limits that have been exceeded;

    (b) Submit to the Secretary an application for a permit modification to establish a corrective action program meeting the requirements of Regulation .06-6 of this chapter within 180 days, or within 90 days if an engineering feasibility study has been previously submitted to the Secretary under Regulation .06-4H(5) of this chapter, unless the facility permit already includes that corrective action program;

    (c) Include at a minimum, in the application submitted in accordance with §A(11)(b) of this regulation, the following information:

      (i) A detailed description of corrective actions that will achieve compliance with the ground water protection standard specified in the permit under §A(1) and (2) of this regulation; and

      (ii) A plan for a ground water monitoring program that will demonstrate the effectiveness of the corrective action, and that may be based on a compliance monitoring program developed to meet the requirements of this regulation.

B. Demonstration of Alternate Cause of Exceedence.

  (1) If the owner or operator determines, in accordance with §A(5) of this regulation, that any ground water concentration limits under this regulation are being exceeded at any monitoring well at the point of compliance, the owner or operator may attempt to demonstrate that a source other than a regulated unit caused the contamination or that the detection is an artifact from either an error in sampling, analysis, or statistical evaluation, or from natural variation in the ground water.

  (2) In making a demonstration under this section, the owner or operator shall:

    (a) Notify the Secretary in writing, within 7 days of determining that a ground water concentration limit has been exceeded, of the intention to make a demonstration under this section;

    (b) Within 90 days, submit a report to the Secretary which demonstrates that a source other than a regulated unit caused the standards to be exceeded or that the apparent noncompliance with the standards resulted from an error in sampling, analysis, or evaluation, or from natural variation in the ground water;

    (c) Within 90 days, submit to the Secretary an application for a permit modification to make any appropriate changes to the compliance monitoring program at the facility; and

    (d) Continue to monitor in accordance with the compliance monitoring program established under this regulation.

C. If the owner or operator determines that the compliance monitoring program no longer satisfies the requirements of this regulation, the owner or operator shall, within 90 days, submit an application for a permit modification to make any appropriate changes to the program.

#### Regulation .06-6 Corrective Action Program.

*COMAR 26.13.05.06-6*

A. Corrective Action Program Content. An owner or operator required to establish a corrective action program under this regulation shall, at a minimum, discharge the following responsibilities:

  (1) Take corrective action measures to ensure that regulated units are in compliance with the ground water protection standards under Regulation .06-1A of this chapter specified by the Secretary in the facility permit, including:

    (a) A list of the hazardous constituents identified under Regulation .06-1B of this chapter;

    (b) The concentration limits under Regulation .06-1C of this chapter for each of those hazardous constituents in §A(1)(a) of this regulation;

    (c) The compliance point under Regulation .06-1D of this chapter; and

    (d) The compliance period under Regulation .06-1E of this chapter;

  (2) Implement a corrective action program that prevents hazardous constituents from exceeding their respective concentration limits at the compliance point by removing the hazardous waste constituents or treating them in place, in accordance with the measures specified in the facility permit;

  (3) Begin corrective action within a reasonable time period after the ground water protection standard is exceeded, as specified by the Secretary in the facility permit;

  (4) In conjunction with the corrective action program, establish and implement a ground water monitoring program to demonstrate the effectiveness of the corrective action program;

  (5) Ensure that the ground water monitoring program, under §A(4) of this regulation, which may be based on the requirements for a compliance monitoring program under Regulation .06-5 of this chapter, is as effective as the compliance monitoring program in determining:

    (a) Compliance with the ground water protection standard under Regulation .06-1A of this chapter; and

    (b) The success of a corrective action program under §A(6) of this regulation, when appropriate;

  (6) Comply with the following requirements for the corrective action program:

    (a) In addition to the other requirements of this chapter, conduct a corrective action program to remove or treat in place any hazardous constituents under Regulation .06-1B of this chapter that exceed concentration limits under Regulation .06-1C of this chapter in ground water:

      (i) Between the compliance point under Regulation .06-1D of this chapter and the downgradient facility property boundary, and

      (ii) Beyond the facility boundary when necessary to protect human health and the environment, except as provided in §A(6)(b) of this regulation;

    (b) Instead of the requirements of §A(6)(a)(ii) of this regulation to conduct a corrective action program beyond the facility boundary, implement on-site measures as determined by the Secretary on a case-by-case basis to address any release that has migrated beyond the facility boundary, if the owner or operator is able to demonstrate to the Secretary's satisfaction that, despite best efforts, the owner or operator was unable to obtain the necessary permission to undertake a corrective action program beyond the facility boundary;

    (c) Initiate and complete corrective action measures under this regulation within a reasonable period of time, considering the extent of contamination;

    (d) Continue implementing corrective action measures under this regulation at least until the concentrations of hazardous constituents under Regulation .06-1B of this chapter are reduced to levels below their respective concentration limits under Regulation .06-1C of this chapter.

B. Program Duration, Reporting Requirements, and Modification. An owner or operator required to conduct a corrective action program under the requirements of this regulation shall:

  (1) Comply with the following requirements concerning the duration of corrective action measures:

    (a) Continue corrective action measures during the compliance period to the extent necessary to ensure that the ground water protection standard is not exceeded,

    (b) If the owner or operator is conducting corrective action at the end of the compliance period, continue the corrective action for as long as necessary to achieve compliance with the ground water protection standard,

    (c) Continue corrective action measures taken beyond the period equal to the active life of the waste management area, including the closure period, at least until the owner or operator can demonstrate, based on data from the ground water monitoring program under §A(4) and (5) of this regulation, that the ground water protection standard of Regulation .06-1A of this chapter has not been exceeded for a period of 3 consecutive years;

  (2) Report in writing to the Secretary on the effectiveness of the corrective action program through reports submitted semiannually;

  (3) Within 90 days of determining that the corrective action program no longer satisfies the requirements of this regulation, submit an application for a permit modification to make any appropriate changes to the program.

#### Regulation .06-7 Corrective Action for Solid Waste Management Units.

*COMAR 26.13.05.06-7*

A. The owner or operator of a facility seeking a permit for the treatment, storage, or disposal of hazardous waste shall institute corrective action as necessary to protect human health and the environment from all releases of hazardous waste or constituents from any solid waste management unit at the facility, regardless of the time at which waste was placed in the unit.

B. Corrective action shall be specified in the permit. If the corrective action cannot be completed before issuance of the permit, the permit shall contain schedules of compliance for the corrective action and assurances of financial responsibility for completing the corrective action.

C. Except as provided in §D of this regulation, in complying with the requirements of §A of this regulation, the owner or operator shall implement corrective actions beyond the facility property boundary when necessary to protect human health and the environment.

D. The owner or operator is not subject to the requirement of §C of this regulation to implement corrective actions beyond the facility property boundary if the owner or operator is able to demonstrate to the Secretary's satisfaction that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake the corrective actions. Instead, the owner or operator shall implement on-site measures as determined by the Secretary on a case-by-case basis to address any release that has migrated beyond the facility boundary, and provide assurances of financial responsibility for the corrective action.

#### Regulation .07 Closure and Post-Closure.

*COMAR 26.13.05.07*

A. Applicability. Except as Regulation .01 of this chapter otherwise provides:

  (1) Sections B—F(1) of this regulation, which concern closure, apply to the owners and operators of all hazardous waste facilities; and

  (2) Sections F(2)—J of this regulation, which concern post-closure care, apply to the owners and operators of:

    (a) All hazardous waste disposal facilities;

    (b) Waste piles and surface impoundments from which the owner or operator intends to remove the waste at closure, to the extent that §§G—J of this regulation are made applicable to the facilities in Regulation .11G or .12I of this chapter;

    (c) Tank systems that are required under Regulation .10-7 of this chapter to meet the requirements for landfills;

    (d) Containment buildings that are required under Regulation .18-3C of this chapter to meet the requirements for landfills; and

    (e) Hazardous waste munitions and explosives storage units that are required under Regulation .21C(3) of this chapter to meet the requirements for landfills.

B. Closure Performance Standard. The owner or operator of a facility shall close the facility in a manner that:

  (1) Minimizes the need for further maintenance;

  (2) Controls, minimizes, or eliminates, to the extent necessary to protect human health and the environment, post-closure escape of hazardous waste, hazardous constituents, leachate, contaminated runoff, or waste decomposition products to the ground water, or surface waters, or to the atmosphere; and

  (3) Complies with the closure requirements:

    (a) Of this regulation; and

    (b) Referenced in this regulation and this chapter, including, but not limited to, closure requirements of Regulations .09I, .10-7, .11G, .12I, .13K, .14J, .16L, .16-1B—D, .18-3, and .21C of this chapter.

C. Closure Plan; Amendment of Plan.

  (1) Written Plan.

    (a) The owner or operator of a hazardous waste management facility shall:

      (i) Have a written closure plan;

      (ii) Have contingent closure plans for certain surface impoundments and waste piles from which the owner or operator intends to remove or decontaminate the hazardous waste at partial or final closure as required by Regulations .11G(3)(a) and .12I(3)(a) of this chapter;

      (iii) Submit the required closure plan with the permit application;

      (iv) Obtain the approval of the Secretary as part of the permit issuance procedures under COMAR 26.13.07; and

      (v) Comply with the provisions of the approved closure plan, which will become a condition of any CHS facility permit.

    (b) The Secretary's approval of the plan shall ensure that the approved closure plan is consistent with §§B —F(1) of this regulation and the applicable requirements of Regulations .06—.06-7, .09I, .10-7, .11G, .12I, .13K, .14J, .16L, .16-1B, .18-3, and .21C of this chapter.

    (c) Until final closure is certified in accordance with §F of this regulation, the owner or operator shall, upon request by the Secretary, including requests by mail, furnish the Secretary with a copy of the approved plan and all approved revisions.

  (2) Content of the Plan. The plan shall identify steps necessary to perform partial or final closure of the facility at any point during its active life. The closure plan shall include, at least:

    (a) A description of how each hazardous waste management unit at the facility will be closed in accordance with §B, of this regulation.

    (b) A description of how final closure of the facility will be conducted in accordance with §B of this regulation. The description shall identify the maximum extent of the operations which will be unclosed during the active life of the facility.

    (c) An estimate of the maximum inventory of hazardous wastes ever on-site over the active life of the facility and a detailed description of the methods to be used during partial closures and final closure, including, but not limited to, methods for removing, transporting, treating, storing, or disposing of all hazardous wastes, and identification of the type or types of the off-site hazardous waste management units to be used, if applicable.

    (d) A detailed description of the steps needed to remove or decontaminate all hazardous waste residues and contaminated containment system components, equipment, structures, and soils during partial and final closure, including, but not limited to, procedures for cleaning equipment and removing contaminated soils, methods for sampling and testing surrounding soils, and criteria for determining the extent of decontamination required to satisfy the closure performance standard.

    (e) A detailed description of other activities necessary during the closure period to ensure that all partial closures and final closure satisfy the closure performance standards, including but not limited to ground water monitoring, leachate collection, and run-on and run-off control.

    (f) A schedule for closure of each hazardous waste management unit and for final closure of the facility. The schedule shall include, at a minimum, the total time required to close each hazardous waste management unit and the time required for intervening closure activities which will allow tracking of the progress of partial and final closure. (For example, in the case of a landfill unit, estimates of the time required to treat or dispose of all hazardous waste inventory and of the time required to place a final cover shall be included.)

    (g) For facilities that use trust funds to establish financial assurance under Regulation .08 and that are expected to close before the expiration of the permit, an estimate of the expected year of final closure.

  (3) Amendment of the Plan.

    (a) The owner or operator shall submit a written request for a permit modification to authorize a change in operating plans, facility design, or the approved closure plan in accordance with the procedures in COMAR 26.13.07. The written request shall include a copy of the amended closure plan for approval by the Secretary.

    (b) The owner or operator may submit a written request to the Secretary for a permit modification to amend the closure plan at any time before the notification of partial or final closure of the facility.

    (c) The owner or operator shall submit a written request for a permit modification to authorize a change in the approved closure plan whenever:

      (i) Changes in operating plans or facility design affect the closure plan;

      (ii) There is a change in the expected year of closure, if applicable; or

      (iii) In conducting partial or final closure activities, unexpected events require a modification of the approved closure plan.

    (d) The owner or operator shall submit a written request for a permit modification including a copy of the amended closure plan for approval at least 60 days before the proposed change in facility design or operation, or not later than 60 days after an unexpected event has occurred which has affected the closure plan. If an unexpected event occurs during the partial or final closure period, the owner or operator shall request a permit modification not later than 30 days after the unexpected event. An owner or operator of a surface impoundment or waste pile that intends to remove all hazardous waste at closure and is not otherwise required to prepare a contingent closure plan under Regulation .11G(3)(a) or .12I(3)(a), of this chapter, shall submit an amended closure plan to the Secretary not later than 60 days from the date that the owner or operator or Secretary determines that the hazardous waste management unit must be closed as a landfill, subject to the requirements of Regulation .14J, of this chapter, or not later than 30 days from that date if the determination is made during partial or final closure. The Secretary will approve, disapprove, or modify this amended plan in accordance with the procedures in COMAR 26.13.07. The approved closure plan will become a condition of any CHS facility permit issued.

    (e) The Secretary may request modifications to the plan under the conditions described in §C(3)(b) of this regulation. The owner or operator shall submit the modified plan within 60 days of the Secretary's request, or within 30 days if the change in facility conditions occurs during partial or final closure. Any modifications requested by the Secretary will be approved in accordance with the procedures in COMAR 26.13.07.

  (4) Notification of Partial Closure and Final Closure.

    (a) The owner or operator of a facility shall notify the Secretary in writing at least:

      (i) 60 days before the date on which the owner or operator expects to begin closure of a surface impoundment, waste pile, land treatment unit or landfill unit, or final closure of a facility with such a unit; and

      (ii) 45 days before the date on which the owner or operator expects to begin final closure of a facility with only treatment or storage tanks, container storage, or incinerator units to be closed.

    (b) For the purpose of §C(4)(a) of this regulation, the date when the owner or operator expects to begin closure shall be:

      (i) Within 30 days after the date on which any hazardous waste management unit or facility received the known final volume of hazardous waste;

      (ii) Not later than 1 year after the date on which the unit received the most recent volume of hazardous waste, if there is a reasonable possibility that the hazardous waste management unit or facility will receive additional hazardous waste; or

      (iii) A later deadline established by the Secretary under §C(4)(c) of this regulation.

    (c) The Secretary may approve an extension to the 1-year limit in §C(4)(b)(ii) of this regulation if the owner or operator can demonstrate to the Secretary that:

      (i) The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes; and

      (ii) The owner or operator has taken, and will continue to take, all steps to prevent threats to human health and the environment, including compliance with all applicable permit requirements.

    (d) If the owner or operator has been allowed to receive non-hazardous wastes in a landfill, land treatment, or surface impoundment unit after the final receipt of hazardous waste as provided by §D(6) of this regulation, the date when the owner or operator expects to begin closure for the purpose of §C(4)(a) of this regulation shall be not later than:

      (i) 30 days after the date on which the hazardous waste management unit receives the known final volume of non-hazardous wastes;

      (ii) 1 year after the date on which the unit received the most recent volume of non-hazardous waste, if there is a reasonable possibility that the unit will receive additional non-hazardous wastes; or

      (iii) A later deadline established by the Secretary under §C(4)(e) of this regulation.

    (e) The Secretary may approve an extension to the 1-year limit in §C(4)(d)(ii) of this regulation if the owner or operator can demonstrate to the Secretary that:

      (i) The hazardous waste management unit has the capacity to receive additional non-hazardous waste; and

      (ii) The owner or operator has taken, and will continue to take, all steps to prevent threats to human health and the environment, including compliance with all applicable permit requirements.

    (f) If the facility's permit is terminated, or if the facility is otherwise ordered, by judicial decree or final order under Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland, to cease receiving hazardous wastes or to close, then the requirements of §C(4)(a)—(e) of this regulation do not apply. Instead, the owner or operator shall close the facility in accordance with the deadlines established in §D of this regulation.

  (5) Removal of Wastes and Decontamination or Dismantling of Equipment. Nothing in this section shall preclude the owner or operator from removing hazardous wastes and decontaminating or dismantling equipment in accordance with the approved partial or final closure plan at any time before or after notification of partial or final closure.

D. Closure; Time Allowed for Closure.

  (1) Except as provided in §D(2) of this regulation, within 90 days after receiving the final volume of hazardous wastes at a hazardous waste management unit or facility, or the final volume of non-hazardous wastes if the owner or operator complies with all the requirements in §D(6)—(8) of this regulation, the owner or operator shall treat, remove from the unit or facility, or dispose of on-site, all hazardous wastes in accordance with the approved closure plan.

  (2) The Secretary may approve a longer period than that specified in §D(1) of this regulation if the owner or operator complies with all applicable requirements for requesting a modification to the permit and demonstrates that the owner or operator has taken and will continue to take all steps to prevent threats to human health and the environment, including compliance with all applicable permit requirements, and either:

    (a) The activities required to comply with §D(1) of this regulation either will, of necessity, take longer than 90 days to complete; or

    (b) The following conditions are met:

      (i) The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes, or has the capacity to receive non-hazardous wastes if the owner or operator complies with the requirements of §D(6)—(8) of this regulation,

      (ii) There is a reasonable likelihood that the owner or operator or another person will recommence operation of the hazardous waste management unit or the facility within 1 year, and

      (iii) Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site.

  (3) Except as provided in §D(4) of this regulation, the owner or operator shall, within 180 days after receiving the final volume of hazardous wastes at the hazardous waste management unit or facility, or the final volume of non-hazardous wastes if the owner or operator complies with the requirements of §D(6)—(8) of this regulation, complete partial and final closure activities in accordance with the approved closure plan.

  (4) The Secretary may approve an extension to the closure period specified in §D(3) of this regulation if the owner or operator complies with all applicable requirements for requesting a modification to the permit and demonstrates that the owner or operator has taken, and will continue to take, all steps to prevent threats to human health and the environment from the unclosed but not operating hazardous waste management unit or facility, including compliance with all applicable permit requirements, and either:

    (a) The partial or final closure activities will, of necessity, take longer than 180 days to complete; or

    (b) The following conditions are met:

      (i) Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site;

      (ii) The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes or has the capacity to receive non-hazardous wastes if the owner or operator complies with the requirements of §D(6)—(8) of this regulation; and

      (iii) There is reasonable likelihood that the owner or operator will recommence operation of the hazardous waste management unit or facility within 1 year.

  (5) The demonstrations referred to in §D(2) and (4) of this regulation shall be made as follows:

    (a) The demonstration in §D(2) of this regulation shall be made at least 30 days before the expiration of the 90-day period in §D(1) of this regulation; and

    (b) The demonstration in §D(4) of this regulation shall be made at least 30 days before the expiration of the 180-day period in §D(3) of this regulation.

  (6) The Secretary may allow an owner or operator to receive only non-hazardous wastes in a landfill, land treatment unit, or surface impoundment unit after the final receipt of hazardous wastes at the unit if the owner or operator:

    (a) Submits a request for a CHS permit modification in accordance with the requirements of COMAR 26.13.07; and

    (b) Demonstrates in the request for permit modification required by §D(6)(a) of this regulation that:

      (i) The unit has the existing design capacity, as indicated on the part A permit application, to receive non-hazardous wastes;

      (ii) There is a reasonable likelihood that the owner or operator or another person will receive non-hazardous wastes in the unit within 1 year after the final receipt of hazardous wastes;

      (iii) The non-hazardous wastes will not be incompatible with any remaining wastes in the unit, or with the design and operating requirements of the unit or facility;

      (iv) Closure of the hazardous waste management unit would be incompatible with the continued operation of the unit or facility; and

      (v) The owner or operator is operating and will continue to operate in compliance with all applicable permit requirements;

    (c) Includes, in the request to modify the permit:

      (i) An amended waste analysis plan;

      (ii) A ground water monitoring and response program;

      (iii) The human exposure assessment required under RCRA §3019; and

      (iv) Closure and post-closure plans;

    (d) Includes, in the request to modify the permit, updated cost estimates and demonstrations of financial assurance for closure and post-closure as necessary and appropriate to reflect any:

      (i) Changes due to the presence of hazardous constituents in the non-hazardous waste; and

      (ii) Changes in closure activities, including the expected year of closure if applicable under §C(2)(g) of this regulation, as a result of the receipt of non-hazardous wastes following the final receipt of hazardous wastes;

    (e) Includes, in the request to modify the permit, all revisions to affected conditions of the permit as necessary and appropriate, to account for the receipt of non-hazardous wastes following receipt of the final volume of hazardous wastes;

    (f) Submits the request to modify the permit and the demonstrations referred to in §D(6)(a)—(d) of this regulation to the Secretary within the later of the following two time periods:

      (i) Not later than 120 days before the date on which the owner or operator of the facility received the known final volume of hazardous wastes, or

      (ii) Not later than 90 days after October 16, 2000;

    (g) Complies with the requirements of §D(7) and (8) of this regulation if the owner or operator is seeking to receive additional wastes in a surface impoundment that is not in compliance with the liner and leachate collection system requirements of:

      (i) §3004(o)(1) of RCRA, except as otherwise provided in §3004(o)(2) and (3) of RCRA; and

      (ii) §3005(j)(1) of RCRA, except as otherwise provided in §3005(j)(2), (3) (4) or (13) of RCRA; and

    (h) Complies with applicable requirements to obtain permits under:

      (i) COMAR 26.04.07; and

      (ii) COMAR 26.11.19.20.

  (7) In addition to the requirements of §D(6) of this regulation, the owner or operator of a hazardous waste surface impoundment identified in §D(6)(g) of this regulation shall:

    (a) Submit, with the request for permit modification required by §D(6)(a) of this regulation:

      (i) A contingent corrective measures plan, unless the owner or operator has already submitted a corrective action plan under Regulation .06-5 of this chapter; and

      (ii) A plan for removing hazardous wastes in compliance with §D(7)(b) of this regulation;

    (b) Remove all hazardous wastes from the unit by removing all hazardous liquids, and removing all hazardous sludges to the extent practicable without impairing the integrity of the liner or liners, if any;

    (c) Complete the removal of hazardous wastes from the unit not later than:

      (i) 90 days after the final receipt of hazardous wastes; or

      (ii) A later deadline approved by the Secretary if the owner or operator demonstrates that the removal of hazardous wastes will, of necessity, take longer than 90 days to complete, and that an extension beyond the 90-day deadline will not pose a threat to human health and the environment;

    (d) Comply with the following requirements if there is a release detected in accordance with the requirements of Regulations .06—.06-7 of this chapter that is a statistically significant increase over background values for detection monitoring parameters or constituents specified in the permit, that is a statistically significant decrease with respect to background values in the case of pH if pH is specified in the permit, or that exceeds the facility's ground water protection standard at the point of compliance, if applicable:

      (i) Implement corrective measures in accordance with the approved contingent corrective measures plan required by §D(7)(a)(i) of this regulation not later than 1 year after detection of the release, or approval of the contingent corrective measures plan, whichever is later;

      (ii) Discontinue receipt of wastes at the unit following detection of the release unless the approved corrective measures plan includes a demonstration that continued receipt of wastes will not impede corrective action;

      (iii) Implement corrective measures in less than 1 year if required by the Secretary on the basis that doing so is necessary to protect human health and the environment; and

      (iv) Cease the receipt of wastes if required by the Secretary on the basis that doing so is necessary to protect human health and the environment;

    (e) Provide semiannual reports to the Secretary during the period of corrective action that:

      (i) Describe the progress of the corrective action program;

      (ii) Compile all ground water monitoring data; and

      (iii) Evaluate the effect of the continued receipt of non-hazardous waste on the effectiveness of the corrective action; and

    (f) Commence closure of the unit if required to do so by the Secretary, based on the owner or operator failing to:

      (i) Implement corrective action measures in accordance with the approved contingent corrective measures plan required by §D(7)(a)(i) of this regulation within 1 year, as required by §D(7)(d)(i) of this regulation; or

      (ii) Make substantial progress in implementing corrective action and achieving the facility's ground water protection standard, or background levels if the facility has not yet established a ground water protection standard.

  (8) The following requirements apply if the owner or operator fails to implement corrective measures as required by §D(7)(d) of this regulation, or if the Secretary determines, under §D(7)(f)(ii) of this regulation, that the owner or operator has not made substantial progress in implementing corrective action and achieving the goals of the corrective action program:

    (a) The Secretary shall notify the owner or operator in writing that the owner or operator shall begin closure in accordance with the deadlines in §D(1)—(4) of this regulation, and provide a detailed statement of the reasons for this determination;

    (b) The Secretary shall provide the owner or operator and the public, through a newspaper notice, the opportunity to submit written comments on the decision described in §D(8)(a) of this regulation not later than 20 days after the date of the notice;

    (c) If the Secretary receives no written comments in response to the notice described in §D(8)(b) of this regulation:

      (i) The decision described in §D(8)(a) of this regulation becomes final 5 days after the close of the public comment period under §D(8)(b) of this regulation;

      (ii) The Secretary shall notify the owner or operator that the decision described in §D(8)(a) of this regulation is final;

      (iii) The Secretary shall notify the owner or operator that the owner or operator shall submit a revised closure plan, if necessary, within 15 days of the final notice; and

      (iv) The Secretary shall notify the owner or operator that the owner or operator shall begin closure in accordance with the deadlines in §D(1)—(4) of this regulation;

    (d) If the Secretary receives written comments in response to the notice described in §D(8)(b) of this regulation, the Secretary shall:

      (i) Make a final decision within 30 days after the end of the comment period; and

      (ii) Provide a detailed statement of the reasons for the final decision to the owner or operator in writing, and to the public through a newspaper notice;

    (e) If the Secretary's decision under §D(8)(d)(i) of this regulation is that the owner or operator has not made substantial progress under §D(7)(f)(ii) of this regulation in implementing corrective action and achieving the goals of the corrective action program, the owner or operator shall initiate closure in accordance with the deadlines in §D(1)—(4) of this regulation; and

    (f) The final determinations made by the Secretary under §D(8)(c) and (d) of this regulation are not subject to administrative appeal.

  (9) For the purposes of determining deadlines under this section, the date of receiving the final volume of hazardous waste at a hazardous waste management unit or facility includes the date:

    (a) The facility's permit is terminated; and

    (b) The facility is ordered to cease receiving hazardous waste or to close, as described in §C(4)(f) of this regulation.

E. Disposal or Decontamination of Equipment, Structures, and Soils. During the partial and final closure periods, all contaminated equipment, structures, and soils shall be properly disposed of or decontaminated unless otherwise specified in Regulations .10-7C, .11G, .12I, .13K, .14J, or .16-1B and D of this chapter. By removing any hazardous wastes or hazardous constituents during partial and final closure, the owner or operator may become a generator of hazardous waste and shall handle that waste in accordance with all applicable requirements of COMAR 26.13.03.

F. Certification of Closure.

  (1) Within 60 days of completion of closure of each hazardous surface impoundment, waste pile, land treatment, and landfill unit, and within 60 days of the completion of final closure, the owner or operator shall submit to the Secretary, by registered mail, a certification that the hazardous waste management unit or facility, as applicable, has been closed in accordance with the specifications in the approved closure plan. The certification shall be signed by the owner or operator and by an independent registered professional engineer. Documentation supporting the independent registered professional engineer's certification shall be furnished to the Secretary upon request until the Secretary releases the owner or operator from the financial assurance requirements for closure under Regulation .08 of this chapter.

  (2) Survey Plat. Not later than at the submission of the certification of closure of each hazardous waste disposal unit, the owner or operator shall submit to the local zoning authority, or the authority with jurisdiction over local land use, and to the Secretary, a survey plat indicating the location and dimensions of landfill cells or other hazardous waste disposal units with respect to permanently surveyed benchmarks. This plat shall be prepared and certified by a professional land surveyor. The plat filed with the local zoning authority, or the authority with jurisdiction over local land use, shall contain a note, prominently displayed, which states the owner's or operator's obligation to restrict disturbance of the hazardous waste disposal unit in accordance with the applicable requirements of Regulations .07 and .11—.14 of this chapter.

G. Post-Closure Care and Use of Property.

  (1) Post-closure care for each hazardous waste management unit subject to the requirements of §§G—J shall begin after completion of closure of the unit and continue for 30 years after that date and shall consist of at least the following:

    (a) Monitoring and reporting in accordance with the requirements of Regulations .06—.06-7, .11—.14, and .16-1 of this chapter; and

    (b) Maintenance and monitoring of waste containment systems in accordance with the requirements of Regulations .06—.06-7, .11—.14, and .16-1 of this chapter.

  (2) At any time preceding partial closure of a hazardous waste management unit subject to post-closure care requirements or final closure, or at any time during the post-closure period for a particular unit, the Secretary may, in accordance with the permit modification procedures in COMAR 26.13.07:

    (a) Shorten the post-closure care period applicable to the hazardous waste management unit, or facility, if all disposal units have been closed, if he finds that the reduced period is sufficient to protect human health and the environment, such as when leachate or ground water monitoring results, characteristics of the hazardous wastes, application of advanced technology, or alternative disposal, treatment, or re-use techniques indicate that the hazardous waste management unit or facility is secure; or

    (b) Extend the post-closure care period applicable to the hazardous waste management unit or facility if he finds that the extended period is necessary to protect human health and the environment, such as when leachate or ground water monitoring results indicate a potential for migration of hazardous wastes at levels which may be harmful to human health and the environment.

  (3) The Secretary may require, at partial and final closure, continuation of any of the security requirements of Regulation .02E during part or all of the post-closure period when:

    (a) Hazardous wastes may remain exposed after completion of partial or final closure; or

    (b) Access by the public or domestic livestock may pose a hazard to human health.

  (4) Post-closure use of property on or in which hazardous wastes remain after partial or final closure may not disturb the integrity of the final cover, liner or liners, or any other components of the containment system, or the function of the facility's monitoring systems, unless the Secretary finds that the disturbance:

    (a) Is necessary to the proposed use of the property, and will not increase the potential hazard to human health or the environment; or

    (b) Is necessary to reduce a threat to human health or the environment.

  (5) All post-closure care activities shall be in accordance with the provisions of the approved post-closure plan as specified in §H of this regulation.

H. Post-Closure Plan; Amendment of Plan.

  (1) Written Plan.

    (a) The owner or operator of a hazardous waste disposal unit shall have a written post-closure plan.

    (b) In addition, certain surface impoundments and waste piles from which the owner or operator intends to remove or decontaminate the hazardous wastes at partial or final closure are required by Regulations .11G(3)(b) and .12I(3)(b) of this chapter to have contingency post-closure plans.

    (c) Owners or operators of surface impoundments and waste piles not otherwise required to prepare contingent post-closure plans under Regulations .11G(3)(b) and .12I(3)(b) of this chapter shall submit a post-closure plan to the Secretary within 90 days from the date that the owner or operator or Secretary determines that the hazardous waste management unit must be closed as a landfill, subject to the requirements of §§G—J of this regulation.

    (d) The plan shall be submitted with the permit application in accordance with COMAR 26.13.07.02D(29) and approved by the Secretary as part of the permit issuance procedures under COMAR 26.13.07.20—.20-6.

    (e) In accordance with COMAR 26.13.07.05, the approved post-closure plan will become a condition of any permit issued.

  (2) For each hazardous waste management unit subject to the requirements of this section, the post-closure plan shall identify the activities that will be carried on after closure of each disposal unit and the frequency of these activities, and include at least:

    (a) A description of the planned monitoring activities and frequencies at which they will be performed to comply with Regulations .06—.06-7, ,11—.14, and .16-1 of this chapter during the post-closure care period;

    (b) A description of the planned maintenance activities, and frequencies at which they will be performed, to ensure:

      (i) The integrity of the cap and final cover or other containment systems in accordance with the requirements of Regulations .06—.06-7, .11—.14, and .16-1 of this chapter; and

      (ii) The function of the monitoring equipment in accordance with the requirements of Regulations .06—.06-7, .11—.14, and .16-1 of this chapter; and

    (c) The name, address, and telephone number of the person or office to contact about the hazardous waste disposal unit or facility during the post-closure care period.

  (3) Until final closure of the facility, a copy of the approved post-closure plan shall be furnished to the Secretary upon request, including request by mail. After final closure has been certified, the person or office specified in §H(2)(c) shall keep the approved post-closure plan during the remainder of the post-closure period.

  (4) Amendment of Plan.

    (a) The owner or operator shall request a permit modification to authorize a change in the approved post-closure plan in accordance with the applicable requirements of COMAR 26.13.07. The written request shall include a copy of the amended post-closure plan for approval by the Secretary.

    (b) The owner or operator may submit a written request to the Secretary for a permit modification to amend the post-closure plan at any time during the active life of the facility or during the post-closure care period.

    (c) The owner or operator shall submit a written request for a permit modification to authorize a change in the approved post-closure plan whenever:

      (i) Changes in operating plans or facility design affect the approved post-closure plan;

      (ii) There is a change in the expected year of final closure, if applicable; or

      (iii) Events which occur during the active life of the facility, including partial and final closures, affect the approved post-closure plan.

    (d) The owner or operator shall submit a written request for a permit modification at least 60 days before the proposed change in facility design or operation, or not later than 60 days after an unexpected event has occurred which has affected the post-closure plan. An owner or operator of a surface impoundment or waste pile that intends to remove all hazardous waste at closure and is not otherwise required to submit a contingent post-closure plan under Regulations .11G(3)(b) and .12I(3)(b) shall submit a post-closure plan to the Secretary not later than 90 days after the date that the owner or operator or Secretary determines that the hazardous waste management unit must be closed as a landfill, subject to the requirements of Regulation .14J. The Secretary will approve, disapprove, or modify this plan in accordance with the procedures in COMAR 26.13.07. In accordance with COMAR 26.13.07.05, the approved post-closure plan will become a permit condition.

    (e) The Secretary may request modifications to the plan under the conditions described in §H(4)(c), of this regulation. The owner or operator shall submit the modified plan not later than 60 days after the Secretary's request, or not later than 90 days if the unit is a surface impoundment or waste pile not previously required to prepare a contingent post-closure plan. Any modifications requested by the Secretary will be approved, disapproved, or modified in accordance with the procedures in COMAR 26.13.07.

I. Post-Closure Notices.

  (1) Not later than 60 days after certification of closure of each hazardous waste disposal unit, the owner or operator shall submit to the local zoning authority, or the authority with jurisdiction over local land use, and to the Secretary, a record of the type, location, and quantity of hazardous wastes disposed of within each cell or other disposal unit of the facility. For hazardous wastes disposed of before January 12, 1981, the owner or operator shall identify the type, location, and quantity of the hazardous wastes to the best of his knowledge and in accordance with any records he has kept.

  (2) Within 60 days of certification of closure of the first hazardous waste disposal unit and within 60 days of certification of closure of the last hazardous waste disposal unit, the owner or operator shall:

    (a) Record a notation on the deed to the facility property, or on some other instrument which is normally examined during title search, that will in perpetuity notify any potential purchaser of the property that:

      (i) The land has been used to manage hazardous wastes;

      (ii) Its use is restricted under COMAR 26.13.05.07; and

      (iii) The survey plat and record of the type, location, and quantity of hazardous wastes disposed of within each cell or other hazardous waste disposal unit of the facility required by §§F(2) and I(1) of this regulation have been filed with the local zoning authority or the authority with jurisdiction over local land use and with the Secretary;

    (b) Submit a certification, signed by the owner or operator, that he has recorded the notation specified in §I(2)(a), of this regulation, including a copy of the document in which the notation has been placed, to the Secretary.

  (3) If the owner or operator or any subsequent owner or operator of the land upon which a hazardous waste disposal unit is located wishes to remove hazardous wastes and hazardous waste residues, the liner, if any, or contaminated soils, the owner or operator shall request a modification to the post-closure permit in accordance with the applicable requirements in COMAR 26.13.07.

  (4) The owner or operator shall demonstrate that the removal of hazardous wastes from a hazardous wasste disposal unit will satisfy the criteria of §G(4) of this regulation. By removing hazardous waste, the owner or operator may become a generator of hazardous waste and shall manage it in accordance with all applicable requirements of COMAR 26.13.03. If the owner or operator is granted a permit modification or otherwise granted approval to conduct the removal activities, the owner or operator may request that the Secretary approve either:

    (a) The removal of the notation on the deed to the facility property or other instrument normally examined during title search; or

    (b) The addition of a notation to the deed or instrument indicating the removal of the hazardous waste.

J. Certification of Completion of Post-Closure Care.

  (1) Not later than 60 days after completion of the established post-closure care period for each hazardous waste disposal unit, the owner or operator shall submit to the Secretary, by registered mail, a certification that the post-closure care period for the hazardous waste disposal unit was performed in accordance with the specifications in the approved post-closure plan.

  (2) The certification required by §J(1) of this regulation shall be signed by the owner or operator and an independent registered professional engineer.

  (3) Documentation supporting the independent registered professional engineer's certification shall be furnished to the Secretary upon request until the owner or operator is released from the financial assurance requirements for post-closure care under 40 CFR §264.145(i), as incorporated by reference in Regulation .08 of this chapter.

#### Regulation .08 Financial Requirements.

*COMAR 26.13.05.08*

A. Except as provided in §B of this regulation, the Department adopts as its regulations the federal regulations at 40 CFR §§264.140—264.148 and 264.151, which are incorporated by reference in COMAR 26.13.01.05B(1)(a).

B. For purposes of this regulation:

  (1) Substitute “Secretary” for “Regional Administrator”;

  (2) Substitute “Department” for “Environmental Protection Agency” or “Agency”;

  (3) In establishing the financial assurance for closure required by 40 CFR §264.143, a person may not use the financial test or corporate guarantee described in 40 CFR §264.143(f); and

  (4) In establishing the financial assurance for post-closure care required by 40 CFR §264.145, a person may not use the financial test or corporate guarantee described in 40 CFR §264.145(f) which is incorporated by reference.

#### Regulation .09 Use and Management of Containers.

*COMAR 26.13.05.09*

A. Applicability. This regulation applies to owners and operators of all hazardous waste facilities that store containers of hazardous waste, except as Regulation .01, of this chapter, otherwise provides.

B. Condition of Containers. If a container holding hazardous waste is not in good condition, or if it begins to leak, the owner or operator shall transfer the hazardous waste from this container to a container that is in good condition, or manage the waste in some other way that complies with the requirements of this chapter.

C. Compatibility of Waste with Container. The owner or operator shall use a container made of or lined with materials which do not react with, and are otherwise compatible with, the hazardous waste to be stored, so that the ability of the container to contain the waste is not impaired.

D. Management of Containers. A container holding hazardous waste shall always be closed during storage, except when it is necessary to add or remove waste, and the container may not be opened, handled, or stored in a manner which may rupture the container or cause it to leak.

E. Inspections. The owner or operator shall inspect areas where containers are stored, at least weekly, looking for leaks and for deterioration of containers and the containment system caused by corrosion or other factors.

F. Special Requirements for Ignitable or Reactive Waste. Containers holding ignitable or reactive waste shall be located at least 15 meters (50 feet) from the facility's property line.

G. Special Requirements for Incompatible Wastes.

  (1) Incompatible wastes, or incompatible wastes and materials, (see Regulation .24 of this chapter, for examples) may not be placed in the same container, unless Regulation .02H(2), of this chapter, is complied with.

  (2) Hazardous waste may not be placed in an unwashed container that previously held an incompatible waste or material (see Regulation .24 for examples).

  (3) A storage container holding a hazardous waste that is incompatible with any waste or other materials stored nearby in other containers, piles, open tanks, or surface impoundments shall be separated from the other materials or protected from them by means of a dike, berm, wall, or other device.

H. Containment.

  (1) Container storage areas shall have a containment system that is capable of collecting and holding spills, leaks, and precipitation. The containment system shall:

    (a) Have a base underlying the containers which is free of cracks or gaps and is sufficiently impervious to contain leaks, spills, and accumulated rainfall until the collected material is detected and removed;

    (b) Be designed for efficient drainage so that standing liquid does not remain on the base longer than 1 hour after a leakage or precipitation event unless the containers are elevated, or in some other manner are protected from contact with accumulated liquids; and

    (c) Have sufficient capacity to contain 10 percent of the volume of containers or the volume of the largest container, whichever is greater.

  (2) Run-on into the containment system shall be prevented, unless the Secretary waives this requirement in the permit after determining that the collection system has sufficient excess capacity in addition to that required in §H(1)(c), of this regulation, to accommodate any run-on which might enter the system.

  (3) Spilled or leaked waste and accumulated precipitation shall be removed from the sump or collection area in as timely a manner as is necessary to prevent overflow of the collection system.

  (4) Storage areas that store containers holding only wastes that do not contain free liquids need not have a containment system as described in §H(1), of this regulation, except as provided by §H(5), of this regulation, or provided that:

    (a) The storage area is sloped or is otherwise designed and operated to drain and remove liquid resulting from precipitation; or

    (b) The containers are elevated or are otherwise protected from contact with accumulated liquid.

  (5) Storage areas that store containers holding the wastes F020, F021, F022, F023, F026, and F027 that do not contain free liquids shall have a containment system defined by §H(1) of this regulation.

I. Closure. At closure, all hazardous waste and hazardous waste residues shall be removed from the containment system. Remaining containers, liners, bases, and soil containing or contaminated with hazardous waste or hazardous waste residues shall be decontaminated or removed according to closure plans which are to remain on-site for Departmental review.

#### Regulation .10 General Requirements for Hazardous Waste Management in Tank Systems.

*COMAR 26.13.05.10*

A. Applicability.

  (1) Owners and operators of facilities that use tank systems to treat or store hazardous waste shall comply with the requirements of this regulation and Regulations .10-1—.10-7 of this chapter, except as otherwise provided in §A(2), (3), and (5) of this regulation or in Regulation .01 of this chapter.

  (2) Tank systems that are used to store or treat hazardous waste which contains no free liquids and are situated inside a building with an impermeable floor are exempted from the requirements of Regulation .10-4 of this chapter. To determine whether a waste contains free liquids, a person shall use EPA Method 9095 (Paint Filter Liquids Test) as described in “Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods” (EPA Publication SW-846), which is incorporated by reference in COMAR 26.13.01.05A(4).

  (3) Tank systems, including sumps as defined in COMAR 26.13.01.03B, that serve as part of a secondary containment system to collect or contain releases of hazardous wastes, are exempted from the requirements of Regulation .10-4A of this chapter.

  (4) For the purposes of classifying a tank system as either new or existing, installation of the tank system is considered to have begun if the following criteria are met:

    (a) The owner or operator has obtained all federal, State, and local approvals or permits necessary to begin physical construction of the site or installation of the tank system; and

    (b) A continuous on-site physical construction or installation program has begun, or the owner or operator has entered into contractual obligations, which cannot be canceled or modified without substantial loss, for either completion of physical construction of the site or installation of the tank system within a reasonable time.

  (5) Tanks, sumps, and other collection devices or systems used in conjunction with drip pads as defined in COMAR 26.13.01.03B and regulated under Regulations .17-1—.17-4 of this chapter are subject to the requirements of this regulation and Regulations .10-1—.10-7 of this chapter.

B. Waste Analysis and Trial Tests. In addition to the waste analysis required by Regulation .02D of this chapter, whenever a tank is to be used to chemically treat or store a hazardous waste which is substantially different from waste previously treated or stored in that tank, or chemically treat hazardous waste with a substantially different process than any previously used in that tank, the owner or operator shall, before treating or storing the different waste or using the different process:

  (1) Conduct waste analysis and trial treatment or storage tests, such as bench scale or pilot plant scale tests; or

  (2) Obtain written, documented information on similar storage or treatment of similar waste under similar operating conditions, to show that this proposed treatment or storage will meet the requirements of §C(1) of this regulation.

C. General Operating Requirements.

  (1) A person may not place hazardous wastes or treatment reagents in a tank system if they could cause the tank, its ancillary equipment, or the containment system to rupture, corrode, leak, or otherwise fail.

  (2) Overfilling. The owner or operator shall use appropriate controls and practices to prevent spills and overflows from tank or containment systems, and, at a minimum, shall employ the following controls and practices to comply with this requirement:

    (a) Controls to prevent overfilling, such as level sensing devices, high level alarms, automatic feed cutoff, or by-pass to a standby tank;

    (b) For uncovered tanks, maintenance of sufficient freeboard to prevent overtopping by wave or wind action or by precipitation; and

    (c) Spill prevention controls, such as check valves or dry disconnect couplings.

  (3) The owner or operator shall comply with the requirements of Regulation .10-6 of this chapter if a leak or spill occurs in the tank system.

D. Inspections. The owner or operator shall:

  (1) Develop and follow a schedule and procedure for inspecting overfill controls;

  (2) Inspect at least once each operating day:

    (a) Data gathered from monitoring and leak detection equipment, such as pressure and temperature gauges and monitoring wells, to ensure that the tank system is being operated according to its design;

    (b) For uncovered tanks, the level of waste in the tank to ensure compliance with §C(2)(b) of this regulation;

    (c) Above-ground portions of the tank system to detect corrosion or releases of waste; and

    (d) The construction materials of, and the area immediately surrounding the externally accessible portion of the tank system, including the secondary containment system, to detect erosion or signs of releases of hazardous wastes, such as wet spots or dead vegetation;

  (3) Inspect cathodic protection systems, if present, according to, at a minimum, the following schedule to ensure that they are functioning properly:

    (a) Confirm proper operation of the cathodic protection system within 6 months after initial installation and annually after that; and

    (b) Inspect or test, or both, as appropriate, all sources of impressed current at least every 2 months;

  (4) Develop, as part of the inspection schedule required in Regulation .02F of this chapter, and in addition to the specific requirements of §D(1)—(3) of this regulation, a schedule and procedures for assessing the condition of the tank which meet the following requirements:

    (a) The schedule and procedures shall be adequate to detect cracks, leaks, corrosion, or erosion which may prevent compliance with §C(1) of this regulation;

    (b) The inspection procedure shall include procedures for emptying a tank to allow entry and inspection of the interior when tank entry is necessary to detect corrosion or erosion of the tank sides and bottom; and

    (c) The scheduled frequency of assessments shall be based on the material of construction of the tank, type of corrosion or erosion protection used, rate of corrosion or erosion observed during the previous inspections, and the characteristics of the waste being treated or stored;

  (5) Document, in the operating record of the facility, inspections of the items required to be made in §D(1)—(4) of this regulation.

E. Air Emissions. The owner or operator shall provide all tanks with the treatment process controls, emission controls, and safety or emergency procedures that are necessary to protect human health and the environment from toxic or otherwise harmful fumes, mists, or gases resulting from:

  (1) Volatilization of wastes stored or treated in the tank;

  (2) Chemical reactions in the tank, either routine or resulting from process upsets; or

  (3) Physical agitation or other forms of treatment conducted in the tank.

#### Regulation .10-1 Special Requirements for Hazardous Waste Management in Tank Systems.

*COMAR 26.13.05.10-1*

A. Special Requirements for Ignitable or Reactive Wastes.

  (1) An owner or operator may not place ignitable or reactive waste in a tank system unless one of the following conditions is met:

    (a) The waste is treated, rendered, or mixed before or immediately after placement in the tank system so that:

      (i) The resulting waste, mixture, or dissolved material no longer meets the definition of ignitable or reactive waste under COMAR 26.13.02.11 or .13; and

      (ii) Regulation .02H(2) of this chapter is complied with;

    (b) The waste is stored or treated in such a way that it is protected from any material or conditions that may cause the waste to ignite or react; or

    (c) The tank system is used solely for emergencies.

  (2) The owner or operator of a facility where ignitable or reactive waste is stored or treated in a tank shall comply with the requirements for the maintenance of protective distances between the waste management area and any public ways, streets, alleys, or an adjoining property line that can be built upon, as required in Tables 2-1 through 2-6 of the National Fire Protection Association's “Flammable and Combustible Liquids Code” (1990), which is incorporated by reference in COMAR 26.13.01.05A(3).

B. Special Requirements for Incompatible Wastes. An owner or operator may not place:

  (1) Incompatible wastes, or incompatible wastes and materials, in the same tank system, unless Regulation .02H(2) of this chapter is complied with;

  (2) Hazardous waste in a tank system that has not been decontaminated and that previously held an incompatible waste or material, unless Regulation .02H(2) of this chapter is complied with.

#### Regulation .10-2 Assessment of Existing Tank System's Integrity.

*COMAR 26.13.05.10-2*

A. Applicability. The requirements of this regulation apply to owners and operators of existing hazardous waste tank systems that do not have secondary containment meeting the requirements of Regulation .10-4 of this chapter.

B. For each existing tank system that does not have secondary containment meeting the requirements of Regulation .10-4 of this chapter, the owner or operator shall:

  (1) Develop, and keep on file at the facility, a written assessment of whether the tank system:

    (a) Is leaking or otherwise unfit for use;

    (b) Will collapse, rupture, or fail based on an analysis of the tank system design, structural strength, and compatibility with the waste or wastes to be stored or treated;

  (2) Have the assessment required by §B(1) of this regulation reviewed and certified by an independent, qualified registered professional engineer, in accordance with COMAR 26.13.07.03D;

  (3) Assure that the assessment required by §B(1) of this regulation considers, at a minimum, the following:

    (a) Design standards, if available, according to which the tank and ancillary equipment were constructed;

    (b) Hazardous characteristics of the waste or wastes that have been and will be handled;

    (c) Existing corrosion protection measures;

    (d) Documented age of the tank system, if available, or, if not, an estimate of the age;

    (e) Results of a leak test, internal inspection, or other tank integrity examination such that:

      (i) For nonenterable underground tanks, the assessment includes a leak test that is capable of taking into account the effects of temperature variations, tank end deflection, vapor pockets, and high water table effects;

      (ii) For other than nonenterable underground tanks and for ancillary equipment, the assessment includes either a leak test which satisfies the requirements of §B(3)(e)(i) of this regulation, or other integrity examination, that is certified by an independent, qualified, registered professional engineer in accordance with COMAR 26.13.07.03D, that addresses cracks, leaks, corrosion, and erosion;

  (4) Develop the written assessment required by §B(1) of this regulation, and have it certified in accordance with §B(2) of this regulation, as follows:

    (a) For existing underground tanks that cannot be entered for inspection, by January 12, 1988, except that, for tanks that store or treat materials that become regulated as hazardous wastes after July 14, 1986, the owner or operator shall conduct this assessment within 12 months after the date that the waste becomes regulated as hazardous;

    (b) For all other existing tank systems other than tanks that cannot be entered for inspection, by July 1, 1994, except that, for tank systems that store or treat materials that become regulated as hazardous wastes after July 1, 1993, the owner or operator shall conduct this assessment within 12 months after the date that the waste becomes regulated as a hazardous waste;

  (5) Comply with the requirements of Regulation .10-6 of this chapter if, as a result of the assessment required by §B(1) of this regulation, a tank system is found to be leaking or unfit for use.

#### Regulation .10-3 Design and Installation of New Tank Systems and Components.

*COMAR 26.13.05.10-3*

A. The owner or operator of a new tank system may not manage hazardous waste in the tank system unless the written assessment required by Sec. B(1) of this regulation demonstrates to the Secretary's satisfaction that the foundation, structural support, seams, connections, and pressure controls, if applicable, are adequately designed, and that the tank system has sufficient structural strength, compatibility with the waste or wastes to be stored or treated, and corrosion protection to ensure that it will not collapse, rupture, or fail.

B. Owners or operators of new tank systems or components shall:

  (1) Demonstrate, through a written assessment reviewed and certified by an independent, qualified, registered professional engineer, in accordance with COMAR 26.13.07.03D, that the tank system has sufficient structural integrity and is acceptable for the management of hazardous waste;

  (2) Include, at a minimum, in the assessment required by Sec. B(1) of this regulation, the following information:

    (a) Design standard or standards according to which the tank system and ancillary equipment will be constructed;

    (b) Hazardous characteristics of the waste or wastes to be managed;

    (c) For new tank systems or components in which the external shell of a metal tank or any external metal component of the tank system will be in contact with the soil or with water, a determination by a corrosion expert of:

      (i) Factors affecting the potential for corrosion, including but not limited to soil moisture content, soil pH, soil sulfides level, soil resistivity, structure to soil potential, influence of nearby underground metal structures such as piping, existence of stray electric current, existing corrosion protection measures such as coating or cathodic protection; and

      (ii) The type and degree of external corrosion protection that are needed to ensure the integrity of the system during the use of the system or component, consisting of corrosion-resistant materials of construction such as special alloys, fiberglass reinforced plastic, corrosion-resistant coating such as epoxy or fiberglass, with cathodic protection such as impressed current or sacrificial anodes, or electrical isolation devices such as insulating joints or flanges;

    (d) For underground tank system components that are likely to be adversely affected by vehicular traffic, a determination of design or operational measures that will protect the tank system against potential damage; and

    (e) Design considerations to ensure that tank:

      (i) Foundations will maintain the load of a full tank;

      (ii) Systems will be anchored to prevent flotation or dislodging where the tank system is placed in a saturated zone, or is located within a seismic fault zone subject to the standards of 40 CFR §264.18(a); and

      (iii) Systems will withstand the effects of frost heave;

  (3) Submit to the Secretary the written assessment required by §B(1) of this regulation as part of the owner's or operator's application for a Controlled Hazardous Substances facility permit or permit modification;

  (4) Comply with the following requirements for installation of new tank systems:

    (a) Ensure that proper handling procedures are adhered to in order to prevent damage to the system during installation;

    (b) Before covering, enclosing, or placing a new tank system or component in use, have the tank system inspected by an independent, qualified installation inspector or an independent, qualified, registered professional engineer, either of whom is trained and experienced in the proper installation of tank systems or components, for the presence of any of the following items:

      (i) Weld breaks,

      (ii) Punctures,

      (iii) Scrapes of protective coatings,

      (iv) Cracks,

      (v) Corrosion, and

      (vi) Other structural damage or inadequate construction or installation;

    (c) Remedy all discrepancies detected in the inspection required by §B(4)(b) of this regulation before the tank system is covered, closed, or placed in use;

  (5) Use a backfill material that is a noncorrosive, porous, homogeneous substance for new tank systems or components that are placed underground and that are backfilled, and install the backfill material so that the backfill is placed completely around the tank and compacted to ensure that the tank and piping are fully and uniformly supported;

  (6) Test all new tanks and ancillary equipment for tightness before covering, enclosing, or placing in use;

  (7) Perform all repairs necessary to remedy any leaks in the tank system before covering, enclosing, or placing the system into use;

  (8) Ensure that ancillary equipment is supported and protected against physical damage and excessive stress due to settlement, vibration, expansion, or contraction;

  (9) Provide the type and degree of corrosion protection recommended by an independent corrosion expert, based on the information provided under the requirements of §B(2)(c) of this regulation, or other corrosion protection if the Secretary believes other corrosion protection is necessary to ensure the integrity of the tank system during its use;

  (10) Ensure that the installation of a corrosion protection system that is field-fabricated is supervised by an independent corrosion expert to ensure proper installation;

  (11) Obtain and keep on file at the facility written statements by the persons required to certify the design of the tank system in accordance with §B(1) and (2) of this regulation and the persons required to supervise the installation of the tank system in accordance with the requirements of §B(4)—(10) of this regulation that attest that the tank system was properly designed and installed, and that repairs required by §B(4)(c) and (7) of this regulation were performed;

  (12) Include, in the written statements required by §B(11) of this regulation, the certification statement as required in COMAR 26.13.07.03D.

#### Regulation .10-4 Containment and Detection of Releases.

*COMAR 26.13.05.10-4*

A. Except as allowed for in §F of this regulation and Regulation .10-5 of this chapter, an owner or operator shall provide secondary containment that meets the requirements of this regulation by the following deadlines:

  (1) For all new tank systems or components, before their being put into service;

  (2) For all existing tank systems used to store or treat EPA Hazardous Waste Nos. F020, F021, F022, F023, F026, and F027 that are:

    (a) Underground tanks that cannot be entered for inspection, by January 12, 1987;

    (b) Underground tanks that can be entered for inspection, within 2 years after July 1, 1993; or

    (c) Not underground tanks, within 2 years after July 1, 1993;

  (3) Existing underground tank systems that cannot be entered for inspection and that are a known and documented age, within 2 years after January 12, 1987, or when the tank system becomes 15 years old, whichever comes later;

  (4) Existing tank systems of a known and documented age that are not underground or are underground tanks that can be entered for inspection, within  2 years after July 1, 1993, or when the tank system becomes 15 years old, whichever comes later;

  (5) Existing underground tank systems that cannot be entered for inspection, and for which the age cannot be documented:

    (a) Within 8 years of January 12, 1987, if the age of the facility is 7 years or less; or

    (b) If the age of the facility is greater than 7 years, within 2 years after January 12, 1987, or the time the facility becomes 15 years old, whichever comes later;

  (6) Existing tank systems that are not underground tanks, or are underground tanks that can be entered for inspection, and for which the age cannot be documented:

    (a) Within 8 years of July 1, 1993, if the age of the facility is 7 years or less; or

    (b) If the age of the facility is greater than 7 years, within 2 years after July 1, 1993, or the time the facility becomes 15 years old, whichever comes later;

  (7) Tank systems that are used to store or treat materials that become regulated as hazardous wastes after July 1, 1993, within the time intervals required in §A(1)-(6) of this regulation, except that the date that a material becomes a hazardous waste is substituted for January 12, 1987 or July 1, 1993, whichever is applicable.

B. The owner or operator shall ensure that secondary containment systems provided in accordance with §A of this regulation:

  (1) Are designed, installed, and operated to prevent any migration of wastes or accumulated liquid out of the system to the soil, ground water, or surface water at any time during the use of the tank system;

  (2) Are capable of detecting and collecting releases and accumulated liquids until the collected material is removed;

  (3) Are constructed of or lined with materials that are compatible with the waste or wastes to be placed in the tank system;

  (4) Have sufficient strength and thickness to prevent failure owing to pressure gradients, including static head and external hydrological forces, physical contact with the waste to which it is exposed, climatic conditions, and the stress of daily operation, including stresses from nearby vehicular traffic;

  (5) Are placed on a foundation or base capable of providing support to the secondary containment system, resistance to pressure gradients above and below the system, and capable of preventing failure due to settlement, compression, or uplift;

  (6) Are provided with a leak-detection system that is designed and operated so that it will detect the failure of either the primary or secondary containment structure or the presence of any release of hazardous waste or accumulated liquid in the secondary containment system within 24 hours, or at the earliest practicable time if the owner or operator can demonstrate to the Secretary that existing detection technologies or site conditions will not allow detection of a release within 24 hours; and

  (7) Are sloped or otherwise designed or operated to drain and remove liquids resulting from leaks, spills, or precipitation.

C. The owner or operator shall remove spilled or leaked waste and accumulated precipitation from the secondary containment system within 24 hours, or, if the owner or operator can demonstrate to the Secretary that removal of the released waste or accumulated precipitation cannot be accomplished within 24 hours, in as timely a manner as is possible to prevent harm to human health and the environment.

D. The owner or operator shall use one or more of the following devices in providing for secondary containment for tanks:

  (1) A liner, external to the tank;

  (2) A vault;

  (3) A double-walled tank; or

  (4) An equivalent device as approved by the Secretary.

E. The owner or operator shall ensure that:

  (1) External liner systems are:

    (a) Designed or operated to contain 100 percent of the capacity of the largest tank within the boundary of the liner system;

    (b) Designed or operated to prevent run-on or infiltration of precipitation into the secondary containment system unless the collection system has sufficient excess capacity to contain run-on or infiltration and the additional capacity is sufficient to contain precipitation from a 25-year, 24-hour rainfall event;

    (c) Free of cracks or gaps; and

    (d) Designed and installed to surround the tank completely and to cover all surrounding earth likely to come into contact with the waste if the waste is released from the tank or tanks (that is, capable of preventing lateral as well as vertical migration of the waste);

  (2) Vault systems are:

    (a) Designed or operated to contain 100 percent of the capacity of the largest tank within the boundary of the vault system;

    (b) Designed or operated to prevent run-on or infiltration of precipitation into the secondary containment system unless the collection system has sufficient excess capacity to contain run-on or infiltration, and the additional capacity is sufficient to contain precipitation from a 25-year, 24-hour rainfall event;

    (c) Constructed with chemical-resistant water stops in place at any joints;

    (d) Provided with an impermeable interior coating or lining that is compatible with the stored waste and that will prevent migration of waste into the material of construction of the vault;

    (e) Provided with a means to protect against the formation of and ignition of vapors within the vault, if the waste being stored or treated meets the definition of ignitable waste under COMAR 26.13.02.11, or meets the definition of reactive waste under COMAR 26.13.02.13, and may form an ignitable or explosive vapor; and

    (f) Provided with an exterior moisture barrier or are otherwise designed or operated to prevent migration of moisture into the vault if the vault is subject to hydraulic pressure;

  (3) Double-walled tanks are:

    (a) Designed as an integral structure, with an inner tank completely enveloped within an outer shell, so that any release from the inner tank is contained by the outer shell;

    (b) Protected, if constructed of metal, from both corrosion of the primary tank interior and of the external surface of the outer shell; and

    (c) Provided with a built-in continuous leak detection system capable of detecting a release within 24 hours, or at the earliest practicable time, if the owner or operator can demonstrate to the Secretary, and the Secretary concludes, that the existing detection technology or site conditions would not allow detection of a release within 24 hours.

F. The owner or operator shall provide ancillary equipment with secondary containment such as a trench, jacketing, or double-walled piping that meets the requirements of §§B and C  of this regulation except for:

  (1) Above-ground piping, exclusive of flanges, joints, valves, and other connections, that is visually inspected for leaks on a daily basis;

  (2) Welded flanges, welded joints, and welded connections, that are visually inspected for leaks on a daily basis;

  (3) Seal-less or magnetic coupling pumps and seal-less valves, that are visually inspected for leaks on a daily basis; and

  (4) Pressurized above-ground piping systems with automatic shut-off devices, such as excess flow check valves, flow metering shutdown devices, or shut-off devices actuated by loss of pressure, that are visually inspected for leaks on a daily basis.

G. The owner or operator of a tank system, until such time as secondary containment that meets the requirements of this regulation is provided, shall comply with the following:

  (1) For nonenterable underground tanks, conduct at least annually a leak test that meets the requirements of Regulation .10-2B(3)(e)(i) of this chapter, or other tank integrity method as approved or required by the Secretary;

  (2) For other than nonenterable underground tanks, either conduct a leak test as in §G(1) of this regulation, or develop a schedule and procedure for an assessment of the overall condition of the tank system by an independent, qualified, registered professional engineer;

  (3) Ensure that assessments of the overall condition of the tank system performed instead of a leak test satisfy the following requirements:

    (a) The schedule and procedure for the assessment is adequate to detect obvious cracks, leaks, and corrosion or erosion that may lead to cracks and leaks;

    (b) Stored waste is removed from the tank, if necessary, to allow the condition of all internal tank surfaces to be assessed; and

    (c) The frequency of the assessment is based on the material of construction of the tank and its ancillary equipment, the age of the system, the type of corrosion or erosion protection used, the rate of corrosion or erosion observed during the previous inspection, and the characteristics of the waste being stored or treated;

  (4) For ancillary equipment, conduct at least annually a leak test or other integrity assessment as approved by the Secretary;

  (5) Maintain on file at the facility a record of the results of the assessments conducted in accordance with §G(1)-(4) of this regulation; and

  (6) Comply with the requirements of Regulation .10-6 of this chapter if a tank system or component is found to be leaking or unfit for use as a result of the leak test or assessment performed in accordance with §G(1)-(4) of this regulation.

#### Regulation .10-5 Variances from Secondary Containment Requirements for Tank Systems.

*COMAR 26.13.05.10-5*

A. The owner or operator may obtain a variance from the requirements of Regulation .10-4 of this chapter if the Secretary finds, as a result of a demonstration by the owner or operator, that:

  (1) Alternative design and operating practices, together with location characteristics, will prevent the migration of any hazardous waste or hazardous constituents into the ground water and surface water at least as effectively as secondary containment during the active life of the tank system; or

  (2) A substantial present or potential hazard will not be posed to human health or the environment in the event of a release that does migrate to ground water or surface water.

B. Requirements Applicable to New Tank Systems.

  (1) New underground tank systems are not eligible for exemption from the secondary containment requirements of Regulation .10-4 of this chapter through a demonstration of no substantial present or potential hazard using the criteria of §E of this regulation.

  (2) For the purposes of this section, a new underground tank system is an underground tank which:

    (a) Cannot be entered for inspection for which construction began after July 14, 1986; or

    (b) Can be entered for inspection for which construction began after July 1, 1993.

C. If the Secretary grants a variance under this regulation, the owner or operator shall construct and operate the tank system in the manner that was demonstrated to meet the requirements of §D or E of this regulation in obtaining the variance.

D. In deciding whether to grant a variance based on a demonstration of equivalent protection of ground water and surface water, the Secretary shall consider:

  (1) The nature and quantity of the wastes;

  (2) The proposed alternate design and operation;

  (3) The hydrogeologic setting of the facility, including the thickness of soils present between the tank system and ground water; and

  (4) All other factors that would influence the quality and mobility of the hazardous constituents and the potential for them to migrate to ground water or surface water.

E. In deciding whether to grant a variance based on a demonstration of no substantial present or potential hazard, as provided for in §A(2) of this regulation, the Secretary shall consider the potential adverse effects:

  (1) On ground water, surface water, and land quality, taking into account:

    (a) The physical and chemical characteristics of the waste in the tank system, including its potential for migration;

    (b) The hydrogeological characteristics of the facility and surrounding land;

    (c) The potential for health risks caused by human exposure to waste constituents;

    (d) The potential for damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and

    (e) The persistence and permanence of the potential adverse effects;

  (2) Of a release on ground water quality, taking into account the:

    (a) Quantity and quality of ground water and the direction of ground water flow;

    (b) Proximity and withdrawal rates of ground water users;

    (c) Current and future uses of ground water in the area; and

    (d) Existing quality of ground water, including other sources of contamination and the cumulative impact of other sources of contamination on the ground water quality;

  (3) Of a release on surface water quality, taking into account the:

    (a) Quantity and quality of ground water and the direction of ground water flow;

    (b) Patterns of rainfall in the region;

    (c) Proximity of the tank system to surface waters;

    (d) Current and future uses of surface waters in the area and water quality standards established for those surface waters; and

    (e) Existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality; and

  (4) Of a release on the land surrounding the tank system, taking into account the:

    (a) Patterns of rainfall in the region; and

    (b) Current and future uses of the surrounding land.

F. Procedures for Requesting a Variance. If requesting a variance from the requirements for secondary containment, the owner or operator shall:

  (1) Notify the Secretary in writing of the intent to conduct and submit a demonstration for a variance from secondary containment as allowed in §§A—E of this regulation according to the following schedule:

    (a) For existing tank systems, at least 24 months before the date that secondary containment shall be provided in accordance with Regulation .10-4A of this chapter; or

    (b) For new tank systems, at least 30 days before entering into a contract for installation;

  (2) As part of the notification required by §F(1) of this regulation, submit to the Secretary a description of the steps necessary to conduct the demonstration and a timetable for completing each of the steps;

  (3) Address in the demonstration for a variance each of the factors listed in §D or E of this regulation, as appropriate; and

  (4) Complete the demonstration for a variance within 180 days after notifying the Secretary of intent to conduct the demonstration.

#### Regulation .10-6 Leaks, Spills, and Disposition of Leaking or Unfit-for-Use Tank Systems.

*COMAR 26.13.05.10-6*

A. The owner or operator of a tank system or secondary containment system from which there has been a leak or spill, or which is unfit for use, shall:

  (1) Immediately remove the tank system from service;

  (2) Immediately stop the flow of hazardous waste into the tank system or secondary containment system;

  (3) Inspect the system to determine the cause of the release;

  (4) Remove waste from the tank system or secondary containment system in accordance with the following:

    (a) If the release was from the tank system, remove all waste within 24 hours after detection of the leak or, if the owner or operator demonstrates that doing so is not possible, remove at the earliest practicable time as much of the waste as is necessary to prevent further release of hazardous waste to the environment and to allow inspection and repair of the tank system; and

    (b) If the material was released to a secondary containment system, remove all released materials within 24 hours or in as timely a manner as is possible to prevent harm to human health and the environment;

  (5) Contain visible releases to the environment by immediately conducting a visual inspection of the release and, based upon the inspection:

    (a) Act to prevent further migration of the leak or spill to soils or surface water; and

    (b) Remove, and properly dispose of, any visible contamination of the soil or surface water;

  (6) Unless the quantity of the leak or spill is 1 pound or less and the leak or spill is immediately contained and cleaned up, file notifications and reports of the incident in accordance with the following:

    (a) Report to the Secretary any release to the environment within 24 hours of the release's detection; and

    (b) Submit to the Secretary within 30 days of detection of a release to the environment, a report containing the following information:

      (i) Likely route of migration of the release;

      (ii) Characteristics of the surrounding soil, such as soil composition, geology, and hydrogeology;

      (iii) Results of any monitoring or sampling conducted in connection with the release, except that if sampling or monitoring data relating to the release are not available within 30 days, the owner or operator shall submit these data to the Secretary as soon as they become available;

      (iv) Proximity to downgradient drinking water, surface water, and populated areas; and

      (v) A description of response actions taken or planned;

  (7) Close, repair, or provide secondary containment for the tank system in accordance with the following:

    (a) Close the tank system in accordance with Regulation .10-7 of this chapter unless the owner or operator satisfies the requirements of §A(7)(b)—(d) of this regulation;

    (b) If the cause of the release was a spill that has not damaged the integrity of the system, the owner or operator may return the system to service as soon as the released waste is removed, and repairs, if necessary, have been made;

    (c) If the cause of the release was a leak from the primary tank system into the secondary containment system, the owner or operator shall repair the tank system before returning it to service;

    (d) If the source of the release was a leak to the environment from a component of a tank system without secondary containment, the owner or operator:

      (i) Shall provide the component of the system from which the leak occurred with secondary containment that satisfies the requirements of Regulation .10-4 of this chapter before it is returned to service, unless the source of the leak is an above-ground portion of a tank system that can be inspected visually;

      (ii) May, if the source is an above-ground component that can be inspected visually, return the component to service without secondary containment as long as the component is repaired and the requirements of §A(8) and (9) of this regulation are satisfied;

      (iii) Shall ensure that, if a component is replaced to comply with the requirements of §A(7) of this regulation, the component satisfies the requirements for new tank systems or components in Regulations .10-3 and .10-4 of this chapter; and

      (iv) Shall, if a leak has occurred in any portion of a tank system component that is not readily accessible for visual inspection, such as the bottom of an in-ground or on-ground tank, provide the entire component with secondary containment in accordance with Regulation .10-4 of this chapter before returning the tank system to use;

  (8) Before returning to service a tank system that has been repaired in accordance with §A(7) of this regulation and for which the repair has been extensive, such as installation of an internal liner or repair of a ruptured primary containment or secondary containment vessel, obtain a certification by an independent, qualified, registered professional engineer in accordance with COMAR 26.13.07.03D that the repaired system is capable of handling hazardous wastes without release for the intended life of the system;

  (9) Submit the certification required in §A(8) of this regulation to the Secretary not later than 5 days before the tank system is returned to use.

B. The owner or operator of a tank system for which a variance from secondary containment has been granted in accordance with Regulation .10-5D of this chapter, at which a release of hazardous waste has occurred from the primary tank system but has not migrated beyond the zone of engineering control, as established in the variance, shall:

  (1) Comply, except for §A(6) of this regulation, with the other requirements of §A of this regulation;

  (2) Decontaminate or remove contaminated soil to the extent necessary to:

    (a) Enable the tank system for which the variance was granted to resume operation with the capability for the detection of releases at least equivalent to the capability it had before the release; and

    (b) Prevent the migration of hazardous waste or hazardous constituents to ground water or surface water; and

  (3) Comply with the requirements of Regulation .10-7C of this chapter if contaminated soil cannot be removed or decontaminated in accordance with §B(2) of this regulation.

C. The owner or operator of a tank system for which a variance from secondary containment has been granted in accordance with the requirements of Regulation .10-5D of this chapter, at which a release of hazardous waste has occurred from the primary tank system and has migrated beyond the zone of engineering control, as established in the variance, shall:

  (1) Comply with the requirements of §A(1)—(6) of this regulation;

  (2) Prevent the migration of hazardous waste or hazardous constituents to ground water or surface water, if possible, and decontaminate or remove contaminated soil;

  (3) Comply with the requirements of Regulation .10-7C of this chapter if contaminated soil cannot be decontaminated or removed or if ground water has been contaminated; and

  (4) Provide, if repairing, replacing, or reinstalling the tank system, secondary containment in accordance with the requirements of Regulation .10-4A—F of this chapter, or reapply for a variance from secondary containment and meet the requirements for new tank systems in Regulation .10-3 of this chapter if the tank system is replaced, even if contaminated soil can be decontaminated or removed and ground water or surface water has not been contaminated.

#### Regulation .10-7 Closure and Post-Closure Care of Tank Systems.

*COMAR 26.13.05.10-7*

A. At the closure of a tank system, the owner or operator shall remove or decontaminate all waste residues, contaminated containment system components, contaminated soils, and structures and equipment contaminated with waste, and manage them as hazardous waste, unless COMAR 26.13.02.03D applies.

B. An owner or operator shall ensure that the closure plan, closure activities, cost estimates for closure, and financial responsibility for tank systems meet all of the requirements specified in Regulations .07 and .08 of this chapter.

C. If an owner or operator demonstrates that not all contaminated soils can be practicably removed or decontaminated as required in §A of this regulation, then the owner or operator shall close the tank system and perform post-closure care in accordance with the closure and post-closure care requirements of Regulation .14J of this chapter which apply to landfills. In addition, for the purposes of closure, post-closure, and financial responsibility, the tank system is then considered to be landfill, and the owner or operator shall meet all of the requirements for landfills specified in Regulations .07 and .08 of this chapter.

D. If an owner or operator has a tank system that does not have secondary containment that meets the requirements of Regulations .10-4B—F of this chapter, and has not been granted a variance from the secondary containment requirements in accordance with Regulation .10-5 of this chapter, then the owner or operator shall:

  (1) Include in the closure plan for the tank system a:

    (a) Plan for complying with §A of this regulation; and

    (b) Contingent plan for complying with §C of this regulation;

  (2) Prepare and submit as part of the permit application a contingent post-closure plan for complying with §C of this regulation;

  (3) Reflect, in the cost estimates calculated for closure and post-closure care, the costs of complying with the contingent closure plan and the contingent post-closure plan, if those costs are greater than the costs of complying with the closure plan prepared for the expected closure under §A of this regulation;

  (4) Base financial assurance on the cost estimates developed in accordance with §D(3) of this regulation; and

  (5) Ensure that the contingent closure and post-closure plans meet all of the closure, post-closure, and financial responsibility requirements for landfills under Regulations .07 and .08 of this chapter.

#### Regulation .11 Surface Impoundments.

*COMAR 26.13.05.11*

A. Applicability. This regulation applies to owners and operators of facilities that use surface impoundments to treat, store, or dispose of hazardous waste, except as Regulation .01 of this chapter otherwise provides.

B. General Design Requirements.

  (1) A surface impoundment shall be designed to provide:

    (a) At least 60 centimeters (2 feet) of freeboard; or

    (b) An amount of freeboard other than 60 centimeters based on documentation acceptable to the Secretary that the specified amount of the freeboard will prevent overtopping. The amount of freeboard approved by the Secretary shall be specified in the permit.

  (2) A surface impoundment shall be designed so that any flow of waste into the impoundment can be immediately shut off in the event of overtopping or liner failure.

  (3) A surface impoundment shall be designed to prevent discharge into the land and ground water, and to surface water, except for discharges authorized by a State discharge permit, during the life of the impoundment by use of a containment system which complies with §D of this regulation. The Secretary shall include the design of the containment system as a term and condition of the permit.

  (4) Dikes shall be designed with sufficient structural integrity to prevent massive failure without dependence on any liner system included in the surface impoundment design.

  (5) For a surface impoundment, except for an existing portion of a surface impoundment, a leachate detection, collection, and removal system shall be designed so that liquid will flow freely from the collection system to prevent the creation of pressure head within the collection system in excess of that necessary to cause the liquid to flow freely.

  (6) The Secretary:

    (a) May exempt the owner or operator from the requirements of §B(3)of this regulation if the Secretary finds, based on a demonstration by the owner or operator, that alternate design and operating practices, together with location characteristics, will prevent the migration of the hazardous constituents, as identified in Regulation .06-1B of this chapter, into the ground water or surface water at any future time; and

    (b) Shall, in deciding whether to grant an exemption, consider:

      (i) The nature and quantity of the wastes;

      (ii) The proposed alternate design and operation;

      (iii) The hydrogeologic setting of the facility, including the attenuative capacity and thickness of the liners and soils present between the impoundment and ground water or surface water; and

      (iv) All other factors which would influence the quality and mobility of the leachate produced and the potential for it to migrate to ground water or surface water.

  (7) Any facility or facility unit subject to this regulation shall be constructed and installed as designed.

C. General Operating Requirements.

  (1) A surface impoundment shall be operated to prevent any overtopping due to wind and wave action, overfilling precipitation, or normal or abnormal operations, malfunction of level controllers, alarms, and other equipment, or human error.

  (2) A surface impoundment shall maintain enough freeboard to prevent any overtopping of the dike by overfilling, wave action, malfunctions of level controllers, alarms, and other equipment, human error, or a storm. There shall be at least 60 centimeters (2 feet) of freeboard.

  (3) A surface impoundment shall be operated to maintain at least the amount of freeboard specified by the Secretary in the permit.

  (4) For a surface impoundment, except for an existing portion of a surface impoundment, a leachate detection, collection, and removal system installed to comply with §D, of this regulation, shall be operated so that leachate flows freely from the collection system and is removed as it accumulates or with sufficient frequency to prevent backwater within the collection system.

  (5) Earthen dikes shall be kept free of:

    (a) Perennial woody plants with root systems which could displace the earthen materials upon which the structural integrity of the dike is dependent; and

    (b) Burrowing mammals which could remove earthen materials upon which the structural integrity of the dike is dependent or create leaks through burrows in the dike.

  (6) Run-on shall be diverted away from a surface impoundment.

D. Containment Systems.

  (1) Earthen dikes shall have a protective cover, such as grass, shale, or rock, to minimize wind and water erosion and to preserve the structural integrity of the dike.

  (2) The owner or operator of a surface impoundment, except for an existing portion of a surface impoundment or a surface impoundment covered by COMAR 26.13.06.19D(1) and (2), shall construct a liner system designed to prevent discharge into the land during the life of the surface impoundment:

    (a) With:

      (i) A highly impermeable liner system in contact with the waste which will prevent the discharge of the waste or leachate into the liner or liners during the life of the surface impoundment based on the liner or liners' thickness, the saturated permeability of the liner or liners, and the pressure head of waste or leachate to which the liner or liners will be exposed; and

      (ii) A leachate detection, collection, and removal system beneath the liner or liners in contact with the waste to detect, contain, collect, and remove any discharge from the liner system in contact with the waste; and

    (b) Above the water table, which may be controlled to comply with this requirement, to ensure the detection of any discharge of waste or leachate through the liner system in contact with the waste, prevent the discharge of ground water to the leachate detection, collection, and removal system, and to preserve the structural integrity of the liner or liners.

  (3) A highly impermeable liner beneath the drainage layer (for example, the bottom liner) is a necessary part of a leachate detection, collection, and removal system.

  (4) The owner or operator of each new surface impoundment, each new surface impoundment unit at an existing facility, each replacement of an existing surface impoundment unit, and each lateral expansion of an existing surface impoundment unit shall install a liner system consisting of two or more liners and a leachate collection and removal system between the liners, subject to the following:

    (a) The liners and leachate collection system shall protect human health and the environment;

    (b) The requirements of this section shall apply with respect to all waste received after the issuance of the permit;

    (c) The liner system shall include:

      (i) A top liner designed, operated, and constructed of materials to prevent the migration of any constituent into the liner during the period the facility remains in operation, including any post-closure monitoring period; and

      (ii) A composite lower liner that meets the requirements of §D(4)(d) of this regulation;

    (d) The composite lower liner required by §D(4)(c)(ii) of this regulation shall meet the following requirements:

      (i) Be designed, operated, and constructed to prevent the migration of any constituent through the liner during the period of facility operation and post-closure care;

      (ii) Consist of at least two components;

      (iii) Include an upper component that is designed and constructed of materials to prevent the migration of hazardous constituents into this component during the active life of the facility and the post-closure care period; and

      (iv) Include a lower component that is designed and constructed of materials to minimize the migration of hazardous constituents if a breach in the upper component were to occur, with the lower component being constructed of at least a 3-foot thick layer of recompacted clay or other natural material with a hydraulic conductivity of no more than 1 x 10(-7th power) centimeter per second.

  (5) Section D(4) of this regulation does not apply if the owner or operator demonstrates to the Secretary and the Secretary finds for the surface impoundment, that alternative design and operating practices, together with location characteristics, will:

    (a) Prevent the migration of any hazardous constituent into the ground water or surface water at least as effectively as the liners and leachate collection systems required by §D(4) of this regulation; and

    (b) Allow detection of leaks of hazardous constituents through the top liner at least as effectively as the system described in §D-1(1)—(3) of this regulation.

  (6) The double liner requirement set forth in §D(4), of this regulation, may be waived by the Secretary for any monofill, if the monofill contains only hazardous wastes from foundry furnace emission controls or metal casting molding sand, and the wastes do not contain constituents which would render the wastes hazardous for reasons other than the toxicity characteristic in COMAR 26.13.02, and one of the following applies:

    (a) All of the following:

      (i) The monofill has at least one liner, as defined in §D(7) of this regulation, for which there is no evidence that the liner is leaking;

      (ii) The monofill is located more than 1/4 mile from an underground source of drinking water as that term is defined in 40 CFR §144.3; and

      (iii) The monofill is in compliance with generally applicable ground water monitoring requirements for facilities with permits under COMAR 26.13.07; or

    (b) The owner or operator demonstrates that the monofill is located, designed, and operated to assure that there will be no migration of any hazardous constituent into ground water or surface water at any future time.

  (7) For the purposes of this section, the term “liner” means a liner designed, constructed, installed, and operated to prevent hazardous waste from passing into the liner at any time during the active life of the facility, or a liner designed, constructed, installed, and operated to prevent hazardous waste from migrating beyond the liner to adjacent subsurface soil, ground water, or surface water at any time during active life of the facility.

  (8) In the case of any surface impoundment which has been exempted from the requirements of §D(4) of this regulation on the basis of a liner designed, constructed, installed, and operated to prevent hazardous waste from passing beyond the liner, at the closure of the impoundment, the owner or operator shall remove or decontaminate all waste residues, all contaminated liner material, and contaminated soil to the extent practicable. If all contaminated soil is not removed or decontaminated, the owner or operator of the impoundment shall comply with appropriate post-closure requirements, including but not limited to ground water monitoring and corrective action.

  (9) A containment system shall have a containment life equal to or greater than the life of the surface impoundment. (See “Landfill and Surface Impoundment Performance Evaluation”, EPA, SW/869, September 1980 for methods to evaluate the containment life and effectiveness of a containment system.)

  (10) Liner systems shall be:

    (a) Constructed of materials which have appropriate chemical properties and strength and of sufficient thickness to prevent failure due to pressure head, physical contact with the waste or leachate to which they are exposed, climatic conditions, and the stress of the installation and daily operations;

    (b) Constructed on a foundation capable of providing support to the liner or liners and resistance to the pressure head above the liner or liners to prevent failure of the liner or liners due to settlement, compression, or uplift; and

    (c) Installed to cover all surrounding earth likely to be in contact with the waste or leachate.

  (11) The sides and bottom of the impoundment shall be constructed of a material which prohibits the discharge of contaminants to ground water unless specifically authorized by a State discharge permit.

D-1. Leachate Collection and Removal System.

  (1) Scope.

    (a) This section establishes requirements for a leachate collection and removal system that is required to be installed between liners in accordance with §D(4) of this regulation.

    (b) The requirements of this section also apply to a leachate collection and removal system that is immediately above the bottom composite liner in a containment system that includes multiple leachate collection and removal systems.

  (2) A leachate collection and removal system identified in §D-1(1) of this regulation is:

    (a) Also a leak detection system; and

    (b) Required to be capable of detecting, collecting, and removing leaks.

  (3) Except as provided in §D-1(4) of this regulation, the facility owner or operator shall ensure that the leachate collection and removal system is designed, constructed, and operated in accordance with the provisions of 40 CFR §264.221(c)(2)(i)—(v), (3), and (4).

  (4) The Secretary may approve alternative design and operating practices to those specified in §D-1(3) of this regulation if the owner or operator demonstrates to the Secretary that the proposed alternate design and alternate operating practices, along with location characteristics, will:

    (a) Prevent the migration of any hazardous constituent into the ground water or surface water at least as effectively as the liners and leachate collection and removal system specified in §D-1(3) of this regulation; and

    (b) Allow detection of leaks of hazardous constituents through the top liner at least as effectively as the design and operating practices specified in §D-1(3) of this regulation.

D-2. Action Leakage Rate.

  (1) This section establishes requirements concerning the maximum design flow rate that the leak detection system required by §§D(4) and D-1 of this regulation can remove without the fluid head on the bottom liner exceeding 1 foot.

  (2) For the purposes of this section, “action leakage rate” means the maximum design flow rate described in §D-2(1) of this regulation.

  (3) The owner or operator shall provide the Department with the information that the Department considers necessary for the specification of a valid action leakage rate that incorporates an adequate margin of safety to allow for uncertainties, as specified in §D-2(4) of this regulation.

  (4) For a surface impoundment subject to §D of this regulation, the Department shall specify an action leakage rate that:

    (a) Includes an adequate safety margin, considering:

      (i) Uncertainties in the design, construction, operation, and location of the leak detection system;

      (ii) The characteristics of the waste and leachate;

      (iii) The likelihood that other sources may contribute to liquids in the leak detection system, and the amounts of these liquids; and

      (iv) Proposed response actions; and

    (b) If exceeded, obligates the owner or operator to respond as specified in §D-3 of this regulation.

  (5) To determine if the action leakage rate has been exceeded, the owner or operator shall:

    (a) Convert the weekly or monthly flow rate from the monitoring data obtained in accordance with §F(5) of this regulation to an average daily flow rate in gallons per acre per day for each sump; and

    (b) Unless the Department approves a different calculation:

      (i) Each week, during the active life and closure period for the unit, calculate the average daily flow rate for each sump; and

      (ii) For a unit closed in accordance with §G(2) of this regulation, calculate, each month, the average daily flow rate during the post-closure care period if monthly monitoring is required under §F(5) of this regulation.

D-3. Response Action Plan.

  (1) Before managing waste in a surface impoundment that is subject to §D(4) of this regulation, the owner or operator shall:

    (a) Develop a response action plan that meets the requirements of §D-3(2) of this regulation; and

    (b) Obtain the approval of the Department for the response action plan.

  (2) The owner or operator shall ensure that the response action plan:

    (a) At a minimum describes the actions specified in 40 CFR §264.223(b), except that, in complying with 40 CFR §264.223(b), the owner or operator shall substitute “the Department” for “the Regional Administrator” and

    (b) Incorporates the procedures specified in 40 CFR §264.223(c).

  (3) If the action leakage rate specified under §D-2 of this regulation is exceeded, then the owner or operator shall respond as specified in the approved response action plan.

E. Waste Analysis and Trial Test. In addition to the waste analyses required by Regulation .02D, whenever a surface impoundment is to be used to chemically treat a hazardous waste which is substantially different from waste previously treated in that impoundment, or chemically treat hazardous waste with a substantially different process than any previously used in that impoundment, the owner or operator shall, before treating the different waste or using the different process:

  (1) Conduct waste analyses and trial treatment tests (for example, bench scale or pilot plant scale tests); or

  (2) Obtain written documented information on similar treatment of similar waste under similar operation conditions to show that this treatment will comply with Regulation .02H(2) of this chapter.

F. Inspections and Testing.

  (1) Liners.

    (a) During construction or installation, for purposes of this section, liners (except for existing portions of surface impoundments exempt from liner installation) shall include all cover systems, membranes, sheets, and/or coatings.

    (b) During construction and installation, liner systems shall be inspected for uniformity, damage, and imperfections such as holes, cracks, thin spots, and foreign materials.

    (c) Earth material liner systems shall be tested for compaction density, moisture content, and permeability after placement.

    (d) Immediately after construction or installation of a liner:

      (i) Manufactured liner materials such as membranes, sheets, and coatings shall be inspected to ensure tight seams and joints and the absence of tears or blisters; and

      (ii) Soil-based and admixed liners and covers shall be inspected for imperfections, including lenses, cracks, channels, root holes, or other structural non-uniformities that may cause an increase in the permeability of the liner or cover.

  (2) The owner or operator shall inspect:

    (a) A surface impoundment which contains free liquids at least once each operating day to ensure compliance with §C(1)—(3), of this regulation, and to detect any leaks or other failures of the impoundment; and

    (b) Each surface impoundment, including dikes, berms, and vegetation surrounding the dike, at least once a week and after storms to:

      (i) Detect any evidence of or potential for leaks from the impoundment;

      (ii) Detect severe erosion or other signs of deterioration in dikes or other containment devices;

      (iii) Detect deterioration, malfunctions, or improper operation of overtopping control systems; and

      (iv) Ensure compliance with §C(4) of this regulation.

  (3) The structural integrity of any dike, including that portion of that dike which provides any freeboard, shall be certified against massive failure by a qualified engineer before the issuance or reissuance of a permit, or if the impoundment is not in service before being placed in service and after construction or before being returned to service. In certifying the structural integrity of the dike it shall be established that the dike will withstand the following:

    (a) The stress of the pressure head of liquids placed into the impoundment;

    (b) The weakening effect of earth materials being scoured due to leakage from the impoundment through and under the dike without relying on any liner system; and

    (c) The weakening effect of earth materials being scoured due to leakage from the impoundment through and under the dike assuming leaks develop in the liner system.

  (4) The requirements of §F(3) of this regulation, shall be followed, at a minimum, at 6-month intervals after the initial certification.

  (5) The owner or operator shall:

    (a) Comply with the requirements of 40 CFR §264.226(d) concerning the recording of information about removal of liquids from the leak detection sump; and

    (b) In complying with 40 CFR §264.226(d), substitute “Secretary” for “Regional Administrator”.

G. Closure and Post-Closure Care.

  (1) At closure, the owner or operator shall:

    (a) Remove or decontaminate all waste residues, contaminated containment system components (liner, etc.), contaminated subsoils, and structures and equipment contaminated with waste and leachate, and manage them as hazardous waste unless COMAR 26.13.02.03D applies, or he shall do §G(1)(b)—(e), of this regulation, if all hazardous waste is not removed or decontaminated;

    (b) Eliminate free liquids by removing liquid wastes or solidifying the remaining wastes and waste residues;

    (c) Stabilize remaining wastes to a bearing capacity sufficient to support final cover;

    (d) Cover the surface impoundment with a final cover designed and constructed to at a minimum:

      (i) Provide long-term minimization of the migration of liquids through the closed impoundment;

      (ii) Function with minimum maintenance;

      (iii) Promote drainage and minimize erosion or abrasion of the final cover;

      (iv) Accommodate settling and subsidence so that the cover's integrity is maintained; and

      (v) Have a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present; and any other requirements established by the Secretary; and

    (e) Apply for a permit pursuant to Regulation .14 and COMAR 26.13.07.

  (2) If some waste residues or contaminated materials are left in place at final closure, the owner or operator shall comply with all post-closure requirements contained in Regulation .07 including maintenance and monitoring throughout the post-closure care period. The owner or operator shall:

    (a) Maintain the integrity and effectiveness of the final cover, including making repairs to the cap as necessary to correct the effects of settling, subsidence, erosion, or other events;

    (b) Maintain and monitor the leak detection system, where such a system is present between double liner systems;

    (c) Maintain and monitor the ground water monitoring system and comply with all applicable requirements of Regulations .06—.06-7 of this chapter;

    (d) Prevent run-on and run-off from eroding or otherwise damaging the final cover.

  (3) If an owner or operator plans to close a surface impoundment in accordance with §G(1)(a), of this regulation, and the impoundment does not comply with the liner requirements of §D(2)—(5) of this regulation, then:

    (a) The closure plan for the impoundment under Regulation .07C shall include both a plan for complying with §G(1)(a), of this regulation, and a contingency plan for complying with §G(1)(b)—(e), of this regulation, if not all contaminated subsoils can be practicably removed at closure.

    (b) The owner or operator shall prepare a contingency post-closure plan under Regulation .07H of this chapter, for complying with §G(2), of this regulation, if not all contaminated subsoils can be practicably removed at closure.

    (c) The cost estimates calculated under Regulation .08 for closure and post-closure care of an impoundment subject to this paragraph shall include the cost of complying with the contingent closure plan and the contingent post-closure plan, but are not required to include the cost of expected closure under §G(1)(a) of this regulation.

  (4) During the post-closure care period, if liquids leak into a leak detection system the owner or operator shall notify the Secretary of the leak within 24 hours after detecting the leak. The Secretary shall modify the permit to require compliance with the requirements of Regulations .06—.06-7 of this chapter.

H. Containment System Repairs; Contingency Plans.

  (1) Whenever there is any indication of a possible failure of the containment system, the system shall be inspected in accordance with the provisions of the containment system evaluation and repair plan required by this section. Indications of possible failure of the containment system include at least an unplanned and non-sudden drop in the liquid level in the impoundment, liquid detected in the leachate detection system, evidence of leakage or the potential for leakage in the dike, erosion of the dike, apparent or potential deterioration of the liner or liners based on observation or test samples of the liner materials, any mishandling of wastes placed in the impoundment, and foreign objects in the impoundment.

  (2) Whenever there is a positive indication of failure of the containment system, the impoundment shall be removed from service. Indications of positive failure of the containment system include an unplanned sudden drop in the liquid level in the impoundment, waste detected in the leachate detection system, active leakage through the dike, or a breach (for example, a hole, tear, crack, or separation) in the liner system.

  (3) If the surface impoundment must be removed from service as required by §H(2), of this regulation, the owner or operator shall:

    (a) Immediately shut off flow of or stop the addition of waters into the impoundment;

    (b) Immediately contain any leakage which occurred or is occurring;

    (c) Immediately cause the leak to be stopped;

    (d) If the leak cannot be stopped by any other means, empty the impoundment;

    (e) Take any other necessary steps to stop or prevent catastrophic failure; and

    (f) Notify the Secretary of the problems within 24 hours after detecting the problem.

  (4) As part of the contingency plan required in Regulation .04, of this chapter, the owner or operator shall specify:

    (a) A procedure for complying with the requirements of §H(3) of this regulation;

    (b) A containment system evaluation and repair plan describing testing and monitoring techniques, procedures to be followed to evaluate the integrity of the containment system in the event of possible failure, a schedule of actions to be taken in the event of a possible failure, and a description of the repair techniques to be used in the event of leakage due to containment system failure or deterioration which does not require the impoundment to be removed from service.

  (5) A surface impoundment that has been removed from service in accordance with the requirements of this section may not be restored to service unless the portion of the impoundment which was failing is repaired and the following steps are taken:

    (a) If the impoundment was removed from service as the result of actual or imminent dike failure, the dike's structural integrity shall be recertified in accordance with §F(3) of this regulation;

    (b) If the impoundment was removed from service as the result of a sudden drop in the liquid level, then:

      (i) For any existing portion of the impoundment, a liner shall be installed in compliance with §D(5), of this regulation;

      (ii) For any other portion of the impoundment, the repaired liner system shall be certified by a qualified engineer as meeting the design specifications approved in the permit.

  (6) A surface impoundment that has been removed from service in accordance with §H(2), of this regulation, and that is not being repaired shall be closed in accordance with §G of this regulation.

I. Special Requirements for Ignitable or Reactive Waste. A person may not place ignitable or reactive waste in a surface impoundment, unless the waste and impoundment satisfy all applicable requirements of 40 CFR Part 268, and the:

  (1) Waste is treated, rendered, or mixed before or immediately after placement in the impoundment so that the resulting waste, mixture, or dissolution of material no longer meets the definition of ignitable or reactive wastes under COMAR 26.13.02.11 or .13, and Regulation .02H of this chapter is complied with; or

  (2) Surface impoundment is used solely for emergencies.

J. Special Requirements for Incompatible Waste. Incompatible wastes, or incompatible wastes and materials (see Regulation .24 of this chapter, for examples), may not be placed in the same surface impoundment, unless Regulation .02H(2) of this chapter, is complied with.

K. Special Requirements for Hazardous Wastes F020, F021, F022, F023, F026, and F027.

  (1) Hazardous Wastes F020, F021, F022, F023, F026, and F027 may not be placed in a surface impoundment unless the owner or operator operates the surface impoundment in accordance with a management plan for these wastes that is approved by the Secretary under the standards set out in this section, and in accordance with all other applicable requirements of this chapter. The factors to be considered are:

    (a) The volume, physical, and chemical characteristics of the wastes including their potential to migrate through soil or to volatilize or escape into the atmosphere;

    (b) The attenuative properties of underlying and surrounding soils or other materials;

    (c) The mobilizing properties of other materials co-disposed with these wastes; and

    (d) The effectiveness of additional treatment, design, or monitoring techniques.

  (2) The Secretary may determine that additional design, operating, and monitoring requirements are necessary for surface impoundments managing hazardous wastes F020, F021, F022, F023, F026, and F027 in order to reduce the possibility of migration of these wastes to ground water, surface water, or air so as to protect human health and the environment.

#### Regulation .12 Waste Piles.

*COMAR 26.13.05.12*

A. Applicability.

  (1) This regulation applies to owners and operators of facilities that store or treat hazardous waste in piles, except as Regulation .01 of this chapter provides otherwise.

  (2) The owner or operator of any waste pile that is inside or under a structure that provides protection from precipitation so that neither run-off nor leachate is generated is not subject to regulation under §§B and D of this regulation and Regulations .06—.06-7 of this chapter, if:

    (a) Liquids or materials containing free liquids are not placed in the pile;

    (b) The pile is protected from surface water run-on by the structure or in some other manner;

    (c) The pile is designed and operated to control dispersal of the waste by wind, when necessary, by means other than wetting; and

    (d) The pile does not generate leachate through decomposition or other reactions.

B. Design and Operating Requirements.

  (1) A waste pile except for an existing portion of a waste pile, shall have:

    (a) A liner that is designed, constructed, and installed to prevent any migration of wastes out of the pile into the adjacent subsurface soil or ground water or surface water at any time during the active life (including the closure period) of the waste pile. The liner may be constructed of materials that may allow waste to migrate into the liner itself (but not into the adjacent subsurface soil or ground water or surface water) during the active life of the facility. The liner shall be:

      (i) Constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation;

      (ii) Placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and

      (iii) Installed to cover all surrounding earth likely to be in contact with the waste or leachate.

    (b) A leachate collection and removal system immediately above the liner that is designed, constructed, maintained, and operated to collect and remove leachate from the pile. The Secretary will specify design and operating conditions in the permit to ensure that the leachate depth over the liner does not exceed 30 cm (1 foot). The leachate collection and removal system shall be:

      (i) Constructed of materials that are chemically resistant to the waste managed in the pile and the leachate expected to be generated, and of sufficient strength and thickness to prevent collapse under pressures exerted by overlaying wastes, waste cover materials, and by any equipment used at the pile; and

      (ii) Designed and operated to function without clogging through the scheduled closure of the waste pile.

    (c) A containment system which complies with §D of this regulation.

  (2) The owner or operator will be exempted from the requirements of §B(1) if the Secretary finds, based on a demonstration by the owner or operator, that alternate design and operating practices together with location characteristics, will prevent the migration of any hazardous constituents (see Regulation .06-1B of this chapter) into the ground water or surface water at any future time. In deciding whether to grant an exemption, the Secretary shall consider:

    (a) The nature and quantity of the wastes;

    (b) The proposed alternate design and operation;

    (c) The hydrogeologic setting of the facility, including attenuative capacity and thickness of the liners and soils present between the pile and ground water or surface water; and

    (d) All other factors which would influence the quality and mobility of the leachate produced and the potential for it to migrate to ground water or surface water.

  (3) The owner or operator shall:

    (a) Install two or more liners and a leachate collection and removal system above and between these liners for each:

      (i) New waste pile unit;

      (ii) Lateral expansion of a waste pile unit; and

      (iii) Replacement of an existing waste pile unit; and

    (b) Ensure that the liners and leachate collection and removal system meet the requirements of §D of this regulation.

  (4) The owner or operator shall design, construct, operate, and maintain a run-on control system capable of preventing flow onto the active portion of the pile during peak discharge from at least a 25-year storm.

  (5) The owner or operator shall design, construct, operate, and maintain a run-off management system to collect and control at least the water volume resulting from a 24-hour, 25-year storm.

  (6) Collection and holding facilities (for example, tanks or basins) associated with run-on and run-off control systems shall be emptied or otherwise managed expeditiously after storms to maintain design capacity of the system.

  (7) If the pile contains any particulate matter which may be subject to wind dispersal, the owner or operator shall cover or otherwise manage the pile to control wind dispersal.

  (8) The Secretary shall specify in the permit all design and operating practices that are necessary to ensure that the requirements of this section are satisfied.

C. Waste Analysis. In addition to the waste analysis required by Regulation .02D, of this chapter, the owner or operator shall analyze a representative sample of waste from each incoming movement before adding the waste to any existing pile, unless the only wastes the facility receives which are amenable to piling are compatible with each other, or the waste received is compatible with the waste in the pile to which it is to be added. This analysis conducted shall be capable of differentiating between the types of hazardous waste the owner or operator places in piles, so that mixing of incompatible waste does not inadvertently occur. The analysis shall include a visual comparison of color and texture.

D. Containment Systems.

  (1) Except as provided in §D(2) and (3) of this regulation, the owner or operator shall ensure that a waste pile subject to this regulation includes a containment system that:

    (a) Incorporates two or more liners and a leachate collection and removal system above and between the liners, with the leachate collection and removal system also serving as a leak detection system; and

    (b) Is designed, constructed, and operated in accordance with the requirements of 40 CFR §264.251(c)(1)—(5), except that, in meeting these requirements, the owner or operator shall substitute “Secretary” for “Regional Administrator”.

  (2) The Secretary may approve alternative designs and operating practices to those specified in §D(1) of this regulation if the owner or operator demonstrates to the Secretary that the proposed designs and operating practices, together with location characteristics, will:

    (a) Prevent the migration of any hazardous constituent into the ground water or surface water at least as effectively as the liners and leachate collection and removal systems specified in §D(1) of this regulation; and

    (b) Allow detection of leaks of hazardous constituents through the top liner at least as effectively as the design and operating practices specified in §D(1) of this regulation.

  (3) The requirements of §D(1)(a) of this regulation do not apply to a monofil that has been granted a waiver by the Secretary in accordance with Regulation .11D(6) of this chapter.

D-1. Action Leakage Rate.

  (1) This section establishes requirements concerning the maximum design flow rate that the leak detection system required by §D(1)(a) of this regulation can remove without the fluid head on the bottom liner exceeding 1 foot.

  (2) For the purposes of this section, “action leakage rate” means the maximum design flow rate described in §D-1(1) of this regulation.

  (3) The owner or operator shall provide the Department with the information that the Department considers necessary for the specification of a valid action leakage rate that incorporates an adequate margin of safety to allow for uncertainties, as specified in §D-1(4) of this regulation.

  (4) For a waste pile subject to §D(1) of this regulation, the Department shall specify an action leakage rate that:

    (a) Includes an adequate safety margin, considering:

      (i) Uncertainties in the design, construction, operation, and location of the leak detection system;

      (ii) The characteristics of the waste and leachate;

      (iii) The likelihood that other sources may contribute to liquids in the leak detection system, and the amounts of these liquids; and

      (iv) Proposed response actions; and

    (b) If exceeded, obligates the owner or operator to respond as specified in §D-2 of this regulation.

  (5) To determine if the action leakage rate has been exceeded, the owner or operator shall:

    (a) Convert the weekly flow rate from the monitoring data obtained in accordance with §E(3) of this regulation to an average daily flow rate in gallons per acre per day for each sump; and

    (b) Unless the Department approves a different calculation, calculate the average daily flow rate for each sump on a weekly basis during the active life and closure period for the unit.

D-2. Response Action Plan.

  (1) Before managing hazardous waste in a waste pile that is subject to §D(1) or (2) of this regulation, the owner or operator shall:

    (a) Develop a response action plan that meets the requirements of §D-2(2) of this regulation; and

    (b) Obtain the approval of the Department for the response action plan.

  (2) The owner or operator shall ensure that the response action plan:

    (a) At a minimum describes the actions specified in 40 CFR §264.253(b), except that, in complying with 40 CFR §264.253(b), the owner or operator shall substitute “Department” for “Regional Administrator”; and

    (b) Incorporates the procedures specified in 40 CFR §264.253(c).

  (3) If the action leakage rate specified under §D-1 of this regulation is exceeded, then the owner or operator shall respond as specified in the approved response action plan.

E. Inspections and Testing.

  (1) Except in the case of an existing portion of a waste pile exempt from the requirements of §B(1) of this regulation, the owner or operator shall, during construction and immediately after installation, inspect:

    (a) Liner systems and covers for uniformity, damage, and imperfections such as holes, cracks, thin spots, and foreign materials;

    (b) Manufactured liner materials and covers, such as membranes, sheets, and coatings, to ensure tight seams and joints and the absence of tears or blisters; and

    (c) Soil-based and admixed liners and covers for imperfections including lenses, cracks, channels, root holes, or other structural non-uniformities that may cause an increase in the permeability of the liner or cover.

  (2) While a waste pile is in operation, the owner or operator shall inspect the pile weekly and after storms to detect evidence of any of the following:

    (a) Deterioration, malfunctions, or improper operation of run-on and run-off control systems;

    (b) The presence of liquids in leak detection systems, if installed;

    (c) Proper functioning of wind dispersal control systems, if present; and

    (d) The presence of leachate in and proper functioning of leachate collection and removal systems, if present.

  (3) For a waste pile required to have a leak detection system under §D(1) of this regulation, the owner or operator shall record the amount of liquid removed from each leak detection sump at least once each week during the active life and closure period of the waste pile.

F. Containment System Repairs, Contingency Plans.

  (1) Whenever there is an indication of a possible failure of the containment system, the system shall be inspected in accordance with the provisions of the containment system evaluation and repair plan required by §F(4) of this regulation. Indications of possible failure of the containment system include liquid detected in the leachate detection system (when applicable), evidence of leakage or the potential for leakage in the base, erosion of the base, or apparent or potential deterioration of the liner and liners based on observation or test samples of the liner materials.

  (2) Whenever there is a positive indication of a failure of the containment system, the waste pile shall be removed from service. Indications of positive failure of containment system include waste detected in the leachate detection system (when applicable), or a breach (for example, a hole, tear, crack, or separation) in the base.

  (3) If the waste pile must be removed from service as required by §F(2), of this regulation, the owner or operator shall:

    (a) Immediately stop adding wastes to the pile;

    (b) Immediately contain any leakage which has or is occurring;

    (c) Immediately cause the leak to be stopped; and

    (d) If the leak cannot be stopped by another means, remove the waste from the base.

  (4) As a part of the contingency plan required in Regulation .04, of this chapter, the owner or operator shall specify:

    (a) A procedure for complying with the requirements of §F(3) of this regulation; and

    (b) A containment system evaluation and repair plan describing:

      (i) Testing and monitoring techniques;

      (ii) Procedures to be followed to evaluate the integrity of the containment system in the event of a possible failure;

      (iii) A schedule of actions to be taken in the event of a possible failure; and

      (iv) A description of the repair techniques to be used in the event of leakage due to containment system failure or deterioration which does not require the waste pile to be removed from service.

  (5) A waste pile that has been removed from service in accordance with §F(2), of this regulation, may not be restored to service unless the containment system has been:

    (a) Repaired; and

    (b) Certified by a qualified engineer as meeting the design specifications approved in the permit.

  (6) A waste pile that has been removed from service in accordance with §F(2), of this regulation, and that is not being repaired shall be closed in accordance with §I, of this regulation.

G. Special Requirements for Ignitable or Reactive Waste. A person may not place ignitable or reactive waste in a pile unless the waste and waste pile satisfy all applicable requirements of 40 CFR Part 268, and:

  (1) The waste is treated, rendered, or mixed before or immediately after placement in the pile so that:

    (a) The resulting waste, mixture, or dissolution of materials no longer meets the definition of ignitable or reactive waste under COMAR 26.13.02.11 and .13, and

    (b) Regulation .02H of this chapter is complied with; or

  (2) The waste is managed in such a way that it is protected from any material or conditions which may cause it to ignite or react.

H. Special Requirements for Incompatible Wastes.

  (1) Incompatible wastes, or incompatible wastes and materials, (see Regulation .24, of this chapter, for examples) may not be placed in the same pile, unless Regulation .02H(2) is complied with.

  (2) A pile of hazardous waste that is incompatible with any waste or other material stored nearby in other containers, piles, open tanks, or surface impoundments shall be separated from the other materials, or protected from them by means of a dike, berm, wall, or other device.

  (3) Hazardous waste may not be piled on the same area where incompatible wastes or materials were previously piled, unless the area has been decontaminated sufficiently to ensure compliance with Regulation .02H(2) of this chapter.

I. Closure and Post-Closure Care.

  (1) At closure, the owner or operator shall remove or decontaminate all waste residues, contaminated containment system components (liners, etc.), contaminated subsoils, and structures and equipment contaminated with waste and leachate, and manage them as hazardous waste unless COMAR 26.13.02.03D applies.

  (2) If, after removing or decontaminating all residues and making all reasonable efforts to effect removal or decontamination of contaminated components, subsoils, structures, and equipment as required in §I(1), of this regulation, the owner or operator finds that not all contaminated subsoils can be practicably removed or decontaminated, he shall close the facility and perform post-closure care in accordance with the closure and post-closure care requirements that apply to landfills.

  (3) The owner or operator of a waste pile that does not comply with the liner requirements of §B(1)(a), of this regulation, and is not exempt from them in accordance with §A(2) or B(2), of this regulation, shall:

    (a) Include in the closure plan for the pile under Regulation .07C, of this chapter, both a plan for complying with §I(1), of this regulation, and a contingency plan for complying with §I(2), of this regulation, if not all contaminated subsoils can be practicably removed at closure; and

    (b) Prepare a contingency post-closure plan under Regulation .07H, of this chapter, for complying with §I(2), of this regulation, if not all contaminated subsoils can be practicably removed at closure.

  (4) The cost estimates calculated under Regulation .08 for closure and post-closure care of a pile subject to §I(3), of this regulation, shall include the cost of complying with the contingent closure plan and the contingency post-closure plan, but are not required to include the cost of expected closure under §I(1), of this regulation.

J. Special Requirements for Hazardous Wastes F020, F021, F022, F023, F026, and F027.

  (1) Hazardous Waste F020, F021, F022, F023, F026, and F027 may not be placed in waste piles that are not enclosed as defined in §A(2), of this regulation, unless the owner or operator operates the waste pile in accordance with a management plan for these wastes that is approved by the Secretary under the standards set out in this section, and in accord with all other applicable requirements of this chapter. The factors to be considered are:

    (a) The volume, physical, and chemical characteristics of the wastes, including their potential to migrate through soil or to volatilize or escape into the atmosphere;

    (b) The attenuative properties of underlying and surrounding soils or other materials;

    (c) The mobilizing properties of other materials co-disposed with these wastes; and

    (d) The effectiveness of additional treatment, design, or monitoring techniques.

  (2) The Secretary may determine that additional design, operating, and monitoring requirements are necessary for piles managing hazardous wastes F020, F021, F022, F023, F026, and F027 in order to reduce the possibility of migration of these wastes to ground water, surface water, or air so as to protect human health and the environment.

#### Regulation .13 Land Treatment.

*COMAR 26.13.05.13*

A. Applicability. This regulation applies to owners and operators of facilities that treat or dispose of hazardous waste in land treatment units, except as Regulation .01 of this chapter provides otherwise.

B. Treatment Program.

  (1) An owner or operator subject to this regulation shall establish a land treatment program that is designed to ensure that hazardous constituents placed in or on the treatment zone are degraded, transformed, or immobilized within the treatment zone. The Secretary will specify in the facility permit the elements of the treatment program, including:

    (a) The wastes that are capable of being treated at the unit based on a demonstration under §C of this regulation;

    (b) Design measures and operating practices necessary to maximize the success of degradation, transformation, and immobilization processes in the treatment zone in accordance with §D(1) of this regulation; and

    (c) Unsaturated zone monitoring provisions meeting the requirements of §I of this regulation.

  (2) The Secretary will specify in the facility permit the hazardous constituents that shall be degraded, transformed, or immobilized under this regulation. Hazardous constituents are constituents identified in COMAR 26.13.02.24 that are reasonably expected to be in, or derived from, waste placed in or on the treatment zone.

  (3) The Secretary will specify the vertical and horizontal dimensions of the treatment zone in the facility permit. The treatment zone is the portion of the unsaturated zone below and including the land surface in which the owner or operator intends to maintain the conditions necessary for effective degradation, transformation, or immobilization of hazardous constituents. The maximum depth of the treatment zone shall be:

    (a) Not more than 1.5 meters (5 feet) from the initial soil surface; and

    (b) More than 1 meter (3 feet) above the seasonal high water table.

C. Treatment Demonstration.

  (1) For each waste that will be applied to the treatment zone, the owner or operator shall demonstrate, before application of the waste, that hazardous constituents in the waste can be completely degraded, transformed, or immobilized in the treatment zone.

  (2) In making this demonstration, the owner or operator may use field tests, laboratory analyses, available data, or, in the case of existing units, operating data. If the owner or operator intends to conduct field tests or laboratory analyses in order to make the demonstration required under §C(1), of this regulation, he shall obtain a treatment or disposal permit under COMAR 26.13.07.02—.19. The Secretary will specify in this permit the testing, analytical, design, and operating requirements (including the duration of the tests and analyses, and, in the case of field tests, the horizontal and vertical dimensions of the treatment zone, monitoring procedures, closure and clean-up activities) necessary to meet the requirements in §C(3) of this regulation.

  (3) Any field test or laboratory analysis conducted in order to make a demonstration under §C(1) of this regulation shall:

    (a) Accurately simulate the characteristics and operating conditions for the proposed land treatment unit including the:

      (i) Characteristics of the waste (including the presence of constituents in COMAR 26.13.02.24);

      (ii) Climate in the area;

      (iii) Topography of the surrounding area;

      (iv) Characteristics of the soil in the treatment zone (including depth); and

      (v) Operating practices to be used at the unit;

    (b) Be likely to show that hazardous constituents in the waste to be tested will be completely degraded, transformed, or immobilized in the treatment zone of the proposed land treatment unit; and

    (c) Be conducted in a manner that protects human health and the environment considering:

      (i) The characteristics of the waste to be tested;

      (ii) The operating and monitoring measures taken during the course of the test;

      (iii) The duration of the test;

      (iv) The volume of waste used in the test;

      (v) In the case of field tests, the potential for migration of hazardous constituents to ground water or surface water.

D. Design and Operating Requirements.

  (1) The Secretary will specify in the facility permit how the owner or operator will design, construct, operate, and maintain the land treatment unit in compliance with this section.

  (2) The owner and operator shall design, construct, operate, and maintain the unit to maximize the degradation, transformation, and immobilization of hazardous constituents in the treatment zone. The owner or operator shall design, construct, operate, and maintain the unit in accord with all design and operating conditions that were used in the treatment demonstration under §C of this regulation. At a minimum, the Secretary will specify the following in the facility permit:

    (a) The rate and method of waste application to the treatment zone;

    (b) Measures to control soil pH;

    (c) Measures to enhance microbial or chemical reactions (for example, fertilization, tilling); and

    (d) Measures to control the moisture content of the treatment zone.

  (3) The owner or operator shall design, construct, operate, and maintain the treatment zone to minimize run-off of hazardous constituents during the active life of the land treatment unit.

  (4) The owner or operator shall design, construct, operate, and maintain a run-on control system capable of preventing flow onto the treatment zone during peak discharge from at least a 25-year storm.

  (5) The owner or operator shall design, construct, operate, and maintain a run-off management system to collect and control at least the water volume resulting from a 24-hour, 25-year storm.

  (6) Collection and holding facilities (for example, tanks or basins) associated with run-on and run-off control systems shall be emptied or otherwise managed expeditiously after storms to maintain the design capacity of the system.

  (7) If the treatment zone contains particulate matter which may be subject to wind dispersal, the owner or operator shall manage the unit to control wind dispersal.

  (8) The owner or operator shall inspect the unit weekly and after storms to detect evidence of:

    (a) Deterioration, malfunctions, or improper operation of run-on and run-off control systems; and

    (b) Improper functioning of wind dispersal control measures.

E.—F. Reserved.

G. Food-Chain Crops.

  (1) The Secretary may allow the growth of food-chain crops in or on the treatment zone only if the owner or operator satisfies the condition of this section. The Secretary will specify in the facility permit the specific food-chain crops which may be grown.

  (2) The owner or operator shall demonstrate that there is no substantial risk to human health caused by the growth of these crops in or on the treatment zone by demonstrating, before the planting of the crops, that hazardous constituents other than cadmium will not:

    (a) Be transferred to the food or feed portions of the crop by plant uptake or direct contact, and will not otherwise be ingested by food-chain animals (for example, by grazing); or

    (b) Occur in greater concentrations in or on the food or feed portions of crops grown on the treatment zone than in or on identical portions of the same crops grown on untreated soils under similar conditions in the same region.

  (3) The owner or operator shall make the demonstration required under §G(2) of this regulation before the planting of crops at the facility for all constituents identified in COMAR 26.13.02.24 that are reasonably expected to be in, or derived from, waste placed in or on the treatment zone.

  (4) In making a demonstration under §G(2), of this regulation, the owner or operator may use field tests, greenhouse studies available data, or, in the case of existing units, operating data, and shall:

    (a) Base the demonstration on conditions similar to those present in the treatment zone, including soil characteristics (for example, pH, cation exchange capacity), specific wastes, application rates, application methods, and crops to be grown; and

    (b) Describe the procedures used in conducting any tests, including the sample selection criteria, sample size, analytical methods, and statistical procedures.

  (5) If the owner or operator intends to conduct field tests or greenhouse studies in order to make the demonstration required under §G(2), of this regulation, he shall obtain a permit for conducting these activities.

  (6) The owner or operator shall comply with the following conditions if cadmium is contained in wastes applied to the treatment zone:

    (a) The pH of the waste and soil mixture shall be 6.5 or greater at the time of each waste application, except for waste containing cadmium at concentrations of 2 mg/kg (dry weight) or less;

    (b) The annual application of cadmium from waste may not exceed 0.5 kilograms per hectare (kg/ha) on land used for production of tobacco, leafy vegetables, or root crops grown for human consumption; for other food-chain crops, the annual cadmium application rate may not exceed:

    (c) The cumulative application of cadmium from waste may not exceed 5 kg/ha if the waste and soil mixture has a pH of less than 6.5; and

    (d) If the waste and soil mixture has a pH of 6.5 or greater or is maintained at a pH of 6.5 or greater during crop growth, the cumulative application of cadmium from waste may not exceed:

      (i) 5 kg/ha if soil cation exchange capacity (CEC) is less than 5 meg/100g;

      (ii) 10 kg/ha if soil CEC is 5-15 meg/100g; and

      (iii) 20 kg/ha if soil CEC is greater than 15 meg/100g; or

    (e) Animal feed shall be the only food-chain crop produced:

      (i) The pH of the waste and soil mixture shall be 6.5 or greater at the time of waste application or at the time the crop is planted, whichever occurs later, and this pH level shall be maintained whenever food-chain crops are grown.

      (ii) There shall be an operating plan which demonstrates how the animal feed will be distributed to preclude ingestion by humans. The operating plan shall describe the measures to be taken to safeguard against possible health hazards from cadmium entering the food-chain, which may result from alternative land uses.

      (iii) Future property owners shall be notified by a stipulation in the land record or property deed which states that the property has received waste at high cadmium application rates and that food-chain crops may not be grown except in compliance with §G(5)(e) of this regulation.

H. Reserved.

I. Unsaturated Zone Monitoring. An owner or operator subject to this regulation shall establish an unsaturated zone monitoring program to discharge the following responsibilities:

  (1) Monitoring.

    (a) The owner or operator shall monitor the soil and soil-pore liquid to determine whether hazardous constituents migrate out of the treatment zone.

    (b) The Secretary will specify the hazardous constituents to be monitored in the facility permit. The hazardous constituents to be monitored are those specified under §B(2) of this regulation.

    (c) The Secretary may require monitoring for principal hazardous constituents (PHCs) instead of the constituents specified under §B(2) of this regulation. PHCs are hazardous constituents contained in the wastes to be applied at the unit that are the most difficult to treat, considering the combined effects of degradation, transformation, and immobilization. The Secretary will establish PHCs if he finds, based on waste analyses, treatment demonstrations, or other data, that effective degradation, transformation, or immobilization of the PHCs will assure treatment at, at least, equivalent levels for the other hazardous constituents in the wastes.

  (2) Installation of System. The owner or operator shall install an unsaturated zone monitoring system that includes soil monitoring using soil cores and soil-pore liquid monitoring using devices such as lysimeters. The unsaturated zone monitoring system shall consist of a sufficient number of sampling points at appropriate locations and depths to yield samples that:

    (a) Represent the quality of background soil-pore liquid quality and the chemical make-up of soil that has not been affected by leakage from the treatment zone; and

    (b) Indicate the quality of soil-pore liquid and the chemical make-up of the soil below the treatment zone.

  (3) Establishment of Background Value.

    (a) The owner or operator shall establish a background value for each hazardous constituent to be monitored under §I(1) of this regulation. The permit will specify the background values for each constituent or specify the procedures to be used to calculate the background values.

    (b) Background soil values may be based on a one-time sampling at a background plot having characteristics similar to those of the treatment zone.

    (c) Background soil-pore liquid values shall be based on at least quarterly sampling for 1 year at a background plot having characteristics similar to those of the treatment zone.

    (d) The owner or operator shall express all background values in a form necessary for the determination of statistically significant increases under §I(6).

    (e) In taking samples used in the determination of all background values, the owner or operator shall use an unsaturated zone monitoring system that complies with §I(2)(a) of this regulation.

  (4) The owner or operator shall conduct soil monitoring and soil-pore liquid monitoring immediately below the treatment zone. The Secretary will specify the frequency and timing of soil and soil-pore liquid monitoring in the facility permit after considering the frequency, timing, and rate of waste application, and the soil permeability. The owner or operator shall express the results of soil and soil-pore liquid monitoring in a form necessary for the determination of statistically significant increases under §I(6).

  (5) The owner or operator shall use consistent sampling and analysis procedures that are designed to ensure sampling results that provide a reliable indication of soil-pore liquid quality and the chemical make-up of the soil below the treatment zone. At a minimum, the owner or operator shall implement procedures and techniques for:

    (a) Sample collection;

    (b) Sample preservation and shipment;

    (c) Analytical procedures; and

    (d) Chain of custody control.

  (6) Background Values.

    (a) The owner or operator shall determine whether there is a statistically significant change over background values for any hazardous constituent to be monitored under §I(1) of this regulation, below the treatment zone each time he conducts soil monitoring and soil-pore liquid monitoring under §I(4) of this regulation.

    (b) In determining whether a statistically significant increase has occurred, the owner or operator shall compare the value of each constituent, as determined under §I(4), of this regulation, to the background value for that constituent according to the statistical procedure specified in the facility permit under this paragraph.

    (c) The owner or operator shall determine whether there has been a statistically significant increase below the treatment zone within a reasonable time period after completion of sampling. The Secretary will specify that time period in the facility permit after considering the complexity of the statistical test and the availability of laboratory facilities to perform the analysis of soil and soil-pore liquid samples.

    (d) The owner or operator shall determine whether there is a statistically significant increase below the treatment zone using a statistical procedure that provides reasonable confidence that migration from the treatment zone will be identified. The Secretary will specify a statistical procedure in the facility permit that he finds:

      (i) Is appropriate for the distribution of the data used to establish background values; and

      (ii) Provides a reasonable balance between the probability of falsely identifying migration from the treatment zone and the probability of failing to identify real migration from the treatment zone.

  (7) If the owner or operator determines, pursuant to §I(6), of this regulation, that there is a statistically significant increase of hazardous constituents below the treatment zone, he shall:

    (a) Notify the Secretary of this finding in writing within 7 days. The notification shall indicate what constituents have shown statistically significant increases.

    (b) Within 90 days, submit to the Secretary an application for a permit modification to modify the operating practices at the facility in order to maximize the success of degradation, transformation, or immobilization processes in the treatment zone.

  (8) If the owner or operator determines, pursuant to §I(6), that there is a statistically significant increase of hazardous constituents below the treatment zone, he may demonstrate that a source other than regulated units caused the increase or that the increase resulted from an error in sampling, analysis, or evaluation. While the owner or operator may make a demonstration under this subsection in addition to, or instead of, submitting a permit modification application under §I(7)(b), of this regulation, he is not relieved of the requirement to submit a permit modification application within the time specified in §I(7)(b) unless the demonstration made under this subsection successfully shows that a source other than the regulated units caused the increase or that the increase resulted from an error in sampling, analysis, or evaluation. In making a demonstration under this subsection, the owner or operator shall:

    (a) Notify the Secretary in writing within 7 days of determining a statistically significant increase below the treatment zone that he intends to make a determination under this subsection;

    (b) Within 90 days, submit a report to the Secretary demonstrating that a source other than the regulated units caused the increase or that the increase resulted from error in sampling, analysis, or evaluation;

    (c) Within 90 days, submit to the Secretary an application for a permit modification to make any appropriate changes to the unsaturated zone monitoring program at the facility; and

    (d) Continue to monitor in accord with the unsaturated zone monitoring program established under this section.

J. Recordkeeping. The owner or operator shall include hazardous waste application dates and rates in the operating record required under Regulation .05D of this chapter.

K. Closure and Post-Closure Care.

  (1) During the closure period the owner or operator shall:

    (a) Continue all operations (including pH control) necessary to maximize degradation, transformation, or immobilization of hazardous constituents within the treatment zone as required under §D(1), of this regulation, except to the extent these measures are inconsistent with §K(1)(h) of this regulation;

    (b) Continue all operations in the treatment zone to minimize run-off of hazardous constituents as required under §D(2) of this regulation;

    (c) Maintain the run-on control system required under §D(3) of this regulation;

    (d) Maintain the run-off management system required under §D(4) of this regulation;

    (e) Control wind dispersal of hazardous waste required under §D(6) of this regulation;

    (f) Continue to comply with any prohibition or conditions concerning growth of food-chain crops under §G of this regulation;

    (g) Continue unsaturated zone monitoring in compliance with §I, of this regulation, except that soil-pore liquid monitoring may be terminated 90 days after the last application of waste to the treatment zone; and

    (h) Establish a vegetative cover on the portion of the facility being closed at such time that the cover does not substantially impede degradation, transformation, or immobilization of hazardous constituents in the treatment zone. The vegetative cover shall be capable of maintaining growth without extensive maintenance.

  (2) For the purpose of complying with Regulation .07F, when closure is completed the owner or operator may submit to the Secretary certification by an independent qualified soil scientist, instead of an independent registered professional engineer, that the facility has been closed in accordance with the specifications in the approved closure plan.

  (3) During the post-closure care period the owner or operator shall:

    (a) Continue all operations, including pH control, necessary to enhance degradation and transformation and sustain immobilization of hazardous constituents in the treatment zone to the extent that these measures are consistent with other post-closure care activities;

    (b) Maintain a vegetative cover over closed portions of the facility;

    (c) Maintain the run-on control system required under §D(3) of this regulation;

    (d) Maintain the run-off management system required under §D(4) of this regulation;

    (e) Control wind dispersal of hazardous waste if required under §D(6) of this regulation;

    (f) Continue to comply with any prohibitions or conditions concerning growth of food-chain crops under §G of this regulation; and

    (g) Continue unsaturated zone monitoring in compliance with §I of this regulation, except that soil-pore liquid monitoring may be terminated 90 days after the last application of waste to the treatment zone.

  (4) The owner or operator is not subject to regulation under §K(1)(h) and (3) of this regulation, if the Secretary finds that the level of hazardous constituents in the treatment zone soil does not exceed the background value of those constituents by an amount that is statistically significant when using the test specified in §K(4)(c) of this regulation. The owner or operator may submit a demonstration to the Secretary at any time during the closure or post-closure periods. For the purposes of this subsection:

    (a) The owner or operator shall establish background soil values and determine whether there is a statistically significant increase over those values for all hazardous constituents specified in the facility permit under §B(2). This includes the following:

      (i) Background soil values may be based on a one-time sampling of a background plot having characteristics similar to those of the treatment zone;

      (ii) The owner or operator shall express background values and values for hazardous constituents in the treatment zone in a form necessary for the determination of statistically significant increases under §K(4)(c) of this regulation.

    (b) In taking samples used in the determination of background and treatment zone values, the owner or operator shall take samples at a sufficient number of sampling points and at appropriate locations and depths to yield samples that represent the chemical make-up of soil that has not been affected by leakage from the treatment zone and the soil within the treatment zone, respectively.

    (c) In determining whether a statistically significant increase has occurred, the owner or operator shall compare the value of each constituent in the treatment zone to the background value for that constituent using a statistical procedure that provides reasonable confidence that constituent presence in the treatment zone will be identified. The owner or operator shall use a statistical procedure that:

      (i) Is appropriate for the distribution of the data used to establish background values; and

      (ii) Provides a reasonable balance between the probability of falsely identifying hazardous constituent presence in the treatment zone and the probability of failing to identify real presence in the treatment zone.

  (5) The owner or operator is not subject to regulation under Regulations .06—.06-7 of this chapter if the Secretary finds that the owner or operator satisfied §K(4) of this regulation and if unsaturated zone monitoring under §I of this regulation indicates that hazardous constituents have not migrated beyond the treatment zone during the active life of the land treatment unit.

L. Special Requirements for Ignitable or Reactive Waste. The owner or operator may not apply ignitable or reactive waste to the treatment zone unless the waste and the treatment zone meet all applicable requirements of 40 CFR Part 268, and the waste is:

  (1) Immediately incorporated into the soil so that:

    (a) The resulting waste, mixture, or dissolution of material no longer meets the definition of ignitable or reactive waste under COMAR 26.13.02.11 or .13, and

    (b) Regulation .02H(2) of this chapter is complied with; or

  (2) Managed in such a way that it is protected from any material or conditions which may cause it to ignite or react.

M. Special Requirements for Incompatible Wastes. The owner or operator may not place incompatible wastes, or incompatible wastes and materials (see Regulation .24, of this chapter, for examples), in or on the same treatment zone, unless Regulation .02H(2) of this regulation is complied with.

N. Special Requirements for Hazardous Wastes F020, F021, F022, F023, F026, and F027.

  (1) Hazardous Wastes F020, F021, F022, F023, F026, and F027 may not be placed in a land treatment unit unless the owner or operator operates the facility in accordance with a management plan for these wastes that is approved by the Secretary under the standards set out in this section, and in accord with all other applicable requirements of this chapter. The factors to be considered are:

    (a) The volume, physical, and chemical characteristics of the wastes including their potential to migrate through soil or to volatilize or escape into the atmosphere;

    (b) The attenuative properties of underlying and surrounding soils or other materials;

    (c) The mobilizing properties of other materials co-disposed with these wastes; and

    (d) The effectiveness of additional treatment, design, or monitoring techniques.

  (2) The Secretary may determine that additional design, operating, and monitoring requirements are necessary for land treatment facilities managing hazardous wastes F020, F021, F022, F023, F026, and F027 in order to reduce the possibility of migration of these wastes to ground water, surface water, or air so as to protect human health and the environment.

#### Regulation .14 Landfills.

*COMAR 26.13.05.14*

A. Applicability. This regulation applies to owners and operators of facilities that dispose of hazardous waste in landfills, except as Regulation .01 of this chapter provides otherwise.

B. Design and Operating Requirements.

  (1) Any landfill not covered by §B(3) of this regulation or COMAR 26.13.06.22C shall have a liner system for all portions of the landfill, except for existing portions of the landfill. The liner system shall:

    (a) Have a liner that is designed, constructed, and installed to prevent any migration of wastes out of the landfill to the adjacent subsurface soil or ground water or surface water at any time during the active life, including the closure period, of the landfill. The liner shall be constructed of materials that prevent wastes from passing into the liner during the active life of the facility. The liner shall be:

      (i) Constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients, including static head external hydrogeologic forces, physical contact with the waste or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation;

      (ii) Placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift;

      (iii) Installed to cover all surrounding earth likely to be in contact with the waste or leachate; and

      (iv) Located entirely above natural seasonal high water table. Minimal distance will be specified by the Secretary in the permit.

    (b) Have a leachate collection and removal system immediately above the liner that is designed, constructed, maintained, and operated to collect and remove leachate from the landfill. The Secretary will specify design and operating conditions in the permit to ensure that the leachate depth over the liner does not exceed 30 cm (1 foot). The leachate collection and removal system shall be:

      (i) Constructed of materials that are chemically resistant to the waste managed in the landfill and the leachate expected to be generated, and of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes, waste cover materials, and by any equipment used at the landfill; and

      (ii) Designed and operated to function without clogging through the scheduled closure of the landfill.

    (c) Be located in a geohydrologic setting which is compatible with hazardous waste land disposal as determined by the Secretary. Compatibility criteria shall include but not be limited to the:

      (i) Attenuative capacity of the in-situ soils;

      (ii) Hydraulic conductivity of the in-situ soils;

      (iii) Thickness and classification of in-situ soils; and

      (iv) Water table surface or potentiometric surface of each aquifer within 50 feet of the facility boundaries.

  (2) The owner or operator will be exempted from the requirements of §B(1) of this regulation if the Secretary finds, based on a demonstration by the owner or operator, that alternative design and operating practices, together with location characteristics, will prevent the migration of any hazardous constituents (see Regulation .06-1B of this chapter) into the ground water or surface water at any future time. In deciding whether to grant an exemption, the Secretary shall consider:

    (a) The nature and quantity of the wastes;

    (b) The proposed alternate design and operation;

    (c) The hydrogeologic setting of the facility, including the attenuative capacity and thickness of the liners and soils present between the landfill and ground water or surface waters; and

    (d) All other factors which would influence the quality and mobility of the leachate produced and the potential for it to migrate to ground water or surface water.

  (3) The owner or operator of each new landfill, each new landfill unit at an existing facility, each replacement of an existing landfill unit, and each lateral expansion of an existing landfill unit, shall install two or more liners and a leachate collection and removal system above and between the liners, subject to the following:

    (a) The liners and leachate collection systems shall protect human health and the environment;

    (b) The liner system shall include:

      (i) A top liner designed, operated, and constructed of materials to prevent the migration of any constituent into the liner during the period the facility remains in operation, including any post-closure monitoring period; and

      (ii) A composite bottom liner, consisting of at least two components, that satisfies the requirements of §B(3)(c) and (d) of this regulation;

    (c) The upper component of a composite bottom liner shall be designed and constructed to prevent the migration of any constituent into the upper component during the active life of the landfill and the post-closure care period;

    (d) The lower component of a composite bottom liner shall be:

      (i) Designed and constructed of materials to minimize the migration of hazardous constituents if a breach in the upper component were to occur; and

      (ii) Constructed of at least a 3-foot thick layer of recompacted clay or other natural material with a hydraulic conductivity of no more than 1 x 10-7 centimeter per second;

    (e) The liners shall meet the requirements of §B(1)(a) of this regulation; and

    (f) The leachate collection and removal system immediately above the top liner shall be designed, constructed, operated, and maintained:

      (i) To collect and remove leachate from the landfill during the active life and post-closure care period;

      (ii) In accordance with conditions specified by the Department in the facility permit to ensure that the leachate depth over the liner does not exceed 30 centimeters (1 foot); and

      (iii) In compliance with the requirements of 40 CFR §264.301(c)(3)(iii) and (iv), and the requirements of §D of this regulation.

  (4) The Secretary may approve substitution of alterative design and operating practices for the requirements of §B(3) of this regulation if the owner or operator demonstrates to the Secretary that alternative design and operating practices, together with location characteristics, will:

    (a) Prevent the migration of any hazardous constituent into the ground water or surface water at least as effectively as the liners and leachate collection and removal systems specified in §§B(3) and D of this regulation; and

    (b) Allow detection of leaks of hazardous constituents through the top liner at least as effectively as the leak detection system required by §D(2) of this regulation.

  (5) The double liner requirement set forth in §B(3) of this regulation may be waived by the Secretary for any monofill, if:

    (a) The monofill contains only hazardous wastes from foundry furnace emission controls or metal casting molding sand, and these wastes do not contain constituents which would render the wastes hazardous for reasons other than exhibiting the toxicity characteristic in COMAR 26.13.02.14 for one or more of EPA hazardous waste numbers D004—D017; and

    (b) One of the following applies:

      (i) The monofill has at least one liner for which there is no evidence that the liner is leaking, the monofill is located more than 1/4 mile from an underground source of drinking water, as defined in 40 CFR §144.3, and the monofill is in compliance with generally applicable ground water monitoring requirements for facilities with permits under COMAR 26.13.07; or

      (ii) The owner or operator demonstrates that the monofill is located, designed, and operated so as to assure that there will be no migration of any hazardous constituent into ground water or surface water at any future time.

  (6) The owner or operator shall design, construct, operate, and maintain a run-on control system capable of preventing flow onto the active portion of the landfill during peak discharge from at least a 25-year storm.

  (7) The owner or operator shall design, construct, operate, and maintain a run-off management system to collect and control at least the water volume resulting from a 24-hour, 25-year storm.

  (8) Collection and holding facilities (for example, tanks or basins) associated with run-on and run-off control systems shall be emptied or otherwise managed expeditiously after storms to maintain design capacity of the system.

  (9) If the landfill contains any particulate matter which may be subject to wind dispersal, the owner or operator shall cover or otherwise manage the landfill to control wind dispersal.

  (10) The Secretary will specify in the permit all design and operating practices that are necessary to ensure that the requirements of this section are satisfied.

C. Monitoring and Inspection. The owner or operator shall:

  (1) Inspect, during construction or installation, liners, except in the case of existing portions of liners exempt from §B of this regulation, and cover systems such as membranes, sheets, or coatings for uniformity, damage, and imperfections, such as holes, cracks, thin spots, or foreign materials;

  (2) Inspect, immediately after construction or installation:

    (a) Synthetic liners and covers to ensure tight seams and joints and the absence of tears, punctures, or blisters; and

    (b) Soil-based and admixed liners and covers for imperfections including lenses, cracks, channels, root holes, or other structural non-uniformities that may cause an increase in the permeability of the liner or cover;

  (3) While a landfill is in operation, inspect the landfill weekly and after storms to detect evidence of any of the following:

    (a) Deterioration, malfunctions, or improper operation of run-on and run-off control systems;

    (b) The presence of liquids in leak detection systems;

    (c) Proper functioning of wind dispersal control system, when present; and

    (d) The presence of leachate in and proper functioning of leachate collection and removal systems, when present; and

  (4) For a landfill required to have a leak detection system under §B(3) or (4) of this regulation:

    (a) During the active life and closure period of the landfill, record the amount of liquids removed from each leak detection sump at least once each week; and

    (b) After the final cover is installed, record the amount of liquid removed from each leak detection system sump in accordance with the schedule specified in 40 CFR §264.303(c), substituting “Secretary” for “Regional Administrator”.

D. Leachate Collection and Removal System and Leak Detection.

  (1) This section establishes requirements for a leachate collection and removal system required by §B(3) of this regulation.

  (2) A leachate collection and removal system identified in §D(1) of this regulation is:

    (a) Also a leak detection system; and

    (b) Required to be capable of detecting, collecting, and removing leaks of hazardous constituents at the earliest practicable time through all areas of the top liner likely to be exposed to waste or leachate during the active life and post-closure care period.

  (3) Except as provided in §B(4) of this regulation, the owner or operator shall ensure that a leak detection system is, at a minimum, designed, constructed, and operated in compliance with the requirements of 40 CFR §264.301(c)(3)(i)—(v), (4), and (5).

E. Action Leakage Rate.

  (1) This section establishes requirements concerning the maximum design flow rate that the leak detection system required by §B(3) or (4) of this regulation can remove without the fluid level on the bottom of the liner exceeding 1 foot.

  (2) For the purposes of this section, “action leakage rate” means the maximum design flow rate described in §E(1) of this regulation.

  (3) The owner or operator shall provide the Department with information that the Department considers necessary for the specification of a valid action leakage rate that incorporates an adequate margin of safety to allow for uncertainties, as described in §E(4) of this regulation.

  (4) For a landfill subject to §B(3) of this regulation, the Department shall specify an action leakage rate that:

    (a) Includes an adequate safety margin, considering:

      (i) Uncertainties in the design, construction, operation, and location of the leak detection system;

      (ii) The characteristics of the waste and leachate;

      (iii) The likelihood that other sources may contribute to liquids in the leak detection system, and the amounts of these liquids from other sources; and

      (iv) Proposed response actions; and

    (b) If exceeded, obligates the owner or operator to respond as provided in §F of this regulation.

  (5) To determine if the action leakage rate has been exceeded, the owner or operator shall:

    (a) Convert the weekly or monthly flow rate from the monitoring data obtained in accordance with §C(4) of this regulation to an average daily flow rate in gallons per acre per day for each sump; and

    (b) Unless the Department approves a different calculation, calculate the average daily flow rate for each sump:

      (i) Each week, during the active life and closure period; and

      (ii) Monthly during the post-closure care period if monthly monitoring is required under 40 CFR §264.303(c).

F. Response Action Plan.

  (1) Before managing waste in a landfill subject to §B(3) or (4) of this regulation, the owner or operator shall:

    (a) Develop a response action plan that:

      (i) Specifies the actions that will be taken if the action leakage rate has been exceeded; and

      (ii) Meets the requirements of §F(2) of this regulation; and

    (b) Obtain the approval of the Department for the response action plan.

  (2) The owner or operator shall ensure that the response action plan:

    (a) At a minimum, describes the actions specified in 40 CFR §264.304(b), except that, in complying with 40 CFR §264.304(b), the owner or operator shall substitute “the Department” for “the Regional Administrator”; and

    (b) Incorporates the procedures in 40 CFR §264.304(c).

  (3) If the action leakage rate specified under §E of this regulation is exceeded, the owner or operator shall respond as specified in the approved response action plan.

G.—H. (Reserved)

I. Surveying and Record keeping. The owner or operator of a landfill shall maintain the following items in the operating record required under Regulation .05D:

  (1) On a map, the exact location and dimensions, including depth of each cell with respect to permanently surveyed benchmarks; and

  (2) The contents of each cell and the approximate location of each hazardous waste type within each cell.

J. Closure and Post-Closure Care.

  (1) At final closure of the landfill or upon closure of any cell the owner or operator shall cover the landfill or cell with a final cover designed and constructed to:

    (a) Provide long-term minimization of migration of liquids through the closed landfill;

    (b) Function with minimum maintenance;

    (c) Promote drainage and minimize erosion or abrasion of the cover;

    (d) Accommodate settling and subsidence so that the cover's integrity is maintained; and

    (e) Have a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present.

  (2) After final closure, the owner or operator shall comply with all post-closure requirements, contained in Regulation .07G—J of this chapter, including maintenance and monitoring throughout the post-closure care period. The owner or operator shall:

    (a) Maintain the integrity and effectiveness of the final cover, including making repairs to the cap as necessary to correct the effects of settling, subsidence, erosion, or other events;

    (b) Continue to operate the leachate collection and removal system:

      (i) During post-closure period; or

      (ii) Until leachate is no longer detected;

    (c) Maintain and monitor the ground water monitoring system and comply with all other applicable requirements of Regulations .06—.06-7 of this chapter;

    (d) Prevent run-on and run-off from eroding or otherwise damaging the final cover;

    (e) Protect and maintain surveyed benchmarks used in complying with §I of this regulation;

    (f) Maintain and monitor the leak detection system in accordance with 40 CFR §264.301(c)(3)(iv) and §C(4) of this regulation; and

    (g) Comply with all applicable leak detection system requirements of this chapter.

K. Reserved.

L. Special Requirements for Ignitable or Reactive Waste.

  (1) Except as provided in §L(1)(b) of this regulation, a person may not place ignitable or reactive waste in a landfill, unless the waste is treated, rendered, or mixed before or immediately after placement in the landfill so that:

    (a) The resulting waste, mixture, or dissolution of material no longer meets the definition of ignitable or reactive waste under COMAR 26.13.02.11 or .13; and

    (b) Regulation .02H(2) of this chapter is complied with.

  (2) Except for prohibited wastes as described in COMAR 26.13.09.02B that remain subject to treatment standards in 40 CFR Part 268, Subpart D, a person may place a container of an ignitable waste in a landfill without meeting the requirements of §L(1) of this regulation if the waste is:

    (a) Disposed of in a manner that protects the waste from any materials or conditions that may cause the waste to ignite;

    (b) Contained within a nonleaking container;

    (c) Carefully handled and placed so as to avoid heat, sparks, rupture, or any other condition that might cause ignition of the waste;

    (d) Covered daily with soil or other noncombustible material to minimize the potential for ignition of the waste; and

    (e) Not disposed of in cells that contain or will contain other wastes that that may generate heat sufficient to cause ignition of the waste.

M. Special Requirements for Incompatible Wastes. Incompatible wastes, or incompatible wastes and materials (see Regulation .24 of this chapter for example), may not be placed in the same landfill cell, unless Regulation .02H(2) of this chapter is complied with.

N. Special Requirements for Liquid Waste.

  (1) Liquids in Landfills Prohibition.

    (a) A person may not place waste which contains free liquids in a landfill, including bulk waste, non-containerized waste, or waste in containers.

    (b) The prohibition of §N(1)(a) of this regulation applies regardless of whether sorbents have been added to the waste.

  (2) To demonstrate the absence or presence of free liquids, a person shall use Method 9095, Paint Filter Liquids Test, as described in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”, EPA Publication SW-846, which is incorporated by reference in COMAR 26.13.01.05A(4).

  (3) A person may not use a sorbent to eliminate free liquids from a waste that is to be disposed of in a landfill unless the sorbent meets the requirements of 40 CFR §264.314(d).

O. Special Requirements for Containers. Unless the containers are very small, such as ampules, an owner or operator shall ensure that containers are:

  (1) At least 90 percent full when placed in a landfill; or

  (2) Crushed, shredded, or similarly reduced in volume to the maximum extent practicable before burial in a landfill.

P. Special Requirements for Hazardous Wastes F020, F021, F022, F023, F026, and F027.

  (1) Hazardous Wastes F020, F021, F022, F023, F026, and F027 may not be placed in a landfill unless the owner or operator operates the landfill in accord with a management plan for these wastes that is approved by the Secretary under the standards set out in this section, and in accord with all other applicable requirements of this chapter. The factors to be considered are:

    (a) The volume, physical, and chemical characteristics of the wastes including their potential to migrate through the soil or to volatilize or escape into the atmosphere;

    (b) The attenuative properties of underlying and surrounding soils or other materials;

    (c) The mobilizing properties of other materials co-disposed with these wastes; and

    (d) The effectiveness of additional treatment, design, or monitoring requirements.

  (2) The Secretary may determine that additional design, operating, and monitoring requirements are necessary for landfills managing hazardous wastes F020, F021, F022, F023, F026, and F027 in order to reduce the possibility of migration of these wastes to ground water, surface water, or air so as to protect human health and the environment.

#### Regulation .15 Repealed.

*COMAR 26.13.05.15*

#### Regulation .16 Thermal Destruction of Hazardous Waste.

*COMAR 26.13.05.16*

A. Definitions.

  (1) As used in this regulation and in COMAR 26.13.07.22, the following terms have the meanings indicated.

  (2) “Acute hazardous waste” means hazardous waste that is classified pursuant to COMAR 26.13.02.19 as acute hazardous waste, except for quantities that satisfy the small quantity exclusion in COMAR 26.13.02.05C.

  (3) “Electric generating station” means a fuel burning facility constructed or operated by an electric company that provides electric energy for public consumption and whose activities are controlled by the Public Service Commission under Article 78, Annotated Code of Maryland.

  (4) “Installation” means any article, machine, equipment, or other contrivance, including, but not limited to, emission control equipment, processing equipment, manufacturing equipment, fuel burning equipment, incinerators, or any equipment or construction, capable of generating, causing, or reducing emissions, as defined in COMAR 26.11.01.01B(19).

  (5) “Installation that has an air quality permit to operate” means an installation subject to COMAR 26.11.02.13 for which an air quality permit to operate has been issued.

  (6) “Small quantity hazardous waste” means hazardous waste that satisfies the small quantity exclusion at COMAR 26.13.02.05C, except for polychlorinated biphenyls (PCBs).

B. Applicability.

  (1) This regulation applies to owners and operators of installations used to thermally destroy hazardous waste, except as Regulation .01 of this chapter provides otherwise. The following facility owners and operators are examples of persons considered to thermally destroy hazardous waste:

    (a) Owners or operators of hazardous waste incinerators as defined by COMAR 26.13.01.03; or

    (b) Owners or operators who burn hazardous waste in boilers or in industrial furnaces in order to destroy the wastes.

  (2) After consideration of the waste analysis included with the permit application, the Department, in establishing the permit conditions, will exempt the applicant from all requirements of this regulation except §§C, D, F(3), (4) and (5), H, and L if the:

    (a) Department finds that the waste to be burned is:

      (i) Listed as a hazardous waste in COMAR 26.13.02.15—.19 solely because it is ignitable (Hazard Code I), corrosive (Hazard Code C), or both;

      (ii) Listed as a hazardous waste in COMAR 26.13.02.15—.19 solely because it is reactive (Hazard Code R) for characteristics other than those listed in COMAR 26.13.02.13A(4) and (5), and will not be burned when other hazardous wastes are present in the combustion zone;

      (iii) A hazardous waste solely because it possesses the characteristics of ignitability, corrosivity, or both, as determined by the test for characteristics of hazardous wastes under COMAR 26.13.02.11—.13; or

      (iv) A hazardous waste solely because it possesses any of the reactivity characteristics described by COMAR 26.13.02.13A(1)—(3) and (6)—(8), and will not be burned when other hazardous wastes are present in the combustion zone; and

    (b) Waste analysis shows that the waste contains none of the hazardous constituents listed in COMAR 26.13.02.24, which would reasonably be expected to be in the waste.

  (3) If the waste to be burned is one which is described by §B(2)(a)(i), (ii), (iii), or (iv) of this regulation, and contains insignificant concentration of the hazardous constituents listed in COMAR 26.13.02.24, then the Department may, in establishing permit conditions, exempt the applicant from all requirements of this regulation except §§C, D, F(3)—(5), H, and L, of this regulation, after consideration of the waste analysis included with the permit application, unless the Department finds that the waste will pose a threat to human health and the environment when burned in an incinerator.

  (4) The owner or operator of a hazardous waste incinerator may conduct trial burns subject only to the requirements of COMAR 26.13.07.17.

C. General Requirements.

  (1) Notwithstanding any other provision of this subtitle, a person who thermally destroys hazardous waste is subject to the requirements of this regulation. A person shall thermally destroy hazardous waste in accordance with the provisions of §C(2)—(4), of this regulation.

  (2) Except for small quantity hazardous waste, the following hazardous waste, if thermally destroyed, shall be thermally destroyed only in a hazardous waste incinerator that has been permitted under COMAR 26.13.07.02—.20 to thermally destroy hazardous waste:

    (a) Acute hazardous waste.

    (b) Hazardous waste, with a heating value of less than 6,000 Btu/lb.

    (c) Hazardous waste with a heating value of 6,000 Btu/lb. or greater, not used as a fuel for heat energy recovery, and containing material listed in COMAR 26.13.02.24.

    (d) Hazardous waste with a heating value of 6,000 Btu/lb. or greater containing a constituent or constituents having a heating value of less than 6,000 Btu/lb. unless the:

      (i) Applicant demonstrates to the satisfaction of the Department that it is unnecessarily costly to separate the waste; and

      (ii) Hazardous waste with a heating value of 6,000 Btu/lb. or greater does not contain more than 1 percent by volume of the constituent or constituents having a heating value of less than 6,000 Btu/lb. except that if the constituents having a heating value of less than 6,000 Btu/lb. is primarily water the volume may be greater than 1 percent. However, the Department reserves the right to limit the amount of water present in the hazardous waste to be thermally destroyed such that the flame temperature is not reduced to a level where incomplete combustion of the hazardous waste may be expected.

    (e) Hazardous waste or hazardous waste mixtures that the Department determines will create a public health or environmental hazard.

  (3) All other hazardous waste, if thermally destroyed, may be thermally destroyed in:

    (a) A hazardous waste incinerator permitted under COMAR 26.13.07.02—.20; or

    (b) Any of the following installations that have a limited facility permit under COMAR 26.13.07.22:

      (i) Industrial furnaces identified in COMAR 26.13.01; and

      (ii) Boilers, as defined in COMAR 26.13.01, that are identified as industrial boilers located on the site of a facility engaged in a manufacturing process where substances are transformed into new products, including the component parts of products, by mechanical or chemical processes; or utility boilers used to produce electric power, steam, heated or cooled air or other gases or fluids for sale.

  (4) A hazardous waste may not be thermally destroyed in a manner inconsistent with the provision contained in COMAR 26.13.10.02B(3).

  (5) The requirements of the Federal Toxic Substances Control Act, 15 U.S.C. §2505(e) (TOSCA), and regulations adopted under that Act, 40 CFR §761, shall take precedence over the requirements of this regulation concerning polychlorinated biphenyls (PCBs), to the extent that there is any inconsistency between them. A person may not thermally destroy PCBs except in compliance with the Toxic Substances Control Act, 15 U.S.C. 2601 (TOSCA), and COMAR 26.13.07.

D. Waste Analysis.

  (1) As a portion of the trial burn plan required by COMAR 26.13.07.17B, or with the permit application, the owner or operator shall include an analysis of the waste feed sufficient to provide all information required by COMAR 26.13.07.02-6 and .17B. Owners or operators of new hazardous waste incinerators shall provide the information required by COMAR 26.13.07.17C to the greatest extent possible.

  (2) Throughout normal operation the owner or operator shall conduct sufficient waste analysis to verify that waste feed to the hazardous waste incinerator is within the physical and chemical composition limits specified in his permit under §H(2) of this regulation.

E. Principal Organic Hazardous Constituents (POHCs).

  (1) Principal Organic Hazardous Constituents (POHCs) in the waste feed shall be treated to the extent required by the performance standard of §F of this regulation.

  (2) One or more POHCs will be specified in the facility's permit from among those constituents listed in COMAR 26.13.02.24, for each waste feed to be burned. This specification will be based on the degree of difficulty of incineration of the organic constituents in the waste and on their concentration or mass in the waste feed, considering the results of waste analyses and trial burns or alternative data submitted with the facility's permit application. Organic constituents which represent the greatest degree of difficulty of incineration will be those most likely to be designated as POHCs. Constituents are more likely to be designated as POHCs if they are present in large quantities or concentrations in the waste.

  (3) Trial POHCs will be designated for performance of trial burns in accordance with the procedure specified in COMAR 26.13.07.17B for obtaining trial burn permits.

F. Performance Standards. A hazardous waste incinerator burning hazardous waste shall be designed, constructed, and maintained so that when operated in accordance with operating requirements specified under §H of this regulation, it will meet the following performance standards:

  (1) Destruction and Removal Efficiency.

    (a) Except as provided in §F(1)(b) of this regulation, it shall achieve a destruction and removal efficiency (DRE) of 99.99 percent for each principal organic hazardous constituent (POHC) designated under §E, of this regulation, in its permit for each waste feed. DRE is determined for each POHC from the following equation:

    (b) An incinerator burning hazardous wastes F020, F021, F022, F023, F026, and F027 shall achieve a destruction and removal efficiency (DRE) of 99.9999 percent for each principal organic hazardous constituent (POHC) designated under §E of this regulation in its permit. This performance shall be demonstrated on POHCs that are more difficult to incinerate than tetra-, penta-, and hexachlorodibenzo-p-dioxins and dibenzofurans. DRE is determined for each POHC from the equation in §F(1)(a) of this regulation. In addition, the owner or operator of the incinerator shall notify the Secretary of his intent to incinerate hazardous wastes F020, F021, F022, F023, F026, and F027.

  (2) When producing stack emissions of more than 1.8 kilograms per hour (4 pounds per hour) of hydrogen chloride (HCl), it shall control HCl emissions such that the rate of emission is not greater than the larger of either 1.8 kilograms per hour or 1 percent of the HCl in the stack gas prior to entering any pollution control equipment.

  (3) It may not emit particulate matter in excess of 68.7 milligrams per dry standard cubic meter (0.030 grain per dry standard cubic foot) when corrected as provided for at COMAR 26.11.08.05.

  (4) Visible Emissions Standard.

    (a) A person may not cause or permit the discharge of emissions from a hazardous waste incinerator that violate the visible emissions standards in COMAR 26.11.08.04.

    (b) A person may apply for an exception to the visible emission standard in §F(4)(a) of this regulation, using the procedures in COMAR 26.11.01.08.

  (5) As provided in COMAR 26.11.08, hazardous waste incinerators are subject to all applicable substantive requirements of COMAR 26.11.02.12 for New Source Review (NSR) and Prevention of Significant Deterioration (PSD) Sources.

  (6) For purposes of permit enforcement, compliance with the operating requirements specified in the permit under §H, of this regulation, will be regarded as compliance with this section. However, evidence that compliance with those permit conditions is insufficient to ensure compliance with the performance requirements of this section may be information justifying modification, revocation, or reissuance of a permit under COMAR 26.13.07.11 or .20—.20-6.

G. Hazardous Waste Incinerator Permits.

  (1) The owner or operator of a hazardous waste incinerator shall burn only wastes specified in his permit and only under operating conditions specified for those wastes under §H of this regulation, except:

    (a) In approved trial burns under COMAR 26.13.07.17B; or

    (b) Under exemptions created by §B of this regulation.

  (2) Other hazardous wastes shall be burned only after operating conditions have been specified in a new permit or a permit modification as applicable. Operating requirements for new wastes shall be based on either trial burn results or alternative data included with a permit application.

  (3) The permit for a new hazardous waste incinerator shall establish appropriate conditions for each of the applicable requirements of this section, including but not limited to allowable waste feeds and operating conditions necessary to meet the requirements of §H, of this regulation, sufficient to comply with the following standards:

    (a) For the period beginning with initial introduction of hazardous waste to the incinerator and ending with initiation of the trial burn, and only for the minimum time required to establish operating conditions required in §G(3)(b), of this regulation, not to exceed a duration of 720 hours operating time for incineration of hazardous waste, the operating requirements shall be those most likely to ensure compliance with the performance standards of §F, of this regulation, based on the Department's engineering judgment. The Department may extend the duration of this period once for up to 720 additional hours when good cause for the extension is demonstrated by the applicant.

    (b) For the duration of the trial burn, the operating requirements shall be sufficient to demonstrate compliance with the performance standards of §F of this regulation, and shall be in accordance with the approved trial burn plan.

    (c) For the period immediately following completion of the trial burn, and only for the minimum period sufficient to allow sample analysis, data computation, and submission of the trial burn results by the applicant, and review of the trial burn results and modification of the facility permit by the Department, the operating requirements shall be those most likely to ensure compliance with the performance standards of §F based on the Department's engineering judgment.

    (d) For the remaining duration of the permit, the operating requirements shall be those demonstrated, in a trial burn or by alternative data specified in the permit application, as sufficient to ensure compliance with the performance standards of §F of this regulation.

H. Operating Requirements.

  (1) A hazardous waste incinerator shall be operated in accordance with operating requirements specified in the permits. These will be specified on a case-by-case basis as those demonstrated (in a trial burn or in alternative data as specified in §G(2) of this regulation, and included in a facility's permit application) to be sufficient to comply with the performance standards of §F of this regulation.

  (2) Each set of operating requirements will specify the composition of the waste feed, including acceptable variations in the physical or chemical properties of the waste feed which do not affect compliance with the performance requirements of §F ,of this regulation, to which the operating requirements apply. For such waste feed, the permit will specify acceptable operating limits including the following conditions:

    (a) Carbon monoxide (CO) level in the stack exhaust gas;

    (b) Waste feed rate;

    (c) Combustion temperature;

    (d) An appropriate indicator of combustion gas velocity;

    (e) Allowable variations in incinerator system design or operating procedures; and

    (f) Such other operating requirements as are necessary to ensure that the performance standards of §F are met.

  (3) During start-up and shut-down of a hazardous waste incinerator, hazardous waste, except wastes exempted in accordance with §B, of this regulation, may not be fed into the incinerator unless the incinerator is operating within the conditions of operation (temperature, air feed rate, etc.) specified in the permit.

  (4) Fugitive emissions from the combustion zone shall be controlled by:

    (a) Keeping the combustion zone totally sealed against fugitive emissions;

    (b) Maintaining a combustion zone pressure lower than atmospheric pressure; or

    (c) An alternate means of control demonstrated (with the permit application) to provide fugitive emissions control equivalent to maintenance of combustion zone pressure lower than atmospheric pressure.

  (5) A hazardous waste incinerator shall be operated with a functioning system to automatically cut off waste feed to the incinerator when operating conditions deviate from limits established under §H(1) of this regulation.

  (6) A hazardous waste incinerator shall cease operation when changes in waste feed, incinerator design, or operating conditions exceed limits designated in its permit.

I. Monitoring and Inspections.

  (1) The owner or operator shall conduct, as a minimum, the following monitoring while incinerating hazardous waste:

    (a) Combustion temperature, waste feed rate, and the indicator of combustion gas velocity specified in the facility permit shall be monitored on a continuous basis;

    (b) CO shall be monitored on a continuous basis at a point in the hazardous waste incinerator downstream of the combustion zone and before release to the atmosphere;

    (c) Upon request by the Department, sampling and analysis of the waste and exhaust emissions shall be conducted to verify that the operating requirements established in the permit achieve the performance standards of §F of this regulation.

  (2) The hazardous waste incinerator and associated equipment (pumps, valves, conveyors, pipes, etc.) shall be subjected to thorough visual inspection, at least daily, for leaks, spills, fugitive emissions, and signs of tampering.

  (3) The emergency waste feed cutoff system and associated alarms shall be tested at least weekly to verify operability, unless the applicant demonstrates to the Department that weekly inspections will unduly restrict or upset operations and that less frequent inspection will be adequate. At a minimum, operational testing shall be conducted at least monthly.

  (4) This monitoring and inspection data shall be recorded and the records shall be placed in the operating log required by Regulation .05D of this chapter.

J.—K. (Reserved)

L. Closure. At closure, the owner or operator shall remove all hazardous waste and hazardous waste residues (including but not limited to ash, scrubber waters, and scrubber sludges) from the incinerator site.

M. Existing Hazardous Waste Incinerators. Not later than 6 months after the effective date of this regulation, the owner or operator of any existing hazardous waste incinerator shall submit a completed permit application for that hazardous waste incinerator, as provided for in COMAR 26.13.07.02—.19, or cease to operate the incinerator.

#### Regulation .16-1 Miscellaneous Units.

*COMAR 26.13.05.16-1*

A. Applicability. The requirements in this regulation apply to owners and operators of facilities that treat, store, or dispose of hazardous waste in miscellaneous units, except as Regulation .01 of this chapter provides otherwise.

B. Environmental Performance Standards.

  (1) A miscellaneous unit shall be located, designed, constructed, operated, maintained, and closed in a manner that will ensure protection of human health and the environment.

  (2) Permits for miscellaneous units are to contain such terms and provisions as necessary to protect human health and the environment, including, but not limited to, as appropriate:

    (a) Design and operating requirements;

    (b) Detection and monitoring requirements;

    (c) Requirements for responses to releases of hazardous waste or hazardous constituents from the unit; and

    (d) All applicable requirements of Regulations .09 — .14 and .16 of this chapter, and COMAR 26.13.07 that are appropriate for the miscellaneous unit being permitted.

  (3) For the purposes of §B(2), of this regulation, protection of human health and the environment includes, but is not limited to, prevention of any releases that may have adverse effects on human health or the environment due to migration of waste constituents in:

    (a) The ground water or subsurface environment, considering the:

      (i) Volume and physical and chemical characteristics of the waste in the unit, including its potential for migration through soil, liners, or other containing structures;

      (ii) Hydrologic and geologic characteristics of the unit and the surrounding area;

      (iii) Existing quality of ground water, including other sources of contamination and their cumulative impact on the ground water;

      (iv) Quantity and direction of ground water flow;

      (v) Proximity to and withdrawal rates of current and potential ground water users;

      (vi) Patterns of land use in the region;

      (vii) Potential for deposition or migration of waste constituents into subsurface physical structures, and into the root zone of food-chain crops and other vegetation;

      (viii) Potential for health risks caused by human exposure to waste constituents; and

      (ix) Potential for damage to domestic animals, wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents;

    (b) Surface water, wetlands, or on the soil surface, considering the:

      (i) Volume and physical and chemical characteristics of the waste in the unit;

      (ii) Effectiveness and reliability of containing, confining, and collecting systems and structures in preventing migration;

      (iii) Hydrologic characteristics of the unit and the surrounding area, including the topography of the land around the unit;

      (iv) Patterns of precipitation in the region;

      (v) Quantity, quality, and direction of ground water flow;

      (vi) Proximity of the unit to surface waters;

      (vii) Current and potential uses of nearby surface waters and any water quality standards established for those surface waters;

      (viii) Existing quality of surface waters and surface soils, including other sources of contamination and their cumulative impact on surface waters and surface soils;

      (ix) Patterns of land use in the region;

      (x) Potential for health risks caused by human exposure to waste constituents; and

      (xi) Potential for damage to domestic animals, wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents;

    (c) The air, considering the:

      (i) Volume and physical and chemical characteristics of the waste in the unit, including its potential for the emission and dispersal of gases, aerosols, and particulates;

      (ii) Effectiveness and reliability of systems and structures to reduce or prevent emissions of hazardous constituents to the air;

      (iii) Operating characteristics of the unit;

      (iv) Atmospheric, meteorologic, and topographic characteristics of the unit and the surrounding area;

      (v) Existing quality of the air, including other sources of contamination and their cumulative impact on the air;

      (vi) Potential for health risks caused by human exposure to waste constituents; and

      (vii) Potential for damage to domestic animals, wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents.

C. Monitoring, Analysis, Inspection, Response, Reporting, and Corrective Action. Monitoring, testing, analytical data, inspection, response, and reporting procedures and frequencies shall ensure compliance with Regulations .02F, .03D, .05F—H, .06-7, and .16-1B of this chapter, as well as meet any additional requirements needed to protect human health and the environment as specified in the permit.

D. Post-Closure Care. A miscellaneous unit that is a disposal unit shall be maintained in a manner that complies with §B of this regulation during the post-closure care period. In addition, if a treatment or storage unit has contaminated soils or ground water that cannot be completely removed or decontaminated during closure, then that unit shall also meet the requirements of §B of this regulation during post-closure care. The post-closure plan under Regulation .07H of this chapter shall specify the procedures that will be used to satisfy this requirement.

#### Regulation .17 Repealed.

*COMAR 26.13.05.17*

#### Regulation .17-1 General Requirements for Drip Pads.

*COMAR 26.13.05.17-1*

A. Applicability.

  (1) The requirements of this regulation and Regulations .17-2—.17-4 of this chapter apply to owners and operators of facilities that use new or existing drip pads to convey treated wood drippage, precipitation, or surface water run-off to an associated collection system.

  (2) For the purposes of this regulation and Regulations .17-2—.17-4 of this chapter:

    (a) “Existing drip pad” means a drip pad which is used to manage hazardous waste:

      (i) Having a waste code of F032 which has been constructed before December 6, 1990;

      (ii) Having a waste code of F032 and for which the owner or operator had a design and had entered into binding financial or other agreements for construction before December 6, 1990; or

      (iii) That is not used to manage waste with waste code F032, and which either has been constructed by September 10, 1997, or the owner or operator had a design and had entered into binding financial or other agreements for construction before September 10, 1997; and

    (b) “New drip pad” means a drip pad that is not an existing drip pad.

  (3) Requirement for Leak Collection System. For a drip pad used to manage hazardous waste:

    (a) Having waste code F032, the requirement of Regulation .17-2C(6) and (7) of this chapter to install a leak collection system applies only if:

      (i) The drip pad is constructed after December 24, 1992, except for a drip pad constructed after December 24, 1992 for which the owner or operator had a design and had entered into binding financial or other agreements for construction before December 24, 1992; and

      (ii) The owner or operator has not complied with the requirements of Regulation .17-2A(2) of this chapter concerning drip pad permeability;

    (b) That is not used to manage waste with waste code F032, the requirement of Regulation .17-2C(6) and (7) of this chapter to install a leak collection system applies only to a drip pad:

      (i) That is constructed after September 10, 1997, except for a drip pad constructed after September 10, 1997 for which the owner or operator had a design and had entered into binding financial or other agreements for construction before September 10, 1997; and

      (ii) For which the owner or operator has not complied with the requirements of Regulation .17-2A(2) of this chapter concerning drip pad permeability.

  (4) The owner or operator of a drip pad that is inside or under a structure that provides protection from precipitation so that neither run-off nor run-on is generated is not subject to regulation under Regulation .17-2D(3)(a) or (b) of this chapter, as appropriate.

  (5) The requirements of this regulation and Regulations .17-2—.17-4 of this chapter are not applicable to the management of infrequent and incidental drippage in storage yards if the owner or operator:

    (a) Maintains and complies with a written contingency plan that describes what actions the owner or operator shall take to immediately respond to the discharge of infrequent and incidental drippage;

    (b) Implements the contingency plan required by §A(5)(a) of this regulation within:

      (i) One consecutive working day of the occurrence of the drippage when the facility is in operation and is treating wood; or

      (ii) 72 hours of the occurrence when the facility is not in operation and is not treating wood; and

    (c) Assures that, at a minimum, the contingency plan required by §A(5)(a) of this regulation describes how the owner or operator will:

      (i) Clean up the drippage;

      (ii) Document the cleanup of the drippage;

      (iii) Retain documents regarding cleanup for 3 years; and

      (iv) Manage the contaminated media resulting from infrequent and incidental drippage in a manner consistent with applicable laws and regulations.

B. Assessment of Existing Drip Pad Integrity.

  (1) Evaluation of Existing Drip Pad. The owner or operator shall:

    (a) Evaluate each existing drip pad, as defined in §A(2)(a) of this regulation, and determine whether it meets all of the requirements of this regulation and Regulations .17-2—.17-4 of this chapter, except the requirements for liners and leak detection systems of Regulation .17-2C of this chapter;

    (b) Have obtained and shall keep on file at the facility a written assessment of the drip pad that documents the extent to which the drip pad meets each of the design and operating standards of Regulation .17-2 of this chapter, except for the standards for liners and leak detection systems specified in Regulation .17-2C of this chapter;

    (c) Assure that the assessment required by §B(1)(b) of this regulation:

      (i) Has been reviewed and certified by an independent qualified registered professional engineer that attests to the results of the evaluation; and

      (ii) Is reviewed, updated, and recertified annually until all upgrades, repairs, or modifications necessary to achieve compliance with all of the standards of Regulation .17-2 of this chapter are complete.

  (2) Written Plan. The owner or operator of an existing drip pad, who intends to upgrade, repair, and modify the drip pad so that it meets the requirements of Regulation .17-2C of this chapter, shall:

    (a) Develop a written plan for upgrading, repairing, and modifying the drip pad to meet the requirements of Regulation .17-2C of this chapter, and submit the plan, to the Secretary, not later than 2 years before the date that all repairs, upgrades, and modifications are scheduled to be complete;

    (b) Describe in the written plan required by §B(2)(a) of this regulation all changes to be made to the drip pad in sufficient detail to document compliance with all the requirements of Regulation .17-2 of this chapter; and

    (c) Have the written plan required by §B(2)(a) of this regulation reviewed and certified by an independent qualified registered professional engineer.

  (3) Upon completion of all upgrades, repairs, and modifications determined to be necessary as a result of the assessment required by this section, the owner or operator shall submit, to the Secretary, the as-built drawings for the drip pad and a certification by an independent qualified registered professional engineer attesting that the drip pad conforms to the drawings.

  (4) If a drip pad is found to be leaking or unfit for use, the owner or operator shall comply with the provisions of Regulation .17-2I of this chapter or close the drip pad in accordance with Regulation .17-4 of this chapter.

C. Design and Installation of New Drip Pads.

  (1) Except as provided in §C(2) of this regulation, the owner and operator of a new drip pad shall ensure that the pad is designed, installed, and operated in accordance with all of the requirements of Regulations .17-2—.17-4 of this chapter.

  (2) The owner and operator of a new drip pad shall either:

    (a) Comply with:

      (i) Regulation .17-2A(2) of this chapter concerning drip pad permeability; and

      (ii) Regulation .17-2B of this chapter concerning assessment of the drip pad; or

    (b) Install a liner and leakage detection and collection system that meets the requirements of Regulation .17-2C of this chapter.

D. General Requirements for Existing Drip Pads. The owner or operator of an existing drip pad shall either:

  (1) Comply with Regulation .17-2A(2) of this chapter concerning drip pad permeability; or

  (2) Install a liner and leakage detection and collection system that meets the requirements of Regulation .17-2C of this chapter.

#### Regulation .17-2 Design and Operating Requirements.

*COMAR 26.13.05.17-2*

A. The owner or operator of a drip pad shall ensure that:

  (1) The drip pad:

    (a) Is constructed of non-earthen materials, excluding wood and non-structurally supported asphalt;

    (b) Is sloped to efficiently drain treated wood drippage, rain and other waters, or solutions of drippage and water or other wastes to the associated collection system; and

    (c) Has a curb or berm around the perimeter;

  (2) For an existing drip pad which does not satisfy the requirements of §C of this regulation, and for a new drip pad for which the owner or operator has elected to comply with this provision, as provided in Regulation .17-1C(2)(a) of this chapter, the surface material of the drip pad:

    (a) Has a hydraulic conductivity of less than or equal to 1X10-7 centimeters per second by, for example, sealing, coating, or covering a concrete drip pad with a surface material with a hydraulic conductivity of less than or equal to 1X10-7 centimeters per second, so that the entire surface where drippage occurs or may run across is capable of containing the drippage and mixtures of drippage and precipitation, materials, or other wastes while being routed to an associated collection system;

    (b) Is maintained free of cracks and gaps that could adversely affect its ability to contain liquids; and

    (c) Is chemically compatible with the preservatives that contact the drip pad; and

  (3) The drip pad is of sufficient structural strength and thickness to prevent failure due to:

    (a) Physical contact;

    (b) Climatic conditions;

    (c) Stresses associated with daily operations such as vehicular traffic and movement of wood;

    (d) The stress of installation; and

    (e) Any other relevant factors.

B. Written Assessment. If, as provided in Regulation .17-1C(2)(a) of this chapter, the owner or operator elects to comply with the requirements of §A(2) of this regulation, the owner or operator shall also:

  (1) Obtain and keep on file at the facility a written assessment of the drip pad that evaluates the extent to which the drip pad meets the design and operating standards of this regulation, except for the requirements of §C of this regulation; and

  (2) Have the assessment required by §B(1) of this regulation:

    (a) Reviewed and certified by an independent, qualified registered professional engineer that attests to the results of the evaluation; and

    (b) Updated, reviewed, and recertified annually.

C. The owner or operator of a drip pad who has chosen to install a liner and leakage detection and collection system, as provided in Regulation .17-1C(2)(b) of this chapter or Regulation .17-1D(1) of this chapter, shall ensure that the system complies with the following:

  (1) A synthetic liner, which is designed, constructed, and installed to prevent leakage from the drip pad into surface water, ground water, or adjacent subsurface soil at any time during the active life and closure period of the drip pad, is installed below the drip pad;

  (2) The liner required by §C(1) of this regulation is constructed of materials that will prevent waste from being absorbed into the liner and that will prevent releases into surface water, ground water, or adjacent subsurface soil during the active life of the facility;

  (3) The liner required by §C(1) of this regulation is:

    (a) Constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to:

      (i) Pressure gradients such as static head and external hydrogeologic forces;

      (ii) Physical contact with the waste or with drip pad leakage;

      (iii) Climatic conditions;

      (iv) The stress of installation; and

      (v) The stress of daily operation, including stresses from vehicular traffic on the drip pad;

    (b) Placed upon a foundation or base capable of:

      (i) Providing support to the liner;

      (ii) Providing resistance to pressure gradients above and below the liner; and

      (iii) Preventing failure of the liner due to settlement, compression, or uplift; and

    (c) Installed to cover all surrounding earth that could come in contact with the waste or leakage;

  (4) There is a leakage detection system immediately above the liner that is designed, constructed, maintained, and operated to detect leakage from the drip pad;

  (5) The leakage detection system required by §C(4) of this regulation is:

    (a) Constructed of materials that are:

      (i) Chemically resistant to the waste managed in the drip pad and the leakage that might be generated; and

      (ii) Of sufficient strength and thickness to prevent collapse under the pressures exerted by overlaying materials and by any equipment used at the drip pad;

    (b) Designed and operated to function without clogging through the scheduled closure of the drip pad; and

    (c) Designed to detect the failure of the drip pad or the presence of a release of hazardous waste or accumulated liquid at the earliest practicable time;

  (6) There is a leakage collection system immediately above the liner that is designed, constructed, maintained, and operated to collect leakage from the drip pad so that it can be removed from below the drip pad; and

  (7) The date, time, and quantity of any leakage collected in and removed from the leakage collection system is documented in the facility operating log.

D. General Design and Operating Requirements. The owner or operator of a drip pad shall:

  (1) Maintain the drip pad so that it remains free of cracks, gaps, corrosion, or other deterioration that could cause hazardous waste to be released from the drip pad;

  (2) Ensure that the drip pad and associated collection system are designed and operated to convey, drain, and collect liquid resulting from drippage or precipitation in order to prevent run-off;

  (3) Unless the drip pad is protected by a structure, as described in Regulation .17-1A(4) of this chapter:

    (a) Either:

      (i) Design, construct, operate, and maintain a run-on control system capable of preventing flow onto the drip pad during peak discharge from at least a 24-hour, 25-year storm; or

      (ii) Assure that the run-on control system has sufficient excess capacity to contain any surface water run-off that might enter the system; and

    (b) Design, construct, operate, and maintain a run-off management system to collect and control at least the water volume resulting from a 24-hour, 25-year storm;

  (4) Remove drippage and accumulated precipitation from the associated collection system as necessary to prevent overflow onto the drip pad;

  (5) Ensure that collection and holding units associated with run-on and run-off control systems are emptied or otherwise managed as soon as possible after storms to maintain the design capacity of the system; and

  (6) Operate and maintain drip pads in a manner that minimizes tracking of hazardous waste or hazardous waste constituents off the drip pad as a result of activities by personnel or equipment.

E. The owner or operator shall:

  (1) Evaluate the drip pad to determine whether it meets the requirements of §§A—D(3) of this regulation; and

  (2) Obtain a statement from an independent qualified registered professional engineer certifying that the drip pad design meets the requirements of this regulation.

F. Cleaning Requirements.

  (1) The owner or operator of a drip pad shall:

    (a) Thoroughly clean the drip pad surface to remove accumulated residues of hazardous waste or other materials to allow weekly inspections of the entire drip pad surface without interference or hindrance from materials on the drip pad;

    (b) Document, in the facility's operating record, the date, time, and cleaning procedure used for each cleaning required by §F(1)(a) of this regulation; and

    (c) Determine if the residues resulting from each cleaning required in §F(1)(a) of this regulation are regulated as hazardous under COMAR 26.13.02 and, if so, manage them in accordance with COMAR 26.13.02—26.13.10, §3010 of RCRA, and applicable federal regulations.

  (2) In satisfying the cleaning requirement of §F(1) of this regulation, the owner or operator may clean the drip pad less frequently than once every 7 days, if doing so does not prevent unobscured viewing the drip pad surface during inspection.

G. After treated wood from pressure and nonpressure processes has been removed from the treatment vessel, the owner or operator shall ensure that it is held on the drip pad until drippage has ceased.

H. The owner or operator of a drip pad shall maintain records sufficient to document that all treated wood is held on the pad following treatment in accordance with §G of this regulation.

I. Response to Releases and Potential Releases.

  (1) Throughout the active life of the drip pad, and as specified in the facility's permit, upon detection of a release of hazardous waste, including discovery of leakage in the leak detection system, or upon detection of a condition that may have caused or has caused a release, the owner or operator shall:

    (a) Enter a record of the discovery in the facility operating log;

    (b) Immediately remove from service the affected portion of the drip pad;

    (c) Determine the steps that shall be taken to repair the drip pad and clean up any leakage from below the drip pad, and establish a schedule for accomplishing the repairs;

    (d) Within 24 hours after discovery of the release or the condition that may have caused the release, notify the Secretary of the situation; and

    (e) Within 10 working days after discovery of the release or the condition that may have caused the release, provide written notice to the Secretary with a plan describing the steps that will be taken to repair the drip pad and clean up any leakage, and a schedule for accomplishing this work.

  (2) The Secretary shall:

    (a) Review the information submitted;

    (b) Make a determination regarding whether the pad is to be removed from service completely or partially until repairs and clean up are complete; and

    (c) Notify the owner or operator of the determination and the underlying rationale in writing.

  (3) Upon completing all the repairs and implementing the clean up specified in the plan submitted in accordance with §I(1)(e) of this regulation, the owner or operator shall notify the Secretary in writing and provide a certification signed by an independent qualified registered professional engineer that the repairs and clean up have been completed according to the written plan.

J. The owner or operator shall maintain, as part of the facility operating log, documentation of past operating and waste handling practices, including:

  (1) Identification of preservative formulations used in the past;

  (2) A description of drippage management practices; and

  (3) A description of treated wood storage and handling practices.

#### Regulation .17-3 Inspections.

*COMAR 26.13.05.17-3*

A. During construction or installation, the owner or operator shall ensure that liners and cover systems such as membranes, sheets, or coatings are inspected for uniformity, damage, and imperfections such as holes, cracks, thin spots, or foreign materials.

B. Immediately after construction or installation, the owner or operator shall have the liners inspected and certified as meeting the requirements of Regulation .17-2 of this chapter by an independent qualified registered professional engineer.

C. The owner or operator shall maintain the certification required by §B of this regulation at the facility as part of the facility operating record.

D. After installation, the owner or operator shall:

  (1) Inspect liners and covers to ensure tight seams and joints, and the absence of tears, punctures, or blisters; and

  (2) Maintain a record of the results of the inspection.

E. Inspection During Operation.

  (1) While a drip pad is in operation, the owner or operator shall inspect drip pads weekly and after storms to detect evidence of any of the following:

    (a) Deterioration, malfunction, or improper operation of run-on and run-off control systems;

    (b) Presence of leakage within and proper functioning of leak detection systems; and

    (c) Deterioration or cracking of the drip pad surface.

  (2) If deterioration or leakage is detected, the owner or operator shall comply with the requirements of Regulation .17-2I of this chapter.

#### Regulation .17-4 Closure of Drip Pads.

*COMAR 26.13.05.17-4*

A. At closure, the owner or operator shall:

  (1) Remove or decontaminate:

    (a) All waste residues;

    (b) Contaminated containment system components such as the pad and the liners;

    (c) Contaminated subsoils; and

    (d) Structures and equipment contaminated with waste and leakage; and

  (2) Manage the waste listed in §A(1) of this regulation as hazardous waste.

B. The owner or operator shall close the facility and perform post-closure care in accordance with the closure and post-closure care requirements that apply to landfills in Regulation .14J of this chapter if the owner or operator:

  (1) Has removed or decontaminated all residues and made all reasonable efforts to effect removal of contaminated components, subsoils, structures, and equipment as required in §A of this regulation; and

  (2) Finds that not all contaminated subsoils can be practicably removed or decontaminated.

C. For permitted units required to close in accordance with §B of this regulation:

  (1) The requirement to have a permit continues throughout the post-closure period; and

  (2) The drip pad is considered to be a landfill for the purpose of closure, post-closure, and financial responsibility, and the owner or operator shall meet all of the requirements for landfills specified in Regulations .07 and .08 of this chapter.

D. The owner or operator of an existing drip pad, as defined in Regulation .17-1A of this chapter, that does not comply with the liner requirements of Regulation .17-2C(1)—(3) of this chapter, shall:

  (1) Include in the closure plan for the drip pad under Regulation .07C of this chapter both a plan for complying with §A of this regulation and a contingent plan for complying with §§B—C of this regulation, in case not all contaminated subsoils can be practicably removed at closure; and

  (2) Prepare a contingent post-closure plan under Regulation .07H of this chapter for complying with §§B—C of this regulation, in case not all contaminated subsoils can be practicably removed at closure.

E. For cost estimates calculated under Regulations .07 and .08 of this chapter for closure and post-closure care of a drip pad subject to §D of this regulation, the owner or operator:

  (1) Shall include the cost of complying with the contingent closure plan and the contingent post-closure plan; and

  (2) May exclude the cost of expected closure under §A of this regulation.

#### Regulation .18 Containment Buildings — Applicability.

*COMAR 26.13.05.18*

A. The requirements of this regulation and Regulations .18-1—.18-3 of this chapter apply to facility owners or operators who store or treat hazardous waste in units designed and operated under Regulations .18-1 and .18-2 of this chapter.

B. A facility owner or operator who stores or treats hazardous waste in a containment building is not considered to be engaged in land disposal under §3004(k) of RCRA in operating the containment building if the containment building:

  (1) Is designed and operated under Regulations .18-1 and .18-2 of this chapter;

  (2) Is a completely enclosed, self-supporting structure;

  (3) Is designed and constructed of manmade materials of sufficient strength and thickness to:

    (a) Support themselves, the waste contents, and any personnel and heavy equipment that operates within the unit; and

    (b) Prevent failure due to pressure gradients, settlement, compression, uplift, physical contact with the hazardous wastes to which the materials are exposed, climatic conditions, and the stresses of daily operation, including the movement of heavy equipment within the unit and contact of heavy equipment with containment walls;

  (4) Has a primary barrier that is designed to be sufficiently durable to withstand the movement of personnel, wastes, and handling equipment within the unit;

  (5) Has the following if the containment building is used to manage liquids:

    (a) A primary barrier designed and constructed of materials to prevent migration of hazardous constituents into the barrier;

    (b) A liquid collection system designed and constructed of materials to minimize the accumulation of liquid on the primary barrier; and

    (c) A secondary containment system that:

      (i) Has been designed and constructed of materials to prevent migration of hazardous constituents into the barrier of the secondary containment system; and

      (ii) Has a leak detection and liquid collection system capable of detecting, collecting, and removing leaks of hazardous constituents at the earliest practicable time;

  (6) Has controls sufficient to prevent fugitive dust emissions to meet the no-visible-emission standard in Regulation .18-2B(5)—(7) of this chapter; and

  (7) Is designed and operated to ensure containment and prevent the tracking of materials from the unit by personnel or equipment.

#### Regulation .18-1 Containment Buildings — Design Standards.

*COMAR 26.13.05.18-1*

A. The owner and operator of a containment building being used to manage hazardous waste shall assure that the containment building meets the following design standards:

  (1) The containment building is a structure completely enclosed with a floor, walls, and a roof to:

    (a) Prevent exposure of the interior to the elements, that is, precipitation, wind, and surface water run-on; and

    (b) Assure containment of managed wastes;

  (2) Except as provided in §A(3) of this regulation, the floor and containment walls of the unit, including a secondary containment system required under §B of this regulation have been designed and constructed of manmade materials in accordance with the following requirements:

    (a) The floor and containment walls are of sufficient strength and thickness to:

      (i) Support themselves, the waste contents, and any personnel and heavy equipment that operates within the unit; and

      (ii) Prevent failure due to pressure gradients, settlement, compression, uplift, physical contact with the hazardous wastes to which the materials are exposed, climatic conditions, and the stresses of daily operation, including the movement of heavy equipment within the unit and contact of heavy equipment with containment walls; and

      (iii) Have sufficient structural strength to prevent collapse or other failure; and

    (b) All surfaces in contact with hazardous wastes or intended to be in contact with hazardous wastes are chemically compatible with those wastes;

  (3) Lightweight doors and windows are not subject to the design requirements concerning structural strength in §A(1)—(2) of this regulation if:

    (a) The incorporation of the lightweight doors and windows into the design of the containment building is appropriate to the nature of the waste management operation to take place in the unit;

    (b) The lightweight doors and windows provide an effective barrier against fugitive dust emissions in accordance with the requirements of Regulation .18-2B(5)— (7) of this chapter; and

    (c) The containment building design and the way in which it is operated assures that wastes will not come in contact with these openings; and

  (4) The containment building has a primary barrier that is:

    (a) Designed to withstand the movement of personnel, waste, and handling equipment in the unit during the operating life of the unit; and

    (b) Appropriate for the physical and chemical characteristics of the waste to be managed.

B. Except as provided in §E of this regulation, the owner and operator of a containment building used to manage hazardous waste that contains free liquids or that is treated with free liquids shall assure that the containment building meets the following design standards:

  (1) The containment building includes a primary barrier designed and constructed of materials to prevent the migration of hazardous constituents into the barrier, such as, for example, a geomembrane covered by a concrete wear surface;

  (2) The containment building includes a liquid collection and removal system to minimize the accumulation of liquid on the primary barrier of the containment building;

  (3) The primary barrier required by §B(1) of this regulation is sloped to drain liquids to the associated collection system;

  (4) The system required by §B(2) of this regulation provides for the collection and removal of liquids and wastes at the earliest practicable time to minimize hydraulic head on the containment system;

  (5) The containment building includes:

    (a) A secondary containment system with a secondary barrier designed and constructed to prevent migration of hazardous constituents into the barrier; and

    (b) A leak detection system that is capable of detecting failure of the primary barrier and collecting accumulated hazardous wastes and liquids at the earliest practicable time;

  (6) The leak detection component of the secondary containment system required by §B(5)(b) of this regulation performs at least as well as a system that is, at a minimum:

    (a) Constructed with a bottom slope of 1 percent or more; and

    (b) Constructed of:

      (i) A granular drainage material with a hydraulic conductivity of 1 × 10-2 centimeters/second or more and a thickness of 12 inches (30.5 centimeters) or more; or

      (ii) Synthetic or geonet drainage materials with a transmissivity of 3 × 10-5 square meters/second or more;

  (7) If hazardous waste is to be treated in the containment building, each area in which hazardous waste treatment is conducted is designed to prevent the release of liquids, wet materials, or liquid aerosols to other portions of the building; and

  (8) The secondary containment system is constructed of materials that are:

    (a) Chemically resistant to the waste and liquids managed in the containment building; and

    (b) Of sufficient strength and thickness to prevent collapse under the pressure exerted by overlaying materials and by any equipment used in the containment building.

C. Determination of the Presence of Free Liquids. For the purposes of §B of this regulation, a person shall determine whether free liquids are present by:

  (1) The paint filter liquids test, Method 9095A of Test Methods for Evaluating Solid Waste, Physical/Chemical Methods EPA SW-846, which is incorporated by reference in COMAR 26.13.01.05A(4);

  (2) A visual examination; or

  (3) Another appropriate means acceptable to the Secretary.

D. For a containment building that contains areas both with and without secondary containment, the owner or operator shall assure that each area is designed in accordance with the requirements of this regulation.

E. Waiver of Secondary Containment Requirements. Notwithstanding any other provisions of this regulation and Regulations .18 and .18-2 of this chapter, the Secretary may waive the requirements for secondary containment for a permitted containment building if the owner or operator demonstrates that:

  (1) The only free liquids in the unit are limited amounts of liquids used to provide dust suppression required to meet occupational health and safety requirements; and

  (2) Containment of managed wastes and liquids can be assured without a secondary containment system.

F. Containment Building as an External Liner for a Tank. A person may use a containment building to serve as an external liner system for a tank for the purposes of providing secondary containment for the tank under Regulation .10-4D of this chapter if the containment building meets the requirements of Regulation .10-4B—C of this chapter.

#### Regulation .18-2 Containment Buildings — Operating Requirements.

*COMAR 26.13.05.18-2*

A. General. The owner or operator of a containment building shall use controls and practices to ensure containment of hazardous waste within the unit.

B. Measures to Ensure Containment. To ensure containment of hazardous waste within a containment building, the owner or operator of the containment building shall, at a minimum:

  (1) Maintain the primary barrier to be free of significant cracks, gaps, corrosion, or other deterioration that could cause hazardous waste to be released from the primary barrier;

  (2) Maintain the level of the hazardous waste being managed in the containment building within the containment walls of the unit so that the height of any containment wall is not exceeded;

  (3) Take measures to prevent the tracking of hazardous waste out of the containment building by personnel or by equipment used in handling the waste;

  (4) In preventing hazardous waste from being tracked out of the containment building:

    (a) Designate an area for the decontamination of equipment; and

    (b) Collect and properly manage any rinsate generated in decontaminating equipment;

  (5) Take measures to control fugitive dust emissions so that no opening of the containment building, such as doors, windows, vents, cracks, etc., exhibits any visible emissions;

  (6) Use sound air pollution control practices in operating and maintaining all particulate collection devices associated with control of fugitive dust emissions, such as fabric filters or electrostatic precipitators;

  (7) Maintain the state of no visible emissions required by §B(5) of this regulation effectively at all times during routine operating and maintenance conditions, including when vehicles and personnel are entering and exiting the unit; and

  (8) Assure that incompatible hazardous wastes or treatment reagents are not placed in the unit or its secondary containment system if the wastes or reagents could cause the unit or secondary containment system to leak, corrode, or otherwise fail.

Agency Note: See 40 CFR Part 60, Appendix A, Method 22—“Visual Determination of Fugitive Emissions from Material Sources and Smoke Emissions from Flares” for a method for determining whether there are visible emissions from a source.

C. Certification. The owner or operator shall:

  (1) Obtain a certification by a qualified registered professional engineer that the containment building design meets the requirements of Regulation .18-1 of this chapter and §§A and B of this regulation;

  (2) Obtain the certification required by §C(1) of this regulation before operating the containment building for the management of hazardous waste; and

  (3) Keep the certification required by §C(1) of this regulation on site.

D. Response to Releases of Hazardous Waste.

  (1) Throughout the active life of the containment building, if the owner or operator detects a condition that could lead to or has caused a release of hazardous waste, the owner or operator shall promptly repair the condition.

  (2) Upon detection of a condition that has led to a release of hazardous waste, such as detection of leakage from the primary barrier of a containment building, the owner or operator shall:

    (a) Enter a record of the discovery in the facility operating record;

    (b) Immediately remove from service the portion of the containment building affected by the condition;

    (c) Determine the steps that must be taken to repair the containment building;

    (d) Remove any leakage from the secondary collection system;

    (e) Establish a schedule for accomplishing cleanup of the release and repairs to the containment building;

    (f) Within 7 days after the discovery of the condition, notify the Secretary of the condition verbally or in writing; and

    (g) Within 14 working days after the discovery of the condition, provide to the Secretary, in writing, a:

      (i) Description of the steps taken to repair the containment building;

      (ii) Description of any additional steps needed to repair the containment building;

      (iii) Description of the steps required to perform any additional cleanup needed as a result of the release; and

      (iv) Schedule for accomplishing the work described in §D(2)(g)(i)—(iii) of this regulation.

  (3) The Secretary shall:

    (a) Review the information submitted in accordance with §D(2)(g) of this regulation;

    (b) Make a determination of whether the containment building shall be removed from service completely or partially until repairs and cleanup are completed; and

    (c) Provide the owner or operator with a written notification specifying the determination made in accordance with §D(3)(b) of this regulation and the underlying rationale for the determination.

  (4) Upon completing all repairs and cleanup performed in response to the release, the owner or operator shall:

    (a) Notify the Secretary in writing that the repairs and cleanup have been completed; and

    (b) Provide the Secretary with a verification signed by a qualified, registered professional engineer that the repairs and cleanup have been completed according to the written plan submitted in accordance with §D(2)(g) of this regulation.

E. Inspections. At least once every 7 days, the owner or operator shall:

  (1) Perform an inspection of the containment building to detect signs of releases of hazardous waste;

  (2) Include, as part of the inspection to detect releases of hazardous waste, evaluation of data gathered from:

    (i) Monitoring equipment;

    (ii) Leak detection equipment; and

    (iii) Observation of the containment building and the area immediately surrounding the containment building; and

  (3) Record, in the facility's operating record, data gathered in accordance with §E(2) of this regulation.

F. For a containment building that contains areas with secondary containment and areas without secondary containment, the owner or operator shall:

  (1) Operate each area in accordance with the requirements of this regulation;

  (2) Take measures to prevent the release of liquids or wet materials into areas without secondary containment; and

  (3) Maintain, in the facility's operating record, a written description of the operating procedures used to maintain the integrity of areas without secondary containment.

#### Regulation .18-3 Containment Buildings — Closure and Post-Closure Care.

*COMAR 26.13.05.18-3*

A. At closure of a containment building, the owner or operator shall:

  (1) Remove or decontaminate all waste residues, contaminated system components such as liners, contaminated subsoils, and structures and equipment contaminated with waste and leachate; and

  (2) Manage the removed materials and wastes generated in performing decontamination as hazardous waste unless COMAR 26.13.02.03D applies.

B. The owner or operator shall assure that the closure plan, closure activities, cost estimates for closure, and financial responsibility for containment buildings meet all of the requirements specified in Regulations .07 and .08 of this chapter.

C. If, after removing or decontaminating all residues and making all reasonable efforts to effect removal or decontamination of contaminated components, subsoils, structures, and equipment as required in §A of this regulation, the owner or operator finds that not all contaminated subsoils can be practicably removed or decontaminated:

  (1) The owner or operator shall close the facility and perform post-closure care in accordance with the closure and post-closure requirements that apply to landfills in Regulation .14J of this chapter; and

  (2) For the purposes of closure, post-closure, and financial responsibility, the containment building is then considered to be a landfill, and the owner or operator shall meet all of the requirements for landfills specified in Regulations .07 and .08 of this chapter.

#### Regulation .19 Underground Injection Control.

*COMAR 26.13.05.19*

A person may not dispose of hazardous waste by underground injection.

#### Regulation .20 Record-Keeping Instructions.

*COMAR 26.13.05.20*

A. The record-keeping provisions of Regulation .05D of this chapter specify that an owner or operator shall keep a written operating record at the facility. This regulation provides additional instructions for keeping portions of the operating record. See Regulation .05D(2) of this chapter for additional record-keeping requirements.

B. For each hazardous waste received, treated, stored, or disposed of at a facility, the owner or operator shall record the following information in the facility's operating record and maintain this information in the operating record until closure of the facility:

  (1) A description of the waste, including:

    (a) The common name of the waste and the EPA Hazardous Waste Number or Numbers from COMAR 26.13.02 which apply to the waste,

    (b) The waste's physical form, such as liquid, sludge, solid, or contained gas,

    (c) If the waste is not listed in COMAR 26.13.02.15 — .19, a description of the process that produced it, such as “solid filter cake from production of _________, EPA Hazardous Waste Code W051”, and

    (d) The EPA or State Hazardous Waste Number from COMAR 26.13.02.10—.19 that is associated with the waste, or, if the waste contains more than one listed hazardous waste or when more than one hazardous waste characteristic applies to the waste, all applicable EPA or State Hazardous Waste Numbers;

  (2) The estimated or manifest-reported weight, or volume and density, when applicable, in one of the units of measure specified in Table 1; and

  (3) The method or methods (by handling code or codes as specified in Table 2) and date or dates of treatment, storage, or disposal.

  1. Storage

  2. Treatment

    (a) Thermal Treatment

    (b) Chemical Treatment

    (c) Physical Treatment

      (1) Separation of Components

      (2) Removal of Specific Components

    (d) Biological Treatment

    (e) Boilers and Industrial Furnaces

    (f) Other Treatment

  3. Disposal

  4. Miscellaneous (Regulation .16-1 of this chapter)

* Single character symbols are used here for data processing purposes.

#### Regulation .21 Hazardous Waste Munitions and Explosives Storage.

*COMAR 26.13.05.21*

A. Applicability.

  (1) This regulation applies to owners and operators who store munitions and explosive hazardous wastes, except as Regulation .01 of this chapter and §A(2) and (3) of this regulation otherwise provide.

  (2) Depending on the explosive hazards of the waste, a person may be permitted to manage hazardous waste munitions and explosives in the following types of units rather than under this regulation:

    (a) Containment buildings, subject to Regulations .18—.18-3 of this chapter;

    (b) Containers, subject to Regulation .09 of this chapter; or

    (c) Tanks, subject to Regulations .10—.10-7 of this chapter.

  (3) COMAR 26.13.10.30 provides an alternate set of management standards for the storage of waste military munitions.

B. Design and Operating Standards.

  (1) The owner or operator of a hazardous waste munitions and explosives storage unit shall assure that the unit is designed and operated with containment systems, controls, and monitoring programs that:

    (a) Minimize the potential for detonation or other means of release of hazardous waste, hazardous constituents, hazardous decomposition products, or contaminated run-off, to soil, ground water, surface water, and the atmosphere;

    (b) Provide a primary barrier designed to contain the hazardous waste, such as a tank or a container, including a shell;

    (c) For wastes stored outdoors, provide that the waste and containers will not be in standing precipitation;

    (d) For liquid wastes, provide:

      (i) A secondary containment system and operational procedures that assure that any released liquids are contained, quickly detected, and removed from the waste area; or

      (ii) A vapor detection system and operational procedures that assure that any released liquids or vapors are quickly detected, and an appropriate response is taken, such as additional overpacking of the waste or removal of the waste from the waste storage area; and

    (e) Provide monitoring and inspection procedures that assure that:

      (i) The controls and containment systems are working as designed; and

      (ii) Releases that may adversely impact human health or the environment are not escaping from the unit.

  (2) A person may use one of the following to store hazardous waste munitions and explosives under this regulation:

    (a) An earth-covered magazine that:

      (i) Is constructed of waterproofed reinforced concrete or structural steel arches;

      (ii) Incorporates steel doors that are kept closed when the magazine is not being accessed;

      (iii) Is designed and constructed to be of sufficient strength and thickness to support the weight of any explosives or munitions stored and any equipment used in the unit, and to withstand the stresses of movement activities within the unit;

      (iv) Provides adequate working space for personnel and equipment in the unit; and

      (v) Will, as a result of the magazine's location and the design of the magazine's walls and earthen covers, direct an explosion in the unit in a safe direction, so as to minimize the propagation of an explosion to adjacent units and to minimize other effects of any explosion;

    (b) An above-ground magazine that is located and designed so as to minimize the propagation of an explosion to adjacent units and to minimize other effects of any explosion; or

    (c) An outdoor or open storage area that is designed and located so as to minimize the propagation of an explosion to adjacent units and to minimize other effects of any explosion.

  (3) Standard Operating Procedure for Storage.

    (a) A person shall store hazardous waste munitions and explosives in accordance with a standard operating procedure specifying procedures to ensure safety, security, and environmental protection.

    (b) A person may use the standard operating procedure to fulfill the requirements of Regulation .02E of this chapter concerning security and inspection, Regulation .03 of this chapter concerning preparedness and prevention procedures, and Regulation .04 of this chapter concerning contingency plan and emergency procedures if the standard operating procedure serves the same purpose as these requirements.

  (4) A person managing hazardous waste munitions and explosives under this regulation shall assure that:

    (a) The items are:

      (i) Packaged to ensure safety in handling and storage; and

      (ii) Inventoried at least once each calendar year, with no more than 365 days elapsing between inventory dates; and

    (b) Hazardous waste munitions and explosives and their storage units are inspected and monitored as necessary to ensure:

      (i) Explosives safety; and

      (ii) That there is no migration of contaminants out of the unit.

C. Closure and Post-Closure Care.

  (1) At the closure of a magazine or unit that was used to store hazardous waste munitions and explosives under this regulation, the owner or operator shall:

    (a) Remove or decontaminate all waste residues, contaminated containment system components, contaminated subsoil, and structures and equipment contaminated with waste; and

    (b) Manage the materials in §C(1)(a) of this regulation as hazardous waste unless COMAR 26.13.02.03D applies.

  (2) The owner or operator shall assure that the closure plan, closure activities, cost estimates for closure, and financial responsibility for the magazines or units operated under this regulation meet all of the requirements specified in Regulations .07 and .08 of this chapter, except that the owner or operator may defer closure of the unit as long as it remains in service as a munitions or explosives magazine or storage unit.

  (3) If the owner or operator finds, after removing or decontaminating all residues and making all reasonable efforts to effect removal or decontamination of contaminated components, subsoils, structures, and equipment as required in §C(1) of this regulation, that not all contaminated subsoils can be practicably removed or decontaminated, the owner or operator shall close the facility and perform post-closure care in accordance with the closure and post-closure requirements of Regulation .14J of this chapter applying to landfills.

#### Regulation .22 EPA Interim Primary Drinking Water Standards.

*COMAR 26.13.05.22*

Parameter
            Maximum Level (milligrams/liter)
          
        
        
          
            Arsenic
            0.05
          
          
            Barium
            1.0
          
          
            Cadmium
            0.01
          
          
            Chromium
            0.05
          
          
            Fluoride
            1.4 - 2.4
          
          
            Lead
            0.05
          
          
            Mercury
            0.002
          
          
            Nitrate (as N)
            10
          
          
            Selenium
            0.01
          
          
            Silver
            0.05
          
          
            Endrin
            0.0002
          
          
            Lindane
            0.004
          
          
            Methoxychlor
            0.1
          
          
            Toxaphene
            0.005
          
          
            2,4-D
            0.1
          
          
            2,4,5-TP Silvex
            0.01Maximum Level
          
          
            Radium
            5 pCi/liter
          
          
            Gross Alpha
            15 pCi/liter
          
          
            Gross Beta
            4 millirem/yr
          
          
            Turbidity
            1/TU
          
          
            Coliform Bacteria
            1/100 milliliter

(Comment: Turbidity is applicable only to surface water supplies.)

#### Regulation .23 Cochran's Approximation to the Behrens-Fisher Student's t-test.

*COMAR 26.13.05.23*

A. Using all the available background data (nb readings), calculate the background mean (xb) and background variance Sb2.  For the single monitoring well under investigation (nm reading), calculate the monitoring mean (xm) and monitoring variance Sm2.  For any set of data (x1, x2 ...xn), the mean is calculated by:

B. The t-test uses these data summary measures to calculate a t-static (t*) and a comparison t-statistic (tc).  The t* value is compared to the tc value and a conclusion reached as to whether there has been a statistically significant change in any indicator parameter.

C. The t-statistic for all parameters except pH and similar monitoring parameters is:

D. If the value of this t-statistic is negative then there is no significant difference between the monitoring data and background data. It should be noted that significantly small negative values may be indicative of a failure of the assumption made for test validity or errors have been made in collecting the background data.

E. The t-statistic (tc) against which t* will be compared, necessitates finding tB and tm from standard (one-tailed) tables where, tB= t-tables with (tB-1) degrees of freedom, at the 0.05 level of significance.

F. tm = t-tables with (nm-1)degrees of freedom, at the 0.05 level of significance.

G. Finally, the special weighting WB and WM are defined as:

H. The t-statistic (t*) is now compared with the comparison t-statistic (tc) using the following decision-rule:

  (1) If t* is equal to or larger than tc, then conclude that there most likely has been a significant increase in this specific parameter;

  (2) If t* is less than tc, then conclude that most likely there has not been a change in this specific parameter.

I. The t-statistic for testing pH and similar monitoring parameters is constructed in the same manner as previously described except the negative sign (if any) is discarded and the caveat concerning the negative value is ignored.  The standard (two-tailed) tables are used in the construction tc for pH and similar monitoring parameters.

J. If t* is equal or larger than tc, then conclude that there most likely has been a significant increase (if the initial t* had been negative, this would imply a significant decrease). If t* is less than tc, then conclude that there most likely has been no change.

K. A further discussion of the test may be found in Statistical Methods (6th Edition, Section 4.14) by G.W. Snedecor and W.G. Cochran, or Principles and Procedures of Statistics (1st Edition, Section 5.8) by R.G.D. Steel and J.H. Torrie.

#### Regulation .24 Examples of Potentially Incompatible Waste.

*COMAR 26.13.05.24*

A. Many hazardous wastes, when mixed with other waste or materials at a hazardous waste facility, can produce effects which are harmful to human health and environment, such as:

  (1) Heat or pressure;

  (2) Fire or explosion;

  (3) Violent reaction;

  (4) Toxic dusts, mists, fumes, or gases; or

  (5) Flammable fumes or gases.

B. Below are examples of potentially incompatible wastes, waste components, and materials, along with the harmful consequences which result from mixing materials in one group with materials in another group. The list is intended as a guide to owners or operators of treatment, storage, and disposal facilities, and to enforcement and permit granting officials, to indicate the need for special precautions when managing these potentially incompatible waste materials or components.

C. This list is not intended to be exhaustive. An owner or operator must, as the regulations require, adequately analyze his wastes so that he can avoid creating uncontrolled substances or reactions of the type listed below, whether they are listed below or not.

D. It is possible for potentially incompatible wastes to be mixed in a way that precludes a reaction (e.g., adding acid to water rather than water to acid) or that neutralizes them (e.g., a strong acid mixed with a strong base), or that controls substances produced (e.g., by generating flammable gases in a closed tank equipped so that ignition cannot occur, and burning the gases in an incinerator).

E. In the lists below, the mixing of a Group A material with a Group B material may have the potential consequence as noted:

### Chapter 06 — Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities

**Authority:** Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulation .01 adopted as an emergency provision effective November 18, 1980 (7:25 Md. R. S-1); adopted permanently effective April 3, 1981 (8:7 Md. R. 642)

**Administrative History:** Regulation .01B amended effective January 31, 1983 (10:2 Md. R. 110)

**Administrative History:** Regulations .01—.27 under new chapter COMAR 26.13.06, Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities, adopted effective October 16, 2000 (27:20 Md. R. 1843)

**Administrative History:** Regulation .01A amended effective November 1, 2002 (29:21 Md. R. 1647); May 1, 2008 (35:8 Md. R. 809); May 3, 2021 (48:9 Md. R. 359); January 13, 2022 (49:1 Md. R. 14); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .02E amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .05B amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .02H adopted effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .07B amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .08E amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .12A amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .19D, G amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .19F-1 adopted effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .19H adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .20B, D amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .20F adopted effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .21B amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .22C, F amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .22E-1, E-2 adopted effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .22F amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .25A amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .28 adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .29 adopted effective May 1, 2008 (35:8 Md. R. 809)

#### Regulation .01 General.

*COMAR 26.13.06.01*

A. Purpose, Scope, and Applicability.

  (1) The purpose of this chapter is to establish minimum State standards, which define the acceptable management of hazardous waste during the period of interim status, and until:

    (a) Certification of final closure under Regulations .07—.11 of this chapter;

    (b) Post-closure requirements under Regulations .12—.15 of this chapter are met, if those requirements apply; or

    (c) A final CHS permit is issued under COMAR 26.13.07.

  (2) Except as provided in COMAR 26.13.02.05 or as otherwise provided in this chapter, this chapter applies to owners and operators of the following hazardous waste management facilities that treat, store, or dispose of hazardous waste:

    (a) Facilities in existence on the effective date of statutory or regulatory amendments that render the facility subject to the requirement to have a CHS permit for which the owner or operator has complied with §B(1) of this regulation;

    (b) Facilities in existence on November 19, 1980, for which the owner or operator has failed to provide timely notification as required by §3010(a) of RCRA or to file part A of the CHS permit application as required by §B(1) and (2) of this regulation;

    (c) Facilities that were previously required, because of federal regulations promulgated under the authority of the Hazardous and Solid Waste Amendments of 1984, to meet the requirements for interim status under 40 CFR 265 and 270;

    (d) As specified in COMAR 26.13.10.30, facilities that store military munitions classified as a solid waste under COMAR 26.13.10.27B; and

    (e) Facilities that provide the treatment and disposal of hazardous waste military munitions.

  (3) This chapter applies to owners and operators of hazardous waste management facilities who are subject to the requirements of §B of this regulation and fail to comply with these requirements.

  (4) The requirements of this chapter do not apply to:

    (a) A person disposing of hazardous waste by means of ocean disposal subject to a permit issued under the Marine Protection, Research, and Sanctuaries Act;

    (b) The owner or operator of a facility permitted, licensed, or registered by the State to manage municipal or industrial solid waste, if the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation under this chapter by COMAR 26.13.02.05;

    (c) The owner or operator of a facility managing recyclable materials described in COMAR 26.13.02.06A(2) and (3), except to the extent that the requirements of this chapter are referred to in COMAR 26.13.10.01, .03, and .04;

    (d) A generator accumulating waste on-site in compliance with COMAR 26.13.03.03-3—.03-10, except to the extent that a provision of COMAR 26.13.03.03-3—.03-10 requires the generator to comply with the requirements of this chapter;

    (e) A farmer disposing of waste pesticides from the farmer's own use in compliance with COMAR 26.13.03.07-4;

    (f) The owner or operator of a totally enclosed treatment facility as defined in COMAR 26.13.01.03B(81);

    (g) The owner or operator of an elementary neutralization unit or a wastewater treatment unit as defined in COMAR 26.13.01.03B, subject to the following:

      (i) For a wastewater treatment unit, the exclusion from the requirements of this chapter does not apply with respect to treatment of a hazardous waste from off-site, other than waste delivered to a unit via sanitary sewer in accordance with the requirements of the Clean Water Act;

      (ii) The owner or operator shall comply with the requirements of COMAR 26.13.05.02H if the owner or operator is using the unit to treat a characteristic hazardous waste by dilution to remove the hazardous characteristic from the waste before land disposal, and the waste is either an ignitable hazardous waste described in §A(4)(g)(iii) of this regulation, or a reactive hazardous waste; and

      (iii) The provisions of §A(4)(g)(ii) of this regulation regarding ignitable hazardous waste apply to an ignitable waste other than a waste in the D001 High TOC Subcategory defined in 40 CFR §268.40;

    (h) Except as provided in §A(5) of this regulation, a person engaged in treatment or containment activities during immediate response to any of the following situations, if the person complies with the otherwise applicable requirements of Regulations .03 and .04 of this chapter:

      (i) A discharge of a hazardous waste;

      (ii) An imminent and substantial threat of a discharge of a hazardous waste;

      (iii) A discharge of a material which, when discharged, becomes a hazardous waste; or

      (iv) An immediate threat to human health, public safety, property, or the environment, from the known or suspected presence of conventional military munitions, other explosive material, or an explosive device, as determined by an explosive or munitions emergency response specialist as defined in COMAR 26.13.01.03B;

    (i) The owner or operator of a publicly owned treatment works (POTW) which treats, stores, or disposes of hazardous waste;

    (j) Universal waste handlers and universal waste transporters handling the following wastes:

      (i) Batteries, as described in COMAR 26.13.10.07;

      (ii) Pesticides, as described in COMAR 26.13.10.08;

      (iii) Lamps, mercury-containing equipment, or PCB-containing lamp ballasts, each as described in COMAR 26.13.10.09; and

      (iv) Aerosol cans, as described in COMAR 26.13.10.09-1; or

    (k) The addition of absorbent material to a waste container or the addition of waste to absorbent in a container, if:

      (i) The combining of waste and absorbent occurs when waste is first placed in the container;

      (ii) COMAR 26.13.05.02H(2), which concerns requirements for ignitable, reactive, or incompatible waste, is complied with;

      (iii) COMAR 26.13.05.09B, which concerns condition of containers, is complied with; and

      (iv) COMAR 26.13.05.09C, which concerns compatibility of waste with containers, is complied with; or

    (l) A reverse distributor accumulating potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals, as defined in COMAR 26.13.01.03B.

  (5) Clarifications Concerning Responses to Emergencies.

    (a) The exemption under §A(4)(h) of this regulation applies only to immediate response activities taken in response to the circumstances identified in §A(4)(h)(i)—(iv) of this regulation. After the immediate response activities are completed, the applicable regulations of this chapter and COMAR 26.13.07 apply fully to the management of any spill residue or debris which is a hazardous waste under COMAR 26.13.02.

    (b) In the case of an explosives or munitions emergency response, if a federal, State, tribal, or local official acting within the scope of that individual's official responsibilities, or an explosives or munitions emergency response specialist, determines that immediate removal of the material or waste is necessary to protect human health or the environment, that official or specialist may authorize the removal of the material or waste:

      (i) By transporters who do not have EPA identification numbers;

      (ii) By transporters who have not been issued a certificate under COMAR 26.13.04.01C and F; and

      (iii) Without the preparation of a manifest.

    (c) In the case of emergencies involving military munitions, the responding military emergency response specialist's organizational unit shall retain records for 3 years identifying:

      (i) The dates of the response;

      (ii) The responsible persons responding;

      (iii) The type and description of material addressed; and

      (iv) The final disposition of the material addressed in the emergency.

  (6) A person may not manage hazardous waste with EPA Hazardous Waste Number F020, F021, F022, F023, F026, or F027 at a facility subject to regulation under this chapter unless:

    (a) It is a wastewater treatment sludge generated in a surface impoundment as part of a plant's wastewater treatment system;

    (b) The waste is stored in tanks or containers;

    (c) The waste is stored or treated in waste piles that meet the requirements of:

      (i) COMAR 26.13.05.12A(2); and

      (ii) Regulation .20 of this chapter; or

    (d) The facility has been issued a permit to do so under COMAR 26.13.07.

  (7) Applicability of Land Disposal Restrictions.

    (a) The requirements of this chapter apply to owners and operators of facilities that treat, store, or dispose of hazardous waste referred to in 40 CFR Part 268; and

    (b) The standards in 40 CFR Part 268 are considered material conditions or requirements of the interim status requirements of this chapter.

Agency Note: Reverse distributors are subject to regulation under COMAR 26.13.10.32—.49 instead of this chapter for the accumulation of potentially creditable hazardous waste pharmaceuticals and evaluated pharmaceuticals.

B. Required Submissions.

  (1) Unless the Secretary establishes a later date as provided in §B(3) of this regulation, an owner or operator of a hazardous waste management facility in existence on the effective date of statutory or regulatory amendments that render the facility subject to the requirement to have a CHS permit shall submit part A of the permit application to the Department by the earlier of the following two dates:

    (a) 6 months after the publication of the notice of final action on regulations which first require the owner or operator to comply with the standards set forth in this chapter or COMAR 26.13.10; or

    (b) 30 days after the date the owner or operator first becomes subject to the standards set forth in this chapter or COMAR 26.13.10.

  (2) If an owner or operator of a hazardous waste management facility has filed part A of a CHS permit application and has not yet filed part B of the CHS permit application, the owner or operator shall file an amended part A application with the Secretary:

    (a) Not later than the effective date of regulatory provisions listing or designating additional wastes as hazardous, if the facility is treating, storing, or disposing of any of these newly listed or designated hazardous wastes;

    (b) As necessary to comply with COMAR 26.13.07.23C for changes during interim status; or

    (c) By the deadline established under §B(3) of this regulation.

  (3) Extension of Deadlines for Submission of Part A Application.

    (a) The Secretary may, by publishing a notice in the Maryland Register, extend the date by which owners or operators of existing hazardous waste management facilities in a specified class of facilities are required to submit part A of the CHS permit application if the Secretary finds that:

      (i) There has been substantial confusion as to whether the owners and operators of those facilities were required to file a permit application; and

      (ii) The confusion over whether owners and operators were required to file a permit application is the result of ambiguities in COMAR 26.13.01, 26.13.02, or this chapter.

    (b) The Secretary may, by compliance order, extend the date by which the owner or operator of an existing hazardous waste management facility is required to submit part A of the CHS permit application.

  (4) The owner or operator of a facility that fails to comply with the updating requirements of §B(2) of this regulation has interim status only for the wastes covered by part A CHS permit applications filed in accordance with the requirements of this section.

  (5) The Secretary may require the owner or operator of a facility operating under interim status to file a part B CHS permit application by a certain deadline. If the facility owner or operator fails to furnish a requested part B CHS permit application by the required deadline, or fails to furnish in full the information required to be included in the part B CHS permit application, the Secretary may terminate interim status under COMAR 26.13.07.

C. Imminent Hazard Action. Notwithstanding any other provisions of this chapter, enforcement actions may be brought under Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland, or other applicable State authority.

#### Regulation .02 General Facility Standards.

*COMAR 26.13.06.02*

A. Except as provided in §§B—F of this regulation, the owner or operator of a facility subject to this chapter shall meet the requirements of COMAR 26.13.05.02.

B. The requirements of COMAR 26.13.05.02D(2)(c)(vi), which concern additional waste analysis requirements, are not applicable.

C. In the waste analysis plan, the owner or operator shall specify, when applicable, the methods which will be used to satisfy the additional provisions for waste analysis for specific waste management methods as specified in:

  (1) COMAR 26.13.05.10B, with which the owner or operator is required to comply in Regulation .18A of this chapter;

  (2) COMAR 26.13.05.11E, with which the owner or operator is required to comply in Regulation .19B of this chapter;

  (3) COMAR 26.13.05.12C, with which the owner or operator is required to comply in Regulation .20B(2) of this chapter;

  (4) Regulations .22C and .22F of this chapter; and

  (5) 40 CFR §§265.273, 265.341, 265.375, and 265.402, which are incorporated by reference in Regulations .21A, .23A, .24A, and .25A of this chapter, respectively.

D. Except as provided in §E of this regulation, an owner or operator shall comply with COMAR 26.13.05.02F(2)(d).

E. An owner or operator shall ensure that the inspection schedule required in §D of this regulation includes, at a minimum, the items and frequencies called for in:

  (1) COMAR 26.13.05.09E, with which the owner or operator is required to comply in Regulation .17 of this chapter;

  (2) COMAR 26.13.05.10D and .10-4, with which the owner or operator is required to comply in Regulation .18A of this chapter,

  (3) COMAR 26.13.05.12E, with which the owner or operator is required to comply in Regulation .20B of this chapter;

  (4) Regulation .19G of this chapter; and

  (5) 40 CFR §§265.278, 265.347, 265.377, and 265.403, which are incorporated by reference in Regulations .21A, .23A, .24A, and .25A of this chapter, respectively.

F. For the purposes of this chapter, an owner or operator:

  (1) May substitute the word “unless” for the words “unless it can be demonstrated to the Secretary” in COMAR 26.13.05.02E(1); and

  (2) Is not required to comply with COMAR 26.13.05.02H(3) or I(2), which concern documentation of compliance with general requirements for ignitable, reactive, or incompatible wastes, and aisle space requirements, respectively.

G. Location Standard. The placement of any hazardous waste in a salt dome, salt bed formation, or underground mine or cave is prohibited.

H. Construction Quality Assurance Program. The owner or operator of a surface impoundment subject to Regulation .19 of this chapter, a waste pile subject to Regulation .20 of this chapter, or a landfill subject to Regulation .22 of this chapter shall comply with the requirements of COMAR 26.13.05.02-2.

#### Regulation .03 Preparedness and Prevention.

*COMAR 26.13.06.03*

A. Except as provided in §§B and D of this regulation, an owner or operator of a facility subject to this chapter shall comply with COMAR 26.13.05.03.

B. An owner or operator of a facility shall comply with §C of this regulation instead of COMAR 26.13.05.03B during the period of interim status.

C. Facility Operation. The owner or operator shall maintain and operate the facility to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment.

D. An owner or operator who is subject to this chapter is not required to make the demonstrations to the Secretary required in COMAR 26.13.05.03C and F, concerning required equipment for use in emergencies and required aisle space, respectively.

#### Regulation .04 Contingency Plan and Emergency Procedures.

*COMAR 26.13.06.04*

A. Except as provided in §B of this regulation, an owner or operator of a facility subject to this chapter shall comply with COMAR 26.13.05.04.

B. For the purposes of this chapter, in COMAR 26.13.05.04E(1), “Facility permit is revised” is replaced with “Applicable regulations are revised”.

#### Regulation .05 Manifest System, Record Keeping, and Reporting.

*COMAR 26.13.06.05*

A. Except as provided in §§B and C of this regulation, the owner or operator of a facility subject to this chapter shall comply with COMAR 26.13.05.05.

B. For the purpose of complying with this regulation, the owner or operator of a facility subject to this chapter shall:

  (1) In place of the requirement of COMAR 26.13.05.05D(2)(c), record and maintain in the operating record the results of waste analyses, waste determinations, and trial tests performed as specified in:

    (a) Regulations .02 and .22F of this chapter;

    (b) COMAR 26.13.05.10B, with which the owner or operator is required to comply in Regulation .18A of this chapter;

    (c) COMAR 26.13.05.11E, with which the owner or operator is required to comply in Regulation .19B(3) of this chapter;

    (d) COMAR 26.13.05.12C, with which the owner or operator is required to comply in Regulation .20B(2) of this chapter;

    (e) 40 CFR §§265.273, 265.341, 265.375, and 265.402, which are incorporated by reference in Regulations .21A, .23B, .24A, and .25A of this chapter, respectively; and

    (f) As qualified by COMAR 26.13.09.03B, 40 CFR §268.4(a) and 40 CFR §268.7.

  (2) Comply with COMAR 26.13.05.05D(2)(g) and F(4)(i), except that the references to Regulations .12—.15 of this chapter are to Regulation .16 of this chapter;

  (3) In place of the requirement of COMAR 26.13.05.05D(2)(h), record and maintain in the operating record monitoring, testing, or analytical data, and corrective action when required by Regulations .02, .06, and .18—.24 of this chapter;

  (4) Submit with the biennial report required by COMAR 26.13.05.05F monitoring data under 40 CFR §§265.94(a)(2)(ii), (iii), and (b)(2), which are incorporated by reference in Regulation .06A of this chapter; and

  (5) In place of the requirement of COMAR 26.13.05.05H(4), report to the Secretary as otherwise required by Regulations .06 and .19—.22 of this chapter.

C. The owner or operator of a facility subject to this chapter is not required to comply with COMAR 26.13.05.05D(2)(i).

#### Regulation .06 Ground Water Protection.

*COMAR 26.13.06.06*

A. Except as provided in §B of this regulation, the Department adopts as its regulations the federal regulations at 40 CFR §§265.90—265.94, adopted as of July 1, 1998, which are incorporated by reference.

B. For the purposes of this regulation, substitute “Secretary” for “Regional Administrator”.

#### Regulation .07 Closure — General.

*COMAR 26.13.06.07*

A. Applicability. Except as provided in Regulation .01 of this chapter, this regulation and Regulations .08—.11 of this chapter apply to the owners and operators of all interim status facilities.

B. Closure Performance Standard. The owner or operator shall close the facility in a manner that:

  (1) Minimizes the need for further maintenance;

  (2) Controls, minimizes, or eliminates, to the extent necessary to protect human health and the environment, post-closure escape of hazardous waste, hazardous constituents, leachate, contaminated run-off, or hazardous waste decomposition products to the ground or surface waters or to the atmosphere; and

  (3) Complies with the closure requirements of this chapter, including, but not limited to, those contained in Regulations .17—.26, .28, and .29 of this chapter.

#### Regulation .08 Closure — Amendment of Plan.

*COMAR 26.13.06.08*

A. Written Plan. The following requirements apply to the owner or operator of an interim status facility:

  (1) By May 19, 1981, or by 6 months after the effective date of the regulation that first subjects a facility to the provisions of this regulation, the owner or operator shall have a written closure plan;

  (2) Until final closure is completed and certified in accordance with Regulation .11 of this chapter, the owner or operator shall furnish a copy of the most current plan to the Secretary upon request, including request by mail; and

  (3) For facilities without approved closure plans, the owner or operator shall provide a copy of the closure plan during site inspections, on the day of the inspection, to any officer, employee, or representative of the Department who is designated by the Secretary.

B. The owner or operator shall assure that the closure plan identifies the steps necessary to perform partial or final closure of the facility, or both, at any point during its active life.

C. Content of the Closure Plan. The owner or operator shall assure that the closure plan includes, at least:

  (1) A description of how each hazardous waste management unit at the facility will be closed in accordance with §B of this regulation;

  (2) A description of how final closure of the facility will be conducted in accordance with §B of this regulation, which shall identify the maximum extent of the operations that will be conducted during interim status during the active life of the facility;

  (3) An estimate of the maximum inventory of hazardous wastes ever on-site over the active life of the facility;

  (4) A detailed description of the methods to be used during partial closures and final closure, including, but not limited to, methods for removing, transporting, treating, storing, or disposing of all hazardous wastes;

  (5) An identification of the type or types of the off-site hazardous waste management units to be used, if applicable;

  (6) A detailed description of the steps needed to remove or decontaminate all hazardous waste residues and contaminated containment system components, equipment, structures, and soils during partial and final closure, including, but not limited to:

    (a) Procedures for cleaning equipment and removing contaminated soils;

    (b) Methods for sampling and testing surrounding soils; and

    (c) Criteria for determining the extent of decontamination necessary to satisfy the closure performance standard;

  (7) A detailed description of other activities necessary during the partial and final closure period to ensure that all partial closures and final closure satisfy the closure performance standards, including but not limited to ground water monitoring, leachate collection, and run-on and run-off control;

  (8) A schedule for closure of each hazardous waste management unit, and for final closure of the facility, which includes, at a minimum:

    (a) The total time required to close each hazardous waste management unit; and

    (b) The time required for intervening closure activities which will allow tracking of the progress of partial and final closure;

  (9) For a landfill unit, as part of the schedule required by §C(8) of this regulation, estimates of the time required to treat or dispose of all hazardous waste inventory, and of the time required to place a final cover; and

  (10) An estimate of the expected year of final closure if the facility:

    (a) Uses trust funds to demonstrate financial assurance under 40 CFR §265.143 or 265.145, which are incorporated by reference in Regulation .16 of this chapter, and has a remaining operating life that is less than 20 years; or

    (b) Does not have an approved closure plan.

D. Amendment of Plan.

  (1) The owner or operator may amend the closure plan at any time before the notification of partial or final closure of the facility under §E of this regulation.

  (2) An owner or operator with an approved closure plan seeking to amend the plan shall:

    (a) Submit a written request to the Secretary to authorize a change to the approved closure plan; and

    (b) Include a copy of the amended closure plan with the written request for approval by the Secretary.

  (3) The owner or operator shall amend the closure plan whenever:

    (a) Changes in operating plans or facility design affect the closure plan;

    (b) There is a change in the expected year of closure, if applicable; or

    (c) In conducting partial or final closure activities, unexpected events require a modification of the closure plan.

  (4) The owner or operator shall amend the closure plan:

    (a) At least 60 days before the proposed change in facility design or operation; or

    (b) Except as provided in §D(5) of this regulation, not later than 60 days after an unexpected event occurs which has affected the closure plan.

  (5) If an unexpected event occurs during the partial or final closure period that requires a modification of the closure plan, the owner or operator shall amend the closure plan not later than 30 days after the unexpected event.

  (6) The provisions of §D(4) and (5) of this regulation also apply to owners or operators of surface impoundments and waste piles who intended to remove all hazardous wastes at closure, but are required to close as landfills in accordance with Regulation .22B(3) of this chapter.

  (7) An owner or operator with an approved closure plan shall submit a modified plan to the Secretary:

    (a) At least 60 days before the proposed change in facility design or operation; or

    (b) Except as provided in §D(8) of this regulation, not more than 60 days after an unexpected event occurs which has affected the closure plan.

  (8) If an unexpected event has occurred during the partial or final closure period, the owner or operator shall submit the modified plan not more than 30 days after the unexpected event.

  (9) The provisions of §D(7) and (8) of this regulation also apply to owners or operators of surface impoundments and waste piles who intended to remove all hazardous wastes at closure but are required to close as landfills in accordance with Regulation .22B(3) of this chapter. Unless the amendment to the plan is a minor modification according to the criteria in COMAR 26.13.07.13—.13-3, the request for modification will be processed according to the procedures in §E(8), (9), and (10) of this regulation.

  (10) Modifications at the Request of the Secretary.

    (a) The Secretary may request modifications to the closure plan under the conditions described in §D(3) of this regulation.

    (b) An owner or operator with an approved closure plan shall submit the modified plan within 60 days of the request from the Secretary, or within 30 days if the Secretary has made the request as a result of an unexpected event occurring during partial or final closure.

    (c) Unless the amendment to the plan is a minor modification according to the criteria in COMAR 26.13.07.13—.13-3, the request for modification will be processed according to the procedures in §D(8), (9), and (10) of this regulation.

E. Notification of Partial Closure and Final Closure.

  (1) The owner or operator of a facility without an approved closure plan shall submit the closure plan to the Secretary at least:

    (a) 180 days before the date on which the owner or operator expects to begin closure of the first surface impoundment, waste pile, land treatment unit, or landfill unit;

    (b) 180 days before the date on which the owner or operator expects to begin final closure if it involves a surface impoundment, waste pile, land treatment unit, or landfill unit;

    (c) 45 days before the date on which the owner or operator expects to begin partial or final closure of a boiler or industrial furnace; and

    (d) 45 days before the date on which the owner or operator expects to begin final closure of a facility with only tanks, container storage, or incinerator units.

  (2) An owner or operator with an approved closure plan shall notify the Secretary in writing at least:

    (a) 60 days before the date on which the owner or operator expects to begin closure of a surface impoundment, waste pile, landfill, or land treatment unit;

    (b) 60 days before the date on which the owner or operator expects to begin final closure of a facility involving a surface impoundment, waste pile, landfill, or land treatment unit;

    (c) 45 days before the date on which the owner or operator expects to begin partial or final closure of a boiler or industrial furnace; and

    (d) 45 days before the date on which the owner or operator expects to begin final closure of a facility with only tanks, container storage, or incinerator units.

  (3) For the purposes of §E(1) and (2) of this regulation, the date when the owner or operator expects to begin partial or final closure shall be:

    (a) Within 30 days after the date on which any hazardous waste management unit receives the known final volume of hazardous wastes;

    (b) Not later than 1 year after the date on which the hazardous waste management unit received the most recent volume of hazardous waste, if there is a reasonable possibility that the unit will receive additional hazardous wastes, or by a later deadline established by the Secretary under §E(4) of this regulation; or

    (c) As provided in §E(5) of this regulation.

  (4) The Secretary may approve an extension to the 1-year limit in §E(3)(b) of this regulation if the owner or operator of the facility can demonstrate to the Secretary that:

    (a) The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes; and

    (b) The owner or operator of the facility has taken, and will continue to take, all steps to prevent threats to human health and the environment, including compliance with all interim status requirements.

  (5) If an owner or operator of a facility has been allowed to receive non-hazardous wastes in a landfill, land treatment unit, or surface impoundment unit after the final receipt of hazardous waste as provided by Regulation .09H of this chapter, the date when the owner or operator expects to begin closure for the purposes of §E(1) and (2) of this regulation shall be not later than:

    (a) 30 days after the date on which the hazardous waste management unit receives the known final volume of non-hazardous wastes; or

    (b) 1 year after the date on which the unit received the most recent volume of non-hazardous waste, if there is a reasonable possibility that the unit will receive additional non-hazardous wastes, or by a later deadline established by the Secretary under §E(6) of this regulation.

  (6) The Secretary may approve an extension to the 1-year limit in §E(5)(b) of this regulation if the owner or operator of the facility can demonstrate to the Secretary that:

    (a) The hazardous waste management unit has the capacity to receive additional non-hazardous wastes; and

    (b) The owner or operator of the facility has taken, and will continue to take, all steps to prevent threats to human health and the environment, including compliance with all applicable interim status requirements.

  (7) The owner or operator of the facility shall submit the closure plan to the Secretary not later than 15 days after:

    (a) Termination of interim status except when a permit is issued simultaneously with termination of interim status; or

    (b) Issuance of a judicial decree or final order under §3008 of RCRA or Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland, to cease receiving hazardous wastes or close.

  (8) Following submission of the closure plan by the owner or operator of the facility, or written notification of intent to begin closure under §E(1) or (2) of this regulation, the Secretary shall provide the owner or operator of the facility and the public, through a newspaper notice, the opportunity to do any of the following for up to 30 days from the date of the newspaper notice:

    (a) Submit written comments on the closure plan;

    (b) Request modifications to the closure plan; or

    (c) Request a public hearing on the closure plan.

  (9) Public Hearing.

    (a) In response to a request, the Secretary shall hold a public hearing whenever a hearing might clarify one or more issues concerning a closure plan.

    (b) In the absence of a request for a public hearing, a hearing may be scheduled at the Secretary's discretion.

    (c) The Secretary shall give public notice of the hearing at least 30 days before the hearing occurs.

    (d) Public notice of the hearing may be given at the same time as notice of the opportunity for the public to submit written comments, and the two notices may be combined.

  (10) Secretarial Approval, Modification, or Disapproval of Closure Plan.

    (a) The Secretary shall approve, modify, or disapprove the plan within 90 days of the receipt of the plan.

    (b) If the Secretary does not approve the closure plan, the Secretary shall give the owner or operator a detailed written statement of reasons for the refusal.

    (c) The owner or operator shall modify the closure plan or submit a new plan for approval within 30 days after receiving the written statement provided under §E(10)(b) of this regulation.

    (d) The Secretary shall approve or modify the new or revised closure plan submitted under §E(10)(c) of this regulation in writing within 60 days. If the Secretary modifies the closure plan, this modified closure plan becomes the approved closure plan.

    (e) The Secretary shall assure that the approved closure plan is consistent with Regulations .07B and .08—.11 of this chapter, the applicable requirements of Regulations .06, .18D, .19B(4), .20B(6), .22B(3), .28, and .29 of this chapter, and 40 CFR §§265.280, 265.351, 265.381, and 265.404, which are incorporated by reference in Regulations .21A, .23B, .24A, and .25A of this chapter, respectively.

    (f) If the Secretary modifies the closure plan, a copy of the modified closure plan with a detailed statement of reasons for the modifications shall be mailed to the owner or operator.

  (11) Removal of Wastes and Decontamination or Dismantling of Equipment. This regulation does not preclude the owner or operator from removing hazardous wastes and decontaminating or dismantling equipment in accordance with the approved partial or final closure plan at any time before or after notification of partial or final closure.

#### Regulation .09 Closure — Time Allowed for Closure.

*COMAR 26.13.06.09*

A. Before the later of the following two dates, the owner or operator shall treat, remove from the hazardous waste management unit or facility, or dispose of on-site, all hazardous wastes in accordance with the approved closure plan:

  (1) 90 days after receiving the final volume of:

    (a) Hazardous wastes; or

    (b) Non-hazardous wastes if the requirements of §§H—O of this regulation are met; or

  (2) 90 days after approval of the closure plan.

B. Subject to the requirements of §§C and G(1) of this regulation, the Secretary may approve a longer period for closure than that specified in §A of this regulation if the owner or operator demonstrates that:

  (1) The activities required to comply with §A of this regulation will, of necessity, take longer than 90 days to complete; or

  (2) The following conditions are met:

    (a) The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes, or has the capacity to receive non-hazardous wastes if the facility owner or operator complies with §§H—O of this regulation;

    (b) There is a reasonable likelihood that the owner or operator or another person will recommence operation of the hazardous waste management unit or facility within 1 year; and

    (c) Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site.

C. In addition to the requirements of §B of this regulation, the owner or operator requesting a longer time for closure shall demonstrate that all steps necessary to prevent threats to human health and the environment have been taken and will continue to be taken, including compliance with all applicable interim status requirements.

D. The owner or operator shall complete partial and final closure activities:

  (1) In accordance with the approved closure plan; and

  (2) Before the later of the following two dates:

    (a) 180 days after receiving the final volume of hazardous wastes at the hazardous waste management unit or facility, or the final volume of non-hazardous wastes if the owner or operator complies with the requirements of §§H — O of this regulation; or

    (b) 180 days after approval of the closure plan.

E. Subject to the requirements of §F of this regulation, the Secretary may approve an extension to the closure period specified in §D of this regulation if the owner or operator demonstrates that:

  (1) The partial or final closure activities will, of necessity, take longer than 180 days to complete; or

  (2) The following conditions are met:

    (a) The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes, or has the capacity to receive non-hazardous waste if the facility owner or operator complies with the requirements of §§H—O of this regulation;

    (b) There is reasonable likelihood that the owner or operator or another person will recommence operation of the hazardous waste management unit or facility within 1 year; and

    (c) Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site.

F. In addition to the requirements of §E of this regulation, the owner or operator requesting a longer closure period shall demonstrate that all steps necessary to prevent threats to human health and the environment from the unclosed but not operating hazardous waste management unit or facility have been taken and will continue to be taken, including compliance with all applicable interim status requirements.

G. The owner or operator shall make the demonstration referred to in:

  (1) §B of this regulation at least 30 days before the expiration of the 90-day period specified in §A of this regulation; and

  (2) §E of this regulation at least 30 days before the expiration of the 180-day period specified in §D of this regulation, unless the owner or operator is otherwise subject to the deadlines in §H of this regulation.

H. The Secretary may allow an owner or operator to receive non-hazardous wastes in a landfill, land treatment, or surface impoundment unit after the final receipt of hazardous wastes at the unit if the owner or operator:

  (1) Submits an amended part B CHS permit application, or a part B CHS permit application, if not previously required;

  (2) Demonstrates that:

    (a) The unit has the existing design capacity as indicated on the part A CHS permit application to receive non-hazardous wastes;

    (b) There is a reasonable likelihood that the owner or operator or another person will receive non-hazardous wastes in the unit within 1 year after the final receipt of hazardous wastes;

    (c) The non-hazardous wastes will not be incompatible with any remaining wastes in the unit or with the facility design and operating requirements of the unit or facility under this chapter;

    (d) Closure of the hazardous waste management unit would be incompatible with continued operation of the unit or facility; and

    (e) The owner or operator is operating and will continue to operate in compliance with all applicable interim status requirements;

  (3) Includes, in the part B CHS permit application:

    (a) An amended waste analysis plan;

    (b) A ground water monitoring and response program;

    (c) The human exposure assessment required under RCRA §3019; and

    (d) Closure and post-closure plans;

  (4) Includes, in the part B CHS permit application, updated cost estimates and demonstrations of financial assurance for closure and post-closure care as necessary and appropriate to reflect any:

    (a) Changes due to the presence of hazardous constituents in the non-hazardous wastes; and

    (b) Changes in closure activities, including the expected year of closure if applicable under Regulation .08C(10) of this chapter, as a result of the receipt of non-hazardous wastes following the final receipt of hazardous wastes;

  (5) Amends the part B CHS permit application, as necessary and appropriate, to account for the receipt of non-hazardous wastes following receipt of the final volume of hazardous wastes;

  (6) Submits the part B CHS permit application and the demonstrations referred to in §H(1)—(4) of this regulation to the Secretary by the later of the following two dates:

    (a) 180 days before the date on which the owner or operator of the facility receives the known final volume of hazardous wastes; or

    (b) 90 days after October 16, 2000;

  (7) Complies with the requirements of §I of this regulation if the owner or operator is seeking to receive additional non-hazardous wastes in a hazardous waste surface impoundment that is not in compliance with the liner and leachate collection system requirements of:

    (a) §3004(o)(1) of RCRA, except as otherwise provided in §3004(o)(2) or (3) of RCRA; and

    (b) §3005(j)(1) of RCRA, except as otherwise provided in §3005(j)(2), (3), (4), or (13) of RCRA; and

  (8) Complies with the applicable requirements to obtain permits under:

    (a) COMAR 26.04.07; and

    (b) COMAR 26.11.19.20.

I. In addition to the requirements in §H of this regulation, an owner or operator of a hazardous waste surface impoundment identified in §H(7) of this regulation shall:

  (1) Submit with the part B CHS permit application:

    (a) A contingent corrective measures plan; and

    (b) A plan for removing hazardous wastes in compliance with §I(2) of this regulation;

  (2) Remove all hazardous wastes from the unit by removing all hazardous liquids, and removing all hazardous sludges to the extent practicable without impairing the integrity of the liner or liners, if any;

  (3) Complete removal of hazardous wastes not later than 90 days after the final receipt of hazardous wastes, unless the Secretary approves an extension to this deadline based upon a demonstration by the owner or operator that:

    (a) The removal of hazardous wastes will, of necessity, take longer than the allotted period of time to complete; and

    (b) An extension will not pose a threat to human health and the environment;

  (4) Comply with the following requirements if a release that is a statistically significant increase over background levels, or decrease in the case of pH, in hazardous constituents is detected in accordance with the requirements of Regulation .06 of this chapter:

    (a) Implement corrective measures in accordance with the approved contingent corrective measures plan required by §I(1) of this regulation not later than 1 year after detection of the release, or approval of the contingent corrective measures plan, whichever is later;

    (b) Elect to receive wastes at the unit following detection of the release only if the approved corrective measures plan includes a demonstration that continued receipt of wastes will not impede corrective action; and

    (c) Implement corrective measures in less than 1 year, or cease receipt of wastes until corrective measures have been implemented if required to do so by the Secretary, based on a determination by the Secretary that the corrective measures are necessary to protect human health and the environment; and

  (5) Perform the following activities during the period of corrective action:

    (a) Provide semiannual reports to the Secretary which describe the progress of the corrective action program;

    (b) Compile all ground water monitoring data; and

    (c) Evaluate the effect of the continued receipt of non-hazardous wastes on the effectiveness of the corrective action.

J. The Secretary may require the owner or operator of a surface impoundment unit regulated under §I of this regulation to commence closure of the unit if the owner or operator:

  (1) Fails to implement corrective action measures in accordance with the approved contingent corrective measures plan within 1 year as required in §I(4) of this regulation; or

  (2) Fails to make substantial progress in implementing corrective action and achieving the facility's background levels.

K. If the owner or operator fails to implement corrective measures as required in §I(4) of this regulation, or if the Secretary determines that substantial progress has not been made under §J of this regulation, the Secretary shall:

  (1) Notify the owner or operator in writing that the owner or operator shall begin closure in accordance with the deadlines in §§A—F of this regulation;

  (2) Provide the owner or operator with a detailed statement of reasons for the Secretary's determination; and

  (3) Provide the owner or operator and the public, through a newspaper notice, the opportunity to submit written comments on the Secretary's decision not later than 20 days after the date of the notice.

L. If the Secretary does not receive any written comments in response to the determination in §K(1) of this regulation that the owner or operator shall begin closure, then:

  (1) The Secretary's decision described in §K(1) of this regulation becomes final 5 days after the close of the comment period; and

  (2) The Secretary shall notify the owner or operator that:

    (a) The decision is final;

    (b) A revised closure plan, if necessary, shall be submitted by the owner or operator to the Secretary within 15 days of the final notice; and

    (c) Closure is required to begin in accordance with the deadlines in §§A—F of this regulation.

M. If the Secretary receives written comments in response to the determination in §K(1) of this regulation, the Secretary shall:

  (1) Make a final decision within 30 days after the end of the comment period; and

  (2) Provide the owner or operator in writing, and the public through a newspaper notice, a detailed statement of reasons for the final decision.

N. If the Secretary determines under §J(2) of this regulation that the owner or operator has not made substantial progress in implementing corrective action and achieving the facility's background levels, then the owner or operator shall begin closure in accordance with the deadlines in §§A—F of this regulation.

O. The final determinations made by the Secretary under §§L and M of this regulation are not subject to administrative appeal.

#### Regulation .10 Closure — Disposal or Decontamination of Equipment, Structures, and Soils.

*COMAR 26.13.06.10*

A. During the partial and final closure periods, the owner or operator shall properly dispose of or decontaminate all contaminated equipment, structures, and soil unless specified otherwise in Regulations .18D, .19B(4), .20B(6), or .22B(3) of this chapter, or in 40 CFR §265.280, which is incorporated by reference in Regulation .21A of this chapter.

B. By removing all hazardous wastes or hazardous constituents during partial and final closure, the owner or operator may become a generator of hazardous waste and shall handle that hazardous waste in accordance with all applicable requirements of COMAR 26.13.03.

#### Regulation .11 Certification of Closure.

*COMAR 26.13.06.11*

A. Within 60 days of completion of closure of each hazardous waste surface impoundment, waste pile, land treatment unit, and landfill unit, and within 60 days of completion of final closure, the owner or operator shall submit to the Secretary, by registered mail, a certification that the hazardous waste management unit or facility, as applicable, has been closed in accordance with the specifications in the approved closure plan.

B. The certification required in §A of this regulation shall be signed by the owner or operator and by an independent registered professional engineer.

C. The owner or operator shall furnish documentation supporting the independent registered professional engineer's certification to the Secretary upon request until the owner or operator is released from the financial assurance requirements for closure under 40 CFR §265.143(h), which is incorporated by reference in Regulation .16 of this chapter.

#### Regulation .12 Post-Closure.

*COMAR 26.13.06.12*

A. Applicability. This regulation and Regulations .13 —.15 of this chapter apply to the owners and operators of:

  (1) All hazardous waste disposal facilities;

  (2) Waste piles and surface impoundments for which the owner or operator intends to remove the wastes at closure to the extent that these regulations are made applicable to these facilities in Regulation .19B(4) or .20B(6) of this chapter;

  (3) Tank systems that are required under Regulation .18D of this chapter to meet, under COMAR 26.13.05.10-7C, the requirements for landfills;

  (4) Hazardous waste munitions and explosives storage units that are required under Regulation .28 of this chapter to meet, under COMAR 26.13.05.21C(3), the requirements for landfills; and

  (5) Containment buildings that are required under Regulation .29 of this chapter to meet, under COMAR 26.13.05.18-3C, the requirements for landfills.

B. Survey Plat.

  (1) Not later than the date of submission of the certification of closure of each hazardous waste disposal unit, an owner or operator shall submit to the local zoning authority, or the authority with jurisdiction over local land use, and to the Secretary, a survey plat indicating the location and dimensions of landfill cells or other hazardous waste disposal units with respect to permanently surveyed benchmarks.

  (2) The survey plat shall be prepared and certified by a professional land surveyor.

  (3) The survey plat filed with the local zoning authority or the authority with jurisdiction over local land use, as required in §B(1) of this regulation, shall contain a note, prominently displayed, which states the owner's or operator's obligation to restrict disturbance of the hazardous waste disposal unit in accordance with the applicable requirements of Regulations .07—.15 of this chapter.

C. Post-Closure Care and Use of Property.

  (1) Post-closure care for each hazardous waste management unit subject to the requirements of this section and Regulations .13—.15 of this chapter shall begin after completion of closure of the unit and continue for 30 years after that date.

  (2) Post-closure care required in §C(1) of this regulation shall consist of at least the following:

    (a) Monitoring and reporting in accordance with the requirements of Regulations .06 and .19—.22 of this chapter; and

    (b) Maintenance and monitoring of waste containment systems in accordance with the requirements of Regulations .06 and .19—.22 of this chapter.

  (3) The Secretary may, in accordance with §C(4) or (5) of this regulation, either shorten or lengthen the post-closure care period applicable to a hazardous waste management unit or facility:

    (a) At any time preceding closure of a hazardous waste unit or facility that is subject to post-closure care requirements or final closure; or

    (b) At any time during the post-closure period for a particular hazardous waste disposal unit.

  (4) The Secretary may shorten the post-closure care period applicable to a hazardous waste management unit or facility if:

    (a) All disposal units have been closed; and

    (b) The Secretary finds that the reduced period is sufficient to protect human health and the environment, for example, by determining that leachate or ground water monitoring results, characteristics of the hazardous waste, application of advanced technology, or alternative disposal, treatment, or reuse techniques indicate that the hazardous waste management unit or facility is secure.

  (5) The Secretary may extend the post-closure care period applicable to a hazardous waste management unit or facility if the Secretary finds that the extended period is necessary to protect human health and the environment. For example, the post-closure care period may be extended if leachate or ground water monitoring results indicate a potential for migration of hazardous wastes at levels which may be harmful to human health and the environment.

  (6) The Secretary may require, at partial and final closure, continuation of any of the security requirements of Regulation .02 of this chapter during part or all of the post-closure period when:

    (a) Hazardous wastes may remain exposed after completion of partial or final closure; or

    (b) Access by the public or domestic livestock may pose a hazard to human health.

  (7) If hazardous waste remains on or in a property after partial or final closure, a person may not engage in any post-closure use of the property which would disturb the integrity of the final cover, liners, or any other components of the containment system, or the function of the facility's monitoring systems, unless the Secretary finds that the disturbance:

    (a) Is necessary to the proposed use of the property, and will not increase the potential hazard to human health or the environment; or

    (b) Is necessary to reduce a threat to human health or the environment.

  (8) All post-closure care activities shall be in accordance with the provisions of the approved post-closure plan as specified in Regulation .13 of this chapter.

#### Regulation .13 Post-Closure Plan; Amendment of Plan.

*COMAR 26.13.06.13*

A. Written Plan.

  (1) By May 19, 1981, the owner or operator of a hazardous waste disposal unit shall have a written post-closure plan.

  (2) An owner or operator of a surface impoundment or waste pile who intends to remove all hazardous wastes at closure shall prepare a post-closure plan and submit it to the Secretary within 90 days of the date that the owner, operator, or Secretary determines that the hazardous waste management unit or facility shall be closed as a landfill, subject to the requirements of this regulation, Regulation .12C, and Regulations .14 and .15 of this chapter.

B. Except as provided in §C of this regulation, until final closure of the facility, the owner or operator shall furnish a copy of the most current post-closure plan to the Secretary upon request, including request by mail.

C. During site inspections, on the day of the inspection, the owner or operator of a facility without an approved post-closure plan shall provide a copy of the most current post-closure plan to any officer, employee, or representative of the Department who is designated by the Secretary.

D. Following certification of final closure, the approved post-closure plan shall be kept by the person or office specified in §E of this regulation during the post-closure period.

E. For each hazardous waste management unit subject to the requirements of this section, the owner or operator shall:

  (1) Identify in the post-closure plan the activities that will be carried on after closure of each disposal unit and the frequency of these activities; and

  (2) Include in the post-closure plan, at least, the following:

    (a) A description of the planned monitoring activities, and frequencies at which they will be performed, to comply with Regulations .06 and .19—.22 of this chapter during the post-closure care period,

    (b) A description of the planned maintenance activities, and frequencies at which they will be performed to ensure the integrity of the cap and final cover or other containment systems in accordance with the requirements of Regulations .19—.22 of this chapter,

    (c) A description of the planned maintenance activities, and frequencies at which they will be performed, to ensure the function of the monitoring equipment in accordance with the requirements of Regulations .06 and .19—.22 of this chapter, and

    (d) The name, address, and phone number of the person or office to contact about the hazardous waste disposal unit or facility during the post-closure care period.

F. Amendment of Plan.

  (1) The owner or operator may amend the post-closure plan at any time during the active life of the facility or during the post-closure care period.

  (2) An owner or operator with an approved post-closure plan shall submit a written request to the Secretary to authorize a change to the approved plan. The written request shall include a copy of the amended post-closure plan for approval by the Secretary.

  (3) The owner or operator shall amend the post-closure plan whenever:

    (a) Changes in operating plans or facility design affect the post-closure plan; or

    (b) Events, which occur during the active life of the facility, including partial and final closures, affect the post-closure plan.

  (4) The owner or operator shall amend the post-closure plan:

    (a) At least 60 days before a proposed change in facility design or operation which will affect the post-closure plan; or

    (b) Not later than 60 days after an unexpected event has occurred which has affected the post-closure plan.

  (5) An owner or operator with an approved post-closure plan shall submit the amended plan required by §F(3) and (4) of this regulation to the Secretary:

    (a) At least 60 days before the proposed change in facility design or operation; or

    (b) Not more than 60 days after an unexpected event has occurred which has affected the post-closure plan.

  (6) An owner or operator of a surface impoundment who failed to remove all hazardous wastes at closure in accordance with Regulation .19B(4) of this chapter, or an owner or operator of a waste pile who failed to remove all hazardous wastes at closure in accordance with Regulation .20B(6) of this chapter, shall:

    (a) Close the unit as a landfill in accordance with Regulation .22B(3) of this chapter; and

    (b) Submit a post-closure plan to the Secretary within 90 days of the determination by the owner, operator, or Secretary that the unit is to be closed as a landfill.

  (7) Unless the amendment to the post-closure plan is a minor modification according to the criteria in COMAR 26.13.07.13—.13-3, the modification to the post-closure plan shall be approved according to the procedures in §§J—M of this regulation.

  (8) Modification at the Request of the Secretary.

    (a) The Secretary may request modifications to the post-closure plan under the conditions described in §F(3)(a) and (b) of this regulation.

    (b) An owner or operator with an approved post-closure plan shall submit the modified post-closure plan not later than 60 days after the request from the Secretary.

    (c) Unless the amendment to the post-closure plan is considered a minor modification according to the criteria in COMAR 26.13.07.13—.13-3, the modifications to the post-closure plan shall be approved in accordance with the procedures in §§J—M of this regulation.

    (d) If the Secretary determines that an owner or operator of a surface impoundment or waste pile who intended to remove all hazardous wastes at closure is required to close the facility as a landfill, the owner or operator shall submit a post-closure plan for approval to the Secretary within 90 days of the determination.

G. The owner or operator of a facility with hazardous waste management units subject to the requirements of this regulation shall submit a post-closure plan to the Secretary at least 180 days before the date on which the owner or operator expects to begin partial or final closure of the first hazardous waste disposal unit.

H. For the purpose of §G of this regulation, the date on which the owner or operator expects to begin closure of the first hazardous waste disposal unit shall be either:

  (1) Within 30 days after the date on which the hazardous waste management unit receives the known final volume of hazardous waste; or

  (2) If there is a reasonable possibility that the owner or operator of the hazardous waste management unit will place additional hazardous wastes in the unit, not later than 1 year after the date on which the most recent volume of hazardous wastes is placed in the unit.

I. The owner or operator of an interim status facility shall submit a post-closure plan to the Secretary not later than 15 days after:

  (1) Termination of interim status, except when a permit is issued to the facility simultaneously with termination of interim status; or

  (2) Issuance of a judicial decree or final orders under §3008 of RCRA or the Environment Article, Title 7, Annotated Code of Maryland, to cease receiving wastes or close.

J. The Secretary shall provide the owner or operator and the public, through a newspaper notice, the opportunity to submit written comments on the post-closure plan and request modifications to the plan for up to 30 days from the date of the notice.

K. The Secretary may, in response to a request or at the Secretary's discretion in the absence of a request, hold a public hearing if a hearing might clarify one or more issues concerning a post-closure plan. If a public hearing is held, the Secretary shall give public notice of the hearing at least 30 days before it occurs.

L. The Secretary shall:

  (1) Approve, modify, or disapprove the post-closure plan within 90 days of its receipt;

  (2) Provide the owner or operator with a detailed written statement of reasons for the disapproval if the Secretary does not approve the post-closure plan, and require that the owner or operator modify the plan or submit a new plan for approval within 30 days after receiving the written statement;

  (3) Approve or modify a post-closure plan revised in response to a disapproval under §L(1) of this regulation in writing within 60 days, and, if the Secretary further modifies the plan, designate this modified plan as the approved post-closure plan;

  (4) Ensure that the approved post-closure plan is consistent with this section and Regulations .12, .14, and .15 of this chapter; and

  (5) Mail to the owner or operator a copy of the plan as modified in §L(3) of this regulation and a detailed statement of reasons for the modifications to the owner or operator.

M. The Secretary may give notice of the public hearing under §K of this regulation at the same time as the notice of the opportunity to submit comments under §J of this regulation, and may combine the two notices.

N. The post-closure plan and length of the post-closure care period may be modified any time before the end of the post-closure care period.

O. The owner or operator or any member of the public may petition the Secretary to:

  (1) Extend or reduce the post-closure care period applicable to a hazardous waste management unit or facility based on cause; or

  (2) Alter the requirements of the post-closure care period based on cause.

P. A person submitting a petition as described in §O of this regulation shall include in the petition evidence demonstrating that:

  (1) The secure nature of the hazardous waste management unit or facility either makes the post-closure care requirements unnecessary, or supports reduction of the post-closure care period specified in the current post-closure plan, based upon information such as leachate or ground water monitoring results, characteristics of the wastes, application of advanced technology, or alternative disposal, treatment, or reuse techniques which indicate that the facility is secure; or

  (2) The requested extension in the post-closure care period or alteration of post-closure care requirements is necessary to prevent threats to human health and the environment, such as when leachate or ground water monitoring results indicate a potential for migration of hazardous wastes at levels which may be harmful to human health and the environment.

Q. Consideration of Petitions by the Secretary.

  (1) The Secretary shall consider the petitions described in §§O and P of this regulation only if the petitions present new and relevant information not previously considered by the Secretary.

  (2) In considering a petition, the Secretary:

    (a) Shall provide the owner or operator and the public, through a newspaper notice, the opportunity to submit written comments up to 30 days after the date of the notice;

    (b) Shall, in response to a request by the owner or operator or the public, hold a public hearing if a hearing might clarify one or more issues concerning the post-closure plan;

    (c) May, at the Secretary's discretion if no request is received, hold a public hearing if a hearing might clarify one or more issues concerning the post-closure plan;

    (d) Shall give the public notice of a hearing at least 30 days before the public hearing occurs; and

    (e) May give public notice of the hearing under §Q(2)(b) and (c) of this regulation at the same time as notice of the opportunity for written public comments under §Q(2)(a) of this regulation, and may combine the two notices.

  (3) After considering the public comments, the Secretary shall issue a final determination, based upon the criteria set forth in §P of this regulation.

  (4) If the Secretary denies a petition described in §O of this regulation, the Secretary shall send the petitioner a brief written response giving a reason for the denial.

R. The Secretary may:

  (1) Tentatively decide to modify the post-closure plan if the Secretary considers modification of the plan to be necessary to prevent threats to human health and the environment; and

  (2) Propose to extend or reduce the post-closure care period applicable to a hazardous waste management unit or facility based on cause or alter the requirements of the post-closure care period based on cause.

S. The Secretary shall provide the owner or operator and the affected public, through a newspaper notice, the opportunity to submit written comments up to 30 days after the date of the notice and the opportunity for a public hearing as described in §Q(2)(b) and (c) of this regulation.

T. After considering the comments received, the Secretary shall issue a final determination that is based upon the same criteria as required for petitions under §P of this regulation.

U. Temporary Suspension.

  (1) The Secretary may include, in the final determination under §R of this regulation, a modification of the post-closure plan, which includes, when appropriate, the temporary suspension rather than permanent deletion of one or more post-closure care requirements.

  (2) At the end of the specified period of suspension, the Secretary shall determine whether the requirements should be permanently discontinued or reinstated to prevent threats to human health and the environment.

#### Regulation .14 Post-Closure Notices.

*COMAR 26.13.06.14*

A. Not later than 60 days after certification of closure of each hazardous waste disposal unit, the owner or operator shall submit to the local zoning authority, or the authority with jurisdiction over local land use, and to the Secretary, a record of the type, location, and quantity of hazardous wastes disposed of within each cell or other disposal unit of the facility. For hazardous wastes disposed of before January 12, 1981, the owner or operator shall identify the type, location, and quantity of the hazardous wastes to the best of the owner or operator's knowledge and in accordance with any records that the owner or operator has kept.

B. Within 60 days of certification of closure of the first hazardous waste disposal unit and within 60 days of certification of closure of the last hazardous waste disposal unit, the owner or operator shall:

  (1) Record a notation on the deed to the facility property, or on some other instrument which is normally examined during title search, that will in perpetuity notify any potential purchaser of the property that:

    (a) The land has been used to manage hazardous wastes,

    (b) Its use is restricted under this regulation and Regulations .07—.15 of this chapter, and

    (c) The survey plat and record of the type, location, and quantity of hazardous wastes disposed of within each cell or other hazardous waste disposal unit of the facility required by Regulation .12B of this chapter and §A of this regulation have been filed with the local zoning authority, or the authority with jurisdiction over local land use, and with the Secretary; and

  (2) Submit to the Secretary:

    (a) A certification signed by the owner or operator that the owner or operator has recorded the notation specified in Regulation .14B(1) of this chapter; and

    (b) A copy of the document in which the notation has been placed.

C. If the owner, operator, or any subsequent owner of the land upon which a hazardous waste disposal unit was located wishes to remove hazardous wastes and hazardous waste residues, the liner, if any, and all contaminated structures, equipment, and soils, the owner or operator shall:

  (1) Request a modification to the approved post-closure plan in accordance with the requirements of Regulation .13N—U of this chapter;

  (2) Demonstrate that the removal of hazardous wastes will satisfy the criteria of Regulation .12C(7) of this chapter; and

  (3) Manage any hazardous waste generated in these removal activities in accordance with all applicable requirements of this subtitle.

D. If the owner or operator is granted approval to conduct the removal activities, the owner or operator may request that the Secretary approve either:

  (1) The removal of the notation on the deed to the facility property or other instrument normally examined during title search; or

  (2) The addition of a notation to the deed or instrument indicating the removal of the hazardous waste.

#### Regulation .15 Certification of Completion of Post-Closure Care.

*COMAR 26.13.06.15*

A. Not later than 60 days after the completion of the established post-closure care period for each hazardous waste disposal unit, the owner or operator shall submit to the Secretary, by registered mail, a certification that the post-closure care period for the hazardous waste disposal unit was performed in accordance with the specifications in the approved post-closure plan.

B. The certification required in §A of this regulation shall be signed by the owner or operator and an independent registered professional engineer.

C. Documentation supporting the independent registered professional engineer's certification shall be furnished to the Secretary upon request until the Secretary releases the owner or operator from the financial assurance requirements for post-closure care under 40 CFR §265.145(h), which is incorporated by reference in Regulation .16 of this chapter.

#### Regulation .16 Financial Requirements.

*COMAR 26.13.06.16*

A. Except as provided in §B of this regulation, an owner or operator of a facility subject to this chapter shall comply with 40 CFR §§265.140—265.148, which is incorporated by reference in COMAR 26.13.01.05B(1)(b).

B. For the purposes of this regulation:

  (1) Substitute “Secretary” for “Regional Administrator”;

  (2) Substitute “Department” for “Environmental Protection Agency”;

  (3) In establishing the financial assurance for closure required by 40 CFR §265.143, a person may not use the financial test or corporate guarantee described in 40 CFR §265.143(e);

  (4) In establishing the financial assurance for post-closure care required by 40 CFR §265.145, a person may not use the financial test or corporate guarantee described in 40 CFR §265.145(e);

  (5) 40 CFR §265.140(b)(3) is not incorporated by reference; and

  (6) In 40 CFR §265.142(a), the reference to 40 CFR §265.1102 is not applicable.

#### Regulation .17 Use and Management of Containers.

*COMAR 26.13.06.17*

The owner or operator of a facility at which containers are managed and who is subject to this chapter shall comply with COMAR 26.13.05.09.

#### Regulation .18 Requirements for Hazardous Waste Management in Tank Systems.

*COMAR 26.13.06.18*

A. General Requirements. An owner or operator of a tank or tank system who is subject to this chapter shall:

  (1) Except as provided in §§A(2), B, and C of this regulation, comply with COMAR 26.13.05.10—.10-6; and

  (2) If otherwise required by COMAR 26.13.05.10—.10-6 to comply with:

    (a) COMAR 26.13.05.10-7, comply instead with the requirements of §D of this regulation, and

    (b) COMAR 26.13.05.10-7C, comply instead with the requirements of §D(3) of this regulation.

B. Request for Variance from Secondary Containment; Additional Requirements.

  (1) The Secretary shall:

    (a) Inform the public, through a newspaper notice, of the availability of the demonstration for a variance required in COMAR 26.13.05.10-5F;

    (b) Place the notice in a daily or weekly major local newspaper of general circulation; and

    (c) Provide at least 30 days from the date of the notice for the public to review and comment on the demonstration for a variance.

  (2) Hearings on Demonstrations for Variances.

    (a) The Secretary shall, at the Secretary's discretion or in response to a request for a public hearing, hold a public hearing if a hearing might clarify one or more issues concerning the demonstration for a variance.

    (b) Public notice of the hearing:

      (i) Shall be given at least 30 days before the date of the public hearing; and

      (ii) May be given at the same time as notice of the opportunity for the public to review and comment on the demonstration for a variance.

  (3) The public notices required in §B(1)(a) and (2)(b) of this regulation may be combined.

  (4) Action on Request for Variance.

    (a) The Secretary shall approve or disapprove the written request for a variance within 90 days of receipt of the demonstration from the owner or operator, and shall notify in writing the owner, operator, and each person who submitted written comments or requested notice of the variance decision.

    (b) If the demonstration that is submitted in support of the written request for a variance is incomplete or does not include sufficient information, the 90-day time period under §B(4)(a) of this regulation shall begin when the Secretary receives a complete demonstration, including all information necessary to make a final determination.

  (5) If the public comment period in §B(1) of this regulation is extended, the 90-day time period under §B(4)(a) of this regulation shall be similarly extended.

C. An owner or operator of a tank or tank system:

  (1) Shall, in place of the requirement of COMAR 26.13.05.10D(1), inspect, if present, overfill or spill control equipment, such as waste-feed cutoff systems, bypass systems, and drainage systems, at least once each operating day to ensure that the equipment is in good working order;

  (2) Shall, in place of the requirement of COMAR 26.13.05.10-3B(9), provide the type and degree of corrosion protection necessary, based on the informational requirements of COMAR 26.13.05.10-3B(2)(c), to ensure the integrity of the tank system during its use;

  (3) Is not subject to the requirement of COMAR 26.13.05.10-3A that the written assessment required by COMAR 26.13.05.10-3B(1) be approved by the Secretary;

  (4) Shall substitute “COMAR 26.13.06.02G" for "40 CFR §264.18(a)" in COMAR 26.13.05.10-3B(2)(e)(ii);

  (5) Shall, in addition to the requirements of COMAR 26.13.05.10-4B(4), assure that the secondary containment system has sufficient strength and thickness to prevent failure due to the stress of installation;

  (6) Is not required to make the demonstrations to the Secretary required in COMAR 26.13.05.10-4B(6) and C; and

  (7) Shall, in place of the requirements of COMAR 26.13.05.10-4G(1)—(4), conduct an annual tank assessment that meets the requirements of COMAR 26.13.05.10-2B(3)(e) for both enterable and non-enterable tanks.

D. Closure and Post-Closure Care of Tank Systems.

  (1) At the closure of a tank system, the owner or operator shall remove or decontaminate all waste residues, contaminated containment system components, contaminated soils, and structures and equipment contaminated with waste, and manage them as hazardous waste, unless COMAR 26.13.02.03D applies.

  (2) An owner or operator shall ensure that the closure plan, closure activities, cost estimates for closure, and financial responsibility for tank systems meet all of the requirements specified in Regulations .07—.16 of this chapter.

  (3) If an owner or operator demonstrates that not all contaminated soils can be practicably removed or decontaminated as required in §D(1) of this regulation, then the owner or operator shall close the tank system and perform post-closure care in accordance with the closure and post-closure care requirements of Regulation .22 of this chapter which apply to landfills. In addition, for the purposes of closure, post-closure, and financial responsibility, the tank system is then considered to be landfill, and the owner or operator shall meet all of the requirements for landfills specified in Regulations .07—.16 of this chapter.

  (4) If an owner or operator has a tank system that does not have secondary containment that meets the requirements of COMAR 26.13.05.10-4B—F, and has not been granted a variance from the secondary containment requirements in accordance with COMAR 26.13.05.10-5, then the owner or operator shall:

    (a) Include in the closure plan for the tank system a:

      (i) Plan for complying with §D(1) of this regulation, and

      (ii) Contingent plan for complying §D(3) of this regulation;

    (b) Prepare and submit a contingent post-closure plan for complying with §D(3) of this regulation as part of the part B CHS permit application required under Regulation .01B(5) of this chapter;

    (c) Reflect, in the cost estimates calculated for closure and post-closure care, the costs of complying with the contingent closure plan and the contingent post-closure plan, if those costs are greater than the costs of complying with the closure plan prepared for the expected closure under §D(1) of this regulation;

    (d) Base financial assurance on the cost estimates developed in accordance with §D(4)(c) of this regulation; and

    (e) Ensure that the contingent closure and post-closure plans meet all of the closure, post-closure, and financial responsibility requirements for landfills under Regulations .07—.16 of this chapter.

#### Regulation .19 Surface Impoundments.

*COMAR 26.13.06.19*

A. Applicability. This regulation applies to owners and operators of facilities that use surface impoundments to treat, store, or dispose of hazardous waste, except as Regulation .01 of this chapter otherwise provides.

B. An owner or operator of a surface impoundment subject to this regulation shall comply with the following:

  (1) COMAR 26.13.05.11C(2), concerning freeboard, except as provided in §C of this regulation;

  (2) COMAR 26.13.05.11D(1), concerning protective covers for earthen dikes;

  (3) COMAR 26.13.05.11E, concerning waste analysis and trial test;

  (4) COMAR 26.13.05.11G(1) and (2), concerning closure and post-closure care, except that the owner or operator:

    (a) Shall, for the purposes of COMAR 26.13.05.11G(2), comply with the post-closure requirements of Regulations .12—.15 of this chapter instead of the requirements of COMAR 26.13.05.07G;

    (b) Is not required to comply with the requirement of COMAR 26.13.05.11G(2)(b) to maintain and monitor the leak detection system; and

    (c) Shall, for the purposes of compliance with COMAR 26.13.05.11G(2)(c), comply with the ground water monitoring requirements of Regulation .06 of this chapter instead of the requirements of COMAR 26.13.05.06—.06-7;

  (5) COMAR 26.13.05.11I, concerning ignitable or reactive wastes, except that the owner or operator may also place ignitable or reactive waste in a surface impoundment if the owner or operator:

    (a) Manages the waste in such a way that it is protected from any material or conditions which may cause it to ignite or react;

    (b) Obtains a certification from a qualified chemist or engineer that, to the best of the chemist's or engineer's knowledge and opinion, the design features or operating plans of the facility will prevent ignition or reaction; and

    (c) Maintains, at the facility, the certification required by §B(5)(b) of this regulation and the basis for the certification; and

  (6) COMAR 26.13.05.11J, concerning incompatible wastes.

C. Alternate Requirements Concerning Freeboard. The owner or operator:

  (1) May maintain a freeboard level less than 60 centimeters (2 feet) in a surface impoundment if the owner or operator obtains certification by a qualified engineer that alternate design features or operating plans will, to the best of the engineer's knowledge and opinion, prevent overtopping of the dike; and

  (2) Shall, if the owner or operator maintains a freeboard level of less than 60 centimeters, maintain at the facility:

    (a) The certification required by §C(1) of this regulation; and

    (b) Written identification of alternate design features or operating plans which will prevent overtopping.

D. Design Requirements.

  (1) This section applies to each new surface impoundment unit, replacement of an existing surface impoundment unit, or lateral expansion of an existing surface impoundment unit that is within the area identified in the part A permit application, which receives hazardous waste on or after May 8, 1985.

  (2) The owner or operator of a unit identified in §D(1) of this regulation shall install two or more liners and a leachate collection system between the liners in accordance with the requirements of COMAR 26.13.05.11D(4)—(8) and D-1.

E. Notification.

  (1) The owner or operator of each unit referred to in §D(1) of this regulation shall notify the Secretary in writing at least 60 days before receiving waste into the unit.

  (2) Persons submitting a written notice under §E(1) of this regulation shall file a part B application with the Department within 6 months of the date that the Secretary receives the written notice.

F. Liner and Leachate Collection System Requirements for Initial Permits.

  (1) Except as provided in §F(2) of this regulation, the Secretary, when issuing the first permit to a facility for a unit subject to this regulation, may not require the installation of a liner or leachate collection system different from that which was installed under §D(2) of this regulation if the owner or operator performed the installation in good faith compliance with:

    (a) The requirements of §D(2) of this regulation; and

    (b) Guidance documents governing liners and leachate collection systems under §D(2) of this regulation that have been issued by the Department or the U.S. Environmental Protection Agency, and which were the latest guidance at the time of installation of the system.

  (2) The Secretary may require the installation of a new liner if the Secretary has reason to believe that a liner installed in response to the requirements of §D(2) of this regulation is leaking.

F-1. Action Leakage Rate and Response Actions.

  (1) This section applies to the owner or operator of a surface impoundment unit identified in 40 CFR >S1>265.221(a).

  (2) The owner or operator shall:

    (a) Comply with the requirements of 40 CFR §265.222 and 40 CFR §265.223, subject to §F-1(2)(b) of this regulation; and

    (b) In complying with 40 CFR §265.222 and 40 CFR §265.223, substitute “Secretary” for “Regional Administrator”.

G. Inspections. The owner or operator of a surface impoundment shall:

  (1) Inspect, at least once each operating day:

    (a) The freeboard level to ensure compliance with COMAR 26.13.05.11C(2); or

    (b) The compliance with alternate design features or operating plans that serve to prevent overtopping if freeboard is allowed to be less than 60 centimeters in accordance with §C of this regulation;

  (2) Inspect, at least once a week, the surface impoundment, including dikes and vegetation surrounding the dikes, to detect any leaks, deterioration, or failures in the impoundment;

  (3) Comply with the requirements of 40 CFR §265.226(b) concerning the recording of information about the removal of liquids from leak detection system sumps, subject to §G(4) of this regulation; and

  (4) In complying with 40 CFR §265.226(b), substitute “Secretary” for “Regional Administrator”.

H. Compliance Schedule — Newly Regulated Impoundments.

  (1) The owner or operator of a surface impoundment that is newly subject to §3005(j)(1) of RCRA due to the promulgation of additional listings or characteristics for the identification of hazardous waste shall assure that the surface impoundment is in compliance with §D of this regulation not later than 48 months after the promulgation of the additional listing or characteristic.

  (2) The compliance period of §H(1) of this regulation may not be cut short as a result of the promulgation of land disposal restrictions under 40 CFR Part 268 or the granting of an extension to the effective date of a prohibition under 40 CFR §268.5 within the 48-month period identified in §H(1) of this regulation.

#### Regulation .20 Waste Piles.

*COMAR 26.13.06.20*

A. Applicability.

  (1) This regulation applies to owners and operators of facilities that store or treat hazardous waste in piles, except as §A(2) of this regulation or Regulation .01 of this chapter otherwise provides.

  (2) Instead of complying with the requirements of this regulation for the storage or treatment of hazardous waste in piles, an owner or operator may manage the pile of hazardous waste as a landfill in compliance with the requirements of Regulation .22 of this chapter.

  (3) This regulation is not applicable to waste piles that are closed with wastes left in place. Owners or operators of these waste piles shall comply with the requirements of Regulation .22 of this chapter.

B. An owner or operator of a waste pile subject to this regulation shall comply with:

  (1) COMAR 26.13.05.12B(6), concerning the control of wind dispersal of particulate matter;

  (2) COMAR 26.13.05.12C, concerning waste analysis;

  (3) COMAR 26.13.05.12E, concerning inspection and testing;

  (4) COMAR 26.13.05.12G, concerning special requirements for ignitable or reactive waste;

  (5) COMAR 26.13.05.12H, concerning special requirements for incompatible wastes;

  (6) COMAR 26.13.05.12I(1) and (2), concerning closure and post-closure care; and

  (7) The notification requirement of Regulation .19E of this chapter with respect to the waste pile.

C. Control of Precipitation, Run-off, and Run-on. If leachate or run-off from a pile is a hazardous waste, then the owner or operator shall ensure that either:

  (1) The following requirements are met:

    (a) The pile is placed on an impermeable base that is compatible with the waste under the conditions of treatment or storage; and

    (b) The facility is in compliance with:

      (i) COMAR 26.13.05.12B(3), concerning a run-on control system,

      (ii) COMAR 26.13.05.12B(4), concerning a run-off management system, and

      (iii) COMAR 26.13.05.12B(5), concerning collection and holding facilities for run-off and run-on; or

  (2) The following requirements are met:

    (a) The pile is protected from precipitation and run-on by some means other than that required by §C(1) of this regulation; and

    (b) Liquids or wastes containing free liquids are not placed in the pile.

D. Design Requirements — Liners and Leachate Collection Systems.

  (1) This section applies to each new waste pile unit, replacement of an existing waste pile unit, or lateral expansion of an existing waste pile unit that is within the area identified in the part A permit application, which receives hazardous waste on or after May 8, 1985.

  (2) The owner or operator of a unit identified in §D(1) of this regulation shall comply with the requirements of COMAR 26.13.05.12B and D for liners and leachate collection systems or equivalent protection.

E. Containment System Repairs, Contingency Plans. The owner or operator shall comply with the requirements of COMAR 26.13.05.12F, except that a waste pile that is to be closed under COMAR 26.13.05.12F(6) shall be closed in accordance with COMAR 26.13.05.12I(1) and (2).

F. Action Leakage Rate and Response Actions.

  (1) This section applies to the owner or operator of a waste pile identified in 40 CFR §265.254.

  (2) The owner or operator shall:

    (a) Comply with the requirements of 40 CFR §265.255 and 40 CFR §265.259, subject to §F(2)(b) of this regulation; and

    (b) In complying with 40 CFR §265.255 and 40 CFR §265.259, substitute “Secretary” for “Regional Administrator”.

#### Regulation .21 Land Treatment.

*COMAR 26.13.06.21*

A. Except as provided in §B of this regulation, an owner or operator of a land treatment facility shall comply with 40 CFR §§265.270—265.282, which are incorporated by reference in COMAR 26.13.01.05B(1)(b).

B. For the purposes of this regulation:

  (1) Substitute “Secretary” for “Regional Administrator”;

  (2) Substitute “COMAR 26.13.06.01” for “§265.1”;

  (3) In 40 CFR §265.280, substitute “In the closure plan under COMAR 26.13.06.08 and the post-closure plan under COMAR 26.13.06.12B ” for “In the closure plan under §265.112 and the post-closure plan under §265.118,”;

  (4) In 40 CFR §265.281, substitute “An owner or operator may not apply ignitable or reactive waste to a land treatment zone unless all applicable requirements of 40 CFR part 268 are met, and: ” for “The owner or operator must not apply ignitable or reactive waste to the treatment zone unless the waste and treatment zone meet all applicable requirements of 40 CFR part 268, and:”; and

  (5) In addition to the requirements of 40 CFR §265.272, the owner or operator shall operate and maintain the treatment zone to minimize run-off of hazardous constituents during the active life of the land treatment unit.

#### Regulation .22 Landfills.

*COMAR 26.13.06.22*

A. Applicability.

  (1) This regulation applies to facilities that dispose of hazardous waste in landfills, except as Regulation .01 of this chapter otherwise provides.

  (2) This regulation also applies to a waste pile used as a disposal facility. A waste pile used as a disposal facility is considered to be a landfill.

B. An owner or operator of a landfill subject to this regulation shall comply with the following:

  (1) COMAR 26.13.05.14B(6)—(9), concerning control of run-on, run-off, and wind dispersal of particulate matter;

  (2) COMAR 26.13.05.14I, concerning surveying and record keeping;

  (3) COMAR 26.13.05.14J, concerning closure and post-closure care, except that:

    (a) For the purposes of compliance with COMAR 26.13.05.14J(2), the owner or operator shall comply with the requirements of Regulations .12—.15 of this chapter instead of the requirements of COMAR 26.13.05.07GJ; and

    (b) For the purposes of compliance with COMAR 26.13.05.14J(2)(c), the owner or operator shall comply with the groundwater monitoring requirements contained in Regulation .06 of this chapter instead of the requirements of COMAR 26.13.05.06.—06-7;

  (4) COMAR 26.13.05.14L, concerning special requirements for ignitable or reactive waste, except that ignitable waste in a container may be landfilled without meeting the requirements of COMAR 26.13.05.14L if:

    (a) Neither the container nor the waste contains free liquids;

    (b) The waste is disposed of in such a way that it is protected from any materials or conditions which may cause it to ignite;

    (c) At a minimum, the owner or operator assures that:

      (i) The waste is disposed of in nonleaking containers;

      (ii) The container in which the waste is packaged is carefully handled and placed so as to avoid heat, sparks, rupture, or any other condition which might cause ignition of the waste;

      (iii) The waste is covered daily with soil or other noncombustible material to minimize the potential for ignition of the waste; and

      (iv) The waste is not disposed of in cells that contain or will contain other wastes which may generate heat sufficient to cause ignition of the waste;

  (5) COMAR 26.13.05.14M, concerning special requirements for incompatible wastes; and

  (6) COMAR 26.13.05.14O, concerning special requirements for containers.

C. Design Requirements.

  (1) This section applies to each new landfill unit, replacement of an existing landfill unit, or lateral expansion of an existing landfill unit that is within the area identified in the part A permit application, which receives hazardous waste on or after May 8, 1985.

  (2) The owner or operator of a unit identified in §C(1) of this regulation shall:

    (a) Install two or more liners and a leachate collection and removal system above and between the liners; and

    (b) Ensure that the installation of the liners and the installation and operation of the leachate collection and removal system are conducted in accordance with the requirements of COMAR 26.13.05.14B(3)(5).

D. Notification.

  (1) The owner or operator of each unit referred to in §C(1) of this regulation shall notify the Secretary at least 60 days before receiving waste into the unit.

  (2) Persons submitting notice under §D(1) of this regulation shall file a part B application with the Department within 6 months of the date that the Secretary receives the notice.

E. Liner and Leachate Collection System—Requirements for Initial Permits.

  (1) Except as provided in §E(2) of this regulation, the Secretary, when issuing the first permit to a facility for a unit subject to this regulation, may not require the installation of a liner or leachate collection system different from that which was installed under §C(2) of this regulation if the owner or operator performed the installation in good faith compliance with:

    (a) The requirements of §C(2) of this regulation; and

    (b) Guidance documents governing liners and leachate collection systems under §C(2) of this regulation that have been issued by the Department or the U.S. Environmental Protection Agency, and which were the latest guidance at the time of installation of the system.

  (2) The Secretary may require the installation of a new liner if the Secretary has reason to believe that a liner installed in response to the requirements of §C(2) of this regulation is leaking.

E-1. Action Leakage Rate and Response Actions.

  (1) This section applies to the owner or operator of a landfill identified in 40 CFR §265.301(a).

  (2) The owner or operator shall:

    (a) Comply with the requirements of 40 CFR §265.302 and 40 CFR §265.303, subject to §E-1(2)(b) of this regulation; and

    (b) In complying with 40 CFR §265.302 and 40 CFR §265.303, substitute “Secretary” for “Regional Administrator”.

E-2. Monitoring and Inspection. The owner or operator of a landfill that is subject to §E-1 of this regulation shall:

  (1) Comply with the requirements of 40 CFR §265.304, subject to §E-2(2) of this regulation; and

  (2) In complying with 40 CFR §265.304, substitute “Secretary” for “Regional Administrator”.

F. Special Requirements for Liquid Wastes and Containers.

  (1) Liquids in Landfills Prohibition.

    (a) Except as provided in §F(3) of this regulation, a person may not place waste containing free liquids in a landfill, including bulk waste, noncontainerized waste, or waste in containers.

    (b) The prohibition of §F(1)(a) of this regulation applies regardless of whether sorbents have been added to the waste.

    (c) A person may not use a sorbent to eliminate free liquids from a waste that is to be disposed of in a landfill unless the sorbent meets the requirements of 40 CFR §264.314(d).

  (2) To demonstrate the absence or presence of free liquids for the purposes of §F(1) of this regulation, a person shall use Method 9095 (Paint Filter Liquids Test) as described in “Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods”, EPA Publication SW-846, as incorporated by reference in COMAR 26.13.01.05A(4).

  (3) A person may place in a landfill small containers of hazardous waste in overpacked drums, referred to as “lab packs”, if the person assures that the following requirements are met:

    (a) The lab pack does not hold any waste that contains free liquids;

    (b) The hazardous waste is packaged in nonleaking inside containers which:

      (i) Will not react dangerously with the waste the inside containers contain;

      (ii) Will not be decomposed by the waste the inside containers contain;

      (iii) Will not be ignited by the waste the inside containers contain;

      (iv) Are tightly and securely sealed; and

      (v) Are of the type specified in the U.S. Department of Transportation hazardous materials regulations (49 CFR 173, 178, and 179) if those regulations specify a particular inside-container for the waste;

    (c) The inside containers are:

      (i) Overpacked in an open head DOT-specification metal shipping container, as described in 49 CFR 178 and 179, which has a capacity of 416 liters (110 gallons) or less; and

      (ii) Surrounded by absorbent material such that the metal outer container is full after packing with inside containers and absorbent material;

    (d) The absorbent material required by §F(3)(c)(ii) of this regulation is not capable of reacting dangerously with, being decomposed by, or being ignited by, the contents of the inside containers;

    (e) Incompatible wastes are not placed in the same outside container; and

    (f) Reactive waste is treated or rendered nonreactive before it is packaged in accordance with §F(3)(a)—(e) of this regulation, except that cyanide-bearing or sulfide-bearing waste as described in COMAR 26.13.02.13A(5) may be packaged in accordance with §F(3)(a)—(e) of this regulation without first being treated or rendered nonreactive.

#### Regulation .23 Incinerators.

*COMAR 26.13.06.23*

A. Applicability.

  (1) This regulation applies to owners and operators of facilities that incinerate hazardous waste, except as Regulation .01 of this chapter otherwise provides.

  (2) The following owners or operators are considered to incinerate hazardous waste:

    (a) Owners or operators of hazardous waste incinerators as defined in COMAR 26.13.01.03B; and

    (b) Owners or operators who burn hazardous wastes in boilers or in industrial furnaces in order to destroy the wastes.

B. Except as provided in §C of this regulation, an owner or operator of a facility who treats hazardous waste by thermal destruction as defined in COMAR 26.13.01.03B shall comply with 40 CFR §§265.340(b)—265.351, which is incorporated by reference in COMAR 26.13.01.05B(1)(b).

C. An owner or operator of an incinerator subject to this regulation may not burn EPA Hazardous Wastes F020, F021, F022, F023, F026, or F027.

#### Regulation .24 Thermal Treatment and Open Burning.

*COMAR 26.13.06.24*

A. Except as provided in §B of this regulation, an owner or operator of a facility in which thermal treatment and open burning is conducted shall comply with 40 CFR §§265.370—265.382, which is incorporated by reference in COMAR 26.13.01.05B(1)(b).

B. For the purposes of this regulation:

  (1) Owners and operators of thermal treatment devices subject to this regulation may not burn EPA Hazardous Wastes F020, F021, F022, F023, F026, or F027; and

  (2) In 40 CFR §265.370, delete the clause “and Subpart H of part 266, if the unit is a boiler or industrial furnace as defined in §260.10”.

#### Regulation .25 Chemical, Physical, and Biological Treatment.

*COMAR 26.13.06.25*

A. Except as provided in §B of this regulation and COMAR 26.13.01.05B(2), an owner or operator who treats hazardous waste using chemical, physical, or biological methods shall comply with 40 CFR §265.400—265.406.

B. For the purposes of this regulation:

  (1) Substitute “COMAR 26.13.06.01” for “§265.1”; and

  (2) In 40 CFR §265.400, substitute “COMAR 26.13.06.18, .19, and .21” for “subparts J, K, and M respectively”.

#### Regulation .26 Drip Pads.

*COMAR 26.13.06.26*

A. Except as provided in §B of this regulation, an owner or operator using drip pads who is subject to this chapter shall comply with the requirements of COMAR 26.13.05.17-1—.17-4.

B. In complying with COMAR 26.13.05.17-4B, the reference to Regulation .22 of this chapter replaces COMAR 26.13.05.14J.

#### Regulation .27 Underground Injection Control.

*COMAR 26.13.06.27*

A person may not dispose of hazardous waste by underground injection.

#### Regulation .28 Hazardous Waste Munitions and Explosives Storage.

*COMAR 26.13.06.28*

The owner or operator of a facility at which hazardous waste munitions or hazardous waste explosives are stored and who is subject to this chapter shall comply with COMAR 26.13.05.21.

#### Regulation .29 Containment Buildings.

*COMAR 26.13.06.29*

The owner or operator of a facility at which a containment building is used to manage hazardous waste and who is subject to this chapter shall comply with COMAR 26.13.05.18 —.18-3.

### Chapter 07 — Permits for CHS Facilities

**Authority:** Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.05 adopted as an emergency provision effective November 18, 1980 (7:25 Md. R. S-1); adopted permanently effective April 3, 1981 (8:7 Md. R. 642)

**Administrative History:** Regulation .01 amended effective January 18, 1982 (9:1 Md. R. 20)

**Administrative History:** Regulation .02A—F repealed, and new .02A—O adopted effective January 31, 1983 (10:2 Md. R. 110)

**Administrative History:** Regulations .02A, B, F, J, L, M, N, .03A, B, C, L, M amended and .01C, P, and .05 adopted effective February 13, 1984 (11:3 Md. R. 202)

**Administrative History:** Regulations .02A, C, J, .03I amended and .01D, E, and .02Q adopted effective July 30, 1984 (11:15 Md. R. 1330)

**Administrative History:** Regulation .03A—E repealed, and new .03A—M adopted effective January 31, 1983 (10:2 Md. R. 110)

**Administrative History:** Regulation .05 repealed effective January 31, 1983 (10:2 Md. R. 110)

**Administrative History:** Chapter recodified from COMAR 10.51.07 to COMAR 26.13.07

**Administrative History:** Regulation .01 amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .01A amended effective May 24, 1993 (20:10 Md. R. 853)

**Administrative History:** Regulation .01F amended and G adopted effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .02A—D, J—L, and P amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .02D and E amended effective April 1, 1991 (18:6 Md. R. 690); May 24, 1993 (20:10 Md. R. 853)

**Administrative History:** Regulation .02F amended effective May 24, 1993 (20:10 Md. R. 853); April 11, 1994 (21:7 Md. R. 533)

**Administrative History:** Regulation .02I adopted effective April 11, 1994 (21:7 Md. R. 533)

**Administrative History:** Regulation .02R adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .03B, C, F, G, and L amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .04C adopted effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .05B amended effective April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Regulation .11B amended effective December 23, 1991 (18:25 Md. R. 2759); April 11, 1994 (21:7 Md. R. 533)

**Administrative History:** Regulation .13 amended and recodified as Regulations .13 and .13-1—.13-3 adopted effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .13-1C adopted effective April 11, 1994 (21:7 Md. R. 533)

**Administrative History:** Regulation .13-2A amended effective April 11, 1994 (21:7 Md. R. 533)

**Administrative History:** Regulation .15E amended effective May 5, 1997 (24:9 Md. R. 659)

**Administrative History:** Regulation .21A, B amended effective March 15, 1993 (20:5 Md. R. 515)

**Administrative History:** Regulation .22B amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Chapter revised effective September 10, 1997 (24:5 Md. R. 413)

**Administrative History:** Chapter revised effective October 16, 2000 (27:20 Md. R. 1843)

**Administrative History:** Regulation .11D amended effective November 1, 2002 (29:15 Md. R. 1647)

**Administrative History:** Regulation .13-2A amended effective November 1, 2002 (29:15 Md. R. 1647)

**Administrative History:** Regulation .23C amended effective November 1, 2002 (29:15 Md. R. 1647)

**Administrative History:** Chapter revised effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .01F repealed effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .02D amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .02-4B amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .02-5B amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .02-6C amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .02-8B amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .13-2A amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .17B amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .20B amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .20-1 amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .20-2 amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .20-3C amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .20-4 amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .20-5 amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .20-6 amended effective October 1, 2025 (52:17 Md. R. 876)

#### Regulation .01 Permit Required.

*COMAR 26.13.07.01*

A. Except for persons identified in COMAR 26.13.05.01 A(3) or D, 26.13.06.01A(4) or (5), or 26.13.07.23A(1), a person may not operate any facilities without first obtaining a valid CHS permit from the Department. A CHS permit will not be issued without the facility first having applied for an EPA identification number.

B. A person may not begin physical construction of a new facility without having submitted a complete permit application and having received a final permit under this chapter.

C. A facility that is no longer operating but is maintained to permanently contain CHS and does not receive any additional CHS shall also be required to obtain a valid permit from the Department.

D. A permit may be issued or denied for one or more units at a facility without simultaneously issuing or denying a permit to all of the units at the facility.

E. Record Keeping. Applicants shall keep records of all data used to complete permit applications and any supplemental information submitted under this chapter for a period of at least 3 years from the date the application is signed.

#### Regulation .02 Application for a Permit.

*COMAR 26.13.07.02*

A. Any person who is required to have a permit (including new applicants and permittees with expiring permits) shall complete, sign and submit an application to the Secretary as described in this section. Procedures for application, issuance and administration of research, development, and demonstration permits are found exclusively in Regulation .19.

B. When a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit. The owner shall also sign the permit application.

C. Completeness. The Secretary may not issue a permit before receiving a complete application for a permit. An application for a permit under a program is complete when the Secretary receives an application form, and any supplemental information, which is completed to the Secretary's satisfaction. An application may be deemed by the Secretary as complete, notwithstanding the failure of the owner or operator to submit the exposure information described in §D(37) of this regulation. The Secretary shall judge the completeness of any application for a permit independently of the status of any other permit application or permit for the same facility or activity. The Secretary may deny a permit for the active life of a hazardous waste management unit before receiving a complete application for a permit.

C-1. Permit Application—General Requirements.

  (1) Persons submitting a permit application to the Department under this regulation shall submit a duplicate application at the same time to the Region 3 office of the U.S. Environmental Protection Agency.

  (2) Permit applicants shall assure that permit applications they are submitting are signed in accordance with §§A and B of this regulation and Regulation .03 of this chapter.

D. Permit Information. All applicants, using an application format acceptable to the Department, shall provide the following information to the Secretary:

  (1) The activities conducted by the applicant which require it to obtain a permit.

  (2) Name, mailing address, and location of the facility for which the application is submitted.

  (3) Up to four SIC codes which best reflect the principal products or services provided by the facility.

  (4) The operator's name, address, telephone number, ownership status, and status as federal, State, private, public or other entity.

  (5) A listing of all permits or construction approvals received or applied under any of the following programs:

    (a) Hazardous Waste Management program under the Resource Conservation and Recovery Act;

    (b) Underground Injection Control program under the Safe Drinking Water Act;

    (c) NPDES program under the Clean Water Act;

    (d) Prevention of Significant Deterioration (PSD) program under the Clean Air Act;

    (e) Nonattainment program under the Clean Air Act;

    (f) National Emission Standards for Hazardous Pollutants (NESHAPS) preconstruction approval under the Clean Air Act;

    (g) Ocean dumping permits under the Marine Protection Research and Sanctuaries Act;

    (h) Dredge or fill permits under §404 of the Clean Water Act;

    (i) Other relevant environmental permits, including State permits.

  (6) A topographic map (or other map if a topographic map is unavailable) extending 1 mile beyond the property boundaries of the source, depicting the facility and:

    (a) Each of its intake and discharge structures;

    (b) Each of its hazardous waste treatment, storage, or disposal facilities;

    (c) Each well where fluids from the facility are injected underground; and

    (d) Those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant within 1/4 mile of the facility property boundary.

  (7) A brief description of the nature of business.

  (8) The latitude and longitude of the facility.

  (9) The name, address, and telephone number of the owner of the facility.

  (10) An indication of whether the facility is new or existing and whether it is a first or revised application.

  (11) For existing facilities, a scale drawing of the facility showing the location of all past, present, and future treatment, storage, and disposal areas.

  (12) For existing facilities, photographs of the facility clearly delineating all:

    (a) Existing structures;

    (b) Existing treatment, storage, and disposal areas; and

    (c) Sites of future treatment, storage, and disposal areas.

  (13) A description of the processes to be used for treating, storing, and disposing of hazardous waste, and the design capacity of these items.

  (14) A specification of the hazardous wastes listed or designated in COMAR 26.13.02 to be treated, stored, or disposed at the facility, an estimate of the quantity of the wastes to be treated, stored, or disposed of annually, and a general description of the processes to be used for the wastes.

  (15) A general description of the facility.

  (16) Chemical and physical analyses of the hazardous wastes to be handled at the facility. At a minimum, these analyses shall contain all the information which must be known to treat, store, or dispose of the wastes in accordance with COMAR 26.13.05.

  (17) A copy of the waste analysis plan required by COMAR 26.13.05.02D.

  (18) A description of the security procedures and equipment required by COMAR 26.13.05.02E.

  (19) A copy of the general inspection schedule required by COMAR 26.13.05.02F(2). Include, when applicable, as part of the inspection schedule, specific requirements in COMAR 26.13.05.09E, .10D, .10-4G, .11F, .12E, .13D, .14C, .16I, .16-1C.

  (20) A justification of any request for a waiver or waivers of the preparedness and prevention requirements of COMAR 26.13.05.03.

  (21) A copy of the contingency plan required by COMAR 26.13.05.04.

  (22) A description of procedures, structures, or equipment used at the facility to:

    (a) Prevent hazardous discharge in unloading operations (for example, ramps, special forklifts);

    (b) Prevent runoff from hazardous waste handling areas to other areas of the facility or environment, or to prevent flooding (for example, berms, dikes, trenches);

    (c) Prevent contamination of water supplies;

    (d) Mitigate effects of equipment failure and power outages;

    (e) Prevent undue exposure of personnel to hazardous waste (for example, protective clothing).

  (23) Traffic pattern, volume, and control (for example, show turns across traffic lanes, and stacking lanes if appropriate, provide access road surfacing and load bearing capacity, show traffic control signals, provide estimates of traffic volume (number of types of vehicles)).

  (24) A description of precautions to prevent accidental ignition or reaction of ignitable, reactive, or incompatible wastes as required to demonstrate compliance with COMAR 26.13.05.02H including documentation demonstrating compliance with COMAR 26.13.05.02H(3).

  (25) The political jurisdiction in which the facility is proposed to be located.

  (26) Flood Map.

    (a) Owners and operators of all facilities shall provide an identification of whether the facility is located within a 100-year flood plain. This identification shall indicate the source of data for the determination and include a copy of the relevant Federal Insurance Administration (FIA) flood map, if used, or the calculations and maps used if a FIA map is not available. Information shall also be provided identifying the 100-year flood level and any other special flooding factors (for example, wave action) which shall be considered in designing, constructing, operating, or maintaining the facility to withstand washout from a 100-year flood.

    (b) If maps for the National Flood Insurance Program produced by the Federal Emergency Management Agency are available, they will normally be determinative whether a facility is located within or outside of the 100-year flood plain. However, if the FIA map excludes an area (usually areas of the flood plain less than 200 feet in width), these areas shall be considered and a determination made as to whether they are in the 100-year flood plain.

    (c) If FIA maps are not available for a proposed facility location, the owner or operator shall use equivalent mapping techniques to determine whether the facility is within the 100-year flood plain, and if so located, what the 100-year flood elevation would be.

  (27) Owners and operators of facilities located in the 100-year flood plain shall provide the following information:

    (a) Engineering analysis to indicate the various hydrodynamic and hydrostatic forces expected to result at the site as a consequence of a 100-year flood.

    (b) Structural or other engineering studies showing the design of operational units (for example, tanks, incinerators) and flood protection devices (for example, floodwalls, dikes) at the facility, and how these will prevent washout.

    (c) If applicable, and instead of the information required by §D(27)(a) and (b) of this regulation, a detailed description of procedures to be followed to remove hazardous waste safely before the facility is flooded, including:

      (i) The timing of movement relative to flood levels, including estimated time to move the waste, to show that this movement can be completed before flood waters reach the facility;

      (ii) A description of the location or locations to which the waste will be moved and a demonstration that those facilities will be eligible to receive hazardous waste in accordance with COMAR 26.13.0126.13.09;

      (iii) The planned procedures, equipment, and personnel to be used and the means to ensure that the resources will be available in time for use; and

      (iv) The potential for accidental discharges of the waste during movement.

    (d) For an existing facility not in compliance with the requirements of COMAR 26.13.05.02-1B(2), a plan showing how the facility will be brought into compliance and a schedule for compliance.

  (28) An outline of both the introductory and continuing training programs by owners or operators to prepare persons to operate or maintain the HWM facility in a safe manner as required to demonstrate compliance with COMAR 26.13.05.02G. A brief description of how training will be designed to meet actual job tasks in accordance with requirements in COMAR 26.13.05.02G(1)(c).

  (29) A copy of the closure plan and, when applicable, the post-closure plan required by COMAR 26.13.05.07C and H. An owner or operator shall include, when applicable, as part of the plan, specific requirements in COMAR 26.13.05.09I, .10-7, .11G, .12I, .13K, .14J, .16L, and .16-1B and D.

  (30) For hazardous waste disposal units that have been closed, documentation that notices required under COMAR 26.13.05.07I have been filed.

  (31) The most recent closure cost estimate for the facility prepared in accordance with 40 CFR §264.142, as incorporated by reference in COMAR 26.13.05.08, and a copy of the documentation required to demonstrate financial assurance under 40 CFR §264.143, as incorporated by reference in COMAR 26.13.05.08. For a new facility, a copy of the required documentation may be submitted 60 days before the initial receipt of hazardous wastes, if that is later than the submission of the permit application.

  (32) If applicable, the most recent post-closure cost estimate for the facility prepared in accordance with 40 CFR §264.144, as incorporated by reference in COMAR 26.13.05.08, plus a copy of the documentation required to demonstrate financial assurance under 40 CFR §264.145, as incorporated by reference in COMAR 26.13.05.08. For a new facility, a copy of the required documentation may be submitted 60 days before the initial receipt of hazardous wastes, if that is later than the submission of the permit application.

  (33) When applicable, a copy of the insurance policy or other documentation which comprises compliance with the requirements of 40 CFR §264.147. For a new facility, documentation showing the amount of insurance meeting the specification of 40 CFR §264.147(a) and, if applicable, 40 CFR §264.147(b), that the owner or operator plans to have in effect before initial receipt of hazardous waste for treatment, storage, or disposal. A request for a variance in the amount of required coverage, for a new or existing facility, may be submitted as specified in 40 CFR §264.147(c).

  (34) When appropriate, proof of coverage by a State financial mechanism in compliance with 40 CFR §§264.149—264.150.

  (35) A topographic map showing a distance of 1,000 feet around the facility at a scale of 2.5 centimeters (1 inch) equal to not more than 61.0 meters (200 feet). Contours shall be shown on the map. The contour interval shall be sufficient to clearly show the pattern of surface water flow in the vicinity of and from each operational unit of the facility. For example, contours with an interval of 1.5 meters (5 feet), if relief is greater than 6.1 meters (20 feet), or an interval of 0.6 meter (2 feet), if relief is less than 6.1 meters (20 feet). Owners and operators of hazardous waste management facilities located in mountainous areas should use larger contour intervals to adequately show topographic profiles of facilities. The map shall clearly show the following:

    (a) Map scale and date;

    (b) 100-year flood plain area;

    (c) Surface waters including intermittent streams;

    (d) Surrounding land uses (residential, commercial, agricultural, recreational);

    (e) A wind rose (for example, prevailing windspeed and direction);

    (f) Orientation of the map (north arrow);

    (g) Legal boundaries of the hazardous waste management facility site;

    (h) Access control (fences, gates);

    (i) Injection and withdrawal wells both on-site and off-site;

    (j) Building, treatment, storage, or disposal operations, or other structures (recreation areas, runoff control systems, access and internal roads, storm, sanitary, and process sewerage systems, loading and unloading areas, fire control facilities, etc.);

    (k) Barriers for drainage or flood control;

    (l) Location of operational units within the hazardous waste management facility site, where hazardous waste is (or will be) treated, stored, or disposed (include equipment cleanup areas).

  (36) Applicants may be required to submit such information as may be necessary to enable the Secretary to carry out his duties.

  (37) Exposure Information.

    (a) After August 8, 1985, any permit application submitted by an owner or operator of a facility that stores, treats, or disposes of hazardous waste in a surface impoundment or a landfill shall be accompanied by information, reasonably ascertainable by the owner or operator, on the potential for the public to be exposed to hazardous wastes or hazardous constituents through releases related to the unit.

    (b) The owner or operator shall assure that information submitted in accordance with §D(37)(a) of this regulation includes, at a minimum:

      (i) Reasonably foreseeable potential releases from both normal operations and accidents at the unit, including releases associated with transportation to or from the unit;

      (ii) The potential pathways for human exposure to hazardous wastes of constituents resulting from the releases described under §D(37)(a); and

      (iii) The potential magnitude and nature of the human exposure resulting from these releases.

    (c) The owner or operator of a landfill or a surface impoundment who has already submitted a part B permit application shall submit the exposure information required in §D(37)(a) and (b) of this regulation by August 8, 1985.

  (38) A copy of the contingency plan required by COMAR 26.13.05.04, including, when applicable, as part of the contingency plan, specific requirements in COMAR 26.13.05.11H.

  (39) For each preapplication public meeting held in accordance with Regulation .19-1B of this chapter, the following information as required by Regulation .19-1B(2) of this chapter:

    (a) A summary of the meeting;

    (b) A list of persons who attended the meeting and the addresses provided by these persons; and

    (c) Copies of any written comments or materials submitted at the meeting.

  (40) For hazardous debris that the facility will manage, a description of each debris category and each contaminant category to be treated, stored, or disposed of at the facility.

  (41) For a land disposal facility, if a case-by-case extension has been approved under 40 CFR §268.5 or a petition has been approved under 40 CFR §268.6, a copy of the notice of approval for the extension or petition.

E. Any facility with an effective permit shall submit to the Secretary a new application at least 180 days before the expiration date of the effective permit, unless permission for a later date has been granted by the Secretary. The later date may not be after the expiration date of the effective permit.

#### Regulation .02-1 Additional Information Requirements — Ground Water Protection.

*COMAR 26.13.07.02-1*

A. Applicability. This regulation applies to persons seeking or required to obtain a controlled hazardous substances (CHS) facility permit to manage hazardous waste in a regulated unit, as defined in COMAR 26.13.05.06A(2)(b).

B. Except as otherwise provided in COMAR 26.13.05.06A(3), a person subject to this regulation shall provide the following additional information regarding protection of ground water as a part of the permit application:

  (1) A summary of the ground water monitoring data obtained from the requirements of COMAR 26.13.05.06A—E, when applicable;

  (2) Identification of the uppermost aquifer and aquifers hydraulically interconnected beneath the facility property, including ground water flow direction and rate, and the basis for the identification, such as the information obtained from hydrogeologic investigation of the facility area;

  (3) On the topographic map required under Regulation .02D(6) of this chapter, a delineation of the waste management area, the property boundary, the proposed point of compliance as defined under COMAR 26.13.05.06-1D, the proposed location of ground water monitoring wells as required under COMAR 26.13.05.06-2 and, to the extent possible, the information required in §B(2) of this regulation;

  (4) A description of any plume of contamination that has entered the ground water from a regulated unit at the time the application is submitted that:

    (a) Delineates the extent of the plume on the topographic map required under Regulation .02D(6)(b) of this chapter; and

    (b) Identifies the concentration of each constituent from Appendix IX Ground Water Monitoring List of 40 CFR Part 264, which is incorporated by reference in COMAR 26.13.01.05B(1)(c), throughout the plume, or identifies the maximum concentrations of each constituent in the plume;

  (5) Detailed plans and an engineering report describing the proposed ground water monitoring program to be implemented to meet the requirements of COMAR 26.13.05.06-2;

  (6) If the presence of hazardous constituents has not been detected in the ground water at the time of permit application, sufficient information, supporting data, and analyses to establish a detection monitoring program which meets the requirements of COMAR 26.13.05.06-4, including:

    (a) A proposed list of indicator parameters, waste constituents, or reaction products that can provide a reliable indication of the presence of hazardous constituents in the ground water;

    (b) A proposed ground water monitoring system;

    (c) Background values for each proposed monitoring parameter or constituent, or procedures to calculate these values; and

    (d) A description of proposed sampling analysis and statistical comparison procedures to be used in evaluating ground water monitoring data;

  (7) The following information if the presence of hazardous constituents has been detected in the ground water at the point of compliance at the time of permit application:

    (a) Sufficient information, supporting data, and analyses to establish a compliance monitoring program which meets the requirements of COMAR 26.13.05.06-5;

    (b) An engineering feasibility plan for a corrective action program necessary to meet the requirements of COMAR 26.13.05.06-6, except as provided by COMAR 26.13.05.06-4H(5), unless the permit applicant obtains written authorization in advance from the Secretary to submit a proposed permit schedule for submittal of the plan; and

    (c) The following items to demonstrate compliance with COMAR 26.13.05.06-5:

      (i) A description of the wastes previously handled at the facility;

      (ii) A characterization of the contaminated ground water, including concentrations of hazardous constituents;

      (iii) A list of hazardous constituents for which compliance monitoring will be undertaken in accordance with COMAR 26.13.05.06-2 and .06-5;

      (iv) Proposed concentration limits for each hazardous constituent, based on the criteria set forth in COMAR 26.13.05.06-1C, including a justification for establishing any alternate concentration limits;

      (v) Detailed plans and an engineering report describing the proposed ground water monitoring system, in accordance with the requirements of COMAR 26.13.05.06-2; and

      (vi) A description of proposed sampling, analysis, and statistical comparison procedures to be used in evaluating ground water monitoring data.

C. Information Concerning a Corrective Action Program.

  (1) Under the circumstances described in §C(2) of this regulation, a person identified in §A of this regulation shall either:

    (a) Provide, as part of a CHS facility permit application, sufficient information, supporting data, and analyses to establish a corrective action program which meets the requirements of COMAR 26.13.05.06-6; or

    (b) Comply with the following requirements:

      (i) Demonstrate to the Secretary that alternate concentration limits will protect human health and the environment after considering the criteria listed in COMAR 26.13.05.06-1C(2); and

      (ii) Provide as part of a CHS facility permit application, sufficient information to establish a compliance monitoring program which meets the requirements of §B of this regulation and COMAR 26.13.05.06-5.

  (2) The requirements of §C(1) of this regulation apply if:

    (a) Hazardous constituents have been measured in the ground water at levels which exceed the concentration limits established under COMAR 26.13.05.06-1C, Table 1; or

    (b) Ground water monitoring conducted at the time of permit application under COMAR 26.13.05.06-1 at the waste boundary indicates the presence of hazardous constituents from the facility in ground water over background concentrations.

  (3) A person required by §C(1) of this regulation to submit information concerning a corrective action program under COMAR 26.13.05.06-6 shall address, at a minimum, the following items:

    (a) A characterization of the contaminated ground water, including concentration of hazardous constituents;

    (b) The concentration limit for each hazardous constituent found in the ground water as set forth in COMAR 26.13.05.06-1C;

    (c) Detailed plans and an engineering report describing the corrective action to be taken; and

    (d) A description of how the ground water monitoring program will assess the adequacy of the corrective action.

D. The Secretary may issue a permit containing a schedule for submittal of the information required in §C(3)(c)—(d) of this regulation if the permit applicant obtains written authorization from the Secretary before submittal of the complete permit application.

#### Regulation .02-2 Specific Information Requirements for Containers.

*COMAR 26.13.07.02-2*

A. In addition to complying with the requirements of Regulation .02 of this chapter, a person seeking a CHS facility permit to manage hazardous waste in containers shall provide the Secretary with the specific information required by §§B and C of this regulation.

B. For facilities that store containers of hazardous waste, except as otherwise provided in COMAR 26.13.05.09, the permit applicant shall provide the following information:

  (1) A description of the containment system to demonstrate compliance with COMAR 26.13.05.09H which includes at least the following:

    (a) Basic design parameters, dimensions, and materials of construction;

    (b) A description of how the design promotes drainage or how containers are kept from contact with standing liquids in the containment system;

    (c) Capacity of the containment system relative to the number and volume of containers to be stored;

    (d) A description of provisions for preventing or managing run-on; and

    (e) A description of how accumulated liquids can be analyzed and removed to prevent overflow;

  (2) Sketches, drawings, or data demonstrating compliance with COMAR 26.13.05.09F, concerning location of buffer zone and containers holding ignitable or reactive wastes, and COMAR 26.13.05.09G(3), concerning location of incompatible wastes, if applicable; and

  (3) If incompatible wastes are stored or otherwise managed in containers, a description of the procedures used to ensure compliance with COMAR 26.13.05.02H(2) and (3) and 26.13.05.09G(1) and (2).

C. For storage areas that store containers holding wastes that do not contain free liquids the permit applicant shall demonstrate compliance with COMAR 26.13.05.09H(4), including:

  (1) Test procedures and results or other documentation or information to show that the wastes do not contain free liquids; and

  (2) A description of how the storage area is designed or operated to drain and remove liquids or how containers are kept from contact with standing liquids.

#### Regulation .02-3 Specific Information Requirements for Tank Systems.

*COMAR 26.13.07.02-3*

A. In addition to complying with the requirements of Regulation .02 of this chapter, a person seeking a CHS facility permit to manage hazardous waste in tanks shall provide the Secretary with the specific information required by §B of this regulation.

B. For facilities that use tanks to store or treat hazardous waste, except as otherwise provided in COMAR 26.13.05.10A, the permit applicant shall provide a description of design and operating procedures which demonstrate compliance with requirements of all of COMAR 26.13.05.10—.10-7, including:

  (1) References to design standards or other available information used, or to be used, in design and construction of the tank;

  (2) A description of design specifications including identification of construction materials and lining materials, including pertinent characteristics such as corrosion or erosion resistance;

  (3) For each tank, the dimensions, capacity, and shell thickness of the tank;

  (4) A diagram of piping, instrumentation, and process flow for each tank system;

  (5) Description of feed systems, safety cutoff, bypass systems, and pressure controls, for example, vents;

  (6) A written assessment that has been reviewed and certified by an independent qualified registered professional engineer that attests to the structural integrity and suitability for handling hazardous waste of each tank system, as required under COMAR 26.13.05.10-2 and .10-3;

  (7) A description of materials and equipment used to provide external corrosion protection, as required under COMAR 26.13.05.10-3B(2)(c)(ii);

  (8) For new tank systems, a detailed description of how the tank system or systems will be installed in compliance with COMAR 26.13.05.10-3B(4)—(8);

  (9) Detailed plans and description of how the secondary containment system for each tank system is or will be designed, constructed, and operated to meet the requirements of COMAR 26.13.05.10-4A—F;

  (10) For tank systems for which a variance from the requirements of COMAR 26.13.05.10-4 is sought, as provided by COMAR 26.13.05.10-5:

    (a) Detailed plans and engineering and hydrogeologic reports, as appropriate, describing alternate design and operating practices that will, in conjunction with location aspects, prevent the migration of any hazardous waste or hazardous constituents into the ground water or surface water during the life of the facility, or

    (b) A detailed assessment of the substantial present or potential hazards posed to human health or the environment should a release enter the environment;

  (11) A description of controls and practices to prevent spills and overflows, as required by COMAR 26.13.05.10C(2); and

  (12) For tank systems in which ignitable, reactive, or incompatible wastes are to be stored or treated, a description of how operating procedures and tank system and facility design will achieve compliance with the requirements of COMAR 26.13.05.10-1A and B.

#### Regulation .02-4 Specific Information Requirements for Surface Impoundments.

*COMAR 26.13.07.02-4*

A. In addition to complying with the requirements of Regulation .02 of this chapter, a person seeking a CHS facility permit to use a surface impoundment to store, dispose, or treat hazardous waste shall provide the Secretary with the specific information required by §B of this regulation.

B. For facilities that store, dispose of, or treat hazardous waste in surface impoundments, except as otherwise provided in COMAR 26.13.05.11, the permit applicant shall submit detailed plans and specifications accompanied by an engineering report which shall collectively include the following information:

  (1) A statement of the minimum freeboard to be maintained at the facility and the basis of the design to demonstrate compliance with freeboard requirements of COMAR 26.13.05.11B(1) and C(1) and (2), including, for flow-through facilities a hydraulic profile;

  (2) Detailed drawings of the structure which is or will be provided to immediately stop flow into the impoundment to comply with COMAR 26.13.05.11B(2), or, if no structure is needed to comply with COMAR 26.13.05.11H(3)(a), a description of the means by which waste additions will be stopped;

  (3) Detailed drawings of any dikes which exist or will be constructed;

  (4) For any dike associated with the surface impoundment:

    (a) A basis of design and design analysis of the dike to comply with COMAR 26.13.05.11B(4) and I(1); and

    (b) A demonstration, through the design analysis, that the dike will meet the requirements of COMAR 26.13.05.11F(3)(a);

  (5) Detailed design drawings and specifications of liner or liners and the leachate detection, collection, and removal system and the basis of design and design analysis to comply with COMAR 26.13.05.11B(3)—(5), and D(2)—(5);

  (6) Liner installation instructions to comply with the requirements of COMAR 26.13.05.11F(1), and for existing facilities if owner or operator proposes to rely on existing liners, a description of the installation procedures used;

  (7) Design details of the leachate removal system, the basis of design, and a description of the operating procedures to be used to ensure free flow from the collection system in accordance with COMAR 26.13.05.11C(4);

  (8) Design plans and specifications and basis of design of any structures needed to comply with COMAR 26.13.05.11C(5);

  (9) A description of the maintenance and repair procedures proposed to comply with COMAR 26.13.05.11C(4) and Regulation .07C of this chapter;

  (10) A description of the operating procedures that will ensure compliance with COMAR 26.13.05.11I and J;

  (11) A certification by a qualified engineer which complies with COMAR 26.13.05.11F(3) or, for a new facility, a statement by a qualified engineer that the engineer will provide this certification upon completion of construction in accordance with the plans and specifications;

  (12) A description of the procedure to be used for removing a surface impoundment from service, as required under COMAR 26.13.05.11H(2) and (3), as part of the contingency plan submitted under Regulation .02D(21) of this chapter;

  (13) As part of the closure plan, and, if applicable, the post-closure plan submitted under Regulation .02D(29) of this chapter:

    (a) A description of how hazardous waste residues and contaminated materials will be removed from the unit at closure, as required under COMAR 26.13.05.11G(1)(a); and

    (b) For any wastes not to be removed from the unit upon closure, detailed plans and an engineering report describing how COMAR 26.13.05.11G(1)(b)—(d) and (2) will be complied with;

  (14) If ignitable or reactive wastes are to be placed in a surface impoundment, an explanation of how COMAR 26.13.05.11I will be complied with;

  (15) If incompatible wastes and materials will be placed in a surface impoundment, an explanation of how COMAR 26.13.05.11J will be complied with;

  (16) A description of the liner system or, if an exemption from the requirement for a liner is sought as provided by COMAR 26.13.05.11B(6), detailed plans and engineering and hydrogeologic reports, as appropriate, describing alternate design and operating practices that will, in conjunction with location aspects, prevent the migration of any hazardous constituents into the ground water or surface water at any future time;

  (17) A waste management plan for EPA Hazardous Waste Nos. F020, F021, F022, F023, F026, and F027 that:

    (a) Describes how the surface impoundment is or will be designed, constructed, operated, and maintained to meet the requirements of COMAR 26.13.05.11K; and

    (b) Addresses the:

      (i) Volume, physical characteristics, and chemical characteristics of the wastes, including their potential to migrate through soil or to volatilize or escape into the atmosphere;

      (ii) Attenuative properties of underlying and surrounding soils or other materials;

      (iii) Mobilizing properties of other materials co-disposed with these wastes; and

      (iv) Effectiveness of additional treatment, design, or monitoring techniques;

  (18) A list of the hazardous wastes placed or to be placed in each surface impoundment;

  (19) If the leak detection system is located in a saturated zone, detailed plans and an engineering report explaining the leak detection system's design and operation, and the location of the saturated zone in relation to the leak detection system;

  (20) The construction quality assurance plan required by COMAR 26.13.05.02-2;

  (21) If required under COMAR 26.13.05.11D-2, a proposed action leakage rate with rationale and supporting information; and

  (22) If required under COMAR 26.13.05.11D-3, a response action plan.

#### Regulation .02-5 Specific Information Requirements for Waste Piles.

*COMAR 26.13.07.02-5*

A. In addition to complying with the requirements of Regulation .02 of this chapter, a person seeking a CHS facility permit to use a waste pile to store, dispose, or treat hazardous waste shall provide the Secretary with the specific information required by §B of this regulation.

B. For facilities that store or treat hazardous waste in waste piles, except as otherwise provided in COMAR 26.13.05.12, the permit applicant shall provide the following information:

  (1) A description of practices to control wind dispersal (for example, cover or frequent wetting) of hazardous waste in piles so that the Secretary, when necessary, can specify appropriate control measures;

  (2) Detailed plans and an engineering report which:

    (a) Demonstrate that the design of the waste pile meets the requirements of COMAR 26.13.05.12B and D;

    (b) Demonstrate how the waste pile will be constructed, operated, and maintained to meet the requirements of COMAR 26.13.05.12B and D;

    (c) Include the following information:

      (i) A description of measures to divert run-on away from the pile;

      (ii) A description of the leachate and run-off collection and control system;

      (iii) A description of the foundation supporting the base;

      (iv) Design specifications of the pile base and liner or liners, including the estimated containment life of the base and the permeability of the liner or liners;

      (v) Estimated life of the hazardous waste pile; and

      (vi) If applicable under COMAR 26.13.05.12D(1)(a)(ii), a description of the leachate detection, collection, and removal system including the system's relation to the water table and a description of any efforts to control the water table;

  (3) A detailed description of the facility operating procedures which demonstrates compliance with COMAR 26.13.05.12D, G, and H, including:

    (a) A description of efforts to protect the containment system from plant growth which could puncture any component of the system;

    (b) A description of design and operating procedures to properly manage and dispose of any leachate that is a hazardous waste;

    (c) A description and listing of all equipment and procedures used to place the waste in or on the pile or to clean and expose the liner surface; and

    (d) A description of efforts to separate hazardous waste that is incompatible with any waste or material stored nearby, including the design specifications of any dike, berm, wall, or other device used to separate the materials;

  (4) If applicable under COMAR 26.13.05.12, a description of the leachate detection, collection, and removal system, including the system's relation to the water table and a description of any efforts to control the water table;

  (5) As part of the inspection plan submitted under Regulation .02D(19) of this chapter, a description of how each waste pile, including the double liner system, leachate collection and removal system, leak detection system, cover system, and appurtenances for control of run-on and run-off, will be inspected in order to meet the requirements of COMAR 26.13.05.12D and E;

  (6) If treatment is carried out on or in the pile, details of the process and equipment used, and the nature and quantity of the residuals;

  (7) If ignitable or reactive wastes are to be placed in a waste pile, an explanation of how an owner or operator will comply with the requirements of COMAR 26.13.05.12G;

  (8) If incompatible wastes, or incompatible wastes and materials will be placed in a waste pile, an explanation of how an owner or operator will comply with the requirements of COMAR 26.13.05.12H;

  (9) As part of the closure plan and, if applicable, the post-closure plan submitted under Regulation .02D(29) of this chapter:

    (a) A description of how hazardous waste residues and contaminated materials will be removed from the waste pile upon closure; and

    (b) Detailed plans and an engineering report describing how the owner or operator will comply with COMAR 26.13.05.12I;

  (10) A waste management plan for EPA Hazardous Waste Nos. F020, F021, F022, F023, F026, and F027 that:

    (a) Describes how a waste pile that is not enclosed, as defined in COMAR 26.13.05.12A, is or will be designed, constructed, operated, and maintained to meet the requirements of COMAR 26.13.05.12J; and

    (b) Addresses the:

      (i) Volume, physical characteristics, and chemical characteristics of the wastes to be disposed of in the waste pile, including their potential to migrate through soil or to volatilize or escape into the atmosphere;

      (ii) Attenuative properties of underlying and surrounding soils or other materials;

      (iii) Mobilizing properties of other materials co-disposed with these wastes; and

      (iv) Effectiveness of additional treatment, design, or monitoring techniques;

  (11) A list of the hazardous wastes placed, or to be placed, in each waste pile;

  (12) If the permit applicant seeks an exemption from the requirements of COMAR 26.13.05.12B and D, and .06—.06-7, as provided by COMAR 26.13.05.12A(2) or .06A(3)(b), an explanation of how the standards of COMAR 26.13.05.12A(2) will be complied with or detailed plans and an engineering report describing how the requirements of COMAR 26.13.05.06A(3)(b) will be met;

  (13) If the leak detection system is located in a saturated zone, detailed plans and an engineering report explaining the leak detection system’s design and operation, and the location of the saturated zone in relation to the leak detection system;

  (14) The construction quality assurance plan required by COMAR 26.13.05.02-2;

  (15) If required under COMAR 26.13.05.12D-1, a proposed action leakage rate with rationale and supporting information; and

  (16) If required under COMAR 26.13.05.11D-2, a response action plan.

#### Regulation .02-6 Specific Information Requirements for Incinerators.

*COMAR 26.13.07.02-6*

A. In addition to complying with the requirements of Regulation .02 of this chapter, a person seeking a CHS facility permit to incinerate hazardous waste shall provide the Secretary with the specific information required by §§B and C of this regulation.

B. For facilities that incinerate hazardous waste, except as otherwise provided in COMAR 26.13.05.16B, the permit applicant shall provide the following information:

  (1) If the applicant is seeking exemption under COMAR 26.13.05.16B, which provides for reduced regulatory requirements for incinerators that burn only ignitable, corrosive, or reactive wastes, documentation that the waste is:

    (a) Listed as a hazardous waste in COMAR 26.13.02.15—.19 solely because it is ignitable (Hazard Code I), corrosive (Hazard Code C), or both;

    (b) Listed as a hazardous waste in COMAR 26.13.02.15—.19 solely because it is reactive (Hazard Code R) for characteristics other than those listed in COMAR 26.13.02.12A(4) and (5), and will not be burned when other hazardous wastes are present in the combustion zone;

    (c) A hazardous waste solely because it possesses the characteristics of ignitability, corrosivity, or both, as determined by the tests for characteristics of hazardous waste under COMAR 26.13.02.11—.12; or

    (d) A hazardous waste solely because it possesses the reactivity characteristics listed in COMAR 26.13.02.13A(1), (2), (3), (6), (7), or (8), and that it will not be burned when other hazardous wastes are present in the combustion zone;

  (2) Either:

    (a) A trial burn plan, or the results of a trial burn, including all required determinations conducted in accordance with Regulation .17 of this chapter; or

    (b) The information required by §C of this regulation.

C. If the permit applicant does not submit a trial burn plan or the results of a trial burn under §B(2) of this regulation, the permit applicant shall submit the following information:

  (1) An analysis, using the analytical techniques specified in COMAR 26.13.02.22, of each waste or mixture of wastes to be burned including:

    (a) Heat value of the waste in the form and composition in which it will be burned;

    (b) Viscosity, if applicable, or description of physical form of the waste;

    (c) An identification of any hazardous organic constituents listed in COMAR 26.13.02.24, which are present in the waste to be burned, except that the applicant need not analyze for constituents listed in COMAR 26.13.02.24 which would reasonably not be expected to be found in the waste;

    (d) A list of the constituents excluded from the analysis required by §C(1)(c) of this regulation and the basis for their exclusion;

    (e) An approximate quantification of the hazardous constituents identified in the waste, within the precision produced by the analytical methods specified in COMAR 26.13.02.22; and

    (f) A quantification of those hazardous constituents in the waste which may be designated as POHCs under COMAR 26.13.05.16E, based on data submitted from other trial or operational burns which demonstrate compliance with the performance standard in COMAR 26.13.05.16F;

  (2) A detailed engineering description of the hazardous waste incinerator, including:

    (a) Manufacturer's name and model number of incinerator;

    (b) Type of incinerator;

    (c) Linear dimension of incinerator unit including cross-sectional area of combustion chamber;

    (d) Description of auxiliary fuel system (type/feed);

    (e) Capacity of prime mover;

    (f) Description of automatic waste feed cutoff system or systems;

    (g) Stack gas monitoring and pollution control monitoring system;

    (h) Nozzle and burner design;

    (i) Construction materials;

    (j) Location and description of temperature, pressure, and flow indicating devices and control devices;

  (3) A description and analysis of the waste to be burned that:

    (a) Provides a comparison with the waste for which data from operational or trial burns are provided to support the contention that a trial burn is not needed;

    (b) Includes the items listed in §C(1) of this regulation; and

    (c) Specifies the POHCs which the applicant has identified in the waste for which a permit is sought, and any differences from the POHCs in the waste for which burn data are provided;

  (4) The design and operating conditions of the hazardous waste incinerator unit to be used, compared with that for which comparative burn data are available;

  (5) A description of the results submitted from any previously conducted trial burn or burns, including:

    (a) Sampling and analysis techniques used to calculate performance standards in COMAR 26.13.05.16F;

    (b) Methods and results of monitoring temperatures, waste feed rates, carbon monoxide, and an appropriate indicator of combustion gas velocity, including a statement concerning the precision and accuracy of this measurement; and

    (c) The certification and results required by Regulation .17 of this chapter;

  (6) The expected hazardous waste incinerator operation information to demonstrate compliance with COMAR 26.13.05.16F and H, including:

    (a) Expected carbon monoxide (CO) level in the stack exhaust gas;

    (b) Waste feed rate;

    (c) Combustion zone temperature;

    (d) Indication of combustion gas velocity;

    (e) Expected stack gas volume, flow rate, and temperature;

    (f) Computed residence time for waste in the combustion zone;

    (g) Expected hydrochloric acid removal efficiency;

    (h) Expected fugitive emissions and their control procedures;

    (i) Proposed waste feed cut-off limits based on the identified significant operating parameters;

  (7) Supplemental information that the Secretary finds necessary to achieve the purpose of this section;

  (8) Waste analysis data, including that submitted in §C(1) of this regulation, sufficient to allow the Secretary to specify the Principal Organic Hazardous Constituents (POHCs) in the permit for which destruction and removal efficiencies will be required.

D. The Secretary shall approve a permit application without a trial burn, if the Secretary finds that the:

  (1) Wastes that the applicant seeks to burn are sufficiently similar to the wastes that were used to generate operational and trial burn data that the applicant proposes to use instead of conducting a trial burn; and

  (2) Hazardous waste incinerator units are sufficiently similar, and the data from other trial burns are sufficiently similar, and the data from other trial burns are adequate to specify, under COMAR 26.13.05.16H, operating conditions that will ensure that the performance standards in COMAR 26.13.05.16F will be met by the incinerator.

#### Regulation .02-7 Specific Information Requirements for Land Treatment.

*COMAR 26.13.07.02-7*

A. In addition to complying with the requirements of Regulation .02 of this chapter, a person seeking a CHS facility permit for a hazardous waste management facility that uses or is proposed to use land treatment to dispose of hazardous waste shall provide the Secretary with the specific information required by §§B—D of this regulation.

B. For facilities that use land treatment to dispose of hazardous waste, except as otherwise provided in COMAR 26.13.05.01, the permit applicant shall provide the following information:

  (1) A description of plans to conduct a treatment demonstration as required under COMAR 26.13.05.13C that includes the following information:

    (a) The wastes for which the demonstration will be made and the potential hazardous constituents in the wastes;

    (b) The data sources to be used to make the treatment demonstration such as scientific literature, laboratory data, field data, or operating data; and

    (c) A description of any specific laboratory or field test that will be conducted, including:

      (i) The type of test, such as column leaching or degradation;

      (ii) Materials and methods, including analytical procedures;

      (iii) Expected time for completion;

      (iv) Characteristics of the unit that will be simulated in the demonstration, including treatment zone characteristics, climatic conditions, and operating practices;

  (2) A description of a land treatment program as required under COMAR 26.13.05.13B, which shall:

    (a) Be submitted with the plan for the treatment demonstration;

    (b) Be updated following the treatment demonstration; and

    (c) Address the following items:

      (i) The wastes to be land treated;

      (ii) Design measures and operating practices necessary to maximize treatment in accordance with COMAR 26.13.05.13D(1);

      (iii) Waste application method and rate;

      (iv) Measures to control soil pH;

      (v) Enhancement of microbial or chemical reactions;

      (vi) Control of moisture content;

      (vii) Provisions for unsaturated zone monitoring, including: sampling equipment, procedures, frequency, procedures for selecting sampling locations, analytical procedures, chain of custody control, procedures for establishing background values, statistical methods for interpreting results;

      (viii) The justification for any hazardous constituents recommended for selection as principal hazardous constituents, in accordance with the criteria for the selection in COMAR 26.13.05.13I(1);

      (ix) A list of hazardous constituents reasonably expected to be in, or derived from, the wastes to be land treated based on waste analysis performed in accordance with COMAR 26.13.05.02D; and

      (x) The proposed dimensions of the treatment zone;

  (3) A description of how the unit is or will be designed, constructed, operated, and maintained in order to meet the requirements of COMAR 26.13.05.13D that addresses the following items:

    (a) Control of run-on;

    (b) Collection and control of run-off;

    (c) Minimization of run-off of hazardous constituents from the treatment zone;

    (d) Management of collection and holding facilities associated with run-on and run-off control systems;

    (e) Periodic inspection of the unit, as part of the inspection plan submitted under Regulation .02D(19) of this chapter; and

    (f) Control of wind dispersal of particulate matter, if applicable;

  (4) A description of the vegetative cover to be applied to closed portions of the facility, and a plan for maintaining the cover during the post-closure care period, as required under COMAR 26.13.05.13K(1)(h) and (3)(b), as part of the closure plan and, if applicable, the post-closure care plan submitted under Regulation .02D(29) of this chapter;

  (5) If ignitable or reactive wastes will be placed in or on the treatment zone, an explanation of how the requirements of COMAR 26.13.05.13L will be complied with;

  (6) If incompatible wastes, or incompatible wastes and materials, will be placed in or on the same treatment zone, an explanation of how COMAR 26.13.05.13M will be complied with;

  (7) A waste management plan for EPA Hazardous Waste Nos. F020, F021, F022, F023, F026, and F027 that:

    (a) Describes how a land treatment facility is or will be designed, constructed, operated, and maintained to meet the requirements of COMAR 26.13.05.13N; and

    (b) Addresses the:

      (i) Volume, physical characteristics, and chemical characteristics of the wastes, including their potential to migrate through soil or to volatilize or escape into the atmosphere;

      (ii) Attenuative properties of underlying and surrounding soils or other materials;

      (iii) Mobilizing properties of other materials co-disposed with these wastes; and

      (iv) Effectiveness of additional treatment, design, or monitoring techniques;

  (8) A list of the hazardous wastes to be land treated.

C. If food-chain crops are to be grown in or on the treatment zone of the land treatment unit, the permit applicant shall provide a description of how the demonstration required under COMAR 26.13.05.13G was conducted including:

  (1) Characteristics of the food-chain crop for which the demonstration will be made;

  (2) Characteristics of the waste, treatment zone, and waste application method and rate to be used in the demonstration;

  (3) Procedures for crop growth, sample collection, sample analysis, and data evaluation; and

  (4) Characteristics of the comparison crop, including the location and conditions under which it was or will be grown.

D. If food-chain crops are to be grown, and cadmium is present in the land treated waste, the permit applicant shall provide a description of how the requirements of COMAR 26.13.05.13G(6) will be complied with.

#### Regulation .02-8 Specific Information Requirements for Landfills.

*COMAR 26.13.07.02-8*

A. In addition to complying with the requirements of Regulation .02 of this chapter, a person seeking a CHS facility permit for a hazardous waste management facility that uses, or is proposed to use, a landfill to manage hazardous waste shall provide the Secretary with the specific information required by §B of this regulation.

B. For facilities that dispose of hazardous waste in landfills, except as otherwise provided in COMAR 26.13.05.01, the permit applicant shall provide the following information:

  (1) A list of the hazardous wastes placed or to be placed in each landfill or landfill cell;

  (2) A detailed plan and an engineering report that:

    (a) Describe how the landfill is or will be designed, constructed, operated, and maintained to comply with the requirements of COMAR 26.13.05.02-2 and 14B; and

    (b) Provide information on the following items as specified in COMAR 26.13.05.14B:

      (i) The liner system and leachate collection and removal system, except for an existing portion of landfill;

      (ii) If an exemption from the requirements for a liner and a leachate collection and removal system is sought as provided by COMAR 26.13.05.14B(2) or (4), detailed plans and engineering hydrogeologic reports as appropriate, describing alternate design and operating practices that will, in conjunction with location aspects, prevent the migration of any hazardous constituents into the ground water or surface water at any future time;

      (iii) Control of run-on;

      (iv) Control of run-off;

      (v) Management of collection and holding facilities associated with run-on and run-off control systems; and

      (vi) Control of wind dispersal of particulate matter, when applicable;

  (3) A description of how each landfill, including the double liner system, leachate collection and removal system, leak detection system, cover system, and appurtenances for control of run-on and run-off will be inspected in order to meet the requirements of COMAR 26.13.05.14C(1)—(4) as part of the inspection plan submitted under Regulation .02D(19) of this chapter;

  (4) Detailed plans and an engineering report describing the final cover which will be applied to each landfill or landfill cell at closure in accordance with COMAR 26.13.05.14J(1), and a description of how each landfill will be maintained and monitored after closure in accordance with COMAR 26.13.05.14J(2) as part of the closure and post-closure plans submitted under Regulation .02D(29) of this chapter;

  (5) If food-chain crops are to be grown, and cadmium is present in the land treated waste, a description of how the requirements of COMAR 26.13.05.13G(5) will be complied with;

  (6) A description of the vegetative cover to be applied to closed portions of the facility, and a plan for maintaining the cover during the post-closure care period, as required under COMAR 26.13.05.13K(1)(h) and (3)(b). This information should be included in the closure plan and, when applicable, the post-closure care plan submitted under Regulation .02D(29) of this chapter;

  (7) If ignitable or reactive wastes will be placed in or on the treatment zone, an explanation of how the requirements of COMAR 26.13.05.13L will be complied with;

  (8) A waste management plan for EPA Hazardous Waste Nos. F020, F021, F022, F023, F026, and F027 that:

    (a) Describes how a landfill is or will be designed, constructed, operated, and maintained to meet the requirements of COMAR 26.13.05.14P; and

    (b) Addresses the:

      (i) Volume, physical characteristics, and chemical characteristics of the wastes, including their potential to migrate through soil or to volatilize or escape into the atmosphere;

      (ii) Attenuative properties of underlying and surrounding soils or other materials;

      (iii) Mobilizing properties of other materials co-disposed with these wastes; and

      (iv) Effectiveness of additional treatment, design, or monitoring techniques;

  (9) If the leak detection system is located in a saturated zone, detailed plans and an engineering report explaining the leak detection system's design and operation, and the location of the saturated zone in relation to the leak detection system;

  (10) The construction quality assurance plan required by COMAR 26.13.05.02-2;

  (11) If required under COMAR 26.13.05.14E, a proposed action leakage rate with rationale and supporting information; and

  (12) If required under COMAR 26.13.05.14F, a response action plan.

#### Regulation .02-9 Specific Information Requirements for Miscellaneous Units.

*COMAR 26.13.07.02-9*

A. In addition to complying with the requirements of Regulation .02 of this chapter, a person seeking a CHS facility permit for a hazardous waste management facility that uses, or is proposed to use, miscellaneous units to manage hazardous waste shall provide the Secretary with the specific information required by §B of this regulation.

B. For facilities that treat, store, or dispose of hazardous waste in miscellaneous units, except as otherwise provided in COMAR 26.13.05.16-1A, the permit applicant shall provide the following additional information:

  (1) A detailed description of the unit being used or proposed for use, including the following:

    (a) Physical characteristics, materials of construction, and dimensions of the unit;

    (b) Detailed plans and engineering reports describing how the unit will be located, designed, constructed, operated, maintained, monitored, inspected, and closed to comply with the requirements of COMAR 26.13.05.16-1B and C; and

    (c) For disposal units, a detailed description of the plans to comply with the post-closure requirements of COMAR 26.13.05.16-1D;

  (2) Information that addresses and assures compliance of the unit with each factor in the environmental performance standards of COMAR 26.13.05.16-1B, consisting of either:

    (a) Detailed hydrologic, geologic, and meteorologic assessments and land-use maps for the region surrounding the site; or

    (b) The following:

      (i) A demonstration, to the Secretary's satisfaction, that the unit meets the environmental performance standards of COMAR 26.13.05.16-1B, and

      (ii) Preliminary hydrologic, geologic, and meteorologic assessments;

  (3) Information on the potential pathways of exposure of humans or environmental receptors to hazardous waste or hazardous constituents and on the potential magnitude and nature of the exposures;

  (4) For any treatment unit, a report on a demonstration of the effectiveness of the treatment based on laboratory or field data;

  (5) Any additional information determined by the Secretary to be necessary for evaluation of compliance of the unit with the environmental performance standards of COMAR 26.13.05.16-1B.

#### Regulation .02-10 Specific Information Requirements for Solid Waste Management Units.

*COMAR 26.13.07.02-10*

A. In addition to complying with the requirements of Regulation .02 of this chapter, a person seeking a CHS facility permit shall provide the Secretary with the following information for each solid waste management unit at the facility:

  (1) The location of the unit on the topographic map required under Regulation .02D(35) of this chapter;

  (2) Designation of type of unit;

  (3) General dimensions and structural description along with any available drawings;

  (4) When the unit was operated;

  (5) Specification of all wastes that have been managed at the unit, to the extent available; and

  (6) All available information pertaining to any release of hazardous wastes or hazardous constituents from the unit.

B. The permit applicant shall conduct and provide the results of sampling and analysis of ground water, land surface and subsurface strata, surface water, or air, which may include the installation of wells, when the Secretary ascertains it is necessary to complete an assessment that will determine if a more complete investigation is necessary.

#### Regulation .02-11 Specific Information Requirements for Drip Pads.

*COMAR 26.13.07.02-11*

A. In addition to complying with the requirements of Regulation .02 of this chapter, a person seeking a CHS facility permit to collect, store, or treat hazardous waste on a drip pad shall provide the Secretary with the following specific information in a permit application:

  (1) A list of hazardous wastes placed or to be placed on each drip pad;

  (2) If an exemption is sought to the requirements of COMAR 26.13.05.06—.06-7, as provided by COMAR 26.13.05.06A, the detailed plans and an engineering report describing how the requirements of COMAR 26.13.05.06A(3)(b) will be met; and

  (3) Detailed plans and an engineering report that:

    (a) Describe how the drip pad has been or will be designed, constructed, operated, and maintained to meet the requirements of COMAR 26.13.05.17-2;

    (b) Include as-built drawings and specifications; and

    (c) Include information specified in §B of this regulation.

B. The owner or operator shall ensure that the detailed plans and the engineering report required to be submitted by §A(3) of this regulation include the following items:

  (1) Information on the:

    (a) Design characteristics of the drip pad;

    (b) Liner system;

    (c) Leakage detection system, including how the system is designed to detect the failure of the drip pad or the presence of any releases of hazardous waste or accumulated liquid at the earliest practicable time; and

    (d) Associated collection system;

  (2) A description of the practices that the owner or operator will use to maintain the drip pad;

  (3) A description of how the owner or operator will control:

    (a) Run-on to the drip pad; and

    (b) Run-off from the drip pad;

  (4) The interval at which the owner or operator will remove drippage and other materials from the associated collection system and a statement demonstrating that the interval will be sufficient to prevent overflow onto the drip pad;

  (5) The procedures that the owner or operator will use to satisfy the cleaning requirements of COMAR 26.13.05.17-2F, including documentation requirements;

  (6) The operating practices and procedures that the owner or operator will follow to minimize the tracking of hazardous waste or waste constituents off the drip pad due to activities by personnel or equipment;

  (7) The procedures the owner or operator will follow to ensure that, after removal from the treatment vessel, treated wood from pressure and nonpressure processes is held on the drip pad until drippage has ceased, and the associated record-keeping practices;

  (8) The provisions the owner or operator has made to ensure that, as soon as possible after a storm, each collection and holding unit associated with a run-on or run-off control system is emptied or otherwise managed to maintain the design capacity of the system;

  (9) If treatment is carried out on the drip pad, the details of the process equipment used, and the nature and quality of the residuals;

  (10) As part of the inspection plan required by Regulation .02D(19) of this chapter, a description of how the owner or operator will inspect each drip pad, including appurtenances for control of run-on and run-off, in order to meet the requirements of COMAR 27.13.05.17-2;

  (11) A certification signed by an independent qualified registered professional engineer, stating that the drip pad design meets the requirements of COMAR 26.13.05.17-2A;

  (12) A description of how hazardous waste residues and contaminated materials will be removed from the drip pad at closure, as required under COMAR 26.13.05.17-4A—D; and

  (13) As part of the closure plan or the post-closure plan submitted under Regulation .02D(29) of this chapter, detailed plans and an engineering report describing how the requirements of COMAR 26.13.05.14J will be met for any waste that will not be removed from the drip pad at closure.

#### Regulation .03 Signatories to Permit Applications and Reports.

*COMAR 26.13.07.03*

A. Applications. All permit applications shall be signed as follows:

  (1) For a corporation, by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means:

    (a) A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation; or

    (b) The manager of one or more manufacturing, production, or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars), if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

  (2) For a partnership or sole proprietorship, by a general partner or the proprietor, respectively.

  (3) For a municipality, State, federal, or other public agency, by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a federal agency includes:

    (a) The chief executive officer of the agency; or

    (b) A senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency. An example would be the Regional Administrator of Region III, EPA.

B. Reports. All reports required by permits and other information requested by the Secretary, shall be signed by a person described in §A of this regulation, or by a duly authorized representative of that person. A person is a duly authorized representative only if:

  (1) The authorization is made in writing by a person described in §A of this regulation.

  (2) The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, operator of a well or a well field, superintendent, or position of equivalent responsibility. (A duly authorized representative may thus be either a named individual or any individual occupying a named position).

  (3) The written authorization is submitted to the Secretary.

C. Changes to Authorization. If an authorization under §B of this regulation is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of §B of this regulation shall be submitted to the Secretary before or together with any reports, information, or applications to be signed by an authorized representative.

D. Certification. Any person signing a document under §A or B of this regulation shall make the following certification: I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.

#### Regulation .03-1 Permit Denial.

*COMAR 26.13.07.03-1*

The Secretary may, under the procedures in Regulations .20—.20-6 of this chapter, deny the permit application either in its entirety, or as to the active life of a hazardous waste management facility or unit only.

#### Regulation .04 Conditions Applicable to All Permits.

*COMAR 26.13.07.04*

A. The conditions described in this regulation apply to all permits, and the Secretary shall incorporate them into the permits either expressly or by reference. If incorporated by reference, a specific citation to these regulations shall be given in the permit.

B. Duty to Comply. The permittee shall comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the appropriate Act and is grounds for:

  (1) Enforcement action;

  (2) Permit termination, revocation and reissuance, or modification; or

  (3) Denial of a permit renewal application.

C. Duty to Reapply. If the permittee wishes to continue an activity regulated by this permit after the expiration date of this permit, the permittee shall apply for and obtain a new permit. This application shall be submitted at least 180 days before the expiration date of the effective permit, unless permission for a later date has been granted by the Secretary. This later date may not be later than the expiration date of the effective permit.

D. Duty to Halt or Reduce Activity. It may not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

E. Duty to Mitigate. In the event of noncompliance with the permit, the permittee shall:

  (1) Take all reasonable steps to minimize releases to the environment; and

  (2) Carry out such measures as are reasonable to prevent significant adverse impacts on human health or the environment.

F. Proper Operation and Maintenance. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance include effective performance, adequate funding, adequate operator staffing and training, and adequate laboratory and process controls, including appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems only when necessary to achieve compliance with the conditions of this permit.

G. Permit Actions. This permit may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or a notification of planned changes or anticipated noncompliance, does not stay any permit condition.

H. Property Rights. This permit does not convey any property rights of any sort, or any exclusive privilege.

I. Duty to Provide Information. The permittee shall furnish to the Secretary within a reasonable time, any relevant information which the Secretary may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit, or to determine compliance with this permit. The permittee shall also furnish to the Secretary, upon request, copies of records required to be kept by this permit.

J. Inspection and Entry. The permittee shall allow the Secretary, or an authorized representative, upon the presentation of credentials and other documents as may be required by law to:

  (1) Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit;

  (2) Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit;

  (3) Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and

  (4) Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized, any substances or parameters at any location.

K. Monitoring and Records.

  (1) Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

  (2) The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, the certification required by COMAR 26.13.05.05D(2)(i) and records of all data used to complete the application for this permit, for a period of at least 3 years from the date of the sample, measurement, report, or application. This period may be extended by request of the Secretary at any time.

  (3) Records of monitoring information shall include the:

    (a) Date, exact place, and time of sampling or measurements;

    (b) Individual or individuals who performed the sampling or measurements;

    (c) Date or dates analyses were performed;

    (d) Individual or individuals who performed the analyses;

    (e) Analytical techniques or methods used; and

    (f) Results of the analyses.

L. Signatory Requirement. All applications, reports, or information submitted to the Secretary shall be signed and certified.

M. Reporting Requirements.

  (1) Planned Changes. The permittee shall give notice to the Secretary as soon as possible of any planned physical alterations or additions to the permitted facility.

  (2) Anticipated Noncompliance. The permittee shall give advance notice to the Secretary of any planned changes in the permitted facility or activity which may result in noncompliance with permit requirements.

  (3) Transfers. This permit is not transferable to any person except after notice to the Secretary. The Secretary shall require modification or revocation and reissuance of the permit to change the name of the permittee and incorporate such other requirements as may be necessary.

  (4) Monitoring Reports. Monitoring results shall be reported at the intervals specified elsewhere in this permit.

  (5) Compliance Schedules. Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of this permit shall be submitted not later than 14 days following each schedule date.

  (6) Twenty-Four Hour Reporting. The permittee shall report any noncompliance which may endanger health or the environment. Any information shall be provided orally within 24 hours from the time the permittee becomes aware of the circumstances. A written submission shall also be provided within 5 days of the time the permittee becomes aware of the circumstances. Both the oral and written reports shall follow the requirements of Regulation .15D. In addition, the written submission shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the noncompliance.

  (7) Other Noncompliance. The permittee shall report all instances of noncompliance not reported under §M(4)—(6), of this regulation, at the time monitoring reports are submitted. The reports shall contain the information listed in §M(6), of this regulation.

  (8) Other Information. If the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Secretary, it shall promptly submit these facts or information.

N. Information Repository.

  (1) The Secretary may require the permittee to establish and maintain an information repository at any time, based on the factors listed in Regulation .19-2B(3) of this chapter.

  (2) The permittee shall operate the information repository in accordance with the provisions of Regulation .19-2B(4)—(11) of this chapter.

#### Regulation .05 Establishing Permit Conditions.

*COMAR 26.13.07.05*

A. In addition to conditions required by regulation, the Secretary may establish conditions as required on a case-by-case basis.

B. Each permit shall include permit conditions necessary to achieve compliance with the State law and regulations, including each of the applicable requirements specified in this subtitle. In satisfying this provision, the Secretary may incorporate applicable requirements of 40 CFR Parts 264, 266, 267, or this subtitle directly into the permit or establish other permit conditions that are based on these parts.

C. Each permit issued shall contain terms and conditions as the Secretary determines necessary to protect human health and the environment.

D. Incorporation of Permit Conditions.

  (1) The Secretary shall assure that all permit conditions are incorporated into the permit either expressly or by reference.

  (2) If a permit condition is incorporated by reference, the Secretary shall assure that the permit gives a specific citation to the applicable regulations or requirements.

#### Regulation .06 Duration of Permits.

*COMAR 26.13.07.06*

A. Permits shall be effective for a fixed term not to exceed 10 years.

B. The Secretary may issue any permit for a duration that is less than the full allowable term under this section.

C. The Secretary shall review each permit for a land disposal facility 5 years after the date of permit issuance and shall modify the permit as necessary, as provided in Regulation .11 of this chapter.

#### Regulation .07 Schedules of Compliance.

*COMAR 26.13.07.07*

A. The permit may, when appropriate, specify a schedule of compliance leading to compliance with the appropriate Act and regulations.

B. Time for Compliance. Any schedules of compliance under this section shall require compliance as soon as possible.

C. Interim Dates.

  (1) Except as provided in §E(1)(b), if a permit establishes a schedule of compliance which exceeds 1 year from the date of permit issuance, the schedule shall set forth interim requirements and the dates for their achievement.

  (2) The time between interim dates may not exceed 1 year.

  (3) If the time necessary for completion of any interim requirement (such as the construction of a control facility) is more than 1 year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.

D. Reporting. The permit shall be written to require that not later than 14 days following each interim date and the final date of compliance, the permittee shall notify the Secretary in writing of its compliance or noncompliance with the interim or final requirements.

E. Alternate Schedules of Compliance. A permit applicant or permittee may cease conducting regulated activities (by receiving terminal volume of hazardous waste and for treatment and storage HWM facilities, closing pursuant to applicable requirements, and for disposal HWM facilities, closing and conducting post-closure care pursuant to applicable requirements) rather than continue to operate and meet permit requirements as follows:

  (1) If the permittee decides to cease conducting regulated activities at a given time within the term of a permit which has already been issued:

    (a) The permit may be modified to contain a new or additional schedule leading to timely cessation of activities;

    (b) The permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement.

  (2) If the decision to cease conducting regulated activities is made before issuance of a permit whose term will include the termination date, the permit shall contain a schedule leading to termination which will ensure timely compliance with applicable requirements.

  (3) If the permittee is undecided whether to cease conducting regulated activities, the Secretary may issue or modify a permit to contain two schedules as follows:

    (a) Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities not later than a date that ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities.

    (b) One schedule shall lead to timely compliance with applicable requirements.

    (c) The second schedule shall lead to cessation of regulated activities by a date which will ensure timely compliance with applicable requirements.

    (d) Each permit containing two schedules shall include a requirement that after the permittee has made a final decision under §E(3)(a) it shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities, and follow the schedule leading to termination if the decision is to cease conducting regulated activities.

  (4) The applicant's or permittee's decision to cease conducting regulated activities shall be evidence by a firm public commitment satisfactory to the Secretary, such as a resolution of the board of directors of a corporation.

#### Regulation .08 Requirements for Recording and Reporting of Monitoring Results.

*COMAR 26.13.07.08*

All permits shall specify:

A. Requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate);

B. Required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring;

C. Applicable reporting requirements based upon the impact of the regulated activity and as specified in COMAR 26.13.05. Reporting may not be less frequently than specified in the above regulations.

#### Regulation .09 Effect of a Permit.

*COMAR 26.13.07.09*

A. The issuance of a permit does not convey any property rights of any sort, or any exclusive privilege.

B. The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights, or any infringement of local law or regulations.

#### Regulation .10 Transfer of Permits.

*COMAR 26.13.07.10*

A permit may be transferred by the permittee to a new owner or operator only if the permit has been modified or revoked and reissued under Regulation .11, or a minor modification made to identify the new permittee and incorporate such other requirements as may be necessary.

#### Regulation .11 Modification, Withdrawal, or Revocation and Reissuance of Permits.

*COMAR 26.13.07.11*

A. When the Secretary receives any information (for example, inspects the facility, receives information submitted by the permittee as required in the permit, receives a request for modification or revocation and reissuance, or conducts a review of the permit file) he or she may determine whether or not one or more of the clauses listed in §§A and B of this regulation, for modification or revocation and reissuance, or both, exist. If cause exists, the Secretary may modify or revoke and reissue the permit accordingly, subject to the limitations of §B, of this regulation, and may request an updated application if necessary. When a permit is modified, only the conditions subject to modification are reopened. If a permit is revoked and reissued, the entire permit is reopened and subject to revision and the permit is reissued for a new term. If cause does not exist under this regulation or Regulation .13, of this chapter, the Secretary may not modify or revoke and reissue the permit. If a permit modification satisfies the criteria in Regulation .13 of this chapter, for “minor modifications” the permit may be modified without a draft permit or public review. Otherwise, a draft permit shall be prepared and other procedures of this chapter followed.

B. Causes of Modification. The following are causes for modification but not revocation and reissuance of permits:

  (1) Alterations. There are material and substantial alterations or additions to the permitted facility or activity which occur after permit issuance which justify the application of permit conditions that are different or absent in the existing permit.

  (2) Information. The Secretary has received information. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance.

  (3) New Regulations. The standards or regulations on which the permit was based have been changed by statute, through promulgation of amended standards or regulations or by judicial decision after the permit was issued.

  (4) Modification. The Secretary may modify a permit:

    (a) When modification of a closure plan is required by COMAR 26.13.05.07C(3) or H(4);

    (b) After the Secretary receives the notification of expected closure under COMAR 26.13.05.07D when the Secretary determines that extension of the 90 or 180 day periods under COMAR 26.13.05.07D, modification of the 30-year post-closure period under COMAR 26.13.05.07G(2), continuation of security requirements under COMAR 26.13.05.07G(3), or permission to disturb the integrity of the containment system under COMAR 26.13.05.07G(4) are unwarranted;

    (c) When the permittee has filed a request under 40 CFR §264.147(c) for a variance to the level of financial responsibility or when the Secretary demonstrates under 40 CFR §264.147(d) that an upward adjustment of the level of financial responsibility is required;

    (d) When the corrective action program specified in the permit under COMAR 26.13.05.06-6 has not brought the regulated unit into compliance with the ground water protection standard within a reasonable period of time;

    (e) To include a detection monitoring program meeting the requirements of COMAR 26.13.05.06-4, when the owner or operator has been conducting a compliance action program under COMAR 26.13.05.06-6 and the compliance period ends before the end of the post-closure care period for the unit;

    (f) When a permit requires a compliance monitoring program under COMAR 26.13.05.06-5, but monitoring data collected before permit issuance indicate that the facility is exceeding the ground water protection standard;

    (g) To include conditions applicable to units at a facility that were not previously included in the facility's permit;

    (h) When a land treatment unit is not achieving complete treatment of hazardous constituents under its current permit conditions.

  (5) Compliance Schedules. The Secretary determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy.

C. The suitability of the facility location may not be considered at the time of permit modification or revocation and reissuance unless new information or standards indicate that a threat to human health or the environment exists which was unknown at the time of permit issuance.

D. Causes for Modification or Revocation and Reissuance. The following are causes to modify or, alternatively, revoke and reissue a permit:

  (1) Cause exists for termination under Regulation .12 of this regulation, and the Secretary determines that modification or revocation and reissuance is appropriate;

  (2) The Secretary has received notification under Regulation .04M(3) of this chapter of a proposed transfer of the permit.

E. A CHS facility permit can be withdrawn by the Secretary at the request of the owner or operator if the following conditions are complied with:

  (1) The Secretary receives a written withdrawal request at least 6 months before expiration of the permit;

  (2) The Secretary approves a closure plan for activities regulated by the permit; and

  (3) An inspection by a representative of the Department verifies that activities regulated by the CHS facility permit are no longer performed and that a CHS facility permit is not otherwise required.

#### Regulation .12 Termination of Permits.

*COMAR 26.13.07.12*

A. The following are causes for terminating a permit during its term, or for denying a permit renewal application:

  (1) Noncompliance by the permittee with any condition of the permit;

  (2) The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time;

  (3) A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or termination;

  (4) Failure to pay the permit fee in a timely manner; or

  (5) Failure to comply with any applicable State environmental law or regulation.

B. For purposes of this chapter, the term “termination” means the same as the term “revocation” in Environment Article, Title 7, Annotated Code of Maryland, and Regulation .11 of this chapter.

C. The Secretary shall follow the requirements of Regulations .20—.20-6 of this chapter in terminating any permit.

#### Regulation .13 Processing Minor Modifications of Permits.

*COMAR 26.13.07.13*

Upon the consent of the permittee, the Secretary may modify a permit to make the corrections or allowances for changes in the permitted activity identified in Regulations .13-1—.13-3 of this chapter without following the procedures of Regulations .20—.20-6 of this chapter. Any permit modification not processed as a minor modification under this regulation and Regulations .13-1 —.13-3 of this chapter shall be made for cause and with the draft permit and public notice as required in Regulation .11 of this chapter.

#### Regulation .13-1 Minor Modifications — Newly Regulated Hazardous Wastes or Newly Regulated Units.

*COMAR 26.13.07.13-1*

A. Permit modifications to allow for the continued management of a waste newly listed or identified as hazardous under COMAR 26.13.02, or to allow for the continued management of hazardous wastes in units newly regulated as hazardous waste management units, may be processed as minor modifications if the following conditions are met:

  (1) The unit that is the subject of the modification was in existence as a hazardous waste facility with respect to:

    (a) The newly listed or identified waste on the effective date of the regulation listing or identifying the waste; or

    (b) The newly regulated waste management unit on the effective date of the regulation regulating the unit;

  (2) The permittee submits a request for a minor modification of the permit on or before:

    (a) The date on which the waste becomes regulated as hazardous; or

    (b) The date the unit becomes subject to the new requirements;

  (3) The permittee manages the waste in compliance with the requirements of COMAR 26.13.06 and 26.13.10;

  (4) The permittee submits, within 180 days after the effective date of the regulation listing or identifying the waste as hazardous or within 180 days after the effective date of the regulation subjecting the unit to regulation under this subtitle, an application for a permit modification to incorporate all changes necessary to achieve compliance with the requirements of this subtitle in managing the newly regulated waste or in operating the newly regulated unit; and

  (5) In the case of land disposal units, the permittee certifies that the unit is in compliance with all applicable requirements of COMAR 26.13.06 concerning ground water monitoring and financial responsibility by the date 12 months after the effective date of the regulation:

    (a) Identifying or listing the waste as hazardous; or

    (b) Regulating the unit as a hazardous waste management unit.

B. If the permittee fails to certify compliance with the requirements identified in §A(5) of this regulation, the permittee shall lose authority to operate under this regulation.

C. Continued Acceptance of Hazardous Waste Military Munitions from Off-Site. A permittee is authorized to continue to accept hazardous waste military munitions from off-site, notwithstanding any permit conditions barring the permittee from accepting off-site wastes, if:

  (1) On the date that the waste military munitions become subject to hazardous waste regulatory requirements, the facility at which the waste military munitions are being accepted from off-site is:

    (a) In existence as a hazardous waste facility; and

    (b) Already permitted to handle the waste military munitions;

  (2) On or before the date when the waste military munitions become subject to hazardous waste regulatory requirements, the permittee submits a request for a minor modification of the permit under Regulation .13 of this chapter and §§A and B of this regulation to remove or amend the permit provision restricting the receipt of waste munitions from off-site; and

  (3) Not later than 180 days after the date when the waste military munitions become subject to hazardous waste regulatory requirements, the permittee submits a complete application for a permit modification under Regulation .11 of this chapter to remove or amend the permit provision restricting the receipt of waste munitions from off-site.

#### Regulation .13-2 Specific Changes Eligible for Processing as a Minor Permit Modification.

*COMAR 26.13.07.13-2*

A. Except as provided in Regulations .13-1 and .13-3 of this chapter, only modifications to accomplish the following may be processed as minor modifications:

  (1) The following changes to general permit provisions:

    (a) Correction of typographical errors;

    (b) Requirement of more frequent monitoring or reporting by the permittee;

    (c) Change in an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement;

    (d) Allowance for a change in ownership or operational control of a facility as specified in §B, when the Secretary determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility between the current and new permittees has been submitted to the Secretary.

    (e) Administrative and informational changes;

    (f) Replacement or upgrading of equipment with equipment or components that are functionally equivalent;

    (g) Providing for more frequent sampling or maintenance;

    (h) Changes to remove permit conditions that are no longer applicable because the standards on which the permit conditions were based are no longer applicable to the facility;

  (2) The following changes related to general facility standards:

    (a) Changes to waste sampling or analysis methods to:

      (i) Conform with agency guidance or regulations;

      (ii) Incorporate changes associated with sampling or analysis methods for hazardous waste F039, multi-source leachate; or

      (iii) Incorporate changes associated with underlying hazardous constituents in ignitable or corrosive wastes;

    (b) Changes to analytical quality assurance/quality control plans to conform with agency guidance or regulations;

    (c) Changes in procedures for maintaining the operating record;

    (d) Changes in the training plan other than those that affect the type or decrease the amount of training given to employees;

    (e) Changes to the contingency plan to accomplish the following:

      (i) Upgrade, relocate, or replace with functionally equivalent equipment, emergency equipment listed in the contingency plan,

      (ii) Change the name, address, or phone number of a coordinator or other person or agency identified in the plan;

  (3) The following changes related to ground water protection:

    (a) Replacement of an existing well that has been damaged or rendered inoperable, without change to location, design, or depth of the well;

    (b) Changes in ground water sampling or analysis procedures;

    (c) Changes to the ground water monitoring schedule;

    (d) Changes in statistical procedures for determining whether a statistically significant change in ground water quality between upgradient and downgradient wells has occurred;

  (4) The following changes related to closure:

    (a) Changes to estimates of maximum inventory under COMAR 26.13.05.07C(2)(c);

    (b) Changes in the closure schedule for any unit, changes in the final closure schedule for the facility, or extension of the final closure period;

    (c) Changes in the expected year of final closure, if other permit conditions are not changed;

    (d) Changes in procedures for decontamination of facility equipment or structures; or

    (e) Addition of tanks to be used temporarily for closure activities provided that the tanks are used for neutralization, dewatering, phase separation, or component separation;

  (5) The following changes related to post-closure:

    (a) Changes in the name, address, or phone number of a contact in the post-closure plan;

    (b) Changes in the expected year of final closure where other permit conditions are not changed;

  (6) Addition of a roof to a container management unit without alteration of the containment system;

  (7) The following changes related to tanks:

    (a) Addition of a new tank that will operate for up to 90 days using any of the following treatment technologies:

      (i) Neutralization,

      (ii) Phase separation,

      (iii) Dewatering, or

      (iv) Component separation;

    (b) Replacement of a tank by a tank that meets the same design standards, provided that all of the following conditions are met:

      (i) The capacity of the replacement tank is between 90 percent and 110 percent of the capacity of the replaced tank,

      (ii) The capacity of the replacement tank is within 1,500 gallons of the capacity of the replaced tank,

      (iii) The facility's permitted tank capacity is not increased, and

      (iv) The replacement tank meets the same conditions in the permit as the replaced tank;

    (c) Management of different wastes in tanks provided that the following conditions are met:

      (i) The change does not require the addition of units or a change in the treatment process or management standards,

      (ii) The units have previously received wastes of the same type, for example, incinerator scrubber water, and

      (iii) The waste is not a dioxin containing waste (F020, F021, F022, F023, F026, F027, and F028);

  (8) For waste piles complying with COMAR 26.13.05.12A(2), replacement of the waste pile unit with another waste pile unit of the same design and capacity and meeting all waste pile conditions in the permit;

  (9) The following changes related to land treatment:

    (a) Changes to any conditions specified in the permit for land treatment units to reflect the results of the land treatment demonstration, provided performance standards are met;

    (b) Allowing a second treatment demonstration for land treatment to be conducted when the results of the first demonstration have not shown the conditions under which the waste or wastes can be treated completely as required by COMAR 26.13.05.13C(1), provided the conditions for the second demonstration are substantially the same as the conditions for the first demonstration;

    (c) Modification of a land treatment unit management practice to decrease the rate of waste application;

  (10) The following changes related to incinerators:

    (a) Changes to the ranges of the operating requirements set in a hazardous waste incinerator permit to reflect the results of the trial burn, provided that the change is minor;

    (b) Changes to the operating requirements set in a hazardous waste incinerator permit for conducting a trial burn, provided that the change is minor;

    (c) Granting one extension of the time period for determining operational readiness of a hazardous waste incinerator following completion of construction, for up to 720 hours operating time for incineration of hazardous waste;

    (d) Substitution of an alternate type of fuel that is not specified in the permit;

    (e) Technology changes needed to meet standards under 40 CFR Part 63, Subpart EEE, National Emission Standards for Hazardous Air Pollutants, or corresponding State requirements, if the facility owner or operator, before submitting a request for a permit modification to the Secretary, complies with:

      (i) The Notification of Intent to Comply (NIC) requirements of 40 CFR §63.1210 in effect before May 14, 2001; or

      (ii) State requirements corresponding to the requirements referenced in §A(10)(e)(i) of this regulation;

  (11) The removal or amendment of a permit provision restricting the receipt of waste munitions from off-site to allow the continued acceptance of waste military munitions in accordance with Regulation .13-1C of this chapter;

  (12) Replacement of a containment building with a containment building that meets the same design standards if:

    (a) The unit capacity is not increased; and

    (b) The replacement containment building meets the same conditions in the permit as the unit it is replacing; and

  (13) Any other change identified in 40 CFR §270.42 Appendix I as a class 1 modification or a class 1 modification requiring prior agency approval.

B. Changes in the ownership or operational control of a facility may be made if the new owner or operator submits a revised permit application not later than 90 days before the scheduled change. When a transfer of ownership or operational control of a facility occurs, the old owner or operator shall comply with the requirements of COMAR 26.13.05.08 until the new owner or operator has demonstrated to the Secretary that he is complying with the requirements of that regulation. The new owner or operator shall demonstrate compliance with COMAR 26.13.05.08 requirements within 6 months of the date of the change in the ownership or operational control of the facility. Upon demonstration to the Secretary by the new owner or operator of compliance with COMAR 26.13.05.08, the Secretary shall notify the old owner or operator in writing that he no longer needs to comply with COMAR 26.13.05.08 as of the date of demonstration.

#### Regulation .13-3 General Criteria Defining Eligibility for Processing as a Minor Modification.

*COMAR 26.13.07.13-3*

A. Requests for Determination of Eligibility for Processing as a Minor Modification.

  (1) For modifications not listed in Regulation .13-1 or .13-2 of this chapter, the permittee may request a determination by the Secretary that the modification should be processed as a minor modification.

  (2) The permittee shall provide the Secretary with the information necessary to support the requested determination.

  (3) The Secretary shall make a decision on a request for determination made under §A(1) of this regulation as promptly as practicable.

B. In determining whether the proposed modification may be processed as a minor modification, the Secretary shall consider the similarity of the modification to modifications listed in Regulation .13-2 of this chapter.

C. The modification in §B of this regulation may be considered minor only if it meets the following conditions:

  (1) It involves minor changes that keep the permit current with routine changes to the facility or its operation; and

  (2) Changes under the modification do not substantially alter the permit conditions or reduce the capacity of the facility to protect human health or the environment.

#### Regulation .14 Emergency Permits, Short Term Permits, and Phased Permits.

*COMAR 26.13.07.14*

A. Notwithstanding any other provision of this regulation, if the Secretary finds an imminent and substantial endangerment to human health or the environment, the Secretary may issue a temporary emergency permit to a facility to allow treatment, storage, or disposal of hazardous waste for a non-permitted facility or a hazardous waste not covered by the permit for a facility with an effective permit. This emergency permit:

  (1) May be oral or written. If oral, it shall be followed within 5 days by a written emergency permit.

  (2) May not exceed 90 days in duration.

  (3) Shall clearly specify the hazardous wastes to be received, and the manner and location of their treatment, storage, or disposal.

  (4) May be terminated by the Secretary at any time without process if he or she determines that termination is appropriate to protect human health and environment.

  (5) Shall be accompanied by a public notice including:

    (a) Name and address of the office granting the emergency authority;

    (b) Name and location of the permitted hazardous waste management facility;

    (c) A brief description of the wastes involved;

    (d) A brief description of the action authorized and reasons for authorizing it;

    (e) Duration of the emergency permit.

  (6) Shall incorporate, to the extent possible and not inconsistent with the emergency situation, all applicable requirements of COMAR 26.13.05, 26.13.07, and 26.13.10.

B. Short Term Permits.

  (1) For the purpose of allowing an owner or operator to meet the treatment demonstration requirements of COMAR 26.13.05.13C, the Secretary may issue a treatment demonstration permit. The permit shall contain only those requirements necessary to meet the standards in COMAR 26.13.05.13C(3). The permit may be issued either as a treatment or disposal permit covering only the field test or laboratory analyses, or as a two-phase facility permit covering the field tests, or laboratory analyses, and design, construction, operation, and maintenance of the land treatment unit.

  (2) The Secretary may issue a two-phase facility permit if the Secretary finds that, based on information submitted in the application, substantial, although incomplete or inconclusive, information already exists upon which to base the issuance of a facility permit.

  (3) If the Secretary finds that not enough information exists upon which the Secretary can establish permit conditions to attempt to provide for compliance with all of the requirements of COMAR 26.13.05.13 the Secretary shall issue a treatment demonstration permit covering only the field test or laboratory analyses.

C. Phased Permits.

  (1) If the Secretary finds that a phased permit may be issued, he will establish, as requirements in the first phase of the facility permit, conditions for conducting the field tests of laboratory analyses. These permit conditions will include design and operating parameters (including the duration of the tests or analyses and, in the case of field tests, the horizontal and vertical dimensions of the treatment zone), monitoring procedures, post-demonstration cleanup activities, and any other conditions which the Secretary finds may be necessary under COMAR 26.13.05.13C(3). The Secretary will include conditions in the second phase of the facility permit to attempt to meet all requirements pertaining to unit design, construction, operation, and maintenance in COMAR 26.13.05.13. The Secretary will establish these conditions in the second phase of the permit based upon the substantial but incomplete or inconclusive information contained in the application.

  (2) The first phase of the permit will be effective as provided in Regulation .20-6C of this chapter.

  (3) The second phase of the permit will be effective as provided in §E.

D. When the owner or operator who has been issued a two-phase permit has completed the treatment demonstration, the owner or operator shall submit to the Secretary a certification, signed by a person authorized to sign a permit application or report under Regulation .03 of this chapter, that the field tests or laboratory analyses have been carried out in accordance with the conditions specified in phase one of the permit for conducting the tests or analyses. The owner or operator shall also submit all data collected during the field tests or laboratory analyses within 90 days of completion of those tests or analyses unless the Secretary approves a later date.

E. Modification.

  (1) If the Secretary determines that the results of the field tests or laboratory analyses meet the requirements of COMAR 26.13.05.13C, the Secretary will modify the second phase of the permit to incorporate any requirements necessary for operation of the facility in compliance with COMAR 26.13.05.13, based upon the results of the field tests or laboratory analyses.

  (2) This permit modification may proceed as a minor modification under Regulation .13 of this chapter, provided any such change is minor, or otherwise will proceed as a modification under Regulation .11 of this chapter.

  (3) If no modification of the second phase of the permit is necessary, or if only minor modifications are necessary and have been made, the Secretary will give notice of the final decision to the permit applicant and to each person who submitted written comments on the phased permit or who requested notice of final decision on the second phase of the permit. The second phase of the permit then will become effective as specified in Regulation .20-6C of this chapter.

  (4) If modifications under Regulation .11 of this chapter are necessary, the second phase of the permit will become effective only after those modifications have been made.

#### Regulation .15 Additional Conditions; Applicable Permits.

*COMAR 26.13.07.15*

A. The permittee need not comply with the conditions of this permit to the extent and for the duration the noncompliance is authorized in any emergency permit.

B. The permittee shall maintain records from all ground monitoring wells and associated ground water surface elevations, for the active life of the facility, and for disposal facilities for the post-closure care period.

C. For a new hazardous waste management facility, the permittee may not begin treatment, storage, or disposal of hazardous waste, and for a facility being modified the permittee may not treat, store, or dispose of hazardous waste in the modified portion of the facility, until:

  (1) The permittee has submitted to the Secretary by certified mail or hand delivery a letter signed by the permittee and a registered professional engineer stating that the facility has been constructed or modified in compliance with the permit; and

  (2) The Secretary has inspected the modified or newly constructed facility and finds it is in compliance with the conditions of the permit; or

  (3) Within 15 days of the date of the submission of the letter in §C(1), of this regulation, the permittee has not received notice from the Secretary of his or her intent to inspect, prior inspection is waived, and the permittee may begin treatment, storage, or disposal of hazardous waste.

D. The following shall be included as information which shall be reported orally within 24 hours as required by Regulation .04M(6) of this chapter:

  (1) Information concerning release of any hazardous waste that may cause an endangerment to public drinking water supplies.

  (2) Any information of a release or discharge of hazardous waste, or of a fire or explosion from a hazardous waste management facility, which could threaten the environment or human health outside the facility. The description of the occurrence and its cause shall include:

    (a) Name, address, and telephone number of owner or operator;

    (b) Name, address, and telephone number of the facility;

    (c) Date, time, and type of incident;

    (d) Name and quantity of material or materials involved;

    (e) The extent of injuries, if any;

    (f) An assessment of actual or potential hazards to the environment and human health outside the facility, when this is applicable; and

    (g) Estimated quantity and disposition of recovered material that resulted from the incident. The Secretary may waive the 5-day written notice requirement in favor of a written report within 15 days.

E. The following reports required by COMAR 26.13.05 shall be submitted in addition to those required by COMAR 26.13.05.07G:

  (1) Manifest Discrepancy Report. If a significant discrepancy in a manifest is discovered, the permittee shall attempt to reconcile the discrepancy. If not resolved within 15 days, the permittee shall submit a letter report including a copy of the manifest to the Secretary.

  (2) Unmanifested Waste Report. An unmanifested waste report shall be submitted to the Secretary within 15 days of receipt of unmanifested waste.

  (3) Annual or Biennial Report. An annual or biennial report shall be submitted in accordance with the requirements of COMAR 26.13.05.05F.

F. A list of the wastes or classes of wastes which will be treated, stored, or disposed of at the facility, and a description of the process to be used for treating, storing, and disposing of these hazardous wastes at the facility including the design capacities of each storage, treatment, and disposal unit. Except in the case of containers, the description shall identify the particular wastes or classes of wastes which shall be treated, stored, or disposed of in particular equipment or locations (for example, “Halogenated organics may be stored in Tank A”, and “Metal hydroxide sludges may be disposed of in landfill cells B, C, and D”).

#### Regulation .16 Establishing Permit Conditions.

*COMAR 26.13.07.16*

In addition to the conditions established under Regulation .05 of this chapter, each permit shall include each of the applicable requirements of COMAR 26.13.05.

#### Regulation .17 Hazardous Waste Incinerator Permits.

*COMAR 26.13.07.17*

A. Start-Up.

  (1) For the purposes of determining operational readiness following completion of physical construction, the Department will establish permit conditions, including but not limited to allowable waste feeds and operating conditions, in the permit for a new hazardous waste incinerator. These permit conditions will be effective for the minimum time required to bring the incinerator to a point of operational readiness sufficient to conduct a trial burn, not to exceed 720 hours operating time for incineration of hazardous waste. The Department may extend the duration of this operational period once, for up to 720 additional hours, at the request of the applicant when good cause is shown. The permit may be modified to reflect the extension according to Regulation .13 of this chapter.

  (2) Applicants shall submit a statement, with the permit application, which suggests the conditions necessary to operate in compliance with the performance standards of COMAR 26.13.05.16F during this period. This statement should include, at a minimum, restrictions on waste constituents, waste feed rates, and the operating parameters identified in COMAR 26.13.05.16H.

  (3) The Department will review this statement and any other relevant information submitted with the permit application and specify requirements for this period sufficient to meet the performance standards of COMAR 26.13.05.16F based on its engineering judgment.

B. Trial Burn.

  (1) For the purposes of determining feasibility of compliance with the performance standards of COMAR 26.13.05.16F and of determining adequate operating conditions under COMAR 26.13.05.16H, the Department will establish conditions in the permit to a new hazardous waste incinerator to be effective during the trial burn.

  (2) Applicants shall propose a trial burn plan, prepared under §B(3), of this regulation.

  (3) The trial burn plan shall include the following information:

    (a) An analysis of each waste or mixture of wastes to be burned which includes:

      (i) Heat value of the waste in the form and composition in which it will be burned.

      (ii) The viscosity (if applicable, or description of physical form of the waste.

      (iii) An identification of any hazardous organic constituents listed in COMAR 26.13.02.24 which are present in the waste to be burned, except that the applicant need not analyze for constituents listed in COMAR 26.13.02.24 which would reasonably not be expected to be found in the waste. The constituents excluded from analysis shall be identified, and the basis for their exclusion stated. The waste analysis shall rely on analytical techniques specified in COMAR 26.13.02.22.

      (iv) A listing of any constituents excluded from the analysis required by §B(3)(a)(iii) of this regulation, and a statement of the basis for their exclusion.

      (v) Use of analytical techniques specified in “Test Method for Evaluating Solid Waste, Physical/Chemical Methods”, EPA Publication SW-846, which is incorporated by reference in COMAR 26.13.01.05A(4).

      (vi) An approximate quantification of the hazardous constituents identified in the waste, within the precision produced by the analytical methods specified in “Test Method for Evaluating Solid Waste, Physical/Chemical Methods”, EPA Publication SW-846, which is incorporated by reference in COMAR 26.13.01.05A(4).

    (b) A detailed engineering description of the hazardous waste incinerator for which the permit is sought including:

      (i) Manufacturer's name and model number of incinerator (if available);

      (ii) Type of incinerator;

      (iii) Linear dimensions of the incinerator unit including the cross-sectional area of combustion chamber;

      (iv) Description of the auxiliary fuel system (type/feed);

      (v) Capacity of prime mover;

      (vi) Description of automatic waste feed cut-off system or systems;

      (vii) Stack gas monitoring and pollution control equipment;

      (viii) Nozzle and burner design;

      (ix) Construction materials;

      (x) Location and description of temperature, pressure, and flow indicating and control devices.

    (c) A detailed description of sampling and monitoring procedures, including sampling and monitoring locations in the system, the equipment to be used, sampling and monitoring frequency, and planned analytical procedures for sample analysis.

    (d) A detailed test schedule for each waste for which the trial burn is planned including date or dates, duration, quantity of waste to be burned, and other factors relevant to the Department's decision under §B(6) of this regulation.

    (e) A detailed test protocol, including, for each waste identified, the ranges of temperature, waste feed rate, combustion gas velocity, use of auxiliary fuel, and any other relevant parameters that will be varied to affect the destruction and removal efficiency of the incinerator.

    (f) A description of, and planned operating conditions for any emission control equipment which will be used.

    (g) Procedures for rapidly stopping waste feed, shutting down the incinerator, and controlling emissions in the event of an equipment malfunction.

    (h) Such other information as the Department reasonably finds necessary to determine whether to approve the trial burn plan in light of the purposes of this paragraph and the criteria in §B(6).

  (4) The Department, in reviewing the trial burn plan, shall evaluate the sufficiency of the information provided and may require the applicant to supplement this information, if necessary, to achieve the purposes of this paragraph.

  (5) Based on the waste analysis data in the trial burn plan, the Department will specify as trial Principal Organic Hazardous Constituents (POHCs), those constituents for which destruction and removal efficiencies must be calculated during the trial burn. These trial POHCs will be specified by the Department based on its estimate of the difficulty of incineration of the constituents identified in the waste analysis, their concentration or mass in the waste feed, and for wastes listed in COMAR 26.13.02.15.19, the hazardous waste organic constituent or constituents identified in COMAR 26.13.02.24 as the basis for listing.

  (6) The Department will approve a trial burn plan if it finds that the:

    (a) Trial burn is likely to determine whether the hazardous waste incinerator performance standard required by COMAR 26.13.05.16F can be met;

    (b) Trial burn itself does not present an imminent hazard to human health or the environment;

    (c) Trial burn will help the Department determine operating requirements to be specified under COMAR 26.13.05.16H; and

    (d) Information sought in §B(6)(a) and (c) cannot reasonably be developed through other means.

  (7) During each approved trial burn (or as soon after the burn as is practicable), the applicant shall make the following determinations:

    (a) A quantitative analysis of the trial POHCs in the waste feed to the incinerator;

    (b) A quantitative analysis of the exhaust gas for the concentration and mass emissions of the trial POHCs oxygen (O) and 2 hydrogen chloride (HCl);

    (c) A quantitative analysis of the scrubber water (if any), ash residues, and other residues, for the purpose of estimating the fate of the trial POHCs;

    (d) A computation of destruction and removal efficiency (DRE), in accordance with the DRE formula specified in COMAR 26.13.05.16F(1);

    (e) If the HCl emission rate exceeds 1.8 kilograms of HCl per hour (4 pounds per hour), a computation of HCl removal efficiency in accordance with COMAR 26.13.05.16F(2);

    (f) A computation of particulate emissions, in accordance with COMAR 26.13.05.16F(3);

    (g) An identification of sources of fugitive emissions and their means of control;

    (h) A measurement of average, maximum, and minimum temperatures and combustion gas velocity;

    (i) A continuous measurement of carbon monoxide (CO) in the exhaust gas; and

    (j) Such other information as the Department may specify as necessary to ensure that the trial burn will determine compliance with the performance standards in COMAR 26.13.05.16F and to establish the operating conditions required by COMAR 26.13.05.16H as necessary to meet those performance standards.

  (8) The applicant shall submit to the Department a certification that the trial burn has been carried out in accordance with the approved trial burn plan, and shall submit the results of all the determinations required in §B(7). This submission shall be made within 90 days of completion of the trial burn, or later if approved by the Department.

  (9) All data collected during any trial burn shall be submitted to the Department following the completion of the trial burn.

  (10) All submissions required by this subsection shall be certified on behalf of the applicant by the signature of a person authorized to sign a permit application or a report under Regulation .03 of this chapter.

  (11) Based on the results of the trial burn, the Department shall set the operating requirements in the final permit according to COMAR 26.13.05.16H. The permit modification shall proceed as a minor modification according to Regulation .13 of this chapter.

  (12) Notifications Concerning Trial Burns.

    (a) The Department shall send a notice announcing the scheduled beginning and completion dates for the trial burn to:

      (i) All persons on the facility mailing list developed in accordance with Regulation .20-2E(1)(d) of this chapter; and

      (ii) The appropriate units of State and local government as identified in Regulation .20-2E(1)(e)(f) of this chapter.

    (b) The applicant may not commence the trial burn until after the Department has issued the notice required by §B(12)(a) of this regulation.

    (c) The Department shall mail the notice required by §B(12)(a) of this regulation at least 30 days before the scheduled start of the trial burn, except that an additional notice is not required if the start of the trial burn is delayed due to circumstances beyond the control of the facility or the Department.

    (d) The Department shall include in the notice required by §B(12)(a) of this regulation:

      (i) The name and telephone number of the applicant's contact person;

      (ii) The name and telephone number of the Department's contact office;

      (iii) The location where the approved trial burn plan and supporting documents can be reviewed and copied; and

      (iv) Expected dates for the beginning and the completion of the trial burn.

C. Post Trial Burn.

  (1) For the purposes of allowing operation of a new hazardous waste incinerator following completion of the trial burn and before final modification of the permit conditions to reflect the trial burn results, the Department may establish permit conditions, including but not limited to allowable waste feeds and operating conditions sufficient to meet the requirements of COMAR 26.13.05.16H, in the permit for a new hazardous waste incinerator. These permit conditions will be effective for the minimum time required to complete sample analysis, data computation and submission of the trial burn results by the applicant, and modification of the facility permit by the Department.

  (2) Applicants shall submit a statement, with the permit application, which identified the conditions necessary to operate in compliance with the performance standards of COMAR 26.13.05.16F during this period. This statement should include, at a minimum, restrictions on waste constituents, waste feed rates, and the operating parameters identified in COMAR 26.13.05.16H.

  (3) The Department will review this statement and any other relevant information submitted with the permit application and specify those requirements for this period most likely to meet the performance standards of COMAR 26.13.05.16 based on its engineering judgment.

D. Existing Facilities—Submission of Trial Burn Plan and Performance of Trial Burn.

  (1) Except as provided in §D(4) of this regulation, for the purposes of determining feasibility of compliance with the performance standards of COMAR 26.13.05.16F and of determining adequate operating conditions under COMAR 26.13.05.16H, the applicant for a permit for an existing hazardous waste incinerator shall:

    (a) Prepare and submit a trial burn plan and perform a trial burn in accordance with Regulation .02-6B(2)(a) of this chapter and §B(3)—(10) of this regulation; or

    (b) Submit other information as specified in Regulation .02-6C of this chapter.

  (2) If the Secretary intends to approve a trial burn plan submitted in accordance with §D(1)(a) of this regulation, the Secretary shall provide notification in accordance with the timing and distribution requirements of §B(12) of this regulation.

  (3) The Secretary shall include in the notice required by §D(2) of this regulation:

    (a) The name and telephone number of the applicant's contact person;

    (b) The name and telephone number of the Department's contact office;

    (c) The location where the trial burn plan and supporting documents can be reviewed and copied; and

    (d) A schedule of the activities that are required before permit issuance, including the:

      (i) Anticipated time schedule for the Department's approval of the plan; and

      (ii) Time period during which the trial burn is expected to be conducted.

  (4) Applicants who submit information under Regulation .02-6B(1) of this chapter to qualify for the exemption of COMAR 26.13.05.16B are exempt from the requirement to conduct a trial burn unless they fail to qualify for the exemption of COMAR 26.13.05.16B, which relates to facilities that burn only ignitable, corrosive, or reactive wastes.

  (5) Applicants who submit trial burn plans and receive approval before submission of a permit application shall complete the trial burn and submit the results of the determinations required under §B(7) of this regulation with the permit application.

  (6) If completion of the process described in §D(5) of this regulation conflicts with the date set for submission of the application, the applicant shall contact the Department to establish a later date for submission of the application or the trial burn results.

  (7) If the applicant submits a trial burn plan with Part B of the permit application, the Secretary shall specify a time period before permit issuance in which the applicant shall conduct the trial burn and submit the results.

#### Regulation .18 Permits for Land Treatment Demonstrations Using Field Test or Laboratory Analyses.

*COMAR 26.13.07.18*

A. General.

  (1) For the purpose of allowing an owner or operator to meet the treatment demonstration requirements of COMAR 26.13.05.13C, the Secretary may issue a treatment demonstration permit. The permit shall contain only those requirements necessary to meet the standards in COMAR 26.13.05.13C(3). The permit may be issued either as a treatment or disposal permit covering only the field test or laboratory analyses, or as a two-phase facility permit covering the field tests, or laboratory analyses, and design, construction, operation, and maintenance of the land treatment unit.

  (2) The Secretary may issue a two-phase facility permit if the Secretary finds that, based on information submitted in the application, substantial although incomplete or inconclusive information already exists upon which to base the issuance of a facility permit.

  (3) If the Secretary finds that not enough information exists upon which the Secretary can establish permit conditions to attempt to provide for compliance with all of the requirements of COMAR 26.13.05.13, the Secretary shall issue a treatment demonstration permit covering the field test or laboratory analyses.

B. Phased Permit.

  (1) If the Secretary finds that a phased permit may be issued, the Secretary will establish, as requirements in the first phase of the facility permit, conditions for conducting the field tests or laboratory analyses. These permit conditions will include design and operating parameters (including the duration of the tests or analyses and, in the case of field tests, the horizontal and vertical dimensions of the treatment zone), monitoring procedures, post-demonstration cleanup activities, and any other conditions which the Secretary finds may be necessary under COMAR 26.13.05.13C(3). The Secretary will include conditions in the second phase of the facility permit to attempt to meet all COMAR 26.13.05.13 requirements pertaining to unit design, construction, operation, and maintenance. The Secretary will establish these conditions in the second phase of the permit based upon the substantial but incomplete or inconclusive information contained in the application.

  (2) The first phase of the permit will be effective as provided in Regulation .20-6C of this chapter.

  (3) The second phase of the permit will be effective as provided in §D of this regulation.

C. Certification. When the owner or operator who has been issued a two-phase permit has completed the treatment demonstration, the owner or the operator shall submit to the Secretary a certification, signed by a person authorized to sign a permit application or report under Regulation .03A of this chapter, that the field tests or laboratory analyses have been carried out in accordance with the conditions specified in phase one of the permit for conducting the tests or analyses. The owner or operator shall also submit all data collected during the field tests or laboratory analyses within 90 days of completion of those tests or analyses unless the Secretary approves a later date.

D. Modifications.

  (1) If the Secretary determines that the results of the field tests or laboratory analyses meet the requirements of COMAR 26.13.05.13, the Secretary will modify the second phase of the permit to incorporate any requirements necessary for operation of the facility in compliance with COMAR 26.13.05.13, based upon the results of the field tests or laboratory analyses.

  (2) This permit modification may proceed as a minor modification under Regulation .13 of this chapter provided any change is minor, or otherwise will proceed as a modification under Regulation .11 of this chapter.

  (3) If no modifications of the second phase of the permit are necessary, or if only minor modifications are necessary and have been made, the Secretary will give notice of the final decision to the permit applicant and to each person who submitted written comments on the phased permit or who requested notice of the final decision on the second phase of the permit. The second phase of the permit then will become effective as specified in Regulation .20-6C of this chapter.

  (4) If modifications under Regulation .11 of this chapter are necessary, the second phase of the permit will become effective only after those modifications have been made.

#### Regulation .19 Research, Development, and Demonstration Permits.

*COMAR 26.13.07.19*

A. The Secretary may issue a research, development, and demonstration permit for any hazardous waste treatment facility which proposes to utilize an innovative and experimental hazardous waste treatment technology or process for which permit standards for the experimental activity have not been adopted in COMAR 26.13.05. The permit shall include those terms and conditions that assure protection of human health and the environment. The permit shall:

  (1) Provide for the construction of the facilities as necessary, and for operation of the facility for not longer than 1 year unless renewed as provided in Regulation .19D;

  (2) Provide for the receipt and treatment by the facility of only those types and quantities of hazardous waste which the Secretary considers necessary for purposes of determining the efficacy and performance capabilities of the technology or process and the effects of the technology or process on human health and the environment; and

  (3) Include such requirements as the Secretary considers necessary to protect human health and the environment including requirements regarding monitoring, operation, financial responsibility, closure, and remedial action, and such requirements as the Secretary considers necessary regarding testing and providing of information to the Secretary with respect to the operation of the facility.

B. For the purpose of expediting review and issuance of permits under this section, the Secretary may, consistent with the protection of human health and the environment, modify or waive permit application and permit issuance requirements in this subtitle except that there may be no modification or waiver of regulations regarding financial responsibility, including insurance, or of procedures regarding public participation, or other requirements that by law may not be waived.

C. The Secretary may order an immediate termination, in accordance with the provisions of the Maryland Administrative Procedure Act, State Government Article, Title 10, Annotated Code of Maryland, of all operations at the facility at any time the Secretary determines that termination is necessary to protect human health and the environment.

D. Any permit issued under this section may be renewed not more than three times. Each renewal shall be for a period of not more than 1 year.

#### Regulation .19-1 Administrative Procedures — Preapplication Requirements.

*COMAR 26.13.07.19-1*

A. Applicability.

  (1) The requirements of this regulation apply to persons seeking, under this chapter:

    (a) An initial permit for a hazardous waste management unit at a CHS facility; or

    (b) Renewal of a permit for a hazardous waste management unit at a CHS facility for which the applicant is proposing a change in facility operations that would qualify as a Class 3 permit modification under 40 CFR §270.42.

  (2) The requirements of this regulation do not apply to persons seeking:

    (a) Permit modifications under Regulations .11 or .13—.13-3 of this chapter;

    (b) Permit applications submitted under this chapter for the sole purpose of seeking authorization to conduct post-closure activities or post-closure activities and corrective action at a facility; or

    (c) Renewal of a CHS facility permit for which the applicant is proposing no change in facility operations that would qualify as a Class 3 permit modification under 40 CFR §270.42.

B. Preapplication Meeting. Persons subject to this regulation shall:

  (1) Do the following before submitting a CHS facility permit application:

    (a) Hold at least one meeting with the public in order to solicit questions from the community and inform the community of proposed hazardous waste management activities; and

    (b) Give persons attending the meeting required by §B(1)(a) of this regulation a means to voluntarily provide the prospective permit applicant with their names and addresses by posting a sign-in sheet or using some other mechanism; and

  (2) In accordance with the requirements of Regulation .02D(39) of this chapter, submit the following information as part of the application for a CHS facility permit:

    (a) A summary of all preapplication meetings held in accordance with §B(1)(a) of this regulation;

    (b) The lists of names and addresses of persons who attended the preapplication meetings developed in accordance with §B(1)(b) of this regulation; and

    (c) Copies of any written comments or materials submitted by the public at the meetings.

C. Public Notice for Preapplication Meetings. Persons subject to this regulation shall:

  (1) Provide public notice of a preapplication meeting scheduled in accordance with §B(1)(a) of this regulation at least 30 days before the meeting;

  (2) Maintain, and provide to the Department on request, documentation of the notice required by §C(1) of this regulation;

  (3) Use the following to provide the public notice required by §C(1) of this regulation and transmit the information required by §C(5) of this regulation:

    (a) A newspaper advertisement, published as a display ad, in a newspaper of general circulation:

      (i) In the county or equivalent jurisdiction in which the proposed facility will be located or in which the proposed activity will take place; and

      (ii) In counties or equivalent jurisdictions adjacent to the county in which the proposed facility will be located or in which the proposed activity will take place, if the Secretary determines that publication in one or more adjacent jurisdictions is necessary to inform the affected public and the Secretary so informs the prospective applicant;

    (b) A clearly marked, visible, and accessible sign that is:

      (i) Posted at or near the site of the proposed facility or the facility at which the proposed activity will take place; and

      (ii) Large enough to be read from the nearest point where the public would pass by the site, if the prospective applicant places the sign on the property of the facility or proposed facility; and

    (c) A broadcast media announcement at least once on:

      (i) At least one local radio station or television station; or

      (ii) Another medium the Secretary approves in writing before the announcement is broadcast;

  (4) Send a copy of the newspaper notice required by §C(3)(a) of this regulation to:

    (a) The unit in the Department responsible for issuing CHS facility permits;

    (b) The appropriate units of State government having any authority under State law with respect to the construction or operation of the facility; and

    (c) Any unit of local government having jurisdiction over the area where the facility is located or proposed to be located; and

  (5) Assure that the notices required by §C(3) of this regulation include:

    (a) The date, time, and location of the meeting;

    (b) A brief description of the purpose of the meeting;

    (c) A brief description of the facility and proposed operations, including the address of the facility or a map with detail to the level of neighborhood streets showing the location of the facility;

    (d) A statement encouraging persons to contact the prospective applicant at least 72 hours before the meeting if they need special accommodations to be able to participate in the meeting; and

    (e) The name, address, and telephone number of a representative of the prospective applicant.

#### Regulation .19-2 Public Access to Information.

*COMAR 26.13.07.19-2*

A. Public Access to Permit Applications. Concurrent with the notice required by Regulation .20-2A(5) and (6) of this chapter, the Secretary shall place the permit application and any supporting documents in a location accessible to the public near the facility or at the Department's offices.

B. Information Repository.

  (1) The requirements of this section apply to all applicants seeking a CHS facility permit under this chapter for a hazardous waste management unit.

  (2) The Secretary may assess the need for an information repository on a case-by-case basis.

  (3) In assessing the need for an information repository, the Secretary shall consider a variety of factors, including the:

    (a) Level of public interest;

    (b) Type of facility;

    (c) Presence of an existing repository; and

    (d) Proximity of the location of the potential repository to the nearest copy of the administrative record.

  (4) If the Secretary determines that there is a need for an information repository, the Secretary shall notify the CHS facility permit applicant that the applicant is required to establish and maintain an information repository.

  (5) The CHS facility permit applicant shall assure that the information repository contains all documents, reports, data, and information considered necessary by the Secretary to fulfill the purposes for which the repository is established.

  (6) The Secretary may, at the Secretary's discretion, limit the contents of the repository.

  (7) Subject to the requirements of §B(8) of this regulation, the applicant shall locate and maintain the repository at a site of the applicant's choosing.

  (8) The Secretary shall specify an alternate location of the repository if the Secretary determines that the site chosen by the applicant is unsuitable for the purposes and persons for which it was established, due to problems with the location, hours of availability, access, or other relevant considerations.

  (9) The applicant shall:

    (a) Provide all individuals on the facility mailing list with written notice about the information repository; and

    (b) Comply with requirements specified by the Secretary for informing the public about the information repository.

  (10) The applicant is responsible for maintaining and updating the repository with appropriate information throughout a time period specified by the Secretary.

  (11) Based on the factors in §B(3) of this regulation, the Secretary may, at the Secretary's discretion, close the information repository, releasing the applicant from the requirement to maintain the repository.

#### Regulation .20 Administrative Procedures — Permit Applications and Modifications.

*COMAR 26.13.07.20*

A. Application for a Permit.

  (1) Any person who requires a permit shall complete, sign, and submit an application to the Secretary.

  (2) The Secretary may not begin the processing of a permit until the applicant has fully complied with the application requirements.

  (3) Permit applicants shall comply with the signature and certification requirements of Regulation .03 of this chapter.

  (4) The Secretary shall review for completeness each application for a permit in accordance with the following:

    (a) The Secretary should review for completeness each application for a permit submitted by a hazardous waste management facility within 60 days of its receipt;

    (b) On completing the review, the Secretary shall notify the applicant in writing whether the application is complete;

    (c) If the application is incomplete, the Secretary shall list the information necessary to make the application complete; and

    (d) After the application has been determined to be complete by the Secretary:

      (i) The Secretary may request additional information from an applicant only when necessary to clarify, modify, or supplement previously submitted material; and

      (ii) Requests by the Secretary for additional information may not render an application incomplete.

  (5) If an applicant fails or refuses to correct deficiencies in the application, the permit may be denied and appropriate enforcement actions may be taken under the applicable statutory provision in the State statutes.

  (6) If the Secretary decides that a site visit is necessary for any reason in conjunction with the processing of an application, the Secretary shall notify the applicant and schedule a visit.

  (7) The effective date of an application is the date on which the Secretary notifies the applicant that the application is complete as provided in §A(4) of this regulation.

  (8) Project Decision Schedule.

    (a) For each application from a major hazardous waste management facility, the Secretary shall, not later than the effective date of the application, prepare and mail to the applicant a project decision schedule.

    (b) The Secretary shall specify in the schedule target dates by which the Secretary intends to:

      (i) Prepare a draft permit;

      (ii) Give public notice;

      (iii) Complete the public comment period, including any public hearing; and

      (iv) Issue a final permit.

B. Modifications, Revocation and Reissuance, or Termination of Permits.

  (1) General.

    (a) Permits may be modified, revoked and reissued, or terminated either:

      (i) At the request of an interested person, including the permittee; or

      (ii) On the Secretary's initiative.

    (b) Permits may only be modified, revoked and reissued, or terminated for the reasons specified in Regulations .11 and 12 of this chapter.

    (c) A person requesting modification, revocation and reissuance, or termination of a permit shall make the request in writing and shall include with the request facts or reasons supporting the request.

  (2) Denial of Request.

    (a) If the Secretary decides that a request made under §B(1)(c) of this regulation is not justified, the Secretary shall send the requester a brief written response giving a reason for the decision.

    (b) Denials of requests for modification, revocation and reissuance, or termination are not subject to public hearing notice or comment.

    (c) A denial of a request constitutes a final permit decision of the Secretary and is subject to judicial review under Regulation .20-5B of this chapter.

  (3) Tentative Decision to Modify or Revoke and Reissue.

    (a) If the Secretary tentatively decides to modify or revoke and reissue a permit under Regulation .11 of this chapter, the Secretary shall prepare a tentative determination under Regulation .20-1A of this chapter, which shall include a draft permit incorporating the proposed changes.

    (b) The Secretary may request additional information when evaluating the potential modification, revocation and reissuance, or termination of a permit and, in the case of a modified permit, may require the submission of an updated permit application.

    (c) In the case of revoked and reissued permits, the Secretary shall require the submission of a new application.

  (4) Reopening Permit Conditions.

    (a) Permit Modification. In a permit modification under this regulation:

      (i) Only those conditions to be modified shall be reopened when a new draft permit is prepared; and

      (ii) All other aspects of the existing permit shall remain in effect for the duration of the unmodified permit.

    (b) Permit Revocation and Reissuance.

      (i) When a permit is revoked and reissued under this regulation, the entire permit is reopened just as if the permit had expired and was being reissued.

      (ii) During any revocation and reissuance proceeding, the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.

  (5) Modifications identified as minor under Regulations .13-1—.13-3 of this chapter are not subject to the requirements of this regulation but are instead processed in accordance with Regulation .13 of this chapter.

  (6) Notice of Intent to Terminate.

    (a) If the Secretary tentatively decides to terminate a permit under Regulation .12 of this chapter, the Secretary shall issue a notice of intent to terminate.

    (b) A notice of intent to terminate is a type of draft permit that follows the same procedures as a draft permit prepared under Regulation .20-1A of this chapter.

  (7) Judicial Review.  A final decision to modify, revoke and reissue, or terminate a permit is subject to judicial review under Regulation .20-5B of this chapter.

#### Regulation .20-1 Administrative Procedures—Tentative and Final Determinations.

*COMAR 26.13.07.20-1*

A. Tentative Determinations and Draft Permits.

  (1) Once an application is complete, the Secretary shall prepare a tentative determination that includes the following information:

    (a) A proposal to issue or to not issue the permit;

    (b) Any proposed permit limitations and conditions;

    (c) A brief explanation of the Department's tentative determination;

    (d) Any proposed schedule of compliance; and

    (e) If the tentative determination is to issue a permit, a draft permit.

  (2) Notice of Intent to Deny.

    (a) If the Secretary tentatively decides to deny the permit application, the Secretary shall issue a notice of intent to deny, which is a type of draft permit.

    (b) A notice of intent to deny is subject to the same procedures as any draft permit prepared under this section.

    (c) If the Secretary's final decision is that the tentative decision to deny the permit application was incorrect, the Secretary shall withdraw the notice of intent to deny and proceed to prepare a draft permit under §A(3) of this regulation.

  (3) If the Secretary decides to prepare a draft permit, the Secretary shall prepare a draft permit that contains the information described in Regulations .04, .05, .07, .08, .15, and .16 of this chapter.

  (4) Draft Permits—General.

    (a) All draft permits shall be:

      (i) Accompanied by a statement of basis or fact sheet, as required by §§B and C of this regulation;

      (ii) Based on the administrative record, as required by §D of this regulation;

      (iii) Publicly noticed, as required by Regulation .20-2 of this chapter; and

      (iv) Made available for public comment, as required by Regulation .20-4A of this chapter.

    (b) The Secretary shall:

      (i) Give notice of opportunity for the public hearing, as required by Regulation .20-5A of this chapter;

      (ii) Issue a final decision, as required by Regulation .20-6 of this chapter; and

      (iii) Respond to comments, as required by Regulation .20-4D of this chapter.

    (c) The final decision is subject to judicial review under Regulation .20-5B of this chapter.

  (5) The Department shall publish a notice of the tentative determination that allows at least:

    (a) 30 days before the Department holds a public hearing under Regulation .20-5A of this chapter; and

    (b) 45 days before the Department:

      (i) Issues a final determination under §E of this regulation; or

      (ii) Makes a final decision to issue or deny a permit, if a final determination is not required under §E(1) of this regulation.

B. Statement of Basis. The Secretary shall:

  (1) Prepare a statement of basis for every draft permit for which a fact sheet under §C of this regulation is not prepared;

  (2) Briefly describe in the statement of basis the derivation of the conditions of the draft permit and the reasons for them, or, in the case of notices of intent to deny or terminate, reasons supporting the tentative decision; and

  (3) Send the statement of basis to the applicant and, on request, to any other person.

C. Fact Sheet. The Secretary shall:

  (1) Prepare a fact sheet for every:

    (a) Draft permit for a major hazardous waste management facility; and

    (b) Permit that the Secretary finds is the subject of widespread public interest or raises major issues;

  (2) Briefly set forth in the fact sheet the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit;

  (3) Send this fact sheet to the applicant and, on request, to any other person; and

  (4) Include in the fact sheet, when applicable:

    (a) A brief description of the type of facility or activity which is the subject of the draft permit;

    (b) The type and quantity of wastes, fluids, or pollutants which are proposed to be or are being treated, stored, disposed of, injected, emitted, or discharged;

    (c) A brief summary of the basis for the draft permit conditions, including references to applicable statutory or regulatory provisions and appropriate supporting references to the administrative record required by §D of this regulation;

    (d) Reasons why any requested variances or alternatives to required standards do or do not appear justified;

    (e) A description of the procedures for reaching a final decision on the draft permit, including:

      (i) The beginning and ending dates of the comment period under Regulation .20-2 of this chapter, and the address where comments will be received;

      (ii) Procedures for requesting a hearing and the nature of that hearing; and

      (iii) Any other procedures by which the public may participate in the final decision; and

    (f) The name and telephone number of a person to contact for additional information.

D. Administrative Record for Draft Permits.

  (1) The provisions of a draft permit prepared by the Department under §A of this regulation shall be based on the administrative record defined in this regulation.

  (2) For preparing a draft permit under §A of this regulation, the record shall consist of:

    (a) The application, if required, and any supporting data furnished by the applicant;

    (b) The draft permit or notice of intent to deny the application or to terminate the permit;

    (c) The statement of basis under §B of this regulation or the fact sheet under §C of this regulation;

    (d) All documents cited in the statement of basis or fact sheet; and

    (e) Other documents contained in the supporting file on the draft permit.

  (3) Material readily available at the Department or published material that is generally available, and that is included in the administrative record under §D(2) of this regulation, need not be physically included with the rest of the record as long as it is specifically referred to in the statement of basis or the fact sheet.

  (4) The Department shall assure that, except for materials that have been designated confidential business information, the administrative record for a draft permit is available to the public for inspection and copying.

  (5) Public Availability of Information—Tentative Determination.

    (a) Except as provided in §D(5)(b) of this regulation, the Department shall, not later than the date of publication of a notice of tentative determination under Regulation .20-2A of this chapter, make available for inspection and copying:

      (i) The permit application on which the tentative determination is based;

      (ii) Documents that were submitted with the permit application;

      (iii) All documents that the Department relied on in making the tentative determination; and

      (iv) The privilege log developed under §D(5)(c) of this regulation.

    (b) The requirements of §D(5)(a) of this regulation do not apply to materials that have been designated confidential business information, documents for which disclosure is precluded by law, or documents that are subject to privilege.

    (c) The Department shall compile a privilege log that:

      (i) Identifies all documents not made available for inspection and copying under §D(5)(b) of this regulation; and

      (ii) States the reasons for withholding each document identified in the log.

E. Final Determination.

  (1) The Department shall prepare a final determination if:

    (a) Written comments adverse to the tentative determination were received by the Department during the comment period established for the tentative determination;

    (b) Comments adverse to the tentative determination were received in writing at, or within 5 days after, the public hearing held under Regulation .20-5A of this chapter;

    (c) Comments adverse to the tentative determination were received orally at the public hearing held under Regulation .20-5A of this chapter; or

    (d) The final determination is substantively different from the tentative determination.

  (2) Notice of Final Determination.

    (a) If the Department is required to prepare a final determination under §E(1) of this regulation, the Department shall publish a notice of the final determination in accordance with the requirements of Regulation .20-2 of this chapter.

    (b) If the final determination differs substantively from the tentative determination, the Department shall, before publishing notice of the final determination under §E(2)(a) of this regulation:

      (i) Publish notice of intent to issue a final determination that includes a proposed final determination and provides the opportunity for written public comment for a period of at least 30 days on the portion of the proposed final determination that differs substantively from the tentative determination;

      (ii) Consider all public comments submitted on the proposed final determination during the public comment period; and

      (iii) Prepare written responses to public comments submitted on the proposed final determination during the public comment period, and provide a copy of the written responses to persons who submitted the comments.

  (3) Final Decision.

    (a) The final determination made by the Department under §E(1) of this regulation or, if applicable, under the process established in §E(2) of this regulation, constitutes the Department’s final decision.

    (b) If the Department is not required to prepare a final determination under §E(1) of this regulation, the tentative determination becomes a final decision by the Department when the permit is issued or denied.

#### Regulation .20-2 Administrative Procedures—Public Notices of Permit Actions and Public Comment Period.

*COMAR 26.13.07.20-2*

A. The Secretary shall give public notice of the following:

  (1) A permit application has been tentatively denied;

  (2) A draft permit has been prepared and a tentative determination has been made to issue the draft permit;

  (3) An informational meeting has been scheduled;

  (4) A public hearing has been scheduled;

  (5) An application to own, operate, establish, or maintain a CHS facility has been received by the Department;

  (6) An application to modify a CHS permit under Regulation .11 of this chapter has been received by the Department;

  (7) A final determination has been prepared under Regulation .20-1E of this chapter;

  (8) The Department intends to issue a final determination that differs substantively from a tentative determination, in accordance with Regulation .20-1E(2)(b) of this chapter; and

  (9) The Department has reopened a comment period under Regulation .20-4C of this chapter.

B. Public Notice—Denials. The Secretary:

  (1) Is not required to provide public notice when a request for permit modification, revocation and reissuance, or termination is denied; and

  (2) Shall provide written notice of a denial under §B(1) of this regulation to the requester and to the permittee.

C. Public notices may describe more than one permit or permit action.

D. Timing.

  (1) Public notice of the preparation of a draft permit, including a notice of intent to deny a permit application, required under §A of this regulation shall allow at least 45 days for public comment.

  (2) Public notice of a public hearing shall be given at least 30 days before the hearing.

  (3) The Secretary may give public notice of a public hearing at the same time as public notice of the draft permit, and the two notices may be combined.

  (4) The Secretary shall assure that a public notice of receipt of a permit application published as required by §E(3) of this regulation in accordance with §A(5) or (6) of this regulation is published within a reasonable period of time after the Department receives the application.

  (5) The Secretary:

    (a) Shall extend the comment period established under §D(1) of this regulation for an additional 60 days if the Secretary receives a written request to do so from any person during the original comment period provided;

    (b) May not extend the comment period under §D(5)(a) of this regulation more than once; and

    (c) May establish a longer comment period to the extent that the Secretary determines that the longer comment period is necessary.

E. Methods.

  (1) Except as provided in §E(2) of this regulation, the Secretary shall give public notice of activities described in §A of this regulation by mailing a copy of a notice to the following persons:

    (a) The applicant;

    (b) Any other agency who has issued or is required to issue a UIC, PSD, NPDES, or 404 permit for the same facility or activity;

    (c) Federal and State agencies with jurisdiction over fish, shellfish, and wildlife resources and over coastal zone management plans, the Advisory Council on Historic Preservation, State Historic Preservation Officers, and other appropriate government authorities, including any affected states;

    (d) Persons on a mailing list developed by:

      (i) Including those who request in writing to be on the list;

      (ii) Soliciting persons for “area lists” from participants in past permit proceedings in that area; and

      (iii) Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press or on the Department’s website and in such publications as regional and State funded newsletters, environmental bulletins, or State law journals;

    (e) Any unit of local government having jurisdiction over the area where the facility is proposed to be located;

    (f) Each State agency having any authority under State law with respect to the construction and operation of the facility;

    (g) Any person who submitted written comments during the public comment period; and

    (h) Any person who submitted oral or written comments at a public hearing conducted under Regulation .20-5A of this chapter and who provided the Department with a legible mailing address when signing in at the hearing.

  (2) Any person otherwise entitled to receive notice under §E(1) of this regulation may waive the right to receive notice for any classes and categories of permits.

  (3) The Secretary shall assure that any public notice required by §A of this regulation is published at least once a week for 2 consecutive weeks in a daily or weekly newspaper of general circulation in the geographical area in which the proposed facility is located.

  (4) The Secretary shall give public notice through a broadcast message over a radio station that serves the community in which a facility is located or proposed to be located that any of the following has occurred:

    (a) A CHS facility permit application has been tentatively denied;

    (b) A draft CHS facility permit has been prepared; and

    (c) A public hearing has been scheduled.

  (5) The Secretary may:

    (a) Require a permit applicant to provide notice of an informational meeting or a public hearing by mail to:

      (i) Each person requesting the meeting or the hearing; or

      (ii) An authorized representative of the person requesting the meeting or hearing; and

    (b) Provide additional notice in the situations identified in §A of this regulation by requiring the permit applicant to post the notice at the proposed facility or at public facilities in the geographical area of the proposed facility.

  (6) Responsibility for Publishing or Otherwise Providing Notice. For any notice given under §E(1)—(5) of this regulation, the Secretary shall:

    (a) Require the permit applicant to provide the notice; or

    (b) Provide the notice at the applicant's expense.

  (7) Electronic Posting.

    (a) Notice of Receipt of Application.  The Department shall:

      (i) Post on the Department’s website the notice of receipt of an application for a CHS facility permit under §A(5) of this regulation, and the notice of receipt of an application for modification of a CHS facility permit under §A(6) of this regulation; and

      (ii) Provide a method for interested persons to electronically request any additional notices related to an application for a permit identified in §E(7)(a)(i) of this regulation.

    (b) Final Determination.  The Department shall post on the Department’s website notice that a tentative determination has become a final determination.

F. Public Notices—Content.

  (1) General. The Secretary shall assure that all public notices issued under this regulation contain the following minimum information:

    (a) Name and address of the office processing the permit action for which notice is being given;

    (b) Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit;

    (c) A brief description of the business conducted at the facility or activity described in the permit application or the draft permit;

    (d) Name, address, and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit or draft general permit, as the case may be, statement of basis or fact sheet, and the application;

    (e) A brief description of the comment procedures required by Regulations .20-4A and .20-5A of this chapter;

    (f) The specific time and place of any hearing that will be held;

    (g) A statement of procedures to request a hearing, unless a hearing has already been scheduled, and other procedures by which the public may participate in the final permit decision;

    (h) The location of the administrative record required by Regulation .20-1D of this chapter, the times at which the record will be open for public inspection, and a statement that all data submitted by the applicant is available as part of the administrative record; and

    (i) Any additional information the Secretary considers necessary or proper.

  (2) Public Notices for Hearings. The Secretary shall ensure that:

    (a) In addition to the information required to be contained in general public notices by §F(1) of this regulation, the public notice of a hearing on a draft permit contains the following information:

      (i) Reference to the date of previous public notices relating to the permit;

      (ii) Date, time, and place of the hearing; and

      (iii) A brief description of the nature and purpose of the hearing, including the applicable regulations and procedures; and

    (b) All persons identified in §E(1)(a)—(c) of this regulation are mailed a copy of the fact sheet or statement of basis, information on how the permit application may be reviewed, and information on how the draft permit may be reviewed, in addition to the general public notice described in §F(1) of this regulation.

  (3) Public Notices Announcing Receipt of an Application. The Secretary shall assure that public notices announcing the receipt of an application for a CHS facility permit under §A(5) and (6) of this regulation contain, in addition to the information required to be contained in general public notices by §F(1) of this regulation, the following information:

    (a) The name and telephone number of a representative of the applicant;

    (b) An address to which people may write in order to be put on the facility mailing list;

    (c) A brief description of the facility and proposed operations, including the address or a map of the facility location on the front page of the notice;

    (d) The date that the application was submitted; and

    (e) Information on how to request that an informational meeting be held, or information on the time, date, and location of an informational meeting on the application if the Department has already scheduled one.

  (4) Public Notices of Final Determination.  In addition to the information required to be contained in public notices by §F(1) of this regulation, the public notice of a final determination under Regulation .20-1E(1) of this chapter shall include reference to the right to judicial review in accordance with Environment Article §1-601(a), Annotated Code of Maryland.

#### Regulation .20-3 Administrative Procedures—Informational Meetings on Permit Applications.

*COMAR 26.13.07.20-3*

A. The Department shall provide an opportunity for an informational meeting, with respect to a CHS facility permit application:

  (1) At the Department's discretion; or

  (2) On written request, if the request is made within 10 working days after publication of a notice of receipt of application.

B. The Department may cancel an informational meeting scheduled under §A of this regulation if all persons who made timely written requests to hold the meeting withdraw the requests before the meeting.

C. Presentation of Information Concerning an Application.

  (1) The Department may require the applicant to attend an informational meeting or public hearing, and present information concerning the application.

  (2) If the applicant fails to appear and present information after a request from the Department, the application may be denied.

#### Regulation .20-4 Administrative Procedures—Public Comments.

*COMAR 26.13.07.20-4*

A. Public Comments and Requests for Public Hearings.

  (1) During the public comment period provided, any interested person may:

    (a) Submit written comments on the draft permit; and

    (b) Request a public hearing, if no hearing has already been scheduled.

  (2) A request for a public hearing shall be in writing and shall state the nature of the issues proposed to be raised in the hearing.

  (3) The Secretary shall:

    (a) Consider all comments in making the final decision; and

    (b) Answer all comments as provided in §D of this regulation.

B. Obligation to Raise Issues and Provide Information During the Public Comment Period.

  (1) All persons, including applicants, who believe any condition of a draft permit is inappropriate or that the Secretary's tentative decision to deny an application, terminate a permit, or prepare a draft permit is inappropriate, shall raise all reasonably ascertainable issues and submit all reasonably available arguments and factual grounds supporting their position, including all supporting material, by the close of the public comment period, including any public hearing, under Regulation .20-2 of this chapter.

  (2) All supporting materials shall be included in full and may not be incorporated by reference, unless they are already part of the administrative record in the same proceeding, or consist of State or federal statutes and regulations, EPA documents of general applicability, or other generally available reference materials.

  (3) Commenters shall make supporting material not already included in the administrative record available to the Secretary.

  (4) Because a comment period longer than 45 days will often be necessary in complicated proceedings to give commenters a reasonable opportunity to comply with the requirements of this regulation:

    (a) Commenters may request longer comment periods; and

    (b) The Secretary shall freely establish longer comment periods under Regulation .20-2 of this chapter to the extent they appear necessary and as required by Regulation 20-2D(5) of this chapter.

C. Reopening of the Public Comment Period.

  (1) If any data, information, or arguments submitted during the public comment period, including information or arguments required under §B of this regulation appear to raise substantial new questions concerning a permit, the Secretary may take one or more of the following actions:

    (a) Prepare a new draft permit, appropriately modified, and prepare a new tentative determination under Regulation .20-1A of this chapter;

    (b) Prepare a revised statement of basis, a fact sheet, or revised fact sheet and reopen the comment period; and

    (c) Reopen or extend the comment period to give interested persons an opportunity to comment on the information or arguments submitted.

  (2) If the comment period is reopened under §C(1)(c) of this regulation, the Secretary shall:

    (a) Limit the scope of comments that may be considered to the substantial new questions that caused the reopening of the comment period; and

    (b) Assure that public notice for the reopening of the public comment period issued according to Regulation .20-2 of this chapter defines the scope of the reopening.

  (3) The Secretary may, in the circumstances described in §C(1) and (2) of this regulation, elect to hold further proceedings.

  (4) The Secretary shall issue public notice of actions taken under §C(1) or (3) of this regulation under Regulation .20-2 of this chapter.

D. Response to Comments.

  (1) At the time that any final permit is issued, the Secretary shall:

    (a) Issue a response to comments, including a response to any comments on a proposed final determination submitted in accordance with Regulation .20-1E(2)(b) of this chapter; and

    (b) Specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change.

  (2) The Secretary shall include in the administrative record for the final permit decision:

    (a) All materials in the administrative record for the draft permit under Regulation .20-1D of this chapter; and

    (b) All new materials supplied during the public comment period, new points raised, and documents cited in the response to comments.

  (3) If new points are raised or new material is supplied during the public comment period, the Department may document its response to those matters by adding new materials to the administrative record.

  (4) The Secretary shall make the response to comments available to the public.

#### Regulation .20-5 Administrative Procedures—Hearings and Judicial Review.

*COMAR 26.13.07.20-5*

A. Public Hearings.

  (1) The Secretary:

    (a) Shall hold a public hearing whenever the Secretary:

      (i) Receives written notice of opposition to a draft permit and a request for a hearing within 45 days of public notice, or

      (ii) Receives a written request for a hearing within 45 days of public notice;

    (b) May hold a public hearing at the Secretary's discretion, whenever, for instance, a hearing might clarify one or more issues involved in the permit decision;

    (c) Shall give public notice of the hearing as specified in Regulation .20-2 of this chapter; and

    (d) May cancel a scheduled public hearing if all persons who made timely written requests to hold the hearing withdraw the requests before the hearing is scheduled to begin.

  (2) Whenever a public hearing will be held, the Secretary shall designate a hearing officer who shall be responsible for its scheduling and orderly conduct.

  (3) Hearing Limitations and Extension of Comment Period.

    (a) Any person may submit oral or written statements and data concerning the tentative determination or the draft permit at the public hearing.

    (b) The Secretary or the hearing officer may:

      (i) Set reasonable limits on the time allowed for oral statements; and

      (ii) Require the submission of statements in writing.

    (c) The Secretary shall consider the public comment period under Regulation .20-2 of this chapter to be automatically extended to 5 days after the close of any public hearing under this section if the comment period was originally scheduled to end sooner than this.

    (d) The hearing officer may extend the comment period under Regulation .20-2 of this chapter by announcing the extension of the comment period at the hearing.

  (4) The Secretary shall make a tape recording or written transcript of the hearing available to the public.

  (5) Whenever possible, the Secretary shall schedule a hearing under this section at a location convenient to the nearest population center to the proposed facility.

B. Judicial Review.

  (1) A person may file a petition for judicial review of a final permit decision on the issuance, denial, renewal, modification, or revocation and reissuance of a CHS facility permit under Environment Article, §7-232, Annotated Code of Maryland, if the person:

    (a) Meets threshold requirements for standing under federal law; and

    (b) Either:

      (i) Is the applicant; or

      (ii) Participated in the public participation process through the submission of written or oral comments, unless an opportunity for public participation was not provided.

  (2) The record on review and the objections considered during judicial review shall be limited in accordance with the provisions of Environment Article, Title 1, Subtitle 6, Annotated Code of Maryland.

  (3) Venue.

    (a) Unless otherwise provided by statute, a person who is filing a petition for judicial review of a final permit decision under §B(1) of this regulation shall file the petition with the circuit court for the county where the application for the permit states that the proposed activity will occur.

    (b) The decision of the circuit court may be appealed to the Appellate Court of Maryland.

  (4) A person submitting a petition for judicial review of a final permit decision shall file the petition within 30 days after publication of notice of a final determination in accordance with Regulation .20-2A(7) of this chapter.

#### Regulation .20-6 Administrative Procedures—Issuance and Effective Date of Permits.

*COMAR 26.13.07.20-6*

A. After the close of the public comment period on a draft permit under Regulation .20-2 of this chapter, or the close of the public comment period on a notice of intent to issue a final determination under Regulation .20-1E(2)(b) of this chapter the Secretary shall:

  (1) Issue a final permit decision in accordance with Regulation .20-1E(3) of this chapter;

  (2) Notify the applicant and each person who has submitted written comments or requested notice of the final permit decision; and

  (3) Include in the notification required by §A(2) of this regulation reference to the procedures for petitioning for judicial review on a final permit decision.

B. “Final permit decision” means, for the purposes of this regulation, a final decision to issue, deny, modify, revoke and reissue, or terminate a permit.

C. A final permit decision shall become effective 30 days after the service of notice of the decision under §A of this regulation, unless:

  (1) A later effective date is specified in the decision; or

  (2) Comments do not request a change in the draft permit, in which case the permit shall become effective immediately upon issuance.

#### Regulation .21 Permit Fees.

*COMAR 26.13.07.21*

A. Application Fee.

  (1) A person applying for a facility permit, a facility permit renewal, or a major modification of a facility permit shall pay a nonrefundable application fee according to the fee schedule in §A(2) of this regulation.

  (2) Application Fee Schedule. The application fee is:

    (a) $2,000 for an application for a new or previously unpermitted storage facility;

    (b) $3,000 for an application for a new or previously unpermitted treatment facility other than an incinerator;

    (c) $5,000 for an application for a new or previously unpermitted incinerator;

    (d) $10,000 for an application for a new or previously unpermitted land disposal unit;

    (e) $2,000 for an application for renewal of a storage facility permit;

    (f) $3,000 for an application for renewal of a permit for a treatment facility;

    (g) $5,000 for an application for renewal of a land disposal unit;

    (h) $2,000 for an application for a major modification of a facility permit which involves the addition of a new storage unit;

    (i) $3,000 for an application for a major modification of a facility permit which involves the addition of a new treatment unit other than an incinerator;

    (j) $5,000 for an application for a major modification of a facility permit which involves the addition of a new incinerator;

    (k) $10,000 for an application for a major modification of a facility permit which involves the addition of a new land disposal unit; and

    (l) For new applications, renewal applications, or applications for permit modification which involve more than one type of unit, the sum of the application fees for the corresponding units specified in §A(2)(a)—(k) of this regulation.

  (3) The Secretary shall apply the application fee towards the permit fee required by §B of this regulation.

B. Permit Fee.

  (1) Permit fees shall be established based upon the following considerations:

    (a) Acreage involved in the facility;

    (b) Nature and quantity of the CHS handled at the facility;

    (c) The threat that the CHS may present to human health or the environment;

    (d) The anticipated costs of monitoring and regulating the facility;

    (e) The anticipated costs attributable to the removing and properly disposing of all CHS that may escape from a facility; and

    (f) Anticipated needs for program development activities relating to CHS.

  (2) The Secretary shall calculate the permit fee for a facility as 1.1 times the sum of a service fee and an environmental fee. The service fee is comprised of the costs borne by the Department in monitoring and regulating the facility, and is calculated as described in §B(3) of this regulation. The environmental fee is calculated as described in §B(6) of this regulation.

  (3) Service Fee. The service fee is calculated using the formulae in the following work sheet, and the values for salary, benefits, overhead, and work years specified in §B(4) of this regulation:

    (a) Monitoring—Analyses to be Performed by the Department. (Cost per analysis x number of analyses) = $___;

    (b) Yearly Costs of Regulating the Facility for the Permit Duration.

      (i) Cost of project manager = (permit writer work years) x (permit writer's annual salary + annual benefits) x (overhead factor) = $___,

      (ii) Cost of supervision of project manager = 0.25 x (permit writer work years) x (permit writer's annual salary + annual benefits) x (overhead factor)            = $___,

      (iii) (Compliance and enforcement work years) x (enforcement personnel annual salary + annual benefits) x (overhead factor) = $___,

      (iv) Subtotal, costs of regulating = $___;

    (c) Service fee = costs of regulating + costs of monitoring = $___.

  (4) Except as specified in §B(5) of this regulation, the Secretary shall use the following values in performing the calculations outlined in §B(3):

    (a) For the sum of the permit writer's annual salary and benefits, $49,000;

    (b) For the sum of enforcement personnel annual salary and benefits, $51,000;

    (c) For the overhead factor, 1.25;

    (d) For permit writer work years:

      (i) 0.1 for storage facilities,

      (ii) 0.1 for treatment facilities,

      (iii) 0.12 for incineration facilities,

      (iv) 0.18 for disposal facilities, and

      (v) For facilities that have a combination of the types of waste management units listed in §B(4)(d)(i)—(iv) of this regulation, the sum of the corresponding factors listed in §B(4)(d)(i)—(iv) of this regulation; and

    (e) For compliance and enforcement work years:

      (i) 0.2 for operating disposal facilities, and

      (ii) 0.05 for facilities other than operating disposal facilities.

  (5) The Secretary may modify the factors specified in §B(4) of this regulation as necessary to reflect increased personnel and overhead costs, and additional expenditures of staff time based on the complexity of the facility.

  (6) Environmental Fee.

    (a) The environmental fee component of the permit fee is calculated as the product of a size factor, location factor, and a waste management factor.

    (b) The size factor is equal to one plus (0.1 times the number of acres used for hazardous waste management units at the facility).

    (c) The location factor is obtained by determining the land uses adjacent to the facility as shown on zoning maps, and choosing the maximum of the following numbers associated with the corresponding land uses that are adjacent to the facility:

      (i) Industrial—1.0;

      (ii) Agricultural—1.2;

      (iii) Residential—1.5;

      (iv) Institutional—1.5;

      (v) Recreational—1.7.

    (d) The waste management factor is equal to the sum of the products of a hazard factor and a quantity factor assigned to permitted storage, treatment, active disposal, and inactive disposal activities at a facility.

    (e) Hazard Factor.

      (i) For disposal facilities, the hazard factor is equal to 10 times the fraction of acute hazardous waste that the facility is permitted to handle plus 3.0 times the fraction of nonacute hazardous waste that the facility is permitted to handle.

      (ii) For all other facilities, the hazard factor is equal to 10 times the fraction of acute hazardous waste that the facility is permitted to handle plus 2.0 times the fraction of nonacute hazardous waste that the facility is permitted to handle.

      (iii) If a facility is permitted to manage acute hazardous wastes, but the facility's permit does not specify the fraction of waste that may be acute, the fraction is assumed to be 0.1 for the purpose of the calculations described in §B(6)(e)(i) and (ii) of this regulation.

    (f) Quantity Factor. The quantity factor is set according to the type of facility, as described in §B(6)(g)—(l) of this regulation.

    (g) For storage facilities, the quantity factor is equal to the hazardous waste storage capacity, in tons.

    (h) For treatment facilities permitted to treat up to 1,000 tons of hazardous waste per year, the quantity factor is equal to the maximum amount of  hazardous waste authorized to be treated per year, in tons.

    (i) For treatment facilities permitted to treat more than 1,000 tons of hazardous waste per year, the quantity factor is equal to 1,000 plus (0.001 times the number of tons in excess of 1,000 authorized to be treated per year).

    (j) For active disposal facilities permitted to dispose of up to 20,000 tons per year of hazardous waste, the quantity factor is equal to the amount of waste authorized to be disposed of per year, in tons.

    (k) For active disposal facilities permitted to dispose of more than 20,000 tons per year of hazardous waste, the quantity factor is equal to 20,000 plus (0.001 times the amount of hazardous waste, in tons, in excess of 20,000 tons authorized to be disposed of per year).

    (l) For inactive disposal facilities, the quantity factor is equal to 0.001 times the total amount of hazardous waste in tons disposed of at the facility.

C. Failure to pay the permit fee in a timely manner constitutes grounds for permit termination under Regulation .12.

#### Regulation .22 Limited Facility Permits for Thermal Destruction Facilities other than Hazardous Waste Incinerators.

*COMAR 26.13.07.22*

A. Permits Required.

  (1) A person may not thermally destroy hazardous waste in an installation other than a hazardous waste incinerator without first obtaining a Limited Facility Permit and an air quality operating permit, except that an electric generating station is not required to obtain an air quality operating permit.

  (2) The effects of these regulations with respect to persons who have submitted timely applications under §B(2) shall be stayed until the Department has either issued or denied the Limited Facility Permit, but only so long as the applicant operates in compliance with the terms and conditions of an approval issued by the Department under COMAR 26.11.09.10.

  (3) Upon issuance of the Limited Facility Permit, the terms and conditions of the Limited Facility Permit will supersede the terms and conditions of any approval issued under COMAR 26.11.09.10.

B. Application for a Limited Facility Permit.

  (1) A person may apply to the Department for a Limited Facility Permit on an application provided by the Department. The application shall include the following information:

    (a) The name and address of the owner of the installation in which the thermal destruction is to take place;

    (b) The location of the installation in which the thermal destruction is to take place;

    (c) A description of the installation in which the thermal destruction is to take place including:

      (i) The maximum rated heat input,

      (ii) The burner type or types,

      (iii) A description of the combustion chamber,

      (iv) The fuel type usually used,

      (v) Any air pollution control devices used, and

      (vi) A description of the exhaust system including the stack height and diameter;

    (d) The characteristics of the hazardous waste to be thermally destroyed including:

      (i) The flash point,

      (ii) The heat content, expressed in Btu per pound, and

      (iii) The viscosity;

    (e) The total annual quantity of the hazardous waste to be thermally destroyed and the expected firing rate, expressed in pounds/hour;

    (f) An operations plan for the installation that will be thermally destroying the hazardous waste including:

      (i) The start-up procedure,

      (ii) The normal operating procedure,

      (iii) The shut-down procedure, and

      (iv) The estimated firing time, expressed in hours per day and days per week;

    (g) A waste analysis plan as described in COMAR 26.13.05.02D(2);

    (h) A general inspection schedule as described in COMAR 26.13.05.02F(2);

    (i) A contingency plan as described in COMAR 26.13.05.04;

    (j) A closure plan as described in COMAR 26.13.05.07C;

    (k) A closure cost estimate, evidence of financial responsibility and evidence of insurance, all as described in COMAR 26.13.05.08;

    (l) Any other information the Department may request in order to make a determination under this regulation;

    (m) The signature on the application of the applicant, if the applicant is an individual person, or of a person who is a responsible official, as described in Regulation .03A, of the organization, if the applicant is a business, governmental, or other organization entity.

  (2) An installation subject to §A(1) that was in operation on the effective date of these regulations shall apply to the Department for a Limited Facility Permit on an application provided by the Department within 6 months of the effective date of this regulation. The application shall contain the information requested in §B(1).

C. Issuance of a Limited Facility Permit.

  (1) General. Applications for a Limited Facility Permit will be reviewed and a permit issued by the Department based on the combustion efficiency and capacity of the installation to be used to destroy the waste. In determining the approvability of an application, the Department will consider the characteristics of the components in the waste and the capability of the installation to dispose of the waste in a manner that will have no adverse impact on the environment or on persons living in the area of the installation proposed to be used.

  (2) Specific Requirements. A permit may be issued if the following requirements are met:

    (a) The burner within the installation shall be of a type and size to burn the specified waste and the heat energy demand of the installation shall be constant during the time when the waste is burned or otherwise capable of maintaining the required combustion conditions;

    (b) The stack height of the installation shall be consistent with good engineering practice;

    (c) The installation shall be operated and maintained by a person directly assigned to those responsibilities;

    (d) The discharge of components of the waste or products of combustion of the waste, including sulfur, lead, and halogenated compounds, may not cause a violation of any ambient air quality standards at COMAR 26.11.03 and COMAR 26.11.04 or cause a threat to public health;

    (e) If PCBs are present in the waste to be destroyed, the PCB content of the waste shall be within allowable limits for the selected installation as specified by the U.S. EPA.

D. Permit Conditions and Procedures.

  (1) The conditions and procedures specified at Regulations .04--.14 as applicable to facility permits shall also apply to Limited Facility Permits.

  (2) The Department may establish conditions on a permit for the purpose of monitoring and controlling the efficiency of combustion of the waste, the products of combustion in the exhaust, or the composition of the waste feed.

  (3) The Department will deny an application for a Limited Facility Permit if it determines that the requirements of §§B and D of this regulation or any other applicable requirements under this subtitle have not been satisfied.

E. Permit Duration. A Limited Facility Permit under this regulation is valid for 3 years unless modified, revoked, or terminated under Regulation .11 or .20B of this chapter.

#### Regulation .23 Interim Status.

*COMAR 26.13.07.23*

A. Qualifying for Interim Status.

  (1) Except as provided in §A(3) of this regulation, an owner or operator of a facility identified in COMAR 26.13.06.01A may qualify for interim status and may operate as if the owner or operator has a CHS permit if the owner or operator has complied with the requirements of:

    (a) §3010(a) of RCRA, pertaining to notification of hazardous waste activity, if applicable;

    (b) COMAR 26.13.06.01B, governing submission of part A CHS permit applications; and

    (c) §B of this regulation.

  (2) Failure to Qualify for Interim Status.

    (a) If the Department has reason to believe upon examination of a part A CHS permit application that the application fails to meet the requirements for a part A CHS permit application as defined in COMAR 26.13.01.03B, it shall:

      (i) Notify the owner or operator of the facility in writing of the apparent deficiency; and

      (ii) Specify in the notice to the owner or operator of the facility the grounds for the Department's belief that the application is deficient.

    (b) The owner or operator of the facility shall have 30 days from the date of receipt of the Department's notice to respond in writing to the notice and to explain or rectify the alleged deficiency in the part A CHS permit application.

    (c) If, after providing notification and opportunity for response to the owner or operator of the facility, the Department determines that the application is deficient, it may take appropriate enforcement action.

  (3) Section A(1) of this regulation does not apply to a facility:

    (a) That has previously been denied a CHS permit; or

    (b) For which authority to operate the facility under RCRA or Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland, has previously been terminated.

B. Operation During Interim Status.

  (1) During the period of interim status, the owner or operator of the facility may not:

    (a) Treat, store, or dispose of hazardous waste not specified in the part A CHS permit application;

    (b) Employ processes not specified in the part A CHS permit application; or

    (c) Exceed the design capacities specified in the part A CHS permit application.

  (2) During the period of interim status, the owner or operator of the facility shall comply with the interim status standards in COMAR 26.13.06.

C. Changes During Interim Status.

  (1) Permissible Changes. The owner or operator of the facility may make the following changes, if the changes do not involve reconstruction as defined in §C(2) of this regulation:

    (a) An owner or operator of the facility may submit a revised part A CHS permit application to obtain approval from the Department to:

      (i) Treat, store, or dispose of new hazardous wastes not previously identified in the part A CHS permit application, and

      (ii) In the case of newly listed or identified wastes, add units to treat, store, or dispose of the hazardous wastes on the effective date of the listing or identification;

    (b) An owner or operator of the facility may increase the design capacity of processes used at the facility if a revised part A CHS permit application that includes a justification for the change is submitted before the change, and the Secretary approves the changes because:

      (i) There is a lack of available treatment, storage, or disposal capacity at other hazardous waste management facilities, or

      (ii) The change is necessary to comply with a federal, state, or local requirement;

    (c) An owner or operator of the facility may make a change in a process for the treatment, storage, or disposal of hazardous waste or may add a process for the treatment, storage, or disposal of hazardous waste if:

      (i) The owner or operator submits a revised part A permit application to the Department before implementing the change,

      (ii) The owner or operator submits a justification explaining the need for the change to the Department, and

      (iii) The Secretary approves the change because the change is necessary to prevent a threat to human health and the environment caused by an emergency situation, or because the change is necessary to comply with a federal, State, or local requirement;

    (d) Changes in ownership or operational control may be made in accordance with the following:

      (i) The new owner or operator of the facility shall submit a revised part A CHS permit application not later than 90 days before the scheduled change,

      (ii) When a transfer of operational control of a facility occurs, the former owner or operator of the facility shall comply with the requirements of COMAR 26.13.06.16 until the new owner or operator of the facility has demonstrated compliance with that regulation to the Secretary,

      (iii) The new owner or operator of the facility shall demonstrate compliance with COMAR 26.13.06.16 within 6 months of the date of the change in ownership or operational control of the facility,

      (iv) Once the new owner or operator of the facility demonstrates compliance with COMAR 26.13.06.16, the Secretary shall notify the former owner or operator of the facility in writing that, as of the date of the demonstration of compliance by new owner or operator, the former owner or operator no longer needs to comply with COMAR 26.13.06.16,

      (v) Interim status duties not specified in §C(1)(d)(i)—(iv) of this regulation are transferred to the new owner or operator of the facility effective immediately upon the date of the change in ownership or operational control of the facility;

    (e) Changes limited to the treatment, storage, or disposal of solid waste from releases that originate within the boundary of the facility which are made in accordance with an interim status corrective action order issued by:

      (i) EPA under §3008(h) of RCRA or other federal authority,

      (ii) The Department, under Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland, or other applicable State authority, or

      (iii) A court in a judicial action brought by EPA or the Department; and

    (f) The addition of newly regulated units for the treatment, storage, or disposal of hazardous waste if the owner or operator submits a revised part A CHS permit application on or before the date on which the unit becomes subject to the new requirements.

  (2) Except as specifically allowed under §C(3) of this regulation, changes listed under §C(1) of this regulation may not be made if they amount to reconstruction of the hazardous waste management facility. Reconstruction occurs when the capital investment in the changes to the facility exceeds 50 percent of the capital cost of a comparable entirely new hazardous waste management facility.

  (3) If all applicable requirements under this subtitle are met, the following changes may be made even if these changes amount to a reconstruction under §C(2) of this regulation:

    (a) Changes made solely for the purposes of complying with the requirements of COMAR 26.13.05.10-4 for tanks and ancillary equipment;

    (b) If necessary to comply with federal, State, or local requirements, changes:

      (i) To an existing unit,

      (ii) Solely involving tanks or containers, or

      (iii) Involving addition of replacement surface impoundments that satisfy the standards of RCRA §3004(o);

    (c) Changes that are necessary to allow owners or operators to continue handling newly listed or identified hazardous wastes that have been treated, stored, or disposed of at the facility before the effective date of the regulation establishing the new listing or identification;

    (d) Changes during closure of a facility or of a unit within a facility made in accordance with an approved closure plan;

    (e) Changes necessary to comply with an interim status corrective action order issued by EPA under §3008(h) of RCRA or other federal authority, by the Department under Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland, other applicable State authority, or by a court in a judicial proceeding brought by EPA or the Department, if the changes are limited to the treatment, storage, or disposal of solid waste from releases that originate within the boundary of the facility;

    (f) Changes to treat or store, in tanks, containers, or containment buildings, hazardous wastes subject to land disposal restrictions imposed by 40 CFR Part 268 or RCRA §3004, if the changes are made solely for the purpose of complying with 40 CFR Part 268 or RCRA §3004;

    (g) Addition of newly regulated units under §C(1)(f) of this regulation; and

    (h) Changes necessary to comply with standards under 40 CFR Part 63, Subpart EEE, National Emission Standards for Hazardous Air Pollutants from Hazardous Waste Combustors, or corresponding State regulations.

D. Termination of Interim Status.

  (1) Interim status terminates:

    (a) When final administrative disposition of a CHS permit application is made; or

    (b) As provided in COMAR 26.13.06.01B(5).

  (2) Termination of Interim Status—Submission of Permit Application and Additional Requirements.

    (a) For owners or operators of each land disposal facility, which has been granted interim status before November 8, 1984, interim status terminates on November 8, 1985, unless:

      (i) The owner or operator submits a part B CHS permit application for the facility before that date; and

      (ii) The owner or operator certifies that the facility is in compliance with all applicable ground water monitoring and financial responsibility requirements.

    (b) For owners or operators of each land disposal facility which is in existence on the effective date of statutory or regulatory amendments that render the facility subject to the requirement to have a CHS permit, and which is granted interim status, interim status terminates 12 months after the date on which the facility first becomes subject to the requirement for a CHS permit, unless the owner or operator of the facility:

      (i) Submits a part B CHS permit application for the facility not later than 12 months after the date on which the facility first becomes subject to the permitting requirement; and

      (ii) Certifies that the facility is in compliance with all applicable ground water monitoring and financial responsibility requirements.

    (c) For owners or operators of a land disposal unit who are required to make changes during interim status to comply with a federal, State, or local requirement, and who are granted authority to operate under §C(1)(a), (b), or (c) of this regulation, interim status terminates on the date 12 months after the effective date of the requirement, unless the owner or operator certifies that the unit is in compliance with all applicable ground water monitoring and financial responsibility requirements.

    (d) For owners and operators of each incinerator facility, which has achieved interim status before November 8, 1984, interim status terminates on November 8, 1989, unless the owner or operator of the facility submits a part B CHS permit application for an incinerator facility by November 8, 1986.

    (e) For owners or operators of any facility other than a land disposal or an incinerator facility, which has achieved interim status before to November 8, 1984, interim status terminates on November 8, 1992, unless the owner or operator of the facility submits a part B CHS permit application for the facility by November 8, 1988.

### Chapter 08 — Right of Condemnation

**Authority:** Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulation .01 adopted as an emergency provision effective November 18, 1980 (7:25 Md. R. S-1); adopted permanently effective April 3, 1981 (8:7 Md. R. 642)

**Administrative History:** Chapter recodified from COMAR 10.51.09 to COMAR 26.13.08

#### Regulation .01 Determination by the Department.

*COMAR 26.13.08.01*

The Department, pursuant to the applicable provisions of the Real Property Article, may condemn any land or facility used for disposal of CHS if it determines any of the following:

A. The condemnation is necessary to provide for proper perpetual care and monitoring of the facility;

B. Future disturbance of the land poses a substantial threat to the natural resources of the State; or

C. The facility poses a substantial threat to the public health.

### Chapter 09 — Land Disposal Restrictions

**Authority:** Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland

**Administrative History:** Effective date: January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .01 amended effective October 1, 2025 (52:17 Md. R. 876)

#### Regulation .01 Purpose and Scope.

*COMAR 26.13.09.01*

This chapter:

A. Identifies certain requirements associated with the management of hazardous wastes that are to be land disposed;

B. Applies to:

  (1) Generators of hazardous waste;

  (2) Transporters of hazardous waste;

  (3) Owners and operators of hazardous waste facilities; and

  (4) Reverse distributors; and

C. Does not apply to a hazardous waste that is listed in COMAR 26.13.02.16—.19 but is not listed in 40 CFR §§261.30—261.34, unless the waste:

  (1) Exhibits a characteristic of hazardous waste; or

  (2) Is otherwise subject to the requirements identified in Regulation .03 of this chapter.

#### Regulation .02 Definitions.

*COMAR 26.13.09.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Prohibited characteristic” means a characteristic of hazardous waste identified under COMAR 26.13.02.08 that will cause a solid waste to become a prohibited waste if the waste exhibits that characteristic.

  (2) “Prohibited waste” means a hazardous waste that either:

    (a) Is prohibited from land disposal by this chapter; or

    (b) May be land disposed despite not meeting a treatment standard established by this chapter because of an exemption granted:

      (i) Under this chapter; or

      (ii) By EPA under 40 CFR Part 268.

  (3) “Restricted waste” means a hazardous waste for which restrictions on land disposal are established by this chapter.

#### Regulation .03 Specific Requirements.

*COMAR 26.13.09.03*

A. As qualified by §B of this regulation, a hazardous waste generator, a hazardous waste transporter, and an owner or operator of a hazardous waste facility shall comply with the requirements of 40 CFR Part 268.

B. In complying with 40 CFR Part 268, a person shall:

  (1) Substitute “Secretary” for “Administrator” and “Regional Administrator”, except in:

    (a) 40 CFR §268.5, which relates to case-by-case extensions of effective dates;

    (b) 40 CFR §268.6, which relates to petitions to allow land disposal of certain prohibited wastes;

    (c) 40 CFR §268.13, which relates to deadlines imposed on EPA;

    (d) 40 CFR §268.40(b) and 40 CFR §268.42(b), which relate to approval of alternate treatment methods; and

    (e) 40 CFR §268.44(a)—(g), which relate to approvals of variances from treatment standards;

  (2) Substitute “Department” for “EPA”, except when “EPA” is being used as a modifier, as in “EPA Publication”, or “EPA Hazardous Waste Number”;

  (3) Interpret the terms “prohibited characteristic”, “prohibited waste”, and “restricted waste” to have the meanings given in Regulation .02B of this chapter; and

  (4) Refer to the table in COMAR 26.13.01.05B(2) to identify references to provisions in COMAR that should be substituted for corresponding references to federal regulations that are made in 40 CFR Part 268.

### Chapter 10 — Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities

**Authority:** Environment Article, §6-905.3 and Title 7, Subtitle 2, Annotated Code of Maryland

**Administrative History:** Effective date: April 18, 1988 (15:8 Md. R. 1009)

**Administrative History:** Chapter recodified from COMAR 10.51.11 to 26.13.10

**Administrative History:** Regulation .01A, C amended effective May 24, 1993 (20:10 Md. R. 853)

**Administrative History:** Regulation .01A, D amended effective May 1, 2008 (35:8 Md. R. 809); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .01C, D amended effective October 16, 2000 (27:20 Md. R. 1843)

**Administrative History:** Regulation .02A amended effective December 23, 1991 (18:25 Md. R. 2759); October 16, 2000 (27:20 Md. R. 1843); November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .02E, F amended effective May 3, 2021 (48:9 Md. R. 359)

**Administrative History:** Regulation .03A, B amended effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .03B, D amended effective October 16, 2000 (27:20 Md. R. 1843); January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .04 amended effective November 1, 2002 (29:21 Md. R. 1647); January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .04B, C amended effective October 16, 2000 (27:20 Md. R. 1843)

**Administrative History:** Regulation .04J amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .05 adopted effective September 7, 1998 (25:18 Md. R. 1438)

**Administrative History:** Regulations .06—.25 adopted effective November 1, 2002 (29:21 Md. R. 1647)

**Administrative History:** Regulation .06B amended effective May 1, 2008 (35:8 Md. R. 809); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .08A, B amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .09 amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .09-1 adopted effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .10A amended effective May 3, 2021 (48:9 Md. R. 359)

**Administrative History:** Regulation .11C amended effective January 18, 2016 (43:1 Md. R. 14)

**Administrative History:** Regulation .14 amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .14B amended effective May 3, 2021 (48:9 Md. R. 359); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .16-1 adopted effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .17A amended effective May 1, 2008 (35:8 Md. R. 809); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .18C amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .19C amended effective May 1, 2008 (35:8 Md. R. 809); October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .20C amended effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .20F adopted effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .21F amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .22G amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .23C amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .24 amended effective January 13, 2022 (49:1 Md. R. 14)

**Administrative History:** Regulation .25A amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .25B amended effective May 3, 2021 (48:9 Md. R. 359)

**Administrative History:** Regulation .25C adopted effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .26 adopted effective January 1, 2007 (33:26 Md. R. 1999)

**Administrative History:** Regulation .27 adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .28 adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .29 adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .30 adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulation .31 adopted effective May 1, 2008 (35:8 Md. R. 809)

**Administrative History:** Regulations .32—.49 adopted effective October 1, 2025 (52:17 Md. R. 876)

#### Regulation .01 Recyclable Materials Used in a Manner Constituting Disposal.

*COMAR 26.13.10.01*

A. Applicability.

  (1) This regulation applies to recyclable materials that are applied to or placed on the land:

    (a) Without mixing with any other substance or substances; or

    (b) After mixing or combining with any other substance or substances.

  (2) The materials in §A(1) of this regulation are referred to throughout this regulation as “materials used in a manner that constitutes disposal”.

  (3) Except as provided in §A(4) and (5) of this regulation, products produced for the general public's use that are used in a manner that constitutes disposal and that contain recyclable materials are not presently subject to regulation if:

    (a) The recyclable materials have undergone a chemical reaction in the course of producing the product so as to become inseparable by physical means;

    (b) For each recyclable material, that is, hazardous waste, that the product contains, the product meets the applicable:

      (i) Treatment standards in 40 CFR Part 268, Subpart D; or

      (ii) Prohibition levels in 40 CFR §268.32 or RCRA §3004(d), if no treatment standards have been established under 40 CFR Part 268, Subpart D; and

    (c) The recycler complies with the requirements of 40 CFR §268.7(b)(6), either directly or, if located in Maryland, as qualified by COMAR 26.13.09.03B.

  (4) Slags that are generated from high temperature metals recovery (HTMR) processing of hazardous waste K061, K062, and F006, and that are used as an antiskid agent or deicing agent in a manner that constitutes disposal, are not covered by the exemption in §A(3) of this regulation.

  (5) A fertilizer that contains recyclable materials is not subject to regulation as hazardous waste when used for its intended purpose if the fertilizer meets the applicable treatment standard in 40 CFR Part 268, Subpart D, for each recyclable material, that is, hazardous waste, that it contains.

B. Standards Applicable to Generators and Transporters of Materials Used in a Manner That Constitutes Disposal. Generators and transporters of materials that are used in a manner that constitutes disposal are subject to the applicable requirements of COMAR 26.13.03 and 26.13.04 and the notification requirement of Section 3010 of RCRA.

C. Standards Applicable to Storers of Materials That Are To Be Used in a Manner That Constitutes Disposal, Who Are Not the Ultimate Users. Owners or operators of facilities that store recyclable materials that are to be used in a manner that constitutes disposal, but who are not the ultimate users of the materials, are regulated under all applicable provisions of COMAR 26.13.02, 26.13.05.01—.12, 26.13.06.01—.20, and 26.13.07, and the notification requirement under §3010 of RCRA.

D. Standards Applicable to Users of Materials That Are Used in a Manner That Constitutes Disposal.

  (1) Owners or operators of facilities that use recyclable materials in a manner that constitutes disposal are regulated under all applicable provisions of COMAR 26.13.02, 26.13.05, 26.13.06, 26.13.07, and 26.13.09 and §3010 of RCRA, except that these requirements do not apply to products which contain these recyclable materials under the provisions of §A(3) of this regulation.

  (2) The use of waste or used oil or other material, which is contaminated with a hazardous waste, for dust suppression or road treatment is prohibited.

#### Regulation .02 Hazardous Waste Burned for Energy Recovery.

*COMAR 26.13.10.02*

A. Applicability.

  (1) This regulation applies to hazardous wastes that are burned for energy recovery in any boiler or industrial furnace that is regulated under COMAR 26.13.05.16 except as provided by §A(2) of this regulation. These hazardous wastes burned for energy recovery are termed “hazardous waste fuel”. Fuel produced from hazardous waste by processing, blending, or other treatment is also hazardous waste fuel. These regulations do not apply, however, to gas recovered from hazardous waste management activities when the gas is burned for energy recovery.

  (2) The following hazardous wastes are not regulated under this regulation:

    (a) Hazardous wastes that are exempt from regulation under the provisions of COMAR 26.13.02.04, .04-1, and .06A(3);

    (b) Except as provided in §D of this regulation, used oil burned for energy recovery that is also a hazardous waste solely because it exhibits a characteristic of hazardous waste identified in COMAR 26.13.02. This used oil is subject to regulation under COMAR 26.10.15, 26.13.02.06A(3)(c), 26.13.04.01D(4), and 26.13.10.05, rather than this regulation.

B. Prohibitions.

  (1) A person may market hazardous waste fuel only:

    (a) To persons who have notified the State of their hazardous waste fuel activities and have a U.S. EPA identification number; and

    (b) If the fuel is burned, to persons who burn the fuel in boilers or industrial furnaces identified in §B(2) of this regulation.

  (2) Hazardous waste fuel may be burned for energy recovery only in devices identified in COMAR 26.13.05.16C(3).

  (3) Fuel which contains any hazardous waste may not be burned in any cement kiln which is located within the boundaries of any incorporated municipality with a population greater than 500,000 (based on the most recent census statistics) unless the kiln fully complies with regulations under this subtitle that are applicable to incinerators.

C. Standards Applicable to Generators of Hazardous Waste Fuel.

  (1) Generators of hazardous waste that is used as a fuel or used to produce a fuel are subject to the requirements of COMAR 26.13.03.

  (2) Generators who market hazardous waste fuel to a burner also are subject to §E of this regulation.

D. Standards Applicable to Transporters of Hazardous Waste Fuel. Transporters of hazardous waste fuel, and hazardous waste that is used to produce a fuel are subject to COMAR 26.13.04.

E. Standards Applicable to Marketers of Hazardous Waste Fuel. Persons who market hazardous waste fuel are termed “marketers”. Marketers include generators who market hazardous waste fuel directly to a burner, persons who receive hazardous waste from generators and produce, process, or blend hazardous waste fuel from these hazardous wastes, and persons who distribute but do not process or blend hazardous waste fuel. These persons are subject to the following requirements:

  (1) Prohibitions. The prohibitions under §B.

  (2) Notification. Notification requirements under Section 3010 of RCRA for hazardous waste fuel activities. Even if a marketer has previously notified EPA of his hazardous waste management activities and obtained a U.S. EPA identification number he shall renotify the U.S. EPA and the Secretary to identify his hazardous waste fuel activities.

  (3) Storage. COMAR 26.13.03.03-3—.03-10, 26.13.05.01—.12, and 26.13.07.

  (4) Off-site Shipment. The standards for generators in COMAR 26.13.03 when a marketer initiates a shipment of hazardous waste fuel.

  (5) Required Notices.

    (a) Before a marketer initiates the first shipment of hazardous waste fuel to a burner or another marketer, he shall obtain a one-time written and signed notice from the burner or marketer certifying that:

      (i) The burner or marketer has notified EPA and the Secretary under §3010 of RCRA and identified his waste-as-fuel activities; and

      (ii) If the recipient is a burner, the burner will burn the hazardous waste fuel in a facility permitted under COMAR 26.13.05.15 or .16 and COMAR 26.13.07.05.

    (b) Before a marketer accepts the first shipment of hazardous waste fuel from another marketer, he shall provide the other marketer with a one-time written and signed certification that he has notified EPA and the Secretary under Section 3010 of RCRA and identified his hazardous waste fuel activities.

  (6) Record Keeping. In addition to the applicable record-keeping requirements of COMAR 26.13.03 and 26.13.05, a marketer shall keep a copy of each certification notice he receives or sends for 3 years from the date he last engages in a hazardous waste fuel marketing transaction with the person who sends or receives the certification notice.

F. Standards Applicable to Burners of Hazardous Waste Fuel. Owners and operators of industrial furnaces and boilers identified in §B(2) that burn hazardous waste fuel for energy recovery are “burners”, and are subject to the following requirements:

  (1) Prohibitions. The prohibitions under §B.

  (2) The substantive and procedural requirements of COMAR 26.13.05.16 and COMAR 26.13.07.05.

  (3) Notification. Notification requirements under Section 3010 of RCRA for hazardous waste fuel activities. Even if a burner has previously notified EPA of his hazardous waste management activities and obtained a U.S. EPA identification number, he shall renotify the U.S. EPA and the Secretary to identify his hazardous waste fuel activities.

  (4) Storage.

    (a) For short term accumulation by generators who burn their hazardous waste fuel on-site, the applicable provisions of COMAR 26.13.03.03-3—.03-10.

    (b) For storage facilities the applicable provisions of COMAR 26.13.05.01—.12 and 26.13.07.

  (5) Required Notices. Before a burner accepts the first shipment of hazardous waste fuel from a marketer, he shall provide the marketer a one-time written and signed notice certifying that:

    (a) He has notified EPA under Section 3010 of RCRA and identified his waste-as-fuel activities; and

    (b) He will burn the fuel only in a boiler or furnace identified in §B of this regulation and COMAR 26.13.05.16.

  (6) Record Keeping. In addition to the applicable record-keeping requirements of COMAR 26.13.05, a burner shall keep a copy of each certification notice that he sends to a marketer for 3 years from the date he last received hazardous waste fuel from that marketer.

#### Regulation .03 Recyclable Materials Utilized for Precious Metal Recovery.

*COMAR 26.13.10.03*

A. This regulation applies to recyclable materials that are reclaimed to recover economically significant amounts of gold, silver, platinum, palladium, iridium, osmium, rhodium, ruthenium, or any combination of these.

B. Persons who generate, transport, or store recyclable materials regulated by this regulation are subject to the following requirements:

  (1) Notification requirements under Section 3010 of RCRA;

  (2) COMAR 26.13.02.06C(2), 26.13.03.04, 26.13.04, and 26.13.05.05B and C; and

  (3) For precious metal imported to or exported from other countries for recovery, 40 CFR Part 262, Subpart H, and COMAR 26.13.05.02C.

C. Persons who store recycled materials that are regulated under this regulation shall:

  (1) Keep the following records to document that they are not accumulating these materials speculatively as defined in COMAR 26.13.02:

    (a) Records showing the volume of these materials stored at the beginning of the calendar year,

    (b) The amount of these materials generated or received during the calendar year, and

    (c) The amounts of materials remaining at the end of the calendar year; and

  (2) Comply with the storage requirements for generators found in COMAR 26.13.03.

D. A recyclable material that is subject to this regulation that is material accumulated speculatively, as defined in COMAR 26.13.02.01D, is subject to all applicable provisions of COMAR 26.13.03—26.13.10.

#### Regulation .04 Spent Lead-Acid Batteries Being Reclaimed.

*COMAR 26.13.10.04*

A. Applicability.

  (1) Except as provided in §B of this regulation, this regulation applies to spent lead-acid batteries that are recyclable materials.

  (2) For the purposes of this regulation, “spent batteries” means spent lead-acid batteries that are recyclable materials.

B. A person may choose to manage spent lead-acid batteries under the provisions applicable to universal waste batteries in COMAR 26.13.10.06—.25, rather than under the requirements of this regulation.

C. Management Requirements — General.

  (1) Persons who manage spent batteries as described in §C(2) of this regulation shall comply with the applicable regulatory requirements in the sections that are cross-referenced.

  (2) Persons who manage spent batteries that are to be reclaimed:

    (a) By regeneration, shall comply with §D of this regulation; and

    (b) By a means other than regeneration and who:

      (i) Store the spent batteries at a permitted CHS facility before reclaiming them, shall comply with §E of this regulation;

      (ii) Store the spent batteries at an interim status facility before reclaiming them, shall comply with §F of this regulation;

      (iii) Do not store the spent batteries before they reclaim them, shall comply with §G of this regulation;

      (iv) Store the spent batteries before they are reclaimed by others, shall comply with §H of this regulation; and

      (v) Generate, collect, or transport the spent batteries, shall comply with §I of this regulation.

  (3) Persons who export batteries to be reclaimed through regeneration or any other means in a foreign country shall comply with §J of this regulation.

  (4) Persons who transport batteries to export them to be reclaimed through regeneration or any other means in a foreign country shall comply with §K of this regulation.

D. Requirements — Reclamation by Regeneration. Persons who manage spent batteries that are to be reclaimed through regeneration, such as by electrolyte replacement:

  (1) Are exempt from the following requirements with respect to management of those batteries, including the regeneration:

    (a) COMAR 26.13.03, except for COMAR 26.13.03.02, which concerns hazardous waste determination;

    (b) COMAR 26.13.04—26.13.09; and

    (c) The notification requirements of §3010 of RCRA; and

  (2) Are subject to the requirements of COMAR 26.13.02.

E. Requirements — Permitted Facilities That Reclaim Spent Batteries. Owners or operators of facilities that store spent batteries before reclaiming them by a means other than regeneration are subject to the following requirements:

  (1) Notification requirements under §3010 of RCRA;

  (2) All applicable provisions of COMAR 26.13.02;

  (3) COMAR 26.13.03.02, which concerns hazardous waste determination;

  (4) All applicable provisions of COMAR 26.13.05.01—.12, except for:

    (a) COMAR 26.13.05.02D, which concerns waste analysis;

    (b) COMAR 26.13.05.05B, which concerns use of manifests; and

    (c) COMAR 26.13.05.05C, which concerns manifest discrepancies;

  (5) All applicable provisions of COMAR 26.13.07 and .09; and

  (6) If the batteries are imported from a foreign country, 40 CFR Part 262, Subpart H.

F. Requirements — Interim Status Facilities That Reclaim Spent Batteries. Owners or operators of interim status facilities that store spent batteries before reclaiming them by a means other than regeneration are subject to the following requirements:

  (1) Notification requirements under §3010 of RCRA;

  (2) All applicable provisions of COMAR 26.13.02;

  (3) COMAR 26.13.03.02, which concerns hazardous waste determination;

  (4) All applicable provisions of COMAR 26.13.06, except for:

    (a) COMAR 26.13.05.02D, which concerns waste analysis, and which the owner or operator would otherwise be required to comply with by COMAR 26.13.06.02A;

    (b) COMAR 26.13.05.05B, which concerns use of manifests, and which the owner or operator would otherwise be required to comply with by COMAR 26.13.06.05; and

    (c) COMAR 26.13.05.05C, which concerns manifest discrepancies, and which the owner or operator would otherwise be required to comply with by COMAR 26.13.06.05;

  (5) All applicable provisions of COMAR 26.13.07 and .09; and

  (6) If the batteries are imported from a foreign country, 40 CFR Part 262, Subpart H.

G. Requirements — Reclamation Without Storage. Persons who reclaim spent batteries by a method other than regeneration and do not store the spent batteries before reclaiming them are:

  (1) Exempt from the following requirements with respect to those batteries:

    (a) COMAR 26.13.03, except for COMAR 26.13.03.02, which concerns hazardous waste determination;

    (b) COMAR 26.13.04—26.13.07; and

    (c) The notification requirements of §3010 of RCRA; and

  (2) Subject to:

    (a) Applicable requirements of COMAR 26.13.09; and

    (b) If the batteries are imported from a foreign country, 40 CFR Part 262, Subpart H.

H. Requirements — Storage Before Reclamation by Persons Other Than the Reclaimer. Persons who store spent batteries that are to be reclaimed by a method other than regeneration, and who do not themselves reclaim the batteries are:

  (1) Exempt from the following requirements with respect to those batteries:

    (a) COMAR 26.13.03, except for COMAR 26.13.03.02, which concerns hazardous waste determination;

    (b) COMAR 26.13.04—26.13.07; and

    (c) The notification requirements of §3010 of RCRA; and

  (2) Subject to:

    (a) Applicable requirements of COMAR 26.13.09; and

    (b) If the batteries are imported from a foreign country, 40 CFR Part 262, Subpart H.

I. Requirements — Generation, Collection, and Transport of Batteries That Will Be Reclaimed. Persons who generate, collect, or transport spent batteries that will be reclaimed by a method other than regeneration, or who perform any combination of these activities, are:

  (1) Exempt from the following requirements with respect to those batteries:

    (a) COMAR 26.13.03, except for COMAR 26.13.03.02, which concerns hazardous waste determination;

    (b) COMAR 26.13.04—26.13.07; and

    (c) The notification requirements of §3010 of RCRA; and

  (2) Subject to the applicable requirements of COMAR 26.13.09.

J. Requirements — Exports of Batteries That Will Be Reclaimed. Persons who export batteries to be reclaimed through regeneration or any other means in a foreign country are:

  (1) Exempt from the following requirements with respect to those batteries:

    (a) COMAR 26.13.03, except for COMAR 26.13.03.02, which concerns hazardous waste determination; and

    (b) COMAR 26.13.04—.07 and .09; and

  (2) Subject to 40 CFR Part 262, Subpart H.

K. Requirements — Transport of Batteries That Will Be Exported and Reclaimed. Persons who transport batteries in the U.S. to export them to be reclaimed through regeneration or any other means in a foreign country are:

  (1) Exempt from the following requirements with respect to those batteries:

    (a) COMAR 26.13.04—.07 and .09; and

    (b) The notification requirements of §3010 of RCRA; and

  (2) Subject to 40 CFR Part 262, Subpart H.

#### Regulation .05 Management Standards for Used Oil.

*COMAR 26.13.10.05*

A. Purpose. This regulation identifies circumstances under which used oil is regulated as hazardous waste, and identifies other regulations with which persons managing used oil are required to comply.

B. Applicability. This regulation applies to used oil as defined in COMAR 26.13.01.03B, and to other materials, whether or not the used oil or other materials exhibit any characteristics of hazardous waste identified in COMAR 26.13.02.10—.14.

C. Mixtures of Used Oil and Waste that is Listed as Hazardous.

  (1) Mixtures of used oil and waste that is listed as hazardous in COMAR 26.13.02.16—.19 are subject to regulation as hazardous waste under COMAR 26.13.01 —26.13.09 and Regulations .01—.04 of this chapter rather than as used oil under COMAR 26.10.15.

  (2) Rebuttable Presumption for Used Oil. Except as provided in COMAR 26.13.02.04-1A(11), used oil containing more than 1,000 parts per million total halogens is regulated as a hazardous waste because it is presumed to have been mixed with halogenated hazardous waste listed in COMAR 26.13.02.16—.19.

D. Mixtures of Used Oil and Characteristic Hazardous Waste. Mixtures of used oil and hazardous waste that solely exhibits one or more of the hazardous waste characteristics identified in COMAR 26.13.02.11—.14 are regulated as:

  (1) Hazardous waste rather than used oil under COMAR 26.10.15 if the resultant mixture exhibits any of the characteristics of hazardous waste; or

  (2) Used oil under COMAR 26.10.15 if the resultant mixture does not exhibit any of the characteristics of hazardous waste.

E. Mixing Used Oil and Characteristic Hazardous Waste.

  (1) Except as provided in §E(2) and (3) of this regulation, a person may not mix the following hazardous wastes with used oil as a means of rendering the waste nonhazardous:

    (a) Hazardous waste that solely exhibits one or more of the hazardous waste characteristics identified in COMAR 26.13.02.11—.14; and

    (b) Hazardous waste that is listed in COMAR 26.13.02.16—.19 solely because it exhibits one or more of the hazardous waste characteristics identified in COMAR 26.13.02.11—.14.

  (2) Section E(1) of this regulation does not prohibit incidental mixing of oil and characteristic hazardous waste that may occur during the intended use of the oil.

  (3) A person may mix used oil with waste that is hazardous solely because it exhibits the characteristic of ignitability as identified in COMAR 26.13.02.11 if the mixture is to be burned for energy recovery.

F. A person who generates hazardous waste that is subject to reduced regulatory requirements under COMAR 26.13.02.05 shall comply with §E of this regulation with respect to mixing the waste with used oil.

G. Materials Containing or Otherwise Contaminated with Used Oil.

  (1) Except as provided in §G(2) of this regulation, materials containing or otherwise contaminated with used oil from which the used oil has been properly drained or removed to the extent possible, so that no visible signs of free-flowing oil remain in or on the material; are

    (a) Not regulated as used oil; and

    (b) Subject to applicable regulations of COMAR 26.13.01—26.13.10.

  (2) Materials containing or otherwise contaminated with used oil that are burned for energy recovery are subject to regulation as used oil under COMAR 26.10.15 and 26.11.09.10.

  (3) Used oil drained or removed from materials containing or otherwise contaminated with used oil is subject to regulation as used oil under COMAR 26.10.15.

H. Mixtures of Used Oil with Products.

  (1) Except as provided in §H(2) of this regulation, mixtures of used oil and fuels or other fuel products are subject to regulation as used oil under COMAR 26.10.15.

  (2) Mixtures of used oil and diesel fuel mixed on-site by the generator of the used oil for use in the generator's own vehicles are not subject to this regulation or to COMAR 26.10.15 once the used oil and diesel fuel have been mixed.

  (3) Before used oil and diesel fuel are mixed for use in the generator's own vehicles, the used oil is subject to regulation under COMAR 26.10.15.

I. Materials Derived from Used Oil.

  (1) Materials that are reclaimed from used oil that are used beneficially and are not burned for energy recovery or used in a manner constituting disposal, such as re-refined lubricants, are not:

    (a) Regulated as used oil; and

    (b) Solid wastes and are not subject to the hazardous waste regulations of COMAR 26.13.01—26.13.10, as provided in COMAR 26.13.02.03C(2).

  (2) Materials produced from used oil that are burned for energy recovery, such as used oil fuels, are subject to regulation as used oil under COMAR 26.10.15 and 26.11.09.10.

  (3) Except as provided in COMAR 26.13.02.04-1A(15), materials derived from used oil that are disposed of or used in a manner constituting disposal are:

    (a) Solid wastes and are regulated as hazardous waste if they meet the definition of hazardous waste under COMAR 26.13.02.03; and

    (b) Not regulated as used oil.

J. A person managing used oil shall also determine if the management of the used oil is regulated under COMAR 26.10.15, as described in COMAR 26.10.15.01.

#### Regulation .06 Scope — Standards for Universal Waste Management.

*COMAR 26.13.10.06*

This regulation and Regulations .07—.25 of this chapter:

A. Establish requirements for managing universal waste;

B. Include standards for managing the following:

  (1) Batteries, as described in Regulation .07 of this chapter;

  (2) Pesticides, as described in Regulation .08 of this chapter;

  (3) Lamps, mercury-containing equipment, or PCB-containing lamp ballasts, each as described in Regulation .09 of this chapter; and

  (4) Aerosol cans, as described in Regulation .09-1 of this chapter; and

C. Provide an alternative set of management standards to COMAR 26.13.01—26.13.09 and Regulations .01—.05 of this chapter.

#### Regulation .07 Applicability — Batteries.

*COMAR 26.13.10.07*

A. Except as provided in §B of this regulation, the requirements of Regulations .06—.25 of this chapter apply to persons managing:

  (1) Batteries, as defined in COMAR 26.13.01.03B; and

  (2) Spent lead-acid batteries, which are not managed under Regulation .04 of this chapter.

B. The requirements of Regulations .06—.25 of this chapter do not apply to the management of the following batteries:

  (1) Spent lead-acid batteries that are managed under Regulation .04 of this chapter;

  (2) Batteries as defined in COMAR 26.13.01.03B that are not yet wastes under COMAR 26.13.02, including batteries that do not meet the criteria for waste generation in §C of this regulation; and

  (3) Batteries as defined in COMAR 26.13.01.03B that do not meet the definition of hazardous waste in COMAR 26.13.02.03.

C. Generation of Waste Batteries.

  (1) A used battery becomes a waste on the date it is discarded, as defined by the criteria in COMAR 26.13.02.02A(2).

  (2) An unused battery becomes a waste on the date the handler decides to discard it.

#### Regulation .08 Applicability — Pesticides.

*COMAR 26.13.10.08*

A. Except for pesticides identified in §B of this regulation, or as otherwise specified in §B of this regulation, the requirements of Regulations .06—.25 of this chapter apply to persons managing pesticides, as defined in COMAR 26.13.01.03B, meeting the following conditions:

  (1) Recalled pesticides that are stocks of:

    (a) A suspended and canceled pesticide that is part of a voluntary or mandatory recall under §19(b) of FIFRA, including, but not limited to, those owned by the registrant responsible for conducting the recall; or

    (b) A suspended or canceled pesticide, or a pesticide that is not in compliance with FIFRA, that is part of a voluntary recall by the registrant; and

  (2) Stocks of unused pesticide products, other than those identified in §A(1) of this regulation, that are collected and managed as part of a waste pesticide collection program.

B. Except as otherwise noted in this section, the requirements of Regulations .06—.25 of this chapter do not apply to management of the following pesticides:

  (1) Recalled pesticides described in §A(1) of this regulation, and unused pesticide products described in §A(2) of this regulation, that are managed by farmers in compliance with COMAR 26.13.03.07-4, which addresses disposal of pesticides by a farmer on the farmer's own farm in a manner consistent with the disposal instructions on the pesticide label;

  (2) Except for a pesticide in an aerosol can as defined in COMAR 26.13.01.03, pesticides not meeting the conditions of §A of this regulation, which shall instead be managed in compliance with the hazardous waste regulations in COMAR 26.13.01—26.13.10.05;

  (3) A pesticide in an aerosol can as defined in COMAR 26.13.01.03 that does not meet the conditions of §A of this regulation, which shall be managed either:

    (a) As aerosol can universal waste in compliance with:

      (i) Regulation .16-1 of this chapter or Regulation .20F of this chapter; and

      (ii) All other applicable requirements of Regulations .06—.25 of this chapter; or

    (b) In compliance with the hazardous waste regulations in COMAR 26.13.01—26.13.10.05

  (4) Pesticides that are not wastes under COMAR 26.13.02, including pesticides that:

    (a) Do not meet the criteria for waste generation in §C of this regulation; or

    (b) Are not wastes as described in §D of this regulation; and

  (5) Pesticides that do not meet the definition of hazardous waste in COMAR 26.13.02.03.

C. Determining When a Pesticide Becomes a Waste.

  (1) A recalled pesticide described in §A(1) of this regulation becomes a waste on the first date on which both of the following conditions apply:

    (a) The generator of the recalled pesticide agrees to participate in the recall; and

    (b) The person conducting the recall decides to discard the pesticide, with “discard” being defined by the criteria in COMAR 26.13.02.02A(2).

  (2) An unused pesticide product described in §A(2) of this regulation becomes a waste on the date that the generator decides to discard it.

D. Pesticides That Are Not Wastes.

  (1) Recalled Pesticides.

    (a) Recalled pesticides described in §A(1) of this regulation are not wastes, if the person conducting the recall:

      (i) Has not made a decision to discard the pesticide, with “discard” being defined by the criteria of COMAR 26.13.02.02A(2); or

      (ii) Has made a decision to use a management option that, under COMAR 26.13.02.02, 40 CFR §261.2, or an equivalent regulation in another state, does not cause the pesticide to be a solid waste.

    (b) Until a decision to discard a pesticide is made in accordance with §D(1)(a)(i) of this regulation, the pesticide:

      (i) Is not a solid waste and therefore, is not a hazardous waste subject to hazardous waste requirements, including the standards for universal waste management in Regulations .06—.24 of this chapter; and

      (ii) Remains subject to the requirements of FIFRA.

    (c) If a decision is made to manage a pesticide in a manner that does not cause the pesticide to be a solid waste, in accordance with §D(1)(a)(ii) of this regulation, the pesticide:

      (i) Is not a hazardous waste and is not subject to hazardous waste requirements, including the standards for universal waste management in Regulations .06—.24 of this chapter; and

      (ii) Remains subject to the requirements of FIFRA, even if it is to be exported to a foreign destination for use or reuse.

  (2) Unused Pesticide Products.

    (a) An unused pesticide product described in §A(2) of this regulation is not a waste if the generator of the unused pesticide product has not decided to discard it, with “discard” being defined by the criteria of COMAR 26.13.02.02A(2).

    (b) The unused pesticide products described in §D(2)(a) of this regulation remain subject to the requirements of FIFRA.

#### Regulation .09 Applicability — Lamps, Mercury-Containing Equipment, and PCB-Containing Lamp Ballasts.

*COMAR 26.13.10.09*

A. Except as provided in §B of this regulation, the requirements of Regulations .06—.25 of this chapter apply to persons managing lamps, mercury-containing equipment, or PCB-containing lamp ballasts as defined in COMAR 26.13.01.03B.

B. The requirements of Regulations .06—.25 of this chapter do not apply to management of an item that is:

  (1) A lamp, mercury-containing equipment, or a PCB-containing lamp ballast if the item is:

    (a) Not yet a waste under COMAR 26.13.02, as described in §C of this regulation; and

    (b) Not hazardous waste as defined in COMAR 26.13.02.03; and

  (2) Mercury-containing equipment from which all mercury-containing components have been removed.

C. Determination of When a Lamp, Mercury-Containing Equipment, or a PCB-Containing Lamp Ballast Becomes a Waste.

  (1) A used lamp, used mercury-containing equipment, or a used PCB-containing lamp ballast becomes a waste on the date it is discarded, with “discard” being defined by the criteria in COMAR 26.13.02.02A(2).

  (2) An unused lamp, unused mercury-containing equipment, or an unused PCB-containing lamp ballast becomes a waste on the date the handler decides to discard it.

#### Regulation .09-1 Applicability — Aerosol Cans.

*COMAR 26.13.10.09-1*

A. Except for aerosol cans identified in §B of this regulation, the requirements of Regulations .06—.25 of this chapter apply to persons managing aerosol cans as defined in COMAR 26.13.01.03B.

B. The requirements of Regulations .06—.25 of this chapter do not apply to the management of an aerosol can that:

  (1) Is not yet waste under COMAR 26.13.02, including an aerosol can that does not meet the criteria for waste generation in §C of this regulation;

  (2) Does not meet the criteria of §D of this regulation to be regulated as hazardous waste; or

  (3) Qualifies as an empty container under the provisions of COMAR 26.13.02.07B.

C. Generation of Waste Aerosol Cans.

  (1) A used aerosol can becomes a waste on the date the can is discarded, with “discarded” being defined by the criteria of COMAR 26.13.02.02A(2).

  (2) An unused aerosol can becomes a waste on the date the handler decides to discard the can.

D. Criteria to be Regulated as Hazardous Waste.  An aerosol can is regulated as hazardous waste if the aerosol can:

  (1) Exhibits one or more of the characteristics of hazardous waste identified in COMAR 26.13.02.10—.14;

  (2) Contains a substance listed in COMAR 26.13.02.15—.19; or

  (3) Otherwise meets the definition of hazardous waste in COMAR 26.13.02.03.

E. Voluntary Management.  A person managing an aerosol can excluded under §B of this regulation may voluntarily elect to manage the aerosol can in accordance with the provisions of Regulations .06—.25 of this chapter.

#### Regulation .10 Applicability — Household and Small Quantity Generator Waste.

*COMAR 26.13.10.10*

A. A person managing the following wastes may, at the person's option, manage the waste under the requirements of Regulations .06—.25 of this chapter:

  (1) Household wastes that are exempt under COMAR 26.13.02.04-1A(1) and are also identified among the universal wastes listed in Regulation .06B of this chapter; and

  (2) Hazardous wastes that are generated by a Maryland-defined small quantity generator as defined in COMAR 26.13.01.03B and are also identified among the universal wastes listed in Regulation .06B of this chapter.

B. If a person commingles a waste described in §A of this regulation with universal waste regulated under Regulations .06—.25 of this chapter, the person shall manage the commingled waste under the requirements of Regulations .06—.25 of this chapter.

#### Regulation .11 Small Quantity Handlers of Universal Waste — General Requirements.

*COMAR 26.13.10.11*

A. Applicability. This regulation and Regulations .12—.18 of this chapter apply to small quantity handlers of universal waste, as defined in COMAR 26.13.01.03B.

B. Prohibitions. A small quantity handler of universal waste may not:

  (1) Dispose of universal waste, unless the handler does so under authority of a hazardous waste disposal facility permit; or

  (2) Dilute or treat universal waste, except:

    (a) In responding to releases as provided in Regulation .17D of this chapter;

    (b) As provided in Regulations .12—.16 of this chapter; or

    (c) In accordance with a hazardous waste treatment facility permit.

C. Notification.

  (1) Except as provided in §C(2) and (3) of this regulation, a small quantity handler of universal waste is not required to notify the Department or the U.S. Environmental Protection Agency of universal waste handling activities.

  (2) A person who uses a device to crush universal waste lamps is subject to the notification requirement of Regulation .15B(3)(e) of this chapter.

  (3) Persons Accepting Universal Waste from Off-site. Except for persons identified in §C(4) of this regulation, a small quantity handler of universal waste who accepts universal waste from off site shall:

    (a) Send a written notification to the Department that contains the following information:

      (i) The universal waste handler’s name and mailing address;

      (ii) The name and business telephone number of the person at the universal waste handler’s site who should be contacted regarding universal waste management activities;

      (iii) The address or location where universal wastes accepted from off site will be managed;

      (iv) A list of all the types of universal waste that the handler will accept from off site, such as “batteries, pesticides, mercury-containing equipment, and lamps”; and

      (v) A statement in the cover letter accompanying the notification that the notification should be directed to the group in the Department responsible for oversight of hazardous waste management; and

    (b) Submit the notification required by §C(2)(a) of this regulation by the later of the following deadlines:

      (i) Within 90 days after the effective date of this regulation; or

      (ii) Before the date universal waste is first accepted from off site.

  (4) The notification requirement of §C(3) of this regulation does not apply if either of the following conditions is met:

    (a) The site where universal waste is accepted from off site has been issued an EPA identification number; or

    (b) The amount of universal waste at the location that is accepting universal waste from off site never exceeds 500 kilograms.

#### Regulation .12 Small Quantity Handlers of Universal Waste Batteries — Specific Management Standards.

*COMAR 26.13.10.12*

A small quantity handler of universal waste:

A. Shall manage universal waste batteries:

  (1) In a way that prevents release of any universal waste or any component of universal waste to the environment; and

  (2) In compliance with the requirements of this regulation;

B. Shall place any universal waste battery that shows evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions in a container that is:

  (1) Kept closed unless waste is being added to or removed from the container;

  (2) Structurally sound;

  (3) Compatible with the contents of the battery; and

  (4) Free of evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions;

C. May conduct any of the following activities if the conditions of §D of this regulation are met:

  (1) Sorting batteries by type;

  (2) Mixing battery types in one container;

  (3) Discharging batteries to remove the batteries' electric charge;

  (4) Regenerating used batteries;

  (5) Disassembling batteries or battery packs into individual batteries or cells;

  (6) Removing batteries from consumer products; and

  (7) Removing electrolyte from batteries;

D. Shall, in conducting the activities identified in §C of this regulation, assure that the casing of each individual battery cell is not breached and remains intact and closed, except that a cell may be opened to remove electrolyte if the cell is immediately closed after the electrolyte is removed;

E. Shall determine if the following items meet the definition of hazardous waste in COMAR 26.13.02.03:

  (1) Each solid waste generated in conducting the activities identified in §C of this regulation; and

  (2) Any electrolyte the handler removes from batteries;

F. Shall:

  (1) Manage any of the items identified in §E of this regulation that meet the definition of hazardous waste in accordance with all applicable requirements of COMAR 26.13.01—26.13.10;

  (2) Be considered the generator of the hazardous electrolyte or other hazardous waste identified in §F(1) of this regulation; and

  (3) Comply with the requirements of COMAR 26.13.03 in managing the hazardous electrolyte or other hazardous waste identified in §F(1) of this regulation; and

G. May manage electrolyte or other solid waste identified in §E of this regulation that does not meet the definition of hazardous waste in any manner that is in compliance with applicable federal, state and local solid waste regulations.

#### Regulation .13 Small Quantity Handlers of Universal Waste Pesticides — Specific Management Standards.

*COMAR 26.13.10.13*

A. A small quantity handler of universal waste shall manage universal waste pesticides in a way that prevents releases of any universal waste or any component of universal waste to the environment.

B. A small quantity handler of universal waste shall contain universal waste pesticides in:

  (1) A container that:

    (a) Remains closed, except when adding or removing waste;

    (b) Is structurally sound;

    (c) Is compatible with the pesticide that it is being used to contain; and

    (d) Shows no evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions;

  (2) A container that does not meet the requirements of §B(1) of this regulation but is overpacked in a container that does meet the requirements of §B(1) of this regulation;

  (3) A tank that meets the requirements of COMAR 26.13.06.18, except for:

    (a) COMAR 26.13.06.18D(4), which concerns additional requirements for tanks that do not have secondary containment; and

    (b) COMAR 26.13.05.10B, which concerns waste analysis and trial tests and is cross-referenced by COMAR 26.13.06.18A; or

  (4) A transport vehicle or vessel that:

    (a) Remains closed, except when adding or removing waste;

    (b) Is structurally sound;

    (c) Is compatible with the pesticide that it is being used to contain; and

    (d) Shows no evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions.

#### Regulation .14 Small Quantity Handlers of Universal Waste Mercury-Containing Equipment — Specific Management Standards.

*COMAR 26.13.10.14*

A. General.

  (1) A small quantity handler of universal waste shall manage universal waste mercury-containing equipment in a way that prevents release of any universal waste or any component of universal waste to the environment.

  (2) For the purposes of this regulation, “open original housing” means a tube or similar object that is open at one end and that holds mercury while the mercury performs a function in a piece of mercury-containing equipment.

B. A small quantity handler of universal waste:

  (1) Shall place any universal waste mercury-containing equipment identified in §B(2) of this regulation in a container that is:

    (a) Kept closed, unless waste is being added to or removed from the container;

    (b) Structurally sound;

    (c) Compatible with the contents of the mercury-containing equipment;

    (d) Free of evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions; and

    (e) Reasonably designed to prevent the escape of mercury into the environment by volatilization or any other means;

  (2) Shall place the following universal waste mercury-containing equipment in a container that satisfies the requirements of §B(1)(a)—(e) of this regulation:

    (a) Mercury-containing equipment that shows evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions;

    (b) Mercury-containing equipment with noncontained elemental mercury, such as equipment that contains mercury in:

      (i) An open original housing that has not been sealed in a way that prevents release of mercury to the environment during accumulation or transportation; or

      (ii) A part of the device into which mercury has escaped from the part of the device designed to hold mercury, such as a valve that separates mercury in the mercury-containing equipment from the rest of the device; and

    (c) Ancillary equipment, such as a valve or other component of mercury-containing equipment that has come into contact with mercury and been removed from the mercury-containing equipment;

  (3) May remove mercury-containing ampules from universal waste mercury-containing equipment, if the handler:

    (a) Removes and manages the ampules in a manner designed to prevent breakage of the ampules;

    (b) Removes ampules only over or in a containment device, such as a tray or pan, sufficient to collect and contain any mercury released from an ampule if the ampule were to break;

    (c) Ensures that a mercury clean-up system is readily available to immediately transfer any mercury resulting from spills or leaks, as required by §B(3)(d) of this regulation;

    (d) Immediately transfers any mercury resulting from spills or leaks from broken ampules from the containment device required by §B(3)(b) of this regulation to a container that meets and is managed in accordance with all applicable requirements of COMAR 26.13.01—26.13.10;

    (e) Ensures that the area in which ampules are removed is well ventilated and monitored to ensure compliance with applicable exposure levels for mercury established by the federal Occupational Safety and Health Administration (OSHA) and the Maryland Occupational Safety and Health (MOSH) program;

    (f) Ensures that employees removing ampules are thoroughly familiar with proper waste mercury handling and emergency procedures, including transfer of mercury from containment devices to appropriate containers;

    (g) Stores removed ampules in closed, nonleaking containers that are in good condition; and

    (h) Ensures that packing materials adequate to prevent breakage during storage, handling, and transportation are used in packing removed ampules in the container required by §B(3)(g) of this regulation;

  (4) May remove an open original housing holding mercury from universal waste mercury-containing equipment if the handler:

    (a) Immediately seals the original housing holding the mercury with an air-tight seal to prevent any release of mercury to the environment; and

    (b) In handling the open original housing and the original housing after it has been sealed, manages the housing in accordance with the requirements of §B(3) of this regulation that apply to mercury-containing ampules;

  (5) May remove from mercury-containing equipment any ancillary equipment that has come in contact with mercury and may manage it as universal waste mercury-containing equipment if the handler:

    (a) Removes and manages the ancillary equipment in a manner designed to prevent releases of mercury;

    (b) Removes the ancillary equipment only over or in a containment device, such as a tray or pan, sufficient to collect and contain any mercury that may be released from the ancillary equipment; and

    (c) Manages the ancillary equipment during and after its removal in accordance with the requirements of §B(3)(c)—(h) of this regulation that apply to intact or broken mercury-containing ampules; and

  (6) Shall comply with the following requirements if the handler removes mercury-containing ampules or ancillary equipment from mercury-containing equipment, or if the handler seals mercury from mercury-containing equipment in its original housing:

    (a) Determine whether the following meet the definition of hazardous waste in COMAR 26.13.02.03:

      (i) Mercury or clean-up residues resulting from spills or leaks; and

      (ii) Other solid waste generated as a result of the removal of mercury-containing ampules, housings, or ancillary equipment, such as the remaining mercury-containing device;

    (b) If a waste identified in §B(6)(a) of this regulation meets the definition of hazardous waste in COMAR 26.13.02.03, the handler:

      (i) Shall manage the waste in compliance with all applicable requirements of COMAR 26.13.01—26.13.10; and

      (ii) Is considered to be the generator of the waste and shall manage it in accordance with the requirements of COMAR 26.13.03; and

    (c) If a waste identified in §B(6)(a) of this regulation does not meet the definition of hazardous waste in COMAR 26.13.02.03, the handler shall manage the waste in compliance with applicable federal, State, or local solid waste regulations.

#### Regulation .15 Small Quantity Handlers of Universal Waste Lamps — Specific Management Standards.

*COMAR 26.13.10.15*

A. A small quantity handler of universal waste shall manage universal waste lamps in a way that prevents release of any universal waste or any component of universal waste to the environment.

B. A small quantity handler of universal waste:

  (1) Shall contain any lamp that the handler is managing as universal waste in a container or package that is:

    (a) Structurally sound;

    (b) Adequate to prevent breakage of the contents of the container or package;

    (c) Compatible with the contents of the lamps;

    (d) Kept closed except when adding waste to, or removing waste from, the container or package; and

    (e) Free of evidence of leakage, spillage or damage that could cause leakage under reasonably foreseeable conditions;

  (2) Shall immediately:

    (a) Collect any materials resulting from breakage of a universal waste lamp;

    (b) Clean up any contamination and collect any residues resulting from breakage of a universal waste lamp; and

    (c) Place the materials identified in §B(2)(a)—(b) of this regulation and any universal waste lamp that shows evidence of breakage, leakage, or damage that could cause the release of mercury or other hazardous constituents to the environment in a container that is:

      (i) Kept closed except when adding waste to, or removing waste from, the container;

      (ii) Structurally sound;

      (iii) Compatible with the contents of the lamps; and

      (iv) Free of evidence of leakage, spillage, or damage that could cause leakage or releases of mercury or other hazardous constituents to the environment under reasonably foreseeable conditions; and

  (3) May use a device to crush mercury-containing universal waste lamps if:

    (a) The handler meets the requirements of §B(2) of this regulation in operating the device;

    (b) Use of the device does not cause exceedance of the federal Occupational Safety and Health Administration (OSHA) permissible exposure limit for mercury of 0.10 milligrams per cubic meter of air;

    (c) The handler has documentation from the manufacturer of the device or from another organization approved by the Department that demonstrates that the unit:

      (i) Is capable of achieving the OSHA permissible exposure limit for mercury of 0.10 milligrams per cubic meter of air, taking into account the conditions in which the device will be operated, such as room size and room ventilation rate; and

      (ii) Achieves a particle retention rate of at least 99.7 percent in the HEPA filter or alternate particulate control device, at a particle diameter of 0.3 microns;

    (d) The device is equipped with air pollution controls that capture both particulate mercury and vapor phase mercury;

    (e) The air pollution controls required by §B(3)(d) of this regulation either:

      (i) Include a High Efficiency Particulate Air (HEPA) filter, a filter using activated carbon, and engineering controls that ensure that exhaust pathways other than those going through the filters are at a negative pressure with respect to air outside the device; or

      (ii) Capture mercury emissions at least as well as a system that employs the items identified in §B(3)(e)(i) of this regulation;

    (f) The handler operates the device indoors;

    (g) The handler develops and implements a written procedure detailing how to safely crush mercury-containing lamps that includes:

      (i) A description of the equipment that will be used to crush the lamps;

      (ii) Requirements to operate and maintain the crushing equipment in accordance with written procedures developed by the manufacturer of the equipment;

      (iii) Documentation of maintenance of the crushing equipment in accordance with the manufacturer's recommendations; and

      (iv) Training of operators of crushing equipment in operating procedures, waste handling procedures, and emergency procedures;

    (h) The handler:

      (i) Stores crushed lamps in closed, nonleaking drums or containers that are in good condition; and

      (ii) Does not transfer crushed lamps from one container to another;

    (i) The handler manages:

      (i) The crushed lamps in accordance with the applicable requirements of Regulations .06—.25 of this chapter concerning universal waste lamps; and

      (ii) Residues, filter media, or other solid waste generated as part of the crushing operation that are not being reclaimed in accordance with applicable requirements of COMAR 26.13.01—26.13.10;

    (j) The handler provides the following information in writing to the Department:

      (i) The handler's name, address, telephone number, EPA identification number, if any, and the name of a contact person at the handler; and

      (ii) The manufacturer and model number of the device that will be used to crush universal waste lamps;

    (k) The handler makes the notification required by §B(3)(j) of this regulation by one of the following deadlines:

      (i) Before the lamp crushing device is first used, if the device was not in use before November 1, 2002; or

      (ii) January 1, 2003, if the device was used before November 1, 2002; and

    (l) The handler makes maintenance records required to be kept by §B(3)(g)(iii) of this regulation available to representatives of the Department upon request.

#### Regulation .16 Small Quantity Handlers of Universal Waste PCB-Containing Lamp Ballasts — Specific Management Standards.

*COMAR 26.13.10.16*

A. A small quantity handler of universal waste shall manage universal waste PCB-containing lamp ballasts in a way that prevents release of any universal waste or any component of universal waste to the environment.

B. A small quantity handler of universal waste shall contain any PCB-containing lamp ballast that the handler is managing as universal waste in a container that is:

  (1) Structurally sound;

  (2) Adequate to prevent damage to the container's contents that could result in a release of hazardous constituents;

  (3) Compatible with the contents of the PCB-containing lamp ballast;

  (4) Kept closed, except when adding waste to, or removing waste from, the container; and

  (5) Free of evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions.

#### Regulation .16-1 Small Quantity Handlers of Universal Waste Aerosol Cans — Specific Management Standards.

*COMAR 26.13.10.16-1*

A. A small quantity handler of universal waste shall manage universal waste aerosol cans in a way that prevents any releases of universal waste or a component of universal waste to the environment.

B. A small quantity handler of universal waste shall:

  (1) Accumulate universal waste aerosol cans in a container that is:

    (a) Structurally sound;

    (b) Compatible with the contents of the aerosol cans;

    (c) Lacking evidence of:

      (i) Leakage;

      (ii) Spillage; or

      (iii) Damage that could cause leakage under reasonably foreseeable conditions; and

    (d) Protected from sources of heat;

  (2) Manage a universal waste aerosol can that show evidence of leakage by:

    (a) Packaging the aerosol can in a separate closed container;

    (b) Overpacking the aerosol can in a container with absorbents; or

    (c) Immediately puncturing and draining the aerosol can in accordance with the requirements of §D of this regulation.

C. A small quantity handler of universal waste may conduct the following activities if each individual aerosol can is not breached and remains intact:

  (1) Sorting aerosol cans by type;

  (2) Commingling intact aerosol cans in one container; and

  (3) Removing actuators to reduce the risk that an accidental release will occur.

D. A small quantity handler of universal waste aerosol cans who punctures and drains a universal waste aerosol can shall:

  (1) Recycle the empty punctured aerosol can;

  (2) Conduct puncturing and draining activities using a device specifically designed to:

    (a) Safely puncture aerosol cans; and

    (b) Effectively contain the residual contents from the punctured can and any related emissions;

  (3) Establish and follow a written procedure that specifies how to safely puncture and drain the universal waste aerosol can, including details about the following topics:

    (a) Proper assembly, operation, and maintenance of the device used for the activity;

    (b) Segregation of incompatible wastes generated; and

    (c) Proper waste management practices to prevent fires and releases;

  (4) Maintain, on site, a copy of the manufacturer’s operating instructions and specifications for the device that is being used for puncturing and draining;

  (5) Ensure that persons performing puncturing and draining activities are trained in the proper procedures for conducting the activities.

  (6) Ensure that puncturing of the can is done in a manner that:

    (a) Is designed to prevent fires and prevent the release of any component of universal waste to the environment; and

    (b) In addition to other appropriate measures to satisfy the requirements of §D(6(a) of this regulation, includes locating the puncturing equipment on a solid, flat surface in a well-ventilated area;

  (7) Immediately transfer the contents from the waste aerosol can or puncturing device, if applicable, to a container or tank that meets the applicable requirements in:

    (a) COMAR 26.13.02.05;

    (b) COMAR 26.13.03.03-3; or

    (c) COMAR 26.13.03.03-4 —.03-11, .05E, .05-1, and .05-2;

  (8) Conduct a hazardous waste determination in accordance with the requirements of COMAR 26.13.03.02—.02-2 on:

    (a) The contents emptied from the aerosol can;

    (b) The punctured, drained aerosol can if the aerosol can does not meet the criteria of COMAR 26.13.02.07B to be considered “empty”; and

    (c) Any other solid waste generated in connection with the puncturing and draining of the aerosol can;

  (9) Manage any hazardous waste generated as a result of puncturing and draining the aerosol can in accordance with all applicable requirements of COMAR 26.13.01—.10, with the universal waste handler being considered the generator of the hazardous waste and subject to the requirements of COMAR 26.13.03;

  (10) Manage nonhazardous waste generated as a result of puncturing and draining the aerosol can in accordance with applicable State, federal, and local solid waste regulations; and

  (11) Satisfy the following requirements concerning emergency preparedness and response:

    (a) Have in place a written procedure on how to respond in the event of a spill or leak to minimize risks to human health and the environment;

    (b) Have a spill cleanup kit readily available; and

    (c) Promptly clean up any spill or leak of the contents of an aerosol can.

#### Regulation .17 Small Quantity Handlers of Universal Waste — General Management Standards.

*COMAR 26.13.10.17*

A. Labeling and Marking.

  (1) A small quantity handler of universal waste shall label or mark the universal waste to identify the type of universal waste as specified in §A(2) of this regulation.

  (2) A small quantity handler of universal waste shall:

    (a) Clearly label or mark each universal waste battery that is not in a container, and each container in which universal waste batteries are being held with one of the following phrases:

      (i) “Universal Waste—Battery(ies)”;

      (ii) “Waste Battery(ies)”; or

      (iii) “Used Battery(ies)”;

    (b) Ensure that each container, multiple-container package unit, tank, transport vehicle or vessel which contains recalled universal waste pesticides, as described in Regulation .08A(1) of this chapter, is clearly labeled or marked with:

      (i) The label that was on or accompanied the product as sold or distributed; and

      (ii) The words “Universal Waste—Pesticide(s)” or “Waste—Pesticide(s)”;

    (c) Ensure that each container, tank, transport vehicle, or vessel containing unused pesticide products as described in Regulation .08A(2) of this chapter is clearly labeled or marked with:

      (i) The label that was on the product when purchased, if the label is still legible;

      (ii) The appropriate label as required under the U.S. Department of Transportation regulation, 49 CFR 172, if using the label described by §A(2)(c)(i) of this regulation is not feasible;

      (iii) Another label prescribed or designated by the waste pesticide collection program administered or recognized by the State, if using the label described by §A(2)(c)(i) or (ii) of this regulation is not feasible; and

      (iv) The words “Universal Waste—Pesticide(s)” or “Waste—Pesticide(s)”;

    (d) Except as provided in §A(3) of this regulation, clearly label or mark each item of universal waste mercury-containing equipment that is not in a container, and each container in which universal waste mercury-containing equipment is being held, with one of the following phrases:

      (i) “Universal Waste—Mercury-Containing Equipment”;

      (ii) “Waste Mercury—Containing Equipment”; or

      (iii) “Used Mercury—Containing Equipment”;

    (e) Clearly label or mark each universal waste lamp that is not in a container, and each container or package in which universal waste lamps are being held, with one of the following phrases:

      (i) “Universal Waste—Lamp(s)”;

      (ii) “Waste Lamp(s)”; or

      (iii) “Used Lamp(s)”; and

    (f) Clearly label or mark each universal waste PCB-containing lamp ballast that is not in a container, and each container or package in which universal waste PCB-containing lamp ballasts are being held, with one of the following phrases:

      (i) “Universal Waste—PCB-containing lamp ballast(s)”;

      (ii) “Waste PCB-containing lamp ballast(s)”; or

      (iii) “Used PCB-containing lamp ballast(s)”.

    (g) Clearly label or mark each universal waste aerosol can that is not in a container, and each container in which universal waste aerosol cans are being held with one of the following phrases:

      (i) “Universal Waste—Aerosol Can(s)”;

      (ii) “Waste Aerosol Can(s)”; or

      (iii) “Used Aerosol Can(s)

  (3) As an alternative to the requirements of §A(2)(d) of this regulation, a small quantity handler of universal waste mercury-containing equipment may clearly label or mark a universal waste mercury-containing thermostat or a container that holds only universal waste mercury-containing thermostats with any of the following phrases:

    (a) “Universal Waste—Mercury Thermostats”;

    (b) “Waste Mercury Thermostat(s) “; or

    (c) “Used Mercury Thermostat(s)”.

B. Accumulation Time Limits.

  (1) Unless the requirements of §B(2) of this regulation are met, a small quantity handler of universal waste may accumulate universal waste for not longer than 1 year from the date the universal waste is generated, or received from another universal waste handler.

  (2) A small quantity handler of universal waste may accumulate universal waste for longer than 1 year from the date the universal waste is generated, or received from another universal waste handler, if:

    (a) Accumulation of the universal waste for a period longer than 1 year is solely for the purpose of accumulation of a quantity of universal waste as necessary to facilitate proper recovery, treatment, or disposal; and

    (b) The handler can demonstrate, on request of the Department, and to the satisfaction of the Secretary, that accumulation of the universal waste for more than 1 year is solely for the purpose of accumulation of a quantity of universal waste as necessary to facilitate proper recovery, treatment, or disposal.

  (3) A small quantity handler of universal waste shall:

    (a) Be able to demonstrate the length of time that the universal waste has been accumulated from the date it becomes a waste or is received; and

    (b) Make the demonstration required by §B(3)(a) of this regulation by:

      (i) Placing the universal waste in a container and marking or labeling the container with the earliest date that any universal waste in the container became a waste or was received by the handler;

      (ii) Marking or labeling each individual item of universal waste, such as each battery or thermostat, with the date the individual item became a waste or was received by the handler;

      (iii) Maintaining an inventory system on-site that identifies the date each universal waste became a waste or was received by the handler;

      (iv) Maintaining an inventory system on-site that identifies the earliest date that any universal waste in a group of universal waste items or a group of containers of universal waste became a waste or was received by the handler;

      (v) Placing the universal waste in a specific accumulation area and identifying the earliest date that any universal waste in the area became a waste or was received by the handler; or

      (vi) Using any other method that clearly demonstrates the length of time that the universal waste has been accumulated from the date it becomes a waste or is received by the handler.

C. Employee Training. A small quantity handler of universal waste shall provide the following information to all employees who handle or have responsibility for managing universal waste:

  (1) Proper handling procedures for each type of universal waste handled at the facility; and

  (2) Emergency procedures appropriate for the types of universal waste handled at the facility.

D. Response to Release.

  (1) A small quantity handler of universal waste shall:

    (a) Immediately contain all releases of universal wastes and other residues from universal wastes; and

    (b) Determine whether any material resulting from a release associated with the management of universal waste is hazardous waste, and if it is, manage the hazardous waste in compliance with all applicable requirements of COMAR 26.13.01—26.13.10.

  (2) If a small quantity handler of universal waste has a release of hazardous waste, the handler:

    (a) Is considered the generator of the hazardous waste resulting from the release; and

    (b) Shall manage the hazardous waste in compliance with COMAR 26.13.03.

#### Regulation .18 Small Quantity Handlers of Universal Waste — Shipments.

*COMAR 26.13.10.18*

A. Off-Site Shipments.

  (1) A small quantity handler of universal waste may not send or take universal waste to a place other than:

    (a) Another universal waste handler;

    (b) A destination facility; or

    (c) A destination outside of the United States.

  (2) If a small quantity handler of universal waste self-transports universal waste off-site, the handler becomes a universal waste transporter for those self-transportation activities and shall comply with the transporter requirements of Regulation .22 of this chapter while transporting the universal waste.

  (3) If a universal waste being offered for off-site transportation meets the definition of hazardous materials under 49 CFR 171—180, a small quantity handler of universal waste shall package, label, mark, and placard the shipment, and prepare the proper shipping papers in accordance with the applicable U.S. Department of Transportation regulations under 49 CFR 172—180.

  (4) Before sending a shipment of universal waste to another universal waste handler, the originating handler shall verify that the receiving handler agrees to receive the shipment.

  (5) If a small quantity handler of universal waste sends a shipment of universal waste to another handler or to a destination facility and the shipment is rejected by the receiving handler or destination facility, the originating handler shall either:

    (a) Receive the waste back when notified that the shipment has been rejected; or

    (b) Agree with the receiving handler on a destination facility to which the shipment will be sent.

  (6) Rejecting Shipments of Universal Waste.

    (a) A small quantity handler of universal waste may reject a shipment containing universal waste, or a portion of a shipment containing universal waste that the handler has received from another handler.

    (b) If a handler rejects a shipment or a portion of a shipment, the handler shall contact the originating handler to notify the originating handler of the rejection and to discuss reshipment of the load.

    (c) A small quantity handler of universal waste who rejects a shipment of universal waste shall:

      (i) Send the shipment back to the originating handler; or

      (ii) If agreed to by both the originating and receiving handler, send the shipment to a destination facility.

  (7) If a small quantity handler of universal waste receives a shipment containing hazardous waste that is not a universal waste, and the handler does not have a permit to accept that hazardous waste, the handler shall immediately:

    (a) Notify the Department of the illegal shipment;

    (b) Provide the Department with the name, address, and phone number of the originating shipper; and

    (c) Obtain instructions for managing the hazardous waste from the Department and manage the waste in accordance with those instructions.

  (8) If a small quantity handler of universal waste receives a shipment of nonhazardous, nonuniversal waste, the handler may manage the waste in any way that is in compliance with applicable federal, State, and local solid waste regulations.

B. Tracking Universal Waste Shipments. A small quantity handler of universal waste is not required to keep records of shipments of universal waste.

C. Exports. A small quantity handler of universal waste that sends universal waste to a foreign destination is subject to the requirements of 40 CFR Part 262, Subpart H.

#### Regulation .19 Large Quantity Handlers of Universal Waste — General Requirements.

*COMAR 26.13.10.19*

A. Applicability.

  (1) This regulation and Regulations .20 and .21 of this chapter apply to large quantity handlers of universal waste as defined in COMAR 26.13.01.03B.

  (2) A universal waste handler retains the classification of a large quantity handler of universal waste at least until the end of the calendar year in which the handler was classified as a large quantity handler, even if the amount of universal waste that the handler has accumulated becomes less than 5,000 kilograms.

  (3) If a handler does not have an accumulation of 5,000 kilograms or more of universal waste on January 1 of a given year, the handler may elect to be regulated as a small quantity handler of universal waste under Regulations .11—.18 of this chapter until the handler accumulates 5,000 kilograms or more of universal waste for the first time in that calendar year.

B. Prohibitions. A large quantity handler of universal waste may not:

  (1) Dispose of universal waste, unless the handler does so under authority of a hazardous waste disposal facility permit; or

  (2) Dilute or treat universal waste, except:

    (a) In responding to releases as provided in Regulation .21D of this chapter;

    (b) As provided in Regulation .20 of this chapter; or

    (c) In accordance with a hazardous waste treatment facility permit.

C. Notification.

  (1) Except as provided in §C(2) of this regulation, a large quantity handler of universal waste, before accumulating 5,000 kilograms of universal waste for the first time, shall:

    (a) Send to the Secretary a written notification that includes the following information:

      (i) The universal waste handler's name and mailing address;

      (ii) The name and business telephone number of the person at the universal waste handler's site who should be contacted regarding universal waste management activities;

      (iii) The address or location of the universal waste management activities;

      (iv) A list of all the types of universal waste managed by the handler, such as “batteries, pesticides, mercury-containing equipment, aerosol cans, and lamps”; and

      (v) A statement indicating that the handler is accumulating more than 5,000 kilograms of universal waste at one time; and

    (b) Obtain an EPA identification number from the Department.

  (2) A large quantity handler of universal waste who has already notified EPA or the Department of the handler's hazardous waste management activities and who has received an EPA identification number is considered to have satisfied the requirements of §C(1) of this regulation.

#### Regulation .20 Large Quantity Handlers of Universal Waste — Specific Management Standards.

*COMAR 26.13.10.20*

A. Universal Waste Batteries. A large quantity handler of universal waste shall manage universal waste batteries in accordance with the requirements established for small quantity handlers in Regulation .12 of this chapter.

B. Universal Waste Pesticides. A large quantity handler of universal waste shall manage universal waste pesticides in accordance with the requirements established for small quantity handlers in Regulation .13 of this chapter.

C. Universal Waste Mercury-Containing Equipment. A large quantity handler of universal waste shall manage universal waste mercury-containing equipment in accordance with the requirements established for small quantity handlers in Regulation .14 of this chapter.

D. Universal Waste Lamps. A large quantity handler of universal waste shall manage universal waste lamps in accordance with the requirements established for small quantity handlers in Regulation .15 of this chapter.

E. Universal Waste PCB-Containing Lamp Ballasts. A large quantity handler of universal waste shall manage universal waste PCB-containing lamp ballasts in accordance with the requirements established for small quantity handlers in Regulation .16 of this chapter.

F. Universal Waste Aerosol Cans.  A large quantity handler of universal waste shall manage universal waste aerosol cans in accordance with the requirements established for small quantity handlers in Regulation .16-1 of this chapter.

#### Regulation .21 Large Quantity Handlers of Universal Waste — General Management Standards.

*COMAR 26.13.10.21*

A. Labeling and Marking. A large quantity handler of universal waste shall comply with the requirements established for small quantity handlers of universal waste in Regulation .17A of this chapter.

B. Accumulation Time Limits. A large quantity handler of universal waste shall comply with the requirements established for small quantity handlers of universal waste in Regulation .17B of this chapter.

C. Employee Training. A large quantity handler of universal waste shall ensure that all employees are thoroughly familiar with proper waste handling and emergency procedures pertinent to the employees' responsibilities during normal facility operations and emergencies.

D. Response to Releases. In the event of a release of universal waste or the release of any residues from universal waste, a large quantity handler of universal waste shall comply with the requirements established for small quantity handlers of universal waste in Regulation .17D of this chapter.

E. Off-Site Shipments. A large quantity handler of universal waste shall comply with the requirements established for small quantity handlers of universal waste in Regulation .18A of this chapter.

F. Tracking Universal Waste Shipments.

  (1) Receipt of Shipments.

    (a) A large quantity handler of universal waste shall keep a record of each shipment of universal waste received at the facility.

    (b) The record required by §F(1)(a) of this regulation may take the form of a log, invoice, manifest, bill of lading, movement document, or other shipping document.

    (c) The handler shall ensure that the record required by §F(1)(a) of this regulation includes the following information:

      (i) The name and address of the originating universal waste handler or shipper from outside the United States from whom the universal waste was sent;

      (ii) The quantity of each type of universal waste received, for example, the quantities of batteries and thermostats received; and

      (iii) The date of receipt of the shipment of universal waste.

  (2) Shipments Off-Site.

    (a) A large quantity handler of universal waste shall keep a record of each shipment of universal waste sent from the handler to other facilities.

    (b) The record required by §F(2)(a) of this regulation may take the form of a log, invoice, manifest, bill of lading, movement document, or other shipping document.

    (c) The handler shall ensure that the record required by §F(2)(a) of this regulation includes the following information:

      (i) The name and address of the universal waste handler, destination facility, or destination outside the United States to which the universal waste was sent;

      (ii) The quantity of each type of universal waste, such as batteries and thermostats, sent; and

      (iii) The date the shipment of universal waste left the handler's facility.

  (3) Record Retention. A large quantity handler of universal waste shall retain the records:

    (a) Required by §F(1) of this regulation for a given shipment of universal waste for at least 3 years from the date of receipt of the shipment of universal waste; and

    (b) Required by §F(2) of this regulation for a given shipment of universal waste for at least 3 years from the date the shipment of universal waste left the handler's facility.

G. Exports. A large quantity handler of universal waste shall comply with the requirements established for small quantity handlers of universal waste in Regulation .18C of this chapter.

#### Regulation .22 Standards for Universal Waste Transporters.

*COMAR 26.13.10.22*

A. Applicability. This regulation applies to universal waste transporters as defined in COMAR 26.13.01.03B.

B. Prohibitions. A universal waste transporter:

  (1) May not dispose of universal waste; and

  (2) Except as provided in §E of this regulation, may not dilute or treat universal waste.

C. Waste Management.

  (1) For any universal waste that meets the definition of hazardous material in 49 CFR §171.8, or that meets the criteria for one or more hazard classes specified in 49 CFR §173.2, a universal waste transporter shall comply with all applicable U.S. Department of Transportation regulations in 49 CFR 171—180.

  (2) Because shipments of universal waste are not required to be accompanied by a hazardous waste manifest:

    (a) Universal waste is not considered hazardous waste for purposes of U.S. Department of Transportation regulations; and

    (b) A person may not:

      (i) Describe universal waste by the U.S. Department of Transportation proper shipping name “hazardous waste, (l) or (s), n.o.s.”; and

      (ii) Modify the hazardous material's proper shipping name by adding the word “waste”.

D. Storage Time Limits.

  (1) A universal waste transporter may not store a given item of universal waste at a universal waste transfer facility for more than 10 days.

  (2) If a universal waste transporter stores a given item of universal waste for more than 10 days, the transporter:

    (a) Becomes a universal waste handler; and

    (b) Shall comply with the applicable requirements of Regulations .11—.21 of this chapter while storing the universal waste.

E. Response to Releases. A universal waste transporter shall:

  (1) Immediately contain all releases of universal wastes and other residues from universal wastes; and

  (2) Determine whether any material resulting from a release associated with the management of universal waste is hazardous waste, and if it is, manage the hazardous waste in compliance with all applicable requirements of COMAR 26.13.01—26.13.10.

F. Off-Site Shipments.

  (1) A universal waste transporter may not transport the universal waste to a place other than a universal waste handler, a destination facility, or a foreign destination.

  (2) If a universal waste being shipped off-site meets the U.S. Department of Transportation's definition of hazardous materials under 49 CFR §171.8, the transporter shall ensure that the shipment is properly described on a shipping paper in accordance with the applicable U.S. Department of Transportation regulations under 49 CFR 172.

G. Exports. A universal waste transporter transporting a shipment of universal waste to a foreign destination is subject to the requirements of 40 CFR Part 262, Subpart H.

#### Regulation .23 Standards for Destination Facilities.

*COMAR 26.13.10.23*

A. Applicability.

  (1) The owner or operator of a destination facility as defined in COMAR 26.13.01.03B is subject to all applicable requirements of COMAR 26.13.05—26.13.10, and the notification requirement under §3010 of RCRA.

  (2) The owner or operator of a destination facility that recycles a particular universal waste without storing that universal waste before it is recycled, shall comply with COMAR 26.13.02.06C(2).

B. Off-Site Shipments.

  (1) The owner or operator of a destination facility may not send or take universal waste to a place other than a universal waste handler, another destination facility, or a destination outside the United States.

  (2) Rejection of Shipments.

    (a) The owner or operator of a destination facility may reject a shipment containing universal waste, or a portion of a shipment containing universal waste.

    (b) If the owner or operator of a destination facility rejects a shipment or a portion of a shipment, the owner or operator shall:

      (i) Contact the shipper to notify the shipper of the rejection and to discuss reshipment of the load; and

      (ii) Either send the shipment back to the original shipper or, if agreed to by both the shipper and the owner or operator of the destination facility, send the shipment to another destination facility.

  (3) If the owner or operator of a destination facility receives a shipment containing hazardous waste that is not a universal waste, and the facility does not have a permit to accept that hazardous waste, the owner or operator of the destination facility shall:

    (a) Immediately notify the Department of the illegal shipment;

    (b) Provide, as part of the notification required by §B(3)(a) of this regulation, the name, address, and phone number of the shipper; and

    (c) Obtain instructions for managing the hazardous waste from the Department and manage the waste in accordance with those instructions.

  (4) If the owner or operator of a destination facility receives a shipment of nonhazardous, nonuniversal waste, the owner or operator may manage the waste in any way that is in compliance with applicable federal, State, and local solid waste regulations.

C. Tracking Universal Waste Shipments.

  (1) Receipt of Shipments.

    (a) The owner or operator of a destination facility shall keep a record of each shipment of universal waste received at the facility.

    (b) The record required by §C(1)(a) of this regulation may be a log, invoice, manifest, bill of lading, movement document, or other shipping document.

    (c) The owner or operator of a destination facility shall ensure that the record required by §C(1)(a) of this regulation includes the following information:

      (i) The name and address of the universal waste handler, destination facility, or shipper outside the United States from whom the universal waste was sent;

      (ii) The quantity of each type of universal waste, such as batteries and thermostats, received; and

      (iii) The date of receipt of the shipment of universal waste.

  (2) Record Retention. The owner or operator of a destination facility shall retain the records required by §C(1) of this regulation for a given shipment of universal waste for at least 3 years from the date of receipt of the shipment of universal waste.

#### Regulation .24 Universal Waste — Import Requirements.

*COMAR 26.13.10.24*

A. Applicability.

  (1) This regulation establishes requirements for persons managing universal waste that is imported from a country outside the United States into the United States.

  (2) The requirements of this regulation apply immediately after the universal waste enters the United States.

  (3) A person subject to this regulation is subject to the requirements of 40 CFR Part 262, Subpart H, and the applicable requirements of §B of this regulation.

B. For the management of universal waste that is imported into the United States:

  (1) A universal waste transporter is subject to the universal waste transporter requirements of Regulation .22 of this chapter;

  (2) A universal waste handler is subject to the following requirements, depending upon whether the handler is classified as a small quantity handler of universal waste or a large quantity handler of universal waste:

    (a) Small quantity handlers of universal waste are subject to the requirements of Regulations .11—.18 of this chapter; and

    (b) Large quantity handlers of universal waste are subject to the requirements of Regulations .19—.21 of this chapter; and

  (3) An owner or operator of a destination facility is subject to the requirements of Regulation .23 of this chapter.

#### Regulation .25 Petitions to Include Other Wastes as Universal Wastes.

*COMAR 26.13.10.25*

A. General Requirements.

  (1) Except as provided in §C of this regulation, a person seeking to add a hazardous waste or a category of hazardous waste to the universal waste regulations of Regulations .06—.25 of this chapter may petition for a regulatory amendment under this regulation and COMAR 26.13.01.04A and J.

  (2) General requirements relating to these petitions are established in COMAR 26.13.01.04J.

B. Evaluative Factors for Petitions to Include Other Wastes as Universal Wastes. In considering whether to grant or deny a petition to add a hazardous waste or a category of hazardous waste to the universal waste regulations of Regulations .06—.25 of this chapter, the Secretary shall consider:

  (1) The extent to which:

    (a) The waste or category of waste, as generated by a large variety of generators, is listed as a hazardous waste in COMAR 26.13.02.15—.19;

    (b) A proportion of the waste stream as generated by a large variety of generators, if not listed as a hazardous waste in COMAR 26.13.02.15.19, exhibits one or more of the characteristics of hazardous waste identified in COMAR 26.13.02.10.14;

    (c) The waste or category of waste is:

      (i) Not exclusive to a specific industry or group of industries; and

      (ii) Commonly generated by a wide variety of types of establishments, including, for example, households, retail and commercial businesses, office complexes, Maryland-defined small quantity generators, small businesses, government organizations, and large industrial facilities;

    (d) The waste or category of waste is:

      (i) Generated by a large number of generators; and

      (ii) Frequently generated in relatively small quantities by each generator;

    (e) Systems to be used for collecting the waste or category of waste, including packaging, marking, and labeling practices, would ensure close stewardship of the waste;

    (f) The risk posed by the waste or category of waste during accumulation and transport is relatively low compared to other hazardous wastes;

    (g) Specific management standards proposed or referenced by the petitioner, such as waste management requirements appropriate to be added to Regulations .12—.16 of this chapter, Regulation .20 of this chapter, Regulation .22C of this chapter, or applicable U.S. Department of Transportation requirements, would be protective of human health and the environment during accumulation and transport;

    (h) Regulation of the waste or category of waste under Regulations .06—.24 of this chapter will increase the likelihood that the waste will be diverted from nonhazardous waste management systems, such as the municipal waste stream, nonhazardous industrial or commercial waste stream, municipal sewer or stormwater systems, to recycling, treatment, or disposal in compliance with Subtitle C of RCRA; and

    (i) Regulation of the waste or category of waste under Regulations .06—.24 of this chapter will improve implementation of and compliance with the hazardous waste regulatory program; and

  (2) Any factors in addition to those identified in §B(1) of this regulation that may be appropriate.

C. Hazardous waste pharmaceuticals are regulated by Regulations .32—.49 of this chapter and may not be added to the universal waste regulations of Regulations .06—.25 of this chapter as a category of universal waste.

#### Regulation .26 Special Requirements for Fluorescent Lamps.

*COMAR 26.13.10.26*

A. Applicability. This regulation applies to fluorescent lamps that exhibit the toxicity characteristic of COMAR 26.13.02.14 and that are:

  (1) Generated by small quantity generators, that is, persons that generate and accumulate hazardous waste in amounts less than those identified in COMAR 26.13.02.05A, C, and D(3); or

  (2) Household waste, as defined in COMAR 26.13.02.04-1B.

B. Disposition of Waste Fluorescent Lamps.

  (1) A person that generates, in a calendar year, more than 200 kilograms of waste fluorescent lamps meeting the criteria of §A of this regulation shall assure that the waste lamps are delivered to a:

    (a) Reclamation facility, as defined in §C of this regulation; or

    (b) Destination facility, as defined in COMAR 26.13.01.03B.

  (2) For the purposes of §B(1) of this regulation, waste fluorescent lamps include lamps that are to be disposed and lamps that are to be recycled.

  (3) Unless otherwise provided under federal or State law:

    (a) An owner or operator of an industrial or commercial property may assign the responsibility for ensuring compliance with the requirements of §B(1) of this regulation to a tenant who is otherwise responsible for maintaining the property through a written agreement with the tenant; and

    (b) If a tenant is responsible for assuring compliance under §B(3)(a) of this regulation and fails to do so, the owner of the property is not liable for the failure to comply.

Agency note: 200 kilograms represents, for example, approximately 720 4-foot T12 fluorescent lamps.

C. For the purposes of this regulation, “reclamation facility” means a site:

  (1) Where equipment is used to recapture mercury from mercury-added fluorescent lamps for the purpose of recycling or reusing the mercury; or

  (2) That collects mercury containing components from mercury-added fluorescent lamps for the eventual recapture and recycling or reuse of the mercury.

#### Regulation .27 Military Munitions.

*COMAR 26.13.10.27*

A. Applicability.

  (1) This regulation and Regulations .28—.31 of this chapter specify the:

    (a) Circumstances under which military munitions become a solid waste; and

    (b) Management standards that apply if a military munition is a hazardous waste under this regulation, Regulations .28—.31 of this chapter, or COMAR 26.13.02.

  (2) Unless otherwise specified in this regulation or Regulations .28—.31 of this chapter, all applicable requirements in COMAR 26.13.01—26.13.07 and 26.13.10.01 —.04 apply to waste military munitions.

B. Definition of Military Munitions as Solid Waste.

  (1) A military munition is not a solid waste when:

    (a) Used for its intended purpose, including:

      (i) Use in training military personnel or explosives and munitions emergency response specialists, including training in proper destruction of unused propellant or other munitions;

      (ii) Use in research, development, testing, and evaluation of military munitions, weapons, or weapons systems; or

      (iii) Recovery, collection, and on-range destruction of conventional unexploded ordnance, munitions, and munitions fragments during range clearance activities at active or inactive ranges; or

    (b) An unused munition, or component of it, is being repaired, reused, recycled, reclaimed, disassembled, reconfigured, or otherwise subjected to material recovery activities, and none of these activities involve:

      (i) Disposal as defined in COMAR 26.13.02.02C(1); or

      (ii) Burning for energy recovery as defined in COMAR 26.13.02.02C(2).

  (2) For the purposes of §B(1)(a) of this regulation, “used for its intended purpose” does not include the on-range disposal or burial of unexploded ordnance and contaminants when the burial is not a result of product use.

  (3) An unused military munition is a solid waste when any of the following occurs:

    (a) The munition is abandoned by being:

      (i) Disposed of;

      (ii) Burned;

      (iii) Detonated, except during intended use as specified in §B(1) of this regulation;

      (iv) Incinerated;

      (v) Treated; or

      (vi) Treated before disposal;

    (b) The munition is removed from storage in a military magazine or other storage area for the purpose of being:

      (i) Disposed of;

      (ii) Burned or incinerated;

      (iii) Treated; or

      (iv) Treated before disposal;

    (c) The integrity of the munition is compromised by cracks, leaks, or other damage or the munition is otherwise deteriorated or damaged, to the point that the munition cannot be:

      (i) Put into serviceable condition; or

      (ii) Reasonably recycled or used for other purposes; or

    (d) The munition has been declared a solid waste by an authorized military official.

  (4) A used or fired military munition is a solid waste:

    (a) When transported off-range, or from the site of use where the site of use is not a range, for the purposes of:

      (i) Disposal;

      (ii) Reclamation;

      (iii) Storage;

      (iv) Treatment; or

      (v) Treatment before disposal; or

    (b) If recovered, collected, and disposed of by burial or landfilling either on-range or off-range.

  (5) Used or Fired Military Munitions Landing Off-Range.

    (a) For the purposes of RCRA §1004(27), a used or fired military munition is a solid waste, and, therefore, if the munition lands off-range and is not promptly rendered safe, retrieved, or both, is potentially subject to:

      (i) RCRA corrective action authorities under RCRA §§3004(u) and (v) and 3008(h) and analogous State authorities; or

      (ii) Imminent and substantial endangerment authorities under RCRA §7003, or analogous State authorities.

    (b) A person who is responsible for causing a used or fired military munition to land off-range shall address any imminent and substantial threats associated with any remaining material from the munition.

    (c) If remedial action to address threats associated with the landing of a used or fired military munition off-range is infeasible, the operator of the range shall:

      (i) Maintain a record of the event for at least as long as any threat remains; and

      (ii) Include as part of the record of the event specific information on the type of munition and the location of the munition, to the extent the location is known.

#### Regulation .28 Standards Applicable to the Transport of Solid Waste Military Munitions.

*COMAR 26.13.10.28*

A. Scope and Applicability. This regulation:

  (1) Applies to the transport of military munitions by:

    (a) The military; and

    (b) Commercial carriers who are under contract with the military and have signed a contractual compliance agreement with the Military Traffic Management Command or its successor; and

  (2) Does not apply to the transport of waste military munitions by persons who are not required by the U.S. Department of Defense (DOD) to comply with DOD military munitions shipping controls.

B. Criteria for Hazardous Waste Regulation of Waste Nonchemical Military Munitions in Transportation.

  (1) Waste military munitions that are being transported and that exhibit a hazardous waste characteristic or are listed as a hazardous waste under COMAR 26.13.02 are listed or identified as a hazardous waste and are subject to COMAR 26.13.01—26.13.07 and 26.13.10.01—.04, unless all the following conditions are met:

    (a) The waste military munitions are not chemical agents or chemical munitions;

    (b) The waste military munitions are:

      (i) Required by the U.S. Department of Defense (DOD) to be transported in accordance with DOD shipping controls applicable to the transport of military munitions; and

      (ii) Transported in accordance with DOD shipping controls identified in §D of this regulation;

    (c) The waste military munitions are transported from an installation owned or operated by the military to a treatment, storage, disposal, or recycling facility owned or operated by the military;

    (d) The transporter of the waste military munitions provides oral notice to the Secretary within 24 hours from the time the transporter becomes aware of:

      (i) Any loss or theft of the waste military munitions; or

      (ii) Any failure to meet a requirement of §B(1) of this regulation that may endanger human health or the environment; and

    (e) The transporter of the waste military munitions provides a written submission to the Secretary:

      (i) Within 5 days from the time the transporter becomes aware of any loss or theft of the waste military munitions, or any failure to meet a requirement of §B(1) of this regulation; and

      (ii) Describing the circumstances associated with the events identified in §B(1)(e)(i) of this regulation.

  (2) If any waste military munitions shipped under §B(1) of this regulation are not received by the receiving facility within 45 days of the day the waste was shipped, the owner or operator of the receiving facility shall report this nonreceipt to the Secretary within 5 days.

  (3) The exemption in §B(1) of this regulation from regulation as hazardous waste:

    (a) Applies only to the transportation of nonchemical waste military munitions; and

    (b) Does not affect the regulatory status of waste military munitions as hazardous waste with regard to storage, treatment, or disposal.

  (4) The conditional exemption in §B(1) of this regulation applies only as long as all the conditions in §B(1) of this regulation are met.

C. Reinstatement of Exemption.

  (1) If any waste military munition loses its exemption under §B(1) of this regulation, a person responsible for managing the munition may file an application with the Secretary for reinstatement of the exemption from hazardous waste transport regulation with respect to the waste military munition as soon as the waste military munition is returned to compliance with the conditions of §B(1) of this regulation.

  (2) If the Secretary finds that reinstatement of the exemption is appropriate based on factors such as the transporter's provision of a satisfactory explanation of the circumstances of the violation, or a demonstration that the violations are not likely to recur, the Secretary may reinstate the exemption under §B(1) of this regulation.

  (3) If the Secretary does not take action on the reinstatement application within 60 days after receipt of the application, then reinstatement shall be considered to have been granted, retroactive to the date of the application.

  (4) The Secretary may terminate a reinstatement of a conditional exemption that occurred by default under §C(3) of this regulation, if the Secretary finds that reinstatement is inappropriate based on factors such as the transporter's failure to provide a satisfactory explanation of the circumstances of the violation or a failure to demonstrate that the violations are not likely to recur.

  (5) In reinstating the exemption under §B(1) of this regulation, the Secretary may specify additional conditions as are necessary to ensure and document proper transportation to protect human health and the environment.

D. Department of Defense Shipping Controls—Definition and Amendments.

  (1) The Department of Defense shipping controls referred to in §B(1)(b) of this regulation are the following, as constituted on November 8, 1995, except as provided in §D(2) of this regulation:

    (a) For military transporters:

      (i) DD Form 626, “Motor Vehicle Inspection (Transporting Hazardous Materials)”;

      (ii) DD Form 836, “Dangerous Goods Shipping Papers/Declaration and Emergency Response Information for Hazardous Materials Transported by Government Vehicles”;

      (iii) DD Form 1348-1A, “Issue Release/Receipt Document”; and

      (iv) DD Form 1907, “Signature and Tally Record”; and

    (b) For commercial carriers who are under contract with the military and have signed a contractual compliance agreement with the Military Traffic Management Command or its successor:

      (i) GSA Form 1103, “U.S. Government Bill of Lading”;

      (ii) DD Form 626, “Motor Vehicle Inspection (Transporting Hazardous Materials)”; and

      (iii) DD Form 1907, “Signature and Tally Record”.

  (2) For the purposes of §B(1)(b) of this regulation, a person shall adhere to the Department of Defense shipping controls identified in §D(1) of this regulation as amended by the Department of Defense, with the effective date of an amendment being the date the Department of Defense publishes notice in the Federal Register that the shipping control has been amended.

#### Regulation .29 Standards Applicable to Emergency Responses.

*COMAR 26.13.10.29*

A. The following requirements are applicable to explosives and munitions emergencies involving military munitions or explosives: COMAR 26.13.03.01J, 26.13.04.01A(4), 26.13.05.01A(3)(h) and D(5)—(6), 26.13.06.01A(4)(h) and (5), and 26.13.07.01A.

B. If not exempted under the regulations cited in §A of this regulation, explosives and munitions emergencies involving military munitions or explosives may be subject to COMAR 26.13.07.14, which concerns emergency permits.

#### Regulation .30 Standards Applicable to the Storage of Solid Waste Military Munitions.

*COMAR 26.13.10.30*

A. Criteria for Hazardous Waste Regulation of Waste Nonchemical Military Munitions in Storage.

  (1) A waste military munition in storage that exhibits a characteristic of hazardous waste or is listed as hazardous waste under COMAR 26.13.02 is listed or identified as a hazardous waste and is subject to COMAR 26.13.01—26.13.10, unless all the following conditions are met:

    (a) The waste military munition is not a chemical agent or chemical munition;

    (b) The waste military munition is subject to the jurisdiction of the Department of Defense Explosives Safety Board (DDESB) or its successor agency;

    (c) The waste military munition is stored in accordance with DDESB storage standards applicable to waste military munitions, as identified in §E of this regulation;

    (d) The owner of the munition assures that access to the stored waste military munitions is limited to appropriately trained and authorized personnel; and

    (e) The owner or operator of the storage unit in which the waste military munition is being managed:

      (i) Notifies the Secretary, in writing, of the location of the waste storage unit by January 26, 2009, or within 90 days of when the storage unit is first used to store waste military munitions, whichever is later;

      (ii) Provides oral notice to the Secretary within 24 hours from the time the owner or operator becomes aware of any loss or theft of the waste military munitions or any failure to meet a condition of §A(1) of this regulation that may endanger human health or the environment;

      (iii) Provides a written submission to the Secretary within 5 days from the time the owner or operator becomes aware of any loss or theft of the waste military munitions, or any failure to meet a condition of §A(1) of this regulation, describing the circumstances of the incident;

      (iv) Conducts an inventory of the waste military munitions at least once each calendar year, with no more than 365 days elapsing between inventory dates;

      (v) Inspects the waste military munitions at least once per quarter for compliance with the conditions of §A(1) of this regulation; and

      (vi) Maintains records of the findings of the inventories and inspections required by §A(1)(e)(iv) and (v) of this regulation for at least 3 years.

  (2) The conditional exemption in §A(1) of this regulation from regulation as hazardous waste:

    (a) Applies only to the storage of nonchemical waste military munitions; and

    (b) Does not affect the regulatory status of waste military munitions as hazardous waste with regard to transportation, treatment, or disposal.

  (3) The conditional exemption in §A(1) of this regulation applies only as long as all of the conditions in §A(1) of this regulation are met.

B. Notice of Termination of Waste Storage. The owner or operator shall notify the Secretary in writing when a storage unit identified in §A(1)(e)(i) of this regulation will no longer be used to store waste military munitions.

C. Reinstatement of Conditional Exemption.

  (1) If any waste military munition loses its conditional exemption from hazardous waste storage regulations under §A(1) of this regulation, the owner or operator of the unit in which the waste is being stored may file an application with the Secretary for reinstatement of the conditional exemption.

  (2) The owner or operator may file the application for reinstatement of the conditional exemption under §C(1) of this regulation as soon as the waste military munition is returned to compliance with the conditions of §A(1) of this regulation.

  (3) If the Secretary finds that reinstatement of the conditional exemption is appropriate based on factors such as the owner's or operator's provision of a satisfactory explanation of the circumstances of the violation, or a demonstration that the violations are not likely to recur, the Secretary may reinstate the conditional exemption under §A(1) of this regulation.

  (4) If the Secretary does not take action on the reinstatement application within 60 days after receipt of the application, then reinstatement is considered to have been granted, retroactive to the date of the application.

  (5) The Secretary may terminate the reinstatement of a conditional exemption that occurred by default under §C(4) of this regulation, if the Secretary finds that reinstatement is inappropriate based on factors such as the owner's or operator's failure to provide a satisfactory explanation of the circumstances of the violation or a failure to demonstrate that the violations are not likely to recur.

  (6) In reinstating the exemption under §A(1) of this regulation, the Secretary may specify additional conditions as are necessary to ensure and document proper storage to protect human health and the environment.

D. Waste Chemical Munitions.

  (1) Waste military munitions that are chemical agents or chemical munitions and that exhibit a hazardous waste characteristic or are listed as hazardous waste under COMAR 26.13.02 are listed or identified as a hazardous waste and are subject to the applicable regulatory requirements of COMAR 26.13.

  (2) Waste military munitions that are chemical agents or chemical munitions and that exhibit a hazardous waste characteristic or are listed as a hazardous waste under COMAR 26.13.02 are not subject to the storage prohibition in RCRA §3004(j), codified at 40 CFR §268.50.

E. Department of Defense Explosive Safety Board (DDESB) Standards—Applicability and Amendments.

  (1) The DDESB storage standards applicable to waste military munitions referenced in §A(1)(c) of this regulation are DOD 6055.9-STD, “DOD Ammunition and Explosives Safety Standards” as adopted by the DDESB effective October 5, 2004, except as provided in §E(2) of this regulation.

  (2) For the purposes of §A(1)(c) of this regulation, “DDESB storage standards applicable to waste military munitions” become an amended version of the standards referenced in §E(1) of this regulation on the date the Department of Defense publishes notice in the Federal Register that the DDESB standard has been amended.

#### Regulation .31 Standards Applicable to the Treatment and Disposal of Waste Military Munitions.

*COMAR 26.13.10.31*

The treatment and disposal of hazardous waste military munitions are subject to the applicable permitting, procedural, and technical standards in COMAR 26.13.01— 26.13.10.

#### Regulation .32 Hazardous Waste Pharmaceuticals — General Provisions.

*COMAR 26.13.10.32*

A. Scope. This regulation and Regulations .33—.49 of this chapter:

  (1) Establish requirements for the management of hazardous waste pharmaceuticals by healthcare facilities and reverse distributors; and

  (2) Identify certain pharmaceuticals that are excluded from regulation  under COMAR 26.13.01—.10.

B. Defined Terms. The following terms used in this regulation and Regulations .33—.49 of this chapter have the meaning stated in COMAR 26.13.01.03B:

  (1) “Evaluated hazardous waste pharmaceutical”;

  (2) “Hazardous waste pharmaceutical”;

  (3) “Healthcare facility”;

  (4) “Household waste pharmaceutical”;

  (5) “Long-term care facility”;

  (6) “Non-creditable hazardous waste pharmaceutical”;

  (7) “Non-hazardous waste pharmaceutical”;

  (8) “Non-pharmaceutical hazardous waste”;

  (9) “Pharmaceutical”;

  (10) “Potentially creditable hazardous waste pharmaceutical”; and

  (11) “Reverse distributor”.

C. Excluded Materials and Wastes.

  (1) Except as specified in this section, the following pharmaceuticals are not subject to regulation under COMAR 26.13.01—26.13.10:

    (a) A pharmaceutical that is not a solid waste, as defined in COMAR 26.13.02.02, because the pharmaceutical is to be:

      (i) Reclaimed; or

      (ii) Legitimately used or legitimately reused, such as by being lawfully donated for use for the pharmaceutical’s intended purpose;

    (b) An over-the-counter pharmaceutical, a dietary supplement, or a homeopathic drug that is not a solid waste, as defined in COMAR 26.13.02.02, because:

      (i) The material is going to be reclaimed; or

      (ii) There is a reasonable expectation that the material will be legitimately used or legitimately reused, such as by being lawfully redistributed for use for its intended purpose;

    (c) A pharmaceutical that is being managed in accordance with a recall strategy that has been approved by the U.S. Food and Drug Administration (FDA) in accordance with 21 CFR Part 7, Subpart C, except that this regulation and Regulations .33—.49 of this chapter apply to the management of the recalled hazardous waste pharmaceutical after the FDA approves the destruction of the recalled pharmaceutical;

    (d) A pharmaceutical that is being managed in accordance with a recall corrective action plan that has been accepted by the U.S. Consumer Product Safety Commission (CPSC) in accordance with 16 CFR Part 1115, except that this regulation and Regulations .33—.49 of this chapter apply to the management of the recalled hazardous waste pharmaceutical after the CPSC approves the destruction of the recalled pharmaceutical;

    (e) A pharmaceutical that is being stored during an investigation, during a judicial proceeding, or according to a preservation order until either:

      (i) The investigation, judicial proceeding, or preservation order has concluded, and a decision is made to discard the pharmaceutical; or

      (ii) A decision is made to discard the pharmaceutical before the investigation, judicial proceeding, or preservation order has concluded;

    (f) An investigational new drug for which an investigational new drug application is in effect in accordance with the FDA’s regulations in 21 CFR Part 312, except that this regulation and Regulations .33—.49 of this chapter apply to the management of the drug if:

      (i) The drug, if discarded, would meet the definition of hazardous waste; and

      (ii) A decision has been made to discard the investigational new drug, or the FDA has approved the destruction of the investigational new drug; and

    (g) A household waste pharmaceutical, including a household waste pharmaceutical that has been collected by an authorized collector as defined by the U.S. Drug Enforcement Administration if the authorized collector complies with the conditional exemption in Regulations .34A(2) and B of this chapter.

  (2) The residue of a hazardous waste pharmaceutical that remains in a stock container, dispensing container, unit dose container, syringe, or intravenous bag that is empty according to the criteria in Regulation .35 of this chapter is not regulated as hazardous waste.

D. Excluded Facilities.

  (1) A healthcare facility that is a very small quantity generator under federal regulations, as described in COMAR 26.13.03.01-1B, when counting all of the hazardous waste it generates in a calendar month, including both hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste:

    (a) Is subject to:

      (i) Regulation .33 of this chapter, which prohibits the discharge of hazardous waste pharmaceuticals to sewer systems that discharge to publicly owned treatment works; and

      (ii) Regulation .35 of this chapter, which concerns residues of hazardous waste pharmaceuticals in empty containers;

    (b) Has the option of complying with the requirements of §E(3) of this regulation for the management of the facility’s hazardous waste pharmaceuticals, as an alternative to managing the hazardous waste pharmaceuticals in accordance with COMAR 26.13.02.05 and the optional provisions of Regulation .36 of this chapter;

    (c) Unless the facility voluntarily elects to manage hazardous waste pharmaceuticals in accordance with the regulations specified in §E(3) of this regulation:

      (i) Shall manage the hazardous waste pharmaceuticals it generates in accordance with COMAR 26.13.02.05;

      (ii) May comply with the optional provisions of Regulation .36 of this chapter; and

      (iii) Is not subject to the requirements of §E(3) of this regulation; and

    (d) Shall manage the non-pharmaceutical hazardous waste it generates in accordance with:

      (i) COMAR 26.13.03 if the amount of non-pharmaceutical hazardous waste accumulated by the facility prevents the facility from being classified as a Maryland-defined small quantity generator, as specified in COMAR 26.13.03.01A-3(1); or

      (ii) COMAR 26.13.02.05 if the amount of non-pharmaceutical hazardous waste accumulated by the facility allows the facility to be classified as a Maryland-defined small quantity generator.

  (2) A long-term care facility with 20 beds or fewer:

    (a) Is presumed to be a very small quantity generator under federal regulations with respect to all of the hazardous waste it generates in a calendar month, including both hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste, unless the Department is able to demonstrate otherwise; and

    (b) Shall comply with §D(1) of this regulation unless the Department demonstrates that the facility does not qualify as a very small quantity generator under federal regulations, taking into account both hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste, in which case the facility shall comply with the requirements of §§E(3) and E(4) of this regulation.

E. Applicability — Healthcare Facilities and Management of Hazardous Waste Pharmaceuticals.

  (1) Based on the criteria specified in COMAR 26.13.03.01-1B, a healthcare facility is subject to the requirements specified in §E(3) of this regulation if, in a calendar month:

    (a) The facility:

      (i) Meets the criteria to be classified as a federally-defined large quantity generator or a federally-defined small quantity generator based on the amount of non-pharmaceutical hazardous waste generated in a calendar month; and

      (ii) Generates any quantity of hazardous waste pharmaceuticals;

    (b) The facility:

      (i) Meets the criteria to be classified as a very small quantity generator under federal regulations, counting only the non-pharmaceutical hazardous waste generated by the facility; and

      (ii) Generates a quantity of hazardous waste pharmaceuticals that exceeds the criteria to be classified as a very small quantity generator under federal regulations, taking into account only the hazardous waste pharmaceuticals generated by the facility; or

    (c) The total amount of hazardous waste that the facility generates, including both hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste, exceeds the criteria to be classified as a very small quantity generator under federal regulations.

  (2) §F of this regulation provides a summary, in a tabular format, of the criteria specified in §E(1) of this regulation.

  (3) A healthcare facility identified in §E(1) of this regulation is subject to the following instead of COMAR 26.13.02—26.13.06 in managing hazardous waste pharmaceuticals:

    (a) Regulations .33—.35, .37—.45, and .47 of this chapter with respect to the management of:

      (i) Non-creditable hazardous waste pharmaceuticals; and

      (ii) Potentially creditable hazardous waste pharmaceuticals if they are not destined for a reverse distributor; and

    (b) Regulations .33—.35, .37, .38, .46, and .48 of this chapter with respect to the management of potentially creditable hazardous waste pharmaceuticals that are prescription pharmaceuticals and are destined for a reverse distributor.

  (4) A healthcare facility shall manage its non-pharmaceutical hazardous waste in accordance with all applicable requirements of COMAR 26.13.01—26.13.10 based on whether the facility is a fully regulated generator or a Maryland-defined small quantity generator, as defined in COMAR 26.13.01.03B, taking into account the total amount of hazardous waste generated and accumulated, including both pharmaceutical hazardous waste and non-pharmaceutical hazardous waste.

F. Summary Table — Applicability to Healthcare Facilities.

  (1) Table 1 of §F(3) of this regulation:

    (a) Summarizes, for most generators, the criteria on the amount of hazardous waste generated in a calendar month that determine whether a healthcare facility is subject to the requirements specified in §E(3) of this regulation; and

    (b) Identifies the federal hazardous waste generator category that applies to the facility.

  (2) If a healthcare facility also generates any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in COMAR 26.13.02.16 or COMAR 26.13.02.19E, the facility shall also consider that waste in determining the facility’s federal generator category for the purposes of §E(1) of this regulation, based on the criteria in COMAR 26.13.03.01-1B.

  (3) Table 1.

Agency Note: In Table 1 of §F(3) of this regulation, “<” means less than; “≤” means less than or equal, “>” means greater than, and “≥” means greater than or equal.

G. Applicability — Reverse Distributors. A reverse distributor:

  (1) Is subject to Regulations .33—.35 and .47—.49 of this chapter instead of COMAR 26.13.03—26.13.06 with respect to the management of hazardous waste pharmaceuticals; and

  (2) Shall manage its non-pharmaceutical hazardous waste in accordance with all applicable requirements of COMAR 26.13.01—26.13.10.

H. Applicability — Other Entities.  An entity other than a healthcare facility or a reverse distributor that generates or manages a hazardous waste pharmaceutical, such as a pharmaceutical manufacturer or a reverse logistics center:

  (1) Is not subject to Regulations .33—.49 of this chapter; and

  (2) Shall manage the hazardous waste pharmaceutical in accordance with the applicable requirements of COMAR 26.13.03.

#### Regulation .33 Prohibition on Sewer Disposal of Hazardous Waste Pharmaceuticals.

*COMAR 26.13.10.33*

A. This regulation applies to:

  (1) A healthcare facility that meets any of the following criteria:

    (a) The facility is managing hazardous waste pharmaceuticals under the provisions of COMAR 26.13.02.05, as provided in Regulation .32D(1)(c)(i) of this chapter;

    (b) The facility is voluntarily complying with the requirements of Regulations .37—.48 of this chapter, in accordance with Regulation .37A(2) of this chapter; or

    (c) The facility is subject to Regulations .37—.48 of this chapter; and

  (2) A reverse distributor.

B. A facility identified in §A of this regulation may not discharge a hazardous waste pharmaceutical to a sewer system that passes through to a publicly owned treatment works (POTW).

C. Healthcare facilities and reverse distributors remain subject to the prohibitions in 40 CFR §403.5(b), which prohibits introduction of specified pollutants into a POTW.

#### Regulation .34 Conditional Exemption — Controlled Substances and Household Waste Pharmaceuticals.

*COMAR 26.13.10.34*

A. If the conditions of §B of this regulation are met, the following are exempt from the requirements of COMAR 26.13.03—26.13.10:

  (1) A hazardous waste pharmaceutical that is also listed on a schedule of controlled substances by the Drug Enforcement Administration in 21 CFR Part 1308; and

  (2) A household waste pharmaceutical that is collected in a take-back event or program, including, but not limited to, a household waste pharmaceutical that is:

    (a) Collected by an authorized collector, as defined by the Drug Enforcement Administration, who is registered with the Drug Enforcement Administration; and

    (b) Commingled by the authorized collector with controlled substances from an ultimate user as defined by the Drug Enforcement Administration.

B. Conditions for Exemption. The exemption of §A of this regulation applies if a waste pharmaceutical identified in §A of this regulation is:

  (1) Managed in compliance with the sewer prohibition of Regulation .33 of this chapter;

  (2) Collected, stored, transported, and disposed of in compliance with all applicable Drug Enforcement Administration regulations for controlled substances; and

  (3) Either:

    (a) Destroyed by a method that the Drug Enforcement Administration has publicly deemed in writing to meet the Drug Enforcement Administration’s non-retrievable standard of destruction; or

    (b) Combusted at one of the facilities identified in 40 CFR §266.506(b)(3)(i)—(v).

#### Regulation .35 Residues of Hazardous Waste Pharmaceuticals in Empty Containers.

*COMAR 26.13.10.35*

A. This regulation establishes criteria under which a container that held a pharmaceutical is considered to be empty.

B. A container that is empty according to the criteria in this regulation is not regulated as hazardous waste unless the materials of construction of the container itself cause the container to meet the definition of hazardous waste.

C. Stock, Dispensing and Unit-dose Containers.

  (1) Except as provided in §C(2) of this regulation, the following containers are considered empty, and any residues remaining in the containers are not regulated as hazardous waste if the pharmaceuticals have been removed from the container using the practices commonly employed to remove materials from that type of container:

    (a) A stock bottle, dispensing bottle, vial, or ampule; and

    (b) A unit-dose container, such as a unit-dose packet, cup, wrapper, blister pack, or delivery device.

  (2) The criterion of §C(1) of this regulation does not apply to a stock bottle, dispensing bottle, vial, or ampule that exceeds 1 liter or has a capacity of more than 10,000 pills.

D. Syringes.

  (1) A syringe is considered empty and the residues are not regulated as hazardous waste if the contents of the syringe have been removed by fully depressing the plunger of the syringe.

  (2) At a healthcare facility that is operating under Regulations .32—.47 of this chapter, if a syringe is not empty, the generator of the waste shall place the syringe with its remaining hazardous waste pharmaceuticals into a container that is managed and disposed of:

    (a) As a noncreditable hazardous waste pharmaceutical under Regulations .33—.47 of this chapter; and

    (b) Any applicable federal, state, and local requirements for sharps containers and medical waste.

E. Intravenous (IV) Bags.

  (1) An IV bag is considered empty and the residues are not regulated as hazardous waste if:

    (a) The pharmaceuticals in the IV bag have been fully administered to a patient; or

    (b) The IV bag:

      (i) Held non-acute hazardous waste pharmaceuticals; and

      (ii) Is empty as defined in COMAR 26.13.02.07B(1).

  (2) At a healthcare facility that is operating under Regulations .32—.47 of this chapter, if an IV bag that is going to be discarded is not empty as specified in §E(1) of this regulation, the generator shall place the IV bag with its remaining hazardous waste pharmaceuticals into a container that is managed and disposed of as a noncreditable hazardous waste pharmaceutical under Regulations .33 — .47 of this chapter.

F. Other Containers, Including Delivery Devices.

  (1) This section applies to any type of container, including a delivery device, that:

    (a) Is not identified in §§C—E of this regulation;

    (b) Held or contains a pharmaceutical that would be regulated as hazardous waste if discarded; and

    (c) Is unused, partially administered or fully administered.

  (2) Examples of containers subject to this section include inhalers, aerosol cans, nebulizers, and tubes of ointments, gels, or creams.

  (3) Except as specified in §F(4) of this regulation, at a healthcare facility that is operating under Regulations .32—.47 of this chapter, the generator of a container identified in §F(1) of this regulation that is going to be discarded shall manage the container as a non-creditable hazardous waste pharmaceutical under Regulations .33—.47 of this chapter.

  (4) §F(3) of this regulation does not apply if the container that is going to be discarded:

    (a) Held non-acute hazardous waste pharmaceuticals; and

    (b) Is empty as defined in COMAR 26.13.02.07B(1) or B(2).

#### Regulation .36 Optional Provisions — Healthcare Facilities that Qualify as Very Small Quantity Generators.

*COMAR 26.13.10.36*

A. Applicability.

  (1) This regulation applies to a healthcare facility that:

    (a) Is a very small quantity generator under federal regulations, as described in COMAR 26.13.03.01-1B, when counting all of the hazardous waste it generates in a calendar month, including both hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste; and

    (b) Has not voluntarily elected to manage hazardous waste pharmaceuticals in accordance with the requirements of Regulations .37—.48 of this chapter, as provided in Regulation .37A(2) of this chapter.

  (2) The provisions of §B—D of this regulation may be used by a healthcare facility that meets the criteria of §A(1)(b) of this regulation.

B. A healthcare facility identified in §A of this regulation may send the healthcare facility’s potentially creditable pharmaceuticals to a reverse distributor.

C. Off-site Consolidation of Hazardous Waste Pharmaceuticals.  A healthcare facility identified in §A of this regulation may send a hazardous waste pharmaceutical it generates to an off-site location of another generator if:

  (1) The receiving site is a healthcare facility that is:

    (a) Located in Maryland and meets the conditions in:

      (i) Regulation .45 of this chapter, if a noncreditable hazardous waste pharmaceutical is being shipped; and

      (ii) Regulation .46B of this chapter, if a potentially creditable hazardous waste pharmaceutical is being shipped; or

    (b) Not located in Maryland and meets requirements that correspond to the requirements of §C(1)(a) of this regulation that are applicable in the state in which the receiving facility is located; or

  (2) The healthcare facility proposes to send the hazardous waste pharmaceutical off-site to a hazardous waste generator, and:

    (a) The healthcare facility meets the conditions in COMAR 26.13.02.05D(2)(h); and

    (b) The receiving hazardous waste generator meets the conditions in:

      (i) COMAR 26.13.03.03-11 if the generator is located in Maryland; or

      (ii) 40 CFR §262.17(f) or the corresponding requirements of the state in which the off-site generator is located if the generator is not located in Maryland.

D. Long-term Care Facilities.

  (1) Except as provided in §D(2) of this regulation, a long-term care facility that meets the conditions in §A of this regulation may dispose of a hazardous waste pharmaceutical in an on-site collection receptacle of an authorized collector, as defined by the Drug Enforcement Administration, that is registered with the Drug Enforcement Administration if the contents of the receptacle are collected, stored, transported, destroyed, and disposed of in compliance with all Drug Enforcement Administration regulations for controlled substances.

  (2) §D(1) of this regulation does not apply to contaminated personal protective equipment or clean-up materials.

#### Regulation .37 Standards for Healthcare Facilities Managing Hazardous Waste Pharmaceuticals — Applicability.

*COMAR 26.13.10.37*

A. This regulation and Regulations .38—.48 of this chapter apply to a healthcare facility that:

  (1) Meets the criteria specified in Regulation .32E(1) of this chapter or is identified in Regulation .32E(2) of this chapter as being subject to these requirements; or

  (2) Is identified in Regulation .32D(1) of this chapter and has voluntarily elected to comply with this regulation and Regulations .38—.48 of this chapter, as provided in Regulation .32D(1)(b) of this chapter.

B. A healthcare facility identified in §A of this regulation shall:

  (1) Manage the following in accordance with the provisions of Regulations .38—.45, and .47 of this chapter:

    (a) Non-creditable hazardous waste pharmaceuticals; and

    (b) Potentially creditable hazardous waste pharmaceuticals that are not destined for a reverse distributor; and

  (2) Manage potentially creditable hazardous waste pharmaceuticals that are destined for a reverse distributor in accordance with the provisions of Regulations .38, .46 and .48 of this chapter.

#### Regulation .38 Notification — Healthcare Facilities Managing Hazardous Waste Pharmaceuticals.

*COMAR 26.13.10.38*

A. This regulation establishes requirements for a facility identified in Regulation .37A of this chapter to notify the Department that the facility:

  (1) Is operating under the standards of this chapter relating to the management of hazardous waste pharmaceuticals; and

  (2) Will no longer be operating under the standards of this chapter relating to the management of hazardous waste pharmaceuticals.

B. Notification of Operation.

  (1) A healthcare facility shall notify the Department that the healthcare facility is operating under the standards of this chapter relating to the management of hazardous waste pharmaceuticals by:

    (a) Submitting an initial or revised Site Identification Form (EPA Form 8700-12) to the Department; and

    (b) Completing the questions on “Pharmaceutical Activities” in the “Additional Regulated Waste Activities” section of the Site Identification Form, checking the “yes” box on the form to indicate that the facility is operating under 40 CFR Part 266, Subpart P for the management of hazardous waste pharmaceuticals.

  (2) A healthcare facility submitting a notification under this section is not required to list waste codes for the facility’s hazardous waste pharmaceuticals in Box 10B of the Site Identification Form, but shall list waste codes in Box 10B for non-pharmaceutical hazardous wastes that are generated or managed at the facility.

  (3) A person that is the owner or operator of multiple sites or locations that are operating under the standards of this chapter relating to the management of hazardous waste pharmaceuticals shall submit a separate notification for each site or existing EPA identification number, except that a single notification is required for a location with multiple sites that are considered to be on the site of a single facility.

  (4) Deadlines for the Notification Required by §B(1) of this Regulation.

    (a) A healthcare facility that already has an EPA identification number shall make the notification:

      (i) As part of the healthcare facility’s next biennial report of hazardous waste activity, if the healthcare facility’s generator status under federal regulations is “large quantity generator”, or if federal regulations otherwise require the healthcare facility to submit a biennial report of hazardous waste activity; or

      (ii) If the healthcare facility does not meet the criteria of §B(4)(a)(i) of this regulation, within 60 days after the effective date of §B of this regulation, or within 60 days after the date the healthcare facility becomes subject to the standards of this chapter relating to the management of hazardous waste pharmaceuticals, whichever is later.

    (b) A healthcare facility that does not have an EPA identification number shall make the notification within 60 days after the effective date of §B of this regulation, or within 60 days after the date the healthcare facility becomes subject to the standards of this chapter relating to the management of hazardous waste pharmaceuticals, whichever is later.

  (5) A healthcare facility shall keep a copy of its notification on file for as long as the healthcare facility is operating under the standards of this chapter relating to the management of hazardous waste pharmaceuticals.

C. Notification of Withdrawal.

  (1) Applicability. This section applies to a healthcare facility that:

    (a) Either:

      (i) Had been required to manage hazardous waste pharmaceuticals in accordance with the regulations identified in Regulation .32E(3) of this chapter, but is no longer required to do so because the facility is now classified as a very small quantity generator under federal regulations, as described in COMAR 26.13.03.01-1B, when counting all of the hazardous waste it generates in a calendar month, including both hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste; and

      (ii) Will not be voluntarily complying with the requirements of Regulation .32E(3) of this chapter for the management of the facility’s hazardous waste pharmaceuticals, as an alternative to managing the hazardous waste pharmaceuticals in accordance with COMAR 26.13.02.05 and the optional provisions of Regulation .36 of this chapter; or

    (b) Had voluntarily elected to comply with the requirements of Regulation .32E(3) of this chapter for the management of the facility’s hazardous waste pharmaceuticals, but no longer will be doing so, and will instead be managing the hazardous waste pharmaceuticals in accordance with COMAR 26.13.02.05 and the optional provisions of Regulation .36 of this chapter.

  (2) A healthcare facility identified in §C(1) of this regulation shall:

    (a) Before beginning to manage hazardous waste pharmaceuticals in accordance with COMAR 26.13.02.05, notify the Department that the healthcare facility will no longer be operating under the standards of this chapter relating to the management of hazardous waste pharmaceuticals;

    (b) Make the notification required by §C(2)a) of this regulation by:

      (i) Submitting a Site Identification Form (EPA Form 8700-12) to the Department; and

      (ii) Completing the questions on “Pharmaceutical Activities” in the “Additional Regulated Waste Activities” section of the Site Identification Form, as directed in the instructions for the form; and

    (c) Keep a copy of its withdrawal notification on file for at least 3 years from the date of signature on the notification of withdrawal.

  (3) A healthcare facility submitting a notification under this section is not required to list waste codes for the facility’s hazardous waste pharmaceuticals in Box 10B of the Site Identification Form.

  (4) A person that is the owner or operator of multiple sites or locations that are required to submit notification under this section shall submit a separate notification of withdrawal for each affected site or existing EPA identification number, except that a single notification is required for a location with multiple sites that are considered to be on the site of a single facility.

#### Regulation .39 General Standards — Healthcare Facilities Managing Non-Creditable Hazardous Waste Pharmaceuticals.

*COMAR 26.13.10.39*

A. Training.  The owner or operator of a healthcare facility managing non-creditable hazardous waste pharmaceuticals shall ensure that all personnel that manage non-creditable hazardous waste pharmaceuticals are thoroughly familiar with proper waste handling and emergency procedures relevant to their responsibilities during normal facility operations and emergencies.

B. Hazardous Waste Determination.

  (1) A healthcare facility that generates a solid waste that is a non-creditable pharmaceutical shall determine whether that pharmaceutical is a hazardous waste pharmaceutical by determining whether the waste is listed as a hazardous waste in COMAR 26.13.02.15—.19, and whether the waste exhibits any of the characteristics of hazardous waste defined in COMAR 26.13.02.10—.14.

  (2) In determining whether a solid waste is a hazardous waste, a healthcare facility shall follow the procedures in COMAR 26.13.03.02-1.

  (3) A healthcare facility shall use the hazardous waste determination conducted in accordance with this section to determine the applicability of Regulations .32—.48 of this chapter to the waste, except that the healthcare facility may choose to manage its non-hazardous waste pharmaceuticals as non-creditable hazardous waste pharmaceuticals under Regulations .32—.48 of this chapter.

C. Land Disposal Restrictions.  A healthcare facility:

  (1) Shall ensure that the non-creditable hazardous waste pharmaceuticals generated by the facility are managed in accordance with the land disposal restrictions of 40 CFR Part 268, as incorporated by reference at COMAR 26.13.09.03A; and

D. Response to Spills.  A healthcare facility shall:

  (1) Immediately contain a spill of a non-creditable hazardous waste pharmaceutical; and

  (2) Manage spill cleanup materials as non-creditable hazardous waste pharmaceuticals in accordance with Regulations .32—.48 of this chapter.

#### Regulation .40 Container Standards — Healthcare Facilities Managing Non-Creditable Hazardous Waste Pharmaceuticals.

*COMAR 26.13.10.40*

A. A healthcare facility may not place a non-creditable hazardous waste pharmaceutical in a container unless the container:

  (1) Is structurally sound;

  (2) Is compatible with the contents of the container; and

  (3) Lacks evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions.

B. A healthcare facility that manages ignitable or reactive non-creditable hazardous waste pharmaceuticals in a container, or that mixes or commingles incompatible non-creditable hazardous waste pharmaceuticals in a container shall manage the container so that the container does not have the potential to:

  (1) Generate:

    (a) Extreme heat or pressure;

    (b) A fire or an explosion; or

    (c) A violent reaction;

  (2) Produce uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to threaten human health;

  (3) Produce uncontrolled flammable fumes or gases in sufficient quantities to pose a risk of fire or explosion;

  (4) Damage the structural integrity of the container; or

  (5) Threaten human health or the environment through means other than those identified in §B(1)—(4) of this regulation.

C. A healthcare facility shall keep each container of non-creditable hazardous waste pharmaceuticals closed and secured in a manner that prevents unauthorized access to the contents of the container.

D. Commingling Non-creditable Hazardous Waste Pharmaceuticals with Non-hazardous Non-creditable Waste Pharmaceuticals.

  (1) Except as provided in §D(2) of this regulation, a healthcare facility may accumulate non-creditable hazardous waste pharmaceuticals and non-hazardous non-creditable waste pharmaceuticals in the same container.

  (2) A healthcare facility may not accumulate the following non-creditable hazardous waste pharmaceuticals in the same container with non-hazardous non-creditable waste pharmaceuticals:

    (a) Non-creditable hazardous waste pharmaceuticals that are prohibited from being combusted because of the dilution prohibition of 40 CFR §268.3(c), namely, metal bearing waste codes listed in Appendix XI of 40 CFR Part 268 that meet none of the criteria in 40 CFR §268.3(c)(1)—(6); and

    (b) Non-creditable hazardous waste pharmaceuticals that are prohibited from being lab packed by 40 CFR §268.42(c), namely, wastes having waste codes listed in Appendix IV of 40 CFR Part 268.

  (3) A healthcare facility shall label a container that contains a non-creditable hazardous waste pharmaceutical identified in §D(2) of this regulation with all applicable EPA hazardous waste numbers, which are also referred to as hazardous waste codes.

E. Container Labeling. A healthcare facility shall label or clearly mark each container of non-creditable hazardous waste pharmaceuticals with the phrase “Hazardous Waste Pharmaceuticals”.

#### Regulation .41 Accumulation Time Limit — Non-Creditable Hazardous Waste Pharmaceuticals.

*COMAR 26.13.10.41*

A. A healthcare facility may accumulate a non-creditable hazardous waste pharmaceutical on site for 1 year or less without having to either:

  (1) Obtain a CHS permit issued under COMAR 26.13.07 that authorizes storage of the pharmaceutical; or

  (2) Qualify for interim status, as defined in COMAR 26.13.01.03B, with respect to the waste management unit in which the pharmaceutical is being managed.

B. A healthcare facility that accumulates a non-creditable hazardous waste pharmaceutical on site shall demonstrate the length of time that the non-creditable hazardous waste pharmaceutical has been accumulating, starting from the date that the pharmaceutical first became a waste, as specified in §C of this regulation.

C. A healthcare facility shall demonstrate the length of time that a non-creditable hazardous waste pharmaceutical has been accumulating by one or more of the following methods:

  (1) Marking or labeling the container of the non-creditable hazardous waste pharmaceutical with the date that the non-creditable hazardous waste pharmaceutical became a waste;

  (2) Maintaining an inventory system that identifies the date that the non-creditable hazardous waste pharmaceutical item being accumulated became a waste; or

  (3) Placing the non-creditable hazardous waste pharmaceutical in a specific area in which non-creditable hazardous waste pharmaceuticals are accumulated, identifying the earliest date that any of the non-creditable hazardous waste pharmaceuticals in the area became a waste, and having that information readily available during a compliance inspection, by, for example, marking or labeling the accumulation area with the accumulation start-date, or by entering the current earliest accumulation start-date in a log book or facility operating record.

#### Regulation .42 Management of Rejected Shipments of Non-Creditable Hazardous Waste Pharmaceuticals by Healthcare Facilities.

*COMAR 26.13.10.42*

A. Applicability.  This regulation applies to a healthcare facility that sends a shipment of non-creditable hazardous waste pharmaceuticals to a designated facility with the understanding that the designated facility can accept and manage the waste, and later receives that shipment back as a rejected load in accordance with the manifest discrepancy provisions of:

  (1) COMAR 26.13.05.05C or COMAR 26.13.06.05, as applicable, if the designated facility is located in Maryland; or

  (2) 40 CFR §264.72 or 40 CFR §265.72, as applicable, or equivalent state requirements, if the designated facility is not located in Maryland.

B. A healthcare facility identified in §A of this regulation may accumulate a rejected non-creditable hazardous waste pharmaceutical on site for up to an additional 90 days if the healthcare facility manages the rejected shipment in accordance with Regulation .40 of this chapter.

C. Upon receipt of a rejected shipment of a non-creditable hazardous waste pharmaceutical, a healthcare facility shall:

  (1) Sign either:

    (a) Item 18c of the original manifest, if the original manifest was used for the returned shipment; or

    (b) Item 20 of the new manifest, if a new manifest was used for the returned shipment;

  (2) Provide the transporter with a copy of the manifest;

  (3) Within 30 days of receipt of the rejected shipment, send a copy of the manifest to the designated facility that returned the shipment to the healthcare facility; and

  (4) Within 90 days of receipt of the rejected shipment, transport or offer for transport the returned shipment in accordance with the shipping standards of Regulation .47A—E of this chapter.

#### Regulation .43 Reporting by Healthcare Facilities for Non-Creditable Hazardous Waste Pharmaceuticals.

*COMAR 26.13.10.43*

A. Biennial Reporting.  Healthcare facilities are not subject to biennial reporting requirements under COMAR 26.13.03.06B with respect to non-creditable hazardous waste pharmaceuticals managed under Regulations .32—.49 of this chapter.

B. Exception Reporting for a Missing Copy of the Manifest.

  (1) For a shipment of a non-creditable hazardous waste pharmaceutical from a healthcare facility to a designated facility, if the healthcare facility does not receive a copy of the manifest with the signature of the owner or operator of the designated facility within 60 days of the date that the initial transporter accepted the non-creditable hazardous waste pharmaceutical, the healthcare facility shall submit the following to the unit in the Department responsible for oversight of the State’s hazardous waste management program:

    (a) A legible copy of the original manifest for which the healthcare facility has not received confirmation of delivery to the designated facility; and

    (b) A handwritten or typed note on the copy of the manifest itself, or on an attached sheet of paper, that:

      (i) States that the return copy of the manifest was not received;

      (ii) Explains the efforts taken to locate the non-creditable hazardous waste pharmaceuticals; and

      (iii) Presents the results of the efforts taken to locate the non-creditable hazardous waste pharmaceuticals.

  (2) For a shipment of a non-creditable hazardous waste pharmaceutical from a healthcare facility that was rejected by the designated facility and shipped to an alternate facility using appropriate manifest procedures, if the healthcare facility has not received, within 60 days of the date the rejected shipment was accepted by the initial transporter forwarding the shipment from the originally designated facility to the alternate facility, a copy of the manifest with the signature of the owner or operator of the alternate facility, the healthcare facility shall submit the following to the unit in the Department responsible for oversight of the State’s hazardous waste management program:

    (a) A legible copy of the original manifest for which the healthcare facility has not received confirmation of delivery to the designated facility; and

    (b) A handwritten or typed note on the copy of the manifest itself, or on an attached sheet of paper, that:

      (i) States that the return copy of the manifest was not received;

      (ii) Explains the efforts taken to locate the non-creditable hazardous waste pharmaceuticals; and

      (iii) Presents the results of the efforts taken to locate the non-creditable hazardous waste pharmaceuticals.

C. Additional Reports.  The Department may require healthcare facilities to furnish additional reports concerning the quantities and disposition of non-creditable hazardous waste pharmaceuticals.

#### Regulation .44 Record Keeping by Healthcare Facilities for Non-Creditable Hazardous Waste Pharmaceuticals.

*COMAR 26.13.10.44*

A. Manifests and Exception Reports. Unless a specified period of retention is extended in accordance with §C of this regulation, a healthcare facility shall:

  (1) Keep a copy of each manifest signed in accordance with COMAR 26.13.03.04E(1) for 3 years or until the healthcare facility receives a signed copy of the manifest from the designated facility that received the non-creditable hazardous waste pharmaceuticals that are being tracked by the manifest;

  (2) Retain as a record each signed copy of a manifest received from the designated facility identified on the manifest, with the period of retention being at least 3 years from the date the waste was accepted by the initial transporter; and

  (3) Keep a copy of each exception report required by Regulation .43B of this chapter for a period of at least 3 years from the date of the report;

B. Waste Determinations.

  (1) Unless a healthcare facility is excluded from this requirement by §B(3) of this regulation, a healthcare facility shall keep records of any test result, waste analysis, or other determination made to support the healthcare facility’s hazardous waste determinations consistent with COMAR 26.13.03.02-2, the record keeping requirements for hazardous waste determinations by generators of hazardous waste.

  (2) Unless the period of retention is extended in accordance with §C of this regulation, a healthcare facility shall retain the records identified in §B(1) of this regulation for at least 3 years from the date that the waste that was the subject of the waste determination was last sent to on-site or off-site treatment, storage, or disposal.

  (3) A healthcare facility that manages all of the healthcare facility’s non-creditable non-hazardous waste pharmaceuticals as non-creditable hazardous waste pharmaceuticals is not required to keep documentation of hazardous waste determinations for waste pharmaceuticals.

C. The periods of retention for records referred to in §A—B of this regulation are extended:

  (1) Automatically during the course of any unresolved enforcement action regarding the regulated activity; or

  (2) As requested by the Department or the Regional Administrator of Region 3 of the EPA.

D. The healthcare facility shall ensure that any record required to be kept by this regulation is made readily available upon the request of an inspector representing the Department or the EPA.

#### Regulation .45 Acceptance of Non-Creditable Hazardous Waste Pharmaceuticals from Off Site.

*COMAR 26.13.10.45*

A. This regulation establishes conditions under which a healthcare facility may accept non-creditable hazardous waste pharmaceuticals from an off-site healthcare facility that qualifies, under federal regulations, as a very small quantity generator (VSQG) of hazardous waste.

B. Regulation .32F of this chapter specifies criteria that determine whether a generator of hazardous waste pharmaceuticals qualifies as a very small quantity generator of hazardous waste under federal regulations.

C. A healthcare facility that does not have a permit or interim status that allows the facility to accept hazardous waste from off site may accept non-creditable hazardous waste pharmaceuticals from an off-site healthcare facility if:

  (1) The off-site facility qualifies, under federal regulations, as a very small quantity generator (VSQG) of hazardous waste;

  (2) Either:

    (a) The receiving facility and the VSQG healthcare facility that is sending the non-creditable hazardous waste pharmaceuticals off site are under the control of the same person, as specified in §D of this regulation; or

    (b) The receiving facility has a contractual or other documented business relationship by which the receiving healthcare facility supplies pharmaceuticals to the VSQG healthcare facility; and

  (3) The receiving facility:

    (a) Is operating under the provisions of Regulations .32—.48 of this chapter for the management of the receiving facility’s non-creditable hazardous waste pharmaceuticals;

    (b) Manages the non-creditable hazardous waste pharmaceuticals that it receives from off site in compliance with the requirements of Regulations .32—.48 of this chapter; and

    (c) Keeps records of the non-creditable hazardous waste pharmaceuticals that the facility receives from off site for 3 years from the date that the shipment is received, except that the periods of retention of these records is extended automatically during the course of any unresolved enforcement action regarding the regulated activity.

D. For the purposes of this regulation:

  (1) “Person” has the meaning given by the definition in COMAR 26.13.01.03B; and

  (2) “Control”:

    (a) Means the power to direct the policies of the healthcare facility, whether by the ownership of stock, voting rights, or otherwise; and

    (b) Does not include the situation when a contractor operates healthcare facilities on behalf of a different person.

#### Regulation .46 Standards for Healthcare Facilities Managing Potentially Creditable Hazardous Waste Pharmaceuticals.

*COMAR 26.13.10.46*

A. Hazardous Waste Determination for Potentially Creditable Pharmaceuticals.

  (1) A healthcare facility that generates a solid waste that is a potentially creditable pharmaceutical shall determine whether that pharmaceutical is a hazardous waste pharmaceutical by determining whether the waste is listed as a hazardous waste in COMAR 26.13.02.15—.19, and whether the waste exhibits any of the characteristics of hazardous waste defined in COMAR 26.13.02.10—.14.

  (2) In determining whether a solid waste is a hazardous waste, a healthcare facility shall follow the procedures in COMAR 26.13.03.02-1.

  (3) A healthcare facility shall use the hazardous waste determination conducted in accordance with this section to determine the applicability of Regulations .32—.49 of this chapter to the waste, except that the healthcare facility may choose to manage its potentially creditable non-hazardous waste pharmaceuticals as potentially creditable hazardous waste pharmaceuticals under Regulations .32—.49 of this chapter.

B. Acceptance of Potentially Creditable Hazardous Waste Pharmaceuticals from Off Site.

  (1) This section establishes conditions under which a healthcare facility may accept potentially creditable hazardous waste pharmaceuticals from an off-site healthcare facility that qualifies, under federal regulations, as a very small quantity generator (VSQG) of hazardous waste.

  (2) Regulation .32F of this chapter specifies criteria that determine whether a generator of hazardous waste pharmaceuticals qualifies as a very small quantity generator of hazardous waste under federal regulations.

  (3) . For the purposes of this regulation:

    (a) “Person” has the meaning given by the definition in COMAR 26.13.01.03B; and

    (b) “Control”:

      (i) Means the power to direct the policies of the healthcare facility, whether by the ownership of stock, voting rights, or otherwise; and

      (ii) Does not include the situation when a contractor operates healthcare facilities on behalf of a different person.

  (4) A healthcare facility that does not have a permit or interim status that allows the facility to accept hazardous waste from off site may accept potentially creditable hazardous waste pharmaceuticals from an off-site healthcare facility if:

    (a) The off-site facility qualifies, under federal regulations, as a very small quantity generator (VSQG) of hazardous waste;

    (b) Either:

      (i) The receiving facility and the VSQG healthcare facility that is sending the potentially creditable hazardous waste pharmaceuticals off site are under the control of the same person, as specified in §B(3) of this regulation; or

      (ii) The receiving facility has a contractual or other documented business relationship whereby the receiving healthcare facility supplies pharmaceuticals to the VSQG healthcare facility; and

    (c) The receiving facility:

      (i) Is operating under the provisions of Regulations .32—.49 of this chapter for the management of the receiving facility’s potentially creditable hazardous waste pharmaceuticals;

      (ii) Manages the potentially creditable hazardous waste pharmaceuticals that it receives from off site in compliance with the requirements of Regulations .32—.49 of this chapter; and

      (iii) Keeps records of the potentially creditable hazardous waste pharmaceuticals that the facility receives from off site for 3 years from the date that the shipment is received, except that the periods of retention of these records is extended automatically during the course of any unresolved enforcement action regarding the regulated activity;

C. Prohibition of Shipment.  Except for potentially creditable hazardous waste pharmaceuticals, a healthcare facility may not send hazardous waste to a reverse distributor.

D. Biennial Reporting.  A healthcare facility is not subject to biennial reporting requirements under COMAR 26.13.03.06B with respect to potentially creditable hazardous waste pharmaceuticals managed under Regulations .32—.49 of this chapter.

E. Record Keeping.  A healthcare facility that initiates a shipment of a potentially creditable hazardous waste pharmaceutical to a reverse distributor shall:

  (1) Keep the following records, in either a paper or electronic format, for each shipment of a potentially creditable hazardous waste pharmaceutical:

    (a) The confirmation of delivery; and

    (b) The shipping paper or papers prepared in accordance with 49 CFR Part 172 Subpart C, if applicable;

  (2) Unless the period of retention is extended in accordance with §E(3) of this regulation, retain the records identified in §E(1) of this regulation for at least 3 years from the date of shipment;

  (3) Maintain a record beyond the period specified in §E(2) of this regulation:

    (a) During the course of any unresolved enforcement action regarding the regulated activity; or

    (b) As requested by the Department or the Regional Administrator of Region 3 of the EPA; and

  (4) Ensure that any record required to be kept by this regulation is made readily available upon the request of an inspector representing the Department or the EPA.

F. Response to Spills.  A healthcare facility shall:

  (1) Immediately contain a spill of a potentially creditable hazardous waste pharmaceutical; and

  (2) Manage clean-up materials from a spill of a potentially creditable hazardous waste pharmaceutical as non-creditable hazardous waste pharmaceuticals in accordance with Regulations .32—.48 of this chapter.

#### Regulation .47 Shipping Requirements — Non-creditable Hazardous Waste Pharmaceuticals and Evaluated Hazardous Waste Pharmaceuticals.

*COMAR 26.13.10.47*

A. This regulation establishes requirements that apply to:

  (1) A healthcare facility shipping non-creditable hazardous waste pharmaceuticals off site; and

  (2) A reverse distributor shipping evaluated hazardous wastes pharmaceuticals off site.

B. A person identified in §A of this regulation shall:

  (1) Ship the waste identified in §A of this regulation to a designated facility that is authorized to accept the specified hazardous waste by a hazardous waste facility permit, interim status authority, or other legal mechanism consistent with state and federal hazardous waste regulations; and

  (2) Ensure that the waste is transported by a transporter that has been issued a CHS Hauler Certificate in accordance with COMAR 26.13.04.01C.

C. Pre-transport Requirements — Healthcare Facilities.  A healthcare facility shall comply with the following requirements before transporting off site or offering for transport off site a non-creditable hazardous waste pharmaceutical:

  (1) Package the waste in accordance with the applicable U.S. Department of Transportation regulations on hazardous materials under 49 CFR Parts 173, 178, and 180;

  (2) Label each package in accordance with the applicable U.S. Department of Transportation regulations on hazardous materials under 49 CFR Part 172 Subpart E;

  (3) Mark each package of hazardous waste pharmaceuticals in accordance with the applicable U.S. Department of Transportation regulations on hazardous materials under 49 CFR Part 172 Subpart D;

  (4) Mark each container of 119 gallons or less being used in the off-site shipment with the  following words and information in accordance with the requirements of 49 CFR § 172.304:

  (5) Mark each lab pack container that will be incinerated in compliance with 40 CFR § 268.42(c) as follows:

    (a) Mark the container with EPA Hazardous Waste Numbers D004, D005, D006, D007, D008, D010, and D011, when applicable, by either:

      (i) Directly marking the applicable EPA Hazardous Waste Numbers on the container; or

      (ii) Using an electronic system for data capture, storage, and retrieval, such as bar coding or a radio frequency identification tag, if the electronic system allows the destination facility to be informed of the container's contents for the purposes of compliance with applicable hazardous waste management regulations; and

    (b) It is not necessary to mark the container with EPA Hazardous Waste Numbers other than those identified in §C(5)(a) of this regulation;

  (6) Placard the shipment or offer the initial transporter the appropriate placards according to U.S. Department of Transportation regulations for hazardous materials under 49 CFR Part 172, Subpart F.

D. Pre-transport Requirements — Reverse Distributors.  A reverse distributor shipping evaluated hazardous waste pharmaceuticals off site shall:

  (1) Comply with the requirements of §C of this regulation; and

  (2) Mark each container of 119 gallons or less that is being used in the off-site shipment with the EPA hazardous waste numbers of the wastes in the container by either:

    (a) Directly marking the applicable EPA Hazardous Waste Numbers on the container; or

    (b) Using a method described in §C(5)(a)(ii) of this regulation.

E. Manifesting.

  (1) Except as specified in §E(2) of this regulation, a person identified in §A of this regulation shall comply with the manifest requirements of COMAR 26.13.03.04.

  (2) A healthcare facility shipping non-creditable hazardous waste pharmaceuticals:

    (a) Is not required to list all applicable hazardous waste numbers, also known as hazardous waste codes, in the “Waste Codes” section of the manifest form, item 13 of EPA Form 8700-22; and

    (b) Shall write either the code “PHRM” or the code “PHARMS” in the “Waste Codes” section of the manifest form, item 13 of EPA Form 8700-22.

F. Export and Import Requirements.

  (1) A healthcare facility or reverse distributor that exports non-creditable hazardous waste pharmaceuticals or evaluated hazardous waste pharmaceuticals is subject to COMAR 26.13.02.07.

  (2) Import Requirements.

    (a) A person that imports a non-creditable hazardous waste pharmaceutical or an evaluated hazardous waste pharmaceutical is subject to COMAR 26.13.02.07.

    (b) A healthcare facility or a reverse distributor may not accept an imported non-creditable hazardous waste pharmaceutical or an imported evaluated hazardous waste pharmaceutical unless the healthcare facility or reverse distributor has a permit or interim status that allows hazardous waste to be accepted from off site.

#### Regulation .48 Shipments of Potentially Creditable Hazardous Waste Pharmaceuticals to a Reverse Distributor.

*COMAR 26.13.10.48*

A. A healthcare facility or a reverse distributor that transports off site or offers for transport off site potentially creditable hazardous waste pharmaceuticals to a reverse distributor shall comply with all applicable U.S. Department of Transportation regulations in 49 CFR Parts 171—180 for any potentially creditable hazardous waste pharmaceutical that meets the definition of hazardous material in 49 CFR § 171.8.

B. Delivery Confirmation. A reverse distributor that receives a shipment of potentially creditable hazardous waste pharmaceuticals:

  (1) Shall, upon receipt of the shipment, provide confirmation of receipt to the healthcare facility or reverse distributor that initiated the shipment;

  (2) Shall indicate in the confirmation of receipt that the shipment of potentially creditable hazardous waste pharmaceuticals has arrived at its destination and is under the control of the reverse distributor; and

  (3) May provide the confirmation of receipt in a paper format or an electronic format.

C. Required Actions if a Timely Confirmation of Delivery is not Received.  If 35 days have elapsed since a healthcare facility or reverse distributor initiated a shipment of potentially creditable hazardous waste pharmaceuticals to a reverse distributor, and the initiating shipper has not received confirmation of delivery, the initiating shipper shall promptly contact the carrier and the reverse distributor that was the intended recipient of the shipment to:

  (1) Report that the delivery confirmation has not been received; and

  (2) Determine the status of the potentially creditable hazardous waste pharmaceuticals that were shipped.

D. Exports.  A healthcare facility or reverse distributor that sends a potentially creditable hazardous waste pharmaceutical to a foreign destination:

  (1) Is not required to comply with the manifesting requirements of 40 CFR § 262.83(c);

  (2) Shall comply with:

    (a) The applicable sections of 40 CFR Part 262, Subpart H, as qualified by COMAR 26.13.03.07B(2); and

    (b) §§A—C of this regulation.

E. Imports.

  (1) A person that imports potentially creditable hazardous waste pharmaceuticals into the United States is subject to §§A—C of this regulation instead of 40 CFR Part 262, Subpart H.

  (2) Immediately after a potentially creditable hazardous waste pharmaceutical enters the United States, the potentially creditable hazardous waste pharmaceutical is subject to all applicable requirements of Regulations .32—.49 of this chapter.

F. Transporter Requirements. A person that transports potentially creditable hazardous waste pharmaceuticals to a reverse distributor:

  (1) May do so without meeting the requirements of COMAR 26.13.04 that apply to persons who transport hazardous waste; and

  (2) Shall comply with all applicable requirements of the U.S. Department of Transportation for the transport of hazardous materials.

#### Regulation .49 Standards for Reverse Distributors.

*COMAR 26.13.10.49*

A. This regulation establishes requirements for reverse distributors for the management of:

  (1) Potentially creditable hazardous waste pharmaceuticals; and

  (2) Evaluated hazardous waste pharmaceuticals.

B. A reverse distributor may accept potentially creditable hazardous waste pharmaceuticals from off site and accumulate potentially creditable hazardous waste pharmaceuticals or evaluated hazardous waste pharmaceuticals on site without a hazardous waste permit and  without having interim status if the reverse distributor complies with the requirements of §§C—D of this regulation.

C. Management Standards.

  (1) As qualified by §C(2) of this regulation, a reverse distributor shall manage potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals in accordance with the following:

    (a) The management standards of 40 CFR §266.510(a);

    (b) Additional standards for management of potentially creditable hazardous waste pharmaceuticals destined for another reverse distributor as specified in 40 CFR §266.510(b)(1)—(2) and (4); and

    (c) Additional standards for management of evaluated hazardous waste pharmaceuticals as specified in 40 CFR §266.510(c)(1)—(4) and 40 CFR §266.510(c)(7)—(10).

  (2) In complying with the provisions of 40 CFR §266.510 cited in §C(1) of this regulation, a reverse distributor shall:

    (a) Substitute “Department” for “EPA Regional Administrator”; and

    (b) Refer to the table in COMAR 26.13.01.05B(2) to identify references to provisions in COMAR that should be substituted for corresponding references to federal regulations that are made in 40 CFR §266.510.

D. Shipping Requirements. A reverse distributor shall:

  (1) Ship potentially creditable hazardous waste pharmaceuticals destined for another reverse distributor in accordance with the requirements of Regulation .48 of this chapter;

  (2) Ship evaluated hazardous waste pharmaceuticals in accordance with the requirements of Regulation .47 of this chapter; and

  (3) Ensure that an evaluated hazardous waste pharmaceutical that is shipped off-site from a location within the State or to a facility within the State is transported by a hauler and vehicle that is in compliance with COMAR 26.13.04.01C.

E. Permit Requirements.  A reverse distributor is an operator of a hazardous waste treatment, storage, or disposal facility and is subject to applicable requirements of COMAR 26.13.05, .06, and .07 if the reverse distributor:

  (1) Does not meet the conditions of this Regulation;

  (2) Accepts manifested hazardous waste from off-site; or

  (3) Treats or disposes of hazardous waste pharmaceuticals on site.

### Chapter 11 — Special Medical Wastes

**Authority:** Environment Article, §§7-104, 7-201 et seq., 9-252, and 9-314, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.03 adopted as an emergency provision effective September 28, 1988 (15:22 Md. R. 2549); emergency status extended at 16:4 Md. R. 493 (Emergency provisions are temporary and not printed in COMAR)

**Administrative History:** Regulations .01—.03 adopted effective April 3, 1989 (16:6 Md. R. 733)

**Administrative History:** Regulation .01 amended effective October 1, 2025 (52:17 Md. R. 876)

**Administrative History:** Regulation .02 amended effective April 20, 1998 (25:8 Md. R. 599)

**Administrative History:** Regulation .02B amended effective April 21, 2008 (35:8 Md. R. 812)

**Administrative History:** Regulation .03E amended effective December 23, 1991 (18:25 Md. R. 2759)

#### Regulation .01 Purpose and Scope.

*COMAR 26.13.11.01*

A. This chapter identifies those solid wastes that are subject to regulation as special medical wastes under COMAR 26.13.12 and 26.13.13.

B. In this chapter:

  (1) Regulation .02 defines the terms “solid waste” and “special medical waste”, identifies those wastes that are excluded, and establishes management requirements for special medical waste;

  (2) Regulations .02 and .03 set forth the criteria used by the Department to identify special medical wastes;

  (3) Special medical wastes are Controlled Hazardous Substances (CHS) and are subject to the provisions of COMAR 26.13.1126.13.13, 26.13.02.02A, and the applicable provisions of 26.13.01;

  (4) Special medical waste is hereby exempted from the requirements of Environment Article, §§7-205, 7-224, 7-226, 7-232, and §7-253(4), Annotated Code of Maryland.

#### Regulation .02 Definitions.

*COMAR 26.13.11.02*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Anatomical material” means human or animal body parts, including tissues and organs.

  (2) “Blood” means human blood, human blood components, and products made from human blood.

  (3) “Blood-soiled article” means any article that contains blood in any form as a result of contact with blood.

  (3-1) “Contaminated item” means an item for which it is known or reasonably anticipated that blood or other potentially infectious material is present on the item.

  (4) “Contaminated material” means:

    (a) Microbiological laboratory waste;

    (b) The feces of an individual diagnosed as having a disease that may be transmitted to another human being through the feces;

    (c) An article soiled with the feces of an individual diagnosed as having a disease that may be transmitted to another human being through the feces; or

    (d) An article that has come into contact with a known human pathogen.

  (5) “Generator” means any person whose act or process produces a special medical waste.

  (5-1) “Infectious substance” means a material known or reasonably expected to contain a pathogen.

  (6) “Microbiological laboratory waste” means waste from a microbiological laboratory that contains a human pathogen and includes cultures and stocks of pathogens and associated biologicals.

  (6-1) “Other potentially infectious material” means:

    (a) The following human body fluids:

      (i) Amniotic fluid;

      (ii) A body fluid that is visibly contaminated with blood;

      (iii) A body fluid that cannot be readily identified;

      (iv) Cerebrospinal fluid;

      (v) Pericardial fluid;

      (vi) Peritoneal fluid;

      (vii) Pleural fluid;

      (viii) Saliva generated in the performance of dental procedures;

      (ix) Semen;

      (x) Synovial fluid; and

      (xi) Vaginal secretions;

    (b) A tissue or organ from a living or dead human, not including intact skin, that has not been preserved by a chemical additive or preservative;

    (c) The following items relating to human immunodeficiency virus (HIV), hepatitis B virus, or hepatitis C virus:

      (i) HIV-containing cell, tissue, or organ cultures;

      (ii) Media or other solutions containing HIV, Hepatitis B, or Hepatitis C; and

      (iii) Blood, organs, or other tissues, including blood, organs or other tissues from experimental animals infected with HIV or hepatitis B virus; and

    (d) Microbiological laboratory waste.

  (6-2) “Pathogen” means a microorganism, including bacteria, viruses, rickettsiae, parasites, and fungi, or other agent, such as a proteinaceous infectious particle, also known as a prion, that can cause disease in humans or animals.

  (7) “Person” means an individual, trust, firm, joint stock company, federal agency, corporation (including a government corporation), partnership, association, state, municipality, political subdivision of a state, any interstate body, and any combination of persons using a common disposal collection device.

  (8) Sharp.

    (a) “Sharp” means an object that:

      (i) Is capable of cutting or penetrating skin or a packaging material, and

      (ii) Either is known, suspected, or reasonably anticipated to be contaminated with a human pathogen, blood, or other potentially infectious material or may become contaminated with a human pathogen through handling or during transportation;

    (b) “Sharp” includes needles, syringes with an attached needle or other sharp, scalpels, surgical instruments, broken glass, broken capillary tubes, broken rigid plastic, and exposed ends of dental wires.

    (c) “Sharp” includes an item that is capable of cutting or penetrating skin or a packaging material if the item is not in its original, intact packaging unless the item:

      (i) Is not commonly associated with blood, other potentially infectious material or infectious substances, such as, for example, broken glass from beverage containers or disposable blades used by a contractor in building maintenance; and

      (ii) Has not been exposed to or commingled with special medical waste; and

    (d) “Sharp” does not include an item in its original, intact packaging.

  (9) “Shipping paper” means a shipping order, bill of lading, manifest, or other shipping document serving a similar purpose and containing the information required by 49 CFR §§172.202, 172.203, and 172.204, which are incorporated by reference in COMAR 26.13.12.01B(5) and 26.13.13.01G.

  (10) “Solid waste” means any waste defined by COMAR 26.13.02.02.

  (11) “Special medical waste” means a solid waste that is not excluded under Regulation .03 of this chapter and is composed of:

    (a) Anatomical material;

    (b) Blood that is in a liquid or semiliquid state;

    (c) Blood-soiled articles that:

      (i) Would release blood in a liquid or semiliquid state if compressed; or

      (ii) Are caked with dried blood and are capable of releasing the blood during handling of the items;

    (d) A contaminated item that:

      (i) Would release other potentially infectious material in a liquid or semiliquid state if compressed; or

      (ii) Is caked with other potentially infectious material and is capable of releasing the other potentially infectious material during handling of the item;

    (e) Contaminated material;

    (f) An infectious substance that can cause disease in humans;

    (g) Microbiological laboratory waste;

    (h) Other potentially infectious material that is in a liquid or semiliquid state;

    (i) Pathological and microbiological waste that contains blood or other potentially infectious material; or

    (j) Sharps.

  (12) “Sterilize” means to use a physical or chemical procedure to destroy all microbial life including highly resistant bacterial endospores.

#### Regulation .03 Exclusions.

*COMAR 26.13.11.03*

A. The following solid wastes are not special medical wastes:

  (1) Household waste, including household waste that has been collected, transported, stored, treated, disposed of, recovered, or reused. “Household waste” means any waste material (including garbage, trash, and sanitary wastes in septic tanks) derived from households (including single and multiple residences, hotels, and motels).

  (2) Wastes generated in the handling of an animal unless the generator knows or has reason to know that the animal has a disease that is capable of being transmitted to humans.

  (3) The ash or by-product from an incinerator authorized by a state to burn special medical waste.

  (4) Wastes not generated in the ordinary course of business.

B. Except as otherwise provided in this regulation, if a person generates, in a calendar month, a total of less than 50 pounds of special medical wastes, those wastes are not subject to regulation under COMAR 26.13.12 and 26.13.13, except as provided in §§C and D of this regulation.

C. If a person whose waste has been excluded from regulation under §B of this regulation accumulates special medical wastes in quantities greater than 50 pounds, those accumulated wastes are subject to regulation under COMAR 26.13.12 and 26.13.13.

D. In order for special medical waste to be excluded from regulation under §B of this regulation, the generator shall comply with COMAR 26.13.12.02 and .05A and C.

E. If a person sterilizes special medical wastes, those wastes are excluded from the requirements of COMAR 26.13.12 and 26.13.13, except for COMAR 26.13.12.02 and .05A and C.

### Chapter 12 — Standards Applicable to Generators of Special Medical Waste

**Authority:** Environment Article, §§7-104, 7-201 et seq., 9-252, and 9-314, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 adopted as an emergency provision effective September 28, 1988 (15:22 Md. R. 2549); emergency status extended at 16:4 Md. R. 493

**Administrative History:** Regulations .01—.07 adopted effective April 3, 1989 (16:6 Md. R. 733)

**Administrative History:** Regulation .01B amended effective April 20, 1998 (25:8 Md. R. 599)

**Administrative History:** Regulation .04 repealed and new Regulation .04 adopted effective April 20, 1998 (25:8 Md. R. 599)

**Administrative History:** Regulation .05 amended effective April 21, 2008 (35:8 Md. R. 812)

**Administrative History:** Regulation .06 amended effective April 20, 1998 (25:8 Md. R. 599)

**Administrative History:** Regulation .07 amended effective April 20, 1998 (25:8 Md. R. 599)

#### Regulation .01 Purpose, Scope, and Applicability.

*COMAR 26.13.12.01*

A. These regulations establish standards for generators of special medical waste.

B. A generator who treats, stores, or disposes of special medical wastes on-site shall only comply with the following regulations of this chapter with regard to that waste:

  (1) Regulation .02 of this chapter for determining whether or not the generator has special medical waste;

  (2) Regulation .03 of this chapter for obtaining an identification number;

  (3) Regulation .06A(2) and (3) of this chapter for record keeping;

  (4) Regulation .06B of this chapter for additional reporting; and

  (5) Applicable requirements of U.S. Department of Transportation Hazardous Materials Regulations, 49 CFR 171—178, which are incorporated by reference.

C. An owner or operator who initiates a shipment of special medical waste from a treatment, storage, or disposal facility shall comply with the generator standards established in this chapter.

#### Regulation .02 Special Medical Waste Determination.

*COMAR 26.13.12.02*

A person who generates a solid waste, as defined in COMAR 26.13.02.02, shall determine if that waste is a special medical waste using the following method. A person shall:

A. First determine if the waste is excluded from regulation under COMAR 26.13.11.03;

B. Then determine if the waste is a special medical waste pursuant to COMAR 26.13.11.02.

#### Regulation .03 Maryland Identification Numbers.

*COMAR 26.13.12.03*

A. A generator may not treat, store, dispose of, transport, or offer for transportation, special medical waste without having received a Maryland identification number from the Secretary.

B. A generator who has not received a Maryland identification number may obtain one by applying to the Secretary. Upon receiving the request the Secretary will assign an identification number to the generator.

C. A generator may not offer his special medical waste to transporters that have not received a Maryland identification number.

#### Regulation .04 Shipping Papers.

*COMAR 26.13.12.04*

A generator of special medical waste who transports, or offers for transportation, special medical waste for off-site treatment, storage, or disposal shall prepare shipping papers in accordance with the requirements of 49 CFR §§172.200—172.204, which are incorporated by reference in COMAR 26.13.12.01B(5).

#### Regulation .05 Pretreatment Requirements.

*COMAR 26.13.12.05*

A. Classification of Special Medical Waste for Transport.

  (1) Before transporting special medical waste off-site or offering special medical waste for transport off-site, a generator shall classify the waste and assign a proper shipping name under the U.S. Department of Transportation Hazardous Materials Transportation Regulations, 49 CFR 171—178, which are incorporated by reference in Regulation .01B(5) of this chapter.

  (2) In complying with §A(1) of this regulation, a generator shall determine the hazardous material description under the U.S. Department of Transportation Hazardous Materials Regulations, including:

    (a) Proper shipping name;

    (b) Hazard class or division;

    (c) Identification number assigned to the proper shipping name; and

    (d) Packing group, if any.

Agency note: Generally, special medical waste will be classified as “infectious substances, affecting humans” or “regulated medical waste, n.o.s.” under the federal hazardous materials transportation regulations unless the special medical waste is regulated as a hazardous material for an additional reason, such as because of its chemical nature or because it is also a radioactive material.

B. Packaging, Marking, and Labeling. Before transporting special medical waste off-site or offering special medical waste for transport off-site, a generator shall:

  (1) Package the waste in accordance with 49 CFR Part 173;

  (2) Comply with the marking requirements of 49 CFR Part 172, Subpart D; and

  (3) Comply with the labeling requirements of 49 CFR Part 172, Subpart E.

C. Treating.

  (1) If a generator treats special medical waste before transporting it off-site, offering it for transport off-site, disposing of it, or arranging for disposal of it, then the generator:

    (a) May treat the special medical waste only as provided in COMAR 10.06.06; and

    (b) Shall, in complying with the requirements of COMAR 10.06.06 as required by §C(1)(a) of this regulation, interpret “special medical waste” and “sharp” to have the meanings given in COMAR 26.13.11.02B.

  (2) A generator may not dispose of sharps in a solid waste landfill unless the generator incinerates the sharps or first sterilizes and then mechanically destroys the sharps.

#### Regulation .06 Record Keeping and Reporting.

*COMAR 26.13.12.06*

A. Record Keeping.

  (1) A generator shall keep a copy of each annual report and exception report for a period of at least 3 years from the date of the report.

  (2) A generator shall keep records of any test results, waste analyses, or other determinations made in accordance with Regulation .02 of this chapter for at least 3 years from the date that the waste was last sent to on-site or off-site treatment, storage, or disposal.

  (3) The periods of retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the Secretary.

B. Additional Reporting. The Secretary, as the Secretary deems necessary, may require generators to furnish additional reports concerning the quantities and disposition of special medical wastes.

#### Regulation .07 International Shipments.

*COMAR 26.13.12.07*

A. A person who exports special medical waste to a foreign country or imports special medical waste from a foreign country into the State shall comply with the requirements of this chapter and with the requirements of this regulation.

B. When shipping special medical waste outside the United States the generator shall:

  (1) Notify the Secretary in writing 4 weeks before the initial shipment of special medical waste to each country in each calendar year;

  (2) Include in the notification required by §B(1) of this regulation:

    (a) An identification of the waste to be shipped, and

    (b) The name and address of the foreign consignee;

  (3) Require that the foreign consignee confirm the delivery of the waste in the foreign country by providing the generator with a copy of the shipping papers signed by the foreign consignee or by other appropriate means; and

  (4) Meet the requirements under Regulation .04 of this chapter.

C. When importing special medical waste, a person shall meet all requirements of Regulation .04 of this chapter.

### Chapter 13 — Standards Applicable to Transporters of Special Medical Waste

**Authority:** Environment Article, §§7-201 et seq., 9-252, and 9-314, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.04 adopted as an emergency provision effective September 28, 1988 (15:22 Md. R. 2549); emergency status extended at 16:4 Md. R. 493 (Emergency provisions are temporary and not printed in COMAR)

**Administrative History:** Regulations .01—.04 adopted effective April 3, 1989 (16:6 Md. R. 733)

**Administrative History:** Regulation .01 amended effective April 20, 1998 (25:8 Md. R. 599)

**Administrative History:** Regulation .01C amended effective June 18, 2018 (45:12 Md. R. 619)

**Administrative History:** Regulation .02 amended effective April 20, 1998 (25:8 Md. R. 599)

**Administrative History:** Regulation .02C amended effective December 23, 1991 (18:25 Md. R. 2759)

**Administrative History:** Regulation .03 amended effective April 20, 1998 (25:8 Md. R. 599)

**Administrative History:** Regulation .03C amended effective April 21, 2008 (35:8 Md. R. 812)

#### Regulation .01 General.

*COMAR 26.13.13.01*

A. Scope.

  (1) These regulations establish standards which apply to persons transporting special medical waste within the State if the transportation requires a shipping paper under COMAR 26.13.12.

  (2) These regulations do not apply to on-site transportation of special medical waste by generators or by owners or operators of permitted special medical waste management facilities.

  (3) A transporter of special medical waste shall also comply with COMAR 26.13.12 if the transporter transports special medical waste into the United States from abroad.

B. State Identification Number.

  (1) A transporter may not transport special medical wastes without having received a State identification number from the Secretary.

  (2) A transporter who has not received a State identification number may obtain one by applying to the Secretary.

C. Certificate.

  (1) General.

    (a) A person may not transport special medical waste to a facility within the State or from a source within the State unless the person obtains a certificate from the Department. A special medical waste hauler certificate is required of persons engaged in transporting special medical wastes.

    (b) Transporters using vehicles or articulated transports to transport special medical waste to a facility within the State or from a source within the State shall carry the vehicle certificate in the cab of the special medical waste vehicle.

  (2) As a condition to the issuance of a certificate, a person shall:

    (a) Secure a bond of not less than $10,000 for the purpose of indemnifying the State for abatement of pollution resulting from the improper transportation or spill of special medical waste;

    (b) Pay a yearly fee for certification not to exceed $50 per vehicle used for hauling special medical waste; and

    (c) Submit a certificate of safety inspection for each vehicle as provided in Regulation .01F of this chapter.

  (3) Certification.

    (a) A request for certification shall be submitted in writing and shall include:

      (i) Information pertaining to the nature and quantity of the special medical waste to be transported;

      (ii) The source and destination of the waste;

      (iii) The method of transportation;

      (iv) Specific information pertaining to the vehicles used to transport special medical waste, such as vehicle age and construction specifications;

      (v) The safety inspection of the vehicle; and

      (vi) The fee for certification.

    (b) Failure to provide the information required in §C(3)(a) of this regulation, the fee for certification, or other information required by the Department shall constitute grounds for denial of certification.

    (c) The certification shall be carried in the vehicle at all times and presented upon request.

  (4) This regulation does not apply to transportation within sites such as transport of a special medical waste from an on-site storage area to an on-site waste treatment facility.

  (5) Personnel of the Department approved by the Secretary are certified special medical waste transporters.

  (6) Interstate Certificates.

    (a) Interstate carriers with more than ten trucks operating in or out of the State, and servicing more than three states, may apply for interstate certificates if the carrier:

      (i) Has five vehicle certificates currently issued; and

      (ii) Meets the insurance requirements of 49 CFR Part 387—Minimum Levels of Financial Responsibility for Motor Carriers.

    (b) Interstate certificates are transferable from one vehicle to another. The location of the certificate shall be registered with the Department.

    (c) The carrier shall notify the Department 24 hours before use of the certificate. The notification shall include information detailing the type of vehicle, serial number, make, model, state of registration, license destination, material transported, and other information as may be requested.

    (d) The maximum number of transferable certificates issued may not exceed the number of permanent certificates issued to a carrier.

    (e) Each certificate issued shall carry a fee of $50.

  (7) The Department may require the applicant to report periodically, on a form provided by the Department, on the source, disposal destination, volume, and nature of the special medical waste transported.

D. Standards for Vehicles.

  (1) A person shall transport special medical waste in a leakproof, noncompacting, and fully enclosed vehicle compartment.

  (2) A person shall transport special medical waste in a manner that prevents any nuisance condition.

E. Stoppage.

  (1) Except under the supervision of the Department during an emergency, a special medical waste hauler may not store special medical waste except in an approved facility. Storage in a special medical waste vehicle does not include periods of stoppage, as defined by §E(2) of this regulation.

  (2) Stoppage is a period of time not to exceed 72 hours during which a special medical waste vehicle is at rest. The cumulative period of stoppage may not exceed 5 days for a particular shipment of special medical waste within the State. Any stoppage in excess of 12 hours shall be at an authorized facility or other suitable site.

F. Safety Inspection.

  (1) Before a person may receive a special medical waste vehicle certificate, the person shall provide written proof that the vehicle has passed a safety inspection as provided in §F(2)—(4) of this regulation within 60 days before the date of the application.

  (2) A safety inspection for a special medical waste vehicle includes each of the following:

    (a) Windshield wipers and washers;

    (b) Headlights, taillights, and signal lights;

    (c) Exhaust system;

    (d) Wheels, tire wear, and tire pressure;

    (e) Glass and mirrors;

    (f) Horn; and

    (g) Brakes.

  (3) A safety inspection may only be performed by a state agency authorized to perform vehicle safety inspections or by a commercial establishment authorized by a state to perform vehicle safety inspections.

  (4) A motor vehicle of the current or preceding model year that has not been previously titled or registered and for which the ownership document is a manufacture's certificate of origin is excluded from the requirements of §F(1)—(3) of this regulation for a period of 12 months from the month of initial titling.

G. A person subject to this chapter shall comply with the applicable requirements of U.S. Department of Transportation Hazardous Materials Regulations, 49 CFR 171—178, which are incorporated by reference.

#### Regulation .02 Shipping Papers.

*COMAR 26.13.13.02*

A. Shipping Papers. A transporter of special medical waste may not accept special medical waste from a generator unless the waste is accompanied by a shipping paper prepared by the generator in accordance with COMAR 26.13.12.04.

B. Delivery Requirements.

  (1) The transporter shall deliver the entire quantity of special medical waste which the transporter has accepted from a generator or a transporter to:

    (a) The facility designated by the generator;

    (b) An alternate facility designated by the generator, if the special medical waste cannot be delivered to the designated facility because an emergency prevents delivery;

    (c) Next designated transporter; or

    (d) Place outside the United States designated by the generator.

  (2) If the special medical waste cannot be delivered in accordance with §B(1) of this regulation, the transporter shall contact the generator for further directions.

#### Regulation .03 Special Medical Waste Discharge.

*COMAR 26.13.13.03*

A. Immediate Action.

  (1) If a discharge of special medical waste occurs during transportation, the transporter shall take appropriate immediate action to protect human health and the environment (for example, notify local authorities, dike the discharge area), and shall notify the Department and local authorities, if any, within 1 hour of the incident, or, if not immediately discovered, within 1 hour of discovery of the incident, by calling (866) 633-4686.

  (2) If a discharge of special medical waste occurs during transportation, and an official of a State or local government or a federal agency acting within the scope of his official responsibilities determines that immediate removal of the waste is necessary to protect human health or the environment, that official may authorize the removal of the waste by transporters who do not have State identification numbers.

  (3) An air, rail, highway, or water transporter who has discharged special medical waste shall:

    (a) Give notice, if required by 40 CFR §171.15, to the National Response Center, (800)424-8802;

    (b) Submit a report in writing to the Department.

  (4) A water (bulk shipment) transporter who has discharged special medical waste shall give notice under 33 CFR §153.203 to the National Response Center, (800) 424-8802 or, in the District of Columbia, (202) 276-2675, and to the State, (866) 633-4686.

B. Discharge Clean Up. A transporter shall clean up any special medical waste discharge that occurs during transportation or take such action as may be required or approved by federal, State, or local officials so that the special medical waste discharge no longer presents a hazard to human health or the environment.

C. All references to 49 CFR in COMAR 26.13.11—26.13.13 mean 49 CFR as it has been adopted as of October 1, 2007.

#### Regulation .04 Bonding.

*COMAR 26.13.13.04*

A. The Department, as a condition to the issuance of a special medical waste hauler certificate, shall require a person to secure a bond of not less than $10,000 for the purpose of indemnifying the State for abatement of pollution from the improper transportation or spill of special medical waste.

B. Execution of Bond.

  (1) The bond shall be executed by the permittee and corporate surety licensed to do business in the State.

  (2) Instead of a corporate surety, either of the following shall be acceptable:

    (a) Deposits of cash or negotiable bonds of the United States Government. The cash deposit or market value of the securities shall be equal at least to the required sum of the bond. The Department, on receipt of any deposit of cash or securities, immediately shall forward it to the State Treasurer, who shall receive and hold the bond in the name of the State, in trust, for the purposes for which the deposit is made. The State Treasurer at all times is responsible for the custody and safekeeping of these deposits. The person making the deposit may demand and receive from the State Treasurer the whole or any portion of any securities so deposited, on depositing with the State Treasurer other negotiable securities of the classes specified in this section having a market value at least equal to the sum of the bond.

    (b) A certificate of deposit, if it is equivalent to the required bond, issued by a bank within the State, and accompanied by written agreement of the bank to pay on demand to the State upon a finding of forfeit by the Secretary.

C. Upon expiration of the time limitations specified in the certification, the Department shall release the bond, provided that all provisions of the certificate and Environment Article, §§7-210—7-268, inclusive, have been satisfactorily met. Failure to fully comply with the provisions set forth above, or revocation of the certificate, shall constitute grounds for the Department to initiate forfeiture proceedings.

D. Forfeiture Proceedings. The Department shall notify the permittee by registered mail of its intent to initiate forfeiture proceedings. The permittee has 30 days to show cause why the bond or cash deposit should not be forfeited.

## Subtitle 14 — Hazardous Substances Response Plan and Voluntary Cleanup

### Chapter 01 — Procedures for Hazardous Substance Response

**Authority:** Environment Article, §§4-405(a)(7), 7-208(e)(10), and 7-208(f), Annotated Code of Maryland

**Administrative History:** Effective date: May 10, 1993 (20:9 Md. R. 781)

#### Regulation .01 Applicability.

*COMAR 26.14.01.01*

A. The Hazardous Substance Response Plan is promulgated pursuant to and shall be read in conjunction with the Environment Article, Annotated Code of Maryland, and the Code of Maryland Regulations (COMAR).

B. The Hazardous Substance Response Plan does not create a right to State response or enforcement action for any private party, nor does the Hazardous Substance Response Plan create any duty of the State to take any response action at any particular time. State actions in implementing the Hazardous Substance Response Plan are discretionary governmental functions. The Department need not follow or implement any provisions of this Hazardous Substance Response Plan if funds are not appropriated or otherwise are not available.

C. The Hazardous Substance Response Plan may be used as guidance concerning methods and criteria for response actions by other parties under other funding mechanisms.

D. The Hazardous Substance Response plan does not establish any preconditions to enforcement action by the State to compel response actions by potentially responsible persons.

E. The Hazardous Substance Response Plan is not intended to create any rights to contested case hearings.

#### Regulation .02 Definitions.

*COMAR 26.14.01.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “County” means Baltimore City and any county within the State.

  (2) “Department” means the Maryland Department of the Environment (MDE).

  (3) “Federal act” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986.

  (4) “Ground water” means water below the land surface in a zone of saturation.

  (5) “Hazardous substance” means any substance:

    (a) Defined as a hazardous substance under the federal act; or

    (b) Identified as a controlled hazardous substance by the Department in the Code of Maryland Regulations.

  (6) “National Contingency Plan (NCP)” means the National Oil and Hazardous Substances Pollution Contingency Plan, 40 CFR 300.

  (7) “Oil” means oil as defined in Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland.

  (8) “Person” means an individual, trust, firm, joint stock company, federal agency, corporation including a government corporation, partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body.

  (9) “Release” means the addition, introduction, leaking, spilling, emitting, discharge as defined in Environment Article, Titles 4 and 7, escaping, or leaching of any hazardous substance or oil into the environment.

  (10) “Remedy” or “remedial action” means those actions consistent with a permanent remedy taken instead of, or in addition to, removal action in the event of a release or threatened release of a hazardous substance or oil into the environment, to prevent or minimize the release of hazardous substances so that the substances do not migrate to cause substantial danger to present or future public health, welfare, or the environment. This term includes, but is not limited to, the remedies described in the federal act.

  (11) “Removal” or “remove” means the cleanup or removal of released hazardous substances or oil from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances or oil into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances or oil, the disposal of removed material, or the taking of other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The terms include, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water supplies, containment of hazardous substances or oil, and other appropriate actions in response to emergencies.

  (12) “Response” or “respond” means remove, removal, remedy, and remedial action. All these terms, including the terms “removal” and “remedial action”, include any related enforcement activities.

  (13) “Responsible person” means a responsible person as defined in Environment Article, Title 7, Subtitle 2, or a person responsible for the discharge as defined in Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland.

  (14) “Secretary” means the Secretary of the Environment.

  (15) “Site” means:

    (a) A building, structure, installation, equipment, pipe or pipeline including any pipe into a sewer or publicly owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft; or

    (b) An area where a hazardous substance or oil has been deposited, stored, disposed of, or placed, or has otherwise come to be located.

#### Regulation .03 Community Relations and Public Information.

*COMAR 26.14.01.03*

A. For Federal National Priorities List sites at which the Department is the lead agency, the Department shall comply with the provisions for public information and community relations set forth in the National Contingency Plan.

B. For sites listed on the Disposal Site Registry where remedial actions are funded entirely by the Hazardous Substance Control Fund, the Department:

  (1) Shall publish the final selection of remedy in a major local newspaper of general circulation; and

  (2) May initiate the community relations and public information procedures set forth in §E of this regulation.

C. For any other responses to releases or threatened releases conducted pursuant to COMAR 26.14.02, the Department may initiate procedures for community relations and public information in accordance with §E of this regulation.

D. The Department may initiate procedures for public information and community relations for any release that may have an impact on the public health or the environment.

E. Community relations and public information procedures may include the following:

  (1) Opportunity for public informational meetings;

  (2) Opportunity for public comment on the proposed selection of remedy; and

  (3) Notice of informational meetings and proposed selections of remedy in a major local newspaper of general circulation.

F. In addition to other community relations and public information procedures, the Department shall, upon any county's request, provide information on sites of interest to the chief health or environment officer of the county, and an opportunity to consult with the Department before the Department's final selection of remedy.

G. In addition to other community relations and public information procedures, the Department may compile and maintain an administrative record that contains the documents that form the basis for the selection of a response action.

#### Regulation .04 Cost Recovery.

*COMAR 26.14.01.04*

Responsible persons shall reimburse the Department for all expenditures from both the Maryland Oil Disaster Containment, Clean-Up, and Contingency Fund and the State Hazardous Substance Control Fund, including but not limited to, costs of response, restoration, oversight, enforcement, investigation, equipment, personnel, fringe benefits, indirect overhead, legal expenses, and interest on the amounts recoverable.

### Chapter 02 — Investigating, Evaluating, and Responding to Hazardous Substance Releases

**Authority:** Environment Article, §§4-405(a)(7), 7-208(e)(10), and 7-208(f), Annotated Code of Maryland

**Administrative History:** Effective date: May 10, 1993 (20:9 Md. R. 781)

#### Regulation .01 General.

*COMAR 26.14.02.01*

When the Department has reason to believe that there is a release or substantial threat of release into the environment of any hazardous substance, the Department may:

A. Add the location of the release or the threatened release to the State Master List of proposed sites;

B. Assess risk to human health and the environment;

C. Decide whether a response should be carried out under State superfund or other enforcement authority;

D. Evaluate and perform or manage removal or remedial response actions; and

E. Request assistance from the federal or local governments.

#### Regulation .02 Discovery.

*COMAR 26.14.02.02*

Methods of discovery by the Department of a site that has the potential for, or has demonstrated, release of a hazardous substance include:

A. Report by owners, employees, or users of the site;

B. Report or complaint by citizens, or State or county agencies, of an observed or suspected release or discharge of hazardous substances, or of information concerning health-related effects; and

C. Investigations or inspections by the Department to identify hazardous sites.

#### Regulation .03 State Master List and State Site Assessment.

*COMAR 26.14.02.03*

A. Placement of Sites on State Master List.

  (1) The Department may place a site on the State Master List if the Department has reason to believe that a hazardous substance has been or may be released at a site or if the Department has been notified that hazardous substances may be present.

  (2) If a site is placed on the State Master List a State site assessment may be conducted.

  (3) Inclusion of a site on the State Master List does not constitute a final decision that response action is necessary.

B. The State site assessment is an initial evaluation of a release or potential release. This evaluation may include a site visit, records search, sampling, and subsurface borings. The Department may use assessments and investigations conducted pursuant to the National Contingency Plan, and information collected by federal, State, or local governments pursuant to other enforcement activities, investigations, or responses.

C. The information gathered during a State site assessment may include:

  (1) Site history and nature of waste handling;

  (2) Description of known contaminants and their pathways of migration;

  (3) Identification of human and environmental targets;

  (4) Recommendation on whether further action is warranted; and

  (5) Other information relevant to the source, any potential health or environmental impacts, and responsible persons.

D. After a State site assessment, the Department may indicate that no further remedial action is planned for a site based upon the available information.

E. Further Response Action. If a site is to be considered for further response action, the Department:

  (1) Shall report the results to the chief health or environment officer of the county in which the site is located; and

  (2) May proceed in accordance with Regulation .04, .05, or .06 of this chapter.

#### Regulation .04 Site Ranking and Listing in the Disposal Site Registry.

*COMAR 26.14.02.04*

A. The Disposal Site Registry (DSR) is a listing of hazardous waste sites in the State, published in the Maryland Register, which ranks sites in priority for State remedial action.

B. All sites in the State listed by EPA on the National Priorities List shall be listed in the DSR.

C. The Department may list any hazardous waste site in the DSR on the basis of public health and environmental threat.

D. The Department shall rank sites listed in the DSR based on the Department's determination of the relative threat to human health and the environment, taking into account potential hazards to the public health and the environment, the risk of fire or explosion, toxic hazards, and the criteria established under the federal act. For sites that have been ranked by EPA, the Hazard Ranking System score shall be used as guidance.

#### Regulation .05 Removal Actions.

*COMAR 26.14.02.05*

A. A removal action may be performed at any stage of the response process, if the Department determines that there is a release or substantial threat of release of hazardous substances into the environment that should be removed, stabilized, or otherwise mitigated.

B. In an emergency, the Department may perform a removal action immediately.

C. If the Department determines that time allows, before beginning a removal action the Department shall make an effort to identify the responsible persons and determine whether those persons will perform the removal action properly and in a timely manner.

D. If a person other than the Department performs the removal, the Department may perform a managerial or oversight function and has the authority to approve, disapprove, or alter the manner in which the removal is being conducted.

E. Unless the Department determines that a removal action will be done properly and in a timely manner by a responsible person, the Department may perform the removal.

F. Extent of Removal.

  (1) Removal is terminated when the Department determines that the threat of release no longer exists or is otherwise mitigated.

  (2) If the Department determines that the removal action does not fully address the threat and the release may require further remedial action, there shall be an orderly transition from removal to remedial response activities.

#### Regulation .06 Remedial Response Activities.

*COMAR 26.14.02.06*

A. The remedial response process consists of several phases, including:

  (1) Determination of the extent of the potential impact on public health and the environment;

  (2) Selection of the remedy, design, and implementation of the remedy; and

  (3) Maintaining and operating the remedy.

B. The Department may modify response procedures set forth in §A of this regulation at sites not listed by the Environmental Protection Agency on the National Priorities List, if the Department determines that this modification will:

  (1) Result in a more efficient response; and

  (2) Be protective of human health and the environment.

C. Responsibility for Performing Remediation.

  (1) Responsible persons may be required to conduct and directly fund a remediation pursuant to an order issued by the Department, EPA, or a court. An order requiring remedial response may set forth specific conditions for the performance of the remediation.

  (2) At sites listed on the National Priorities List, the Department may exercise State authority and oversee response actions.

  (3) Unless the Department determines that a remedial action will be done properly and in a timely manner by a responsible person, the Department may perform the remediation and seek cost recovery.

D. Management of Remediation.

  (1) The Department may provide management oversight of response activities. Management oversight includes, but is not limited to:

    (a) Review, comment, and approval of reports, plans, documents, and data relating to the response action;

    (b) Site visits;

    (c) Sampling; and

    (d) Enforcing compliance with cleanup standards, State or federal laws, regulations, and other requirements.

E. Evaluating Releases or Threats of Releases.

  (1) Investigations shall be conducted to characterize site conditions leading to development of remedial alternatives. These activities to evaluate the nature and threat posed by the hazardous substances may include field and other investigations to:

    (a) Characterize physical features of the site;

    (b) Characterize air, surface water, and ground water;

    (c) Determine waste characteristics including quantity, toxicity, persistence, propensity to bioaccumulate, and mobility;

    (d) Identify environmental pathways and exposure routes; and

    (e) Determine the extent of source contamination.

  (2) The Department shall determine the applicability of cleanup standards and State or federal laws, regulations, and other requirements. In establishing cleanup standards and other requirements the Department may use the following:

    (a) Federal or State maximum contaminant level goals (MCLGs) and maximum contaminant levels (MCLs);

    (b) Background levels of contaminants;

    (c) Risk evaluations performed by the Department based upon site-specific information and current scientific information; and

    (d) Other federal or State standards that may be appropriate or relevant.

F. Determining the Type of Response Action—Selection of Remedy.

  (1) Remedial alternatives shall be developed and evaluated for remedy selection.

  (2) Factors to be considered in evaluating and comparing alternatives include:

    (a) Protection of human health and the environment;

    (b) Compliance with cleanup standards and State or federal laws, regulations, and other requirements;

    (c) Long-term effectiveness and permanence;

    (d) Reduction of toxicity, mobility, or volume through treatment;

    (e) Short-term effectiveness;

    (f) Implementability; and

    (g) Cost.

  (3) To be considered for selection, it is mandatory that any remedial alternative meet the criteria listed as factors in §F(2)(a) and (b) of this regulation.

  (4) The criteria listed as factors in §F(2)(c)—(f) of this regulation are then considered. The lowest cost remedy which provides an acceptable balance of these four criteria may be selected. Types of costs that are considered within the factor in §F(2)(g) of this regulation include:

    (a) Capital costs, including both direct and indirect costs;

    (b) Annual operating and maintenance costs; and

    (c) Net present value of capital and annual operating and maintenance costs.

  (5) During remedy selection, comments from the county in which the site is located and comments from the public shall be considered to the extent practicable, and may be a modifying factor.

  (6) The Department shall select the remedy.

  (7) The Department may approve accelerated remediation, and may divide the site or remedial process into phases, upon a determination that:

    (a) A portion of the remediation can be accomplished expeditiously; and

    (b) The accelerated portion of the remediation would be consistent with the anticipated remedy for the entire site.

G. Implementation of the Remedy.

  (1) The remedial design/remedial action stage includes development of the design of the selected remedy and implementation of the remedy through construction.

  (2) The Department may monitor or enforce compliance of the remedial action with cleanup standards and State or federal laws, regulations, and other requirements.

  (3) Design and implementation of the remedy shall conform with the selected remedy.

  (4) A period of operation and maintenance may follow installation of the remedy.

  (5) Remediation may cease when, in the Department's judgment:

    (a) Sufficient time has elapsed to ensure that contaminant levels have been reduced to levels that are protective of human health and the environment; or

    (b) No detectable contamination remains at the site.

  (6) If the Department determines that the selected remedy is not likely to be effective within a reasonable time, then the Department may require a reevaluation of the selection of remedy in accordance with §F of this regulation.

### Chapter 03 — Voluntary Cleanup Program

**Authority:** Environment Article, Title 7, Subtitle 5, Annotated Code of Maryland

**Administrative History:** Effective date: January 1, 2022 (48:25 Md. R. 1081)

#### Regulation .01 Purpose.

*COMAR 26.14.03.01*

A. Established under Environment Article, Title 7, Subtitle 5, Annotated Code of Maryland, the purpose of the Voluntary Cleanup Program is to:

  (1) Encourage the investigation of eligible properties with known or perceived contamination;

  (2) Protect public health and the environment where cleanup projects are being performed or need to be performed;

  (3) Accelerate cleanup of eligible properties; and

  (4) Provide predictability and finality to the cleanup of eligible properties.

B. The provisions of this chapter establish the requirements for an applicant or participant of the Voluntary Cleanup Program.

#### Regulation .02 Definitions.

*COMAR 26.14.03.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Active enforcement” means after the Department has issued a notice of violation, order, consent order, or enforcement action other than a site complaint and until completion of activities required by that action.

  (2) “Applicant” means a person who applies to participate in the Voluntary Cleanup Program.

  (3) “Certificate of Completion” means a written determination issued to a participant by the Department that meets the requirements described under Environment Article, §7-513, Annotated Code of Maryland.

  (4) “Clean energy” means:

    (a) Solar photovoltaic technology;

    (b) Solar heating;

    (c) Geothermal;

    (d) Wind;

    (e) Biofuels;

    (f) Ethanol;

    (g) Other qualifying biomass, as defined in Public Utilities Article, §7–701(1), Annotated Code of Maryland;

    (h) The ocean, including energy from waves, tides, currents, and thermal differences;

    (i) A fuel cell that produces energy from biofuels, ethanol, or other qualifying biomass;

    (j) Energy efficiency and conservation; and

    (k) Any other technology or service that the Maryland Energy Administration determines will contribute directly or indirectly to the production of energy from renewable or sustainable sources, or to the improvement of efficiency in the use of energy.

  (5) “Contamination” means a release, discharge, or threatened release of:

    (a) A controlled hazardous substance, as defined in Environment Article, §7–201(b), Annotated Code of Maryland; or

    (b) Oil, as defined in Environment Article, §4–401(h), Annotated Code of Maryland.

  (6) “Department” means the Maryland Department of the Environment.

  (7) “Eligible applicant” has the meaning stated in Environment Article, §7–501(f), Annotated Code of Maryland.

  (8) “Eligible property” has the meaning stated in Environment Article, §7–501(g), Annotated Code of Maryland.

  (9) “Federal act” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986.

  (10) “Hazardous substance” means a substance:

    (a) Defined as a hazardous substance under §101(14) of the federal act; or

    (b) Identified as a controlled hazardous substance by the Department in COMAR.

  (11) “Inculpable person” has the meaning stated under Environment Article, §7–501(j), Annotated Code of Maryland.

  (12) “No Further Requirements Determination” means a written determination issued by the Department that meets the requirements described under Environment Article, §7-506, Annotated Code of Maryland.

  (13) “Participant” means an applicant accepted into the Voluntary Cleanup Program.

  (14) “Person” means an individual, trust, firm, joint stock company, federal agency, corporation, including a government corporation, partnership, association, State, municipality, commission, political subdivision of a State, or interstate body.

  (15) “Program” means the Voluntary Cleanup Program established under Environment Article, Title 7, Subtitle 5, Annotated Code of Maryland.

  (16) “Renewable energy” means energy generated from a:

    (a) Tier 1 renewable source, as defined under Public Utilities Article, §7–701(s), Annotated Code of Maryland; and

    (b) Tier 2 renewable source, as defined under Public Utilities Article, §7–701(t), Annotated Code of Maryland.

  (17) “Responsible person” has the meaning stated in Environment Article, §7–201(t), Annotated Code of Maryland.

#### Regulation .03 Fees.

*COMAR 26.14.03.03*

A. Nonrefundable Application Fees. To participate in the Program, an eligible applicant shall:

  (1) Complete and submit an application on a form provided by the Department that includes the information required under Environment Article, §7-506(a)(1)(i), Annotated Code of Maryland; and

  (2) Except as provided under §D of this regulation, pay to the Department:

    (a) An initial application fee of $6,000;

    (b) An application fee of $2,000 for each application submitted subsequent to the initial application for the same property; and

    (c) An application fee of $2,000 for each application that is submitted subsequent to the initial application for a contiguous or adjacent property that is part of the same planned unit development or a similar development plan.

B. Fees for Expedited Determination of Inculpable Person Status. A person that wishes to request an expedited determination of the person’s status as an inculpable person shall pay to the Department a fee of $2,000 upon submission of a written request to the Department for an expedited determination of inculpable person status.

C. Additional Fees.

  (1) If the Department issues a No Further Requirements Determination to a participant conditioned on certain uses of an eligible property or on the maintenance of certain conditions, the participant shall pay to the Department a fee of $2,000.

  (2) If the Department issues a Certificate of Completion to a participant conditioned on the permissible use of an eligible property, the participant shall pay to the Department a fee of $2,000.

  (3) A participant shall pay a fee of $2,000 upon submission of a request to alter a record of:

    (a) A No Further Requirements Determination conditioned on certain uses of an eligible property or on the maintenance of certain conditions that has been recorded in the land records of the local jurisdiction; or

    (b) A Certificate of Completion conditioned on the permissible use of the eligible property that has been recorded in the land records of the local jurisdiction.

D. Waiver of Certain Fees. The Department shall waive the application fees required under §A(2) of this regulation if the applicant certifies that the applicant intends to use the eligible property to generate clean or renewable energy in accordance with Regulation .02 of this chapter.

#### Regulation .04 Clean or Renewable Energy Certification—Eligibility and Application Requirements.

*COMAR 26.14.03.04*

A. Eligibility. An applicant to the Program is eligible for the fee waiver provided under Regulation .03D of this chapter if:

  (1) The intended use for clean or renewable energy has an anticipated yearly energy output of at least 2 megawatts; and

  (2) The applicant completes the certification requirements under §§B—D of this regulation.

B. An applicant shall submit with its Program application a Clean or Renewable Energy Certification on a form provided by the Department.

C. The Clean or Renewable Energy Certification shall include:

  (1) The type of clean energy or renewable energy to be generated at the eligible property;

  (2) The anticipated yearly energy output in kilowatts;

  (3) The construction schedule for the clean or renewable energy installation; and

  (4) The anticipated date energy generation will begin.

D. Upon completion of the Clean or Renewable Energy Certification form, the applicant shall:

  (1) Sign, date, and notarize the form, attesting that all information provided in the form is correct; and

  (2) Submit the form to the Program with the application for the eligible property.

E. If the Department determines that the Clean or Renewable Energy Certification form is incomplete or that the eligible property is not eligible for a fee waiver:

  (1) The Department shall notify the applicant; and

  (2) Before the applicant may be accepted into the Program, the applicant shall either:

    (a) Pay the application fee required under Regulation .03A(2) of this chapter; or

    (b) Resubmit a complete Clean or Renewable Energy Certification form demonstrating that the applicant is eligible for a fee waiver.

#### Regulation .05 . Clean or Renewable Energy Certification — Verification.

*COMAR 26.14.03.05*

A. Not later than 5 years from the date that a Program participant whose application fee was waived is issued a No Further Requirements Determination or a Certificate of Completion, a participant shall submit to the Department verification that the eligible property is generating clean or renewable energy as described in a Clean or Renewable Energy Certification in accordance with this regulation.

B. The verification required under §A of this regulation shall include the current yearly energy output from clean and renewable energy.

C. Upon written request by a Program participant, the Department may issue an extension of the deadline to submit the verification required under §A of this regulation if the participant demonstrates, to the satisfaction of the Department, that the commencement of energy generation at the eligible property as described in the participant’s Clean or Renewable Energy Certification is delayed beyond 5 years from the date of the No Further Requirements Determination or Certificate of Completion due to circumstances outside of the participant’s control.

#### Regulation .06 Clean or Renewable Energy Certification — Payment of Previously Waived Application Fee.

*COMAR 26.14.03.06*

A Program applicant or participant who submitted a Clean or Renewable Energy Certification and whose application fee was initially waived shall pay the application fee required under Regulation .03A(2) of this chapter if:

A. The Department denies the applicant’s application to participate in the Program in accordance with Environment Article, §7-506(f), Annotated Code of Maryland;

B. The applicant withdraws their application to participate in the Program in accordance with Environment Article, §7-506(g), Annotated Code of Maryland;

C. The Department determines the applicant submitted false or inaccurate information in the Clean or Renewable Energy Certification form or the Program application;

D. The participant is withdrawn from the Program in accordance with Environment Article, §7-512, Annotated Code of Maryland;

E. Any permit or certificate necessary to construct the clean or renewable energy project at the eligible property is denied by the Department or the Public Service Commission and any opportunity for appealing the denial has passed;

F. The applicant or participant of the eligible property subject to the approved clean or renewable energy project wants to revise or change the clean or renewable energy project, and the change or revision no longer complies with the provisions in Regulation .02 of this chapter; or

G. The participant fails to timely submit the verification required under Regulation .05 of this chapter, demonstrating that the eligible property is generating yearly energy output of at least 2 megawatts from clean or renewable energy.

#### Regulation .07 Effect of Fee Waivers Under this Chapter.

*COMAR 26.14.03.07*

A fee waiver resulting from a Clean or Renewable Energy Certification under this chapter does not relieve a person from the duty to comply with:

A. The requirements on a person applying to participate or participating in the Program established under this subtitle, Environment Article, Title 7, Subtitle 5, Annotated Code of Maryland, or any other rules or policies of the Department; and

B. Any other federal, State, or local government statute, regulation, or authorization applicable to a person applying to participate or participating in the Program or constructing or operating a clean or renewable energy project.

## Subtitle 15 — Disposal of Controlled Hazardous Substances — Radioactive Hazardous Substances

### Chapter 01 — Radioactive Hazardous Substances Management

**Authority:** Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland

**Administrative History:** Effective date: September 27, 1993 (20:19 Md. R. 1473)

**Administrative History:** Regulation .02B amended effective June 28, 1999 (26:13 Md. R. 1021)

#### Regulation .01 General.

*COMAR 26.15.01.01*

A. This chapter provides definitions of terms, general standards, and overview information applicable to this subtitle.

B. This subtitle sets forth the regulations that govern the management of radioactive hazardous substances (RHS).

C. Nothing in this chapter releases the radioactive hazardous substances generator (RHSG) from requirements prescribed in COMAR 26.13.01—26.13.13, 26.11.01.21, 26.12.01.01, or any other applicable state, federal, or local law or regulation.

#### Regulation .02 Definitions.

*COMAR 26.15.01.02*

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Agreement state” means a state with which the U.S. Nuclear Regulatory Commission has entered into an effective agreement under subsection 274b of the Atomic Energy Act of 1954, as amended.

  (2) “As low as is reasonably achievable (ALARA)” means as low as is reasonably achievable:

    (a) Taking into account the state of technology;

    (b) Taking into account the economics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic considerations; and

    (c) In relation to the utilization of ionizing radiation in the public interest.

  (3) “Chelating agent” means an organic compound that bonds with a central metal atom or ion at two or more points such as amine polycarboxylic acids, hydroxy-carboxylic acids, gluconic acid, and polycarboxylic acids.

  (4) “Compact” means the Appalachian States Low-Level Radioactive Waste Compact entered into by the states of Pennsylvania, Maryland, Delaware, and West Virginia, in accordance with Environment Article, §§7-301—7-306, Annotated Code of Maryland.

  (5) “CHS” means a controlled hazardous substance as described in COMAR 26.13.

  (6) “Department” means the Department of the Environment.

  (7) “Explosive material” means a chemical compound, mixture, or device which produces a substantial instantaneous release of gas and heat spontaneously or by contact with sparks or flame.

  (8) “License” means a material user's authorization issued by the Secretary of the Environment under COMAR 26.12.01.01, another agreement state, or the U.S. Nuclear Regulatory Commission under comparable regulations.

  (9) “Licensee” means a person who is issued a material user's license under COMAR 26.12.01.01 by the Maryland Department of the Environment, another agreement state, or the U.S. Nuclear Regulatory Commission under comparable regulations.

  (10) “Management” means transportation, treatment, storage, or disposal of RHS.

  (11) “Near-surface disposal facility” means a disposal facility in which RHS is disposed of in, or within approximately the upper 30 meters of, the earth's surface.

  (12) “On-site” has the meaning stated in COMAR 26.13.01.03B.

  (13) “Operator” means the person responsible for the overall operation of an RHS facility.

  (14) “Owner” means the person who owns an RHS facility or part of a facility.

  (15) “Person” means:

    (a) An individual;

    (b) A trust;

    (c) A firm;

    (d) A joint stock company;

    (e) A federal agency, to the extent authorized by federal law;

    (f) A corporation, including a government corporation;

    (g) A partnership;

    (h) An association;

    (i) A state;

    (j) A municipality;

    (k) A commission;

    (l) A political subdivision of a state; or

    (m) An interstate body.

  (16) “Pyrophoric liquid” means a liquid that ignites spontaneously in dry or moist air at or below 130°F or 54.5°C.

  (17) Pyrophoric Solid.

    (a) “Pyrophoric solid” means solid material, other than one classed as an explosive, which under normal conditions is liable to cause fires through friction or retained heat from manufacturing or processing, or which can be ignited readily and when ignited burns so vigorously and persistently as to create a serious transportation, handling, or disposal hazard.

    (b) “Pyrophoric solid” includes spontaneously combustible and water-reactive material.

  (18) “Radioactive hazardous substance (RHS)” means a radioactive hazardous substance as defined in COMAR 26.15.02.02. Radioactive hazardous substance is synonymous with low-level nuclear waste and low-level radioactive waste as defined in Environment Article, §7-201, Annotated Code of Maryland, and §2 of the National Low-Level Radioactive Waste Policy Amendments Act of 1985, respectively.

  (19) “Radioactive hazardous substances generator (RHSG)” means a person that produces a radioactive hazardous substance.

  (20) “RCIR” means a document entitled “Maryland State Department of the Environment Regulations for Control of Ionizing Radiation (1985)” which is incorporated by reference in COMAR 26.12.01.01.

  (21) “Regional disposal facility” means a facility within a compact state which has been approved by the Appalachian States Low-Level Radioactive Waste Commission for the disposal of low-level radioactive waste.

  (22) “RHS disposal” means the isolation of RHS from the biosphere inhabited by man and containing his food chains by emplacement in an RHS land disposal facility.

  (23) “RHS facility” means all continuous land and structures, other appurtenances, and improvements on the land, used for treating, storing, or disposing of RHS. A facility may consist of several treatment, storage, or disposal operational units.

  (24) “RHS manifest” means the national uniform low-level radioactive waste manifest appropriately completed and signed by the RHS generator which contains the information required by COMAR 26.15.03.05 and by 10 CFR §20.2006.

  (25) “RHS treatment” means a method, technique, or process including neutralization that is designed to change the physical, chemical, radioactive, or biological characteristics or composition of a radioactive hazardous substance (RHS) so as to render the RHS nonradioactive or nonhazardous, safe for transport, or reduced in volume.

  (26) “Secretary” means the Secretary of the Environment, or the Secretary's designee.

  (27) “Site closure and stabilization” means action that is taken upon completion of operations that prepares the disposal site for custodial care and assures that the disposal site will remain stable and not need ongoing active maintenance.

  (28) “Source” means a person who generates, transports, treats, stores, or disposes of RHS.

  (29) “Stability” means structural stability.

#### Regulation .03 Availability and Confidentiality of Information.

*COMAR 26.15.01.03*

Availability and confidentiality of information contained in documents submitted to the Department under this subtitle shall be subject to the requirements of COMAR 26.13.01.02 and State Government Article, §§10-611—10-630, Annotated Code of Maryland.

#### Regulation .04 Rule-Making Petitions.

*COMAR 26.15.01.04*

Petitions to the Secretary to modify or revoke any provision in this subtitle will be subject to the requirements of COMAR 26.13.01.04 and 26.01.03.03.

### Chapter 02 — Identification, Classification, and Minimum Predisposal Requirements for RHS

**Authority:** Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland

**Administrative History:** Effective date: September 27, 1993 (20:19 Md. R. 1473)

#### Regulation .01 Purpose and Scope.

*COMAR 26.15.02.01*

This chapter identifies those solid wastes which are subject to regulation as RHS under this subtitle. Regulation .02 of this chapter defines RHS. Regulation .03 of this chapter discusses classification of RHS. Regulation .04 of this chapter establishes predisposal requirements for classes of RHS.

#### Regulation .02 Definition of Radioactive Hazardous Substance.

*COMAR 26.15.02.02*

A. “Radioactive hazardous substance (RHS)” means a solid waste that contains or is contaminated with radioactive material emitting primarily gamma or beta radiation and is not transuranic waste or high-level nuclear waste.

B. “RHS” does not include:

  (1) RHS owned or generated by the U.S. Department of Energy;

  (2) RHS owned or generated by the U.S. Navy as a result of the decommissioning of vessels of the U.S. Navy;

  (3) RHS owned or generated by the federal government as a result of any research, development, testing, or production of any atomic weapon;

  (4) Any other RHS with concentrations of radionuclides that exceed the limits established by the U.S. Nuclear Regulatory Commission for class C radioactive waste, as defined by 10 CFR §61.55, in effect on January 26, 1983;

  (5) Waste that, when surveyed at the container surface or, if deemed appropriate by the Secretary, sampled and analyzed, demonstrates the absence of radioactivity that can be distinguished from the background radiation level using radiation detection methods considered appropriate by the Secretary; or

  (6) Excreta from individuals undergoing medical diagnosis or therapy with radioactive material.

#### Regulation .03 Classification of Radioactive Hazardous Substances for Near-Surface Disposal.

*COMAR 26.15.02.03*

A. An RHS is classified according to the concentration of long-lived radionuclides and their shorter-lived precursors.

B. The class of an RHS is determined using Table 1 in §C of this regulation or Table 2 in §D of this regulation, as applicable.

C. Classification Determined by Long-Lived Radionuclides.

  (1) If the RHS contains only radionuclides listed in Table 1, classification is determined as follows:

    (a) If the concentration does not exceed 0.1 times the value in Table 1, the RHS is Class A;

    (b) If the concentration exceeds 0.1 times the value in Table 1, and does not exceed the value in Table 1, the RHS is Class C;

    (c) If the concentration exceeds the value in Table 1, the RHS is greater than Class C and is not generally acceptable for near-surface disposal.

  (2) For RHS containing mixtures of radionuclides listed in Table 1, the total concentration is determined by the sum of fractions rule described in §G of this regulation.

  (3) Table 1.

D. Classification Determined by Short-Lived Radionuclides.

  (1) If the RHS does not contain any of the radionuclides listed in Table 1, classification is determined based on the concentrations shown in Table 2, as follows:

    (a) If the concentration does not exceed the value in Column 1, the RHS is Class A;

    (b) If the concentration exceeds the value in Column 1, but does not exceed the value in Column 2, the RHS is Class B;

    (c) If the concentration exceeds the value in Column 2, but does not exceed the value in Column 3, the RHS is Class C;

    (d) If the concentration exceeds the value in Column 3, the RHS is greater than Class C and is not generally acceptable for near-surface disposal.

  (2) For RHS containing mixtures of the radionuclides listed in Table 2, the total concentration is determined by the sum of fractions rule described in §G of this regulation.

E. Classification Determined by Both Long and Short-Lived Radionuclides. If the RHS contains a mixture of radionuclides, some of which are listed in Table 1, and some of which are listed in Table 2, classification is determined as follows:

  (1) If the concentration of a radionuclide listed in Table 1 does not exceed 0.1 times the value listed in Table 1, the class is that determined by the concentration of radionuclides listed in Table 2;

  (2) If the concentration of a radionuclide listed in Table 1 exceeds 0.1 times the value listed in Table 1, and does not exceed the value in Table 1, the RHS shall be Class C, if the concentration of radionuclides listed in Table 2 does not exceed the value shown in Column 3 of Table 2.

F. Classification of RHS with Radionuclides Other Than Those Listed in Table 1 and 2. If the RHS does not contain any radionuclides listed in either Table 1 or 2, it is Class A.

G. The Sum of the Fractions Rule for Mixtures of Radionuclides. For determining classification of RHS that contains a mixture of radionuclides, a person shall determine the sum of fractions by dividing each radionuclide's concentration by the appropriate limit and adding the resulting values. A person shall take the appropriate limits from the same column of the same table. If the sum of the fractions for the column is less than 1.0, the waste class shall be determined by that column.

H. Determination of Concentrations in RHS. The concentration of a radionuclide may be determined by indirect methods such as use of scaling factors which relate the inferred concentration of one radionuclide to another that is measured, or radionuclide material accountability, if the Secretary finds there is reasonable assurance that the indirect methods can be correlated with actual measurements. The concentration of a radionuclide may be averaged over the volume of the RHS or weight of the RHS if the units are expressed as nanocuries per gram.

#### Regulation .04 Minimum Predisposal Requirements for Classes of RHS.

*COMAR 26.15.02.04*

A. Before shipping RHS for disposal, a person:

  (1) Shall package RHS in conformance with the conditions of the RHS facility permit issued to the site owner or operator to which the RHS will be shipped;

  (2) May not package RHS for disposal in cardboard or fiberboard boxes;

  (3) Shall package RHS that is in a liquid state in sufficient absorbent material to absorb twice the volume of any liquid that is present;

  (4) Shall package solid RHS containing liquid to contain as little free-standing and noncorrosive liquid as is reasonably achievable, but the liquid may not exceed 1 percent of the volume;

  (5) Shall insure that RHS is not readily capable of detonation, of explosive decomposition or reaction at normal pressures and temperatures, or of explosive reaction with water;

  (6) Shall assure that the RHS does not contain, and is not capable of generating, concentrations of toxic gases, vapors, or fumes harmful to persons transporting, handling, or disposing of the waste, except that this does not apply to gaseous RHS packaged in accordance with §A(8) of this regulation;

  (7) Shall treat, prepare, and package RHS that contains pyrophoric materials in a manner which assures that the flash point is above 100°F or 37.8°C;

  (8) Shall package RHS that is in a gaseous state at an absolute pressure that does not exceed 1.5 atmospheres at 20°C;

  (9) May not permit the total radioactivity to exceed 100 curies per container for RHS packages described in §A(8) of this regulation; and

  (10) Shall manage RHS waste containing other hazardous waste or special medical waste, in accordance with the requirements of COMAR 26.13, to reduce, to the maximum extent practicable, the potential nonradiological hazard.

B. Before shipping RHS classes B or C for disposal at an RHS disposal facility, a person shall:

  (1) Insure that the RHS is structurally stable as indicated in §D of this regulation;

  (2) Comply with the following requirements for liquid RHS or RHS containing liquids, notwithstanding the provisions of §A(3) and (4) of this regulation:

    (a) Assure that liquid RHS or RHS containing liquids has been converted into a form that contains as little free-standing and noncorrosive liquid as is reasonably achievable, and

    (b) Assure that the amount of liquid in the RHS does not exceed 1 percent of the volume of the RHS when the RHS is in a disposal container designed to ensure stability, or 0.5 percent of the volume of the RHS for RHS processed to a stable form;

  (3) Reduce void spaces within the RHS and between the RHS and its package, to the extent practicable.

C. A person shall clearly label each package of RHS to identify it as Class A, Class B, or Class C RHS, in accordance with Regulation .03 of this chapter.

D. Structural stability shall be provided by the physical and chemical form used, processing the RHS to a stable form, or placing the RHS in a disposal container or structure that provides stability after disposal.

### Chapter 03 — Standards Applicable to Generators of RHS

**Authority:** Environment Article, Title 7, Subtitle 2, Annotated Code of Maryland

**Administrative History:** Effective date: September 27, 1993 (20:19 Md. R. 1473)

**Administrative History:** Regulation .05 amended effective June 28, 1999 (26:13 Md. R. 1021)

#### Regulation .01 General.

*COMAR 26.15.03.01*

A person who generates RHS using generally or specifically licensed radioactive materials, or materials subject to the general or specific licensing requirements of COMAR 26.12.01.01 or comparable regulations issued by the U.S. Nuclear Regulatory Commission or another agreement state, is subject to these regulations.

#### Regulation .02 Characterization and Management of RHS.

*COMAR 26.15.03.02*

A. A person who generates a solid waste as defined in COMAR 26.13.02.02 shall determine if that waste is an RHS by determining whether the RHS is excluded from the RHS disposal requirements under COMAR 26.15.02.02, or RCIR, §§C.3 and C.4.

B. If radioactive components of the waste are not excluded under §A of this regulation, they shall be managed and disposed of in accordance with this subtitle.

C. A person who generates an RHS which contains, or is contaminated with, another CHS shall also manage that material in compliance with COMAR 26.13.01—26.13.13.

#### Regulation .03 Maryland Identification Number.

*COMAR 26.15.03.03*

A. A person may not manage RHS without first having obtained a Maryland identification number from the Secretary.

B. A generator may obtain a Maryland identification number by applying to the Department. Upon receiving the request, the Department shall assign a Maryland identification number to the applicant.

#### Regulation .04 Transportation of RHS.

*COMAR 26.15.03.04*

Before transportation of RHS outside of the confines of the RHS facility or other location where the RHS is generated, and before delivery to a transporter, an RHS generator shall comply with the applicable packaging and labeling requirements of the regulations appropriate to the mode of transport in 49 CFR 170—189, which is incorporated by reference.

#### Regulation .05 RHS Manifest.

*COMAR 26.15.03.05*

RHS generators, facility owners or operators, and transporters who ship RHS for transfer and disposal shall comply with the manifest requirements of 10 CFR §20.2006.

#### Regulation .06 Disposal of Specific Wastes.

*COMAR 26.15.03.06*

A. A person may dispose of the following RHS in accordance with a general or specific license without regard for the radioactivity of the RHS:

  (1) 0.05 microcurie or less of hydrogen 3 or carbon 14 per gram of medium for liquid scintillation counting;

  (2) 0.05 microcurie or less of hydrogen 3 or carbon 14 per gram of animal tissue averaged over the weight of the entire animal, except that tissue may not be disposed of under this regulation in a manner that would permit its use either as food for humans or as animal feed.

B. This regulation does not relieve the licensee from maintaining records as required in RCIR showing the receipt, transfer, and disposal of the RHS.

C. This regulation does not relieve a person from complying with any other applicable federal or state laws. Radioactive waste which is CHS and which is excluded by regulation from the disposal requirements of the RHS regulations shall be managed in compliance with COMAR 26.13.01—26.13.13.

#### Regulation .07 Annual Report.

*COMAR 26.15.03.07*

A. Except for persons identified in §D of this regulation, a person managing RHS shall prepare and submit a single copy of an annual report to the Secretary by March 1 of each year. The Department shall provide the report form and instructions to be used for the report.

B. A person required to submit an annual report under §A of this regulation shall ensure that the annual report covers RHS management activities during the previous calendar year and includes the following information:

  (1) The facility's name, address, and material user's license number;

  (2) The calendar year covered by the report;

  (3) For facilities that accepted RHS from off site, the materials user's license number of each RHS generator from which the facility received a shipment of RHS during the year;

  (4) A description, and the volume and activity, of each RHS the facility received during the year;

  (5) The method of management for each RHS; and

  (6) For RHS received from generators in states other than those that are party states to the Appalachian States Low-Level Radioactive Waste Compact, the name and address of the compact commission having responsibility, under the terms of P.L. 99-240, the Low-Level Radioactive Policy Amendments Act of 1985, for the state in which the waste was generated.

C. For facilities accepting RHS from off site, a person required to file an annual report under this regulation shall provide the information required by §B of this regulation arranged according to the materials user's license for each generator from whom RHS was received.

D. Persons managing RHS are not required to report the following activities on the annual report required by §A of this regulation:

  (1) Management of RHS generated from the use of radioactive materials which are distributed under RCIR §C.3 or C.4;

  (2) Management of RHS received from a generator who generates RHS using radioactive materials which are distributed under RCIR §C.3 or C.4;

  (3) Disposal of specific waste as allowed under Regulation .06 of this chapter; or

  (4) Management of RHS generated from a production or utilization facility regulated by the U.S. Nuclear Regulatory Commission under 10 CFR §150.15.

#### Regulation .08 Audits.

*COMAR 26.15.03.08*

A. Persons who arrange for transfer of RHS to a near-surface disposal facility permitted by another agreement state or the U.S. Nuclear Regulatory Commission shall establish and maintain an audit program to assure that the waste form, packaging, and content meet the criteria for waste form, packaging, and content of COMAR 26.15.02.04.

B. A person subject to this regulation shall assure that:

  (1) The audits are performed, in accordance with written procedures and check lists, by appropriately trained personnel not having direct responsibility in the areas being audited;

  (2) Audit results are documented, and the results are reviewed by management having responsibility in the area audited; and

  (3) Follow-up action, including correction and reauditing of deficient areas, is taken when indicated.

## Subtitle 16 — Lead

### Chapter 01 — Accreditation and Training for Lead Paint Abatement Services

**Authority:** Environment Article, §§1-404, 6-818, 6-851, 6-852, 6-1001—6-1005, and 7-206—7-208, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.20 adopted as an emergency provision effective November 24, 1995, except Regulations .03, .11, .12, and .13C effective February 24, 1996 (22:24 Md. R. 1874)

**Administrative History:** Regulations .01, .02, .04—.10, .13A, B, and .14—.20 adopted effective May 20, 1996 (23:10 Md. R. 734)

**Administrative History:** Regulations .01 and .13 amended and Regulations .03, .11, and .12 adopted effective August 12, 1996 (23:16 Md. R. 1176)

**Administrative History:** Regulation .01A, C amended effective May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .02B amended effective May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .02B amended as an emergency provision effective January 1, 2012 (38:27 Md. R. 1762); amended permanently effective April 30, 2012 (39:8 Md. R. 536)

**Administrative History:** Regulation .02B amended effective July 1, 2020 (476:13 Md. R. 643)

**Administrative History:** Regulation .02-1 adopted effective November 22, 2004 (31:23 Md. R. 1655)

**Administrative History:** Regulation .03 amended effective June 29, 1998 (25:13 Md. R. 997)

**Administrative History:** Regulation .03F amended as an emergency provision effective January 1, 2012 (38:27 Md. R. 1762); amended permanently effective April 30, 2012 (39:8 Md. R. 536)

**Administrative History:** Regulation .04 amended effective November 22, 2004 (31:23 Md. R. 1655)

**Administrative History:** Regulation .04I adopted effective May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .05B amended effective November 22, 2004 (31:23 Md. R. 1655)

**Administrative History:** Regulation .06F adopted effective June 29, 1998 (25:13 Md. R. 997)

**Administrative History:** Regulation .06F amended effective May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .07B amended effective March 14, 2005 (32:5 Md. R. 581)

**Administrative History:** Regulation .08 amended effective November 22, 2004 (31:23 Md. R. 1655)

**Administrative History:** Regulation .08A amended effective May 19, 2008 (35:10 Md. R. 974); June 18, 2018 (45:12 Md. R. 619)

**Administrative History:** Regulation .08D amended effective May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .09B amended effective May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .09F amended effective November 22, 2004 (31:23 Md. R. 1655); May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .11A, C amended as an emergency provision effective January 1, 2012 (38:27 Md. R. 1762); amended permanently effective April 30, 2012 (39:8 Md. R. 536)

**Administrative History:** Regulation .11A-1 adopted effective May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .11B, C amended effective November 22, 2004 (31:23 Md. R. 1655)

**Administrative History:** Regulation .11C amended effective February 17, 2003 (30:3 Md. R. 182)

**Administrative History:** Regulation .11D amended effective May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .12D amended effective November 22, 2004 (31:23 Md. R. 1655)

**Administrative History:** Regulation .14A adopted effective May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .16 amended effective May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .19 amended effective November 22, 2004 (31:23 Md. R. 1655)

**Administrative History:** Regulation .20D amended effective November 22, 2004 (31:23 Md. R. 1655); May 19, 2008 (35:10 Md. R. 974); June 18, 2018 (45:12 Md. R. 619)

#### Regulation .01 Scope.

*COMAR 26.16.01.01*

This chapter establishes:

A. Requirements and standards for the accreditation of contractors, supervisors, inspectors, project designers, and trainers providing lead paint abatement services for residential, public, or commercial buildings, bridges, or other structures or superstructures;

B. Job performance standards for contractors, supervisors, and other persons disturbing a lead-containing substance in residential, public, and commercial buildings; and

C. Training requirements for workers who perform lead paint abatement services.

#### Regulation .02 Definitions.

*COMAR 26.16.01.02*

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Abatement” means a set of measures designed to eliminate or reduce lead-based paint hazards in residential, public, or commercial buildings, bridges, or other structures or superstructures in accordance with standards established by the Department, which may include:

    (a) The removal of lead-based paint and lead-contaminated dust, the containment or encapsulation of lead-based paint, the replacement or demolition of lead-painted surfaces or fixtures, and the removal or covering of lead-contaminated soil; and

    (b) All preparation, cleanup, disposal, and post-abatement clearance testing activities associated with these measures.

  (2) “Accreditation” means recognition by the Department that a contractor, supervisor, inspector, risk assessor, or training provider is in compliance with the applicable requirements of this chapter.

  (3) “Child care center” has the meaning stated in COMAR 13A.16.01.02B.

  (4) Contractor.

    (a) “Contractor” means a company, partnership, corporation, sole proprietorship, association, self-employed individual, or other business entity.

    (b) “Contractor” includes a public or municipal corporation, or an agency, bureau, department, or instrumentality of federal, state, or local government.

  (5) Inspector.

    (a) “Inspector” means an individual who provides a service as a lead paint inspector technician, or lead paint visual inspector.

    (b) “Inspector” does not include an individual who conducts personal air monitoring or collects other samples to be used solely for the assessment of worker exposures to lead.

  (6) “HEPA” or “high efficiency particulate air” means a filtering system capable of trapping and retaining at least 99.97 percent of all monodispersed particles of 0.3 micron in diameter or larger.

  (7) “Lead-containing substance” means any paint, plaster, or other surface encapsulation material containing more than 0.50 percent lead by weight calculated as lead metal in the dried solid, or more than 0.7 milligram per square centimeter.

  (8) “Lead hazard reduction treatment” means any work that disturbs a lead-containing substance in an Affected Property as defined in Environment Article, §6-801, Annotated Code of Maryland.

  (9) “Lead paint abatement services” means the risk assessment, inspection, or abatement of lead-containing substances.

  (10) “Lead paint inspection contractor” means a contractor that serves as, or employs, an inspector or lead paint risk assessor.

  (11) “Lead paint inspector technician” means an individual who, as a service, determines the presence of a lead-containing substance through the following techniques:

    (a) Use of a portable XRF analyzer;

    (b) Collection of paint samples for submission to a laboratory for analysis;

    (c) Collection of dust samples for submission to a laboratory for analysis;

    (d) Use of chemical tests, such as sodium sulphide and sodium rhodizonate; and

    (e) Any other accepted field method or technique for determining the lead content in paint.

  (12) “Lead paint maintenance and repainting” means in-place management or interim control of a lead-containing substance including, but not limited to, the following activities:

    (a) Removal of loose, chipping, or peeling paint;

    (b) Limited replacement or repair of defective components or other substrates;

    (c) The removal and replacement of windows and related trim; or

    (d) Other measures to prepare lead paint for recoating with a lead-free product, encapsulation, or enclosure.

  (13) “Lead paint removal and demolition” means a service that involves the stripping or other removal of a lead-containing substance from a coated surface, or the removal or demolition of components coated with a lead-containing substance, excluding steel structures.

  (14) “Lead paint risk assessor” means an individual who conducts inspections, interprets information regarding the presence and condition of lead-containing substances, and prepares reports characterizing hazards associated with identified lead-containing substances.

  (15) “Lead paint visual inspector” means an individual who conducts visual inspections and collects dust samples for analysis to verify conformance with the lead risk reduction standards of Environment Article, §6-815 or 6-819, Annotated Code of Maryland.

  (16) “Person” means an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation, or other entity.

  (17) “Person at risk” means a child under 6 years old or a pregnant woman who resides or regularly spends at least 24 hours per week in an affected property.

  (18) “Project designer” means a person who develops specialized work plans for lead paint abatement for residential properties.

  (19) “Provide lead paint abatement services” means to engage in the risk assessment, inspection, or abatement of lead-containing substances.

  (20) “Residential building” means a privately or publicly owned structure, including a house, apartment building, rooming house, hotel, motel, or hospital, which may serve as a permanent or temporary domicile.

  (21) “Structural steel” means the metallic and related structural components of an industrial, commercial, or public structure or superstructure.

  (22) “Supervisor” means an individual responsible for oversight of lead paint abatement and lead hazard reduction treatments.

  (22-1) “Third party examination” means a test required by EPA that is administered by the Department to a student who successfully completes initial training for any of the following lead paint abatement services:

    (a) Lead paint removal and demolition supervisor;

    (b) Lead paint inspector technician; or

    (c) Lead paint risk assessor.

  (23) “Training course” means a category of training conducted by a training provider.

  (24) Training Provider.

    (a) “Training provider” means a person who conducts lead paint abatement training courses.

    (b) “Training provider” does not include an individual providing instruction as an employee of a training provider.

  (25) “Work area” means an area designated by a supervisor within which lead paint abatement services are performed and within which lead dust and debris are contained in accordance with Regulation .11, .12, or .13 of this chapter, as applicable.

  (26) “Worker” means an individual who, under the oversight of a supervisor, works on a lead paint abatement.

  (27) “XRF” means an X-ray fluorescence analyzer which measures the lead content in paint and other materials.

#### Regulation .02-1 Incorporation by Reference.

*COMAR 26.16.01.02-1*

A. In this chapter, the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) 40 CFR §745.225(d) and (e) (2003).

  (2) 40 CFR §745.227(2003).

#### Regulation .03 Applicability of this Chapter.

*COMAR 26.16.01.03*

A. The presence of a lead-containing substance is presumed in any residential building constructed before 1950 unless a person determines that all painted surfaces are lead-free in accordance with §B of this regulation.

B. Determination of lead content in paint shall be based on:

  (1) Use of an XRF by an accredited person;

  (2) Analysis by a qualified laboratory of paint samples from surfaces to be disturbed during the project;

  (3) A specific knowledge of the painting history of the structure; or

  (4) Other procedures approved on a case-by-case basis by the Department.

C. Lead paint abatement services shall be performed only by persons trained or accredited under this chapter.

D. Except as provided in §§E and F of this regulation, performance of maintenance, repair, or renovation work involving the disturbance of a lead-containing substance in a residential building constructed before 1950 is subject to Regulation .11C(2) and (3), and (5)—(8) of this chapter.

E. Except for §G of this regulation and Regulation .11C(5) and (12) of this chapter, performance of maintenance, repair, or renovation work that results in disturbances of a lead-containing substance is excluded from the regulations of this chapter as follows:

  (1) Disturbance of a lead-containing substance associated with plumbing or electrical work that involves 3 square feet or less of surface area in a room; or

  (2) Other disturbances of a lead-containing substance involving 3 square feet or less of surface area in a room, except for window removal or replacement.

F. The following activities are not subject to the regulations of this chapter:

  (1) An owner performing lead hazard reduction treatments in the owner-occupied dwelling unit; or

  (2) A person performing maintenance, repair, or renovation work in an owner-occupied dwelling unit.

G. The use of open flame burning for the removal of a lead-containing substance is prohibited in residential and public buildings and child care centers.

#### Regulation .04 Accreditation.

*COMAR 26.16.01.04*

A. Unless a person is accredited by the Department or trained under this chapter, the person may not provide:

  (1) Lead paint abatement services as a contractor, inspector, lead paint risk assessor, supervisor, or worker; or

  (2) Training to others who provide lead paint abatement services.

B. A person may not hire, contract, or retain a person who is not properly accredited by the Department or trained under this chapter to provide lead paint abatement services.

C. The Department may accredit a person upon:

  (1) Proper completion of an application for accreditation on a form provided by the Department;

  (2) Submission of proof that the applicant has satisfied the requirements for the category of accreditation requested, as specified in this chapter; and

  (3) Payment of the fee required by Regulation .20 of this chapter.

D. The Department may issue a certificate to each person accredited by the Department.

E. Representatives of the Commissioner of Labor and Industry who provide occupational safety and health inspection, consultation, and training services for the Commissioner are recognized, under Environment Article, §6-1003(b)(5), Annotated Code of Maryland, as accredited to perform these services.

F. The Department may recognize accreditation granted by a state other than Maryland, or by a federal agency if:

  (1) The accreditation requirements of that state or agency are equivalent to or exceed the accreditation requirements set forth in this chapter;

  (2) The person accredited by another state or federal agency has maintained accreditation in good standing; and

  (3) In the case of a contractor who is not a self-employed individual, the contractor submits to the Department the certification required by Regulation .09B of this chapter.

G. The Department may accredit persons who have completed training required by this chapter before the effective date of this chapter if the:

  (1) Training course satisfied the requirements of this chapter;

  (2) Training provider has received accreditation from the Department; and

  (3) Applicant for accreditation satisfies all other requirements for accreditation under this chapter.

H. The Department may recognize training received in a training course accredited by a state other than Maryland, or by a federal agency, only if the:

  (1) Department determines that the requirements for the training course are equivalent to, or exceed, the requirements set forth for the comparable category of training in this chapter; and

  (2) Training provider that offers the accredited course provides adequate evidence to the Department regarding individuals who have successfully completed the accredited training course.

I. The Department has the right to perform oversight inspections and audits of all lead paint abatement services and related training.

#### Regulation .05 General Training Requirements.

*COMAR 26.16.01.05*

A. An individual may not provide a lead paint abatement service unless the individual has successfully completed the appropriate accredited training course for that service.

B. The curriculum for each training course shall be developed by the training provider in conformance with standards included in this chapter, including all applicable topics set forth in 40 CFR §745.225(d) and (e), and subject to approval by the Department.

C. The curriculum shall include:

  (1) Required topics, as specified in this chapter;

  (2) Learning activities which include lecture, demonstration of techniques and methods, and direct, hands-on experience; and

  (3) Written instructional and reference materials.

D. Each training course shall include the following core topics:

  (1) Toxic effects of lead on young children, adults, and fetuses;

  (2) Common sources of exposure to lead;

  (3) Routes of exposure to lead;

  (4) Hygiene and work practices to reduce lead exposure;

  (5) Work practices necessary to minimize lead dust concentration;

  (6) Containment, cleanup, and disposal of lead dust and debris;

  (7) How to select, fit test, and maintain appropriate respiratory protection equipment;

  (8) Protection from common work site hazards; and

  (9) Regulatory standards established by the:

    (a) Maryland Department of the Environment,

    (b) Maryland Occupational Safety and Health Act,

    (c) Federal Environmental Protection Agency, and

    (d) Federal Occupational Safety and Health Administration.

E. The hours of instruction required for each course exclude time allotted for meals and breaks.

F. Attendance during the entire course and active participation in the hands-on activities provided for the course are required for successful completion of a course.

G. Identification Card.

  (1) An individual trained to provide a lead paint abatement service shall carry, while engaged in the lead paint abatement service, an identification card issued by a training provider or by the Department.

  (2) Each training provider shall issue, on a form provided by the Department, an identification card to each individual who successfully completes a training course conducted by the training provider.

#### Regulation .06 Examination Requirements.

*COMAR 26.16.01.06*

A. A training provider shall only administer examinations approved or provided by the Department.

B. The examination for a course shall reflect each of the designated content areas for the course and may include written, oral, and practical application components.

C. The training provider shall administer the examination for each course.

D. The Department may establish and administer a qualifying examination for instructors for each category of training course.

E. The passing score for the instructors' examination shall be 90 percent, and the passing score for all other examinations shall be 70 percent.

F. Third-Party Examinations.

  (1) Accreditation for the following lead paint abatement service categories requires a third-party examination after successfully completing and passing an initial course for that particular lead paint abatement service category:

    (a) Lead paint inspector technician;

    (b) Lead paint risk assessor; or

    (c) Lead paint removal and demolition supervisor.

  (2) Before the Department may issue an accreditation certificate to a person for each of the categories in §F(1) of this regulation, that person shall:

    (a) Complete the required course for accreditation or renewal; and

    (b) Attain a grade of 70 percent or greater on the applicable third-party examination.

  (3) The third-party examination may be administered by the Department or by a person approved by the Department who is not a training provider under this chapter.

  (4) The Department may accept the results of third-party examinations conducted under the authority of a state other than Maryland or by EPA as fulfilling the requirements for a third-party examination.

  (5) An applicant for accreditation who has not passed the third-party examination and received a valid identification card within 6 months of receiving a course completion certificate shall retake the appropriate course from a Maryland accredited training provider before reapplying for accreditation from the Department.

  (6) A training provider who is accredited under provisions of this chapter may not administer examinations to meet the requirements of this section.

#### Regulation .07 Lead Paint Abatement Worker Training Requirements for Residential, Commercial, and Public Buildings.

*COMAR 26.16.01.07*

A. General Requirements.

  (1) A lead paint abatement worker shall have:

    (a) Successfully completed an initial course and any review courses, as specified in this chapter;

    (b) Received an identification card, issued by the training provider as proof of training, indicating an expiration date which is 36 months following the completion date; and

    (c) Completed the specified review course before the expiration date.

  (2) A lead paint abatement worker shall have a current valid identification card, issued by the training provider, in the worker's possession at all times when performing lead paint abatement.

  (3) The contractor and supervisor for whom a worker works shall ensure that the worker has a current identification card or other evidence that the worker has satisfied the training requirements of this section before employing the worker to perform lead paint abatement services.

B. Training Requirements.

  (1) Initial Lead Paint Abatement Worker Course.

    (a) The initial lead paint abatement worker course shall:

      (i) Provide at least 14 hours of instructional time with at least 7 hours devoted to hands-on training activity; and

      (ii) Cover the core topics listed in Regulation .05 of this chapter.

    (b) An individual who has successfully completed the initial lead paint abatement worker course is considered to have completed the core topics and 7 hours of the training required for any of the lead paint abatement supervisor courses under Regulation .10 of this chapter.

    (c) Opportunities shall be included for direct observation of, and direct hands-on experience with, common abatement techniques and procedures.

    (d) An individual who has successfully completed a worker training course approved by the Department under provisions of COMAR 26.02.07.11 has satisfied the training requirements of this regulation, except that the individual's training certification shall expire 36 months from completion of the approved worker training course.

  (2) The lead paint abatement worker review course shall:

    (a) Provide at least 7 hours of instruction; and

    (b) Cover the topics included in the initial course, with specific emphasis on new and emerging techniques and procedures.

#### Regulation .08 Project Designer Accreditation Requirements.

*COMAR 26.16.01.08*

A. General Requirements. A project designer shall have:

  (1) Successfully completed the lead paint removal and demolition supervisor course during the previous 24 months;

  (2) Received, as proof of training, an identification card, issued by the training provider, indicating an expiration date which is 24 months following the course completion date;

  (3) Completed the specified review course and passed the examination designated for that course before the expiration date on the identification card; and

  (4) Responsibility for oversight of a large scale lead paint abatement project and shall ensure completion of the abatement project in compliance with the applicable requirements of this chapter, COMAR 26.02.07, and COMAR 26.16.01.

B. Education and Experience. A project designer shall have:

  (1) A bachelor's degree in engineering, architecture, or a related profession, and 1 year experience in building construction and design or a related construction trade, including but not limited to lead paint abatement, carpentry, painting, or demolition; or

  (2) 4 years of experience in building construction and design or a related construction trade, including but not limited to lead paint abatement, carpentry, painting, or demolition.

C. The review course for the project designer shall:

  (1) Provide at least 7 hours of instructional time; and

  (2) Cover the topics included in the initial course, with special emphasis on new and emerging techniques, procedures, and issues.

D. Initial Course Requirements.

  (1) The initial course for the project designer shall provide at least 7 hours of instructional time in addition to the 28 hours of instructional time previously completed during the lead paint removal and demolition supervisor course.

  (2) The course shall cover the following topics:

    (a) The topics required for the lead paint abatement removal and demolition supervisor course as specified in Regulation .10 of this chapter;

    (b) Analytical methods for lead paint hazard assessment;

    (c) Selection and development of an effective lead paint abatement strategy;

    (d) Cost estimation for lead paint abatement;

    (e) Lead paint abatement materials and equipment;

    (f) Lead paint abatement regulations and guidelines;

    (g) Writing lead paint abatement project specifications;

    (h) Waste disposal issues; and

    (i) Insurance and liability issues.

#### Regulation .09 Lead Paint Abatement Services Contractor Accreditation Requirements.

*COMAR 26.16.01.09*

A. A contractor who offers to perform lead paint abatement services shall be accredited.

B. In order to be accredited, a contractor shall pay the fee in Regulation .20 of this chapter and submit to the Department:

  (1) A letter certifying that the contractor will employ, hire, or contract only with:

    (a) Supervisors accredited by the Department in the area for which their expertise is used;

    (b) Workers trained in the work being performed; and

    (c) Accredited inspectors and lead paint risk assessors;

  (2) A letter specifying the area or areas of specialty work for which accreditation is being sought and certifying that the contractor shall offer only those specified services; and

  (3) A certificate stating that the contractor is in good standing with the Department of Assessments and Taxation, if the contractor is a business entity as defined by Corporations and Associations Article, §1-501, Annotated Code of Maryland.

C. Except as provided in §D of this regulation, a contractor shall employ a supervisor to oversee performance of lead paint abatement services.

D. A contractor who is a self-employed individual may perform lead paint abatement services, if the contractor is accredited by the Department as a supervisor.

E. A contractor shall ensure that all employees comply with the requirements of Regulations .11—.13 of this chapter, as applicable.

F. A contractor providing inspection or lead paint risk assessor services:

  (1) Shall comply with all work practice standards set forth in 40 CFR §745.227 and COMAR 26.16.05 for the performance of inspections and collection of paint and dust samples;

  (2) May not have a financial interest in the contractor conducting an abatement project for which the inspection contractor is providing services; and

  (3) May not be a related party to the property owner.

G. The Department may issue a certificate with an expiration date which is 24 months following the date of issuance to a contractor who meets the accreditation requirements of this regulation.

H. Unless the contractor applies for renewal of accreditation before the certificate expiration date, the contractor's accreditation expires as of that date.

I. A contractor shall ensure that its employees, agents, and representatives comply with all applicable requirements of this chapter and COMAR 26.16.02.

#### Regulation .10 Supervisor Accreditation Requirements for Residential, Commercial, and Public Buildings.

*COMAR 26.16.01.10*

A. General Requirements.

  (1) A lead paint abatement supervisor shall have:

    (a) Successfully completed an initial course and passed the examination designated for that course, as specified in this regulation; and

    (b) Received, as proof of training and accreditation, an identification card and a certificate indicating an expiration date which is 24 months following the accreditation date.

  (2) Unless the lead paint abatement supervisor has completed the specified review course, passed the examination designated for that course, and applied for renewal of accreditation before the certificate expiration date, the supervisor's accreditation expires as of that date.

  (3) A lead paint abatement supervisor is responsible for oversight of a lead paint abatement project and shall ensure completion of the abatement project in compliance with the applicable requirements of this chapter and COMAR 26.16.02.

  (4) An accredited lead paint maintenance and repainting supervisor is qualified only to provide oversight of a lead paint maintenance and repainting project.

  (5) An accredited lead paint removal and demolition supervisor is qualified to provide oversight of lead paint removal and demolition as well as lead paint maintenance and repainting, and is only required to apply and submit a fee to the Department for the lead paint removal and demolition category of accreditation.

B. Experience.

  (1) A lead paint removal and demolition supervisor shall have at least 2 years of experience in related construction trades, including but not limited to lead paint abatement, carpentry, painting, or demolition.

  (2) A lead paint maintenance and repainting supervisor shall have at least 6 months of experience in any of the following relevant occupations:

    (a) Construction trades, including but not limited to lead paint abatement, carpentry, painting, or demolition;

    (b) Maintenance supervision; or

    (c) Property management.

C. Lead Paint Removal and Demolition Supervisor Training Requirements.

  (1) Initial Course.

    (a) An initial lead paint removal and demolition supervisor course shall provide at least 28 hours of instruction over at least a 4-day period.

    (b) An initial lead paint removal and demolition supervisor course shall include the following topics:

      (i) The core topics listed in Regulation .05 of this chapter;

      (ii) Regulations governing lead paint abatement activities and projects;

      (iii) Window replacement techniques;

      (iv) Worker safety and health requirements; and

      (v) Safe and effective lead paint abatement practices.

    (c) A lead paint removal and demolition supervisor who, before the effective date of this chapter has successfully completed a training program based on the U.S. Environmental Protection Agency “Lead Abatement Training for Contractors and Supervisors” published in July, 1992, has satisfied the training requirement set forth in this subsection and is eligible to take an examination for accreditation in Maryland.

  (2) A lead paint removal and demolition supervisor review course shall:

    (a) Provide at least 7 hours of instruction; and

    (b) Include all topics included in the initial course, with specific emphasis on new and emerging techniques and procedures.

D. Lead Paint Maintenance and Repainting Supervisor Training Requirements.

  (1) Initial Course.

    (a) The initial lead paint maintenance and repainting supervisor course shall provide at least 14 hours of instructional time over at least a 2-day period.

    (b) The initial lead paint maintenance and repainting supervisor course shall cover the following topics:

      (i) Core topics listed in Regulation .05 of this chapter;

      (ii) Work practices and control measures necessary to minimize lead dust concentrations, including work area preparation, selection and performance of appropriate abatement and window replacement techniques, daily and final cleanup, and waste disposal;

      (iii) Pertinent regulations established by the Department of the Environment; and

      (iv) Management of worker safety and health programs, including respiratory protection and worker right-to-know programs.

  (2) The lead paint maintenance and repainting supervisor review course shall:

    (a) Provide at least 7 hours of instruction; and

    (b) Cover the topics included in the initial course, with specific emphasis on new and emerging techniques and procedures.

#### Regulation .11 Contractor/Supervisor Performance Standards for Residential Buildings and Child Care Centers.

*COMAR 26.16.01.11*

A. Except for performance of lead hazard reduction treatments, persons performing lead paint abatement services shall ensure that the provision of lead paint abatement services involving residential buildings and child care centers conforms to COMAR 26.02.07.

A-1. At least 24 hours but not more than 10 days before beginning lead paint abatement projects for residential buildings, the contractor or supervisor shall notify the Department of the location and anticipated start and completion dates for the projects.

B. On-Site Inspections.

  (1) The accredited supervisor providing oversight for lead paint abatement services shall, at a minimum, conduct an on-site review at the following times:

    (a) At the beginning of a project to ensure that required containment measures are in place; and

    (b) During final cleanup of a project to ensure that all work has been satisfactorily completed and that cleanup is conducted in compliance with COMAR 26.02.07.08 or §C of this regulation, as applicable.

  (2) The accredited supervisor shall be:

    (a) On-site at all times; or

    (b) Available by telephone, pager, or answering service and able to be present at the work site in less than 2 hours.

C. Risk Reduction Work Practices.

  (1) Notwithstanding the provisions of COMAR 26.02.07, lead hazard reduction treatments shall be performed in conformance with this section.

  (2) A person conducting lead hazard reduction treatments may not use methods that are prohibited under COMAR 26.02.07.03.

  (3) A person conducting lead hazard reduction treatments may use any of the following methods:

    (a) Those methods authorized in COMAR 26.02.07.03 and 26.16.02.07; or

    (b) Scraping of loose, chipping, or peeling paint to prepare a surface for repainting or encapsulation, if the person:

      (i) Uses adequate water to prevent airborne dust and to ensure that dust and debris remain damp until the surface and work area can be cleaned and the debris placed in plastic bags for disposal, and

      (ii) Contains any dust and debris as required in §C(6) and (7), of this regulation, as applicable.

  (4) Except for window removal or replacement, disturbance of a lead-containing substance involving 3 square feet or less of surface area in a room during the performance of lead hazard reduction treatments is exempt from §C(2), (3), (6), (7), and (12) of this regulation.

  (5) Whenever repairs or maintenance work will disturb the paint on interior surfaces of an affected property, the owner and supervisor shall make reasonable efforts to ensure that individuals not performing work are not present in the work area and that persons at risk are removed from the affected property when the work is performed.

  (6) If lead hazard reduction treatments involve the disturbance of paint on more than 3 square feet of surface area within a room, or involve window removal or replacement, the supervisor shall ensure that:

    (a) All movable objects are moved:

      (i) Outside of the room which contains a work area, or

      (ii) To a distance of at least 3 feet from the surface on which the work is to be performed, and covered with plastic sheeting at least 4 mils thick;

    (b) Caution signs, with the words, “Caution, Lead Hazard, Keep Out” in bold lettering at least 2 inches high, are posted in a clearly visible location at each entrance to the work area;

    (c) Dust and debris generated during the performance of a lead hazard reduction treatment in an interior work area are contained within the work area;

    (d) Containment of dust and debris generated during performance of a lead hazard reduction treatment in an exterior work area conforms to COMAR 26.02.07.07B(2);

    (e) A person not subject to 29 CFR §1926.62 with Maryland amendments to it under COMAR 09.12.31 shall wear, when present in the work area, a half-mask air purifying respirator equipped with HEPA filters when a heat gun or sander is in use;

    (f) In an occupied dwelling unit, the work area shall be sealed from all other portions of the unit;

    (g) In an occupied dwelling unit, if the work area includes the kitchen, storage areas for food, dishes, and utensils shall be protected so that dust does not reach the interior;

    (h) In an unoccupied dwelling unit, the interior of storage areas for food, dishes, and utensils shall be washed and vacuumed as provided in §C(8) of this regulation;

    (i) Nonmovable objects, such as radiators, refrigerators, stoves, and bookcases, shall be covered with plastic sheeting at least 4 mils thick secured in place;

    (j) Floors in the work area shall be covered with plastic sheeting at least 4 mils thick secured in place; and

    (k) All forced air ventilation in the work area shall be shut down and exhaust and intake points in the work area shall be sealed.

  (7) Wall-to-Wall Carpeting.

    (a) During the conduct of work specified in §C(6) of this regulation, wall-to-wall carpeting which remains in a room shall be protected from lead contamination by at least one layer of plastic sheeting, at least 4 mils thick, secured in place.

    (b) If, during the performance of the lead hazard reduction treatments, the plastic sheeting is torn or punctured, the plastic sheeting shall be immediately repaired or replaced.

    (c) Dust and debris generated during the performance of lead hazard reduction treatments may be wrapped in the plastic sheeting and prepared for disposal, as required under §C(9) of this regulation.

    (d) The plastic sheeting shall be carefully rolled to contain all dust and debris.

    (e) Following the removal of all plastic sheeting, the carpeting shall be thoroughly cleaned with an HEPA vacuum cleaner.

  (8) Cleanup of Work Area. After completion of lead hazard reduction treatments and other activities that may disturb lead paint in a work area, but before applying paint or other surface coatings, the contractor or supervisor shall:

    (a) Deposit all waste from painted surfaces in plastic bags, at least 4 mils thick, and seal the bags;

    (b) Vacuum dust from all surfaces in the work area, except ceilings, with a HEPA vacuum;

    (c) After HEPA vacuum cleaning, as required in §C(8)(b) of this regulation, wash all surfaces, except the ceiling, walls, and carpeted surfaces, with a detergent, changing the wash water at frequent enough intervals to assure adequate cleaning; and

    (d) After washing as required in §C(8)(c) of this regulation, and all surfaces have dried, repaint, as needed, to provide smooth, intact, cleanable surfaces.

  (9) Waste Disposal.

    (a) Waste from painted surfaces shall be removed before a vacant dwelling unit is reoccupied, or not later than 72 hours after the cleanup has been completed in an occupied dwelling unit.

    (b) Transport and disposal of waste from painted surfaces shall be conducted in such a manner as to prevent any of the waste from painted surfaces from becoming air-borne.

  (10) Alternative Procedures.

    (a) The Department may, on a case-by-case basis, allow an alternative procedure for the performance of lead hazard reduction treatments or modified lead hazard reduction treatments, if the contractor or supervisor submits a written description of the alternative procedure to the Department which demonstrates to the satisfaction of the Department that the proposed alternative procedures provide equivalent protection of human health and the environment.

    (b) In all cases in which the Department allows the use of an alternative procedure under §C(11)(a) of this regulation, the Department shall have access to the work area for a 1-year period following completion of the work to determine the continued effectiveness of the alternative procedure.

  (11) Cleanup after Disturbance of a Lead-Containing Substance. A person performing maintenance, repair, or renovation work in a residential building constructed before 1950, that results in a disturbance of a lead-containing substance that involves 3 square feet or less of surface area in a room, shall remove all visible debris created as a result of that work before the person leaves the affected property.

#### Regulation .12 Contractor/Supervisor Performance Standards for Commercial and Public Buildings.

*COMAR 26.16.01.12*

A. Except for performance of lead paint abatement services in residential buildings and child care centers, persons accredited under this chapter shall ensure that lead paint abatement services involving commercial and public buildings conform to this regulation.

B. For the purposes of this regulation:

  (1) “Commercial building” means offices, stores, shops, or other retail space and any building accessible to the public; and

  (2) “Public building” means any government building accessible to the public.

C. Access to Work Area.

  (1) Entry into the work area is limited to:

    (a) Workers and other persons who have met the training or accreditation requirements of this chapter;

    (b) The building owner or the owner's designee;

    (c) A State, county, or local enforcement official or the official's designee; or

    (d) A person approved by the Department to engage in research on lead in buildings.

  (2) In addition to other required signage, the project contractor or supervisor shall post, in a conspicuous location at each entrance into the work area, a sign which includes the phrase “Caution—Lead Hazard, Keep Out” in bold lettering at least 2 inches high.

D. The following activities are prohibited:

  (1) Use of an open flame torch to remove a lead-containing substance;

  (2) Dry sanding or scraping, except with a HEPA filtration system;

  (3) Abrasive blasting, except with a recovery and filtration system approved by the Department;

  (4) Uncontained hydroblasting; and

  (5) Heat gun operating at or above 1,100°F.

E. Control of Emissions and Dust.

  (1) In interior areas, before beginning any activity which may generate lead-containing dust or debris, the supervisor shall remove or cover all furnishings in the work area, and shall securely cover floors and nonmovable objects with plastic sheeting at least 4 mils thick.

  (2) In exterior areas, before beginning any activity which may generate lead-containing dust or debris, the supervisor shall use plastic sheeting and, as necessary, vertical shrouds to contain all visible debris within the work area.

F. Cleanup.

  (1) Cleaning procedures in interior areas shall employ the use of a vacuum cleaner with an HEPA filtration system and wet cleaning with a solution containing at least 1 ounce of 5 percent trisodium phosphate to each gallon of water.

  (2) Dry sweeping and other methods which generate substantial levels of airborne dust may not be used for cleaning.

  (3) At the completion of work each day, the work area shall be cleaned of accumulations of dust and debris.

  (4) At the end of the project, the work area shall be cleaned of all visible dust and debris.

G. Disposal.

  (1) The contractor or supervisor shall ensure compliance with applicable hazardous waste regulations under COMAR 26.13.

  (2) Solid waste which is not classified as hazardous waste shall be secured at the work site and transported to a permitted lined sanitary landfill within 48 hours of completion of the project.

  (3) Liquid waste shall be contained at the work site and managed in accordance with federal, State, and local regulations.

H. Alternative Procedures.

  (1) The Department may, on a case-by-case basis, allow an alternative procedure for abatement of a lead paint hazard if the owner, contractor, or supervisor who uses this procedure submits a written description of the alternative procedure to the Department which demonstrates to the satisfaction of the Department that the proposed alternative procedure provides an equivalent or improved abatement result.

  (2) In all cases in which the Department allows the use of an alternative procedure under §G(1) of this regulation, the owner shall, for a 2-year period after completion of the lead paint abatement project, permit the Department to enter the area where the abatement occurred in order to determine the continued effectiveness of the allowed alternative procedure.

#### Regulation .13 Structural Steel Lead Paint Abatement Training and Accreditation Requirements.

*COMAR 26.16.01.13*

A. Structural Steel Worker Training Requirements.

  (1) The general requirements for lead paint abatement worker training specified in Regulation .07A of this chapter apply to structural steel lead paint abatement workers.

  (2) Initial Training Course Requirements.

    (a) The initial structural steel worker course shall provide at least 7 hours of instruction time.

    (b) The initial course shall cover the following topics:

      (i) Core topics listed in Regulation .05 of this chapter;

      (ii) Control of environmental lead contamination, including establishing and maintaining containment, and disposal of contaminated debris;

      (iii) Prevention of lead exposures, including engineering controls, providing and maintaining ventilation in containment, hygiene, use of personal protection clothing and equipment, and respirator selection, maintenance, and fit testing; and

      (iv) Protection from heat, falls, chemical exposures, and other hazards associated with materials and equipment commonly employed in lead paint removal.

    (c) The course shall provide realistic demonstration of abatement techniques and direct hands-on experience with appropriate techniques.

  (3) The structural steel worker review course shall:

    (a) Provide at least 7 hours of instruction; and

    (b) Cover the topics included in the initial course, with specific emphasis on new and emerging techniques and procedures.

B. Structural Steel Supervisor Accreditation Requirements.

  (1) General Requirements.

    (a) A structural steel lead paint abatement supervisor shall have successfully completed an initial course and passed the examination designated for that course.

    (b) A structural steel lead paint abatement supervisor shall have received, as proof of training, a certificate and identification card indicating an expiration date which is 24 months following the accreditation date.

    (c) Unless the structural steel lead paint abatement supervisor has completed the specified review course, passed the examination designated for that course, and applied for renewal of accreditation before the certificate expiration date, the supervisor's accreditation expires as of that date.

    (d) A structural steel lead paint abatement supervisor is responsible for oversight of any lead paint abatement project involving structural steel and shall ensure:

      (i) Compliance with all applicable regulations; and

      (ii) Completion of the project in an adequate and professional manner.

    (e) A structural steel lead paint abatement supervisor shall have at least 2 years of experience in related construction trades including, but not limited to, abrasive blasting, paint removal, and painting.

  (2) Training Requirements.

    (a) The initial structural steel supervisor course shall provide at least 28 hours of instruction time presented over at least a 4-day period.

    (b) The initial structural steel supervisor course shall cover the following topics:

      (i) Topics listed in §A of this regulation;

      (ii) Control of environmental lead contamination, including establishing and maintaining containment, and disposal of contaminated debris;

      (iii) Worker protection, including engineering controls, hygiene, use of personal protection clothing and equipment, and respirator selection, maintenance, and fit testing; and

      (iv) Use of current, state-of-the-art equipment and techniques used in structural steel lead paint abatement activities.

    (c) The course shall provide realistic demonstration of safe and effective abatement procedures and direct hands-on experience with appropriate techniques.

    (d) The structural steel supervisor review course shall:

      (i) Provide at least 7 hours of instruction; and

      (ii) Cover all topics included in the initial course, with specific emphasis on new and emerging techniques and procedures.

C. Structural Steel Contractor/Supervisor Performance Standards.

  (1) At least 24 hours, but not more than 10 days, before beginning a lead paint abatement involving structural steel, the contractor or supervisor shall notify the Department of the location and anticipated start and completion dates for the project.

  (2) The contractor or supervisor shall:

    (a) Prevent airborne dispersal of lead-contaminated particulate matter, in conformance with COMAR 26.11.06.03; and

    (b) Contain all wastes within the work site or in a secure storage area, and shall dispose of all wastes in accordance with COMAR 26.13.03.

#### Regulation .14 Lead Paint Inspector Technician Accreditation Requirements.

*COMAR 26.16.01.14*

A. General Requirements.

  (1) A lead paint inspector technician shall have successfully completed an initial course, as specified in this regulation, and passed the examination designated for that course.

  (2) A lead paint inspector technician shall have received, as proof of training and accreditation, an identification card and a certificate indicating an expiration date which is 24 months following the accreditation date.

  (3) Unless the lead paint inspector technician has completed the specified review course, passed the examination designated for that course, and applied for renewal of accreditation before the expiration date, the lead paint inspector technician's accreditation expires as of that date.

  (4) A lead paint inspector technician who is employed by or otherwise performs inspections for a lead paint inspection contractor shall conduct inspections to identify and measure the lead content in paint, as specified in COMAR 26.16.05.

B. Training Requirements.

  (1) Initial course.

    (a) The initial lead paint inspector technician course shall provide at least 21 hours of instruction time, presented over at least a 3-day period.

    (b) The initial lead paint inspector technician course shall cover the following topics:

      (i) The core topics listed in Regulation .05 of this chapter;

      (ii) Methods for detecting and measuring lead in paint, dust, and soil;

      (iii) The performance of lead paint surveys;

      (iv) Radiation safety and health, as required to meet radiation licensing provisions referenced in COMAR 26.12.01.01;

      (v) Lead hazard assessment, including the condition of paint, condition of substrate, and other conditions which may contribute to lead exposures; and

      (vi) Regulatory requirements for the abatement or maintenance of lead-containing substances.

    (c) The course shall include demonstration and direct hands-on experience in the:

      (i) Operation of portable XRF analyzers;

      (ii) Collection of paint chips, dust wipe samples, and other environmental samples which indicate the presence of lead hazards; and

      (iii) Use of qualitative chemical tests.

    (d) An individual who, before implementation of this regulation, has successfully completed a training course based on the lead inspector training course published by the U.S. Environmental Protection Agency in April 1993, has satisfied the training required by §B of this regulation and is eligible to take the examination for accreditation in Maryland.

  (2) The lead paint inspector technician review course shall provide at least 7 hours of instruction and shall cover topics included in the initial course, with specific emphasis on new and emerging techniques and procedures.

  (3) The examinations for both the initial and the review course shall include a proficiency test demonstrating the performance of a well-documented survey, using appropriate technologies.

#### Regulation .15 Lead Paint Visual Inspector Accreditation Requirements.

*COMAR 26.16.01.15*

A. General Requirements. A lead paint visual inspector shall have:

  (1) Successfully completed an initial course, as specified in this regulation, and passed the examination designated for that course;

  (2) Received, as proof of training, a certificate and identification card indicating an expiration date which is 24 months following the accreditation date; and

  (3) Completed the specified review course and passed the examination designated for that course before the expiration date.

B. Training Requirements.

  (1) Initial Course.

    (a) The initial lead paint visual inspector course shall provide at least 14 hours of instruction time, presented over at least a 2-day period.

    (b) The initial lead paint visual inspector course shall cover the following topics:

      (i) Core topics listed in Regulation .05 of this chapter;

      (ii) Statutory and regulatory requirements for lead hazard reduction treatments in rental housing;

      (iii) Basic principles of housing construction, including appropriate nomenclature for components to be recorded on inspection forms;

      (iv) Sources of substrate and paint failure;

      (v) Procedures for correcting substrate and paint failure;

      (vi) Potential for lead exposures during and following unsafe maintenance activities;

      (vii) Methods of sampling for and measuring lead in dust; and

      (viii) Documenting and reporting inspection information.

    (c) The course shall include practical experience in documenting untreated and inadequately treated sources of exposure to lead paint, lead dust, and lead debris.

    (d) For an accredited lead paint inspector technician, the initial lead paint visual inspector course is the same as the visual inspector review course.

  (2) The lead paint visual inspector review course shall provide at least 7 hours of instruction and shall cover topics included in the initial course, with specific emphasis on new requirements and procedures.

  (3) The examinations for both the initial and the review lead paint visual inspector courses shall include a proficiency test requiring the documentation of observations of the conditions and appropriate repair of windows, doors, and other architectural components of residential buildings, and proper use of dust samples for analysis of lead content.

#### Regulation .16 Lead Paint Risk Assessor Accreditation Requirements.

*COMAR 26.16.01.16*

A. General Requirements.

  (1) A lead paint risk assessor shall have:

    (a) Successfully completed the lead paint inspector technician course and passed the examination designated for that course; and

    (b) Received, as proof of training and accreditation, an identification card and a certificate indicating an expiration date which is 24 months following the accreditation date.

  (2) Unless the lead paint risk assessor has completed the specified review course, passed the examination designated for that course, and applied for renewal of accreditation before the expiration date, the lead paint risk assessor's accreditation expires as of that date.

  (3) A lead paint risk assessor who is employed by or otherwise performs inspections for a lead paint inspection contractor shall conduct inspections, provide interpretation of information regarding the presence and condition of lead-containing substances, and prepare reports characterizing hazards associated with identified lead-containing substances specified in COMAR 26.16.05.

B. Training Requirements.

  (1) The lead paint risk assessor initial course shall provide at least 14 hours of instruction.

  (2) The initial lead paint risk assessor course shall cover the following topics:

    (a) Epidemiology of lead exposures;

    (b) Lead toxicity;

    (c) Potential relationships between observed conditions and lead exposures;

    (d) Lead paint disclosure requirements for real estate transactions;

    (e) In-place management of lead paint;

    (f) Remodeling and modernization; and

    (g) Sampling for other sources of lead exposure found in soil and drinking water.

  (3) The lead paint risk assessor review course shall provide at least 7 hours of instruction and shall cover topics included in the initial course, with specific emphasis on new requirements and procedures.

C. Experience.

  (1) A lead paint risk assessor shall have:

    (a) Been an accredited lead paint inspector technician for at least 1 year; and

    (b) Satisfied one of the following:

      (i) Conducted at least 20 lead-based paint inspections at separate residential units, public buildings, or commercial properties; or

      (ii) Conducted at least five lead-based paint inspections under COMAR 26.16.05.09 and .10 and 15 lead dust inspections from at least 15 separate residential units, public buildings, or commercial properties.

  (2) All documentation supporting satisfaction of this section shall include the date, time, and site address of all required lead paint inspections and lead dust inspections. The Department may request additional documents and information to verify that the requirements of this chapter have been satisfied.

  (3) Experience attained before the effective date of this chapter may be credited to the experience requirements of this regulation.

#### Regulation .17 Training Provider Accreditation Requirements.

*COMAR 26.16.01.17*

A. The Department may accredit a training provider separately for each training course to be provided by that training provider. Accreditation is based on:

  (1) Approval by the Department of an application submitted by the training provider; and

  (2) An audit, by the Department, of a class conducted by the training provider implementing the curriculum included in the application.

B. Training Provider Accreditation Application Requirements.

  (1) A training provider shall submit to the Department a separate application for accreditation for each training course to be provided.

  (2) The application for each training course shall include:

    (a) A completed application sheet, on a form to be provided by the Department;

    (b) A curriculum, including stated learning objectives, a detailed outline of course content which clearly indicates allocation of time for specified topics, a description of learning activities, and a description of audiovisual and other teaching materials;

    (c) Copies of all printed instructional materials to be provided to students;

    (d) A list of instructors, including a designated primary instructor, who have been accredited under Regulation .18 of this chapter;

    (e) A statement of qualifications for recognized experts who are to serve as instructors, as specified in Regulation .18 of this chapter;

    (f) A description of training facilities which are adequate to accommodate all learning activities specified in the curriculum; and

    (g) A written plan for administering examinations, providing identification cards to students, and submittal of required training records to the Department.

C. Requirements for Training Course Accreditation Renewal.

  (1) A training provider shall submit to the Department, within 1 year of the training course accreditation date or most recent renewal, a written request for training course accreditation renewal.

  (2) The written request for accreditation renewal shall include a statement reflecting efforts of the training provider to maintain an up-to-date training program and describing any changes in course curriculum.

  (3) Unless the Department approves the written request for accreditation renewal and approves an audit of a training class conducted by the training provider implementing the curriculum with changes as indicated in the request for accreditation renewal, the training provider's accreditation expires after 1 year.

D. Training Provider Performance Requirements.

  (1) Each training provider shall maintain records of all individuals who have successfully completed lead paint abatement training courses, to include name, date of birth, test score, training expiration date, and individual identification number.

  (2) Records for supervisor and inspector courses shall also include each trained individual's mailing address and telephone number.

  (3) Records for each training class shall be submitted to the Department, in a format established by the Department, within 10 working days following that class.

  (4) The training provider shall submit, for approval by the Department, proposed changes in course faculty and substantive changes in course content.

  (5) The training provider shall notify the Department at least 48 hours in advance of each scheduled training class.

  (6) The training provider shall present its courses in accordance with the representations made on its application. Deviations from the application by the training provider shall be approved in advance by the Department.

E. Requirements for Foreign Language Courses.

  (1) A training course to be presented in a language other than English is regarded as separate from a training provider's English language version of that training course and requires a separate application for accreditation.

  (2) Instructors for any foreign language course shall meet requirements of Regulation .18 of this chapter and shall be fluent in the language of presentation for the course.

  (3) The training provider for a foreign language course shall provide written instructional and reference materials in the language of presentation for the course and shall provide to the Department written verification of the accuracy of translations for these materials.

  (4) The training provider for a foreign language course shall provide an examination, approved by the Department, in the language of presentation for the course.

  (5) Presentation of an English language course may not be provided through an interpreter to a non-English-speaking class.

#### Regulation .18 Lead Abatement Instructor Requirements.

*COMAR 26.16.01.18*

A. Accreditation.

  (1) The primary instructor and, except as provided in §B of this regulation, any other instructor for a lead paint abatement training course, shall be currently accredited by the Department before participating in the presentation of the course.

  (2) The Department may issue a certificate to an instructor who meets the qualifications specified in this regulation. The certificate shall:

    (a) Specify the training courses which the instructor is qualified to teach; and

    (b) Indicate an expiration date which is 12 months following the date of the instructor accreditation examination or examinations.

  (3) An instructor shall have successfully completed a course which is comparable to that which the instructor will teach and which has been approved by the Department.

  (4) Instructor Accreditation Examination.

    (a) The Department may establish a standardized instructor accreditation examination for each category of training to be provided under these regulations.

    (b) An accredited instructor shall have successfully attained a passing score on the instructor accreditation examination for any category of training which the instructor is to provide.

  (5) Unless the instructor has passed the examination or examinations for the designated course or courses and has applied for renewal of accreditation before the expiration date, the instructor's accreditation expires as of that date.

  (6) Experience. An accredited instructor:

    (a) Shall have documented on-site experience with lead paint abatement projects which have been conducted in accordance with COMAR 26.02.07 or other lead paint abatement standards established by the Department; and

    (b) For a lead paint inspector technician course shall:

      (i) Be an accredited lead paint inspector, and

      (ii) Have at least 6 months of experience in the performance of lead paint inspection work, using portable XRF devices and other relevant techniques.

  (7) An individual who has served as an instructor in a worker training course approved by the Department under COMAR 26.02.07.11 satisfies the training and experience required by §A(6) of this regulation to serve as an instructor for a lead paint abatement worker training course.

B. Recognized Expert.

  (1) Recognized experts include:

    (a) A physician who is board-certified in occupational medicine or who has demonstrated equivalent experience;

    (b) A certified occupational health nurse;

    (c) A certified industrial hygienist;

    (d) A registered environmental sanitarian;

    (e) An accredited lead paint abatement services contractor;

    (f) An accredited lead paint risk assessor;

    (g) A certified safety professional; or

    (h) Other professionals approved on a case-by-case basis by the Department.

  (2) A recognized expert may serve as an instructor in an accredited course under the direction of an accredited instructor.

  (3) A recognized expert may teach only those topics corresponding with the specified areas of expertise.

#### Regulation .19 Suspension or Revocation of Accreditation or Training Identification Card.

*COMAR 26.16.01.19*

A. The Department may suspend or revoke the accreditation or training identification card of a person accredited or trained under provisions of this chapter if the person:

  (1) Misrepresents or falsifies, to the Department, to a client, or to a customer, facts relating to lead paint abatement services;

  (2) Fails at any time to meet the qualifications for accreditation or training established in this chapter;

  (3) Violates provisions of this chapter or other applicable regulatory requirements;

  (4) Is determined by the Department or another competent regulatory authority to be negligent or incompetent in performing lead paint abatement services;

  (5) Issues or uses false or altered accreditation, certificates or training identification cards;

  (6) As a training provider or an instructor, is determined at any time by the Department to provide inaccurate information or inadequate training; or

  (7) Performs an activity at a job site, requiring accreditation or training, without being in physical possession of a current accreditation certificate or training identification card.

B. The Department may send notice of the revocation or suspension of a person's accreditation or training identification card to the person by certified mail. The person may, within 10 days after receipt of the notice, request a hearing. If the Department receives a timely request, the Department shall hold a hearing in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

C. Emergency Suspension.

  (1) The Department may immediately suspend the accreditation or training identification card of a person accredited or trained under provisions of this chapter on a finding that the public health, safety, or welfare requires emergency action.

  (2) The Department shall deliver a written notice to the person that:

    (a) Informs the person of the emergency suspension;

    (b) Cites the regulation or regulations with which the person has failed to comply that is the basis for the emergency suspension; and

    (c) Notifies the person of the right to request a hearing.

  (3) The filing of a hearing request does not stay the emergency action.

  (4) When an accreditation or training identification card is immediately suspended, the person shall immediately:

    (a) Return the accreditation or training identification card to the Department; and

    (b) Stop providing lead paint abatement services.

  (5) A person aggrieved by the action of the Department under this regulation may appeal the Department's action by filing a request for a hearing within 30 days of the delivery of the notice.

  (6) The Secretary's designee shall conduct a hearing within 7 calendar days of the request for a hearing and issue a proposed decision within 10 business days of the close of the hearing record.

  (7) Exception may be filed by an aggrieved person under COMAR 26.01.02.

  (8) The Secretary shall make a final decision under COMAR 26.01.02.

#### Regulation .20 Fees.

*COMAR 26.16.01.20*

A. Fees shall be deposited in the Lead Accreditation Fund.

B. Payment of fees under this subtitle shall be in the form of a personal check, cashier's check, or money order made payable to the Lead Accreditation Fund.

C. Accreditation fees may not be imposed on the following:

  (1) A State or local government;

  (2) An employee of a State or local government providing a lead paint abatement service on behalf of that government; or

  (3) A nonprofit training program.

D. An applicant for accreditation to provide a lead paint abatement service shall submit an application fee in accordance with the following schedule:

E. The renewal fee for each accreditation category is the same as the initial application fee and the applicant shall submit the fee with the application for renewal of accreditation.

F. A self-employed individual who is accredited as a supervisor, inspector, or risk assessor under the provisions of this chapter is a contractor for the purposes of this chapter and is exempt from paying the lead paint abatement services contractor application fee.

### Chapter 02 — Reduction of Lead Risk in Housing

**Authority:** Environment Article, §§1-404, 6-801—6-852, and 6-1001—6-1005, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 adopted as an emergency provision effective February 24, 1996 (22:24 Md. R. 1884)

**Administrative History:** Regulations .01—.07 adopted effective August 12, 1996 (23:16 Md. R. 1177)

**Administrative History:** Regulation .02B amended effective February 22, 1999 (26:4 Md. R. 274); February 17, 2003 (30:3 Md. R. 182); September 29, 2003 (30:19 Md. R. 1335); July 1, 2020 (476:13 Md. R. 643)

**Administrative History:** Regulation .02-1 adopted effective February 17, 2003 (30:3 Md. R. 182)

**Administrative History:** Regulation .02-1 amended effective July 1, 2020 (476:13 Md. R. 643)

**Administrative History:** Regulation .03 amended effective May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .03 amended as an emergency provision effective January 1, 2012 (38:27 Md. R. 1762); amended permanently effective April 30, 2012 (39:8 Md. R. 536)

**Administrative History:** Regulation .03A amended effective February 17, 2003 (30:3 Md. R. 182)

**Administrative History:** Regulation .03B, C amended effective December 20, 2004 (31:25 Md. R. 1792)

**Administrative History:** Regulation .04 amended effective February 23, 2009 (36:4 Md. R. 356)

**Administrative History:** Regulation .04B amended effective December 20, 2004 (31:25 Md. R. 1792); May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .05 amended effective September 29, 2003 (30:19 Md. R. 1335)

**Administrative History:** Regulation .05D amended effective July 1, 2020 (476:13 Md. R. 643)

**Administrative History:** Regulation .05F amended effective February 22, 1999 (26:4 Md. R. 274)

**Administrative History:** Regulation .05L adopted effective May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .06 adopted effective May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .07A amended as an emergency provision effective January 1, 2012 (38:27 Md. R. 1762); amended permanently effective April 30, 2012 (39:8 Md. R. 536)

**Administrative History:** Regulation .08 adopted effective December 20, 2004 (31:25 Md. R. 1792)

#### Regulation .01 Scope.

*COMAR 26.16.02.01*

This chapter establishes requirements and standards for the maintenance and inspection of residential rental properties.

#### Regulation .02 Definitions.

*COMAR 26.16.02.02*

A. In this chapter, the following words have the meanings indicated.

B. Terms Defined.

  (1) “Accredited” means accredited by the Department of the Environment under provisions of COMAR 26.16.01.

  (2) Component.

    (a) “Component” means an architectural element of a dwelling unit, common area, or exterior surface, identified by type and location.

    (b) “Component” includes, but is not limited to:

      (i) A bedroom wall;

      (ii) An exterior window sill;

      (iii) A baseboard in a living room;

      (iv) A kitchen floor;

      (v) An interior window sill in a bathroom;

      (vi) A porch floor;

      (vii) Stair treads in a common stairwell; or

      (viii) An exterior wall.

  (3) “Component type” means a group of like components that:

    (a) Are repeated in more than one room equivalent in a dwelling unit; and

    (b) Have a common substrate.

  (4) “Encapsulant coating” means coating lead-based paint with a material which is applied as a liquid, which forms a durable, long-lasting coating for lead-based paint, and which is approved for use, on a case-by-case basis, by the Department.

  (5) “Lead-based paint” means paint or other surface coating that contains lead in excess of the levels set forth in COMAR 26.16.01.02B(7).

  (6) “Lead-contaminated dust” means dust with a lead content equal to or greater than:

    (a) 10 micrograms per square foot in dust collected from a floor;

    (b) 100 micrograms per square foot in dust collected from a window sill; or

    (c) 100 micrograms per square foot in dust collected from a window well.

  (7) “Lead-free” means, except for factory-applied coatings on metal components, containing no lead-based paint on interior or exterior surfaces.

  (8) “Lead-free replacement window” means a window that:

    (a) Was installed after 1978; or

    (b) Has been determined by an accredited lead paint inspector technician or lead paint risk assessor to contain no lead-based paint.

  (9) “Lead-safe” means:

    (a) Constructed after 1978;

    (b) Certified as lead-safe under Regulation .04 of this chapter; or

    (c) Certified as lead-free under Regulation .05 of this chapter.

  (10) “Limited lead-free” means, except for factory-applied coatings on metal components, meeting the following conditions:

    (a) All interior surfaces of the affected property contain no lead-based paint;

    (b) All exterior painted surfaces of the affected property that were chipping, peeling, or flaking, have been restored with non-lead-based paint;

    (c) No exterior painted surfaces of the affected property are chipping, peeling, or flaking; and

    (d) The owner of an affected property submits to the Department, every 2 years, a certification by an accredited lead paint inspection contractor stating that no exterior painted surface of the affected property is chipping, peeling, or flaking.

  (11) “Room” means an enclosed or semi-enclosed living space, including a defined hallway, within a dwelling unit.

  (12) Room Equivalent.

    (a) “Room equivalent” means an identifiable part of a dwelling unit, common area, or exterior surface.

    (b) “Room equivalent” includes, but is not limited to:

      (i) A room;

      (ii) A foyer;

      (iii) A staircase;

      (iv) A hallway; or

      (v) Exterior sides of a building with the same paint history.

  (13) “Substrate” means the material immediately beneath the painted surface.

  (14) Testing Combination.

    (a) “Testing combination” means a unique combination of room equivalent, component type, and substrate.

    (b) “Testing combination” may include a group of components, having the same painting histories, that are structurally related and adjacent to each other.

#### Regulation .02-1 Incorporation by Reference.

*COMAR 26.16.02.02-1*

The U.S. Department of Housing and Urban Development Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing (Second Edition, July, 2012), Chapter 7: Lead-Based Paint Inspection is incorporated by reference.

#### Regulation .03 Certificate to Verify Satisfaction of the Risk Reduction Standard.

*COMAR 26.16.02.03*

A. The owner of a rental property shall:

  (1) Verify compliance with the risk reduction standard of Environment Article, §6-815, Annotated Code of Maryland, by an inspection for lead-contaminated dust, as specified in §B of this regulation, provided that any chipping, peeling, or flaking paint has been removed or repainted on the exterior painted surfaces of the residential building in which the rental dwelling unit is located and the interior painted surfaces of the rental dwelling unit; or by satisfaction of the requirements in §A(2) of this regulation; and

  (2) Verify compliance with the risk reduction standard of Environment Article, §6-819, Annotated Code of Maryland, by a visual inspection as specified in §C of this regulation, to verify compliance with the required lead hazard reduction treatments, and an inspection for lead-contaminated dust, as specified in §B of this regulation.

B. Inspection for Lead-Contaminated Dust.

  (1) To satisfy the test for lead-contaminated dust under Environment Article, §6-815 or 6-819, Annotated Code of Maryland, an accredited lead paint visual inspector or lead paint risk assessor may issue a certificate of satisfactory lead dust inspection following the laboratory analysis of dust samples that meet the levels in Regulation .02B(6) of this chapter.

  (2) The dust samples shall have been collected during an inspection by an accredited lead paint visual inspector or accredited lead paint risk assessor.

  (3) The visual inspector or lead paint risk assessor shall follow procedures as specified in COMAR 26.16.05.

  (4) If the lead paint visual inspector or lead paint risk assessor identifies chipping, flaking, or peeling paint, a failing certificate shall be issued unless the property has passed a reinspection within 30 calendar days of the initial inspection.

  (5) If no chipping, flaking, or peeling paint is identified during the visual review, the lead paint visual inspector or lead paint risk assessor shall:

    (a) Select dust sample locations which best characterize the potential for lead exposure within a dwelling unit;

    (b) Collect dust samples from the dwelling unit as follows:

      (i) From each room in which there is no window, at least one dust sample shall be collected from the floor;

      (ii) From each room in which there is at least one window that is not a lead-free replacement window, at least two dust samples shall be collected, one of which shall be collected from the window well of a window that is not lead-free and one of which shall be from a window sill or the floor;

      (iii) From each room in which all windows are lead-free replacement windows, there shall be at least one dust sample collected from either a window sill or the floor.

  (6) The lead paint inspection contractor shall issue a certificate, either passing or failing, for every inspection performed.

  (7) The lead paint inspection contractor shall submit a copy of the passing certificate, with a report of all inspection results, laboratory analysis, and all supporting documents to the Department and the property owner, within 10 calendar days following receipt of the laboratory analysis of the dust samples.

  (8) The lead paint inspection contractor shall submit a copy of the failing certificate, with a report of all inspection results, laboratory analysis, and all supporting documents to the Department and the property owner, within 30 calendar days following receipt of the laboratory analysis of the dust samples unless the property or unit has passed a reinspection within 30 calendar days of the initial inspection.

  (9) If the property owner has elected to meet the risk reduction standard by passing the test for lead-contaminated dust, the Department may inspect the property for chipping, flaking, or peeling paint and collect, in the performance of a spot check or other investigation authorized by Environment Article, §6-851 or 6-852, Annotated Code of Maryland, dust samples for laboratory analysis to confirm that the risk reduction standard has been satisfied.

  (10) If the property fails to meet the risk reduction standard for the dust test upon an inspection or re-inspection, the property owner may perform the HEPA vacuum and detergent wash required by COMAR 26.16.01.11 in the room from which the failed dust sample was collected and retest that room in accordance with §B(5) of this regulation.

  (11) The lead paint inspection contractor shall provide 24-hour advance notice to the Department that a dust test will be performed.

  (12) The property owner shall obtain, record, and maintain the following information regarding any contractors, supervisors, or workers that performed or supervised a lead hazard reduction treatment on the property owner's property:

    (a) Names and accreditation numbers for all contractors and supervisors; and

    (b) Names of all workers.

  (13) Upon request by the Department, a property owner shall provide the Department with copies of the records required in §B(12) of this regulation.

C. Visual Inspection.

  (1) An accredited lead paint visual inspector or lead paint risk assessor may conduct a visual inspection to certify compliance with the risk reduction standard of Environment Article, §6-819, Annotated Code of Maryland.

  (2) An accredited lead paint inspection contractor shall issue a certificate of compliance with the risk reduction standard based on:

    (a) A visual inspection of all interior and exterior surfaces of the dwelling unit that establishes performance of all applicable lead hazard reduction treatments required by Environment Article, §6-819, Annotated Code of Maryland; and

    (b) Receipt of a statement with original signature, signed by the accredited supervisor overseeing performance of the lead hazard reduction treatments, that all lead hazard reduction treatments were conducted in accordance with the requirements of Environment Article, §6-819, as applicable, and COMAR 26.16.01.11.

  (3) The visual inspector or lead paint risk assessor shall follow all procedures specified in COMAR 26.16.05.

  (4) The lead paint inspection contractor shall attach to the certificate of compliance:

    (a) A report of all observations regarding the maintenance and cleaning status of the unit recorded during the inspection; and

    (b) The statement required in §C(2)(b) of this regulation, signed by the responsible supervisor.

  (5) The property owner shall obtain, record, and maintain the following information regarding any contractors, supervisors, or workers that performed or supervised any lead hazard reduction treatment:

    (a) Names and accreditation numbers of all contractors and supervisors;

    (b) Names of all other workers.

  (6) Upon request by the Department, a property owner shall provide the Department with copies of the records required in §C(5) of this regulation.

  (7) The lead paint inspection contractor shall submit a copy of the certificate of compliance, with a completed copy of the inspection report, to the Department within 10 calendar days following receipt of the laboratory analysis of the dust samples.

D. Lead Certificate Inventory Sheet.

  (1) All lead paint inspection contractors shall maintain a list of all certificates they have received from the Department, on a form prescribed by the Department.

  (2) Upon request by the Department, an inspector shall provide the Department with a copy of the completed lead certificate inventory sheet required by §D(1) of this regulation.

#### Regulation .04 Certification of Lead-Safe Housing.

*COMAR 26.16.02.04*

A. An accredited lead paint inspection contractor may issue a certificate of lead-safe housing following an inspection that:

  (1) Establishes compliance with the risk reduction standard as specified in Environment Article, §6-815, Annotated Code of Maryland;

  (2) Incorporates the lead dust sample location methods set forth in §B(3) of this regulation; and

  (3) Verifies that all windows are either lead-free or have been treated so that all friction surfaces are lead-free.

B. Inspection for Lead-Contaminated Dust for Certification of Lead-Safe Housing.

  (1) The dust samples for an inspection of lead-contaminated dust for certification of lead-safe housing shall be collected during an inspection by an accredited lead paint visual inspector or accredited lead paint risk assessor.

  (2) The accredited lead paint visual inspector or risk assessor shall follow the lead dust sample collection techniques set forth in COMAR 26.16.05.09.

  (3) Selection of Surfaces for Dust Samples. The lead paint visual inspector or risk assessor shall:

    (a) Select dust sample locations which best characterize the potential for lead exposure within a dwelling unit, to include activity areas for children;

    (b) Collect at least one dust sample from each room in a dwelling unit as follows:

      (i) From each room in which there is no window, at least one sample shall be collected from the floor;

      (ii) From each room in which there is at least one window, at least three samples shall be taken, including one each from a window well, a window sill, and the floor.

C. Within 10 calendar days following receipt of all required laboratory analyses for dust samples collected during an inspection, the inspection contractor shall submit a copy of the certificate, with a report of all inspection results, to the Department.

#### Regulation .05 Certification of Housing as Lead-Free.

*COMAR 26.16.02.05*

A. An accredited lead paint inspection contractor may issue a certificate of lead-free housing after an inspection that verifies that all painted interior and exterior surfaces of an affected property meet Regulation .02B(7) of this chapter.

B. An accredited lead paint inspection contractor may issue a certificate of limited lead-free housing after an inspection that verifies that all painted interior and exterior surfaces of an affected property meet the provisions of Regulation .02B(10) of this chapter.

C. Term Defined. In §D of this regulation, “common area” means stairways, hallways, entrance areas, recreation areas, laundry areas, and garages or other similar areas within a multifamily rental dwelling that are common to individual dwelling units and are accessible to tenants.

D. An affected property that is a multiunit building or multibuilding complex having ten or more dwelling units may be certified to be lead-free based on testing of less than all dwelling units, common areas, and exterior surfaces if:

  (1) The building or complex is demonstrated to be of uniform construction or painting history;

  (2) Selection of dwelling units, common areas, and exterior surfaces to be tested is based on an accepted technique for generating and assigning random numbers to produce an unbiased sample;

  (3) The determination of the minimum number of dwelling units, common areas, and exterior surfaces to be tested is in accordance with Table 7.3: Number of Units to be Tested in Multi-family Building or Developments, found in the U.S. Department of Housing and Urban Development Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing (Second Edition, July, 2012), Chapter 7: Lead-Based Paint Inspection;

  (4) The following procedures are performed for the selected dwelling units, common areas, and exterior surfaces in the building or complex:

    (a) Identify all testing combinations in each room equivalent;

    (b) Obtain at least one XRF reading or paint sample analysis for each testing combination in each room equivalent;

    (c) Obtain at least one XRF reading or paint sample analysis for each wall in each room equivalent;

    (d) Record each XRF reading or paint sample analysis for each testing combination in a format approved by the Department;

    (e) Classify each testing combination as positive or negative for the presence of lead-based paint;

    (f) Aggregate data according to component type in a format approved by the Department; and

    (g) Do one of the following:

      (i) Test at least 40 testing combinations of a given component type;

      (ii) For multiunit buildings or multibuilding complexes with less than 40 components of a given component type, test all of that component type; or

      (iii) Treat a component type as positive for the presence of lead based paint in the entire multiunit building or multibuilding complex;

  (5) The following conditions are met for each component type:

    (a) If 5 percent or greater of a component type test positive for lead-based paint:

      (i) Remove lead-based paint from all components of that component type; or

      (ii) Test all of that component type and remove lead-based paint from each component that tests positive for lead-based paint; and

    (b) If less than 5 percent of a component type test positive for lead-based paint:

      (i) Remove lead-based paint from all components of that component type; or

      (ii) Conduct a second random sample of that component type in previously untested dwelling units, common areas, or exterior surfaces, and if less than 2.5 percent of the combined test results are negative for lead-based paint, remove lead-based paint from every component type that tests positive for lead-based paint.

E. A property owner may confirm any positive XRF reading by laboratory analysis of a paint sample, reporting the result in milligrams per square centimeter.

F. An affected property that is a multiunit building or multibuilding complex having ten or more dwelling units may be certified to be limited lead-free based on testing of less than all dwelling units if the:

  (1) Interior surfaces comply with §D of this regulation; and

  (2) Exterior surfaces comply with Regulation .02B(10)(b)—(d) of this chapter.

G. Factory-Applied Coatings.

  (1) An affected property in which lead-based paint is detected only in factory-applied coatings of metal components may be certified to be lead-free.

  (2) The inspector technician or risk assessor shall indicate the presence of factory-applied lead-based paint on metal components in the inspection report.

H. An accredited lead paint inspector technician or an accredited lead paint risk assessor shall conduct the inspection for lead content in paint.

I. Determination of lead content in paint for each tested interior and exterior surface of an affected property shall be based on either laboratory analysis of paint for lead or analysis by a portable XRF in accordance with COMAR 26.16.01.02B(7).

J. The conduct of the inspection for lead content in paint shall follow procedures included in the lead paint inspection contractor's approved protocol, as required by COMAR 26.16.01.09.

K. Surfaces of an affected property are lead-free when:

  (1) Each painted surface is determined to be lead-free based upon either laboratory analysis or XRF analysis of paint for lead; or

  (2) Lead paint has been fully removed and lead paint removal is verified by a visual inspection by an accredited inspector or risk assessor before the surface is repainted or covered, and applicable requirements of COMAR 26.02.07 are met.

L. Within 10 days of issuing a certificate, the inspection contractor shall submit to the Department a copy of the certificate with a summary report of inspection results to include:

  (1) The number of XRF testing locations recorded, and a summary of XRF testing results;

  (2) The number of paint samples submitted for laboratory analysis and a summary of laboratory results, including confirmation of inconclusive XRF results;

  (3) A list of exterior components from which paint has been removed under §K of this regulation;

  (4) For a multiunit building or complex in which the units were randomly sampled under this regulation, the following information in a format approved by the Department:

    (a) A list of all tested dwelling units and other interior surfaces; and

    (b) An itemized list of all rental dwelling units that are subject to either the lead-free or limited lead-free certificate; and

  (5) A statement that reads “This certification of housing as lead-free is based on testing for lead paint to satisfy the requirements of Environment Article, §6-804, Annotated Code of Maryland. This is not a warranty that the building is free of lead hazards.”

M. The inspection contractor shall maintain a full report recording all inspection results for an affected property certified to be lead-free under this regulation for a period of 5 years following issuance of the certificate, and shall provide a copy of this report to the Department upon request by the Department.

#### Regulation .06 Issuance of Failing Certificate.

*COMAR 26.16.02.06*

A. If an inspection demonstrates that a unit has not been brought into compliance with the applicable standards under Environment Article, §6-804, 6-815, or 6-819, Annotated Code of Maryland, the unit is considered to have failed the inspection and a failing certificate shall be issued.

B. If a unit fails inspection, the lead paint inspection contractor shall submit a copy of the failing certificate to the Department within 30 calendar days following the inspection or receipt of the laboratory analysis of dust samples.

#### Regulation .07 Encapsulant Coating of Lead-Based Paint.

*COMAR 26.16.02.07*

A. Application of an encapsulant coating used to meet risk reduction standards under Environment Article, §6-819(a)(2), Annotated Code of Maryland, shall conform to the standards of this regulation.

B. An encapsulant coating using fiberglass mats shall:

  (1) Fully cover the surface which contains lead-based paint; and

  (2) Be secured at all edges.

C. The use of encapsulant coating with any product which does not include a fiberglass mat may be approved by the Department on a case-by-case basis.

D. Continued Inspection and Maintenance Requirements.

  (1) The owner shall conduct and document a visual inspection of each encapsulant coated surface within 1 year following the issuance of the certificate, and annually after that, to determine the presence of any defect in the encapsulant coating materials.

  (2) The owner shall promptly repair any defect in the encapsulant coating materials which is reported to the owner or which is observed during the owner's inspection.

#### Regulation .08 Invalid Certificate.

*COMAR 26.16.02.08*

A. A certificate is invalid if the inspector or risk assessor is not accredited at the time it is issued.

B. A certificate issued by an accredited inspector or risk assessor following procedures set forth in the lead paint inspection contractor's approved protocols, as required by COMAR 26.16.01.09, may be invalidated by the Department if:

  (1) The accreditation of the lead paint inspection contractor had expired before the issuance of the certificate; and

  (2) Application for renewal was not submitted to the Department in a timely manner.

### Chapter 03 — Procedures for Making and Implementing a Qualified Offer

*Repealed*

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.09 adopted as an emergency provision effective February 24, 1996 (22:24 Md. R. 1887); adopted permanently effective August 12, 1996 (23:16 Md. R. 1178)

**Administrative History:** Regulation .04 amended effective February 23, 2009 (36:4 Md. R. 356)

**Administrative History:** Regulation .05B amended effective February 23, 2009 (36:4 Md. R. 356)

**Administrative History:** Regulation .05C adopted effective February 23, 2009 (36:4 Md. R. 356)

**Administrative History:** Regulations .01—.09 repealed effective June 18, 2018 (45:12 Md. R. 620)

### Chapter 04 — Verifiable Methods Approved by the Department

**Authority:** Environment Article, §§1-404 and 6-801—6-852, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01 and .02 adopted as an emergency provision effective February 24, 1996 (22:24 Md. R. 1887); adopted permanently effective August 12, 1996 (23:16 Md. R. 1178)

**Administrative History:** Regulation .01 amended effective June 18, 2018 (45:12 Md. R. 620)

**Administrative History:** Regulation .02 amended effective June 18, 2018 (45:12 Md. R. 620)

#### Regulation .01 Scope.

*COMAR 26.16.04.01*

This chapter sets forth verifiable methods for sending notice when notice is required under Environment Article, 6-801—6-852, Annotated Code of Maryland.

#### Regulation .02 Manner of Sending Notice.

*COMAR 26.16.04.02*

In any instance when notice is permitted by a verifiable method under Environment Article, §§6-817, 6-819, 6-820, and 6-823, Annotated Code of Maryland, notice shall be sent by any method in which written receipt may be acknowledged by the intended recipient, agent, or representative.

### Chapter 05 — Procedures for Performing Lead Paint Abatement Services

**Authority:** Environment Article, §§1-404, 6-801—6-852, 6-1001—6-1005, and 7-206—7-208, Annotated Code of Maryland

**Administrative History:** Effective date: May 19, 2008 (35:10 Md. R. 974)

**Administrative History:** Regulation .01 amended effective July 1, 2020 (476:13 Md. R. 643)

**Administrative History:** Regulation .02B amended effective July 1, 2020 (476:13 Md. R. 643)

**Administrative History:** Regulation .03 amended effective June 18, 2018 (45:12 Md. R. 620); July 1, 2020 (476:13 Md. R. 643)

**Administrative History:** Regulation .07 amended effective February 23, 2009 (36:4 Md. R. 356)

**Administrative History:** Regulation .08 amended as an emergency provision effective January 1, 2012 (38:27 Md. R. 1762); amended permanently effective April 30, 2012 (39:8 Md. R. 536)

**Administrative History:** Regulation .09D amended effective June 18, 2018 (45:12 Md. R. 620)

**Administrative History:** Regulation .10A, B amended effective July 1, 2020 (476:13 Md. R. 643)

**Administrative History:** Regulation .12B, C amended effective July 1, 2020 (476:13 Md. R. 643)

#### Regulation .01 Scope and Applicability.

*COMAR 26.16.05.01*

A. This chapter governs the performance of lead paint abatement services in Maryland.

B. A person performing a lead inspection, lead risk assessment, or clearance inspection shall:

  (1) Be accredited by the Department; and

  (2) Comply with the applicable procedures in this chapter.

C. A lead paint risk assessor shall perform an inspection for a poisoned-child investigation in accordance with the environmental investigation protocols specified in COMAR 26.16.08.

#### Regulation .02 Definitions.

*COMAR 26.16.05.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Lead-based paint inspection” means a surface-by-surface evaluation of painted surfaces to determine if the concentration of lead exceeds State standards.

  (2) “Quantitation limit” has the meaning stated in COMAR 26.02.07.02B.

  (3) “Risk assessment” means an inspection to determine the presence of lead hazards.

#### Regulation .03 Incorporation by Reference.

*COMAR 26.16.05.03*

In this chapter, the following documents are incorporated by reference:

A. 40 CFR §745.227, as amended;

B. Standard Practice for Collection of Settled Dust Samples Using Wipe Sampling Methods for Subsequent Lead Determination (ASTM Standard E1728/E1728M-20, 2020 Edition); and

C. Standard Specification for Wipe Sampling Materials for Lead in Surface Dust (ASTM Standard E1792-03, Reapproved 2016).

#### Regulation .04 Notice to the Department.

*COMAR 26.16.05.04*

A person shall provide the Department advance notice before performing an inspection under this chapter. Notice shall be in writing and shall be provided by hand delivery, facsimile, or mail and shall be received by the Department at least 24 hours before the commencement of the inspection.

#### Regulation .05 MDE 330 Certificate.

*COMAR 26.16.05.05*

A. Inspections performed under this chapter to satisfy the Maryland Reduction of Lead Risk in Housing Act requirements shall be documented on MDE 330 certificates and supporting forms according to procedures established by the Department. MDE 330 forms may not be used for any other purpose.

B. All results of passing inspections shall be submitted to the Department within 10 days of performing a visual inspection, or within 10 days of obtaining laboratory analysis of dust samples.

C. All results of failing inspections shall be submitted to the Department within 30 days of performing a visual inspection, or within 30 days of obtaining laboratory analysis of dust samples.

#### Regulation .06 Lead-Based Paint Inspections.

*COMAR 26.16.05.06*

A. Lead-based paint inspections for single-family housing or multiple-unit housing shall be performed in accordance with COMAR 26.16.02.05.

B. XRF Sampling.

  (1) XRF calibration checks shall be performed in accordance with the manufacturer's specifications and most recent performance characteristics sheet (PCS).

  (2) XRF analyzers shall be checked according to the manufacturer's specifications.

  (3) Calibration check readings shall be:

    (a) Recorded on the calibration check test results form prescribed by the Department; or

    (b) Stored in the instrument's memory and printed out or transferred to a computer.

  (4) The MDE 330 Form E shall be used to record a summary of the inspection.

C. Paint Chip Sampling.

  (1) Paint chip sampling for the purpose of issuing a lead-free inspection certificate may not be performed in occupied units except when verifying XRF inconclusive samples according to the PCS.

  (2) Paint chip samples collected in occupied units to verify XRF inconclusive samples shall be collected from the location the XRF reading was obtained.

  (3) Areas where paint chip samples were collected shall be repainted with nonlead-based paint or the equivalent.

  (4) The inspection company shall notify the property owner and tenants of units where lead-free paint chip sampling is performed of the results not later than 10 days following the results being received by the inspection company.

  (5) Paint chip sampling shall be performed using the following tools:

    (a) Sharp stainless steel paint scraper or equivalent;

    (b) A wipe which is a disposable towelette moistened with a wetting agent that meets specifications of the American Society for Testing Materials International (ASTM) Specification E 1792, for cleaning paint scraper or equivalent;

    (c) Nonsterilized polyethylene centrifuge tube or other sealable rigid container;

    (d) Nonsterilized nonpowdered latex or similar gloves; and

    (e) Field sampling and laboratory submittal forms.

  (6) Paint chip samples shall be collected in accordance with the following requirements:

    (a) The paint chip sample area shall be in accordance with the (ASTM) standard E 1792;

    (b) Persons collecting paint chip samples shall wear new disposable gloves for each sample;

    (c) The surface directly below the area to be sampled shall be covered with 4-millimeter-thick plastic sheeting or equivalent to ensure that any paint dust or debris generated during the sample collection is collected for disposal;

    (d) Paint chip sampling shall be performed by moving the paint scraper over a painted surface using enough pressure to remove all paint layers down to the substrate;

    (e) The paint chip sample material shall be collected in a screw top centrifuge tube or other sealable rigid container;

    (f) The 4-millimeter-thick plastic sheeting shall be removed from below the sample area;

    (g) Following the collection of the sample, the sample location and surface directly below the sample location shall be cleaned using wet wipes, or equivalent;

    (h) The sample location and number shall be recorded on the sample collection container and field sampling paperwork;

    (i) Chain of custody form shall be completed and provided to the courier;

    (j) All paint chip samples shall be analyzed by a laboratory approved by the National Lead Laboratory Accreditation Program (NLLAP); and

    (k) Lead-based paint inspection results shall be reported on forms prescribed by the Department.

D. Lead-free paint inspection for multi-unit buildings may be certified lead-free by XRF or paint chip sampling performed in accordance with COMAR 26.16.02.05D.

#### Regulation .07 Lead-Safe Housing Inspections.

*COMAR 26.16.05.07*

A lead-safe housing inspection shall be performed in accordance with COMAR 26.16.02.04.

#### Regulation .08 Visual Inspections Performed to Verify Compliance with Environment Article, Title 6, Subtitle 8, Annotated Code of Maryland.

*COMAR 26.16.05.08*

A. A visual inspection performed under COMAR 26.16.02.03 shall be conducted by a State-accredited visual inspector or risk assessor.

B. Modified risk reduction certificates of compliance issued under Environment Article, §6-819, Annotated Code of Maryland, the MDE 330 form, based on a visual inspection performed under this regulation shall be accompanied by a supervisor's statement of work, signed by the accredited supervisor responsible for the lead abatement work and a report prepared by an accredited inspector as required in COMAR 26.16.02.

C. Modified risk reduction inspections based on a visual inspection shall verify the following:

  (1) Interior and exterior painted surfaces are free of chipping, peeling, or flaking paint;

  (2) The dwelling unit is free of structural defects that could cause the paint to chip, peel, or flake;

  (3) All interior windowsills where lead based paint or untested paint exists have been repainted, replaced or encapsulated with vinyl, metal, or other material, in a manner and under conditions approved by the Department;

  (4) All window wells where lead based paint or untested paint exists are smooth and cleanable and have been capped with vinyl, aluminum, or other materials in a manner and under conditions approved by the Department;

  (5) Subject to federal, State or local fire code standards, all nonreplacement and untreated windows have the top sash fixed to eliminate the friction caused by movement of the top sash;

  (6) All doors have been rehung as necessary to prevent friction of lead painted surfaces;

  (7) All kitchen and bathroom floors are overlaid with a smooth, water-resistant covering; and

  (8) The unit is free of all visible dust, debris, or residue.

  (9) Notification of the Department.

    (a) Within 2 business days following completion of lead hazard reduction treatments in a rental unit, the visual inspector or risk assessor shall notify the Department by telephone or facsimile that the work has been completed.

    (b) The visual inspector or lead paint risk assessor may send a copy of the report of a visual inspection specified in COMAR 26.16.02.03C, with a postmark or other evidence of transmittal dated not more than 2 working days following the inspection, to the Department instead of notification by telephone or facsimile.

    (c) Upon notification of completed work, the Department or the Department's designee may:

      (i) Conduct an audit, under provisions of Environment Article, §§6-851 and 6-852, Annotated Code of Maryland, of the completed work;

      (ii) Record observations and collect dust samples for laboratory analysis to evaluate the effectiveness of the risk reduction treatments in accordance with Environment Article, §6-810, Annotated Code of Maryland, and to determine if lead dust levels present a threat of acute danger to public health or to the environment.

#### Regulation .09 Dust Wipe Inspections Performed to Establish Compliance with Environment Article, §§6-815 and 6-819, Annotated Code of Maryland.

*COMAR 26.16.05.09*

A. An inspection for lead-contaminated dust shall be conducted in accordance with COMAR 26.16.02.03 by a State-accredited visual inspector or risk assessor.

B. Risk reduction certificates based on dust sampling shall include a visual review of all interior and exterior painted surfaces of the rental dwelling unit to verify there is no chipping, peeling, or flaking paint.

C. Lead dust samples shall be collected using the following tools:

  (1) A template or method of marking a measured area on floors, window sills, and window wells;

  (2) Wipes meeting the requirements of Regulation .06C(5)(b) of this chapter;

  (3) Nonsterilized nonpowdered latex or similar disposable gloves;

  (4) Nonsterilized 50 milliliter polyethylene centrifuge tubes with caps;

  (5) Dust sample collection forms;

  (6) Masking tape; and

  (7) Trash bags.

D. All lead dust wipe inspections shall include field blank samples collected in accordance with ASTM Standard E1728 at a minimum frequency of:

  (1) 5 percent per day or one blank sample for every 20 samples collected; and

  (2) In no case fewer than one blank sample for each day of inspections.

E. Dust wipe samples shall be collected in accordance with ASTM Standard E 1728 or equivalent.

F. If using a pre-measured template, thoroughly clean the template with a wipe as specified in Regulation .06C(5)(b) of this chapter between each use.

G. Laboratory Analytical Procedure.

  (1) Samples shall be submitted to an NLLAP approved laboratory for analysis.

  (2) The field sample number shall be entered on the field sampling form, laboratory submittal form, and the container.

  (3) The name of the laboratory, date the samples were sent to the laboratory, and names of all personnel handling the sample from the time of collection to the time of arrival at the laboratory shall be recorded on a chain of custody form.

#### Regulation .10 Clearance Inspections for Abatement Projects.

*COMAR 26.16.05.10*

A. Following a lead abatement project, performed in accordance with COMAR 26.02.07, a lead paint visual inspector, inspector technician, or risk assessor accredited by the Department shall perform a clearance inspection for lead-contaminated dust to determine if the lead content in dust is less than the levels stated in COMAR 26.16.02.02B.

B. A Department-accredited lead paint visual inspector, inspector technician, or risk assessor shall collect dust samples from each interior room where lead abatement was performed, using all of the dust sample collection procedures specified in Regulation .09 of this chapter.

C. Samples shall be taken from the following:

  (1) At least one sample from the floor;

  (2) At least one sample from a window sill; and

  (3) At least one sample from a window well.

D. Rooms containing no window in the abatement area require the collection of only one floor sample.

#### Regulation .11 Lead Risk Assessments.

*COMAR 26.16.05.11*

Lead risk assessments shall be performed in accordance with 40 CFR §745.227. Lead risk assessments under this chapter may not be conducted to issue a certificate to satisfy the Maryland Reduction of Lead Risk in Housing Act.

#### Regulation .12 Collection and Laboratory Analysis of Samples.

*COMAR 26.16.05.12*

A. Determination of lead content in paint shall be in accordance with COMAR 26.16.01.03B.

B. A person that collects a paint chip, dust, or soil sample in accordance with the procedures contained in this chapter shall be accredited by the Department as a lead paint inspector technician, visual inspector, or risk assessor and employed by a Department-accredited contractor.

C. A lead paint inspector technician, visual inspector, or risk assessor shall submit a collected sample for analysis to a laboratory:

  (1) Recognized by the U.S. Environmental Protection Agency under 15 U.S.C. §2685(b) as accredited under the National Lead Laboratory Accreditation Program; and

  (2) That demonstrates it can achieve a quantitation limit equal to or less than:

    (a) 20 percent of the lowest level of lead content in paint that constitutes a lead-containing substance, as stated in COMAR 26.16.01.02B;

    (b) 20 percent of the lowest action level or regulatory limit for lead content in soil established under 40 CFR §745.65(c) or a more stringent standard published by the Department; or

    (c) 50 percent of the lowest level of lead content in dust that constitutes lead-contaminated dust, as stated in COMAR 26.16.02.02B.

#### Regulation .13 Record Keeping.

*COMAR 26.16.05.13*

A. A person who performs lead inspection services shall maintain all reports, plans, and forms required under this chapter for at least 5 years.

B. The Department reserves the right to conduct oversight inspections of all lead inspections performed under this chapter.

### Chapter 06 — Lead in Children's Products

**Authority:** Environment Article, §§1-404 and 6-1301—6-1311, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 adopted as an emergency provision effective August 21, 2009 (36:19 Md. R. 1433); adopted permanently effective October 19, 2009 (36:21 Md. R. 1594)

#### Regulation .01 Scope.

*COMAR 26.16.06.01*

This chapter establishes requirements and standards for the testing and certification of children's products.

#### Regulation .02 Definitions.

*COMAR 26.16.06.02*

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Distribute” means to place children's products into the Maryland stream of commerce to be sold or offered for sale in Maryland.

  (2) “Distributor” means a person who places children's products into the Maryland stream of commerce to be sold or offered for sale in Maryland.

  (3) “Import” means to bring children's products from a foreign or external source into the Maryland stream of commerce to be sold or offered for sale in Maryland.

#### Regulation .03 Certification of Children's Products.

*COMAR 26.16.06.03*

A. A United States manufacturer, or if the manufacturer is not a United States manufacturer, the importer of record, of a children's product, for which a children's product certification is required under federal law, shall issue a written certificate that certifies that the children's product is not a lead-containing product.

B. Before issuing a certificate, a United States manufacturer, or if the manufacturer is not a United States manufacturer, the importer of record, shall verify that the children's product was tested, as required by Regulation .04 of this chapter.

C. The certificate shall be on a form created by the Department or a document that includes the following information:

  (1) A statement that the children's product is not a lead-containing product;

  (2) The name of the manufacturer; and

  (3) The date and place of manufacture.

#### Regulation .04 Testing.

*COMAR 26.16.06.04*

A. A certificate issued in accordance with Regulation .03 of this chapter shall be based on:

  (1) A test of each children's product; or

  (2) A testing program recognized by federal law.

B. Testing shall be conducted on parts, components, and coatings of a children's product that are accessible to a child through normal and reasonably foreseeable use and abuse of the product.

#### Regulation .05 Maintenance of Documents.

*COMAR 26.16.06.05*

A. A person shall maintain a copy of all documents required to be maintained by Environment Article, §6-1304(c) and (d), Annotated Code of Maryland, for at least 3 years after the person is last in possession of the children's product.

B. A person shall provide to the Department or any person a copy of all documents required to be provided by Environment Article, §6-1304(c) and (d), Annotated Code of Maryland, within 30 days of a written request.

#### Regulation .06 Reporting of Lead Containing Products.

*COMAR 26.16.06.06*

A. If a person determines that a person has manufactured, sold, offered for sale, imported, or distributed a children's product in violation of Environment Article, §6-1303, Annotated Code of Maryland, the person shall report the violation to the Department.

B. Within 24 hours of determining the violation has occurred, the person shall submit a report to the Department on a form created by the Department or that includes the following information:

  (1) The identity of the children's product found to be a lead-containing product;

  (2) The identity of all the components found to be part of the lead-containing product;

  (3) All the lead levels in violation of Environment Article, §6-1303, Annotated Code of Maryland, found in the components of the children's product; and

  (4) All lead testing results for the children's product found to be in violation.

C. Within 15 days after discovering a lead-containing product in violation of Environment Article, Title 6, Subtitle 13, Annotated Code of Maryland, the person shall submit a report to the Department, including all the information set forth in Environment Article, §6-1305(b), Annotated Code of Maryland.

#### Regulation .07 Sale of Existing Inventory.

*COMAR 26.16.06.07*

A children's product placed into the Maryland stream of commerce before the effective date of this chapter is not subject to this chapter's requirements if it is in compliance with the Federal Hazardous Substances Act and federal law and is sold to a consumer within 90 days after the effective date of this chapter.

### Chapter 07 — Lead in Drinking Water — Public and Nonpublic Schools

**Authority:** Environment Article, §§6-1501—6-1502, Annotated Code of Maryland

**Administrative History:** Effective date: April 9, 2018 (45:7 Md. R. 347)

#### Regulation .01 Purpose.

*COMAR 26.16.07.01*

This chapter requires public and nonpublic schools to test their drinking water outlets for lead contamination and establishes an ongoing program to minimize the risk of exposure to lead in the school’s drinking water and establishes an action level of 20 parts per billion (ppb) for lead in drinking water in school buildings.

#### Regulation .02 Scope.

*COMAR 26.16.07.02*

This chapter establishes requirements and standards for lead monitoring in occupied public and nonpublic school buildings serving prekindergarten through grade 12 students where drinking water to the building is provided by a public water system. This chapter does not apply to a public or nonpublic school that is regulated as a public water system in accordance with the requirements of COMAR 26.04.01.

#### Regulation .03 Definitions.

*COMAR 26.16.07.03*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Action level” means the level of lead which, if exceeded, requires the school to complete steps including remedial action, notification, and follow-up sampling.

  (2) “Bottled water” means water that is intended for human consumption and that is sealed in bottles or other containers and meets the National Primary Drinking Water regulations for all regulated contaminants.

  (3) “Certified laboratory” means a laboratory certified by the Maryland Department of the Environment to analyze drinking water samples for lead.

  (4) “Department” means the Maryland Department of the Environment.

  (5) “Designated responsible person” means an individual identified by the school to serve as the point of contact for implementation of and compliance with this regulation, including documentation, proper sampling and follow up, and timely reporting.

  (6) Drinking Water Outlet.

    (a) “Drinking water outlet” means a potable water fixture that is used for drinking or food preparation.

    (b) “Drinking water outlet” includes:

      (i) A drinking fountain, including both bubbler and water cooler styles;

      (ii) An ice-making machine;

      (iii) A hot drink machine;

      (iv) A kitchen sink;

      (v) A classroom combination sink with drinking fountain;

      (vi) A sink in a home economics classroom;

      (vii) A teachers’ lounge sink;

      (viii) A nurse’s office sink;

      (ix) A sink in a special education classroom; and

      (x) Any other sink known to be used for human consumption.

    (c) “Drinking water outlet” does not include an outlet clearly signed as not a drinking water outlet.

  (7) “Elevated level of lead” means a lead concentration in drinking water that exceeds the concentration of 20 ppb in a 250 milliliter (mL) first-draw, as recommended by the EPA in technical guidance documents for schools, including “3Ts for Reducing Lead in Drinking Water in Schools”.

  (8) “First-draw sample” means a 250 mL sample of tap water that has been standing in plumbing 8 to 18 hours and is collected without flushing the tap.

  (9) “Flushed sample” means a 250 mL sample of tap water that has been drawn from an outlet immediately after the outlet has been run for at least 30 seconds.

  (10) “Lead-free” means plumbing that meets the definition of “lead-free” as defined by Business Occupations and Provisions Article, §§12-101, 12-605.1, and 12-605.2, Annotated Code of Maryland.

  (11) “MSDE” means the Maryland State Department of Education.

  (12) “Nonpublic school” means an elementary or secondary school, other than a public school, offering education for prekindergarten through grade 12 wherein any child may legally fulfill compulsory school attendance requirements.

  (13) “Public school” means a school, including a charter school, that is maintained at public expense for the education of the children of a community or district and constitutes a part of a system of free public education for prekindergarten through grade 12.

  (14) Public Water System.

    (a) “Public water system” means a water supply system that provides water for human consumption through pipes or other constructed conveyances to at least 15 service connections or regularly serves at least 25 individuals, as defined in COMAR 26.04.01.

    (b) “Public water system” includes water supply sources such as ground water wells, springs, rivers, reservoirs, or lakes.

  (15) “Sampling bottle” means a precleaned, high-density polyethylene, wide-mouth, single use 250 mL labeled bottle.

  (16) “School” means an individual school or a school system.

  (17) School Building.

    (a) “School building” means any structure, facility, addition, or wing of a school that may be occupied by children or students prekindergarten through grade 12.

    (b) “School building” does not include a building used solely for administrative purposes.

  (18) “School day” means any day on which school is in session.

  (19) “Technical guidance” means the most recent technical guidance documents issued by EPA for reducing lead in drinking water in schools, such as the “3Ts for Reducing Lead in Drinking Water in Schools” (2006) and any subsequent technical guidance documents issued by EPA for reducing lead in drinking water in schools.

#### Regulation .04 Applicability and Authority.

*COMAR 26.16.07.04*

A. This chapter applies to the testing of drinking water from drinking water outlets in occupied public or nonpublic school buildings, except as noted in §B of this regulation.

B. This chapter does not apply to a public or nonpublic school if the school’s water system is classified as a public water system and is already subject to testing for lead under COMAR 26.04.01.06-2.

C. Each school shall establish that it:

  (1) Has a school-specific plan for testing prior to each sampling event;

  (2) Has a plan for remedial action if an elevated level of lead is detected;

  (3) Has identified a designated responsible person who will ensure that this regulation is followed; and

  (4) Maintains records of sample dates and times, sample types, sample locations, types of outlets sampled, results of testing, waivers granted, and all actions taken.

D. The Department and MSDE employees may enter school buildings upon reasonable notice.

#### Regulation .05 Waivers.

*COMAR 26.16.07.05*

A. The Department, in consultation with MSDE, may grant a waiver from the testing required under this regulation if a school submits a written request for a waiver, using a form generated by the Department, along with the required documentation that:

  (1) The following two conditions have been met:

    (a) All drinking water outlets in the school building were tested, no more than 5 years before the effective date of this regulation, for the presence of lead in a manner that complies with this chapter, including analysis by a certified laboratory; and

    (b) All test results are at a level of 5 ppb or lower in all drinking water outlet samples;

  (2) The following two conditions have been met:

    (a) Students in the building do not have access to water from any drinking water outlet; and

    (b) Bottled water is the only source of water for drinking water and food preparation in the school building; or

  (3) A school demonstrates that the school building meets the following:

    (a) The service line and all plumbing connecting the school to the water main are lead-free;

    (b) All interior plumbing in the school building is lead-free; and

    (c) Certification of lead-free status shall be documented on a form developed by the Department.

B. Schools are subject to all requirements of this regulation until they receive written approval from the Department granting the waiver.

C. Substantive plumbing upgrades or renovations to the school, or changes in the corrosivity of the public water supplied to the school may invalidate a waiver.

D. The school shall notify the Department within 30 days if it no longer meets the conditions of the waiver or if the conditions in §C of this regulation are met.

E. If a school notifies the Department that it no longer meets the conditions of the waiver, it is then subject to all requirements of this regulation. The school may reapply in the future if it satisfies §A of this regulation.

#### Regulation .06 Testing Requirements.

*COMAR 26.16.07.06*

A. All public and nonpublic schools that are not classified as a public water system and have not been granted a waiver shall conduct initial testing for the presence of lead in every drinking water outlet located in an occupied public or nonpublic school building. Bathroom and classroom sinks not clearly signed as not a drinking water outlet are subject to testing under this section.

B. Testing shall be prioritized as follows:

  (1) Drinking water outlets in school buildings constructed before 1988 and school buildings serving students in prekindergarten through grade 5 shall initially be tested before July 1, 2018.

  (2) Drinking water outlets in school buildings constructed in 1988 or later and serving students in grade 6 through grade 8 not already subject to testing under this chapter shall initially be tested before July 1, 2019.

  (3) Drinking water outlets in school buildings constructed in 1988 or later and serving students in grade 9 through grade 12 not already subject to testing under this chapter shall initially be tested before July 1, 2020.

C. In cases where there is overlap between or among these student age specifications testing shall be conducted by the earlier specified deadline.

D. The Department, in consultation with MSDE, may grant a deferral of initial testing from the requirements of §§A—C of this regulation, if either of the following situations apply:

  (1) A deferral, not to exceed 3 years past the date stipulated in this regulation, may be granted if:

    (a) The school submits a written request for a deferral on a form generated by the Department;

    (b) The request documents that all drinking water outlets in the school building have been tested for the presence of lead in a manner that complies with this chapter; and

    (c) The request documents that analysis by a certified laboratory confirming the most recent test results indicate that elevated levels of lead were not found in water samples from any drinking water outlet; or

  (2) A deferral, not to exceed 12 months past the date stipulated in this regulation, may be granted if:

    (a) The school submits a written request for a deferral on a form generated by the Department;

    (b) The request documents that the school has a plan in place for testing all drinking water outlets; and

    (c) The plan details actionable steps to be taken if an elevated level of lead in a drinking water outlet in the school building is found.

E. Testing shall be conducted during the regular school year and while school is in session. All drinking water outlets must be sampled within the same school calendar year.

F. In school buildings put into service after the effective date of this regulation, initial first-draw samples shall be performed within 1 year of the date of occupancy. Testing shall be performed during the regular school year and while school is in session.

G. Schools shall conduct lead monitoring on every drinking water outlet at a frequency of every 3 years unless the school has been granted a waiver by the Department.

H. Schools shall conduct lead monitoring within 1 year following substantive plumbing upgrades or renovations.

#### Regulation .07 Standard Sampling Method.

*COMAR 26.16.07.07*

A. Schools shall collect samples in accordance with the following procedures:

  (1) Collect 250 mL first-draw samples in prelabeled sampling bottles.

  (2) Collect samples from the cold water tap.

  (3) If the outlet has an aerator, leave the aerator in place during sampling.

  (4) If the outlet has a filter, sample without the filter.

  (5) Determine if one chiller serves more than one fountain; if it does, collect first-draw samples from each fountain.

  (6) Follow all laboratory or Department instructions for collecting, handling, and submitting water samples.

  (7) Samples must be acidified within 14 days of collection unless sample bottles are pre-acidified by the laboratory.

B. Schools shall ensure that samples have appropriate water age in the following ways:

  (1) Collect samples of water that have been sitting in pipes for at least 8 hours but not more than 18 hours.

  (2) Samples may be collected from outlets in which the water exceeds the 18 hour stagnation period if these outlets are used infrequently, and this stagnation period represents normal use patterns.

C. Schools shall ensure that samples are analyzed:

  (1) By a laboratory certified by the Department for lead analysis;

  (2) Within 6 months of preservation; and

  (3) In accordance with EPA method 200.8, EPA method 200.9, or current method approved in 40 CFR §141.23 or COMAR 26.04.01.01-1.

D. Schools shall complete the following records for each sample collected:

  (1) Record the type of sample;

  (2) The building address;

  (3) The location within the building;

  (4) The specific tap tested;

  (5) The date and time the water was last used;

  (6) The date and time the sample was collected;

  (7) The name and contact information of the sample collector for each sample collected, as indicated in guidance developed by the Department; and

  (8) The completed chain of custody form.

#### Regulation .08 Response to Samples Indicating Elevated Levels of Lead.

*COMAR 26.16.07.08*

After being notified by the laboratory of an elevated level of lead in a drinking water outlet, schools shall:

A. Within 24 hours, prevent all physical access to water from the drinking water outlet until the problem is mitigated;

B. Within 5 school days, collect a flushed sample from each outlet for which the first-draw sample result exceeded 20 ppb of lead;

C. Have the flush sample analyzed by a certified laboratory; and

D. Continuously maintain an adequate supply of drinking water to school occupants that meets the current Safe Drinking Water Act standards.

#### Regulation .09 Notification Requirements Following Detection of Elevated Levels of Lead.

*COMAR 26.16.07.09*

A. The school shall provide a notice of all lead sample results with an elevated level of lead to:

  (1) The parent or legal guardian of each student attending the school within 10 school days of the school’s receipt of the laboratory report; and

  (2) Teachers and other employees within 10 school days of the school’s receipt of the laboratory report.

B. Notice shall be posted on the school website within 30 school days of the school’s receipt of the laboratory results.

C. The notices shall include:

  (1) The results of the lead testing and the locations of corresponding sample sites;

  (2) A summary of federal and State drinking water standards relative to lead;

  (3) An explanation of the health effects of lead;

  (4) The sources of human exposure to lead, including drinking water;

  (5) School contact information;

  (6) Immediate actions taken and next steps; and

  (7) The steps consumers can take to reduce exposure to lead in drinking water.

#### Regulation .10 Remedial Plan of Action.

*COMAR 26.16.07.10*

A. If elevated levels of lead are found in any drinking water outlet, the school shall determine and document a remedial plan of action to permanently reduce the lead level or replace the outlet, plumbing, or service line contributing to the elevated level of lead.

B. The school shall provide its remedial plan of action to the Department and MSDE within 30 school days of receiving laboratory results of first-draw testing indicating elevated levels of lead in drinking water outlets.

C. The school shall include one or more of the following actions in its remedial plan of action:

  (1) Permanently close access to the outlet or remove the outlet;

  (2) Install and maintain a point of use filter at the outlet;

  (3) Repair, reconfigure, or replace the outlet, plumbing, or service line contributing to the elevated level of lead;

  (4) Install and maintain automatic flushing of outlets after testing confirms that the lead level in the outlet after flushing is not elevated. The automatic flushing outlets shall be installed in:

    (a) Kitchen sinks;

    (b) Teachers’ lounge sinks;

    (c) Home economics classroom sinks;

    (d) Nurse’s office sinks;

    (e) Other sinks in the building; and

    (f) Other outlets as approved by the Department;

  (5) Provide bottled water;

  (6) Check grounding wires and, if existing wires are grounded to water pipes, find an alternative grounding system; and

  (7) Reconfigure plumbing to bypass sources of lead contamination.

D. The school may resume service at a location where an elevated level of lead was found only after:

  (1) Remedial action has been taken;

  (2) Follow-up first-draw lead sampling has been conducted; and

  (3) The outlet no longer has an elevated level of lead.

E. The school shall report remedial measures taken to the Department and MSDE no later than 30 school days after implementation and include all actions taken and the associated dates.

F. The school shall post on the school’s website remedial measures taken no later than 30 school days after implementation and include all actions taken and the associated dates.

G. The dates and results of all follow-up lead sampling shall be reported to the Department and MSDE within 10 school days of receipt of results from the laboratory.

#### Regulation .11 Reporting.

*COMAR 26.16.07.11*

A. Every sample result of lead shall be reported to the Department, MSDE, and the appropriate local health department within 30 days after the samples were analyzed with the following information:

  (1) The date and time the water was last used in the school building;

  (2) The date and time of sample collection; and

  (3) The specific tap tested;

  (4) The sample collector name and contact information; and

  (5) The school building address.

B. The school shall certify to the Department and MSDE and the appropriate local health department no later than 30 days after the end of the school calendar year in which the samples were collected or 30 days after the samples were analyzed, on a form generated by the Department, that all drinking water outlets in the school building were tested in accordance with this regulation, and provide the following information:

  (1) The total number of samples collected;

  (2) The dates the samples were collected; and

  (3) The number of samples with elevated levels of lead.

C. Remedial actions taken with the corresponding dates shall be reported in accordance with this chapter.

D. Within 30 days of any notification as required in this chapter, the school shall certify to the Department and MSDE, using a form provided by the Department, that the notification has been completed.

E. The Department and MSDE shall jointly report to the Governor and Maryland General Assembly on or before December 1, 2018, and on or before December 1 each year thereafter:

  (1) The name and address of each school that has tested its drinking water for lead during the reporting period;

  (2) The name and address of each school found to have elevated levels of lead in its drinking water;

  (3) The type of outlet from which a drinking water sample with an elevated level of lead was collected and its location in the building; and

  (4) The use of each water outlet with an elevated level of lead and the levels detected.

#### Regulation .12 Record Keeping.

*COMAR 26.16.07.12*

Each school shall maintain the following records for a minimum of 10 years and make them available if requested by the Department or MSDE:

A. Sampling plan that includes the location and types of all drinking water outlets;

B. Names and responsibilities of all individuals and/or laboratories involved in sampling and testing;

C. Records related to sampling and testing, including date, type of sample, and results;

D. Immediate actions taken, by whom, and dates;

E. Remedial action plan and documented actions;

F. Records related to lead-free plumbing;

G. Records related to bottled water; and

H. Waiver requests, supporting documentation, and the Department’s decision regarding the waiver.

### Chapter 08 — Environmental Investigations

**Authority:** Environment Article, §§
              6-304,
              6-305,
              6-801,
              6-819,
              6-846, and
              6-1001—
              6-1005, Annotated Code of Maryland

**Administrative History:** Effective date: July 1, 2020 (47:13 Md. R. 643)

**Administrative History:** Regulation .05 amended effective May 25, 2026 (53:10 Md. R. 458)

#### Regulation .01 Purpose.

*COMAR 26.16.08.01*

The purpose of this chapter is to establish the:

A. Procedures and technical standards for conducting an environmental investigation; and

B. Job performance standards for a Department-accredited lead paint risk assessor conducting an environmental investigation.

#### Regulation .02 Scope.

*COMAR 26.16.08.02*

A. This chapter applies to an environmental investigation performed pursuant to Environment Article, §6-305, Annotated Code of Maryland.

B. This chapter does not apply to the performance of a lead paint abatement service other than an environmental investigation required under Environment Article, §6-305, Annotated Code of Maryland.

#### Regulation .03 Definitions.

*COMAR 26.16.08.03*

A. In this chapter, the following terms have the meanings as indicated.

B. Terms Defined.

  (1) “Accredited” has the meaning stated in COMAR 26.16.02.02B.

  (2) “Affected property” has the meaning stated in Environment Article, §6-801(b), Annotated Code of Maryland.

  (3) “ASTM" means the American Society for Testing and Materials.

  (4) “Blood lead level (BLL)” means a measurement of the amount of lead in blood, usually measured in micrograms per deciliter.

  (5) “Caregiver” means a parent, a guardian, or another person that is legally responsible for the wellbeing of a pregnant woman younger than 18 years old or a child.

  (6) “Child” means an individual younger than 6 years old.

  (7) “Child care center” has the meaning stated in COMAR 13A.16.01.02B.

  (8) “Defect” means the presence of:

    (a) Chipping, peeling, or flaking paint on an interior or exterior surface of an affected property; or

    (b) A structural defect causing chipping, peeling, or flaking paint in an affected property.

  (9) “Deteriorated paint” means chipping, peeling, or flaking paint on:

    (a) A painted interior or exterior surface of a property; or

    (b) Any other accessible painted surface.

  (10) “Drip line” means the area of land directly beneath the edge of a roof.

  (11) “Elevated blood lead (EBL)” has the meaning stated in Environment Article, §6-801(f), Annotated Code of Maryland.

  (12) Environmental Investigation.

    (a) “Environmental investigation” means an investigation performed by a Department-accredited lead paint risk assessor to identify one or more lead hazards for a child or pregnant woman diagnosed with EBL.

    (b) “Environmental investigation” includes the:

      (i) Administration of an environmental questionnaire, a visual inspection, and the collection of environmental samples during an on-site assessment of a property;

      (ii) Analysis of the results from an on-site assessment and environmental sampling; and

      (iii) Performance of case management by the Department or a local health department pursuant to Environment Article, §6-304, Annotated Code of Maryland.

  (13) “Environmental questionnaire” means a questionnaire administered by a Department-accredited lead paint risk assessor during an environmental investigation to identify one or more lead exposure risk factors that may have contributed to a child’s or pregnant woman’s EBL.

  (14) “Environmental sampling” means the collection and analysis of paint chip, dust, or soil samples, or samples from other media as appropriate, to identify the presence of a lead hazard, performed in accordance with the applicable sampling requirements and technical standards described under Regulations .06 and .07 of this chapter.

  (15) Friction Surface.

    (a) “Friction surface” means an interior or exterior surface subject to abrasion or friction.

    (b) “Friction surface” may include, but is not limited to, a window sash, a stair tread, or another surface subject to abrasion or friction.

  (16) “HUD Guidelines” means the U.S. Department of Housing and Urban Development (HUD) Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, Second Edition, July, 2012.

  (17) Impact Surface.

    (a) “Impact surface” means an interior or exterior surface subject to damage by repeated impact or contact.

    (b) “Impact surface” may include, but is not limited to, a door frame, a surface that makes contact with a knob or handle, or another surface subject to damage by repeated impact or contact.

  (18) “International Organization for Standardization/International Electrotechnical Commission (ISO/IEC)” means a technical standard governed by both the ISO and IEC.

  (19) Lead Hazard.

    (a) “Lead hazard” means a source of lead on an accessible surface or media in which exposure of a child or pregnant woman to the source would result in adverse human health effects.

    (b) “Lead hazard” includes, but is not limited to:

      (i) Lead-based paint as defined under COMAR 26.16.02.02B, if the lead-based paint is present on, or within a layer of, a surface with deteriorated paint or a defect, an impact or friction surface, or a chewable surface with evidence of teeth marks;

      (ii) A lead-containing substance as defined under COMAR 26.16.01.02B, if the lead-containing substance is present on an impact or friction surface, or chewable surface with evidence of teeth marks;

      (iii) Lead-contaminated dust as defined under COMAR 26.16.02.02B; or

      (iv) Other sources of lead as identified in the HUD Guidelines, Chapter 16: Investigation and Treatment of Dwellings that House Children with Elevated Blood Lead Levels, or by the Department.

  (20) “Notice of Defect” means a written notice provided by a tenant, or another source, to the owner of an affected property notifying the owner of a defect in the affected property, as authorized under Environment Article, §6-819, Annotated Code of Maryland.

  (21) “Primary residence” means a residential property where a child or pregnant woman with EBL resides.

  (22) “Quantitation limit” has the meaning stated in COMAR 26.02.07.02B.

  (23) “Reference level” means:

    (a) 5 micrograms per deciliter; or

    (b) Beginning 1 year after the date that the Centers for Disease Control and Prevention revises the blood lead reference level until 1 year after a subsequent revision, the revised blood lead reference level as determined by the Centers for Disease Control and Prevention.

  (24) Secondary Property.

    (a) “Secondary property” means a property, other than a child’s or pregnant woman’s primary residence, where the child or pregnant woman with EBL spends at least 24 hours per week.

    (b) “Secondary property” includes a child care center or a family member’s residence.

  (25) “Secondary source” means a lead exposure risk that is not derived from a painted surface or structural component of a property, including, but not limited to:

    (a) Tap water;

    (b) A toy, jewelry, or ceramic foodware;

    (c) An imported cosmetic, such as, but not limited to, a product identified in Table 16.4 of the HUD Guidelines, Chapter 16: Investigation and Treatment of Dwellings that House Children with Elevated Blood Lead Levels;

    (d) A traditional medicine or remedy; or

    (e) A food item.

  (26) “XRF” has the meaning stated in COMAR 26.16.01.02B.

#### Regulation .04 Incorporation by Reference.

*COMAR 26.16.08.04*

A. In this chapter, the following documents are incorporated by reference:

  (1) General requirements for the competence of testing and calibration laboratories (ISO/IEC 17025:2017(E));

  (2) The U.S. Department of Housing and Urban Development Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing (Second Edition, July, 2012), Chapter 16: Investigation and Treatment of Dwellings that House Children with Elevated Blood Lead Levels;

  (3) Standard Practice for Collection of Settled Dust Samples Using Wipe Sampling Methods for Subsequent Lead Determination (ASTM Standard E1728/E1728M-20, 2020 Edition);

  (4) Standard Practice for Field Collection of Dried Paint Samples for Subsequent Lead Determination (ASTM E1729-16, 2016 Edition); and

  (5) Standard Practice for Field Collection of Soil Samples for Subsequent Lead Determination (ASTM E1727-16, 2016 Edition).

B. The document incorporated by reference in §A(2) of this regulation will be referred to in this chapter as HUD Guidelines, Chapter 16.

#### Regulation .05 Scheduling an Environmental Investigation.

*COMAR 26.16.08.05*

A. Pursuant to
                Environment Article, §6-304, Annotated Code of Maryland, after the receipt by the Department of a blood lead level test result that diagnoses a child or pregnant woman with EBL, the Department or local health department shall:

  (1) Not more than 10 business days after the receipt of the blood lead level test result, provide notification of the EBL level to:

    (a) The caregiver of the child or the pregnant woman; and

    (b) If the child or pregnant woman resides at a property not owned by the caregiver or pregnant woman, the owner of the property where the child or pregnant woman resides; and

  (2) Except as otherwise provided in
                  §D of this regulation, contact the caregiver or pregnant woman to schedule the on-site assessment portion of the environmental investigation.

B. The Department or local health department representative:

  (1) Shall schedule an on-site assessment for the primary residence of the child or pregnant woman diagnosed with EBL in accordance with the procedures under
                  §C of this regulation; and

  (2) May, if determined necessary by the Department or the local health department representative while conducting the environmental investigation, schedule an on-site assessment for a secondary property through coordination with the caregiver or pregnant woman.

C. Procedures for Scheduling an On-Site Assessment.

  (1) The on-site assessment of a primary residence may be scheduled by the Department or local health department representative in coordination with a local health department representative’s home visit.

  (2) The Department or local health department representative shall make at least two attempts to contact the caregiver or pregnant woman by telephone to schedule an on-site assessment.

  (3) If the Department or local health department representative is unable to establish contact with the caregiver or pregnant woman in accordance with
                  §C(2) of this regulation, the Department or local health department representative shall mail a letter through first-class mail to the caregiver or pregnant woman.

  (4) The Department or local health department representative shall include, at a minimum, all of the following information in the letter required under
                  §C(3) of this regulation:

    (a) The Department’s or local health department representative’s intention to schedule an on-site assessment of the primary residence of the child or pregnant woman with EBL;

    (b) Notice that the letter constitutes the final attempt by the Department or local health department representative to schedule the on-site assessment of the primary residence;

    (c) The latest calendar date that the caregiver or pregnant woman may contact the Department or local health department representative to schedule an on-site assessment of the primary residence;

    (d) Notice that failure to contact the Department or local health department representative to schedule an on-site assessment of the primary residence may result in the child’s or pregnant woman’s case being closed by the Department or local health department without an environmental investigation; and

    (e) If the child or pregnant woman is known or believed by the Department or local health department to reside at an affected property, information regarding the tenant’s rights under Environment Article, §§
                    6-815 and
                    6-819, Annotated Code of Maryland.

D. Failure to Schedule an On-Site Assessment.

  (1) If the caregiver or pregnant woman does not respond to the attempts to schedule the on-site assessment of a primary residence made in accordance with
                  §C of this regulation, the Department or local health department may:

    (a) Attempt to make contact with the caregiver or pregnant woman by coordinating with the medical provider or through other means; or

    (b) At its discretion, close the case without conducting an environmental investigation.

  (2) If a case is closed by the Department or local health department under
                  §D(1) of this regulation, the Department or local health department:

    (a) Shall, if the primary residence is not owned by the caregiver or pregnant woman, mail a letter through first-class mail to the property owner advising that the:

      (i) Department or local health department representative was unable to contact the caregiver or pregnant woman to schedule an on-site assessment of the property; and

      (ii) Case has been closed by the Department or local health department without conducting an environmental investigation; and

    (b) May reopen the case and conduct an environmental investigation upon request of the caregiver or pregnant woman.

  (3) If the Department or local health department representative, in accordance with
                  §B(2) of this regulation, is unable to schedule an on-site assessment for a secondary property, the Department or the local health department representative shall:

    (a) Complete the environmental investigation including only the primary residence; and

    (b) Note in the environmental investigation report that the secondary property was not assessed.

#### Regulation .06 Environmental Investigation Protocol.

*COMAR 26.16.08.06*

A. Except as otherwise provided in Regulation .05D of this chapter, a lead paint risk assessor shall perform an environmental investigation in response to a child’s or pregnant woman’s diagnosis of EBL, as required under Environment Article, §6-305, Annotated Code of Maryland.

B. The lead paint risk assessor shall determine the year of construction for the property being investigated, which may be accomplished by viewing the property tax records available through the State Department of Assessment and Taxation.

C. Environmental Questionnaire.

  (1) The lead paint risk assessor shall complete an environmental questionnaire with the caregiver or pregnant woman during an on-site assessment of a primary residence.

  (2) The lead paint risk assessor shall complete the environmental questionnaire on a form provided by the Department that is consistent with or more detailed than Form 16.1 of the HUD Guidelines, Chapter 16.

  (3) The lead paint risk assessor shall use the environmental questionnaire to:

    (a) Identify a potential lead hazard for a child or pregnant woman, including:

      (i) Behavioral, cultural, hobby, housing, or occupational lead exposure risk factors; and

      (ii) Less common sources of lead exposure as identified in Table 16.4 of the HUD Guidelines, Chapter 16;

    (b) Determine the type of environmental sampling to be conducted during the on-site assessment; and

    (c) Identify whether there is a secondary property that requires an on-site assessment.

D. A lead paint risk assessor shall perform a visual inspection to identify the potential presence of a lead hazard.

E. Paint Survey Analysis.

  (1) A lead paint risk assessor shall perform a paint survey analysis to determine if the lead content on a painted surface meets the definition of lead-based paint under COMAR 26.16.02.02B through paint chip or XRF sampling in accordance with the requirements under Regulation .07D or E of this chapter.

  (2) A lead paint risk assessor shall perform a paint survey analysis:

    (a) On a painted chewable surface or suspected lead-containing substance with evidence of teeth marks;

    (b) At a property constructed before 1978 if an interior or exterior painted surface has:

      (i) A defect or deteriorated paint;

      (ii) Intact paint and the surface is subject to friction or impact; or

      (iii) Been disturbed during a recent renovation or in preparation to be repainted; or

    (c) At a property constructed after 1977 on an interior or exterior painted surface that has:

      (i) Deteriorated paint;

      (ii) Intact paint and the surface is subject to friction or impact; or

      (iii) Been identified as a potential lead hazard through the environmental questionnaire, painting history of the property, or by the lead paint risk assessor.

F. A lead paint risk assessor shall perform dust wipe sampling:

  (1) To determine if the lead content in dust on a floor, window sill, or window well meets the definition of lead-contaminated dust in COMAR 26.16.02.02B;

  (2) Pursuant to the protocol in the HUD Guidelines, Chapter 16;

  (3) Based on information obtained by the lead paint risk assessor while conducting the environmental questionnaire and visual inspection; and

  (4) In accordance with the requirements under Regulation .07C of this chapter.

G. A lead paint risk assessor shall perform composite soil sampling:

  (1) On an area of bare soil at a primary residence or secondary property where a child or pregnant woman frequents, including a drip line, a play area, or another area at a property;

  (2) To identify if the bare soil present at a primary residence or secondary property meets the definition of a soil-lead hazard, as defined under 40 CFR §745.65(c) or a more stringent standard published by the Department; and

  (3) In accordance with the requirements under Regulation .07F of this chapter.

H. Tap Water Sampling.

  (1) Tap water sampling may be performed:

    (a) By a lead paint risk assessor collecting a tap water sample or through coordination with a local health department;

    (b) If tap water is identified as being commonly used as drinking water or in the preparation of infant formula or food; and

    (c) To determine if the lead content in tap water exceeds the action level described on page 16-14 in the HUD Guidelines, Chapter 16.

  (2) If a tap water sample is collected by a lead paint risk assessor pursuant to §H(1) of this regulation, the lead paint risk assessor shall perform the tap water sampling in accordance with the requirements under Regulation .07G of this chapter.

I. A lead paint risk assessor may perform additional environmental sampling of a secondary source:

  (1) With the permission of the caregiver or pregnant woman;

  (2) If identified as a potential source of lead exposure by the lead paint risk assessor;

  (3) To determine if the lead content in the secondary source meets the definition of a lead hazard under Regulation .02B of this chapter; and

  (4) In accordance with the requirements under Regulation .07H of this chapter.

J. A lead paint risk assessor shall interpret the results of environmental sampling performed during an environmental investigation.

#### Regulation .07 Technical Standards for Environmental Sampling.

*COMAR 26.16.08.07*

A. A lead paint risk assessor shall perform environmental sampling in accordance with the technical standards and environmental sampling requirements set forth in this regulation.

B. A lead paint risk assessor shall submit a paint chip, soil, or dust wipe sample for analysis to a laboratory:

  (1) Recognized by the U.S. Environmental Protection Agency under 15 U.S.C. §2685(b) as accredited under the National Lead Laboratory Accreditation Program; and

  (2) That demonstrates it can achieve a quantitation limit equal to or less than:

    (a) 20 percent of the lowest level of lead content in paint that constitutes a lead-containing substance, as stated in COMAR 26.16.01.02B;

    (b) 20 percent of the lowest action level or regulatory limit for lead content in soil established under 40 CFR §745.65(c) or a more stringent standard published by the Department; or

    (c) 50 percent of the lowest level of lead content in dust that constitutes lead-contaminated dust, as stated in COMAR 26.16.02.02B.

C. A lead paint risk assessor shall perform dust wipe sampling in accordance with the ASTM E1728/E1728M-20 standard.

D. A lead paint risk assessor shall perform XRF sampling on a painted surface using a calibrated instrument in accordance with COMAR 26.16.05.06B and the ISO/IEC 17025:2017(E) standard.

E. A lead paint risk assessor shall perform paint chip sampling:

  (1) Only on a surface with deteriorated paint or a defect, or other painted surface as determined necessary by the lead paint risk assessor;

  (2) After a dust wipe sample is collected to prevent cross-contamination of dust present on a surface near the area where the paint chip was sampled; and

  (3) In accordance with the ASTM E1729-16 standard and COMAR 26.16.05.06C.

F. A lead paint risk assessor shall perform composite soil sampling in accordance with the ASTM E1727-16 standard.

G. If a tap water sample is collected by a lead paint risk assessor, the lead paint risk assessor shall submit the tap water sample to a laboratory certified by the Department to analyze drinking water samples for lead.

H. A lead paint risk assessor shall perform the sampling of a secondary source using:

  (1) An environmental sampling method appropriate to detect lead content in the secondary source; or

  (2) XRF sampling, using a calibrated instrument in accordance with COMAR 26.16.05.06B and the ISO/IEC 17025:2017(E) standard.

#### Regulation .08 Environmental Investigation Report.

*COMAR 26.16.08.08*

A. Pursuant to the provisions of Environment Article, §6-819, Annotated Code of Maryland, if the property being investigated is an affected property with a defect observed during an on-site assessment:

  (1) The lead paint risk assessor shall issue a Notice of Defect to the owner of the affected property; and

  (2) The property owner shall satisfy the modified risk reduction standard within 30 days of receiving the Notice of Defect from the lead paint risk assessor.

B. A lead paint risk assessor shall prepare an environmental investigation report that includes the following information:

  (1) Identification of lead hazards in the property subject to the environmental investigation;

  (2) Recommendations of immediate actions the caregiver, pregnant woman, or property owner can take to reduce the child’s or pregnant woman’s further exposure to lead; and

  (3) Recommendations designed to eliminate a child’s or pregnant woman’s exposure to lead through:

    (a) One or more lead hazard reduction treatments or an abatement performed by a lead paint abatement services provider accredited by the Department under COMAR 26.16.01, and in accordance with the abatement of lead-containing substances protocols under COMAR 26.02.07; or

    (b) Discontinued use of a secondary source that poses a lead hazard to the child or pregnant woman.

C. The lead paint risk assessor shall provide a copy of the environmental investigation report to:

  (1) The caregiver or pregnant woman;

  (2) If different than the caregiver or pregnant woman, the owner of the property subject to the environmental investigation; and

  (3) At the discretion of the Department or local health department, the health officer in the county where the environmental investigation was performed.

## Subtitle 17 — Water Management

### Chapter 01 — Erosion and Sediment Control

**Authority:** Environment Article, §4-101, Annotated Code of Maryland

**Administrative History:** Effective date: April 4, 1972

**Administrative History:** Chapter revised effective December 5, 1983 (10:24 Md. R. 2185)

**Administrative History:** Regulations .01 and .06 amended effective July 16, 1984 (11:14 Md. R. 1248)

**Administrative History:** Regulations .01—.04, .06—.08, and .10 amended effective December 17, 1984 (11:25 Md. R. 2130)

**Administrative History:** Regulations .02-1—.10 recodified to Regulations .03—.11

**Administrative History:** Regulation .07D-1—F recodified to Regulation .08E—G, and Regulation .08A-1—D recodified to Regulation .09B—E

**Administrative History:** Chapter recodified from COMAR 08.05.01 to COMAR 26.09.01

**Administrative History:** Regulation .01B amended effective January 18, 1993 (20:1 Md. R. 28); September 25, 1995 (22:19 Md. R. 1474)

**Administrative History:** Regulation .02C amended effective January 18, 1993 (20:1 Md. R. 28); September 25, 1995 (22:19 Md. R. 1474)

**Administrative History:** Regulation .05A amended effective March 28, 1994 (21:6 Md. R. 468)

**Administrative History:** Regulation .07B amended effective January 18, 1993 (20:1 Md. R. 28); September 25, 1995 (22:19 Md. R. 1474

**Administrative History:** Regulation .08A amended effective January 18, 1993 (20:1 Md. R. 28); September 25, 1995 (22:19 Md. R. 1474)

**Administrative History:** Regulation .08F amended effective September 25, 1995 (22:19 Md. R. 1474)

**Administrative History:** Regulation .09D amended effective January 18, 1993 (20:1 Md. R. 28); September 25, 1995 (22:19 Md. R. 1474)

**Administrative History:** Regulation .11 amended effective January 18, 1993 (20:1 Md. R. 28); September 25, 1995 (22:19 Md. R. 1474)

**Administrative History:** Chapter recodified from COMAR 26.09.01 to COMAR 26.17.01, June 1996

**Administrative History:** Chapter revised effective February 6, 2012 (39:2 Md. R. 142)

**Administrative History:** Regulation .01B amended effective May 8, 2017 (44:9 Md. R. 438)

**Administrative History:** Regulation .08F amended effective May 8, 2017 (44:9 Md. R. 438)

**Administrative History:** Regulation .09D amended effective May 8, 2017 (44:9 Md. R. 438)

**Administrative History:** Regulation .11A amended effective May 8, 2017 (44:9 Md. R. 438)

#### Regulation .01 Definitions.

*COMAR 26.17.01.01*

A. In this chapter, the following terms have the meanings indicated. Terms not defined below shall have the meanings given to them in the relevant statutes, or if not defined in statutes, the meanings attributed by common use. The terms “Administration”, “person”, “pollution”, “responsible personnel”, “waters of the State”, are defined in Environment Article, §4-104 or 5-101, Annotated Code of Maryland. The meanings for these specific terms are provided as a convenience, but persons affected by the Administration's regulations should be aware that these meanings are subject to amendment by the General Assembly.

B. Terms Defined.

  (1) “Administration” means the Water Management Administration.

  (2) “Agricultural land management practices” means those methods and procedures used in the cultivation of land in order to further crop and livestock production, and conservation of related soil and water resources. Logging and timber removal operations may not be considered a part of this definition.

  (3) “Approval authority” means the soil conservation district, municipal corporation, specified agency, Commission, or the Administration that is authorized by or pursuant to Environment Article, §4-105, Annotated Code of Maryland, to review and approve erosion and sediment control plans for the given jurisdiction.

  (4) “Clear” means any activity which removes the vegetative cover while leaving the root mat intact.

  (5) “Commission” means the Washington Suburban Sanitary Commission.

  (6) “Department” means the Department of the Environment.

  (7) “Erosion” means the process by which the land surface is worn away by the action of wind, water, ice, or gravity.

  (8) “Erosion and sediment control plan” means an erosion and sediment control strategy or plan designed to minimize erosion and prevent off-site sedimentation, in accordance with the requirements of the approval authority and the handbook “ 2011 Maryland Standards and Specifications for Soil Erosion and Sediment Control,” which is incorporated by reference in Regulation .11 of this chapter.

  (9) “Erosion and Sediment Control Program” means any program administered by a State unit, county, municipality, or the Commission under an erosion and sediment control ordinance or regulations approved by the Administration, which provides for erosion and sediment control plan review, permit issuance, site inspection, and enforcement activity in accordance with the requirements of these regulations.

  (10) “Federal project” means any project that requires an erosion and sediment control plan in accordance with Regulation .05 of this chapter undertaken by a federal unit .

  (11) “Federal unit” means any federal agency that intends to or does clear, grade, transport, or otherwise disturb the land or soil surface in the course of its activities.

  (12) “Grade” means to cause the disturbance of the earth. This includes but is not limited to any excavating, filling, stockpiling of earth materials, grubbing, or root mat or top soil disturbance.

  (13) “Grading unit” means the maximum contiguous area allowed to be graded at a given time.

  (14) “Highly erodible soils” means those soils with a slope greater than 15 percent or those soils with a soil erodability factor, K, greater than 0.35 and with slopes greater than 5 percent.

  (15) “Owner/developer” means a person undertaking, or for whose benefit, activities covered by the Sediment Control Subtitle, or regulations promulgated under it, are carried on. General contractors or subcontractors, or both, without a proprietary interest in a project are not included within this definition.

  (16) “Person” includes the federal government, the State, any county, municipal corporation, or other political subdivision of the State, or any of their units, or an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation, or any of their affiliates, or any other entity.

  (17) “Pollution” means the contamination or other alteration of the physical, chemical, or biological properties of any waters of the State, including change in temperature, taste, color, turbidity, or odor of the waters, or the discharge or deposit of any organic matter, harmful organisms, liquid, gaseous, solid, radioactive, or other substance into any waters of the State that will render the waters harmful, detrimental, or injurious to:

    (a) Public health, safety or welfare;

    (b) Domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses; or

    (c) Livestock, wild animals, birds, fish, or other aquatic life.

  (18) “Professional architect” means an architect duly registered by the State to practice architecture in accordance with the provisions of Business Occupations and Professions Article, Title 3, Annotated Code of Maryland.

  (19) “Professional engineer” means an engineer duly registered by the State to practice engineering in accordance with the provisions of Business Occupations and Professions Article, Title 14, Annotated Code of Maryland.

  (20) “Professional forester” means a forester duly registered by the State to practice forestry in accordance with the provisions of Business Occupations and Professions Article, Title 7, Annotated Code of Maryland.

  (21) “Professional landscape architect” means a landscape architect duly registered by the State to practice landscape architecture in accordance with the provisions of Business Occupations and Professions Article, Title 9, Annotated Code of Maryland.

  (22) “Professional land surveyor” means a land surveyor duly registered by the State to practice land surveying in accordance with the provisions of Business Occupations and Professions Article, Title 15, Annotated Code of Maryland.

  (23) “Responsible personnel” means any foreman, superintendent, or project engineer who is in charge of on-site clearing and grading operations or the implementation and maintenance of an erosion and sediment control plan.

  (24) “Secretary” means the Secretary of the Environment or designee.

  (25) “Sediment” means soils or other surficial materials transported or deposited by the action of wind, water, ice, gravity, or artificial means.

  (26) “Sediment Control Subtitle” means Environment Article, Title 4, Subtitle 1, Annotated Code of Maryland.

  (27) “State project” means any project that requires an erosion and sediment control plan in accordance with Regulation .05 of this chapter undertaken by a State unit.

  (28) “State unit” means any State agency that intends to or does clear, grade, transport, or otherwise disturb the land or soil surface in the course of its activities.

  (29) “Training program” means an Administration approved educational program for training responsible personnel to:

    (a) Properly implement and maintain erosion and sediment controls associated with grading; and

    (b) Better understand the necessity of minimizing the pollution of the waters of the State that may result from grading.

  (30) “Waters of the State” includes:

    (a) Both surface and underground waters within the boundaries of the State subject to its jurisdiction, including that portion of the Atlantic Ocean within the boundaries of the State, the Chesapeake Bay and its tributaries, and all ponds, lakes, rivers, streams, storm drain systems, public ditches, tax ditches, and public drainage systems within the State, other than those designated and used to collect, convey, or dispose of sanitary sewage; and

    (b) The flood plain of free-flowing waters determined by the Department on the basis of the 100-year flood frequency.

#### Regulation .02 General Provisions.

*COMAR 26.17.01.02*

A. The Administration shall be responsible for the implementation and supervision of the erosion and sediment control program established by the Sediment Control Subtitle. This responsibility includes but is not limited to:

  (1) Establishment of policies, procedures, standards, and criteria relating to erosion and sediment control;

  (2) The review and approval of:

    (a) County erosion and sediment control ordinances;

    (b) Municipal erosion and sediment control ordinances;

    (c) The Commission’s erosion and sediment control regulations;

    (d) Erosion and sediment control programs;

    (e) Erosion and sediment control plans for State projects and federal projects;

    (f) Other erosion and sediment control plans, as necessary; and

    (g) Training programs;

  (3) Inspection and enforcement in accordance with this chapter; and

  (4) Determinations on the delegation of enforcement authority in accordance with Regulation .03 of this chapter.

B. The Administration shall establish matters of policy, procedures, standards, criteria, approvals, and enforcement related to the Sediment Control Subtitle. The practices adopted and used by the soil conservation districts, the Commission, the counties, the municipalities, and State units are to be consistent with the guidelines and regulations adopted by the Administration.

C. Review and Evaluation.

  (1) The Administration shall periodically conduct a comprehensive review and evaluation to ensure the acceptability of all erosion and sediment control programs operating under the Sediment Control Subtitle and this chapter.

  (2) In conducting the review and evaluation of erosion and sediment control programs, the Administration will use the following guidelines for determining the acceptability of the program:

    (a) An effective erosion and sediment control ordinance or an effective set of erosion and sediment control regulations, which has been approved by the Administration, is in effect;

    (b) The review and approval of erosion and sediment control plans in accordance with the “2011 Maryland Standards and Specification for Soil Erosion and Sediment Control”;

    (c) Approved erosion and sediment control plans that provide:

      (i) Effective erosion and sediment control strategies; and

      (ii) The information necessary to enable the proper installation and maintenance of these strategies; and

    (d) In delegated jurisdictions, inspection and enforcement procedures that ensure:

      (i) Compliance with the approved erosion and sediment control plan; and

      (ii) Timely response to citizen complaints.

  (3) Upon completion of this review and evaluation, the Administration shall submit the findings of the review and evaluation to the appropriate authority.

D. A building or grading permit may not be issued by a county or municipality prior to erosion and sediment control plan approval unless specifically exempted by the ordinance, the regulation, or this chapter.

#### Regulation .03 Delegation of Enforcement Authority.

*COMAR 26.17.01.03*

A. A county, a municipality or the Commission may seek delegation of enforcement authority from the Secretary to enforce compliance with the provisions of the following:

  (1) This chapter;

  (2) An approved erosion control ordinance;

  (3) Approved erosion and sediment control regulations; and

  (4) Approved erosion and sediment control plans.

B. Delegation.

  (1) The Secretary shall grant delegation of enforcement authority to a county, a municipality, or the Commission which seeks delegation and is found capable of enforcing compliance with the provisions of Regulation .09 of this chapter.

  (2) A county, a municipality, or the Commission seeking or renewing delegation of enforcement authority shall submit a written request to the Secretary on or before October 1 immediately preceding the State fiscal year for which delegation or renewal of delegation is sought.

  (3) The Secretary shall make a determination in writing regarding a delegation request on or before January 1 immediately preceding the State fiscal year for which delegation is sought.

  (4) If delegation is granted, it is effective July 1 of that calendar year and for not more than 2 years, unless renewed by the Secretary.

  (5) The Secretary may suspend delegation if a program falls below the standard of effectiveness established in Regulation .09 of this chapter. During a period of suspension, the Department shall enforce compliance in the jurisdiction.

#### Regulation .04 Erosion and Sediment Control Ordinances.

*COMAR 26.17.01.04*

A. Each county and municipality shall adopt an erosion and sediment control ordinance in compliance with the intent and requirements of the Sediment Control Subtitle and the “2011 Maryland Standards and Specifications for Soil Erosion and Sediment Control”. Within 6 months of the adoption of this Subtitle, counties and municipalities shall submit ordinances and amendments to the Administration for review. Counties and municipalities shall adopt an approved ordinance within 1 year of this Subtitle’s adoption. Municipalities may adopt the erosion and sediment control ordinance of their respective county.

B. The Commission shall adopt erosion and sediment control regulations covering utility operations in Prince George’s and Montgomery counties that are in compliance with the intent and requirements of the Sediment Control Subtitle and the “2011 Maryland Standards and Specifications for Soil Erosion and Sediment Control”. Within 6 months of the adoption of this subtitle, the Commission shall develop erosion and sediment control regulations in consultation with and subject to the review and approval of the Administration, the Prince George’s Soil Conservation District, and the Montgomery Soil Conservation District as appropriate. The Commission shall adopt approved regulations within one year of this Subtitle’s adoption. The Commission’s erosion and sediment control regulations shall ensure that in addition to meeting the requirements of §C of this regulation, the following shall be included:

  (1) An erosion and sediment control plan must be approved by the Commission before the issuance of a permit; and

  (2) The Commission shall have the primary responsibility for inspection and enforcement of utility construction, if delegation of enforcement authority is granted to the Commission.

C. In determining the acceptability of an erosion and sediment control ordinance or regulations, the Administration shall consider, but not limit itself to, the following:

  (1) Scope of activities requiring grading and building permits and erosion and sediment control plans;

  (2) Permit and plan requirements including application procedure, plan design requirements, and time limitations;

  (3) Procedures to ensure that a required erosion and sediment control plan is approved by the appropriate approval authority prior to the issuance of a building or grading permit;

  (4) Specific inspection and enforcement procedures and options available to ensure compliance with an approved erosion and sediment control plan, if the Administration has granted delegation of enforcement authority;

  (5) Right of entry for inspection and enforcement activities associated with an approved erosion and sediment control plan; and

  (6) Stabilization requirements in accordance with the provisions of Regulation .07 of this chapter, which are to be binding regardless of whether an approved erosion and sediment control plan has been issued.

D. After reviewing a county’s or municipality’s erosion and sediment control ordinance or amendments, or the Commission’s erosion and sediment control regulations or amendments, the Administration shall notify the county, municipality, or Commission in writing of the acceptability of the ordinance or the regulations.

#### Regulation .05 Activities for Which Approved Erosion and Sediment Control Plans Are Required.

*COMAR 26.17.01.05*

A. Any grading activity requires an erosion and sediment control plan approved by the appropriate approval authority, except for:

  (1) Agricultural land management practices and agricultural best management practices, including those regulated under COMAR 26.17.03; and

  (2) Grading activities that disturb less than 5,000 square feet of land area and disturb less than 100 cubic yards of earth.

B. A project that involves any combination of private lands, county lands, State lands, or federal lands, such as a utility right-of-way, requires the approval of the approval authority affiliated with the entity undertaking the activity or for whose benefit the activity is being undertaken.  Ownership of the land or lands upon which the activity is occurring is not to be the sole factor in determining the approval authority.

C. Any approval authority may make a written request to the Administration for a joint review of an erosion and sediment control plan.

D. Any activity pursuant to and in compliance with Environment Article, Title 15, Annotated Code of Maryland, is exempt from the grading unit restriction.

E. Any activity pursuant to sanitary landfills and in compliance with Environment Article, §9-204, Annotated Code of Maryland, and COMAR 26.04.07.02B(27) is exempt from the grading unit restriction.

#### Regulation .06 Training and Certification Program.

*COMAR 26.17.01.06*

A. Certification of Responsible Personnel.

  (1) The Administration shall require certification of responsible personnel as established by the Sediment Control Subtitle and in accordance with this regulation.

  (2) Certification is obtained by completing an Administration-approved training program.

  (3) Certification is valid for 3 years and is automatically renewed unless the Administration notifies the certificate holder that additional training is required.

B. Interim Certification of Responsible Personnel.

  (1) After July 1, 1983, responsible personnel may receive interim certification prior to the completion of a training program by submitting a request to the Administration.

  (2) Interim certification will be valid until the scheduled date of attendance at a training program.

C. Training Programs.

  (1) The Administration may approve training programs other than those developed by the Administration. Unless otherwise approved by the Administration, an acceptable training program shall include the following:

    (a) Ecological and resource values of the waters of the State;

    (b) The benefits of proper and effective erosion and sediment control implementation and maintenance;

    (c) The purpose and provisions of State and local erosion and sediment control laws, ordinances, and regulations;

    (d) A description of sediment as a pollutant;

    (e) The process of:

      (i) Erosion;

      (ii) Sediment transport; and

      (iii) Sediment deposition;

    (f) Proper implementation of erosion and sediment control;

    (g) Recognition and correction of improperly implemented erosion and sediment controls;

    (h) Proper maintenance of erosion and sediment controls; and

    (i) Responsibilities of supervisory and enforcement personnel.

  (2) An instructor of a training program shall have a knowledge of the principles of:

    (a) Erosion;

    (b) Sediment transport;

    (c) Sediment deposition;

    (d) Erosion and sediment control technology;

    (e) Erosion and sediment control implementation;

    (f) Erosion and sediment control maintenance;

    (g) Local government erosion and sediment control ordinances; and

    (h) The Sediment Control Subtitle and this chapter.

  (3) An instructor of a training program shall submit the following information to the Administration:

    (a) Names, addresses, and telephone numbers of responsible personnel who complete a training program;

    (b) Card certification numbers issued to responsible personnel; and

    (c) Employer’s name and address.

  (4) Responsible personnel who complete an Administration-approved training program receive a Certificate of Training card with a certification number.

#### Regulation .07 Application for Approval of Erosion and Sediment Control Plans.

*COMAR 26.17.01.07*

A. When an approved erosion and sediment control plan is required, an applicant shall make a submittal to the approval authority in accordance with procedures established by the jurisdiction and this chapter, and shall be subject to any fees established under Environment Article, §4-103(c), Annotated Code of Maryland.

B. At a minimum, a submittal must include:

  (1) A letter of transmittal or application;

  (2) Name, address, and telephone number of:

    (a) The owner of the property where the grading is proposed;

    (b) The developer; and

    (c) The applicant;

  (3) A vicinity map indicating north arrow, scale, and other information necessary to easily locate the property;

  (4) The location of natural resource areas and sensitive areas such as wetlands, floodplains, highly erodible soils, steep slopes, and any other areas required on a concept plan as described in COMAR 26.17.02;

  (5) A general description of the predominant soil types on the site, as described by the appropriate soil survey information available through the soil conservation district from the USDA Natural Resources Soil Conservation Service;

  (6) An erosion and sediment control plan including the following, unless otherwise noted in this chapter:

    (a) Limits of disturbance, including proposed grading units;

    (b) The existing and proposed topography;

    (c) The proposed grading and earth disturbance including:

      (i) Surface area involved;

      (ii) Volume of spoil material; and

      (iii) Volume of borrow material;

    (d) Storm drainage provisions, including:

      (i) Velocities and quantities of flow at outfalls; and

      (ii) Site conditions around points of all surface water discharge from the site;

    (e) Erosion and sediment control provisions to minimize on-site erosion and prevent off-site sedimentation including:

      (i) Provisions to limit disturbance;

      (ii) Details of grading practices including phasing of grading units;

      (iii) Design details for non-structural and structural controls; and

      (iv) Provisions to preserve top soil;

    (f) Details of temporary and permanent stabilization measures including:

      (i) The following statement on the plan: “Following initial soil disturbance or redisturbance, permanent or temporary stabilization is required within three calendar days as to the surface of all perimeter controls, dikes, swales, ditches, perimeter slopes, and all slopes steeper than 3 horizontal to 1 vertical (3:1); and seven calendar days as to all other disturbed areas on the project site except for those areas under active grading.”;

      (ii) Identification of areas requiring accelerated stabilization;

      (iii) Maintenance requirements to ensure that stabilized areas continuously meet the requirements of the “2011 Maryland Standards and Specifications for Soil Erosion and Sediment Control”; and

      (iv) Identification of interior areas of surface mines exempted from stabilization requirements to prevent contamination of the recoverable resource by the stabilization material;

    (g) Sequence of construction describing the relationship between the implementation and maintenance of erosion and sediment control practices, including permanent and temporary stabilization, grading units, and the various stages or phases of earth disturbance and construction. At a minimum, a sequence of construction is to include a schedule and time frame for the following activities:

      (i) Clearing and grubbing as necessary for the installation of perimeter controls;

      (ii) Construction and stabilization of perimeter controls;

      (iii) Remaining clearing and grubbing within installed perimeter controls;

      (iv) Road grading;

      (v) Grading for the remainder of the site;

      (vi) Utility installation and connections to existing structures;

      (vii) Final grading, landscaping, and stabilization; and

      (viii) Removal of controls and stabilization of resulting disturbances;

    (h) A statement placed on the plan indicating the owner/developer shall notify the appropriate enforcement authority at the following stages of construction:

      (i) Prior to the start of earth disturbance;

      (ii) Upon completion of the installation of perimeter erosion and sediment controls, but before proceeding with any other earth disturbance or grading; and

      (iii) Prior to the start of another phase of construction or opening of another grading unit; and

      (iv) Prior to the removal of sediment controls; and

    (i) An Owner/Developer Certification stating:

      (i) All clearing, grading, construction, and development will be done pursuant to this plan; and

      (ii) Responsible personnel involved in the construction project will have a Certificate of Training before beginning the project.  This Certificate of Training for responsible personnel requirement may be waived by the approval authority on any project involving four or fewer residential units; and

  (7) Any additional information or data deemed appropriate by the approval authority.

C. The approval authority may require that erosion and sediment control plans receive certification by a professional engineer, land surveyor, landscape architect, architect, or forester (for a forest harvest operation only) registered in the State that they have been designed in accordance with the appropriate approved erosion and sediment control ordinance or regulation, standards, and criteria.

D. Standard Erosion and Sediment Control Plans.

  (1) An approval authority may adopt a standard erosion and sediment control plan for minor grading, earth disturbance, and construction activities, such as a single-family residence, small commercial and other similar building sites, minor maintenance grading, and minor utility construction.

  (2) A standard erosion and sediment control plan must be consistent with the appropriate county or municipal erosion and sediment control ordinance, the Commission’s erosion and sediment control regulations, and this chapter.

  (3) The Administration shall review and approve a standard plan prior to adoption.

  (4) The following is to be considered during the Administration’s review and approval:

    (a) Volume of grading allowed;

    (b) Disturbed surface area allowed;

    (c) Staging of the clearing and grading operation;

    (d) Depth or height of cut and fill allowed;

    (e) Maximum degree of steepness of any existing slopes;

    (f) Maximum degree of steepness of final graded slopes;

    (g) Proposed manner of handling storm water runoff;

    (h) Proposed manner and timing of temporary and permanent stabilization;

    (i) Proposed erosion and sediment control principles, methods, and practices to be employed; and

    (j) Proposed applications and restricted use of the standard plan, including restrictions on its use in developing subdivisions or contiguous or adjacent areas.

  (5) The Administration shall conduct the review of the standard plan in a timely manner and notify the approval authority in writing of the Administration’s findings.

#### Regulation .08 Approval or Denial of Erosion and Sediment Control Plans.

*COMAR 26.17.01.08*

A. Review of Plans.

  (1) The approval authority shall review and approve an erosion and sediment control plan in accordance with the criteria contained in the “2011 Maryland Standards and Specifications for Soil Erosion and Sediment Control.”

  (2) The approval authority shall assess the adequacy of the proposed erosion and sediment control measures to minimize erosion and keep sediment on site.

  (3) When appropriate, an on-site evaluation shall be conducted as part of the review process in order to provide proper consideration of existing conditions and proposed control measures.

B. The approval authority reserves the right to deny approval or impose conditions necessary to prevent:

  (1) A nuisance or dangerous condition;

  (2) Sediment pollution; or

  (3) Adverse impacts to public safety and welfare.

C. The approval authority may withhold approval when it determines that:

  (1) An owner/developer has not complied with the provisions of an outstanding order; or

  (2) There is a violation of the terms of an existing:

    (a) Grading permit;

    (b) Building permit; or

    (c) Erosion and sediment control plan or related approval, permit, or license.

D. In jurisdictions that are not delegated, the approval authority shall forward one copy of each approved plan to the Administration upon plan approval.

E. For plans approved by the Administration:

  (1) Approved plans will be stamped approved;

  (2) The Administration shall send a letter of approval to the owner/developer; and

  (3) A copy of the approved plan will be kept by the Administration.

F. Expiration of Approved Erosion and Sediment Control Plans.

  (1) Approved erosion and sediment control plans remain valid for 3 years from the date of approval, except surface mines and landfill plans, which remain valid for 5 years from the date of approval.

  (2) Erosion and sediment control plan approvals may be extended or renewed by the approval authority.

G. Grandfathering of approved plans.

  (1) This chapter applies to all projects that do not have final approval for erosion and sediment control plans by January 9, 2013.

  (2) A plan that has received final approval by January 9, 2013 may be reapproved under its existing conditions if grading activities have begun on the site by January 9, 2015, with the exception of stabilization requirements.

  (3) Stabilization practices on all projects must be in compliance with the requirements of this chapter by January 9, 2013, regardless of when an erosion and sediment control plan was approved.

#### Regulation .09 Inspection and Enforcement.

*COMAR 26.17.01.09*

A. The Administration shall be responsible for the inspection and enforcement of all grading that requires an approved erosion and sediment control plan as designated within this chapter.

B. When the Administration has delegated enforcement authority to a county, a municipality, or the Commission, the county, municipality or Commission shall have the primary responsibility for inspection and enforcement as designated by an approved erosion and sediment control ordinance or erosion and sediment control regulations.

C. An approved erosion and sediment control plan for an active site is to be on-site and available to the appropriate enforcement authority and the Administration.

D. The appropriate enforcement authority shall inspect sites with an approved erosion and sediment control plan for compliance with the approved plan.

E. When conducting an inspection, the appropriate enforcement authority shall:

  (1) Ensure that an approved erosion and sediment control plan and permits are on the site as required;

  (2) Conduct a complete inspection of the site unless otherwise indicated;

  (3) Prepare a written inspection report that includes:

    (a) The date and location of this site inspection;

    (b) Whether the approved plan has been properly implemented and maintained;

    (c) Practice deficiencies or erosion and sediment control plan deficiencies;

    (d) If a violation exists, the type of enforcement action taken; and

    (e) If applicable, a description of minor or major modifications as described in this regulation; and

  (4) Notify the on-site personnel and the owner/developer in writing when violations are observed, describing the:

    (a) Nature of the violation;

    (b) Required corrective action; and

    (c) Time period in which to have the violation corrected.

F. Complaints.

  (1) The appropriate enforcement authority shall accept and investigate complaints regarding erosion and sediment control concerns from any interested party and:

    (a) Conduct an initial investigation within 3 working days of receipt of the complaint;

    (b) Notify the complainant of the initial investigation and findings within 7 days of receipt of the complaint; and

    (c) Take appropriate action when violations are discovered during the course of the complaint investigation.

  (2) The Administration may investigate complaints received and take appropriate action or refer complaints received to the appropriate enforcement authority.

  (3) The Administration shall notify the appropriate enforcement authority in a timely manner when investigating a complaint in a delegated jurisdiction.

G. A county, a municipality, or the Commission may request enforcement assistance from the Administration on any site.

H. Plan Modifications.

  (1) Modifications to an approved erosion and sediment control plan may be requested by the owner/developer or required by the appropriate approval or enforcement authority.

  (2) Modifications must be made in accordance with the erosion and sediment control criteria contained in the “2011 Maryland Standards and Specifications for Soil Erosion and Sediment Control” and the criteria for major and minor modifications.

  (3) Major Modifications.

    (a) Major modifications include revisions to sediment control practices involving concentrated flow or impoundments, such as a sediment basin or trap. Major modifications also include significant changes to the sequence of construction or to the phasing of grading units.

    (b) Major modifications must be approved by the approval authority prior to implementation.

  (4) Minor Modifications

    (a) The approval authority may, in conjunction with the appropriate enforcement authority, develop a list of minor modifications.

    (b) The Administration shall review and approve all minor modification lists.

    (c) The appropriate enforcement authority may allow the implementation of minor modifications as field revisions.

    (d) The appropriate enforcement authority shall, in writing, approve field revisions prior to their implementation.

I. Enforcement.

  (1) The appropriate enforcement authority shall, through the authority of an erosion and sediment control ordinance or regulations, this chapter, and the Sediment Control Subtitle, use enforcement action when erosion and sediment control violations occur.

  (2) Enforcement actions may include, but are not limited to:

    (a) Issuance of a corrective action order;

    (b) Issuance of a stop work order, the extent of which is determined by the appropriate enforcement authority;

    (c) Issuance of a penalty or fine as allowed; and

    (d) Referral for legal action.

  (3) In addition to any other sanctions, a person in violation of any provision of the Sediment Control Subtitle or this chapter is subject to civil action or criminal prosecution as deemed necessary.

  (4) Any step in the enforcement process may be taken at any time, depending upon the severity of the violation.

  (5) The appropriate enforcement authority shall stop work on a site where grading is occurring without a required erosion and sediment control plan.

J. Suspension of Approval.

  (1) The approval authority may suspend approval of an erosion and sediment control plan.

  (2) When an erosion and sediment control plan is suspended:

    (a) Stabilization is required of all disturbed areas on the project site; and

    (b) Grading, building, and other permits related to the project will also be suspended.

#### Regulation .10 Responsibility of Applicant.

*COMAR 26.17.01.10*

The issuance of an approval by the approval authority does not relieve the applicant of the continuing responsibility to effectively abate sediment pollution and comply with all other applicable local and State laws.

#### Regulation .11 Sediment Control Design Standards and Specifications.

*COMAR 26.17.01.11*

A. The handbook titled “2011 Maryland Standards and Specifications for Soil Erosion and Sediment Control” as amended by Supplement 1 is hereby incorporated by reference by the Administration, and shall serve as the official guide for erosion and sediment control principles, methods, and practices.

B. Notwithstanding any other requirement in this chapter, the Administration may require the use of any standard and specification or best management practice it deems warranted to address an erosion and sediment control violation.

### Chapter 02 — Stormwater Management

**Authority:** Environment Article, §§4-201 and 4-203, Annotated Code of Maryland

**Administrative History:** Effective date: July 18, 1983 (10:14 Md. R. 1260)

**Administrative History:** Regulations .03A, and .08A, C, and G amended effective June 4, 1984 (11:11 Md. R. 962)

**Administrative History:** Chapter recodified from COMAR 08.05.05 to COMAR 26.09.02

**Administrative History:** Chapter recodified from COMAR 26.09.02 to COMAR 26.17.02, June 1996

**Administrative History:** Chapter revised effective October 2, 2000 (27:19 Md. R. 1733)

**Administrative History:** Regulation .01 amended effective May 4, 2009 (36:9 Md. R. 652)

**Administrative History:** Regulation .01D adopted as an emergency provision effective April 7, 2010 (37:10 Md. R. 719); adopted permanently effective July 26, 2010 (37:15 Md. R. 1001)

**Administrative History:** Regulation .01-1B amended effective May 4, 2009 (36:9 Md. R. 652)

**Administrative History:** Regulation .01-2 adopted as an emergency provision effective April 7, 2010 (37:10 Md. R. 719); adopted permanently effective July 26, 2010 (37:15 Md. R. 1001)

**Administrative History:** Regulation .02B amended effective May 4, 2009 (36:9 Md. R. 652)

**Administrative History:** Regulation .03 amended effective May 4, 2009 (36:9 Md. R. 652)

**Administrative History:** Regulation .04B amended effective May 4, 2009 (36:9 Md. R. 652)

**Administrative History:** Regulation .05 amended effective May 4, 2009 (36:9 Md. R. 652)

**Administrative History:** Regulation .05C, D amended as an emergency provision effective April 7, 2010 (37:10 Md. R. 719); amended permanently effective July 26, 2010 (37:15 Md. R. 1001)

**Administrative History:** Regulation .06A, B amended effective May 4, 2009 (36:9 Md. R. 652)

**Administrative History:** Regulation .08 amended effective May 4, 2009 (36:9 Md. R. 652); July 29, 2019 (46:15 Md. R. 656)

**Administrative History:** Regulation .09E amended effective May 4, 2009 (36:9 Md. R. 652)

**Administrative History:** Regulation .09F adopted effective July 29, 2019 (46:15 Md. R. 656)

**Administrative History:** Regulation .10 amended effective May 4, 2009 (36:9 Md. R. 652)

**Administrative History:** Regulation .11A, B amended effective May 4, 2009 (36:9 Md. R. 652)

#### Regulation .01 Purpose and Scope.

*COMAR 26.17.02.01*

A. The primary goals of the State and local stormwater management programs are to maintain after development, as nearly as possible, the predevelopment runoff characteristics, and to reduce stream channel erosion, pollution, siltation and sedimentation, and local flooding by implementing environmental site design to the maximum extent practicable and using appropriate structural best management practices only when necessary.

B. These regulations for stormwater management apply to the development or redevelopment of land for residential, commercial, industrial, or institutional use, but do not apply to agricultural land management practices. This chapter specifies the minimum content of county and municipal ordinances, responsibilities of the Administration regarding the review of the county and municipal stormwater management programs, and approval of State-constructed projects for stormwater management by the Department of the Environment.

C. This chapter applies to all new development and redevelopment projects that do not have final approval for erosion and sediment control and stormwater management plans by May 4, 2010.

D. The provisions of these regulations may not be construed to affect the requirements for a project located in an Intensely Developed Area of the Chesapeake and Atlantic Coastal Bays Critical Area to comply with the 10 percent Pollution Reduction Requirement under COMAR 27.01.02.03D(3).

#### Regulation .01-1 Incorporation by Reference.

*COMAR 26.17.02.01-1*

A. In this chapter, the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) The 2000 Maryland Stormwater Design Manual, Volumes I & II (Maryland Department of the Environment, April 2000), Supplement 1, is incorporated by reference by the Administration and shall serve as the official guide for stormwater management principles, methods, and practices.

  (2) USDA Natural Resources Conservation Service Maryland Conservation Practice Standard Pond Code 378 (January 2000).

  (3) 40 CFR §122.26(b)(14)(i)—(xi).

#### Regulation .01-2 Grandfather Provisions.

*COMAR 26.17.02.01-2*

A. In this regulation, the following terms have the meanings indicated:

  (1) Administrative Waiver.

    (a) “Administrative waiver” means a decision by the approving agency pursuant to this regulation to allow the construction of a development to be governed by the stormwater management ordinance in effect as of May 4, 2009, in the local jurisdiction where the project will be located.

    (b) “Administrative waiver” is distinct from a waiver granted pursuant to Regulation .05C of this chapter.

  (2) Approval.

    (a) “Approval” means a documented action by a county or municipality following a review to determine and acknowledge the sufficiency of submitted material to meet the requirements of a specified stage in a local development review process.

    (b) “Approval” does not mean an acknowledgement by the approving agency that submitted material has been received for review.

  (3) Final Project Approval.

    (a) “Final project approval” means approval of the final stormwater management plan and erosion and sediment control plan required to construct a project's stormwater management facilities.

    (b) “Final project approval” includes securing bonding or financing for final development plans if either is required as a prerequisite for approval.

  (4) “Preliminary project approval” means an approval as part of a local preliminary development or planning review process that includes, at a minimum:

    (a) The number of planned dwelling units or lots;

    (b) The proposed project density;

    (c) The proposed size and location of all land uses for the project;

    (d) A plan that identifies:

      (i) The proposed drainage patterns;

      (ii) The location of all points of discharge from the site; and

      (iii) The type, location, and size of all stormwater management measures based on site-specific stormwater management requirement computations; and

    (e) Any other information required by the approving agency including, but not limited to:

      (i) The proposed alignment, location, and construction type and standard for all roads, access ways, and areas of vehicular traffic;

      (ii) A demonstration that the methods by which the development will be supplied with water and wastewater service are adequate; and

      (iii) The size, type, and general location of all proposed wastewater and water system infrastructure.

B. An approving agency may grant an administrative waiver to a development that received a preliminary project approval prior to May 4, 2010.  Administrative waivers expire according to §C of this regulation and may be extended according to §D of this regulation.

C. Expiration of Administrative Waivers.

  (1) Except as provided for in §D of this regulation, an administrative waiver shall expire on:

    (a) May 4, 2013, if the development does not receive final project approval prior to that date; or

    (b) May 4, 2017, if the development receives final project approval prior to May 4, 2013.

  (2) All construction authorized pursuant to an administrative waiver must be completed by May 4, 2017, or, if the waiver is extended as provided in §D of this regulation, by the expiration date of the waiver extension.

D. Extension of Administrative Waivers.

  (1) Except as provided in §D(2) of this regulation, an administrative waiver shall not be extended.

  (2) An administrative waiver may only be extended if, by May 4, 2010, the development:

    (a) Has received a preliminary project approval; and

    (b) Was subject to a Development Rights and Responsibilities Agreement, a Tax Increment Financing approval, or an Annexation Agreement.

  (3) Administrative waivers extended according to §D(2) of this regulation shall expire when the Development Rights and Responsibilities Agreement, the Tax Increment Financing approval, or the Annexation Agreement expires.

#### Regulation .02 Definitions.

*COMAR 26.17.02.02*

A. The following definitions describe the meaning of terms used in this chapter and the 2000 Maryland Stormwater Design Manual, Volumes I & II. The definitions will be valid unless the context in which they are used clearly requires a different meaning. Terms not defined below shall have the meanings given to them in the relevant statutes or, if not defined in statutes, the meanings attributed by common use. The definitions for these terms are provided below as a convenience, but persons affected by the Department's regulations should be aware that these definitions are subject to amendment by the General Assembly.

B. In this chapter, the following terms have the meanings indicated.

  (1) “Administration” means the Water Management Administration.

  (2) “Agricultural land management practices” means those methods and procedures used in the cultivation of land in order to further crop and livestock production and conservation of related soil and water resources.

  (3) “Approving agency” means the entity responsible for review and approval of stormwater management plans.

  (4) “Aquifer” means a porous water-bearing geologic formation generally restricted to materials capable of yielding an appreciable supply of water.

  (5) “Best management practice (BMP)” means a structural device or nonstructural practice designed to temporarily store or treat stormwater runoff in order to mitigate flooding, reduce pollution, and provide other amenities.

  (6) “Channel protection storage volume” means the volume used to design structural management practices to control stream channel erosion. Methods for calculating the channel protection storage volume are specified in the 2000 Maryland Stormwater Design Manual, Volumes I & II.

  (7) “Concept plan” means the first of three required plan approvals that includes the information necessary to allow an initial evaluation of a proposed project.

  (8) “Department” means the Department of the Environment.

  (9) “Design Manual” means the 2000 Maryland Stormwater Design Manual, Volumes I & II, that serves as the official guide for stormwater management principles, methods, and practices.

  (10) “Detention structure” means a permanent structure for the temporary storage of runoff which is designed so as not to create a permanent pool of water.

  (11) “Develop land” means to change the runoff characteristics of a parcel of land in conjunction with residential, commercial, industrial, or institutional construction or alteration.

  (12) “Direct discharge” means the concentrated release of stormwater to tidal waters or vegetated tidal wetlands from new development or redevelopment projects in the Critical Area.

  (13) “Direct runoff” means the flow of rainwater, snowmelt, or spring flow over the land surface toward stream channels.

  (14) “Drainage area” means that area contributing runoff to a single point measured in a horizontal plane, which is enclosed by a ridge line.

  (15) Environmental Site Design.

    (a) “Environmental site design (ESD)” means using small-scale stormwater management practices, nonstructural techniques, and better site planning to mimic natural hydrologic runoff characteristics and minimize the impact of land development on water resources.

    (b) “Environmental site design (ESD)” design methods are specified in the Design Manual.

  (16) “Extended detention” means a stormwater design feature that provides gradual release of a volume of water in order to increase settling of pollutants and protect downstream channels from frequent storm events. Methods for designing extended detention BMPs are specified in the Design Manual.

  (17) “Extreme flood volume” means the storage volume required to control those infrequent but large storm events in which overbank flows reach or exceed the boundaries of the 100-year floodplain.

  (18) “Final stormwater management plan” means the last of three required plan approvals that includes the information necessary to allow all approvals and permits to be issued by the appropriate authority.

  (19) “Flow attenuation” means prolonging the flow time of runoff to reduce the peak discharge.

  (20) “Impervious area” means any surface that does not allow stormwater to infiltrate into the ground.

  (21) “Infiltration” means the passage or movement of water into the soil surface.

  (22) “Maximum extent practicable (MEP)” means designing stormwater management systems so that all reasonable opportunities for using ESD planning techniques and treatment practices are exhausted and, only where absolutely necessary, a structural BMP is implemented.

  (23) “Off-site stormwater management” means the design and construction of a facility necessary to control stormwater from more than one development.

  (24) “On-site stormwater management” means the design and construction of systems necessary to control stormwater within an immediate development.

  (25) “Overbank flood protection volume” means the volume controlled by structural practices to prevent an increase in the frequency of out-of-bank flooding generated by development. Methods for calculating the overbank flood protection volume are specified in the Design Manual.

  (26) “Person” means the federal government, the State, any county, municipal corporation, or other political subdivision of the State, or any of their units, or an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation, or any other entity.

  (27) “Planning techniques” means a combination of strategies employed early in project design to reduce impact from development and to incorporate natural features into a stormwater management plan.

  (28) “Recharge volume” means that portion of the water quality volume used to maintain ground water recharge rates at development sites. Methods for calculating the recharge volume are specified in the Design Manual.

  (29) “Redevelopment” means any construction, alteration, or improvement performed on sites where existing land use is commercial, industrial, institutional, or multifamily residential and the existing site impervious area exceeds 40 percent.

  (30) “Retention structure” means a permanent structure that provides for the storage of runoff by means of a permanent pool of water.

  (31) “Retrofitting” means the construction of a structural BMP in a previously developed area, the modification of an existing structural BMP, or the implementation of a nonstructural practice to improve water quality over current conditions.

  (32) “Sediment” means soils or other surficial materials transported or deposited by the action of wind, water, ice, or gravity as a product of erosion.

  (33) “Site” means any tract, lot, parcel of land, or combination of tracts, lots, parcels of land that are in one ownership, or are contiguous and in diverse ownership where development is to be performed as part of a unit, subdivision, or project.

  (34) “Site development plan” means the second of three required plan approvals that includes the information necessary to allow a detailed evaluation of a proposed project.

  (35) “Stormwater” means water that originates from a precipitation event.

  (36) “Stormwater management” means, for:

    (a) Quantitative control, a system of vegetative and structural measures that control the increased volume and rate of surface runoff caused by man-made changes to the land; and

    (b) Qualitative control, a system of vegetative, structural, and other measures that reduce or eliminate pollutants that might otherwise be carried by surface runoff.

  (37) “Stormwater Management Subtitle” means Environment Article, Title 4, Subtitle 2, Annotated Code of Maryland and cumulative supplement.

  (38) “Stormwater management system” means natural areas, ESD practices, stormwater management measures, and any other structure through which stormwater flows, infiltrates, or discharges from a site.

  (39) “Water quality volume” means the volume needed to capture and treat 90 percent of the average annual runoff volume at a development site. Methods for calculating the water quality volume are specified in the Design Manual.

  (40) “Watershed” means the total drainage area contributing runoff to a single point.

#### Regulation .03 General Provisions.

*COMAR 26.17.02.03*

A. The Administration is responsible for implementing and supervising the stormwater management program which is established by the Stormwater Management Subtitle. This responsibility shall include, but is not limited to:

  (1) Establishing policies, procedures, standards, model ordinances, and criteria relating to stormwater management;

  (2) Reviewing and approving:

    (a) County stormwater management ordinances,

    (b) Municipal stormwater management ordinances,

    (c) Stormwater management program implementation and operation, and

    (d) Stormwater management plans for State and federal construction projects which shall be subject to the requirements of this chapter;

  (3) Inspecting and enforcing stormwater management on all State and federal construction projects which shall be subject to the requirements of this chapter;

  (4) Inspection and enforcement in conjunction with local governmental authorities;

  (5) Developing guidelines and regulations;

  (6) Assisting local jurisdictions with improving and maintaining their technical capabilities regarding:

    (a) Hydrologic and hydraulic analyses,

    (b) Utilization of State adopted standards and specifications for stormwater management, and

    (c) Stormwater management plan review;

  (7) Training assistance to local jurisdictions for construction and maintenance inspections of stormwater management systems;

  (8) Developing public educational programs; and

  (9) Evaluating the effectiveness of stormwater control measures in eliminating adverse stream quality impacts.

B. Matters of policy, procedures, standards, criteria, approvals, inspection, and enforcement relating to the Stormwater Management Subtitle shall be established by the Administration subject to the jurisdiction of the Secretary of the Environment. The stormwater management programs which are adopted by the counties and municipalities shall include stormwater management criteria consistent with the standards, procedures, and regulations of the Administration. A variation of requirements by a county or municipality on a specific watershed may not be valid unless approved by the Administration. All State and federal development in the watershed shall be reviewed subject to the same variations and requirements by the Administration.

C. Inspection and Review.

  (1) Initially, and at least once every 3 years after that, the Administration shall inspect and review the stormwater management programs of the counties and municipalities and evaluate the effectiveness of the programs.

  (2) To be found acceptable, a stormwater management program shall have:

    (a) An Administration-approved stormwater management ordinance in effect;

    (b) Stormwater management planning and approval processes that provide:

      (i) Stormwater management for every land development subject to this chapter;

      (ii) The implementation of ESD to the MEP; and

      (iii) The ability and the information necessary to review adequately proposed installation and maintenance measures for stormwater management;

    (c) Inspection and enforcement procedures that ensure the proper construction and maintenance of approved stormwater management measures.

  (3) Upon completion of its review and evaluation, the Administration shall submit the findings within 30 days to the appropriate governing authority. The Administration shall also publish the results of the periodic reviews in one document and conduct a public informational meeting concerning the reviews.

D. If a county or municipality is found not to have an acceptable stormwater management program, the Department may:

  (1) Issue an order requiring that necessary corrective action be taken within a reasonably prescribed time; or

  (2) Impose other sanctions as authorized by law.

E. In order to assure that Administration-approved programs reflect the policies established in the Design Manual, each county or municipality shall submit proposed revisions to its ordinance to the Administration by November 11, 2009. Each county and municipality shall adopt a revised ordinance by May 4, 2010, in order to require that all new development and redevelopment projects implement the policies and practices established in the Design Manual. Descriptions of other program elements shall be submitted as requested by the Administration.

#### Regulation .04 Stormwater Management Ordinances.

*COMAR 26.17.02.04*

A. Each county and municipality shall adopt ordinances necessary to implement a stormwater management program. Subsequently, counties and municipalities shall submit any proposed amendments to the Administration for review and approval. By joint action with the county, a municipality may adopt the stormwater management ordinance of its respective county.

B. Each local ordinance shall provide for:

  (1) A comprehensive stormwater management plan review and approval process that:

    (a) Considers all aspects of project planning, design, and construction from initial conception through final approval;

    (b) Requires the submission, review, and approval of interim plans at an increasing level of detail for specific stages of project development;

    (c) Provides for coordinated input for all plans from all appropriate agencies including, but not limited to, soil conservation districts and departments of planning, zoning, public works, and environmental protection; and

    (d) Requires implementation of ESD to the MEP;

  (2) Exemptions and waivers;

  (3) Criteria and procedures for stormwater management;

  (4) Proper implementation of stormwater management in accordance with the approved plan;

  (5) Maintenance responsibilities and requirements including periodic inspection; and

  (6) Penalties for noncompliance with the ordinances including suspension of construction activities when appropriate.

#### Regulation .05 When Stormwater Management is Required.

*COMAR 26.17.02.05*

A. Unless the particular activity is exempted by this regulation, a person may not develop any land without an approved final stormwater management plan from the approving agency. A grading or building permit may not be issued for a property unless a final stormwater management plan has been approved that is consistent with:

  (1) The Stormwater Management Subtitle;

  (2) This chapter;

  (3) The county or municipal ordinance.

  (4) The Design Manual for new development; and

  (5) Policies established by the local approving agency for redevelopment.

B. The following activities are exempt from the provisions of this chapter:

  (1) Additions or modifications to existing single family detached residential structures if they comply with §B(2) of this regulation;

  (2) Any developments that do not disturb over 5,000 square feet of land area; and

  (3) Land development activities which the Administration determines will be regulated under specific State laws which provide for managing stormwater runoff.

C. Waivers.

  (1) County and municipal ordinances may contain waiver policies for individual developments if the ordinances are approved by the Administration. The Administration will approve county and municipal ordinances and waiver policies if:

    (a) They reasonably ensure that a development will not adversely impact stream quality;

    (b) Waiver decisions are made on a case-by-case basis; and

    (c) The cumulative effects of the waiver policy are evaluated.

  (2) Except as provided in §C(3) and (5) of this regulation, stormwater management quantitative control waivers shall be granted only to those projects within areas where watershed management plans have been developed consistent with §E of this regulation.

  (3) Except as provided in §C(5) of this regulation, if watershed management plans consistent with §E of this regulation have not been developed, stormwater management quantitative control waivers may be granted to projects:

    (a) That have direct discharges to tidally influenced receiving waters;

    (b) That are in-fill development located in a Priority Funding Area where the economic feasibility of the project is tied to the planned density, and where implementation of the 2009 regulatory requirements would result in a loss of the planned development density provided that:

      (i) Public water and sewer and stormwater conveyance exist;

      (ii) The quantitative waiver is applied to the project for the impervious cover that previously existed on the site only;

      (iii) ESD to the MEP is used to meet the full water quality treatment requirements for the entire development; and

      (iv) ESD to the MEP is used to provide full quantity control for all new impervious surfaces; or

    (c) When the approving agency determines that circumstances exist that prevent the reasonable implementation of quantity control practices.

  (4) Except as provided in §C(5) of this regulation, stormwater management qualitative control waivers apply only to:

    (a) In-fill development projects where stormwater management implementation is not feasible;

    (b) Redevelopment projects if the requirements of §D of this regulation are satisfied; or

    (c) Sites where the approving agency determines that circumstances exist that prevent the reasonable implementation of quality control practices.

  (5) Stormwater management quantitative and qualitative control waivers may be granted for phased development projects if a system designed to meet the 2000 regulatory requirements and local ordinances for multiple phases has been constructed by May 4, 2010.  If the 2009 regulatory requirements cannot be met for future phases constructed after May 4, 2010, all reasonable efforts to incorporate ESD in future phases must be demonstrated.

D. Redevelopment.

  (1) An approving agency shall require that stormwater management be addressed for redevelopment. Unless otherwise specified by watershed management plans developed according to §E of this regulation, all redevelopment project designs shall do one of the following:

    (a) Reduce existing impervious area within the limit of disturbance by at least 50 percent according to the Design Manual;

    (b) Implement ESD to the MEP to provide water quality treatment for at least 50 percent of the existing impervious area within the limit of disturbance; or

    (c) Use a combination of both §D(1)(a) and (b) of this regulation for at least 50 percent of the existing site impervious area.

  (2) Alternative stormwater management measures may be used to meet the requirements in §D(1) of this regulation if the developer satisfactorily demonstrates to the approving agency that impervious area reduction and ESD have been implemented to the MEP. Alternative stormwater management measures include, but are not limited to:

    (a) An on-site structural BMP;

    (b) An off-site structural BMP to provide water quality treatment for an area equal to or greater than 50 percent of the existing impervious area; or

    (c) A combination of impervious area reduction, ESD implementation, and an on-site or off-site structural BMP for an area equal to or greater than 50 percent of the existing site impervious area within the limit of disturbance.

  (3) An approving agency may develop separate policies for providing water quality treatment for redevelopment projects if the requirements of §D(1) and (2) of this regulation cannot be met. Any separate redevelopment policy shall be reviewed and approved by the Administration and may include, but not be limited to:

    (a) A combination of ESD and an on-site or off-site structural BMP;

    (b) Retrofitting including existing BMP upgrades, filtering practices, and off-site ESD implementation;

    (c) Participation in a stream restoration project;

    (d) Pollution trading with another entity;

    (e) Design criteria based on watershed management plans developed according to §E of this regulation;

    (f) Payment of a fee-in-lieu; or

    (g) A partial waiver of the treatment requirements if ESD is not practicable.

  (4) The determination of what alternative stormwater management measures will be available may be made by the approving agency at the appropriate point in the development review process.  Counties and municipalities shall consider the prioritization of alternative measures in §D(3) of this regulation after it has been determined that it is not practicable to meet the 2009 regulatory requirements using ESD.  In deciding what alternative measures may be required, an approving agency may consider factors including, but not limited to:

    (a) Whether the project is in an area targeted for development incentives such as a Priority Funding Area, a designated Transit Oriented Development area, or a designated Base Realignment and Closure Revitalization and Incentive Zone;

    (b) Whether the project is necessary to accommodate growth consistent with comprehensive plans; or

    (c) Whether bonding and financing have already been secured based on an approved development plan.

  (5) Stormwater management shall be addressed according to the new development requirements in the Design Manual for any net increase in impervious area.

  (6) The recharge, channel protection storage volume, and overbank flood protection volume requirements specified in the Design Manual do not apply to redevelopment projects unless specified by the approving agency.

  (7) On-site or off-site channel protection storage volume requirements as specified in the Design Manual may be imposed if watershed management plans developed according to §E of this regulation indicate that downstream flooding or erosion need to be addressed.

  (8) Variations of this redevelopment policy shall be approved by the Administration.

E. An approving agency may develop quantitative waiver and redevelopment provisions for stormwater management that differ from the requirements of this chapter. These provisions shall be developed only as part of an overall watershed management plan. Watershed management plans developed for the purposes of implementing different stormwater management policies for waivers and redevelopment shall:

  (1) Include detailed hydrologic and hydraulic analyses to determine hydrograph timing;

  (2) Evaluate both quantity and quality management;

  (3) Include cumulative impact assessment of watershed development;

  (4) Identify existing flooding and receiving stream channel conditions;

  (5) Be conducted at a scale determined by the approving agency; and

  (6) Specify where on-site or off-site quantitative and qualitative stormwater management practices are to be implemented.

#### Regulation .06 Minimum Control Requirements.

*COMAR 26.17.02.06*

A. County and Municipal Requirements.

  (1) The minimum control requirements established in this section and the Design Manual shall be contained in each county and municipal ordinance as they apply to the applicable parts of the State. The minimum control requirements for each county and municipality are provided in §A(2) and (3) of this regulation.

  (2) All counties and their incorporated municipalities shall require that the planning techniques, nonstructural and structural practices, and design methods specified in the Design Manual be used to implement ESD to the MEP. Stormwater management plans for development projects subject to this chapter shall be designed using the ESD sizing criteria, recharge volume, water quality volume, and channel protection storage volume criteria according to the Design Manual. The MEP standard is met when channel stability and 100 percent of the average annual predevelopment groundwater recharge are maintained, nonpoint source pollution is minimized, and structural stormwater management practices are used only if determined to be absolutely necessary.

  (3) Control of the 2-year frequency storm event, 10-year frequency storm event, or both is required according to the Design Manual if any county or municipality determines that additional stormwater management is necessary because historical flooding problems exist and downstream floodplain development and conveyance system design cannot be controlled.

  (4) An approving agency may require more than the minimum control requirements specified in this regulation if hydrologic or topographic conditions warrant or if flooding, stream channel erosion, or water quality problems exist downstream from a proposed project.

B. Alternate minimum control requirements may be adopted subject to Administration approval. The Administration shall require a demonstration that alternative requirements will implement ESD to the MEP and control flood damages, accelerated stream erosion, water quality, and sedimentation, including, if necessary, address comprehensive watershed studies.

C. Development in watersheds designated as interjurisdictional flood hazard watersheds within this chapter may not increase the downstream peak discharge for the 100-year frequency storm event and shall comply with flood management plans as approved by the Department in accordance with the Flood Hazard Management Act of 1976 (Environment Article, Title 5, Subtitle 8, Annotated Code of Maryland).

#### Regulation .07 Interjurisdictional Flood Hazard Watersheds.

*COMAR 26.17.02.07*

A. The watersheds specified in this regulation are interjurisdictional in nature and have documented flood damages to residential, commercial, industrial, or institutional structures. Development in the interjurisdictional flood hazard watershed may not increase the downstream peak discharge for the 100-year frequency storm event. Additionally, development shall comply with flood management plans as approved by the Department in accordance with the Flood Hazard Management Act of 1976 (Environment Article, Title 5, Subtitle 8, Annotated Code of Maryland). The following watersheds and all their tributaries are designated as interjurisdictional flood hazard watersheds:

  (1) Carroll Creek in Frederick City and Frederick County;

  (2) Gwynns Falls in Baltimore City and Baltimore County; and

  (3) Jones Falls in Baltimore City and Baltimore County.

B. The Administration shall periodically review watersheds to be included as interjurisdictional flood hazard watersheds for the purposes of this chapter. Any additional interjurisdictional watershed to be designated will be considered with respect to the:

  (1) Economic losses due to flood damages;

  (2) Expected upstream development;

  (3) Frequency of flooding;

  (4) Number and value of structures flooded; and

  (5) Threat to life.

#### Regulation .08 Stormwater Management Measures.

*COMAR 26.17.02.08*

A. The ESD planning techniques and practices and structural stormwater management measures established in this regulation and the Design Manual shall be contained in all county and municipal ordinances. Each ordinance shall require that a developer demonstrate that ESD has been implemented to the MEP and, only where absolutely necessary, is a structural BMP used in developing a stormwater management plan.

B. ESD Planning Techniques and Practices.

  (1) The following planning techniques shall be applied according to the Design Manual to satisfy the minimum control requirements established in Regulation .06 of this chapter:

    (a) Preserving and protecting natural resources;

    (b) Conserving natural drainage patterns;

    (c) Minimizing impervious area;

    (d) Reducing runoff volume;

    (e) Using ESD practices to maintain 100 percent of the average annual predevelopment groundwater recharge volume for the site;

    (f) Using green roofs, permeable pavement, reinforced turf, and other alternative surfaces;

    (g) Limiting soil disturbance, mass grading, and compaction;

    (h) Clustering development; and

    (i) Any practices approved by the Administration.

  (2) The following ESD treatment practices shall be designed according to the Design Manual to satisfy the minimum control requirements established in Regulation .06 of this chapter:

    (a) Disconnection of rooftop runoff;

    (b) Disconnection of nonrooftop runoff;

    (c) Sheetflow to conservation areas;

    (d) Rainwater harvesting;

    (e) Submerged gravel wetlands;

    (f) Landscape infiltration;

    (g) Infiltration berms;

    (h) Dry wells;

    (i) Micro-bioretention;

    (j) Rain gardens;

    (k) Swales;

    (l) Enhanced filters; and

    (m) Any practices approved by the Administration.

  (3) The use of the ESD planning techniques and treatment practices specified in this section may not conflict with existing State law or local ordinances, regulations, or policies. Counties and municipalities shall modify planning and zoning ordinances and public works codes to eliminate any impediments to implementing ESD to the MEP according to the Design Manual.

C. Structural Stormwater Management Measures.

  (1) The following structural stormwater management practices shall be designed according to the Design Manual to satisfy the applicable minimum control requirements established in Regulation .06 of this chapter:

    (a) Stormwater management ponds;

    (b) Stormwater management wetlands;

    (c) Stormwater management infiltration;

    (d) Stormwater management filtering systems; and

    (e) Stormwater management open channel systems.

  (2) The performance criteria specified in the Design Manual with regard to general feasibility, conveyance, pretreatment, treatment and geometry, environment and landscaping, and maintenance shall be considered when selecting structural stormwater management practices.

  (3) Structural stormwater management practices shall be selected to accommodate the unique hydrologic or geologic regions of the State.

D. Standard Plans.

  (1) Compliance with any of the following Standard Plans is considered to satisfy the minimum control requirements established in Regulation .06A(2) of this chapter.

  (2) Standard Plans. The following documents are incorporated by reference:

    (a) Standard Stormwater Management Plan for Agricultural Structures (SSDS — SP01);

    (b) Standard Stormwater Management Plan for Poultry House Development on Maryland’s Eastern Shore (SSDS — SP02); and

    (c) Standard Stormwater Management Plan for Single Lot Residential Construction (SSDS — SP03).

  (3) Compliance with an approved Soil Conservation and Water Quality Plan (SCWQP) is considered to satisfy the minimum control requirements established in Regulation .06A(2) of this chapter if the development:

    (a) Is an agricultural structure, or associated access roads and parking areas;

    (b) Complies with USDA Natural Resources Conservation Service Maryland Conservation Practice Standard Stormwater Runoff Control Code 570 (March 2013);

    (c) Is not located within the Chesapeake and Atlantic Coastal Bays Critical Area; and

    (d) Is not subject to the requirements of:

      (i) COMAR 26.08.04.09A;

      (ii) COMAR 26.08.04.09N; or

      (iii) COMAR 26.17.04.05.

  (4) An approving agency may require more than the minimum control measures. An approving agency may require that an engineered stormwater management plan be submitted if:

    (a) Otherwise required by statute or regulation;

    (b) The plan fails to meet ESD to the MEP;

    (c) Hydrologic or topographic conditions warrant; or

    (d) Flooding, stream channel erosion, or water quality problems exist downstream from a proposed project.

E. County and municipal ordinances shall specify that the ESD planning techniques and treatment practices and structural stormwater management measures used to satisfy the minimum control requirements in Regulation .06 of this chapter are documented and remain unaltered by subsequent property owners. Approval from the appropriate approving agency should be obtained before any stormwater management practice is altered.

F. Alternative ESD planning techniques and treatment practices and structural stormwater management measures may be used for new development runoff control if they meet the performance criteria established in the Design Manual and are approved by the Administration. Practices used for redevelopment projects shall be approved by the appropriate approving agency.

G. For purposes of modifying the minimum control requirements or design criteria, the owner/developer shall submit to the approving agency an analysis of the impacts of stormwater flows downstream in the watershed. The analysis shall include hydrologic and hydraulic calculations necessary to determine the impact of hydrograph timing modifications of the proposed development upon a dam, highway, structure, or natural point of restricted streamflow, established with the concurrence of the approving agency, downstream of the first downstream tributary whose drainage area equals or exceeds the contributing area to the project or stormwater management facility.

#### Regulation .09 Stormwater Management Plans.

*COMAR 26.17.02.09*

A. The design of stormwater management plans shall be prepared by any individual whose qualifications are acceptable to the approving agency. The approving agency may require that the design be prepared by either a professional engineer, professional land surveyor, or landscape architect licensed in the State, as necessary to protect the public or the environment. If a stormwater BMP requires either a dam safety permit from the Department or small pond approval by the appropriate soil conservation district, the approving agency shall require that the design be prepared by a professional engineer licensed in the State.

B. Stormwater management and development plans shall be consistent with adopted and approved watershed management plans or flood management plans as approved by the Department in accordance with the Flood Hazard Management Act of 1976 (Environment Article, Title 5, Subtitle 8, Annotated Code of Maryland).

C. An operation and maintenance plan shall be required as a condition of stormwater management plan approval.

D. If a stormwater management plan involves direction of some or all runoff off of the site, it is the responsibility of the developer to obtain from adjacent property owners any easements or other necessary property interests concerning flowage of water. Approval of a stormwater management plan does not create or affect any right to direct runoff onto adjacent property without that property owner's permission.

E. Contents and Submission of Stormwater Management Plans.

  (1) The owner/developer is responsible for submitting phased stormwater management plans for development projects according to the comprehensive review and approval process specified in Regulation .04 of this chapter, the Design Manual, and county and municipal stormwater management ordinances. Plans shall be submitted for the concept, site development, and final stormwater management construction phases of project design. Comments from the appropriate approval authority shall be addressed and approval received at each phase of project design before subsequent submissions.

  (2) The owner/developer shall submit a concept plan that provides sufficient information for an initial assessment of the proposed project and whether stormwater management can be provided according to this chapter and the Design Manual. Plans submitted for concept approval shall include, but are not limited to:

    (a) A map at a scale specified by the appropriate approval authority showing site location, existing natural features, water and other sensitive resources, topography, and natural drainage patterns;

    (b) The anticipated location of all proposed impervious areas, buildings, roadways, parking, sidewalks, utilities, and other site improvements;

    (c) The location of the proposed limit of disturbance, erodible soils, steep slopes, and areas to be protected during construction;

    (d) Preliminary estimates of stormwater management requirements, the selection and location of ESD practices to be used, and the location of all points of discharge from the site;

    (e) A narrative that supports the concept design and describes how ESD will be implemented to the MEP; and

    (f) Any other information required by the approving Agency.

  (3) Following concept plan approval by the appropriate authority, the owner or developer shall submit site development plans that reflect comments received during the previous review phase. Plans submitted for site development approval shall be of sufficient detail to allow site development to be reviewed and include but not be limited to:

    (a) All information provided during the concept plan review phase;

    (b) Final site layout, exact impervious area locations and acreages, proposed topography, delineated drainage areas at all points of discharge from the site, and stormwater volume computations for ESD practices and quantity control structures;

    (c) A proposed erosion and sediment control plan that contains the construction sequence, any phasing necessary to limit earth disturbances and impacts to natural resources, and an overlay plan showing the types and locations of ESD and erosion and sediment control practices to be used;

    (d) A narrative that supports the site development design, describes how ESD will be used to meet the minimum control requirements, and justifies any proposed structural stormwater management measure; and

    (e) Any other information required by the approving Agency.

  (4) Following site development approval by the appropriate authority, the owner/developer shall submit final erosion and sediment control and stormwater management plans that reflect the comments received during the previous review phase. Plans submitted for final approval shall be of sufficient detail to allow all approvals and permits to be issued according to the following:

    (a) Final erosion and sediment control plans shall be submitted according to COMAR 26.17.01.05; and

    (b) Final stormwater management plans shall be submitted for approval in the form of construction drawings and be accompanied by a report that includes sufficient information to evaluate the effectiveness of the proposed runoff control design.

  (5) Reports submitted for final stormwater management plan approval shall include, but are not limited to:

    (a) Geotechnical investigations including soil maps, borings, site-specific recommendations, and any additional information necessary for the final stormwater management design;

    (b) Drainage area maps depicting predevelopment and postdevelopment runoff flow path segmentation and land use;

    (c) Hydrologic computations of the applicable ESD and unified sizing criteria according to the Design Manual for all points of discharge from the site;

    (d) Hydraulic and structural computations for all ESD practices and structural stormwater management measures to be used;

    (e) A narrative that supports the final stormwater management design; and

    (f) Any other information required by the approving agency.

  (6) Construction drawings submitted for final stormwater management plan approval shall include, but are not limited to:

    (a) A vicinity map;

    (b) Existing and proposed topography and proposed drainage areas, including areas necessary to determine downstream analysis for the proposed stormwater management facilities;

    (c) Any proposed improvements including the location of buildings or other structures, impervious surfaces, storm drainage facilities, and all grading;

    (d) The location of existing and proposed structures;

    (e) Any easements and rights-of-way;

    (f) The delineation, if applicable, of the 100-year floodplain and any on-site wetlands;

    (g) Structural and construction details including representative cross sections for all components of the proposed drainage system or systems and stormwater management facilities;

    (h) All necessary construction specifications;

    (i) A sequence of construction;

    (j) Data for total site area, disturbed area, new impervious area, and total impervious area;

    (k) A table showing the ESD and unified sizing criteria volumes required in the Design Manual;

    (l) A table of materials to be used for stormwater management facility planting;

    (m) All soil boring logs and locations;

    (n) An inspection and maintenance schedule;

    (o) Certification by the owner/developer that all stormwater management construction will be done according to this plan;

    (p) An as-built certification signature block to be executed after project completion; and

    (q) Any other information required by the approving agency.

F. Standard plans specified in Regulation .08D of this chapter are considered an acceptable stormwater management plan for satisfying the requirements of §E of this regulation.

#### Regulation .10 Construction Inspection and Enforcement.

*COMAR 26.17.02.10*

A. Before Beginning Construction.

  (1) All county and municipal ordinances shall require:

    (a) Advance notification of the beginning of construction by the owner/developer;

    (b) Documented regular inspections during construction of stormwater management systems;

    (c) Certification by a professional engineer licensed in the State documenting that structural practices have been constructed according to approved plans; and

    (d) Effective enforcement procedures to ensure compliance with approved stormwater management plans.

  (2) The owner/developer shall notify the appropriate approving agency at least 48 hours before beginning any work in conjunction with stormwater management system construction.

  (3) Inspections shall be conducted by county or municipal staff or certified by a professional engineer licensed in the State. The periodic inspections shall be documented and reports maintained by the county or municipality. Written reports shall be prepared for every inspection and include:

    (a) The date and location of the inspection;

    (b) Whether construction was in compliance with the approved stormwater management plan;

    (c) Any variations from the approved construction specifications; and

    (d) Any violations that exist.

  (4) The owner/developer and on-site personnel shall be notified in writing when violations are observed. Written notification shall describe the nature of the violation and the required corrective action.

  (5) Work may not proceed until the work previously completed is approved by the appropriate inspection authority.

B. Regular inspections shall be made and documented for each ESD planning technique and practice at the stages of construction specified in the Design Manual. At a minimum, all ESD and other nonstructural practices shall be inspected upon completion of final grading, the establishment of permanent stabilization, and before issuance of use and occupancy approval.

C. At a minimum, regular inspections shall be made and documented at the following specified stages of construction:

  (1) For ponds:

    (a) Upon completion of excavation to sub-foundation and, when required, installation of structural supports or reinforcement for structures, including but not limited to:

      (i) Core trenches for structural embankments,

      (ii) Inlet and outlet structures, anti-seep collars or diaphragms, and watertight connectors on pipes, and

      (iii) Trenches for enclosed storm drainage facilities;

    (b) During placement of structural fill, concrete, and installation of piping and catch basins;

    (c) During backfill of foundations and trenches;

    (d) During embankment construction; and

    (e) Upon completion of final grading and establishment of permanent stabilization;

  (2) Wetlands—at the stages specified for pond construction in §B(1) of this regulation, during and after wetland reservoir area planting, and during the second growing season to verify a vegetation survival rate of at least 50 percent;

  (3) For infiltration trenches:

    (a) During excavation to subgrade;

    (b) During placement and backfill of under drain systems and observation wells;

    (c) During placement of geotextiles and all filter media;

    (d) During construction of appurtenant conveyance systems such as diversion structures, pre-filters and filters, inlets, outlets, orifices, and flow distribution structures; and

    (e) Upon completion of final grading and establishment of permanent stabilization;

  (4) For infiltration basins—at the stages specified for pond construction in §B(1) of this regulation and during placement and backfill of under drain systems;

  (5) For filtering systems:

    (a) During excavation to subgrade;

    (b) During placement and backfill of under drain systems;

    (c) During placement of geotextiles and all filter media;

    (d) During construction of appurtenant conveyance systems such as flow diversion structures, pre-filters and filters, inlets, outlets, orifices, and flow distribution structures; and

    (e) Upon completion of final grading and establishment of permanent stabilization; and

  (6) For open channel systems:

    (a) During excavation to subgrade;

    (b) During placement and backfill of under drain systems for dry swales;

    (c) During installation or diaphragms, check dams, or weirs; and

    (d) Upon completion of final grading and establishment of permanent stabilization.

D. The county or municipality responsible for inspection and enforcement of approved stormwater management plans may, for enforcement purposes, use any one or a combination of the following actions:

  (1) A notice of violation shall be issued specifying the need for the violation to be corrected if stormwater management plan noncompliance is identified;

  (2) A stop work order shall be issued for the site by the county or municipality if a violation persists;

  (3) Bonds or securities may be withheld or the case may be referred for legal action if reasonable efforts to correct the violation have not been undertaken; or

  (4) In addition to any other sanctions, a civil action or criminal prosecution may be brought against any person in violation of the Stormwater Management Subtitle or this chapter.

E. Any step in the enforcement process may be taken at any time, depending on the severity of the violation.

F. Once construction is complete, as-built plan certification shall be submitted by either a professional engineer or professional land surveyor licensed in the State to ensure that ESD planning techniques, treatment practices, and structural stormwater management measures and conveyance systems comply with the specifications contained in approved plans. At a minimum, as-built certification shall include a set of drawings comparing the approved stormwater management plan with what was constructed. Other information shall be submitted as required by the approving agency.

G. Each county or municipality shall submit notice of construction completion to the Administration on a form supplied by the Administration for each stormwater management practice within 45 days of construction completion. If BMPs requiring soil conservation district approval are constructed, notice of construction completion shall also be submitted to the appropriate soil conservation district.

#### Regulation .11 Maintenance.

*COMAR 26.17.02.11*

A. Maintenance requirements established in this regulation shall be contained in all county and municipal ordinances and shall provide for inspection and maintenance. The owner shall perform or cause to be performed preventive maintenance of all completed ESD treatment practices and structural stormwater management measures to ensure proper functioning. The responsible agency of the county or municipality shall ensure preventive maintenance through inspection of all stormwater management systems. The inspection shall occur during the first year of operation and then at least once every 3 years after that.

B. Inspection reports shall be maintained by the county or municipality on all stormwater management systems and shall include the following:

  (1) The date of inspection;

  (2) Name of inspector;

  (3) The condition of:

    (a) Vegetation or filter media;

    (b) Fences or other safety devices;

    (c) Spillways, valves, or other control structures;

    (d) Embankments, slopes, and safety benches;

    (e) Reservoir or treatment areas;

    (f) Inlet and outlet channels or structures;

    (g) Underground drainage;

    (h) Sediment and debris accumulation in storage and forebay areas;

    (i) Any nonstructural practices to the extent practicable; and

    (j) Any other item that could affect the proper function of the stormwater management system;

  (4) Description of needed maintenance.

C. County and municipal ordinances shall provide procedures to ensure that deficiencies indicated by inspections are rectified. The procedures shall include the following:

  (1) Notification to the owner of deficiency including a time frame for repairs;

  (2) Subsequent inspection to ensure completion of repairs; and

  (3) Effective enforcement procedures if repairs are not undertaken or are not done properly.

### Chapter 03 — Agricultural Sediment Pollution Control

**Authority:** Environment Article, §§4-405 and 4-413, Annotated Code of Maryland

**Administrative History:** Effective date: March 28, 1994 (21:6 Md. R. 468)

**Administrative History:** Chapter recodified from COMAR 26.09.03 to COMAR 26.17.03, June 1996

#### Regulation .01 Purpose.

*COMAR 26.17.03.01*

This chapter sets forth certain requirements for persons engaged in agricultural land management practices, with respect to sediment pollution control. Logging and timber removal operations regulated under COMAR 26.17.01 are not regulated under this chapter.

#### Regulation .02 Definitions.

*COMAR 26.17.03.02*

A. In this chapter, the following terms have the meanings indicated. Terms not defined below have the meanings given them in the relevant statutes or, if not defined in statutes, the meanings attributed by common use.

B. Terms Defined.

  (1) “Conservation practice” means an agricultural land management practice that:

    (a) Prevents or treats problems with soil, water, air, plant, and animal resources; and

    (b) Has a standard method of construction or application developed by the Soil Conservation Service (SCS) that is listed in the Maryland Technical Guide, which is incorporated by reference in Regulation .04 of this chapter.

  (2) “Corrective action water quality plan (CAWQP)” means that portion of a soil conservation and water quality plan prepared by, or under the direction of, and approved by the Soil Conservation District to address a specific sediment pollution violation.

  (3) “Department” means the Department of the Environment.

  (4) “District” means a local soil conservation district, a political subdivision of the State established in accordance with Agriculture Article, Title 8, Annotated Code of Maryland.

  (5) “Erosion” means the process by which the land surface is worn away by the action of wind, water, ice, or gravity.

  (6) “Implement” means to develop, establish, install, construct, and maintain a district-approved soil conservation and water quality plan (SCWQP).

  (7) “Includes or including” means includes or including by way of illustration and not by way of limitation.

  (8) “Person” means an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation, or other entity that owns or leases agricultural land.

  (9) “Sediment” means soils or other surficial materials transported or deposited by the action of wind, water, ice, gravity, or by other artificial means.

  (10) “Soil conservation and water quality plan (SCWQP)” means a land use plan for a whole farm prepared by, or under the direction of, and approved by the district in accordance with the National Conservation Planning Manual, and the Maryland Technical Guide, which are incorporated by reference in Regulation .04 of this chapter, or other guidance documents which were in effect at the time of plan development, and the requirements of this chapter, to make the best possible use of soil and water resources, and to minimize the movement of sediment, animal wastes, nutrients, or agricultural chemicals into the waters of the State.

  (11) “Waters of the State” means:

    (a) Both surface and underground waters within the boundaries of this State subject to its jurisdiction, including that part of the Atlantic Ocean within the boundaries of this State, the Chesapeake Bay and its tributaries, and all ponds, lakes, rivers, streams, storm drain systems, tidal and nontidal wetlands, public ditches, tax ditches, and public drainage systems within this State other than those designed and used to collect, convey, or dispose of sanitary sewage; and

    (b) The flood plain of free-flowing waters determined by the Department on the basis of the 100-year flood frequency.

#### Regulation .03 Exception.

*COMAR 26.17.03.03*

When areas of agricultural land or agricultural practices alleged to be in violation of Environment Article, §4-413(b), Annotated Code of Maryland, are included in an SCWQP which was approved by the district and was developed and implemented in accordance with the National Conservation Planning Manual and the Maryland Technical Guide, which are incorporated by reference in Regulation .04 of this chapter, or other guidance documents which were in effect at the time of plan development, the Department may not impose any penalties for a violation of Environment Article, §4-413(b), Annotated Code of Maryland, or this chapter on a person engaged in agricultural activities unless:

A. The agricultural practices in use on the area of land alleged to be in violation of Environment Article, §4-413(b), Annotated Code of Maryland, are not those described in the SCWQP for that area;

B. The conservation practices described in the SCWQP for the area alleged to be in violation of Environment Article, §4-413(b), Annotated Code of Maryland, are not constructed or implemented;

C. Except for practices accepted under Regulation .06C and D of this chapter, the conservation practices described in the SCWQP for the area alleged to be in violation of Environment Article, §4-413(b), Annotated Code of Maryland, are not implemented or constructed in accordance with the SCS standards for conservation practices described in the Maryland Technical Guide, which is incorporated by reference in Regulation .04 of this chapter; or

D. Agricultural practices exist on the person's agricultural operation which cause the approved conservation practices to fail to control sediment pollution, when the agricultural practices are:

  (1) Practiced or constructed on an area which is not included in a district-approved SCWQP, or

  (2) In an area included in an SCWQP, but not implemented or constructed in accordance with a district-approved SCWQP.

#### Regulation .04 Incorporation by Reference.

*COMAR 26.17.03.04*

A. The Maryland Technical Guide (Soil Conservation Service, United States Department of Agriculture, October, 1993) is incorporated by reference.

B. The National Conservation Planning Manual (Soil Conservation Service, United States Department of Agriculture, June, 1978), including Amendments 1—7, is incorporated by reference.

#### Regulation .05 General Provisions.

*COMAR 26.17.03.05*

A. Department Responsibilities.

  (1) The Department shall investigate any report to determine if agricultural sediment pollution in violation of Environment Article, §4-413(b), Annotated Code of Maryland, has occurred.

  (2) The Department shall determine the appropriate actions to be taken to investigate reports of sediment problems. These actions may include:

    (a) Notification to the person and the district of a report of sediment pollution, with a request for the person and the district to undertake cooperative efforts to prevent sediment pollution violations; or

    (b) Inspection of sites with the district or independently.

  (3) When the Department identifies and documents a sediment pollution violation, the Department may issue a written complaint specifying the laws or regulations allegedly violated and the facts that constitute a violation. After or concurrent with the service of the complaint, the Department may issue an order to the alleged violator to:

    (a) Correct conditions which have resulted in the sediment pollution of the waters of the State;

    (b) Obtain and implement a district-approved CAWQP which includes a schedule for its implementation; and

    (c) Submit within 30 days a district-approved schedule for obtaining an SCWQP for the whole farm.

  (4) The Department shall provide a copy of all written reports, complaints, and orders issued under this chapter to the district.

  (5) As necessary, the Department may require a person to obtain district-approved modifications to approved CAWQPs and SCWQPs to reflect changes in the agricultural operation, pollution problems, and site conditions.

B. District Responsibilities for Addressing Sediment Pollution Violations. The district's responsibilities include:

  (1) Directing the preparation of, preparing, and approving CAWQPs and SCWQPs;

  (2) Reviewing potential and actual erosion and sediment problem areas on site upon notification from the Department of a report of sediment pollution, and providing the technical assistance needed to prevent sediment pollution violations;

  (3) Ensuring that those violations of Environment Article, §4-413(b), Annotated Code of Maryland, identified and documented by the Department in writing to alleged violators are addressed by the district-approved CAWQP and SCWQP, and that:

    (a) All sediment violations shall be addressed by the preparation of a CAWQP,

    (b) If an approved SCWQP exists, the violation shall be corrected through modification of the SCWQP;

  (4) Directing preparation of, preparing, and approving CAWQPs within 45 days of a request for assistance from a person notified by the Department that a pollution violation exists;

  (5) Approving CAWQP and SCWQP modifications to address sediment pollution violations as necessary to reflect changes in the agricultural operation, pollution problems, and site conditions, and providing the Department with a copy of the modifications within 10 days of the modification approval;

  (6) Providing the Department, when requested, with written confirmation that all conservation practices included in a CAWQP or SCWQP to address the sediment violations documented by the Department are constructed or implemented in accordance with the Maryland Technical Guide, which is incorporated by reference in Regulation .04 of this chapter, or approved under Regulation .06C and D of this chapter;

  (7) Providing to the Department a copy of all approved CAWQPs and SCWQPs for sites under investigation or which result from Departmental orders issued under this chapter; and

  (8) Having the option to notify the Department when implementation or maintenance is not in substantial compliance with the approved CAWQP or SCWQP.

#### Regulation .06 Minimum Requirements for an SCWQP.

*COMAR 26.17.03.06*

A. SCWQPs shall conform to the SCS standards and criteria described in the Maryland Technical Guide, and the National Conservation Planning Manual, which are incorporated by reference in Regulation .04 of this chapter, or other guidance documents which were in effect at the time of plan development.

B. Conservation practices included within an SCWQP shall be constructed and implemented in accordance with the Maryland Technical Guide, which is incorporated by reference in Regulation .04 of this chapter.

C. Modified conservation practice standards may be substituted for the conservation practice standards in an SCWQP if the modified conservation practice standards:

  (1) Provide prevention or control of sediment pollution equal to or better than that provided by conservation practice standards;

  (2) Are recommended by the SCS;

  (3) Are approved by the district; and

  (4) Are accepted by the Department.

D. Unusual, alternative, and innovative land management practices may be included in an SCWQP and substituted for conservation practices if the management practices:

  (1) Provide prevention or control of sediment pollution equal to or better than that provided by conservation practices or provide prevention or control of sediment pollution that cannot be provided with conservation practices;

  (2) Are recommended by the SCS;

  (3) Are approved by the district; and

  (4) Are accepted by the Department.

#### Regulation .07 Minimum Requirements for a CAWQP.

*COMAR 26.17.03.07*

A CAWQP adopted or modified after the effective date of this regulation shall include:

A. The land owner's name, address, and telephone number;

B. The lessee's name, address, and telephone number;

C. The number of acres controlled by the plan;

D. A narrative listing, describing, and locating all the sediment pollution violations cited by the Department on the farm which affect water quality, and identifying the specific conservation practices that are intended to correct each violation;

E. The name, practice code number, and the effective date of the standard and specification for each conservation practice as found in the Maryland Technical Guide, which is incorporated by reference in Regulation .04 of this chapter;

F. A schedule of when the conservation practices will be implemented;

G. A map which includes the area of violation cited by the Department and which identifies the location of corrective measures to be implemented;

H. A statement, in a format approved by the Department, which is signed and dated by the owner and lessee certifying that the CAWQP will be implemented as approved; and

I. The name, address, and telephone number of the individual responsible for the implementation of the CAWQP.

#### Regulation .08 Enforcement.

*COMAR 26.17.03.08*

A. Actions by the Department.

  (1) When the Department believes that a violation of Environment Article, §4-413, Annotated Code of Maryland, has occurred, it may cause a written complaint to be served upon the alleged violator in accordance with the provisions of Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland. The complaint shall include a description of the conditions which result in the addition, leaking, spilling, emitting, or other introduction of soil or sediment to the waters of the State.

  (2) The Department may issue an order after or concurrent with the complaint.

  (3) Orders issued by the Department shall include:

    (a) A description of the corrective actions which the person shall perform, including:

      (i) Immediate actions necessary to correct the violations listed in the order, and

      (ii) Further actions necessary to correct the violations and prevent their recurrence;

    (b) The time allowed for the person to perform the actions required in the order;

    (c) The requirement to obtain and implement a CAWQP or a modified SCWQP; and

    (d) The requirement to provide a district-approved time schedule to obtain an SCWQP.

  (4) The Department shall serve all orders as prescribed in Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland.

B. Action Required on Receipt of an Order.

  (1) On receipt of an order issued by the Department, a person shall perform the corrective actions specified in the order within the time specified.

  (2) On receipt of an order issued by the Department to obtain or implement a CAWQP, a person shall prepare or have prepared a CAWQP that is in accordance with SCS standards and other criteria described in the National Conservation Planning Manual and the Maryland Technical Guide, which are incorporated by reference in Regulation .04 of this chapter, and the requirements of this chapter.

  (3) A person shall implement the CAWQP in accordance with the schedule in the CAWQP unless the:

    (a) Person notifies the Department, in writing, that due to exceptional circumstances beyond the control of the person, the CAWQP cannot be implemented within the time scheduled in the CAWQP, the exceptional circumstances are verified in writing by the district board, and the Department agrees to extend the time; or

    (b) Property described in the order is no longer used for agricultural purposes and is no longer in a condition which adds, leaks, spills, emits, or otherwise introduces soil or sediment to the waters of the State, and the Department determines that the CAWQP need not be implemented.

C. CAWQP Maintenance. A person implementing a district-approved CAWQP shall:

  (1) Have available a copy of the CAWQP or, if applicable, the SCWQP; and

  (2) Maintain the person's agricultural operation in accordance with the approved or modified CAWQP or SCWQP.

D. Penalties. Enforcement penalties as provided in Environment Article, Title 4, Subtitles 4 and 5, Annotated Code of Maryland, may be imposed if one or more of the following conditions exists:

  (1) The action necessary to comply with the Department's order has not begun or has not been completed on or before the date specified in the order;

  (2) The owner or operator does not obtain a district-approved CAWQP;

  (3) The district-approved CAWQP is not being implemented and maintained according to its terms and conditions; or

  (4) A second or subsequent violation occurs and an SCWQP has not been prepared and implemented in accordance with the district-approved schedule.

### Chapter 04 — Construction on Nontidal Waters and Floodplains

**Authority:** Environment Article, §§1-404 and 5-501—5-514, Annotated Code of Maryland

**Administrative History:** Effective date: August 11, 1978 (5:16 Md. R. 1256)

**Administrative History:** Regulation .09E amended as an emergency provision effective June 23, 1980 (7:14 Md. R. 1345); adopted permanently effective November 9, 1980 (7:22 Md. R. 2072)

**Administrative History:** Chapter revised effective November 3, 1986 (13:22 Md. R. 2396)

**Administrative History:** Regulation .03 amended effective June 29, 1987 (14:13 Md. R. 1471)

**Administrative History:** Regulation .05B amended effective August 8, 1988 (15:16 Md. R. 1913)

**Administrative History:** Regulation .11B amended effective October 16, 1989 (16:20 Md. R. 2180)

**Administrative History:** Regulations .14 and .15 adopted as an emergency provision effective October 10, 1989 (16:25 Md. R. 2704); emergency status expired December 31, 1990 (17:8 Md. R. 969)

**Administrative History:** Chapter recodified from COMAR 08.05.03 to COMAR 26.17.04, June 1996

**Administrative History:** Regulation .03 amended as an emergency provision effective October 22, 1996 (23:23 Md. R. 1551); emergency status extended at 24:13 Md. R. 929

**Administrative History:** Regulation .03 amended effective December 1, 1997 (24:24 Md. R. 1672)

**Administrative History:** Regulation .05 amended effective October 2, 2000 (27:19 Md. R. 1733)

**Administrative History:** Regulation .05B, G amended effective June 14, 2021 (48:12 Md. R. 475)

**Administrative History:** Regulation .10 repealed and new Regulation .10 adopted as an emergency provision effective October 22, 1996 (23:23 Md. R. 1551); emergency status expired April 22, 1997

**Administrative History:** Regulation .10 amended effective June 18, 2018 (45:12 Md. R. 620)

#### Regulation .01 Scope.

*COMAR 26.17.04.01*

These regulations are designed to govern construction, reconstruction, repair, or alteration of a dam, reservoir, or waterway obstruction or any change of the course, current, or cross section of a stream or body of water within the State including any changes to the 100-year frequency floodplain of free-flowing waters. Free-flowing waters do not include State or private wetlands or areas subject to tidal flooding. For purposes of these regulations, the landward boundaries of any tidal waters shall be deemed coterminous with the wetlands boundary maps adopted pursuant to Environment Article, §16-301, Annotated Code of Maryland.

#### Regulation .02 Definitions.

*COMAR 26.17.04.02*

A. The following definitions describe the meanings of terms used in the regulations governing construction on nontidal waters and floodplains adopted by the Water Management Administration of the Department of the Environment (Regulations .01—.13), unless the context in which they are used clearly requires a different meaning or a different meaning is prescribed at the point of use. Terms not defined below shall have the meanings given to them in the relevant statutes or, if not defined in statutes, the meanings attributed by common use. The terms “Administration”, “Department”, “person”, and “waters of the State” are defined in the Environment Article, Title 5, Subtitle 1, Annotated Code of Maryland. The definitions for these terms are provided as a convenience, but persons affected by the Department's regulations should be aware that these definitions are subject to amendment by the General Assembly.

B. In this chapter, the following terms have the meanings indicated:

  (1) “Administration” means the Water Management Administration.

  (2) “Administrative order” means a written notification issued by the Administration pursuant to State law and regulations, requiring, within a time specified, correction of a violation of or compliance with provisions of pertinent law, regulations, permit, or approval.

  (3) “Anadromous fish spawning areas” means that portion of the waters of the State identified by the Department as spawning and nursery areas for anadromous fish species.

  (4) “Dam” means any obstruction, wall, or embankment, together with its abutments and appurtenant works, if any, in, along, or across any stream, heretofore or hereafter constructed for the purpose of storing or diverting water or for creating a pool upstream of the dam, as determined by the Administration.

  (5) “Danger reach” means that area downstream of a dam within which sudden release of waters resulting from failure of the dam during the inflow design flood would cause an artificial flood exceeding the flood that might be expected from the same storm if the dam had not existed.

  (6) “Department” means the Department of the Environment.

  (7) “Dominant discharge” means the flow rate capacity, in cubic feet per second, of the stream channel considering steady, uniform flow.

  (8) “Emergency condition” means a sudden unforeseen occurrence or condition requiring exigency or a circumstance which the Administration determines constitutes a present or imminent danger to the public health or safety or to the environment.

  (9) “Floodplain” means that area along or adjacent to a stream or a body of water within the waters of the State that is capable of storing or conveying floodwaters.

  (10) “Flood-proofing” means any combination of structural or nonstructural additions, changes, or adjustments to structures together with attendant utility and sanitary facilities that are designed so that below the elevation of the 100-year frequency flood event the structure is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy.

  (11) “Freeboard” means the vertical distance to the crest of a dam above the water surface at time of maximum design flow over the spillway.

  (12) “General waterway construction permit” means the authorization established by Regulation .10 of this chapter for certain categories of construction activities to take place without an individual waterway construction permit.

  (13) “Inflow design flood” means the size of flood coming into the reservoir that is used as a basis for designing various parts of the dam.

  (14) "1983 Maryland Standards and Specifications for Soil Erosion and Sediment Control" means the official handbook for sediment control principles, methods, and practices approved by the Administration, which is incorporated by reference under COMAR 26.17.01.11.

  (15) “Natural trout waters” means waters having the potential to support or are capable of supporting natural trout populations, including propagation, and their associated food organisms. These waters are designated Use III as indicated in COMAR 26.08.02.08.

  (16) “Normal depth” means the maximum vertical distance from the stream bed invert at the upstream toe of the dam to the normal water surface.

  (17) “Overflow spillway” means any operating, emergency, or other spillway which discharges with a free water surface over or around the dam as opposed to an orifice, gate, or conduit which discharges through or beneath the dam or nearby ground.

  (18) “Owner” means any person or persons and their duly authorized agents, owning, operating, maintaining, or proposing to construct any dam, reservoir, or other obstruction, or to change the course, current, or cross section of any body of water in the State.

  (19) “Permit” means authorization by the Administration, pursuant to pertinent law and regulations, describing the required performance for specific activities and operations.

  (20) “Permittee” means the person to whom a permit is issued by the Administration.

  (21) “Person” means the federal government, the State, any county, municipal corporation, or other political subdivision of the State, or any of their units, or an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation, or any other entity.

  (22) “Probable maximum flood” means the most severe flood considered possible in a specific region. This may be:

    (a) The probable maximum flood as determined by a source acceptable to the Administration; or

    (b) Calculated using a rational consideration of the chances of simultaneous occurrence of the maximum of the several elements or conditions which contribute to the flood.

  (23) “Recreational trout waters” means cold or warm waters having the potential to hold or support or capable of holding or supporting adult trout for put-and-take fishing, usually seasonal. These waters are designated Use IV as indicated in COMAR 26.08.02.08.

  (24) Repair.

    (a) “Repair” includes any modification or alteration to a dam, reservoir, waterway obstruction, stream channel, or floodplain when the:

      (i) Hydraulic performance or safety of a dam or waterway obstruction is altered or affected;

      (ii) Hydraulic performance of a bridge or culvert, stream channel, or floodplain is altered or affected; or

      (iii) Use of construction equipment within a flowing stream would be required.

    (b) “Repair” does not include ordinary maintenance which does not cause pollution, as defined in COMAR 26.17.01.01B(14), to the waters of the State.

  (25) “Reservoir” means any basin, either natural or artificial, used for the collecting or storing of water.

  (26) “Standard project flood” means the most severe flood considered reasonably characteristic of the specific region. This is calculated for a specific dam site using one or more of the recognized methods acceptable to the Administration. Usually, this flood will have a magnitude between 40 percent to 60 percent of the probable maximum flood.

  (27) “State” means the State of Maryland.

  (28) “Substantial improvement” means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure. The term does not include any project for improvement of a structure to comply with existing State or local health, sanitary, or safety code specifications which are necessary to insure safe living conditions or any alteration of a structure listed in the National Register of Historic Places or a State Inventory of Historic Places.

  (29) “Tractive force” means the shear stress, expressed in pounds per square foot, acting upon the wetted boundary of the stream channel and is expressed as:

  (30) “Waters of the State” includes both surface and underground waters within the boundaries of the State subject to its jurisdiction, including that portion of the Atlantic Ocean within the boundaries of the State, the Chesapeake Bay and its tributaries, and all ponds, lakes, rivers, streams, public ditches, tax ditches, and public drainage systems within the State, other than those designed and used to collect, convey, or dispose of sanitary sewage. The floodplain of free-flowing waters determined by the Department on the basis of the 100-year flood frequency is included as waters of the State.

#### Regulation .03 Requirements for a Permit.

*COMAR 26.17.04.03*

A. Except as set forth in §§D and E of this regulation, a person who proposes to construct, reconstruct, repair, or alter a dam, reservoir, or waterway obstruction, or change in any manner the course, current, or cross section of a stream or body of water within the State except tidal waters, including any changes to the 100-year frequency floodplain of free-flowing streams shall obtain a permit from the Administration before commencing any work.

B. If the construction, reconstruction, repair, or alteration of the proposed works is for the purpose of obtaining a new or increased supply of water for any use for which an appropriation permit is required by law or regulation, the applicant shall also apply to the Administration for this permit. The Administration shall establish the order in which the applications may be considered or may require the applications to be submitted and considered concurrently.

C. The latest flood insurance studies prepared by the Federal Emergency Management Agency shall serve to delineate, at a minimum, the extent of the 100-year floodplain of free-flowing waters. The applicant shall furnish the Administration with hydrologic and hydraulic computations to establish the elevation of the 100-year frequency flood event.

D. Exemptions. The following activities are exempted from the requirements for a permit from the Administration under this chapter:

  (1) Filling, dredging, or construction of any work in the tidal portions of the waters of the State; filling, dredging, or construction, in these areas, may require a wetlands license or permit under the provisions of Environment Article, Title 16, Annotated Code of Maryland;

  (2) Agricultural drainage systems, for the purpose of lowering the level of water in the soil, with a total drainage area of 2,500 acres or less except that a drainage system financed or managed by a public drainage association is exempt only if a plan for construction, operation, and maintenance has been approved by the Secretary of Agriculture under the Agriculture Article, §8-603, Annotated Code of Maryland;

  (3) The removal or demolition of residential structures;

  (4) A small pond which meets the requirements of Regulation .05G of this chapter.

#### Regulation .04 Permit Applications — General Requirements.

*COMAR 26.17.04.04*

A. An application to the Administration shall include all studies, surveys, calculations, tests, and data necessary for determining the adequacy of the project design. The degree of investigation needed for a specific project is a matter of the Administration's judgment based upon the magnitude and impact of the project and the complexity of the site. The applicant shall demonstrate to the Administration that sufficient investigations have been made and that adequate allowances have been applied to the design. The Administration may waive a requirement not pertinent to the decision. In addition, the Administration may require the submission of additional information or data it finds appropriate.

B. An application to the Administration shall include evidence of the benefits to be derived from the project. This evidence shall be stated in monetary terms or, when more appropriate, other quantitative or qualitative terms.

C. A proposed project shall be consistent and compatible with overall basin, flood management, or watershed development plans, if any, prepared, adopted, or approved by the State or a local jurisdiction.

D. An environmental study of the significant effects of the project may be required of the applicant by the Administration. The Administration may require that the study include an inventory of the existing vegetation, fish, wildlife, scenic, recreational, and historic values located within the project area. The study shall also include a description of mitigation measures proposed to minimize the potential adverse effects of the project.

E. An application to the Administration shall include provisions assuring the maintenance and operation of the proposed project throughout the project's existence.

F. Unless waived by the Administration, hydrologic calculations shall be based on the ultimate development of the watershed, assuming existing zoning.

G. Information required by these regulations shall be submitted to the Administration, in a manner and form acceptable to the Administration, before the Administration will take final action on the application.

H. The Administration shall furnish application forms for permits upon request. The owner of the proposed project or his duly authorized representative shall complete and sign the application form.

I. When required in writing by the Administration, the applicant shall engage a qualified professional engineer, practicing in accordance with the laws of Maryland, to certify that the design meets all of the requirements of the Administration.

J. The Administration may refuse to process an application until the applicant has certified in writing to the Administration that all local land use requirements, including zoning, special exceptions, variances or conditional uses, necessary for the location and operation of the proposed works have been satisfied. It is the applicant's responsibility to obtain State, federal, or local approvals not addressed in the regulations contained in this chapter. Obtaining a permit under this chapter does not relieve the permittee from obtaining other approvals as may be required.

K. Hydrologic and hydraulic computations shall use methods in the public domain which are verifiable.

L. Unless waived by the Administration, project plans shall include survey and topographic information that is referenced to a bench mark based on the National Geodetic Vertical Datum of 1929 which is incorporated by reference under 41 FR 20202 (1976).

M. Final action on any application will be deferred pending receipt of an approved sediment and erosion control plan from the local soil conservation district, when the local approval is required under COMAR 26.17.01.

N. An applicant shall agree to allow a reasonable inspection of the proposed project site by representatives of the Administration.

#### Regulation .05 Dams and Reservoirs.

*COMAR 26.17.04.05*

A. In addition to the general requirements in Regulation .04 of this chapter, the following special requirements shall apply to applications for dams and reservoirs:

  (1) A person who applies to construct, reconstruct, repair, or alter a dam or reservoir shall engage a registered professional engineer, practicing in accordance with the laws of Maryland and qualified in the field of dam design and construction to prepare the designs and specifications and to provide supervision during construction of the proposed works. The engineer shall be the engineer-in-charge and shall:

    (a) Be responsible for assuring that the designs conform to the high standards of professional competence in the specialty of dam design and construction;

    (b) Assure that the construction is carried out in strict accordance with the approved plans and specifications and under the provisions of the permit; and

    (c) Submit to the Administration a resume of all previous dam design and construction experience, listing specific responsibilities and a written certification of qualification to act as the engineer-in-charge.

  (2) If an engineering team is planned for the design and construction, one registered professional engineer shall act as the engineer-in-charge. However, each individual on the project team shall document that individual's area of responsibility and technical experience. This documentation shall accompany the permit application.

  (3) Making Application. The procedure for obtaining a permit for construction, reconstruction, repair, or alteration of a dam or reservoir is established in two steps:

    (a) Step One. Plan Development Phase of Permit for a Waterway Obstruction. The applicant shall first obtain the Administration's written approval of the classification of the dam as outlined in §B of this regulation. The applicant shall then submit to the Administration an application which includes a feasibility report. Upon approval of the completed application, the Administration shall issue a Plan Development Permit. The decision of the Administration to issue or deny a Plan Development Permit shall constitute a final decision for the purposes of appeal to the Board of Review pursuant to Natural Resources Article, §1-107, Annotated Code of Maryland. The feasibility report shall include the following:

      (i) Objectives and purposes of the project.

      (ii) Alternate proposals studied.

      (iii) General description of proposed dam and reservoir, including a plan view and cross section.

      (iv) Conclusions on the dam site and adjacent valley walls and floor based upon geologic maps, surface investigations, seismic, geophysical, or geotechnical studies, or any preliminary soil borings made.

      (v) Conclusions on the safety and effectiveness of the dam in impounding water.

      (vi) Hydrologic studies including the determination of the inflow design flood, the danger reach, and the proposed operation of the dam and reservoir.

      (vii) A map showing the project location, ownership of land affected, and showing any existing or proposed water or sewer lines, pipelines or electric transmission lines crossing the impoundment area and their planned relocation or protection. The map shall also show the location of other existing or proposed dams, reservoirs or other water resource projects, whose conditions of flow or operations may affect or be affected by this proposed project.

      (viii) Type and source of materials to be used in construction. When natural materials (earth, rock, etc.) are to be used, the engineer shall indicate the approximate structural properties and availability of each kind of material.

      (ix) Photographs of the proposed site.

      (x) Estimated benefits from the project, including the design life of the project.

      (xi) Estimated cost of the project and length of time required for construction of the structure and filling of the reservoir.

      (xii) The owner's written assurance that funds will be available to complete the project as planned and for continued maintenance of the project throughout the life of the structure.

      (xiii) An environmental study that includes measures to preserve or enhance the aesthetic, scenic, and wild values at the project site and upstream and downstream of the project. If the project is on a stream within the State Scenic and Wild Rivers Program, this information shall include measures to be taken to preserve the aesthetic and scenic values and the wild qualities of the stream.

      (xiv) Foundation investigations shall define the location, type, strength, and other pertinent characteristics of the foundation material. Foundation investigations shall further disclose ground water conditions and other applicable information necessary for analysis of possible seepage problems.

      (xv) Topographic surveys shall be made in sufficient accuracy to define the volume of storage in the reservoir and the flow limits. Property lines shall be shown in order that any potential effects of the water in the reservoir on adjacent properties may be determined. The downstream area shall be investigated and, if necessary, surveyed in order to establish the area of potential damage in case of failure.

      (xvi) Establishment of proposed minimum releases after the reservoir is filled.

    (b) Step Two. Construction Phase of Permit for a Waterway Obstruction. Before the Administration may issue a construction permit for the dam or reservoir, a separate permit application shall be accompanied by final construction plans, specifications, and other information that may be required. Final construction plans, specifications, and other data required before a permit may be issued shall include the following:

      (i) Design report with all pertinent computations, including: geology (location and logs of soil and rock borings, conclusions, etc.); soil or rock mechanics tests; hydrology; design criteria; hydraulic design (flood routing, stage storage curve referenced to the lowest drain, velocities in downstream channel, etc.); structural design; stability analysis (including rapid drawdown); and, quantities and cost estimates.

      (ii) Construction plans and location sketch, showing borrow areas, spoil areas, etc.

      (iii) Construction specifications.

      (iv) Provisions for minimum releases during construction and reservoir filling.

      (v) Time schedule for construction.

      (vi) Approved grading and sediment control plan, showing the measures for controlling sediment loss during and after construction.

      (vii) Maintenance plan describing the steps to be followed by the owner to provide for the continued maintenance of the dam and reservoir during the expected life of the structure. This plan shall describe what work is to be called for at periodic intervals or when necessary to keep the structure in good condition. Among other items it shall address mowing or cutting of brushy growth on embankments, preventing erosion or gullying of embankment surfaces, clearing of toe drains, the prevention of accumulation of trash and debris, the protection against rust and spalling, and the exercise of valves or other mechanical equipment. The description of this program shall be submitted to this Administration for approval and inclusion among the required conditions of the construction permit.

      (viii) Operations plan describing the steps to be followed by the owner to provide for the safe operation of the dam and reservoir and the continued minimum releases, withdrawals, etc.

      (ix) A warning plan for Category I and Category II dams describing the steps to be followed in notifying persons whose lives, property, or health may be endangered by failure, improper operation, or other circumstances affecting the safety of the dam. The warning plan shall identify the most practical and expeditious means for notifying potentially affected persons in close proximity to the dam or property owners.

      (x) A requirement by the Administration that the applicant post a construction bond, irrevocable letter of credit, or other security acceptable to the Administration to assure that funds are available to complete the construction of the proposed project and for continued maintenance of the project throughout the life of the structure.

B. Structure Classification and Design Criteria.

  (1) Classification of Dams. The following table sets forth judgmental factors for minimizing the risk associated with the design of dams. The table is intended only as a guide. A proposed dam shall satisfy all four factors (normal pool storage volume, normal depth, potential for loss of life, and potential for damage) in order to avoid classification in a more rigorous category. Failure damage potential shall consider future development and use of the area flooded throughout the danger reach and the damage which would be expected from a complete breaching of the dam. If, in the opinion of the Administration, future development is probable in the area flooded throughout the danger reach, the dam shall be classed in Category I. The classification of the proposed dam shall be assigned by the Administration after the applicant has provided information on the potential damage within the danger reach, as defined herein. After the classification has been assigned, the inflow design flood and spillway design may be established. Dams qualifying for the Category III classification may be classed in Category IV, if all of the requirements of Environment Article, §5-503(b), Annotated Code of Maryland, are met with the exception of §5-503(b)(1).

  (2) Danger Reach. A danger reach shall be established for all proposed dams by routing a flood hydrograph resulting from a failure of the structure. Computation of the danger reach is an iterative process and, based upon the potential for damage and loss of life, may necessitate reclassification to a higher category by the Administration. The danger reach shall be established using methods that compare the depth and aerial extent of the flood waters without and with the proposed dam as follows:

    (a) The inflow design flood shall be flood routed throughout the downstream valley without the proposed dam in place.

    (b) A dam-breach flood wave shall be routed throughout the downstream valley assuming failure of the dam. The following procedures are incorporated by reference and shall be considered acceptable by the Administration:

      (i) DAMBRK-The NWS Dam-Break Flood Forecasting Model, The Hydrologic Engineering Center, U.S. Army Corps of Engineers, February, 1984;

      (ii) HEC-1 Flood Hydrograph Package, Computer Program 723-X6-L2010, The Hydrologic Engineering Center, U.S. Army Corps of Engineers, September, 1981 (Revised January, 1985);

      (iii) Technical Release Number 66, Simplified Dam-Breach Routing Procedure (Revised December, 1981).

    (c) Under §B(2)(b) of this regulation, consideration shall also be given to the peak discharge caused by the design storms in the uncontrolled area below the dam, together with the flow over and through the dam.

  (3) Inflow Design Flood. The inflow design flood for Category I dams shall be the probable maximum flood. For Category II dams the inflow design flood shall be the standard project flood or the largest flood of record, whichever is greater. For Category III dams the inflow design flood shall be one having a recurrence interval of once in 100 years or longer. For Category IV dams the inflow design flood shall be as defined in USDA, Natural Resource Conservation Service, Maryland Conservation Practice, Standard Pond Code 378 (January, 2000), which is incorporated by reference in COMAR 26.17.02.01-1B(2). Criteria shall be provided or approved by the Administration for each of the above inflow design floods.

  (4) Spillway Design. Established procedures for spillway design and capacity, when properly applied, will be accepted by the Administration. The effects of storage may be taken into account in establishing spillway capacity and top of dam. All spillways shall be designed to adequately handle debris either by trash racks or with sufficient opening. All dams shall have an overflow spillway included in the design. A constructed earthen embankment may not be used as an overflow spillway. All dams classed in Category I or II shall be designed with an emergency spillway which passes the inflow design flood without endangering the dam and whose predicted frequency of use is not greater than once in 100 years. Adequate provision shall be made to dissipate the energy of water flowing over or through the dam and to protect the downstream toe of the dam.

  (5) Dams in Category IV. The designs, plans, and specifications for all dams classed in Category IV, and not approved by either the soil conservation district or the Administration’s designee, shall be reviewed by the Administration for technical compliance with the requirements in USDA, Natural Resource Conservation Service, Maryland Conservation Practice, Standard Pond Code 378 (January, 2000), which is incorporated by reference in COMAR 26.17.02.01-1B(2), and the Administration’s policies and procedures.

GUIDE TO CLASSIFICATION OF DAMS

C. Design Specifications.

  (1) Design References. References used by the designer shall be cited in the application submitted to the Administration, especially where unusual features are incorporated in the design.

  (2) Freeboard. The design shall allow for certain freeboard as a minimum, not to be reduced under any circumstances during the operation of the dam and reservoir. The design freeboard is for that reservoir stage which will exist when the pool has reached maximum level during the inflow design flood with the outlet works and overflow spillway operating as planned. The freeboard is to be calculated to prevent overtopping and protect the dam against the destructive forces of waves, frost, settlement, and surface erosion.

  (3) Safety Factor. The safety factor shall be that used in good engineering practice in dam design. In all important structural features, the safety factor used shall be shown in the design assumptions. The Administration requires a safety factor of at least 1.5 to be included in the structural design of the dam or any of its components during steady state seepage conditions, and at least 1.2 during rapid drawdown of the reservoir pool from the spillway crest. If site conditions or the downstream hazard category warrants, the Administration may require a safety factor of greater than specified in this section.

  (4) Drains. Dams shall include a device to allow draining of the reservoir within a reasonable amount of time. The following factors shall be considered in determining the reasonable time period for drainage:

    (a) The risk and nature of a potential dam failure;

    (b) The time likely to be available to avert a failure after notice of conditions threatening the safety or stability of the dam; and

    (c) The influence of rapid drawdown on the stability of the dam, its appurtenant works, and the natural upstream slopes of the reservoir.

  (5) Specifications. Specifications shall be written to assure that design criteria, with regard to the quality of the materials and methods of construction, will be met or exceeded.

  (6) Providing Means for Inspections. The Administration may include, either at the time of granting a permit for construction of a dam or at a later date, a requirement that the owner provide and install devices necessary for the future inspection and surveillance of the dam. The number, type, and location of the devices shall be determined as a result of the Administration's evaluation of the size and nature of the dam, the complexity of local natural conditions, and the degree of risk resulting from any future deterioration or failure. The requirement may include provisions for the measurement of the settlement of the crest or slopes of dams, the movement of walls in the valley or reservoir, the increases in pore-water pressure in earth or the increases in flow from drainage systems, and the installation of other devices required to detect serious changes in the structure or the affected area to allow the repair of deficiencies before more serious risk develops.

  (7) Multiple Dams. When dams are spaced so that the failure of an upstream dam or structure could endanger the safety of one downstream, the possibility of a multiple failure shall be considered in reviewing the design. Additional safety shall be provided in either structure by increasing the retarding storage or increasing the emergency spillway capacity, or both.

D. Construction Requirements.

  (1) Construction shall be under the supervision of the engineer-in-charge as defined in §A(1) of this regulation.

  (2) Appropriate tests, as required by the Administration, shall be made of materials used in the construction of the dam. Materials failing to meet applicable specifications shall be removed and replaced with acceptable materials.

  (3) The engineer-in-charge shall submit periodic construction progress reports to the Administration. Progress report forms and the frequency of reporting will be provided by the Administration before construction.

  (4) A history of the construction shall be maintained by the engineer-in-charge, and shall include:

    (a) Date, location, and results of all materials tests made.

    (b) Narrative of problems encountered during construction and changes in design. Necessity for these changes shall be reported to the Administration for approval before proceeding with construction.

    (c) “As built” plans.

  (5) The above information shall be maintained at the construction site. The information shall be submitted to the Administration within 60 days after the completion of the dam and shall be accompanied by the written certification from the engineer-in-charge to the Administration that the completed structure has been constructed in accordance with plans and specifications and changes approved by the Administration. The Administration shall supply certification forms.

  (6) Before beginning the diversion of the streamflow through a temporary channel or conduit in order to dewater the foundation of the dam, the engineer-in-charge shall submit a plan to the Administration for approval describing the methods to be used for carrying the streamflow and keeping sediment reduced during this period. The engineer-in-charge shall be responsible for the implementation of the plan.

  (7) Before beginning the filling of the reservoir the engineer-in-charge shall submit a report to the Administration stating that the structure has been made ready for filling and that the pool area has been cleared of debris. The report shall describe the limitations on the amount of water restrained from flowing downstream and describe the methods to be followed for the surveillance of the project during the period when the structure is receiving its initial loading.

E. Surveillance and Inspection of Completed Dams and Reservoirs.

  (1) Responsibility for Inspections by Owner. The owner is responsible for the safety of the dam and for the necessary surveillance and inspections. The surveillance shall be performed by the owner, or a representative of the owner, and shall provide a close watch on the conditions affecting the dam's safety. The owner shall promptly notify the Administration of significant changes in condition.

  (2) Responsibility for Inspections by Administration. In addition to the inspections by the owner, the Administration shall make inspections of all dams, reservoirs, and other waterway obstructions within its jurisdiction to provide for the public safety and welfare, to detect early signs of deterioration, and to enforce corrective measures. The Administration's agents shall be given free access to every part of the dam or reservoir under consideration, and the operators of these works shall assist in the inspection to the best of their abilities.

F. Repair of Dams. Before beginning the repair of any dam or reservoir, the owner shall apply for, in writing, and secure the Administration's written approval of the contemplated action. The application shall give the name and address of the applicant, details of the proposed changes, referenced to the existing structure, and shall be accompanied by the necessary plans and specifications. If the proposed work may best be explained by description, this description shall be included as part of the application along with the proposed time of commencement and completion of construction, as well as such other information as the Administration may require. In the event of an emergency in which repairs are necessary to safeguard life and property against predicted immediate danger, these repairs shall be made immediately by the owner. In these events, the Administration shall be notified within 24 hours of the emergency repairs needed and the extent of work underway, if any, and the work shall conform to these requirements as specified by the Administration.

G. Certain Small Ponds. Certain small ponds may be exempt from the permit requirements cited here if the plans and specifications are approved by either the appropriate soil conservation district or the Administration’s designee. The following shall apply to the approval of all ponds pursuant to Environment Article, §5-503(b), Annotated Code of Maryland:

  (1) The designs, plans, and specifications shall be reviewed for technical compliance with the requirements in USDA, Natural Resource Conservation Service, Maryland Conservation Practice, Standard Pond Code 378 (January, 2000), which is incorporated by reference in COMAR 26.17.02.01-1B(2), and the Administration’s policies and procedures.

  (2) The soil conservation district, or the Administration’s designee, shall notify the Administration of all ponds approved pursuant to this section. The notification shall include a copy of the pond approval and a pond summary sheet. The notification shall be submitted to the Administration within 30 days of the end of each quarter (September 30, December 31, March 31, and June 30) in which the approval was granted.

  (3) The soil conservation district, or the Administration’s designee, for all ponds approved pursuant to Environment Article, §5-503(b), Annotated Code of Maryland, shall submit a certification to the Administration within 90 days after the completion of construction. This certification shall state that the subject pond was constructed in conformance with the approved plans and specifications. A certification by a professional engineer, land surveyor, or landscape architect practicing in accordance with the laws of Maryland shall be acceptable to the Administration instead of a certification by the soil conservation district or the Administration’s designee.

#### Regulation .06 Bridges and Culverts.

*COMAR 26.17.04.06*

A. In addition to the general requirements as described in Regulation .04 of this chapter, the following information shall be submitted with all applications for bridges and culverts unless specifically waived by the Administration:

  (1) Alternate proposals studied.

  (2) Geologic investigations and conclusions based upon geologic maps, surface investigations, seismic or other geophysical studies, or borings.

  (3) Type and source (on-site or off-site) of borrow and fill materials to be used in construction.

  (4) Estimated cost of the project and the length of time required for construction.

  (5) Construction plans and specifications.

  (6) Construction Schedule. The construction schedule shall include the following:

    (a) The sequence of construction phases, such as channel and structure excavation, structure and embankment construction;

    (b) Equipment stream crossings and storage areas;

    (c) Means for diverting stream flow during construction;

    (d) Means for controlling the dewatering discharges;

    (e) Means for controlling runoff during the various construction phases.

  (7) Map and measurement of the drainage area upstream of the proposed project.

  (8) General plan of the proposed project, showing location; land ownership; contours of presently existing ground and proposed structures, buildings, roads and drainage structures; and the proposed additionally inundated area associated with the 100-year flood event.

  (9) Design report, which shall at a minimum, include the following:

    (a) Discharge-frequency curve, which shall include the discharge, in cubic feet per second, associated with the 2-year, 10-year, and 100-year frequency flood events;

    (b) Stage-discharge curve, which shall include the water surface elevation, in feet above mean sea level, associated with the 2-year, 10-year, and 100-year frequency flood events, for both the presently existing and the proposed conditions;

    (c) Slope, cross section, and capacity of the presently existing stream channel and average bankful velocity.

B. Designs and Specifications.

  (1) References used by the designer shall be cited in the application submitted to the Administration, especially where unusual features are incorporated in the design.

  (2) Specifications shall be written to assure that design criteria, with regard to the quality of the materials and methods of construction, will be met or exceeded.

  (3) The length of culverts shall be limited to a maximum of 150 feet unless it can be demonstrated through an environmental study that any adverse impacts will be adequately mitigated.

  (4) The proposed project shall be designed to safely withstand the hydrostatic and hydrodynamic forces associated with at least the 100-year frequency flood event throughout the project area.

  (5) Adequate protection shall be provided in the design of all bridge piers, abutments, and culvert entrances and outlets to prevent damage due to scour. Protective measures may not prevent the passage of fish.

  (6) Culverts shall have at least one cell placed at least 1 foot below the invert of the stream. In the case of bedrock foundations, culverts shall be designed without a concrete invert unless measures are incorporated into the design to ensure that fish habitat or migration patterns are not adversely affected.

  (7) All bridges shall completely span stream channels which have a width from top-of-bank to top-of-bank of 80 feet or less, as measured along the centerline of the proposed roadway.

  (8) The outlet velocity of culverts which is associated with the dominant discharge may not exceed the existing stream channel velocity associated with the dominant discharge. A higher than existing stream channel velocity may be allowed at a culvert outlet when or if measures are incorporated into the design to prevent increases in stream channel erosion.

  (9) The maximum allowable Froude number, associated with the 100-year frequency flood event as calculated through the bridge opening or at the outlet of the culvert, shall be as follows:

    (a) 0.9, if the presently existing Froude number is less than or equal to 0.9; or

    (b) The presently existing Froude number, if the presently existing Froude number is greater than 0.9.

  (10) The Froude number, Fr, shall be given by:

C. Repair of Bridges and Culverts. Before commencing the repair of any bridge or culvert, the owner shall apply for, in writing, and obtain a permit from the Administration for the proposed work. The application for a permit shall give the name and address of the applicant, details of the proposed changes, referenced to the existing structure, and shall be accompanied by the necessary plans and specifications. If the proposed work may best be explained by description, this description shall be included as part of the application along with the proposed time of commencement and completion of construction, as well as other information the Administration may require.

D. Emergency Repairs.

  (1) In an emergency, a person may make only the minimum repairs necessary to safeguard life and property against imminent danger without obtaining prior written approval of the Administration for the necessary emergency repairs.

  (2) The person initiating repairs shall contact the Administration within 24 hours.

  (3) To the extent possible, all work shall conform to the requirements specified by the Administration.

  (4) If additional works, maintenance, or repairs not necessary to safeguard life and property against imminent danger are also considered by the owner, the owner shall obtain a permit in accordance with Regulation .02 of this chapter.

  (5) Except as provided in §D(1) of this regulation:

    (a) The Administration shall be notified before any motorized equipment enters the stream channel; and

    (b) Approval from the Administration shall be obtained before any channel modifications are initiated in conjunction with emergency repairs.

#### Regulation .07 Changes in Stream Channels or Floodplains.

*COMAR 26.17.04.07*

A. In addition to the general requirements, as described in Regulation .04 of this chapter, the following special requirements shall apply to applications for changes in stream channels or floodplains. The following information shall be submitted with the application unless specifically waived by the Administration:

  (1) Alternate proposal studies.

  (2) Geologic investigations and conclusions based upon geologic maps, surface investigations, seismic or other geophysical studies, or borings.

  (3) Type and source of borrow and fill materials to be used in construction.

  (4) Estimated cost of the project and the length of time required for construction.

  (5) Construction plans and specifications.

  (6) Construction Schedule. The construction schedule shall include the following:

    (a) The sequence of construction excavation, structure, and embankment construction;

    (b) Equipment stream crossings and storage areas;

    (c) Means for diverting stream flow during construction;

    (d) Means for controlling the dewatering discharges;

    (e) Means for controlling runoff during the various construction phases.

  (7) Map and measurement of the drainage area upstream of the proposed project.

  (8) General plan of proposed project, showing location; land ownership; contours of presently existing ground and proposed fill or excavation; presently existing and proposed structures, buildings, roads, and drainage structures; the proposed additionally inundated area associated with the 100-year flood event; and all cross sections taken.

  (9) Design report, which shall, at a minimum, include the following:

    (a) Discharge-frequency curve, which shall include the discharge in cubic feet per second, associated with the 2-year, 10-year, and 100-year frequency flood events.

    (b) Slope, cross section, capacity, and velocity of the presently existing stream channel.

    (c) Water surface profiles computed using an energy balancing method, showing the invert elevation of the stream bed, water surface elevations in feet above mean sea level, and water velocity, by segment, in feet per second, associated with the 2-year, 10-year, and 100-year frequency flood events, for both the presently existing and proposed conditions, at each cross section. Cross sections shall be taken at appropriate intervals to a point, both downstream and upstream of the proposed project, where the presently existing and proposed water surface profiles coincide.

    (d) Cross section plots, showing stream and floodplain elevations as well as any proposed modifications and water surface elevations.

B. Design and Specifications.

  (1) References used by the designer shall be cited in the application submitted to the Administration, especially where unusual features are incorporated in the design.

  (2) Specifications shall be written to assure that design criteria, with regard to the quality of the materials and methods of construction, will be met or exceeded.

  (3) Proposed floodplain encroachments may not increase the tractive force by more than 10 percent during the passage of the 2-year and 10-year frequency flood events unless it can be demonstrated that the channel will remain stable.

  (4) Proposed floodplain encroachments may not reduce the natural meander width of the channel as measured from outside bank to outside bank.

  (5) Proposed floodplain encroachments, except for roadways, culverts, and bridges, shall be designed to provide a minimum of 1 foot of freeboard above the elevation of the 100-year frequency flood event. In addition, the elevation of the lowest floor of all new or substantially improved residential, commercial, or industrial structures shall also be at least 1 foot above the elevation of the 100-year frequency flood event.

  (6) Proposed unlined earth channels may not change the tractive force associated with the 2-year and the 10-year frequency flood events, by more than 10 percent, throughout their length unless it can be demonstrated that the stream channel will remain stable.

  (7) Proposed lined channels may not change the tractive force associated with the 2-year and the 10-year frequency flood events, by more than 10 percent, at their downstream terminus unless it can be demonstrated that the stream channel will remain stable.

  (8) An environmental study, which identifies existing natural resources as well as proposed mitigation measures to offset the impacts of the channelization, shall accompany a proposed channel change.

C. Repair. Before beginning the repair of any works permitted pursuant to this regulation, the owner shall apply for, in writing, and obtain a permit from the Administration for the proposed work. The application for a permit shall include the name and address of the applicant, details of the proposed changes, referenced to the existing structure, and shall be accompanied by the necessary plans and specifications. If the proposed work may best be explained by description, this description shall be included as part of the application along with the proposed time of commencement and completion of construction, as well as other information the Administration may require.

D. Emergency Repairs.

  (1) In an emergency, a person:

    (a) May make the minimum repairs necessary to safeguard life and property against imminent danger without prior written approval of the Administration;

    (b) Shall notify promptly the Administration of the emergency repairs necessary and the extent of work underway;

  (2) Work shall conform to any requirements specified by the Administration.

  (3) If additional works, maintenance, or repairs not necessary to safeguard life and property against imminent danger are considered by the owner, a permit shall be required in accordance with Regulation .02 of this chapter.

  (4) In all cases, including emergencies described in §D(1)(a) of this regulation:

    (a) The Administration shall be notified before any motorized equipment enters the channel; and

    (b) Approval from the Administration shall be secured before any channel modifications are initiated in conjunction with emergency repairs.

#### Regulation .08 Temporary Construction in a Stream Channel or Floodplain.

*COMAR 26.17.04.08*

A. In addition to the general requirements as described in Regulation .04 of this chapter, the requirements in §§B—E of this regulation apply to applications for temporary changes in stream channels or floodplains unless specifically waived by the Administration.

B. Temporary Sediment-Trapping Devices. The following special requirements shall apply to applications for temporary sediment-trapping devices within the waters of the State during construction operations:

  (1) Temporary sediment-trapping devices shall conform to the technical requirements in the "1983 Maryland Standards and Specifications for Soil Erosion and Sediment Control" which is incorporated by reference under COMAR 26.17.01.11;

  (2) Earth embankments greater than 3 feet high may not be permitted;

  (3) Temporary sediment control trapping devices may be constructed within the 100-year frequency floodplain if all of the following conditions are met:

    (a) Fill material may not be placed any closer to the stream than 50 percent of the distance between the 100-year frequency floodplain limit and the top of the stream bank closest to the trapping device;

    (b) Fill material may not be placed within 25 feet of the top of the stream bank;

    (c) Upon completion of the control device, all exposed soil areas shall be stabilized within 7 days following initial disturbance;

    (d) Care shall be taken during construction, maintenance, and removal of temporary sediment control devices to prevent unnecessary removal or damage to trees and other natural features;

    (e) Sediment removed during maintenance of the trapping device shall be placed outside the limits of the 100-year floodplain and stabilized within 14 days;

    (f) Upon stabilization of all areas that drain to the control device, the device shall be removed and all remaining disturbed areas returned to their original contour and permanently stabilized within 14 days;

  (4) The applicant shall submit the following information to the Administration:

    (a) A vicinity sketch indicating north arrow and scale and in such detail as to easily locate the proposed project;

    (b) A plan or plans at an appropriate scale indicating at least:

      (i) The existing topography and the proposed grading and earth disturbance to take place including indications of the volume of material and surface area involved, and any spoil or borrow involved,

      (ii) Storm drainage provisions, including data on the velocities of flow at outfalls and site conditions at points of discharge,

      (iii) Erosion and sediment control provisions including design details and schedule of application,

      (iv) Time schedule of construction indicating the anticipated start and completion of the project, and staging of the grading, storm drainage, utilities, and erosion and sediment control;

    (c) A general description of the predominant soil types on the site, as described by the appropriate soil survey information available through the soil conservation district from the U.S. Soil Conservation Service.

C. Temporary Access Crossings. The following special requirements shall apply to applications for temporary access crossings within the waters of the State:

  (1) Temporary access crossings shall conform to the technical requirements in the "1983 Maryland Standards and Specifications for Soil Erosion and Sediment Control" which is incorporated by reference under COMAR 26.17.01.11;

  (2) Earth embankments for an access road greater than 3 feet high may not be permitted;

  (3) The applicant shall submit the following information to the Administration:

    (a) General plan of the proposed project showing:

      (i) Location;

      (ii) Land ownership;

      (iii) Cross section of presently existing stream channel;

    (b) Construction plans and specifications;

    (c) Type and source of materials to be used in construction;

    (d) Erosion and sediment control provisions including design details and schedule of application.

D. Temporary Utility Crossings. The following special requirements shall apply to applications for utility crossings within the waters of the State that cross streams or floodplains and are either buried below the presently existing grade or are suspended above the 100-year frequency flood elevation, so that they do not cause any permanent damage to the course, current, or cross section of a stream or body of water, including the floodplain:

  (1) Temporary utility crossings shall conform to the technical requirements in the "1983 Maryland Standards and Specifications for Soil Erosion and Sediment Control" which is incorporated by reference under COMAR 26.17.01.11;

  (2) For stream crossings, the pipe or cable and any protective encasement shall either be buried a minimum of 3 feet below the stream bed, unless the Administration believes that a rigid bottomed stream bed exists, or be elevated a minimum of 1 foot above the 100-year frequency flood elevation;

  (3) Buried utilities and their appurtenances, except at stream crossings, shall be located such that a 25-foot wide buffer zone is maintained between the limits of construction and the nearest top of the stream bank.

  (4) The following information shall be submitted with the application:

    (a) Construction plans and specifications;

    (b) Type and source of materials to be used in construction;

    (c) Erosion and sediment control provisions including design details and schedule of application;

    (d) General plan of the proposed project showing:

      (i) Location;

      (ii) Land ownership;

      (iii) Cross section of presently existing stream channel;

      (iv) Existing topography.

E. Storm Drain Outfalls. The following requirements apply to applications for temporary construction in the floodplain for outfall pipes, flumes, and ditches, providing there are no permanent alterations to the course, current, or cross section of a stream or body of water:

  (1) Construction shall conform to the technical requirements of the "1983 Maryland Standards and Specifications for Soil Erosion and Sediment Control" which is incorporated by reference under COMAR 26.17.01.11;

  (2) Permanent floodplain obstructions to flow may not be permitted;

  (3) The following information shall be submitted with the application:

    (a) General plan of the proposed project showing:

      (i) Location;

      (ii) Land ownership;

      (iii) Cross section of presently existing stream channel and proposed drainage outfall;

    (b) Construction plans and specifications;

    (c) Type and source of materials to be used in construction;

    (d) Erosion and sediment control provisions including design details and scheduled application;

    (e) Time schedule of construction indicating the anticipated start and completion of the project, and staging of the grading, storm drainage, utilities, and erosion and sediment control.

#### Regulation .09 Conduits, Pipes, or Other Devices Pertaining to the Potomac River.

*COMAR 26.17.04.09*

The construction, reconstruction, alteration, or addition to any conduit, pipeline, wire cable, trestle, or other device, structure, or apparatus, in, under, through, or over the bed or waters of the Potomac River requires a waterway construction permit from the Administration. Any waterway construction permit issued for this construction shall be subject to the requirements of Regulation .08C of this chapter and permit charges as may be assessed by the Board of Public Works.

#### Regulation .10 General Waterway Construction Permit.

*COMAR 26.17.04.10*

A. A person shall be permitted by this regulation to make changes in the course, current, or cross section of waters of the State if:

  (1) Conditions specified in this regulation for those activities are met; and

  (2) The project is not located in the stream channel or floodplain of a wild and scenic river as defined in Natural Resources Article, §8-402, Annotated Code of Maryland.

B. The changes permitted in §A of this regulation include:

  (1) Clearing and grading activities in the 100-year frequency floodplain when:

    (a) Less than 5,000 feet of land area and less than 100 cubic yards of earth are disturbed;

    (b) Habitable structures are not constructed; and

    (c) Permanent obstructions are not created that would affect the hydraulic characteristics of the waters of the State;

  (2) Temporary construction on the waters of the State which meet the special requirements of Regulation .08B, C, D, and E of this chapter; or

  (3) Minor maintenance and repair of existing structures that are located in the waters of the State.

C. In addition to the conditions imposed on the categories of construction activities set forth in §§A and B of this regulation, an owner of a project site subject to the general waterway construction permit shall do all of the following:

  (1) Submit to the Administration an application for the planned construction activity, including:

    (a) Any required plans;

    (b) Specifications for screening and concurrence with this chapter;

    (c) The construction schedule; and

    (d) Anticipated dates of the beginning of construction activity;

  (2) Allow reasonable inspection of the site by representatives of the Administration;

  (3) Maintain construction plans and specifications at the construction site for reasonable inspection by the Administration during construction;

  (4) When applicable, obtain an approved sediment and erosion control plan from the local soil conservation district before construction; and

  (5) Provide for specifically designed measures, which shall be included in the construction plans, to minimize sediment pollutants from entering the waters of the State for those construction activities within a stream channel that are not subject to the requirements of COMAR 26.17.01.05, which requires an approved erosion and sediment control plan for certain activities.

D. The Administration shall provide written concurrence for projects meeting the requirements of this regulation within 30 days of application submission if no review is requested by other agencies.

#### Regulation .11 Criteria for Evaluating Applications.

*COMAR 26.17.04.11*

A. The criteria described herein are presented to assist persons in preparing their permit applications and to provide a consistent basis for the Administration's decisions. The Administration shall follow the criteria, unless the Administration determines that the overall public interest requires a variance. In that case, written documentation justifying the variance shall have been submitted by the applicant and will be approved in writing by the Administration, for inclusion in the record. As the basis for approval, denial, or modification of a permit, the Administration shall weigh all public advantages and disadvantages. The administration shall grant the permit, if approval of the project is in the best public interest and the plans for the project provide for the greatest feasible utilization of the waters of the State, adequately preserve the public safety, and promote the general public welfare. The criteria described in Sec. B of this regulation shall apply to all applications. Depending on the purpose of the proposed project, additional specific criteria, as described in subsequent sections, shall also apply.

B. General Criteria.

  (1) In all cases where the proposed project is on a stream in the State Scenic and Wild Rivers Program and, in the case of other streams, when necessary, the Administration shall advise the applicant of the outstanding scenic, fish, wildlife, and other recreation values to the citizens of the State. In these cases, the applicant shall consider alternatives less harmful to the stream's value as a scenic and wild resource. Construction of an impoundment upon a scenic or wild river is contrary to the public interest, if that project floods an area of unusual beauty, blocks the access to the public of a view previously enjoyed, or alters the stream's wild qualities.

  (2) A dam or other structure impeding the natural flow of a scenic and wild river may not be constructed, operated, or maintained in a scenic and wild river, and channelization may not be undertaken unless specifically approved. The Secretary's approval authority under Natural Article, §8-406, is delegated to the Director of the Water Resources Administration or the Director's designee. The Director or the designee shall consider the comments received from the Department of Natural Resources as well as the standards established in §B(1) of this regulation to protect the river's scenic and wild qualities.

  (3) In the evaluation of permit applications, the Administration shall consider the blockage of free passage of fish to be contrary to the public interest, except as provided in Natural Resources Article, §4-502(d), Annotated Code of Maryland.

  (4) Category II, III, or IV dams may not be built or allowed to impound water in any location where a failure is likely to result in the loss of human life or severe damage to streets, major roads, public utilities, or other high value property.

  (5) Proposed projects that eliminate or significantly and adversely affect aquatic or terrestrial habitat and their related flora and fauna are not in the public interest. At a minimum, all in-stream construction shall be prohibited from October through April, inclusive, for natural trout waters and from March through May, inclusive, for recreational trout waters. In addition, the construction of proposed projects, which may adversely affect anadromous fish spawning areas, shall be prohibited from March 15 through June 15, inclusive. For projects when there is no reasonable alternative to the adverse effects on nontidal wetlands or other aquatic or terrestrial habitat, the applicant shall be required to provide measures to mitigate, replace, or minimize the loss of habitat.

  (6) Proposed projects which increase the risk of flooding to other property owners are prohibited, unless that area subject to additional risk of flooding is purchased, placed in designated flood easement, or addressed by other means acceptable to the Administration.

  (7) The construction or substantial improvement of any residential, commercial, or industrial structure in the 100-year frequency floodplain and below the water surface elevation of the 100-year frequency flood may not be permitted. Minor maintenance and repair may be permitted. In addition, the modifications of existing structures for flood-proofing purposes may be permitted. Flood-proofing modifications shall be designed and constructed in accordance with specifications approved by the Administration.

C. Flood Control Criteria.

  (1) Multiple purpose use shall be preferred over single purpose use.

  (2) The proposed project shall achieve the purposes intended.

  (3) At a minimum, the proposed project shall provide for a 50 percent reduction of the average annual flood damages.

  (4) Flood Control Techniques.

    (a) Flood control techniques that shall be considered include:

      (i) Relocation;

      (ii) Evaluation;

      (iii) Flood-proofing;

      (iv) Flood control dams;

      (v) Levees and dikes;

      (vi) Stormwater detention or retention structures;

      (vii) Flood warning systems;

      (viii) Public acquisition;

      (ix) Storm drain and stream maintenance;

      (x) Tax adjustment policies;

      (xi) Subdivision, zoning, and related ordinances; and

      (xii) Other practical methods.

    (b) Channelization shall be the least favored flood control technique.

  (5) The applicant shall provide a written analysis and financial statement detailing the benefits and costs of the project and identifying the project's beneficiaries. This information shall be made a part of the public record.

D. Agricultural Drainage Criteria.

  (1) The Administration shall permit agricultural drainage only to the extent that it provides substantial agricultural benefits.

  (2) The design of the proposed channel shall prevent direct over bank flow into the ditch. This may be accomplished with reverse slopes, vegetated buffers, and controlled inlets.

  (3) The downstream end of the proposed system shall be truncated as far upstream as possible.

  (4) Approved soil conservation district conservation plans shall be properly implemented and maintained.

  (5) Measures shall be incorporated in the project to minimize adverse environmental impacts.

E. Variances. If the Administration determines, from the information submitted in conjunction with the application, that the overall public interest requires a variance, the Administration may grant relief from the strict application of the criteria, upon request. All requests for variances shall be considered by the Administration in accordance with the following:

  (1) A variance may not be granted for any construction, development, use, or activity that would cause any increase in the 100-year frequency flood elevation unless the Administration finds the variance to be in the best public interest;

  (2) If granted, a variance shall involve only the least modification necessary to protect the public interest;

  (3) If a variance is granted, the Administration shall notify the applicant in writing that:

    (a) The granting of the variance may result in increased premium rates for flood insurance,

    (b) These variances may increase the risks to life and property;

  (4) Structures, including those involving variances, shall be designed and constructed so as to have the capability of resisting the hydrostatic and hydrodynamic loads and pressures, effects of buoyancy, and other forces associated with at least the 100-year frequency flood event.

#### Regulation .12 Violations of Statutory, Regulatory, or Permit Requirements.

*COMAR 26.17.04.12*

A. Action on Violation. If the Administration determines that there has been a violation of any provision of Environment Article, §§5-501—5-514, Annotated Code of Maryland, of any regulation, or of any permit, it shall cause a written complaint to be served upon the alleged violator. The complaint shall specify the nature of the violation. After, or concurrent with, service of the complaint, the Administration may exercise one of the following options:

  (1) Issue an administrative order requiring necessary corrective action to be taken within the time prescribed in its order. Any person named in the order may request in writing a hearing before the Administration not later than 10 days after the date the order is served, in which case a hearing shall be scheduled within 10 days from receipt of the request. A decision shall be rendered within 10 days from the date of the hearing.

  (2) Require the alleged violator to file a written report regarding the alleged violation.

  (3) Require the alleged violator to appear before the Administration at a time and place the Administration specifies to answer the charge outlined in the complaint.

  (4) Require the alleged violator to file a written report regarding the alleged violation and appear before the Administration at a time and place the Administration specifies to answer the charges outlined in the complaint. If the Administration exercises the option provided by §A(2) of this regulation, the alleged violator may request in writing a hearing before the Administration not later than 10 days after the date that notice of the requirement of the written report is served. The following apply:

    (a) The appearance of the alleged violator before the Administration under the options provided by §A(3) or (4) of this regulation constitutes an administrative hearing and the party has the right of any party in a contested case provided in State Government Article, §§10-201—10-217, Annotated Code of Maryland.

    (b) If the Administration exercises the option provided by §A(2), (3), or (4) of this regulation, it may not issue an order requiring corrective action to be taken as a result of the alleged violation before expiration of the time set for filing any report and holding any hearing required under these paragraphs. After that, the Administration may issue an order requiring necessary corrective action to be taken within the time prescribed in the order. A person is not entitled to a hearing before the Administration as a result of this order.

    (c) Notice of a hearing or of a requirement that a written report be filed shall be served on the alleged violator personally or by certified or registered mail to his last known post office address not less than 10 days before the time set for the hearing or filing of a report.

    (d) Each order the Administration issues under the provisions of this section shall be served on the person affected personally or by certified or registered mail to his last known post office address. The order shall become effective immediately according to its terms upon service.

B. Administrative Action With Regard to Permit. Upon failure by the owner to comply with the requirements of an administrative order, a permit may be modified or suspended. Modification or suspension of a permit shall be effective without stay upon receipt by the owner of appropriate notice. Upon written request for a hearing by the owner in accordance with the procedure specified in §A of this regulation, a hearing shall be held, but the administrative action may not be stayed pending the hearing.

C. Emergency Action. Under emergency conditions, such as violation or imminent violation of any applicable State requirement, a permit may be modified or suspended. Modification or suspension of a permit shall be effective without stay upon receipt by the permittee of appropriate notice. Upon written request by the permittee for a hearing before the Administration, in accordance with the procedure specified in §A of this regulation, a hearing will be held, but the administrative action may not be stayed pending the hearing.

D. Permit Review. The Administration may review any permit which it has issued in order to determine whether the:

  (1) Conditions of the permit have been satisfied; or

  (2) Permit should properly be modified, suspended, or revoked.

E. Permit Modification. If it is found that amendments and changes are necessary to insure safety or for other valid reasons, the Administration may order or permit the necessary revision of plans and specifications. However, if conditions are revealed which will not permit safe construction, the permit shall be revoked.

F. Permit Revocation.

  (1) A permit may be revoked after notice to the permittee and opportunity for a hearing if the Administration determines that any of the following have occurred:

    (a) The permittee has failed to comply with the requirements of an administrative action pursuant to §A, D, or E of this regulation;

    (b) False or inaccurate information was contained in the application for the permit;

    (c) Conditions or requirements of the permit have been or are about to be violated;

    (d) Substantial deviation from plans, specifications, or requirements has occurred;

    (e) The permittee has failed to allow an authorized representative of the Administration upon presentation of proper credentials to:

      (i) Enter at any reasonable time upon permittee's premises where the structure is located, pertinent operations are conducted, or records are required to be kept under terms and conditions of the permit;

      (ii) Have access to and copy any records required to be kept under terms and conditions of the permit;

      (iii) Inspect facilities to insure compliance with the conditions of the permit;

      (iv) Inspect any monitoring equipment or method required in the permit;

    (f) Change in conditions exists requiring temporary or permanent modification or elimination of the permitted operation.

  (2) The permittee has the right to be heard regarding the revocation of the permit upon a request in writing not later than 10 days after the date on which the revocation notice is served. The Administration shall schedule a hearing within 10 days from receipt of the request and give a decision within 30 days from the date of the hearing.

G. Statutory Remedies. The provisions of the regulation may not be construed to limit or otherwise affect the authority of the Administration to proceed against violators pursuant to Environment Article, §§5-513 and 5-514, Annotated Code of Maryland.

#### Regulation .13 Public Hearings.

*COMAR 26.17.04.13*

A. Except as provided otherwise in this section, the Administration shall provide notice of an opportunity for a public hearing, within 1 month after filing an application for a permit to:

  (1) Construct or reconstruct a reservoir, dam, or other waterway obstruction;

  (2) Construct a waterway; or

  (3) Dredge, fill, bulkhead, or change the shoreline as required by this chapter.

B. The provisions of this regulation do not apply to those projects that meet the criteria established for a general waterway construction permit as specified in Regulation .10 of this chapter.

C. The Administration may waive holding a public hearing on any application, if:

  (1) There is an emergency to save life or property;

  (2) There is a request to make minor repairs or routine maintenance;

  (3) Roads, bridges, or culverts meet minimum design standards set forth herein and the construction does not adversely affect known water resources projects or have potentially significant adverse environmental effects;

  (4) Dams are classed by the Administration in Category IV;

  (5) Plans of other projects that conform to water resources development plans accepted and adopted by the Administration were subject to public hearing and the Administration's review finds no changed conditions in them since the last public review and comment to justify another hearing;

  (6) Temporary construction meeting the minimum design standards set forth herein;

  (7) There is a request to make minor changes or modifications to existing permits.

D. The notice for and conduct of the public hearing shall be in conformance with COMAR 26.01.07. The notice for the public hearing shall be made upon the acceptance of a complete application, as follows:

  (1) The Administration shall prepare and insert the notice in the Maryland Register and required newspapers. The cost of this notice shall be borne by the applicant.

  (2) The applicant shall, by the date of publication of the above notice in the Maryland Register, notify all of the following of the application and hearing and certify same to the Administration before or at the hearing:

    (a) All adjacent property owners;

    (b) The mayor or chief executive official of each affected municipality;

    (c) The legislative body and chief executive official of each affected county;

    (d) The soil conservation districts affected; and

    (e) Other persons, as requested in writing by the Administration.

### Chapter 05 — Flood Management Grant Program

**Authority:** Environment Article, §§5-203, 5-802 and 5-803, Annotated Code of Maryland

**Administrative History:** Effective date: September 14, 1981 (8:18 Md. R. 1478)

**Administrative History:** Regulation .02A amended as an emergency provision effective December 15, 1981 (9:1 Md. R. 17), expired May 8, 1982; amended as an emergency provision effective December 1, 1982 (10:1 Md. R. 19), expired June 30, 1983; amended as an emergency provision effective December 2, 1983 (10:26 Md. R. 2336), expired March 31, 1984 (Emergency provisions are temporary and not printed in COMAR)

**Administrative History:** Regulation .02A amended effective April 9, 1984 (11:7 Md. R. 622)

**Administrative History:** Chapter recodified from COMAR 08.05.08 to COMAR 26.17.05, June 1996

**Administrative History:** Regulation .05B amended effective July 8, 2002 (29:13 Md. R. 993)

#### Regulation .01 Definitions.

*COMAR 26.17.05.01*

A. In this chapter, the following terms have the meanings indicated. Terms not defined below shall have the meanings given to them in the relevant statutes or, if not defined in statutes, the meanings attributed by common use. The terms “Department”, “federal flood insurance program”, “100-year flood event”, and “subdivision” are defined in the Environment Article, Annotated Code of Maryland. The definitions for these terms are provided below as a convenience, but persons affected by the Department's regulations should be aware that these definitions are subject to amendment by the General Assembly.

B. Terms Defined.

  (1) “Administration” means the Water Management Administration.

  (2) “Capital project” means any flood control or watershed management capital project which:

    (a) Reduces flood hazards;

    (b) Has an expected useful life of at least 15 years;

    (c) May include public acquisition or structural methods; and

    (d) Does not include the following associated elements of any project:

      (i) Research,

      (ii) Planning,

      (iii) Study,

      (iv) Operation,

      (v) Repair, or

      (vi) Maintenance.

  (3) “Department” means the Department of the Environment.

  (4) “Flood management plan” means a plan to guide activities in a watershed for the purpose of minimizing the hazards of flooding and preserving the biological values associated with the land and water resources, pursuant to Environment Article, Title 5, Subtitle 8, Annotated Code of Maryland.

  (5) “Federal flood insurance program” means the program established by the National Flood Insurance Act of 1968, as amended.

  (6) "100-year flood event" or "100-year flood" means a flood that has a 1-percent chance of being equalled or exceeded in any given year.

  (7) “Subdivision” means any county, including Baltimore City. The term “subdivision” also means any incorporated municipality which has the authority to adopt and enforce land use and control measures for the areas within its jurisdiction.

  (8) “Ultimate development” means the anticipated development during the expected useful life of the capital project.

#### Regulation .02 General Requirements.

*COMAR 26.17.05.02*

A. Establishment of Annual State Priority List for Capital Projects. Before May 1, 1984 and before the first of May each year after that, each participating subdivision shall submit applications, in priority order, for capital projects which are included in approved flood management plans to the Department. Upon review and evaluation of the submitted capital projects, an annual State priority list for capital projects shall be adopted by the Department. This list will be the basis for grants to the subdivisions and will specify the Department's share of the eligible project cost.

B. Adoption of the Annual Priority List. Before adopting the annual State priority list, the Department shall notify the affected subdivisions of its intended action and afford reasonable opportunity for comment. The approval of a flood management plan does not determine the position of a capital project on the priority list.

C. Criteria for Priorities.

  (1) The purpose of ranking the individual capital projects in the State priority list is to ensure the greatest benefits from the investment of public money. The ranking will be based on the type of capital project, flood history, and cost effectiveness and implementation schedule of the flood management plan.

  (2) The types of capital projects which will be preferred shall:

    (a) Be permanent solutions to existing flood hazards and not require continuing operation, maintenance, or repair; and

    (b) Minimize environmental impacts.

  (3) Flood history will consider the:

    (a) Magnitude and frequency of past flood events;

    (b) Damages resulting from past flood events; and

    (c) Danger to public health and welfare.

  (4) The cost effectiveness will consider the:

    (a) Cost of the capital project and total cost of the flood management plan;

    (b) Direct damages prevented;

    (c) Indirect costs prevented such as work closings, environmental damage, or personal inconvenience;

    (d) Benefits created such as recreational opportunities, open space, ecological enhancement, hydrologic improvements, water quality improvements, or water supply; and

    (e) Life of the project and possibility of future expenditures such as maintenance, repair, or replacement.

D. All land acquired shall be dedicated to open space or recreation.

E. These regulations establish procedures for the implementation of the Maryland Flood Management Grant Program and are not intended to create procedural or substantive rights in any person except the Department.

#### Regulation .03 Applications for a Grant.

*COMAR 26.17.05.03*

A. Scope. Subdivisions may apply to the Department for grants to assist in flood control and watershed management capital projects if all the following conditions are met:

  (1) It has the authority to make an application and has been authorized by an official act of the governing body directing this action. If the applicant is other than a county or Baltimore City, it must provide written certification from its legal counsel that it is a subdivision as defined in Regulation .01B(7) of this chapter.

  (2) It will have funds available to meet its share of the capital project.

  (3) It is participating in and is in conformance with the federal flood insurance program.

  (4) The capital project is part of a flood management plan approved by the Department and adopted by the subdivision pursuant to Environment Article, Title 5, Subtitle 8, Annotated Code of Maryland.

B. All applications to the Department shall:

  (1) Reference the approved and adopted flood management plan of which the capital project is a part;

  (2) Specify the exact location of the capital project;

  (3) Specify the anticipated results of the capital project and furnish any substantiation required by the Department;

  (4) Evaluate alternative management techniques;

  (5) Specify the operation and maintenance arrangements for the life of the project;

  (6) Specify the use or disposition of acquired property;

  (7) Specify the expected useful life of the project;

  (8) Identify the short-term and long-term beneficial and adverse environmental effects of the capital project and any mitigating measures for the adverse impacts;

  (9) Identify all beneficiaries and the estimated current dollar value of the benefits and costs of the capital project;

  (10) Certify that the value or interest in properties proposed for acquisition will be established by two qualified appraisers prior to implementation; and

  (11) List all necessary federal, State, and local permits and certify that all these permits have been or will be applied for and will be obtained before implementation of the capital project.

C. Unless otherwise specified, all hydrologic calculations shall be based on the ultimate development of the watershed. If the project requires computations of flood frequencies and flows, the methods and computations shall be available in sufficient detail for the Department to determine their validity.

D. The approval of a capital project for a grant does not waive the requirements for any applicable State permits. If the capital project requires a permit from the Department, detailed information need not be duplicated. A statement on the grant application that the information is available in the permit application will be sufficient.

E. All applications and information required by these regulations shall be submitted to the Department, in a manner and form acceptable to the Department, before the Department takes final action on the application.

F. The application shall be submitted by the applicant to the Maryland State Clearinghouse in accordance with standard Clearinghouse procedures as described by the Office of Planning. The standard Clearinghouse procedures are based on the provision of OMB Circular A-95 and the application is subject to the applicable requirements and procedures contained in the Circular. Final action shall not be taken by the Department until the State Clearinghouse response has been received by the Department.

G. The chief executive officer of the subdivision shall sign the application.

#### Regulation .04 Flood Management Plans.

*COMAR 26.17.05.04*

A. Flood management plans are to guide activities in a watershed so that flood hazards are minimized, while preserving the biological values associated with the land and water resources. They will be developed for each watershed in accordance with Environment Article, Title 5, Subtitle 8, Annotated Code of Maryland, to attain all the following goals:

  (1) Reduction of existing flood hazards;

  (2) Prevention of future flood hazards;

  (3) Adequate emergency preparedness;

  (4) Preservation of the environmental qualities of the watershed; and

  (5) Reduction of economic and social losses.

B. A flood management plan shall contain, but not be limited to, the following:

  (1) The limits of the watershed;

  (2) An inventory of historic flood damage sites, including frequency and damage estimates;

  (3) An inventory of areas of significant natural resource value as noted in existing state and local studies;

  (4) An inventory of areas of historical and archeological value identified in existing state and local studies;

  (5) A map or series of maps showing features of the watershed pertinent to the flood management plan;

  (6) The relationship of the flood management plan to related programs in the watershed including the federal flood insurance program, the sediment control program, and the State water pollution and abatement program, and Program Open Space;

  (7) The following information, based upon the ultimate development of the watershed and flood events up to and including the 100-year flood:

    (a) A description of potential flood damages;

    (b) An assessment of all available flood mitigation techniques, their costs and hydrologic impacts;

    (c) The selected projects and techniques necessary to mitigate flood damages; and

    (d) Any environmental, social, and economic implications of the proposed flood mitigation techniques;

  (8) A schedule of expected implementation of all capital projects and other pertinent elements of the flood management plan;

  (9) Identification of measures to be taken before, during, and immediately after a flood disaster including:

    (a) Warning and evacuation for known flood hazard areas, and

    (b) Post-disaster activities which would minimize both present and future damages;

  (10) Any stormwater management requirements and techniques necessary to mitigate the adverse effects of land use changes on stream flows and flood frequencies; and

  (11) Any rules, regulations, or ordinances necessary for implementation and hazard mitigation.

#### Regulation .05 Procedures.

*COMAR 26.17.05.05*

A. General. If the Department approves a capital project and it falls within the limits of the funds available according to the annual priority list, a proposal for funding the capital project with appropriate conditions will be presented, along with reviews from appropriate agencies, to the Board of Public Works for approval and commitment of funds. No project will be submitted to the Board of Public Works until the subdivision certifies that its share of the funds is available and that it will properly operate and maintain the project to assure that the project benefits are realized.

B. Department's Share of Capital Project Cost. The amount of any grant made by the Department may be up to 75 percent of the funding of a flood management project that does not receive federal funds. The Department may provide up to 50 percent of the nonfederal share of the funding for a project which receives federal funds and meets the criteria of these regulations and Environment Article, Title 5, Subtitle 8, Annotated Code of Maryland, but may not exceed the amount of local funds.

C. Recovery of Grant. The Department may investigate, inspect, or audit any capital project involving grant funds. If the Department determines that the capital project is not being performed according to the approved application or flood management plan, the Department may withhold funding and require reimbursement by the subdivision.

### Chapter 06 — Water Appropriation or Use

**Authority:** Environment Article, §§5-501—5-514, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.06 effective May 1, 1972

**Administrative History:** Regulation .07 effective April 1, 1970 (Regulation .07 was formerly codified as COMAR 08.05.03.03 under the chapter entitled “Surface Water”.

**Administrative History:** Regulation .07 was placed in this chapter when the remainder of the “Surface Water” regulations were repealed.)

**Administrative History:** Regulations .01—.07, Groundwater Regulations, repealed effective March 7, 1988 (15:5 Md. R. 617)

**Administrative History:** Regulations .01—.09, Water Appropriation or Use, adopted effective March 7, 1988 (15:5 Md. R. 617)

**Administrative History:** Regulation .05B amended effective January 9, 1989 (15:27 Md. R. 3128)

**Administrative History:** Chapter recodified from COMAR 08.05.02 to COMAR 26.17.06, June 1996

**Administrative History:** Regulation .01B amended effective April 21, 1997 (24:8 Md. R. 618)

**Administrative History:** Regulation .02A amended effective April 21, 1997 (24:8 Md. R. 618)

**Administrative History:** Regulation .03A, B amended effective April 21, 1997 (24:8 Md. R. 618)

**Administrative History:** Regulation .04 amended effective April 21, 1997 (24:8 Md. R. 618)

**Administrative History:** Regulation .05 amended effective April 21, 1997 (24:8 Md. R. 618)

**Administrative History:** Regulation .06 amended effective April 21, 1997 (24:8 Md. R. 618)

**Administrative History:** Regulation .08 repealed and new Regulation .08 adopted effective April 21, 1997 (24:8 Md. R. 618)

**Administrative History:** Regulation .09 repealed effective April 21, 1997 (24:8 Md. R. 618)

**Administrative History:** Chapter revised effective December 22, 2014 (41:25 Md. R. 1486)

#### Regulation .01 Definitions.

*COMAR 26.17.06.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Agricultural purposes” means appropriation or use of water for the production, harvesting, or processing of crops, vegetation, or animals for human or animal consumption or use, including horticultural operations and land-based aquaculture.

  (2) “Appropriation” means an intentional withdrawal, movement, or diversion of water for use from its source of natural occurrence which is caused by human activity.

  (3) “Aquaculture” means the regulation and cultivation of water plants and animals for human use or consumption.

  (4) “Aquifer” means a water-bearing geologic formation which is capable of causing water to flow into a well.

  (5) “Beneficial appropriation or use” means a direct use of water which is:

    (a) Necessary to a permit applicant;

    (b) Nonwasteful;

    (c) Reasonably nondamaging to the resource and other users; and

    (d) In the best interest of the public.

  (6) “Confined aquifer” means an aquifer under pressure from a relatively impervious layer of material lying above the aquifer.

  (7) “Consumptive water use” means that part of water withdrawn from a source which, due to evaporation, interbasin diversions, or other causes, is not returned to the source to be available for subsequent use.

  (8) “Department” means the Department of the Environment.

  (9) “Domestic use” means the noncommercial appropriation or use of water by individuals for residential sanitation and drinking purposes.

  (10) “Emergency condition” means a situation when lack of water poses an immediate danger to the health and welfare of people or animals.

  (11) “Fall line” means the imaginary line separating the coastal plain sediments on the east from the older hardened rock on the west.

  (12) “Ground water” means water that naturally lies, percolates, or flows through aquifers under the surface of the earth.

  (13) “Lake” means a reasonably permanent body of water substantially at rest which is part of a watercourse or the result of a structure placed in a watercourse.

  (14) “Low flow augmentation” means provision of water through development of new water storage facilities or the purchase of storage space in existing water storage facilities equal to the amount of consumptive use from a water source.

  (15) “Permit” means either a:

    (a) Ground water appropriation or use permit; or

    (b) Surface water appropriation or use permit.

  (16) Person.

    (a) “Person” means an individual, partnership, copartnership, firm, company, corporation, association, joint stock company, trust estate, governmental entity, or any other legal entity, or their legal representatives, agents, or assigns.

    (b) “Person” includes all federal, State, and local governmental entities.

  (17) “Potentiometric surface” means a level to which water will rise in a tightly cased well drilled into a confined aquifer.

  (18) Public Water System.

    (a) “Public water system” means a system that provides to the public water for human consumption through pipes or other constructed conveyances and:

      (i) Has at least 15 service connections; or

      (ii) Regularly serves at least 25 individuals daily at least 60 days out of the year.

    (b) “Public water system” includes:

      (i) Any collection, treatment, storage, or distribution facility that is under the control of the operator of the system and is used primarily in connection with the system; and

      (ii) Any collection or pretreatment storage facility that is not under the control of the operator of the system and is used primarily in connection with the system.

  (19) “Riparian land” means land bordering on a watercourse or lake.

  (20) “Surface water” means water from rain, melting snow, springs, or seepage that lies or flows on the surface of the earth, including a watercourse, lake, or tidewater.

  (21) “Sustained yield” means the availability of water from an aquifer managed so that total withdrawals do not exceed natural recharge, thus enabling the aquifer to function as an aquifer in perpetuity.

  (22) “Underground water” means ground water.

  (23) “Use of water” means a direct use of ground or surface water by withdrawal, diversion, or impoundment.

  (24) “Water audit” means an examination of water use that traces the flow of water from the site of water withdrawal through the distribution system and final use of the water, and details the variety of consumption and losses that exist from withdrawal through final use.

  (25) “Water conservation” means the use of practices, techniques, and technologies that:

    (a) Reduce the consumption, loss, or waste of water;

    (b) Improve efficiency in the use of water; or

    (c) Make more efficient use of water treatment infrastructure.

  (26) “Water supply capacity management plan” means a plan that analyzes available water supply capacity and establishes a system to track water allocation commitments.

  (27) “Watercourse” means a stream of water of natural origin, flowing constantly or intermittently on the surface of the earth in a relatively definite natural channel, including springs, lakes, or marshes in which a stream originates or through which it flows.

  (28) “Water management strategy area” means an area designated by the Department in which a specific water resource problem has been identified and for which the Department has adopted specific water use restrictions or criteria for permit approval in order to protect the water resource or existing water users.

  (29) “Water table” means the water-saturated zone which is:

    (a) First encountered when drilling into the earth's surface; and

    (b) Not a confined aquifer.

#### Regulation .02 Statement of Policy.

*COMAR 26.17.06.02*

A. The General Assembly recognizes that the availability of adequate water supplies is essential to health, safety, and economic welfare. To conserve and protect water resources of the State in the best interest of the people, the Department is authorized to control appropriation or use of surface and ground waters. This control provides for the greatest possible use of waters in the State, while protecting the State's valuable water supply resources from mismanagement, abuse, or overuse. The State's water supply resources include watercourses, lakes, aquifers, tidal areas, and other bodies of water in the State. Private property owners have the right to make reasonable use of the waters of the State which cross or are adjacent to their land. For the benefit of the public, the Department acts as the State's trustee of its water resources.

B. Maryland follows the reasonable use doctrine to determine a person's right to appropriate or use surface or ground water. A ground water appropriation or use permit or a surface water appropriation or use permit issued by the Department authorizes the permittee to make reasonable use of the waters of the State without unreasonable interference with other persons also attempting to make reasonable use of water. The permittee may not unreasonably harm the water resources of the State.

#### Regulation .03 Scope and Applicability.

*COMAR 26.17.06.03*

A. With the exception of those persons listed in §B of this regulation, a person shall obtain a permit from the Department before appropriating or using waters of the State. A person who shall obtain a permit from the Department includes:

  (1) A person appropriating or using water for any agricultural, commercial, institutional, industrial, or municipal purpose;

  (2) A person subdividing land if the subdivision may require an appropriation or use of waters of the State whether from a central source or a source located on each subsequently created lot;

  (3) A person planning to build any structure or impoundment which will horizontally or vertically move water from its source of natural occurrence;

  (4) A person appropriating or using surface water or ground water for domestic heating or cooling.

B. A person is not required to obtain a permit from the Department if that person is appropriating or using water for:

  (1) Agricultural purposes if the average annual use is less than 10,000 gallons per day;

  (2) Residential subdivisions of ten or fewer lots if:

    (a) The water is obtained from individual wells located on each lot,

    (b) For properties located west of the fall line only, the average lot size is not less than 1 acre, and

    (c) The subdivision is not located within a water management strategy area;

  (3) Temporary dewatering during construction if:

    (a) The duration of the dewatering including any intermittent periods of nonpumping is expected to last for less than 30 calendar days, and

    (b) The appropriation does not exceed an average of 10,000 gallons per day (gpd);

  (4) Domestic uses other than for heating or cooling; or

  (5) Extinguishing a fire.

C. Compliance with the regulations in this chapter does not exempt any person making an appropriation or use of waters of the State within the Susquehanna River Basin from the requirements of the Susquehanna River Basin Commission.

#### Regulation .04 Incorporation by Reference.

*COMAR 26.17.06.04*

Application for Water Allocation: Guidance Document for Public Water Systems Providing Groundwater to Municipal Corporations or Priority Funding Areas in Carroll, Frederick, and Washington Counties (June 2014) is incorporated by reference.

#### Regulation .05 Water Appropriation or Use Permit Application Procedures.

*COMAR 26.17.06.05*

A. Application Procedures for Applicant.

  (1) An applicant may not build or operate a structure requiring a permit until the Department has issued the permit.

  (2) The applicant shall apply for a permit on forms provided by the Department.

  (3) The applicant shall state the specific water use or uses intended under the permit.

  (4) Except for applicants proposing to appropriate or use water for agricultural purposes, the applicant shall include the following information with the application:

    (a) A map (U.S. Geological Survey 7 1/2 minute Quadrangle Series, 1:24000 scale) showing the location of the proposed appropriation or use and the area or structure in which the water use will occur;

    (b) The anticipated average daily appropriation calculated on an annual basis for the year projected to have the highest average daily use during the permit period;

    (c) For a requested appropriation or use of ground water, the anticipated average daily appropriation during the month of highest use;

    (d) For a requested appropriation or use of surface water, the anticipated maximum daily appropriation or use during the permit period; and

    (e) Complete plans and specifications for any facility or structure requiring a permit.

  (5) For persons proposing to appropriate or use water for agricultural purposes, the Department shall work with the applicant to determine:

    (a) The anticipated average daily appropriation calculated on an annual basis for the year projected to have the highest average daily use during the permit period; and

    (b) For a requested appropriation or use of:

      (i) Ground water, the anticipated average daily appropriation during the month of highest use, or

      (ii) Surface water, the anticipated maximum daily appropriation or use during the permit period.

  (6) For each housing subdivision or other construction project which may be completed in phases, the applicant shall state the total ultimate water requirements for total development of the site during the permit period.

  (7) If a requested appropriation or use is for more than an annual average of 10,000 gallons per day, the applicant shall comply with the notification requirements in COMAR 26.01.07.03.

  (8) If a requested appropriation or use is for more than an annual average of 10,000 gallons per day, the applicant shall certify on a form provided by the Department that water-conserving fixtures associated with the appropriation or use shall conform to the requirements of Business Occupations and Professions Article, §12-205, Annotated Code of Maryland.

  (9) The Department may require the applicant to conduct special evaluations, including:

    (a) Water quality analyses, well-pumping tests, or geophysical well logging for proposed ground water appropriations;

    (b) Water quality analyses, watercourse flow measurements, or aquatic habitat evaluations for proposed surface water withdrawals;

    (c) Water audits, water supply capacity management plans, water conservation plans, or estimates of distribution system leakage; and

    (d) For public water systems requesting special consideration under Environment Article, §5-501(b), Annotated Code of Maryland, evaluations as described in Applications for Water Allocation: Guidance Document for Public Water Systems Providing Water to Municipal Corporations or Priority Funding Areas in Carroll, Frederick, and Washington Counties (June 2014).

B. Application Processing Procedures for the Department.

  (1) Except for applications that propose to appropriate or use water for agricultural purposes:

    (a) The Department shall review an application for completeness and consistency with State water resources plans and may consider, when appropriate, the consistency of an application with local land use and zoning requirements;

    (b) If the application is incomplete or prepared improperly, the Department shall notify the applicant as to what steps are necessary to complete the application; and

    (c) An application is incomplete until the applicant provides all information requested by the Department and the Department completes its technical evaluation of that information.

  (2) If the applicant does not respond within 6 months to the Department's request for additional information, the Department may notify the applicant that the application process has been terminated. To reactivate the closed file, the applicant shall reapply and may be required to submit new or updated evaluations.

  (3) The Department shall provide notice and opportunity to submit comments and to request a public informational hearing in accordance with COMAR 26.01.07.03 and .04.

  (4) The Department shall conduct public informational hearings in accordance with COMAR 26.01.07.06.

#### Regulation .06 Criteria for Approval of Water Appropriation or Use Permits.

*COMAR 26.17.06.06*

A. General. The Department shall issue a permit only for a beneficial appropriation or use under the following criteria:

  (1) The amount of water to be appropriated is reasonable in relation to the anticipated level of use during the permit period;

  (2) The requested appropriation or use does not have an unreasonable impact on:

    (a) The waters of the State, and

    (b) Other users of the waters of the State.

B. Criteria for Determining Reasonableness.

  (1) Except for applications proposing to appropriate or use water for agricultural purposes, the Department, in determining the reasonableness of a proposed appropriation or use, may consider, when appropriate, the following factors:

    (a) The protection of existing water uses, land values, investments, and enterprises; and

    (b) The financial hardship of requiring a new user to bear the loss of potential harm as provided in §D(1) of this regulation.

  (2) In determining the reasonableness of a proposed appropriation or use, the Department shall consider, when appropriate, the following factors:

    (a) The purpose of the use;

    (b) The suitability of the use to the watercourse, lake, or aquifer;

    (c) The extent and the amount of the harm it may cause;

    (d) The practicality of avoiding the harm by adjusting the proposed use or method of use of the applicant or another permittee;

    (e) The practicality of adjusting the quantity of water used by each permittee;

    (f) Aggregate changes and cumulative impact that this and future appropriations in an area may have on the waters of the State;

    (g) The contribution that the proposed appropriation may make to future degradation of the waters of the State;

    (h) Whether the proposed appropriation or use is located within a water management strategy area;

    (i) The ability of a well or spring to sustainably yield the requested amount of the appropriation; and

    (j) Whether the proposed appropriation in Carroll, Frederick, or Washington County will provide groundwater:

      (i) To a municipal corporation, not including those areas annexed after January 1, 2000; or

      (ii) To a priority funding area established on or before January 1, 2000, under State Finance and Procurement Article, §5-7b-02(7), Annotated Code of Maryland.

C. Special Criteria for Issuance of Surface Water Appropriation or Use Permits.

  (1) Except for permits issued for the appropriation and use of water for agricultural purposes, the Department may condition approval of a surface water appropriation or use permit on the permittee's provision of low flow augmentation to offset consumptive use during low flow periods to protect other users of the water and to protect the resource.

  (2) A surface water appropriation or use may be conditioned on the maintenance, by the permittee, of a required minimum flow past the point of appropriation to protect other users of the water and to protect flora and fauna within the watercourse.

  (3) Surface water appropriated or used for non-industrial heating or cooling shall be returned to the watercourse or lake from which it was appropriated.

  (4) If the Department determines that a proposed appropriation from a surface water source would unreasonably harm the resource or other users of the resource, the Department may deny the permit and advise the applicant to file a new application for an appropriation from a different source.

D. Special Criteria for Issuance of Ground Water Appropriation or Use Permit.

  (1) Except for applicants proposing to appropriate or use water for agricultural purposes, if an applicant intends to appropriate ground water in unprecedented quantities for purposes not common to a locality, and the appropriation would cause harm to other users by lowering the water table or potentiometric surface below a level which would render the users' wells unusable, the Department may condition the issuance of the ground water appropriation or use permit on payment by the permittee of the cost of improving neighboring facilities or on mitigation of the impact on nearby users.

  (2) The Department may not issue a ground water appropriation or use permit if the proposed withdrawal of ground water will directly and substantially affect a watercourse or lake and thereby cause unreasonable harm to a person entitled to the use of water from the affected watercourse or lake.

  (3) The Department may not issue a ground water appropriation or use permit for an appropriation from a confined aquifer if the appropriation, either by itself or in combination with existing appropriations, will exceed the sustained yield of the aquifer.

  (4) The regional sustained yield potentiometric surface of a confined aquifer may not be lowered below 80 percent of the drawdown available between the top of the aquifer and the historical prepumping level of the potentiometric surface. In this regulation, “regional” means an area in which water is appropriated or used from multiple wells located in a common source, or that location which, as a result of the appropriation, is 50 percent of the distance from a single well to a point where the potentiometric surface is lowered 1 foot, and has stabilized.

  (5) The permittee may not place a submersible well pump or water intake part of a well pump lower than the top of the confined aquifer from which the water is being withdrawn.

  (6) Appropriation from an Unconfined Aquifer.

    (a) The Department may not issue a water appropriation or use permit in excess of 5,000 gallons per day as an average annual use from an unconfined aquifer, unless the Department finds that the appropriation is sustainable by recharge to the aquifer.

    (b) Priority may be given to public water systems requesting special consideration under Environment Article, §5-501(b), Annotated Code of Maryland, as outlined in Application for Water Allocation: Guidance Document for Public Water Systems Providing Water to Municipal Corporations or Priority Funding Areas in Carroll, Frederick, and Washington Counties (June 2014).

  (7) The Department may not issue a ground water appropriation or use permit to an applicant proposing to appropriate ground water for a housing subdivision located west of the fall line, if the water is to be obtained from individual wells on each residential lot where the average lot size is less than 1 acre.

  (8) The Department may not issue a ground water appropriation or use permit if the proposed appropriation will cause or contribute to the intrusion of saltwater into a freshwater aquifer.

  (9) The Department may not issue a ground water appropriation or use permit for non-industrial heating or cooling unless the ground water is returned to the aquifer from which it is withdrawn.

  (10) The Department may not issue a permit for a new appropriation or an increase to an existing appropriation of water from a well which draws water from more than one confined aquifer.

  (11) If the Department determines that a proposed appropriation from an aquifer would unreasonably harm the aquifer or other users of the aquifer, the Department may deny the permit and advise the applicant to file a new application for an appropriation from a different aquifer.

#### Regulation .07 Water Appropriation or Use Permit Conditions.

*COMAR 26.17.06.07*

A. General.

  (1) The permit period shall be 12 years unless the Department determines that a shorter period is appropriate.

  (2) A permit shall contain an effective date, an expiration date, and a date the permittee first appropriated water at the site.

  (3) A permit shall contain conditions limiting the average daily appropriation or use to a quantity specified by the Department. In addition, a ground water appropriation or use permit shall limit the average daily appropriation during the month of highest use, and a surface water appropriation or use permit shall limit the maximum daily appropriation to quantities specified by the Department.

  (4) A permit shall specify the purpose of the appropriation or use and the source and location of the appropriation or use.

  (5) A permit shall contain a condition allowing authorized representatives of the Department to have access to the permittee's facilities to conduct reasonable inspections and evaluations necessary to assure compliance with the permit. The permittee shall provide such assistance as may be necessary to effectively and safely conduct the inspections and evaluations.

  (6) To renew a permit, the permittee shall file a renewal application with the Department not later than 2 weeks before the expiration date on the permit.

  (7) The Department may suspend or revoke a permit for violating the conditions of the permit, the regulations in this chapter, or the provisions of Environment Article, Title 5, Subtitle 5, Annotated Code of Maryland.

  (8) A permittee shall obtain a new permit before making a change in appropriation or use which would result in a new use, quantity, source, or place of use.

  (9) A permit may not be transferred without the prior written approval of the Department. If approved, the Department shall issue a new permit, which may contain new conditions at the discretion of the Department. A permittee who wants to convey a water appropriation or use permit, and the person who wants to obtain the permit shall each state their intentions in writing to the Department.

  (10) The Department may inactivate a permit after written notice to the permittee, if it finds that water is no longer being appropriated or used under that permit.

B. Non-Agricultural Water Appropriation and Use Permits.

  (1) This section does not apply to permits issued for the appropriation and use of water for agricultural purposes.

  (2) The Department shall review an active permit at least once every 3 years, or more frequently at the discretion of the Department. During a permit review, the Department may modify the permit to adjust the quantity of the water a permittee may appropriate or use or add a condition to the permit for resource management purposes, including avoidance or mitigation of unreasonable adverse impacts on public health or the environment.

  (3) Except as otherwise provided in COMAR 26.17.07, a permit may contain a condition requiring the permittee to stop or reduce water use when directed to do so by the Department during a drought period or emergency.

  (4) Except for subdivisions served by individual domestic wells, a permit issued for an average of 10,000 or more gallons a day shall contain a condition requiring the permittee to report semiannually to the Department the quantity of water appropriated under the permit for each of the preceding 6 months. The Department may require a permittee to report daily use and may require the permittee to install flow-measuring devices.

  (5) A ground water appropriation or use permit for an appropriation from a well 4 inches in diameter or larger shall contain a condition requiring that the pumping equipment be installed so that water levels can be measured during pumping and nonpumping periods without dismantling any equipment. Any opening for tape measurements of water levels shall have a minimum inside diameter of 0.5 inch and be sealed by a removable cap or plug. The permittee shall provide a tap for taking raw water samples before water enters a treatment facility, pressure tank, or storage tank.

C. Agricultural Water Appropriation or Use Permits.

  (1) The Department shall review an active permit at least once every 3 years, or more frequently at the discretion of the Department. During a permit review, the Department may modify the permit or add a condition to the permit for resource management purposes, including avoidance or mitigation of unreasonable adverse impacts on public health or the environment.

  (2) Public notice and opportunity for hearing requirements of Environment Article, §5-506, Annotated Code of Maryland, do not apply to the renewal of a water appropriation or use permit for agricultural purposes if no change is intended in the use, quantity, source, and place of use.

  (3) Water Use Reporting.

    (a) A water appropriation or use permit for agricultural purposes may contain a condition requiring the permittee to report an estimate of total water use for each month of the preceding calendar year to the Department.

    (b) The Department shall provide the necessary water use report form to the permittee each year.

    (c) The permittee may measure water use by any method the permittee considers appropriate under the circumstances to reasonably reflect actual water use. Methods of measurement may include in-line water meters, sonic/vibration meters, induction meters, pump operation time meters, or acreage irrigated.

#### Regulation .08 Temporary Permit for Emergency Appropriation.

*COMAR 26.17.06.08*

A. The Department may issue a temporary permit for emergency appropriation or use of water, if the time required to obtain a permit would constitute a danger to the health of people or animals, or would subject products requiring processing to spoilage.

B. A temporary permit is effective when issued for a period of not more than 3 months.

C. If the emergency condition is anticipated to last more than 3 months, immediately after receiving a temporary permit for emergency appropriation, the temporary permittee shall apply for a permit.

#### Regulation .09 Hearings.

*COMAR 26.17.06.09*

A. If a public informational hearing is conducted, the Department shall, in accordance with COMAR 26.01.07.08:

  (1) Render a decision to issue, modify, or deny the permit; and

  (2) Notify the applicant and persons on the interested persons list of the decision.

B. If a public informational hearing is not conducted, the Department shall, in accordance with COMAR 26.01.07.08:

  (1) Render a decision to issue, modify, or deny the permit within 60 days of the Department's determination that the application is complete, unless extenuating circumstances justify an extension of time; and

  (2) Notify the applicant and persons on the interested persons list of the decision.

C. An aggrieved person may request a contested case hearing in accordance with COMAR 26.01.07.09.

### Chapter 07 — Consumptive Use of Surface Water in the Potomac River Basin

**Authority:** Environment Article, §§5-203, 5-502, and 5-507, Annotated Code of Maryland

**Administrative History:** Effective date: September 23, 1985 (12:19 Md. R. 1847)

**Administrative History:** Chapter recodified from COMAR 08.05.09 to COMAR 26.17.07, June 1996

#### Regulation .01 Definitions.

*COMAR 26.17.07.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Consumptive water use” means that portion of a water withdrawal which, as a result of evaporation, interbasin diversions, or other means, is not returned to the source to be available for subsequent use.

  (2) “Department” means the Department of the Environment.

  (3) “Low flow augmentation” means the provision of water, through development of new water storage facilities or the purchase of storage space in existing water storage facilities or both, equal to the amount of consumptive use.

#### Regulation .02 Scope of Application.

*COMAR 26.17.07.02*

A. Permits issued or amended by the Department for nonresidential surface water appropriation in the Potomac River Basin upstream from Little Falls after January 1, 1985, shall condition the withdrawal of water on the provision, by the permittee, of low flow augmentation for consumptive water use, if the maximum consumptive water use can exceed 1 million gallons per day (mgd) at any time. Low flow augmentation shall be required whether the 1 mgd level is obtained under one permit or reached incrementally under successive new or amended permits for the same project.

B. As an alternative to the provision of low flow augmentation, permittees may cease consumptive water use during certain periods specified by the Department or may reduce consumptive water use to levels of 1 mgd or less.

C. Consumptive uses associated with all water appropriation permits for nonresidential water use before January 1, 1985 are exempt from the required low flow augmentation as to the level of consumptive water use before January 1, 1985.

D. Permittees operating under existing water appropriation or use permits that increase consumptive use beyond 1 mgd without increasing withdrawal shall obtain a new water appropriation permit and shall also be subject to the provisions of this regulation for that amount consumptively used which is in excess of 1 mgd and which was not previously exempt from this regulation as a result of having occurred before January 1, 1985.

E. If the Department determines that the combined effects of upstream permittees consumptively using less than 1 mgd may significantly increase the risk of imposing water use restrictions under the Potomac River Low Flow Allocation Agreement, the Department may require low flow augmentation of the permittees in a manner appropriate to their operations.

F. Surface water appropriation and use permits issued or amended for municipal residential water uses upstream from the Washington metropolitan area shall contain a condition that requires the permittees to reduce withdrawals from the Potomac River or tributaries of the Potomac River when the restriction stage is declared in the Washington metropolitan area under the provisions of the Potomac River Low Flow Allocation Agreement.

#### Regulation .03 Conditions and Procedures.

*COMAR 26.17.07.03*

A. Subject to the Department's approval, provision of low flow augmentation by the permittee may occur at any location within the Potomac River Basin above Great Falls regardless of the location of the consumptive use. The Department may require the permittee situated on a tributary of the Potomac River to locate the low flow augmentation facility upstream from the point of withdrawal if deemed necessary for the environmental protection of instream values.

B. The amount of required low flow augmentation shall be calculated for the location at which the withdrawal occurs or, if the consumptive use occurs on a tributary and augmentation is provided on the Potomac River, at the confluence of the tributary and the Potomac River.

C. The total amount of low flow augmentation storage, in billions of gallons, required of a permittee by the Department shall be interpolated from the following table:

D. The Department shall direct the permittee as to when and for what duration consumptive water use must cease or a release from a water storage facility must be made for low flow augmentation for consumptive water use.

E. Total nonexempt consumptive use on a daily basis by a permittee may not exceed the value used in calculating water augmentation requirements during low flow restriction periods.

F. If the permittee elects to construct the low flow augmentation storage facility in Virginia, West Virginia or Pennsylvania, the permittee shall secure the necessary agreements with the appropriate jurisdiction to enable the permittee to operate the augmentation facility in compliance with this regulation.

G. Municipal residential water use permittees, upstream from the Washington metropolitan area, when notified by the Department that the water use restriction stage had been declared in the Washington metropolitan area, shall reduce all withdrawals from the Potomac River Basin or its tributaries to a level corresponding to the average daily withdrawal by the permittee during the previous January, February, and March.

#### Regulation .04 Transferability.

*COMAR 26.17.07.04*

A. Permittees no longer consumptively using water may transfer their investment in low flow augmentation facilities to other existing or new consumptive users.

B. The Department shall be notified by the transferor at least 10 days before any transfer of their investment in low flow augmentation facilities.

## Subtitle 18 — Susquehanna River Basin Commission

### Chapter 01 — Procedures for Review of Projects

**Authority:** Environment Article, §5-301, Annotated Code of Maryland

**Administrative History:** Effective date: June 1, 1975 (2:13 Md. R. 925)

**Administrative History:** Regulations .01—.03 amended effective March 16, 1977 (4:6 Md. R. 506)

**Administrative History:** Regulation .02G adopted effective April 8, 1985 (12:7 Md. R. 700)

**Administrative History:** Regulation .04 adopted effective March 16, 1977 (4:6 Md. R. 506)

**Administrative History:** Regulation .04C adopted effective August 25, 1978 (5:17 Md. R. 1326)

**Administrative History:** Regulation .04D adopted effective April 6, 1979 (6:7 Md. R. 576)

**Administrative History:** Regulations .01—.04 repealed effective June 25, 1990 (17:12 Md. R. 1493)

**Administrative History:** Regulations .01 and .02 adopted effective June 25, 1990 (17:12 Md. R. 1493)

**Administrative History:** Regulation .02 amended effective March 25, 1996 (23:6 Md. R. 474)

**Administrative History:** Chapter recodified from COMAR 08.14.01 to COMAR 26.18.01, June 1996

**Administrative History:** Annotation: The Susquehanna River Basin Commission adopted its regulations in 55 FR 39142 (September 25, 1990), effective September 25, 1990.

#### Regulation .01 Organization and Purpose.

*COMAR 26.18.01.01*

A. The Susquehanna River Basin Commission (after this, the Commission) was created under the authority of the Susquehanna River Basin Compact (after this, the compact). Signatory parties of the compact are the states of Maryland, Pennsylvania, and New York, and the United States. The Commission is a body politic and corporate, with succession for the duration of the compact, as an agency and instrumentality of the governments of the respective signatory parties. The members of the Commission are the governor or the designee of the governor of each signatory state and one member appointed by the President of the United States to serve at the pleasure of the President.

B. Purposes of the Commission are to:

  (1) Encourage and provide for the planning, conservation, use, development, management, and control of the water resources of the Susquehanna River Basin;

  (2) Provide for cooperative and coordinated planning and action by the signatory parties with respect to water resources; and

  (3) Apply the principle of equal and uniform treatment to all users of water and of water-related facilities without regard to political boundaries.

C. The regulations adopted by the Commission address topics related to application procedures, criteria for decision making, public hearings, and standards.

#### Regulation .02 Incorporation by Reference.

*COMAR 26.18.01.02*

All provisions of the Commission regulations titled Review of Projects as published in 60 FR 31391—31404 June 15, 1995) (to be codified at 18 CFR Parts 803, 804, and 805) are incorporated by reference.

## Subtitle 19 — Oil and Gas Resources

### Chapter 01 — Oil and Gas Exploration and Production

**Authority:** Environment Article, §14-103, Annotated Code of Maryland

**Administrative History:** Effective date: November 25, 1991 (18:23 Md. R. 2487)

**Administrative History:** Regulation .01B amended effective February 15, 1993 (20:3 Md. R. 258)

**Administrative History:** Regulation .06E and F amended effective February 15, 1993 (20:3 Md. R. 258)

**Administrative History:** Regulation .09K amended effective February 15, 1993 (20:3 Md. R. 258)

**Administrative History:** Regulation .10 amended effective February 15, 1993 (20:3 Md. R. 258)

**Administrative History:** Regulation .11A—C amended effective February 15, 1993 (20:3 Md. R. 258)

**Administrative History:** Regulation .12 amended effective February 15, 1993 (20:3 Md. R. 258)

**Administrative History:** Regulation .14A amended effective February 15, 1993 (20:3 Md. R. 258)

**Administrative History:** Chapter recodified from COMAR 08.10.01 to COMAR 26.19.01, June 1996

#### Regulation .01 Definitions.

*COMAR 26.19.01.01*

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Angular deviation and directional survey” means a well survey that indicates, at frequent intervals, the amount and azimuth that the hole has departed from vertical.

  (2) “Annular space” means the area between the outer casing and the wall of a borehole.

  (3) “Barrel” means a unit of measure for crude oil equal to 42 U.S. gallons.

  (4) “Blowout” means an uncontrolled flow of gas, oil, or other well fluids into the atmosphere. This occurs when formation pressure exceeds the pressure applied to it by the column of drilling fluid.

  (5) “Blowout prevention equipment” means devices attached to the top of the well casing that can be closed and shut off to control pressure at the wellhead.

  (6) “Bridge plug” means an expandable device used inside the casing of a well to isolate certain zones or to plug back to a shallower depth.

  (7) “Chesapeake Bay Critical Area” means those areas defined and regulated under Natural Resources Article, §8-1807, Annotated Code of Maryland.

  (8) “Circulating medium” means any type of liquid, gas, or slurry used as an agent to remove drill cuttings and to cool the bit.

  (9) “Commingle production” means to mix hydrocarbons from two or more pay zones in the same well.

  (10) “Conductor pipe” means a pipe used near the surface to prevent unconsolidated material from caving or sloughing into the hole.

  (11) “Coning” means the cone-shaped invasion of water underlying oil or gas in a reservoir or invasion of gas overlying oil in a reservoir as the oil or gas is withdrawn from a well.

  (12) “Cuttings” means the fragments of rocks produced by the drill bit during the drilling process and brought to the surface in the drilling liquid.

  (13) “Department” means the Department of the Environment.

  (14) “Directional drilling” means aiming wells at horizontally displaced bottom-hole targets.

  (15) Drilling Liquid.

    (a) “Drilling liquid” means a fluid, such as mud or water, circulated in a borehole to remove the drill cuttings from the hole and to cool the drill bit.

    (b) “Drilling liquid”, for the purpose of this chapter, does not include air or gas.

  (16) “Dry hole” means a well that encountered no oil or gas of commercial significance.

  (17) “Explosives” means any chemical compound, mixture, or device, the primary purpose of which is to function by explosion through substantially instantaneous release of gas and heat, unless the compound, mixture, or device is otherwise specifically classified by the Interstate Commerce Commission or other federal agencies.

  (18) “Fill-up” means the level to which liquid rises in a well being drilled with air when a fresh or salt water zone is encountered.

  (19) “Free liquid fraction” means fresh water brought to the surface while drilling through strata containing fresh ground water, or fresh water brought to the well site and used in drilling. It may contain drill cuttings, but is not polluted or contaminated by additives, salt water, or oil.

  (20) “Gas” means all natural gas and other fluid hydrocarbons, not defined as oil, that are produced from a natural reservoir.

  (21) “Impermeable” means that the rate of water flow through a material is less than 0.009 centimeter per day.

  (22) “Injection well” means a well used for pumping fluids into a subsurface formation.

  (23) “Killing the well” means overcoming downhole pressure, in a well being drilled, through the use of drilling liquid or water.

  (24) “Log” means a continuous record as a function of depth, usually graphic and plotted to scale on a narrow paper strip, of observations made on the rocks and fluids of the geologic section exposed in a well bore.

  (25) “Lost hole” means a well in which the target could not be reached because of geological or mechanical problems.

  (26) “Mechanical plug” means an expandable device placed in a well to act as a water-tight, oil-tight, and gas-tight seal.

  (27) “Mineral interest owner” means any person who owns a working interest or a royalty interest in the oil or gas, or both, contained in, or produced from, a tract of land.

  (28) “Multiple zone completion” means the completion of a well in two or more separate producing formations with no commingling of the produced oil or gas.

  (29) “Noncementing material” means a mixture of very fine to coarse-grained nonbonding materials, including unwashed crushed stone, drill cuttings, earthen mud, or other equivalent material approved by the Department.

  (30) “Nonporous material” means bentonitic mud, cement, or equivalent materials approved by the Department which will retard the movement of fluids.

  (31) “Nontidal wetland” means those areas defined and regulated under Environment Article, Title 5, Subtitle 9, Annotated Code of Maryland, or COMAR 27.01.01.01B(46).

  (32) “Oil” means crude petroleum oil and other hydrocarbons, regardless of specific gravity, that are produced at the wellhead in liquid form, except liquid hydrocarbons known as distillate or condensate recovered or extracted from gas.

  (33) “Open-flow test” means a measurement of the rate of flow of a gas well when flowing into the air, unrestricted by any pressure other than that of the atmosphere, and usually measured in thousands of cubic feet (Mcf) per day.

  (34) “Operator” means a person who develops, manages, or produces oil or gas.

  (35) “Perforating” means to make holes through the casing opposite the producing zone to allow the oil or gas to flow into the well.

  (36) “Person” means the federal government, the State, a county, municipal corporation, or other political subdivision of the State, or their units, or an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or a partnership, firm, association, public or private corporation, or any other entity.

  (37) “Pit” means an impoundment for the retention of water, drilling liquid, or drill cuttings.

  (38) “Plug” means an expandable device or cement placed in a well to prevent the movement of liquids and gas.

  (39) “Pool” means an underground reservoir containing a common accumulation of oil or gas, or both.

  (40) “Pooled unit” means an area within which permittees of different tracts in the area have voluntarily agreed to participate in a well drilled within the unit.

  (41) “Pressure maintenance” means the injection of liquid or gas into an oil or gas reservoir to increase or maintain reservoir pressure in order to recover additional quantities of hydrocarbons.

  (42) “Producing zone” means the stratum, bed, or formation from which oil or gas enters the well.

  (43) “Recomplete a well” means to seal off one producing zone, and perforate a new producing zone.

  (44) “Re-enter” means to drill out the plugs of an abandoned well in a new effort to establish oil or gas production, or use the well for another purpose.

  (45) “Reservoir” means a natural underground oil or gas bearing formation.

  (46) “Rework” means to perform remedial measures in a well in order to restore oil or gas production that has declined substantially or stopped completely.

  (47) “Royalty interest” means that portion of the mineral interest that is the landowner's share.

  (48) “Seismic operations” means the controlled application of vibratory energy from any source to determine if favorable conditions exist for the subsurface entrapment of oil or gas.

  (49) “Seismic section” means a graphic, near-vertical display of waveform data processed by a computer program to facilitate interpretation of subsurface conditions.

  (50) “Seismic survey” means a planned network or program of seismic operations conducted by one person, one time, under one permit.

  (51) “Shotholes” means drilled holes which are subsequently loaded with explosives whose detonation generates seismic waves during a seismic survey.

  (52) “Shut-in pressure” means the pressure in the well measured at the wellhead in a specified period of time after the valves are closed.

  (53) “Stimulate a zone” means to use techniques such as hydraulic fracturing and acidizing in order to increase oil or gas production from a formation.

  (54) “Surface casing” means the first casing set inside the conductor pipe, which seals off any shallow aquifers and also serves as a foundation for all subsequent drilling activity.

  (55) “Tidal waters” means all waters of the State subject to tidal influence with the landward boundary being coterminous with the wetlands boundary maps adopted under Environment Article, §16-301, Annotated Code of Maryland.

  (56) “Wellhead protection area” means surface and subsurface area surrounding a water well or well field, supplying a public water system, through which contaminants are reasonably likely to move toward and reach the water well or well field.

  (57) “Wildcat well” means an exploratory well drilled for oil or gas on a geologic feature not yet proven to be productive, or in an unproven territory, or to a zone that has never produced or is not known to be productive in the general area.

#### Regulation .02 Accident Notification.

*COMAR 26.19.01.02*

In addition to any other notifications required by law or permit, the permittee shall report to the Natural Resources Police Force 24-hour Communications Section at (410) 974-3181 or (800) 628-9944 immediately, but not later than 2 hours after detection of, any condition such as fires, breaks, leaks, escapes, spills, overflows, or other occurrences that create a safety or pollution hazard. The permittee shall remain available until clearance to leave is given by the appropriate officials designated by the Department.

#### Regulation .03 Seismic Permit Application Procedures.

*COMAR 26.19.01.03*

A. A person may not conduct seismic operations in the State without obtaining a seismic permit from the Department.

B. A seismic permit may not be transferred or renewed without written permission of the Department.

C. Application Procedures for an Applicant.

  (1) A seismic permit application shall be:

    (a) On a form provided by the Department;

    (b) Completed and signed by the seismic contractor or the contractor's authorized agent.

  (2) The seismic permit application shall include:

    (a) The name, address, and telephone number of the applicant's resident agent;

    (b) U.S. Geological Survey 7.5-minute topographic maps, hydrographic charts, or copies, showing the location of seismic lines;

    (c) Certification that State and county permit and bond requirements have been met for any seismic operations;

    (d) A statement, on a form provided by the Department, signed by an affected property owner providing the permittee with the right of entry to conduct seismic operations;

    (e) Authorization, on a form provided by the Department, signed by property owners who can grant legally binding rights of entry to the property authorizing representatives of the Department to enter their private property for the purpose of inspecting seismic operations that are ongoing or have been conducted on the property;

    (f) A reclamation plan detailing how any area disturbed by the seismic operation will be restored;

    (g) A certificate of insurance showing personal injury and property damage liability coverage of not less than $1,000,000 for each person and $5,000,000 for each occurrence or accident; and

    (h) A specific calendar schedule for the proposed operation which prohibits any in-stream work during the spawning season of anadromous fish.

  (3) Applications for permits to conduct seismic operations on the waters of Chesapeake Bay and its tidal tributaries shall be accompanied by a written agreement to provide the Department with processed seismic sections as soon as these sections are available, but not more than 1 year after field operations are completed.

  (4) The applicant shall provide additional information considered necessary by the Department to process the permit.

  (5) A request for modification of the activities approved under the seismic permit shall be submitted to the Department in writing, and shall be approved by the Department before the person conducts the modified seismic operation.

D. Application Processing Procedures for the Department.

  (1) The Department shall review the application to determine whether it contains all of the required information.

  (2) If the required information is not included, the Department shall advise the applicant by written or oral communication that it is incomplete, and may suspend processing pending receipt of deficiencies.

  (3) The Department may deny a permit if the:

    (a) Applicant does not submit the information required by the Department;

    (b) Proposed activity poses a substantial risk of causing environmental damage that cannot be mitigated by the applicant such as that set forth in Environment Article, §14-109(b)(6)(ii), Annotated Code of Maryland;

    (c) Proposed operation will violate these regulations.

  (4) If the Department's decision is to deny the permit, a notification of denial shall state the reasons for denial, modifications, if any, necessary for approval of the application, and the hearing rights as provided in Regulation .07E of this chapter.

  (5) Information contained in the application and accompanying documents and required reports shall be available to the public, except for confidential geological and geophysical information protected under State Government Article, §10-617, Annotated Code of Maryland.

  (6) The Department may include special provisions or modify conditions in the permit for environmental, safety, or other relevant reasons.

  (7) The seismic permit is valid for 12 months from the date of issuance.

  (8) In addition to any other remedies provided by law, after notice to the permittee and the opportunity for a hearing, the Department may revoke a seismic permit if the permittee has failed to comply with any applicable law, regulation, or condition of the permit.

#### Regulation .04 Use of Explosives in Seismic Operations.

*COMAR 26.19.01.04*

A. Persons using explosives in seismic operations shall comply with all applicable local, State, and federal laws and regulations that control the handling or detonation of explosive materials.

B. The use of explosives in seismic operations on or in the waters of the Chesapeake Bay and its tributaries is prohibited.

C. Use of explosives shall be conducted by a person licensed to handle explosives under Article 38A, §§28 and 29, Annotated Code of Maryland.

D. The use of explosives shall be conducted in a manner not to cause injury to persons, damage to public or private property, adverse impacts on an underground mine, or to bring about any change in the course, current, channel, or availability of ground or surface waters.

E. The use of explosive charges on elevated poles as an energy source, referred to as the Poulter method, or with the charges laid on the surface of the ground, is prohibited.

F. After explosives are loaded into shotholes, the explosives handler shall keep the loaded holes under surveillance until the charges are detonated.

G. Additional safety measures are to be observed as follows:

  (1) Explosives in a shothole may not be detonated unless the explosives handler determines that the area is clear and safe to proceed;

  (2) Explosives may not be left in a shothole overnight;

  (3) Seismic operations that use explosives shall be conducted only during daylight hours, and the Department may impose a more restrictive time period.

H. Additional blasting restrictions include the following:

  (1) The permittee shall obtain written approval from the Department before blasting within 500 feet of any occupied dwelling, commercial building, school, church, or hospital;

  (2) The Department may require a seismographic record of any blast; and

  (3) The Department may prohibit blasting in specific areas, if necessary, for public safety.

#### Regulation .05 Completion of Seismic Permit Operations.

*COMAR 26.19.01.05*

A. Within 30 days after the completion of seismic work, the permittee shall notify the Department of the status of the operation in writing.

B. Reclamation work shall be completed within 30 days of the completion of seismic work as required by the permit.

#### Regulation .06 Drilling and Operating Permit Application Procedures for the Applicant.

*COMAR 26.19.01.06*

A. A person proposing to conduct any of the following operations to obtain or increase the production of oil or gas within the State shall first obtain a drilling and operating permit from the Department before the person:

  (1) Prepares a well site for the operation;

  (2) Drills a well for oil or gas;

  (3) Redrills at a location previously permitted;

  (4) Deepens an existing well drilled for oil or gas;

  (5) Drills a core hole or stratigraphic test; or

  (6) Drills a well for the storage of natural gas or the observation of the storage of natural gas.

B. A person continuously operating or producing an oil well, a gas well, or a gas storage well before July 1, 1991 shall obtain a new drilling and operating permit within 12 months of the effective date of this regulation.

C. An application for a new drilling and operating permit shall be submitted to the Department on forms provided by the Department and shall contain the following:

  (1) The names, addresses, business status, and telephone numbers of the applicant, operator, and resident agent;

  (2) A plat prepared and certified by a Maryland licensed professional land surveyor or property line surveyor containing the information required in §E of this regulation;

  (3) An environmental assessment;

  (4) A certificate of liability insurance showing personal injury and property damage liability coverage in the name of the permittee of at least $1,000,000 for each person and $5,000,000 for each occurrence or accident, or proof of self-insurance that is in a form acceptable to the Department under the following criteria:

    (a) The applicant has been in continuous operation as a business entity for not less than 5 years, with “continuous operation” meaning that the business was conducted over a period of 5 years immediately preceding the time of application,

    (b) The applicant has a current rating for its most recent bond issuance of “AA” or higher as issued by either Moody's Investor Service or Standard and Poor's Corporation,

    (c) The applicant's fixed assets in the United States total at least $20,000,000, and the applicant has a ratio of total liabilities to net worth of 2.5 times or less, and a ratio of current assets to current liabilities of 1.2 times or greater,

    (d) The applicant submits financial statements for the most recently completed fiscal year accompanied by a report prepared by an independent certified public accountant in conformity with generally accepted accounting principles, and containing the accountant's audit opinion or review opinion of the financial statements that contain no adverse opinion;

  (5) A performance bond conditioned on compliance with Environment Article, §§14-101—14-120, Annotated Code of Maryland, this chapter, and the permit issued under this chapter, and which shall be:

    (a) Made payable to the Department in an amount not to exceed $100,000 per well, or not to exceed $500,000 as a blanket bond for all of the applicant's wells, and

    (b) In the form of irrevocable letters of credit payable to the State from any bank within the State, or a surety bond issued by an insurance company authorized to do business in the State;

  (6) A copy of the oil and gas lease that gives the permittee the right to enter and drill at the location shown on the plat, and if the mineral rights have been severed, a copy of the right of entry agreement with the surface owner;

  (7) If a pooled unit, copies of all leases in the unit which shall accompany the application showing the right to pool interests;

  (8) A copy of an agreement signed by the applicant and the landowner stating that the Department may enter the land, after making a reasonable effort to notify the permittee, the owner, or any subsequent owners, at any reasonable time during the term of the permit and until the performance bond is released;

  (9) Certification by the applicant that the applicant has notified, in writing, each landowner and leaseholder of real property that borders the proposed drillable lease area of the applicant's intention to file an application for permit to drill a well;

  (10) Notification to owners or leaseholders of property within 2,000 feet of a well proposed in an underground storage reservoir that existed on July 1, 1990;

  (11) Written approval by the local zoning authority that all local planning and zoning requirements have been met;

  (12) A sediment and erosion control plan approved by the Department of the Environment, or the appropriate soil conservation district;

  (13) A stormwater management plan approved by the Department of the Environment or delegated county agency;

  (14) A reclamation plan for restoring the well site that includes the criteria stated in §F of this regulation;

  (15) A pit design plan that will prevent any drilling liquid from coming into contact with any waters of the State;

  (16) A spill prevention, control, and countermeasures plan in accordance with 40 CFR 112;

  (17) A statement listing all equipment available for the detection, prevention, and containment of gas leaks and oil spills;

  (18) A statement listing all other federal, State, county, and local permits and approvals required, and the status of each; and

  (19) Other relevant materials and documents considered necessary by the Department.

D. When an applicant seeks to directional drill, the applicant shall state the:

  (1) Reason for the proposed directional drilling;

  (2) Depth at which deviation from the vertical is planned; and

  (3) Horizontal distance and direction of the planned objective with reference to the surface location.

E. Drilling and Operating Permit Plat.

  (1) The plat or plats shall be drawn in ink on polyester drafting film or similar base-stable material at a scale of 1 inch equals 600 feet.

  (2) Information Required to be Included in Plat.

    (a) The plat or plats shall include the following information prepared by a licensed land surveyor:

      (i) The proposed well location;

      (ii) If directional drilling is proposed, both the surface location and the proposed bottom-hole location shall be shown;

      (iii) At least two permanently established property tract boundary corners, with bearings and distances to the proposed well established by an on-ground survey;

      (iv) Boundaries of the lease or pooled unit containing the well location, with individual lease boundaries within a pooled unit being shown by an on-ground survey, deed calls, or tax map references;

      (v) Boundaries of adjoining properties with names and addresses of fee owners, surface owners, mineral owners, and oil and gas lessees;

      (vi) All plat lines actually surveyed shall be shown with solid lines, and lines taken only from deed descriptions or tax maps shall be shown by broken lines;

      (vii) Ownership and lease information may be based upon current tax records or land record indexes.

    (b) The applicant may list ownership and lease information on a supplemental list indexed to the tracts on the plat.

    (c) The plat or plats shall include the following information obtained from the best available sources:

      (i) Active oil and gas drilling, production wells, abandoned wells, storage wells, and injection wells within 2,640 feet of the proposed well location;

      (ii) Water wells within 2,640 feet of the proposed well location;

      (iii) Churches, schools, buildings, and occupied dwellings within 2,640 feet of the proposed well location;

      (iv) Any part of the Chesapeake Bay Critical Area, 100-year floodplain as established by the Federal Emergency Management Agency flood insurance rate maps, nontidal wetlands, streams, or other bodies of water within 1 mile of the proposed well;

      (v) Roads, railroads, and other transportation routes within 2,640 feet of the proposed well;

      (vi) Location of active and abandoned underground coal mines and workings within 1 mile of the proposed well;

      (vii) Superimposed on the plat, the same proposed well location (both surface and bottom hole locations, if the well is to be directionally drilled) marked with a cross and plotted at the topographic quadrangle map scale of 1 inch equals 2,000 feet, showing distances in feet from the proposed well location to the nearest 2.5 minutes of latitude and longitude to the northeast, as represented at the upper right hand corner of the plat; and

      (viii) A legend identifying the different types of wells and other features shown on the plat.

F. Drilling and Operating Reclamation Plan.

  (1) The reclamation plan shall describe how roads, well sites, and pits will be reclaimed.

  (2) The reclamation plan shall include a:

    (a) Proposed time schedule for each major step in the reclamation plan;

    (b) Description of measures to be employed to dispose of debris, acid-forming and toxic-forming materials, and materials constituting a fire hazard, and a description of the contingency plans which have been developed to preclude sustained combustion of these materials;

    (c) Plan for backfilling, soil stabilization, compacting, grading, and controlling surface drainage following regrading, with contour maps at a scale of 1 inch equals 50 feet and cross sections that show the existing slope and the anticipated final surface configuration of the proposed permit area;

    (d) Plan for removal, storage, and redistribution of topsoil, subsoil, or other materials, and revegetation to protect the site from erosion;

    (e) Description, including appropriate cross sections and maps, of the measures to be used to plug, case, or manage exploration holes, other bore holes, wells, and other openings within the proposed permit area;

    (f) Description of how the free liquid fraction and contaminated materials will be disposed of in accordance with requirements of the Department;

    (g) Plan for disposing of the cuttings by:

      (i) Land farming into those areas of disturbance,

      (ii) Transporting to an approved disposal facility, or

      (iii) Other methods of disposal as approved by the Department; and

    (h) Plan for eliminating the impermeability of the pit at approximately 10-foot intervals to allow water percolation.

#### Regulation .07 Drilling and Operating Permit Application Review Procedures for the Department.

*COMAR 26.19.01.07*

A. Following receipt of a permit application, the Department shall conduct a review for completeness and notify the applicant of any application deficiencies.

B. When the Department determines that all information is included and in proper form, it shall notify the applicant that the application is considered complete and provide for public involvement in the Department's review by the following means:

  (1) The Department shall publish notice of the application once a week for 2 consecutive weeks in a newspaper of general circulation in the county where the proposed permit activity would occur;

  (2) The applicant shall pay all costs associated with publishing notice of the application;

  (3) The published notice of the application shall provide an opportunity to request a public informational hearing on the application;

  (4) Following publication of the notice of the application, a person interested in the pending application for a drilling and operating permit may request that the Department schedule a public informational hearing;

  (5) If the Department receives a request for an informational hearing, a hearing shall be held within 45 calendar days, unless extenuating circumstances justify an extension of time;

  (6) The Department shall publish notice of the public informational hearing once a week for 2 consecutive weeks in a newspaper of general circulation in the county where the proposed permit activity would occur.

C. The Department's decision to grant or deny a drilling or operating permit may be issued not later than 30 calendar days after the close of the record for the public informational hearing.

D. The Department shall mail written notice of the decision to grant or deny the permit to:

  (1) The applicant;

  (2) Participants at a public informational hearing on the application;

  (3) Persons who comment on the application; and

  (4) All landowners, royalty owners, and owners of mineral, oil, and gas rights within 1,000 feet of the proposed well.

E. Upon written request received within 30 calendar days following notice of a permit decision, the Department shall hold a contested case hearing if the Department determines that:

  (1) A hearing requestor has a specific right, duty, privilege, or interest which is or may be adversely affected by the permit decision;

  (2) The requestor raises adjudicable issues which are within the scope of Environment Article, §14-101—14-120, Annotated Code of Maryland; and

  (3) The request is timely.

F. Upon written motion by a party to a contested case hearing, the Department may grant a temporary stay of activity under the permit pending a final decision in the contested case, provided that the:

  (1) Parties to the proceeding have been notified and given an opportunity to be heard on a request for the temporary stay;

  (2) Person requesting the temporary stay shows that there is a substantial likelihood of prevailing on the merits of the final determination of the contested case proceeding;

  (3) Temporary stay does not adversely affect the public health or safety or cause significant imminent environmental harm to natural resources; and

  (4) Conditions and criteria for granting a temporary stay exist as provided in COMAR 08.01.04.

#### Regulation .08 Review Procedures for Drilling and Operating in the Chesapeake Bay Critical Area.

*COMAR 26.19.01.08*

A. Following receipt of a permit application for a project located in the Chesapeake Bay Critical Area, the Department shall send a copy of the permit application and all accompanying documents to the Chesapeake Bay Critical Area Commission for review and recommendations.

B. The Chesapeake Bay Critical Area Commission shall submit written recommendations on the application to the Department within 150 days of receipt of the application and accompanying documents.

C. Following receipt of the recommendations by the Chesapeake Bay Critical Area Commission on the application, the Department shall adopt, to the maximum extent permitted by law, permit conditions recommended by the Chesapeake Bay Critical Area Commission.

#### Regulation .09 Criteria for Approval of Drilling and Operating Permit.

*COMAR 26.19.01.09*

A. The Department may not issue a drilling and operating permit for drilling in the waters or tributaries of the Chesapeake Bay.

B. The Department may not issue a drilling and operating permit to drill in the Chesapeake Bay Critical Area unless the applicant has obtained written approval from the Critical Area Commission.

C. Except as provided in §D of this regulation, the Department may not issue a permit to drill a well closer than 1,000 feet to the boundary of any property adjoining the tract on which the well is situated except by written agreement with the landowners and royalty owners of that property.

D. The Department may issue a permit to drill a well closer than 1,000 feet to a well site tract boundary or pooled unit boundary if:

  (1) The Department determines that a well location at a distance less than 1,000 feet to adjacent lands is necessary due to site constraints; and

  (2) The applicant has notified all landowners and royalty owners within 2,000 feet of the proposed well by registered mail, return receipt requested, of the location of the proposed well.

E. The Department may not issue a permit to drill and complete a gas well closer than 2,000 feet to an existing gas well in the same reservoir unless the Department is provided with credible geologic evidence of reservoir separation to warrant granting a spacing exception.

F. The Department may not issue a permit to drill and complete an oil well closer than 1,320 feet to an existing oil well in the same reservoir unless the Department is provided with credible geologic evidence of reservoir separation to warrant granting a spacing exception.

G. The Department may not issue a drilling and operating permit if the well location is closer than 1,000 feet to a school, church, drinking water supply, wellhead protection area, or an occupied dwelling unless written permission of the owners is submitted with the application and approved by the Department.

H. The Department may deny a drilling and operating permit if the Department determines that the proposed drilling or well operation poses a substantial threat to public safety or a risk of environmental damage particularly to:

  (1) The Chesapeake Bay Critical Area;

  (2) Tidal or nontidal wetlands;

  (3) Endangered or threatened species, or species in need of conservation or their habitat;

  (4) Historic properties as provided for in Article 83B, §5-618, Annotated Code of Maryland; or

  (5) Populated areas.

I. The Department may issue a permit for directional drilling when:

  (1) It is necessary to protect specific features including:

    (a) A water body;

    (b) Chesapeake Bay Critical Area;

    (c) A park;

    (d) A building;

    (e) A highway, or other developed or natural features; or

  (2) Required for proper geologic evaluation.

J. The Department may not issue a drilling and operating permit when the proposed drilling or well operation would result in physical and preventable loss of oil and gas through inefficient or careless operating practices, such as:

  (1) Operating or producing any oil or gas well in a manner that would result in a reduction of the ultimate quantity of oil or gas to be recovered from a pool;

  (2) Inefficient storing or improper handling of oil causing excessive evaporative loss, spillage on the surface, or leakage into the subsurface;

  (3) Producing oil or gas in a manner causing unnecessary water channeling or coning;

  (4) Permitting gas produced from a gas well to escape into the air;

  (5) Flaring of gas from a well producing both oil and gas; or

  (6) Creating fire hazards.

K. The Department may issue a permit limited to exploration for operations determined to be a wildcat well and may deny production until additional data is submitted and approved including:

  (1) An impact analysis of production operations to the surrounding area;

  (2) A waste disposal plan; and

  (3) A transportation plan for the produced product.

#### Regulation .10 Drilling and Operating Requirements and Permit Conditions.

*COMAR 26.19.01.10*

A. The permit shall contain an effective date and an expiration date, and shall be valid for a period not to exceed 5 years.

B. The permit shall be renewed by the Department upon written application by the permittee not less than 2 weeks before expiration unless:

  (1) The information required by this regulation is not submitted;

  (2) Any of the reasons for denial listed in Environment Article, §4-109(b)(6), Annotated Code of Maryland, apply.

C. The permit shall require that the well site be posted with a sign:

  (1) Having letters at least 1 inch high;

  (2) Indicating the name of the permittee, the name of the lessor or landowner, and the Department and American Petroleum Institute well identification numbers;

  (3) Indicating phone numbers for the permittee and regulatory agencies required to be contacted in the event of an emergency at the site;

  (4) Posted in a prominent place as directed by the Department; and

  (5) Kept in good condition.

D. A copy of the drilling and operating permit, including any special provisions, shall be maintained at the well site from the time work begins until drilling and reclamation operations are completed.

E. Wells shall be drilled with rotary tools unless special approval to drill by cable tool is obtained in writing from the Department.

F. Drilling liquid may be required when there is insufficient geological data to safely drill with air as the circulating medium.

G. The drilling liquid used shall be conditioned and tested daily to assure it is capable of:

  (1) Sealing off each oil, gas, salt water, or fresh water zone to be encountered; and

  (2) Exerting pressure in excess of those anticipated by the operator in any formation to be penetrated.

H. Except in emergency situations, additives to drilling liquids are not permitted without approval of the Department.

I. When air is permitted as the circulating medium, sufficient liquid shall be available at the site at all times to kill any flow from the well.

J. Pits or tanks shall be used to contain or condition liquids used in drilling or killing the well and shall be designed and constructed to:

  (1) Have sufficient capacity to contain all liquid and solid substances used or produced during drilling, completing, and plugging the well, and to provide for containment of emergency overflow;

  (2) Have at least 2 feet of freeboard at all times;

  (3) Be at least 1 foot above the ground water table;

  (4) Be impermeable;

  (5) Allow no liquid or solid discharge of any kind into the waters of the State;

  (6) Provide for diverting surface runoff from pits.

K. Dikes associated with pits shall be:

  (1) Constructed of compacted material, free of trees and other organic material, and essentially free of rocks or any other material which could affect their structural integrity;

  (2) Maintained with a slope that shall preserve their structural integrity;

  (3) Constructed and maintained in accordance with the current Maryland Standards and Specifications for Soil Erosion and Sediment Control, which is incorporated by reference in COMAR 26.17.01.11.

L. Pits may not be used for the retention or disposal of trash or garbage not associated with drilling fluids.

M. The permit shall specify that the Department has the authority to visit and inspect the permitted operation.

N. The permit shall specify that it is the permittee's responsibility to prove the accuracy of the oil and gas meters.

O. When actual drilling begins, the permittee shall:

  (1) Notify the Department at least 72 hours before beginning;

  (2) Collect samples of drill cuttings for the Department's use as directed in the drilling and operating permit;

  (3) Conduct an electrical induction and gamma ray log to determine depth of fresh water zones;

  (4) Run and permanently cement a string of surface casing in the hole to a depth which is at least 100 feet below the deepest known strata bearing fresh water, or the deepest known workable coal, whichever is deeper.

P. The surface casing cement shall be:

  (1) Circulated in the annular space outside the casing in a volume required to return to the surface to completely fill the annular space unless otherwise approved by the Department;

  (2) American Petroleum Institute Class A ordinary portland cement with not more than 3 percent calcium chloride and no other additives, unless the Department approves a different cement type in advance; and

  (3) Allowed to set at static balance or under pressure for a minimum of 12 hours before drilling the plug.

Q. Blowout prevention equipment shall be:

  (1) Installed before drilling the plug on the surface casing;

  (2) Tested to a pressure in excess of that which may be expected at the production casing point before:

    (a) Drilling the plug on the surface casing, and

    (b) Penetrating the target formation; and

  (3) Tested on a weekly basis according to standard operating practice.

R. The permittee shall maintain, at the site, a driller's log book that includes a:

  (1) Record of each pressure test and each mechanical test of:

    (a) Casings,

    (b) Blowout preventers,

    (c) Surface connections,

    (d) Fittings, and

    (e) Auxiliary wellhead equipment; and

  (2) Daily record of:

    (a) Footage drilled,

    (b) Hole size, and

    (c) Accidents.

S. If other strings of casing, in addition to surface casing, are run in the hole, they shall be:

  (1) Of a type and weight sufficient for the depth and pressure expected;

  (2) Cemented with sufficient cement circulated in the annular space to provide an effective seal above any producing zone;

  (3) Properly pressure tested;

  (4) Allowed to set a minimum of 12 hours before operations continue.

T. When a drilling and operating permit authorizes directional drilling, a complete angular deviation and directional survey of the well shall be made to determine the exact course of the directionally drilled hole following the completion of drilling, and before setting the final string of casing.

U. In anticipation of vertical hole deviation, the permittee shall:

  (1) Select a surface location that provides a reasonable allowance for the bottom hole location to meet the minimum spacing requirements in Regulation .09 of this chapter;

  (2) Estimate the probable direction and extent of the deviation when making application for a drilling and operating permit;

  (3) Make periodic surveys to determine amount and direction of deviation during drilling to verify the accuracy of the estimate, with the results of the deviation surveys included in the weekly depth report to the Department.

V. Within 30 days after the drilling, stimulating, and testing of a well are completed, a completion report of the well shall be submitted to the Department. Except for confidential geological and geophysical information protected under State Government Article, §10-617, Annotated Code of Maryland, information contained in the completion report and accompanying documents shall be available to the public. The report shall be on a form furnished by the Department and shall include:

  (1) Depth at which any fresh water inflow was encountered;

  (2) Lithology of penetrated strata, including color;

  (3) Total depth of the well;

  (4) A record of all commercial and noncommercial oil and gas encountered, including depths, tests, and measurements;

  (5) A record of all salt-water inflows;

  (6) A record of all casing used, including:

    (a) Size, weight, amount, and depth set;

    (b) Amount of cement used on each casing string;

    (c) Amount of casing recovered from the hole if the well was abandoned;

  (7) Generalized core descriptions, including:

    (a) The type and depth of sample;

    (b) Indications of oil, water, or gas;

    (c) Estimates of porosity and permeability; and

    (d) Percent recovery;

  (8) Existing data on perforating, stimulating, and testing, including open-flow tests and shut-in pressures;

  (9) Existing data on bridge plugs set, make and type of plug, depth plug was set, whether plug was left in place or removed, and details of the plug-back operation below the bridge;

  (10) A copy of all electric, radiation, sonic, caliper, directional, and any other type of logs run in the well; and

  (11) The date on which verbal approval was obtained from the Department to plug the hole as a dry hole in a continuous progression from drilling or reworking.

W. Land farming of cuttings shall be permitted only on approval from the Department and shall require:

  (1) Soils analysis before site preparation;

  (2) Cuttings analysis as directed by the Department; and

  (3) Post land farming soils analysis.

X. A completed oil and gas well shall be:

  (1) Equipped with wellhead controls adequate to control the flow; and

  (2) Secured to prevent unauthorized access.

Y. The permittee shall file, on a form provided by the Department, a monthly report of oil and gas production from each well with the Department before the end of the succeeding month, regardless of the status of the well.

Z. The Department may modify requirements of a drilling and operating permit or include special provisions or conditions in the permit for environmental, safety, and other sufficient reasons.

#### Regulation .11 Oil and Gas Correlative Rights.

*COMAR 26.19.01.11*

A. Unless the drilling and operating permit provides for controlled directional drilling or estimated natural deviation, a well may not vary more than 3 degrees from the vertical.

B. If a permittee needs to deviate more than 3 degrees from the vertical, the permittee shall notify the Department. Deviations larger than 3 degrees from vertical may be permitted by the Department in order to straighten the hole, sidetrack impenetrables, or to correct other mechanical difficulties, if correlative rights are not in dispute.

C. The Department may require the deviation to be less than 3 degrees to protect correlative rights.

D. The Department shall have the right to require the permittee to run a complete angular deviation and directional survey by a company knowledgeable about downhole surveys in directionally drilled wells at the permittee's sole cost and risk.

E. If an angular deviation and directional survey verifies violations of the approved well location or spacing requirements, the Department may require the well to be redrilled or plugged and abandoned.

#### Regulation .12 Requirements for Plugging of Oil or Gas Wells.

*COMAR 26.19.01.12*

A. Upon the abandonment or ending of operation of any dry hole, gas or oil well, storage well, pressure maintenance well, or stratigraphic well, the permittee shall plug the hole.

B. The permittee shall notify the Department at least 72 hours before plugging operations.

C. A dry hole shall be plugged within 60 days of completion of the well or before removal of the drill or completion rig, whichever occurs first.

D. An oil or gas well shall be plugged within 60 days after primary production has stopped for 12 consecutive months.

E. The Department may grant an extension of time to begin plugging operations upon written request of the permittee, if the Department determines that the request is reasonable.

F. Surface casing may not be recovered at any location, except by written approval of the Department.

G. After plugging a well, the permittee shall erect a permanent marker over the plugged well which:

  (1) Consists of a length of pipe with a minimum diameter of 6 inches, filled with concrete;

  (2) Extends at least 30 inches above the surface;

  (3) Extends at least 10 feet into the well and is set in concrete; and

  (4) Has the Department and American Petroleum Institute well identification numbers stamped or welded on the marker in a permanent manner.

H. Upon written request by the permittee or by the surface owner, the Department may allow an offset marker to replace the marker over a plugged well if the wellhead marker interferes with subsequent activities such as agriculture or construction.

I. The area immediately around the surface casing and conductor pipe shall be permanently filled to the surface with nonporous material to keep surface water from entering the well bore.

J. For wells in noncoal areas, the permittee shall plug the well as follows:

  (1) If total depth is deeper than the cemented production casing seat, as in an open hole completion, that part of the well shall be filled with cement to a point 50 feet above the top of the uncased portion of the hole;

  (2) In the cemented part of the production casing, cement plugs shall be set to extend from at least 50 feet below the base of each oil, gas, or water-bearing zone to a point at least 100 feet above the top of the zone;

  (3) A mechanical plug, set at least 20 feet above the oil, gas, or water-bearing zone after filling the hole to that point with nonporous material, may be used instead of a cement plug;

  (4) When multiple oil, gas, or water zones occur within 500 vertical feet of one another, they may be treated as one zone for plugging, unless one zone has greater than hydrostatic pressure;

  (5) Following the plugging of the cemented portion of the production casing, the uncemented portion of the production casing may be separated from the cemented portion and recovered;

  (6) A cement plug shall be set 50 feet below and 50 feet above the point of casing separation;

  (7) If the uncemented portion of the production casing cannot be recovered, oil or gas zones behind the casing shall be plugged by perforating the casing and squeezing cement into the annular space;

  (8) If the production casing is not set, a cement plug shall be set at least 50 feet below and 50 feet above each oil, gas, or water-bearing zone;

  (9) A cement plug shall be set at least 50 feet below and 50 feet above the base of the surface casing;

  (10) A cement plug of at least 50 vertical feet shall be placed in the top of the well;

  (11) After placing the top plug, the operator may be required to cut the casing below plow depth to prevent interference with any subsequent agricultural activities;

  (12) Nonporous material shall be placed in all portions of the well between cement plugs.

K. If total depth cannot be reached in plugging a well with or without cemented production casing, the permittee shall obtain written permission of the Department for an alternate means to plug the well.

L. If a mineable coal seam greater than 1 foot in thickness is encountered in the drilling of a well, the permittee shall contact the Department to obtain additional plugging instructions.

M. An affidavit certifying that the well was plugged according to plans approved by the Department shall be submitted by the permittee within 30 days after the plugging of the well.

#### Regulation .13 Oil and Gas Bond Performance and Release Procedures.

*COMAR 26.19.01.13*

A. The liability on the performance bond required in Regulation .06C(5) of this chapter is conditioned on compliance with the law, regulations, permit, orders of the Department, and the regulations and approvals, if any, of the Critical Area Commission under COMAR 27.01 and shall continue until the:

  (1) Ownership of the well has changed and the permits have been transferred, with Departmental approval, at which time the seller's bond shall be released;

  (2) Department has approved the:

    (a) Physical plugging of the well;

    (b) Reclamation of the well site;

    (c) Receipt of all logs, plugging records, and samples, and

    (d) Performance of all requirements of these regulations and the drilling and operating permit; or

  (3) Drilling and operating permit terminates because drilling was not started within 18 months, and the Department approves the reclamation of the site.

B. A bond or other security shall contain a provision that it cannot be cancelled by the surety, bank, or other issuing entity except after not less than 90 days written notice to the permittee and Department. At least 45 days before the cancellation date indicated in the notice, the permittee shall file with the Department a commitment from a surety, bank, or other issuing entity, to provide a substitute bond or other security which shall be effective on the cancellation date indicated in the notice.

C. The permittee may apply for bond release from the Department upon meeting all the requirements of these regulations and the drilling and operating permit.

D. Upon written request by the permittee, the Department shall notify the surety and the principal by U.S. mail when the liability under the bond has been terminated.

E. The performance bond shall be forfeited on failure of the permittee to perform in a manner set forth in the authorized drilling and operating permit and the reclamation plan, or upon revocation of the permit.

F. The Department shall notify the permittee by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, of its intention to initiate a forfeiture proceeding.

G. Following receipt of the forfeiture notice by the permittee, the permittee has 30 days to show cause why the bond should not be forfeited.

H. On the permittee's showing of cause, the Department shall provide sufficient time for the permittee to comply with all permit conditions.

I. On failure of the permittee to show cause, the bond shall be forfeited nisi, and notice by the Department shall be given by certified mail, return receipt requested, to the permittee and surety of the forfeiture.

J. If the permittee fails to comply with the permit conditions following forfeiture nisi within the time period set by the Department, the bond shall be forfeited absolute.

K. On an absolute forfeiture, the Department shall use the funds made available by the forfeiture to complete abandonment procedures and reclaim the area authorized by the drilling and operating permit.

#### Regulation .14 Modification, Termination, or Transfer of Drilling and Operating Permits.

*COMAR 26.19.01.14*

A. A person holding a valid drilling and operating permit, and who proposes to conduct any of the following operations in an effort to obtain or increase the production of oil or gas within the State, shall obtain a modification of the drilling and operating permit from the Department before the person:

  (1) Recompletes a well in a different reservoir or formation;

  (2) Recompletes a well to commingle production from two or more reservoirs within the same formation;

  (3) Stimulates a zone that has been in production;

  (4) Deepens a well;

  (5) Skids a drill rig 75 feet or less; or

  (6) Converts from one type of well to another.

B. A drilling and operating permit terminates 18 months after the date of issuance, if the proposed drilling has not started.

C. A drilling and operating permit may be transferred or assigned with prior written approval by the Department, and the posting by the acquiring party of a performance bond and insurance which meets the requirements of Regulation .06C(4) and (5) of this chapter.

D. The transfer or assignment of a drilling and operating permit shall be on a form provided by the Department, signed by both the transferor and the recipient, which contains provisions that the recipient acknowledges:

  (1) Full awareness of the obligations, costs, and liabilities in performing reclamation, plugging, and other requirements of the drilling and operating permit and any other permit associated with the well; and

  (2) The obligation to fulfill all requirements of the permit and this chapter regardless of whether the transferor or assignor started the activity, or failed to properly perform the requirements before the transfer or assignment.

#### Regulation .15 Violations of Statutory, Regulatory, or Permit Requirements.

*COMAR 26.19.01.15*

A. A person who violates or causes an act which violates a provision of Environment Article, §§14-101—14-120, Annotated Code of Maryland, and this chapter, or who violates or fails to comply with a permit or an order of the Department when due notice is given, is guilty of a misdemeanor, and, upon conviction, the violator is subject to a fine not exceeding $1,000 per day for each day of the offense, not to exceed a total fine of $50,000, with costs imposed at the discretion of the court.

B. If the Department determines that there has been a violation of a provision of Environment Article, §§14-101—14-120, Annotated Code of Maryland, and this chapter, or a violation or failure to comply with a permit issued under this chapter, the Department may cause a written complaint to be served upon the alleged violator specifying the nature of the violation.

C. After or concurrent with service of the complaint, the Department may:

  (1) Issue an administrative order requiring necessary corrective action, including stopwork, or restoration to be taken within the time prescribed and providing the alleged violator with the opportunity to request a hearing before the Department within 10 days after receipt of the order;

  (2) Require the alleged violator to file a written report regarding the alleged violation;

  (3) Require the alleged violator to appear before the Department at a time and place the Department specifies to answer the charge outlined in the complaint.

D. An order the Department issues shall be served on the alleged violator personally or by registered mail, return receipt requested.

E. Upon failure by the alleged violator to comply with the requirements of an administrative order, a permit may be modified or suspended by the Department.

F. Modification or suspension of a permit shall be effective without stay upon appropriate notice to the alleged violator.

G. An administrative action or a permit suspension or modification may not be stayed pending a hearing.

H. Under emergency conditions, such as violation or imminent violation of an applicable State requirement, a permit may be modified or suspended.

I. The Department may inspect a permitted site at any time in order to determine whether conditions of the permit have been satisfied or whether the permit should be modified, suspended, or revoked.

J. A permit may be revoked after notice to the permittee, if the Department determines that:

  (1) The permittee has failed to comply with the requirements of an administrative order;

  (2) False or inaccurate information was contained in the application for the permit;

  (3) Conditions or requirements of the permit have been or are about to be violated;

  (4) Substantial deviation from plans, specifications, or requirements has occurred;

  (5) The permittee has failed to allow an authorized representative of the Department upon presentation of proper credentials to:

    (a) Enter at any reasonable time upon the permittee's premises where pertinent operations are conducted, or where records are required to be kept under terms and conditions of the permit;

    (b) Have access to and copy any records required to be kept under terms and conditions of the permit;

    (c) Inspect facilities to ensure compliance with the conditions of the permit;

    (d) Inspect any monitoring equipment or method required in the permit; or

  (6) A change in conditions exists that requires temporary or permanent modification or elimination of the permitted operation.

K. The permittee has 10 calendar days to request a hearing, in writing, on the permit revocation to determine if the permit shall be reinstated.

L. The provisions of this regulation may not be construed to limit or otherwise affect the authority of the Department to proceed against violators under State law.

### Chapter 02 — Natural Gas Category Determination Under the Natural Gas Policy Act of 1978

**Authority:** Environment Article, §14-103, Annotated Code of Maryland

**Administrative History:** Effective date: November 25, 1991 (18:23 Md. R. 2487)

**Administrative History:** Chapter recodified from COMAR 08.10.02 to COMAR 26.19.02, June 1996

#### Regulation .01 Category Determination Application Procedures for the Applicant.

*COMAR 26.19.02.01*

A. A person seeking a determination that natural gas meets the requirements under the Natural Gas Policy Act of 1978, §102, 103, 107, or 108 (15 U.S.C. §§3312, 3313, 3317, and 3318) shall submit to the Department:

  (1) An original and two complete copies of an application, on forms provided by the Department, containing all the information required to be filed under 18 CFR 274;

  (2) When an application for a category determination is sought for natural gas for which the applicant has an identified purchaser, a statement included in the application that the applicant has delivered or mailed a copy of the completed Federal Energy Regulatory Commission Form No. 121 to the purchaser;

  (3) A copy of a proposed notice of application that incorporates the requirements of §B of this regulation; and

  (4) Any additional information that the Department considers necessary after the Department's preliminary review of the application.

B. Notification.

  (1) Upon receipt of Departmental notification that an application is complete, the applicant shall advertise at least once a week for 2 consecutive weeks in a:

    (a) Local newspaper of general circulation in the county where the operation is located; and

    (b) Newspaper of general circulation Statewide.

  (2) The advertisement in §B(1) of this regulation shall contain, at a minimum, the following information:

    (a) A heading of “Notice of Application for Natural Gas Category Determination” in bold-face type;

    (b) The name and business address of the applicant, and the name and telephone number of an individual to whom questions regarding the application may be directed;

    (c) What category is being requested, and a summary of the economic impacts on the applicant, the purchaser, if applicable, and the consumer, if the application is approved; and

    (d) The name and address of the Department and a statement that:

      (i) A copy of the application is available for public inspection at the Department office,

      (ii) Written comments or objections on the application may be submitted to the Department within 30 days from the date of the last advertisement, and

      (iii) A public hearing will be held on the application, if a request for a public hearing is submitted to the Department within 15 days of the publication date of the last advertisement.

#### Regulation .02 Category Determination Application Review by the Department.

*COMAR 26.19.02.02*

A. The Department shall conduct a detailed review of the application and all other factors relevant to a natural gas category determination under State and federal law.

B. If a public hearing is requested, the Department shall notify the applicant in writing of the date, time, and location of the hearing.

C. Within 5 working days of the Department's notification under §B of this regulation, the Department shall provide general notice, at the applicant's expense, of the public hearing as follows:

  (1) The owner of surface rights and the owner of oil and gas rights on the tract of land where the well is located, and the purchasers, if applicable, as identified by the applicant, shall be notified in writing of the date, time, and location of the hearing;

  (2) A person who commented on or objected to the application shall be notified in writing of the date, time, and location of the hearing so that the person may attend and present their views either orally or in writing;

  (3) An advertisement shall be placed in a newspaper of general circulation in the county where the operation is located, and in a newspaper of general circulation Statewide, once a week for 2 consecutive weeks, ending not less than 15 days before the date of the hearing, stating the date, time, and location of the hearing;

  (4) A notice of the public hearing containing all pertinent information shall be placed in the Maryland Register.

D. A public hearing shall be held following the procedures established in COMAR 26.01.07.

E. The Department shall provide notice of a natural gas determination to the Federal Energy Regulatory Commission within 15 days after the Department's final decision.

## Subtitle 20 — Surface Coal Mining and Reclamation Under Federally Approved Program

### Chapter 01 — General

**Authority:** Environment Article, §§15-503 and 15-603, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01 and .02 were previously codified as COMAR 08.13.09.01A and B, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Regulation .02B amended effective October 23, 1995 (22:21 Md. R. 1614)

**Administrative History:** Chapter recodified from COMAR 08.20.01 to COMAR 26.20.01, June 1996

**Administrative History:** Regulation .02B amended effective March 22, 1999 (26:6 Md. R. 488); February 5, 2001 (28:2 Md. R. 105); July 8, 2002 (29:13 Md. R. 993); March 14, 2005 (32:5 Md. R. 581)

**Administrative History of COMAR 08.13.09 before April, 1993:** Effective date: December 1, 1980 (7:25 Md. R. 2334)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulations .01A, B; .02A, B, I, K—M, O, P; .03E; .04A—C, G, L, M, O; .05A; .08B—D; .11G; .15I, J; .22A—G; .23D; .24A, C, F, G; .28G, and .34A amended; .30 (formerly Regulation .22X) adopted; .02C and .22H—U repealed effective August 15, 1983 (10:16 Md. R. 1451)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulations .01B; .02A, B, C, I, M, O; .03D, G; .04A; .05A; .23J; .25C, .26A, D; .31A, D; .35A, D; .40F, G, H; .41; .42A, B, D amended effective April 3, 1981 (8:7 Md. R. 641)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulations .01B, .03, and .28E amended as an emergency provision effective March 25, 1986 (13:8 Md. R. 889); emergency status extended to July 21, 1986 (13:15 Md. R. 1726); adopted permanently effective July 28, 1986 (13:15 Md. R. 1733)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulations .01—.04, .07—.08, .11, .22, .24—.25, .28, .30 and .34 amended as an emergency provision effective July 26, 1982 (9:17 Md. R. 1688); emergency status extended to December 20, 1982 (9:23 Md. R. 2253); amended as an emergency provision effective February 25,1983 (10:6 Md. R. 535); emergency status expired June 25, 1983

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulations .01, .02, .04, .05, .08, .10, .11, .26, .35, and .40 amended effective September 28, 1992 (19:19 Md. R. 1704)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulations .02Q, R, S; .43O; .44 adopted effective April 3, 1981 (8:7 Md. R. 641)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulations .02S; .06B, C; .10B; .40E amended effective October 26, 1981 (8:21 Md. R. 1706)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulations .02A—C and .04A amended as an emergency provision effective January 23, 1981 (8:3 Md. R. 222)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .02C amended as an emergency provision effective May 1, 1981 (8:10 Md. R. 874)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .02O amended effective August 26, 1985 (12:17 Md. R. 1702)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulations .03, .13J, .17, .28A, B, .31A, .32A, .33, and .34B, C amended effective January 6, 1992 (18:26 Md. R. 2829)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .07 repealed and new .07 adopted effective August 15, 1983 (10:16 Md. R. 1453)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .09 adopted effective April 8, 1985 (12:7 Md. R. 700)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .15B, C, F, and H amended effective August 30, 1982 (9:17 Md. R. 1706)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .15C and F amended effective September 12, 1983 (10:18 Md. R. 1608)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .25 amended effective August 26, 1985 (12:17 Md. R. 1702)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .40 amended effective August 15, 1983 (10:16 Md. R. 1453)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .40K adopted effective October 26, 1981 (8:21 Md. R. 1706)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .40K repealed effective April 8, 1985 (12:7 Md. R. 700)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .40L renumbered to be .40K effective April 8, 1985 (12:7 Md. R. 700)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .41 amended effective July 6, 1992 (19:13 Md. R. 1201)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .42 amended effective July 24, 1989 (16:14 Md. R. 1568)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .43 amended effective April 3, 1989 (16:6 Md. R. 727); June 25, 1990 (17:12 Md. R. 1493)

**Administrative History of COMAR 08.13.09 before April, 1993:** Regulation .43B amended as an emergency provision effective January 23, 1990 (17:3 Md. R. 293); emergency status expired June 28, 1990

#### Regulation .01 Scope.

*COMAR 26.20.01.01*

The regulations in this subtitle contain requirements applicable to all surface mining of coal in the State, and the surface effects of deep mining of coal. The regulations are promulgated in accordance with the Maryland Strip Mining Program pursuant to the Federal Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87). Regulations become effective on the date of approval of the Maryland program by the Federal Office of Surface Mining or such later date as specified in the order of the Circuit Court for Allegany County in No. 35343, Equity.

#### Regulation .02 Definitions.

*COMAR 26.20.01.02*

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Acid drainage” means water with a pH of less than 6.0 and in which total acidity exceeds total alkalinity, discharged from an active, inactive, or abandoned surface coal mine and reclamation operation, or from an area affected by surface coal mining and reclamation operations.

  (2) “Acid-forming materials” means earth materials which, if exposed to air, water, or weathering processes, form acids that may create acid drainage.

  (3) “Adjacent area” means land located outside the permit area where air, surface or ground water, fish, wildlife, vegetation, or other resources may be adversely impacted by surface coal mining and reclamation operations.

  (4) “Affected area” means, with respect to surface mining activities, any land or water which is disturbed during the term of the permit. With respect to underground mining activities, “affected area” means any water or surface land upon or in which those activities are conducted or located, and land or water which is located above underground mine workings.

  (5) “Agricultural use” means the use of any tract of land for the production of animal or vegetable life. The uses include, but are not limited to, the pasturing, grazing, and watering of livestock, and the cropping, cultivation, and harvesting of plants.

  (6) “Applicant” means a person seeking a permit from the Bureau to conduct prospecting or mining and reclamation operations under the Regulatory Program.

  (7) “Application” means the documents and other information filed with the Bureau under the Regulatory Program for the issuance of a prospecting or mining permit.

  (8) “Approximate original contour” means that surface configuration achieved by backfilling and grading of the affected area that eliminates all highwalls and spoil piles, so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land before mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls, spoil piles, and coal refuse piles eliminated. Permanent water impoundments may be allowed where the Bureau has determined that these impoundments comply with the Regulatory Program.

  (9) “Aquifer” means a zone, stratum, or group of strata that can store and transmit water in sufficient quantities for a specific use.

  (10) “Backfill” means to place spoil material into an excavated area to a predetermined slope.

  (11) “Best technology currently available” means equipment, devices, systems, methods, or techniques which will prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area, but not result in contributions of suspended solids in excess of requirements set by applicable State or federal laws; and which will minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife, and related environmental values, and achieve enhancement of those resources where practicable. The term includes equipment, devices, systems, methods, or techniques which are currently available anywhere as determined by the Bureau, even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation ponds in accordance with the standards of the Regulatory Program. Within the constraints of the Regulatory Program, the Bureau shall have the discretion to determine the best technology currently available on a case-by-case basis.

  (12) “Blasting” means detonation of explosives.

  (13) “Bureau” means the Maryland Bureau of Mines.

  (14) “Coal mine waste” means coal processing waste and underground development waste.

  (15) “Coal preparation plant” means a facility where coal is subjected to chemical or physical processing or the cleaning, concentrating, or other processing or preparation. It includes facilities associated with coal preparation activities including, but not limited to the following:

    (a) Loading facilities;

    (b) Storage and stockpile facilities;

    (c) Sheds;

    (d) Shops and other buildings;

    (e) Water treatment and storage facilities;

    (f) Settling basins and impoundments; and

    (g) Coal processing and other waste disposal areas.

  (16) “Coal processing wastes” means earth materials which are combustible, physically unstable, or acid-forming or toxic-forming, which are wasted or otherwise separated from product coal, and transported from coal processing plants, after physical or chemical processing, cleaning, or concentrating of coal.

  (17) “Collateral bond” means an indemnity agreement in a certain sum payable to the Bureau executed by the permittee and which is supported by the deposit with the Bureau of cash, negotiable bonds of the United States, negotiable certificates of deposit, or an irrevocable letter of credit issued by any bank located in and authorized to transact business in Maryland.

  (18) “Combustible material” means organic material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise.

  (19) “Committee” means the Land Reclamation Committee, as established by Environment Article, §15-204, Annotated Code of Maryland.

  (20) “Compaction” means increasing the density of a material by reducing the voids between the particles and is generally accomplished by controlled placement and mechanical effort such as from repeated application of wheel, track, or roller loads from heavy equipment.

  (21) “Complete application” means an application for a prospecting or mining permit which contains all information required under the Regulatory Program.

  (22) “Cross drain” means a ditch constructed to carry away excessive drainage from a main collection point.

  (23) “Cumulative impact area” means the area, including the permit area, within which impacts resulting from the proposed operation may interact with the impacts of anticipated mining on surface and ground water systems. Anticipated mining shall include, at a minimum, the entire projected lives through bond releases of:

    (a) The proposed operation;

    (b) Existing operations;

    (c) Operations for which a permit application has been submitted to the Bureau; and

    (d) Operations required to meet diligent development requirements for leased federal coal for which there is actual mine development information available.

  (24) “Cut” means excavation to remove overburden in a single progressive line.

  (25) “Director” means the Director of the Maryland Bureau of Mines or his duly authorized representative.

  (26) “Disturbed area” means an area from which vegetation, topsoil, or overburden is removed or land occupied by topsoil stockpiles, spoil piles, the open-pit, access or haul roads, haulageways, storage areas, shop areas, processing and shipping areas, drainage or sediment control structures, coal processing wastes, underground development waste, or non-coal waste. The area shall be considered disturbed until reclamation is complete and all performance bonds for the area are released.

  (27) “Diversion” means a channel, embankment, or other manmade structure constructed to divert water from one area to another.

  (28) “Downslope” means the land surface between the projected outcrop of the lowest coal seam being mined and a valley floor.

  (29) “Embankment” means an artificial deposit of material that is raised above the natural surface of the land and used to contain, divert, or store water, support roads, or railways, or for other similar purposes.

  (30) “Ephemeral stream” means a stream which flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice, and which has a channel bottom that is always above the local water table.

  (31) “Excess spoil” means spoil material disposed of in a location other than the mined-out area. In nonsteep slope areas, spoil material used to achieve the approximate original contour by blending the spoil on the mined-out area with the surrounding terrain is not considered excess spoil.

  (32) “Existing structure” means a structure or facility used in connection with, or to facilitate, mining and reclamation operations for which construction began before approval of the Regulatory Program.

  (33) “Explosive” means any chemical compound, mixture, or device, the primary purpose of which is to function by explosion, that is, with substantially instantaneous release of gas and heat, unless the compound, mixture, or device is otherwise specifically classified by the Interstate Commerce Commission.

  (34) “Face of coal” means the exposed vertical cross section of the natural coal seam or deposit being mined and generally forming the base of the highwall left by excavating operations in surface mining.

  (35) “Fill bench” means that portion of a bench formed by spoil or overburden which has been deposited over the original slope.

  (36) “Fugitive dust” means that particulate matter not emitted from a duct or stack which becomes airborne due to the forces of wind or surface coal mining and reclamation operations or both. During surface coal mining and reclamation operations, it may include emissions from haul roads; wind erosion of exposed surfaces, storage piles, and spoil piles; reclamation operations; and other activities in which material is either removed, stored, transported, or redistributed.

  (37) “General area” means, with respect to hydrology, the topographic and ground water basin surrounding a permit area which is of sufficient size, including aerial extent and depth, to include one or more watersheds containing perennial streams and ground water zones and to allow assessment of the probable cumulative impacts on the quality and quantity of surface and ground water systems in the basins.

  (38) “Ground water” means subsurface water that fills available openings in rock or soil materials to the extent that they are considered water saturated.

  (39) “Head-of-hollow fill” means a fill structure consisting of any material, other than coal processing waste and organic material, placed in the uppermost reaches of a hollow where side slopes of the existing hollow measured at the steepest point are greater than 20 degrees or the average slope of the profile of the hollow from the toe of the fill to the top of the fill is greater than 10 degrees In fills less than 250,000 cubic yards of material, associated with contour mining, the top surface of the fill will be at the elevation of the coal seam. In all other head-of-hollow fills, the top surface of the fill, when completed, is at approximately the same elevation as the adjacent ridge line, and no significant area of natural drainage occurs above the fill draining into the fill area.

  (40) “Highwall” means the vertical wall consisting of the exposed coal seam and overlying strata during or after excavating operations.

  (41) “Historically used for croplands” means:

    (a) Lands that have been used for cropland for any 5 years or more out of the 10 years immediately preceding the acquisition, including purchase, lease, or option, of the land, for the purpose of conducting or allowing through resale, lease, or option the conduct of surface coal mining and reclamation operations;

    (b) Lands that the Bureau determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific 5-years-in-10 criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved; or

    (c) Lands that would likely have been used as cropland for any 5 out of the last 10 years immediately preceding the acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land.

  (42) “Hydrology” appears in this subtitle under the following terms and meanings:

    (a) “Hydrologic balance” means the relationship between the quality and quantity of water inflow to, water outflow from, and water storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or reservoir. It encompasses the dynamic relationships among precipitation, runoff, evaporation, and changes in ground and surface water storage.

    (b) “Hydrologic regime” means the entire state of water movement in a given area. It is a function of the climate and includes the phenomena by which water first occurs as atmospheric water vapor, passes into a liquid or solid form, falls as precipitation, moves along or into the ground surface, and returns to the atmosphere as vapor by means of evaporation and transpiration.

    (c) “Probable cumulative impact” means the expected total qualitative and quantitative direct and indirect effects of mining and reclamation activities on the hydrologic regime.

    (d) “Probable hydrologic consequence” means the projected result of proposed surface coal mining and reclamation operations which may reasonably be expected to change the quantity or quality of the surface and ground water; the surface or ground water flow, timing, and pattern; the stream channel conditions; and the aquatic habitat on the permit area and other affected areas.

  (43) “Imminent danger to the health and safety of the public” means the existence of any condition or practice, or any violation of a permit or other requirements of the Regulatory Program, which could reasonably be expected to cause substantial physical harm to persons outside the permit area before the condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same condition or practice giving rise to the peril, would avoid exposure to the danger during the time necessary for abatement.

  (44) “Impounding structure” means a dam, embankment, or other structure used to impound water, slurry, or other liquid or semi-liquid material.

  (45) “Impoundment” means a closed basin naturally formed or artificially built, which is dammed or excavated for the retention of water, sediment, or waste.

  (46) “In situ processes” means activities conducted, on the surface or underground, in connection with in-place distillation retorting, leaching, or other chemical or physical processing of coal. The term includes, but is not limited to, in situ gasification, in situ leaching, slurry mining, and fluid recovery mining.

  (47) “Intermittent stream” means:

    (a) A stream or reach of a stream that drains a watershed of at least 1 square mile; or

    (b) A stream or reach of a stream that is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and ground water discharge.

  (48) “Irreparable damage to the environment” means any damage to the environment that cannot be corrected by actions of the applicant.

  (49) “Lands eligible for remining” means any land that would otherwise be eligible for expenditures under Environment Article, Title 15, Subtitle 11, Annotated Code of Maryland.

  (50) “Land use” means specific uses or management-related activities, rather than the vegetation or cover of the land. Land uses may be identified in combination when joint or seasonal uses occur.

  (51) “Low wall” means the side of the fill bench facing the highwall.

  (51-1) “Material damage”, in the context of COMAR 26.20.02.15 and .16, 26.20.13.07, .09, and .10, and 26.20.14.13, means:

    (a) Any functional impairment of surface lands, features, structures, or facilities;

    (b) Any physical change that:

      (i) Has a significant adverse impact on the affected land's capability to support current or reasonably foreseeable uses; or

      (ii) Causes significant loss in production or income; or

    (c) Any significant change in the condition, appearance, or utility of any structure or facility from its presubsidence condition.

  (52) “Mining” appears in this subtitle under the following terms and meanings (the terms open-pit, surface, and strip mining are used interchangeably in these regulations):

    (a) “Auger mining” means a method of mining coal at a highwall by drilling holes into an exposed coal seam from the highwall and transporting the coal along an auger bit to the surface.

    (b) “Deep mining” means removal of the mineral being mined without the disturbance of the surface, as distinguished from surface mining.

    (c) “Open-pit mining” means the mining or recovery of coal by removing the material which overlies the coal seam in its natural condition.

    (d) “Surface coal mining operations” means:

      (i) Activities conducted on the surface of lands in connection with a surface coal mine or surface operations and surface impacts incident to an underground coal mine. These activities include excavation for the purpose of obtaining coal, including such common methods as contour, strip, auger, mountaintop removal, box cut, open-pit, and area mining, the uses of explosives and blasting, and in situ distillation or retorting, leaching or other chemical or physical processing, and the cleaning, concentrating, or other processing or preparation, loading of coal at or near the minesite, including extraction of coal from coal refuse piles; and

      (ii) Areas upon which these activities occur or where those activities disturb the natural land surface. These areas shall also include any adjacent land the use of which is incidental to any of these activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of those activities and for haulage and excavation, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailing, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are situated structures, facilities, or other property or material on the surface, resulting from or incident to those activities.

    (e) “Surface coal mining and reclamation operations” means surface coal mining operations and all activities necessary or incidental to the reclamation of these operations.

    (f) “Surface mining activities” means those surface coal mining and reclamation operations incident to the extraction of coal from the earth by removing the materials over a coal seam, before recovering the coal by auger mining or by recovery of coal from a deposit that is not in its original geologic location.

    (g) “Underground mining activities” means a combination of:

      (i) Surface operations incident to underground extraction of coal or in situ processing, such as construction use, maintenance, and reclamation of roads, above-ground repair areas, storage areas, shipping areas, areas upon which are situated support facilities including hoist and ventilating ducts, areas used for the disposal and storage of waste, and areas on which materials incident to underground mining operations are placed; and

      (ii) Underground operations such as underground construction, operations and reclamation of shafts, adits, underground support facilities, in situ processing, and underground mining, hauling, storage, and blasting.

  (53) “Moist bulk density” means the weight of soil (oven dry) per unit volume. Volume is measured when the soil is at field moisture capacity (1/3 bar moisture tension). Weight is determined after drying the soil at 105°C.

  (54) “Monitoring” means the collection of environmental data by either continuous or periodic sampling methods.

  (55) “Mulch” means vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, thus providing microclimatic conditions suitable for germination and growth.

  (56) “Natural drainway” means any watercourse or channel which carries water to the tributaries and rivers of the watershed. Streams classified as perennial or intermittent streams by the U.S. Geological Survey shall be considered as natural drainways.

  (57) “Noxious plants” means species that have been included on the official list of noxious plants for Maryland.

  (58) “Open-acre” means the disturbed area, excluding any area which has not been cleared and grubbed and any area which has been satisfactorily backfilled, regraded, topsoiled, seeded, and mulched (or reclaimed to an alternate postmining land use) in accordance with an approved reclamation plan, and which will not be redisturbed.

  (59) “Open-acre limit” means the number of acres approved to be bonded as openacres and for which a bond is posted before the issuance of a permit.

  (60) “Outslope” means the face of the spoil or embankment sloping downward from the highest elevation to the lower limit of the disturbed land.

  (61) “Overburden” means material of any nature, consolidated or unconsolidated, that overlies a coal deposit, excluding topsoil.

  (62) “Owned or controlled” and “owns or controls” means any one or a combination of the relationships specified in §B(62)(a) and (b) of this regulation. These relationships:

    (a) Constitute ownership or control:

      (i) By being a permittee of a surface coal mining operation,

      (ii) Based on instruments of ownership or voting securities, by owning of record in excess of 50 percent of an entity, or

      (iii) By having any other relationship which gives one person authority directly or indirectly to determine the manner in which an applicant, an operator, or other entity conducts surface coal mining operations;

    (b) Are presumed to constitute ownership or control unless a person can demonstrate that the person subject to the presumption does not have the authority, directly or indirectly, to determine the manner in which the relevant surface coal mining operation is conducted:

      (i) By being an officer or director of an entity,

      (ii) By being the operator of a surface coal mining operation,

      (iii) By having the ability to commit the financial or real property assets or working resources of an entity,

      (iv) By being a general partner in a partnership,

      (v) Based on the instruments of ownership or the voting securities of a corporate entity, by owning of record 10 through 50 percent of the entity,

      (vi) By owning or controlling coal to be mined by another person under a lease, sublease, or other contract and having the right to receive the coal after mining, or

      (vii) By owning or controlling coal to be mined by another person under a lease, sublease, or other contract and having authority to determine the manner in which that person or another person conducts a surface coal mining operation.

  (63) “Perennial stream” means a stream or part of a stream that flows continuously during all of the calendar year as a result of ground water discharge or surface runoff.

  (64) “Performance bond” means a surety bond, collateral bond, or a combination of these, by which a permittee assures faithful performance of all the requirements of the permit and reclamation plan.

  (65) “Permanent diversion” means a diversion remaining after surface coal mining and reclamation operations are completed.

  (66) “Permanent impoundment” means an impoundment which is approved by the Bureau and, if required, by other State and federal agencies for retention as part of the postmining land use.

  (67) “Permit” means a permit issued by the Bureau to conduct prospecting or mining and reclamation operations.

  (68) “Permit area” means the area of land and water within the boundaries of the permit which are designated on the permit application maps approved by the Bureau. This area shall include, at a minimum, all areas which are proposed to be affected by the surface coal mining and reclamation operations during the term of the permit.

  (69) “Permittee” means a person holding or required to hold a permit to conduct surface coal mining and reclamation operations issued by the Bureau.

  (70) “Person” means an individual, partnership, association, society, joint venture, joint stock company, firm, company, corporation, cooperative or other business organization and any agency, unit, or instrumentality of federal, State, or local government including any publicly owned utility or publicly owned corporation of federal, State, or local government.

  (71) “Person having an interest which is or may be adversely affected or person with a valid legal interest” means any person:

    (a) Who uses any resource of economic, recreational, esthetic, or environmental value that may be adversely affected by coal prospecting or surface coal mining and reclamation operations or any related action of the Bureau; or

    (b) Whose property is or may be adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the Bureau.

  (72) “Precipitation event” means a quantity of water resulting from drizzle, rain, snow, sleet, or hail in a limited period of time. It may be expressed in terms of recurrence interval. As used in these regulations, precipitation event also includes that quantity of water emanating from snow cover as snowmelt in a limited period of time.

  (72-1) “Previously mined area” means land affected by surface coal mining operations prior to August 3, 1977, that has not been reclaimed to the standards of this subtitle.

  (73) “Prime farmland” means those lands which are defined by the Secretary of United States Department of Agriculture in 7 CFR 657 and which have historically been used for cropland.

  (74) “Principal shareholder” means any person who is the record or beneficial owner of 10 percent or more of any class of voting stock.

  (74-1) “Professional engineer” means an individual licensed by the State Board for Professional Engineers to practice engineering in Maryland.

  (75) “Property to be mined” means both the surface and mineral estates on and underneath lands which are within the permit area.

  (76) “Prospecting” means the gathering of subsurface geologic, physical, or chemical data by trenching, drilling, geophysical, or other techniques to determine the quantity or quality of the overburden and coal of an area.

  (77) “Reclamation” means those actions taken to restore mined land as required by the Regulatory Program to a postmining land use approved by the Bureau.

  (78) “Recurrence interval” means the interval of time in which a precipitation event is expected to occur once on the average. For example, the 10-year, 24-hour precipitation event would be that 24-hour precipitation event expected to occur on the average once in 10 years.

  (79) “Reference area” means a land unit maintained under appropriate management for the purpose of measuring vegetation ground cover, productivity, and plant species diversity that are produced naturally or by crop production methods approved by the Bureau. Reference areas shall be representative of geology, soil, slope, and vegetation in the permit area.

  (80) “Regulatory Program” means the Maryland program for control of mining and reclamation operations, as approved by the Secretary of the U. S. Department of Interior, including all laws, rules, and regulations enacted and adopted that apply to mining and reclamation operations. Interim Regulatory Program means the Maryland Program for control of mining and reclamation operations before approval of the Regulatory Program.

  (81) “Renewable resource lands” means aquifers and areas for the recharge of aquifers and other underground waters, areas for agricultural or silvicultural production of food and fiber, and grazing lands.

  (81-1) Replacement of Water Supply.

    (a) “Replacement of water supply” means, with respect to water supplies contaminated, diminished, or interrupted by coal mining operations, provision of water supply on both a temporary and permanent basis equivalent to premining quantity and quality.

    (b) “Replacement of water supply” includes:

      (i) Provision of an equivalent water delivery system; and

      (ii) Payment of operation and maintenance cost in excess of customary and reasonable delivery costs for premining water supplies.

  (82) “Road” means a surface right-of-way for purposes of travel by land vehicles used in prospecting or surface coal mining and reclamation operations. A road consists of the entire area within the right-of-way, including the roadbed, shoulders, parking and side areas, approaches, structures, ditches, and surface. The term includes access and haul roads constructed, used, reconstructed, improved, or maintained for use in prospecting or surface coal mining and reclamation operations, including use by coal hauling vehicles leading to and from transfer, processing, or storage areas. The term does not include ramps and routes of travel within the immediate mining area or within spoil or coal mine waste disposal areas.

  (83) “Safety factor” means the ratio of the available shear strength to the developed shear stress, or the ratio of the sum of the resisting forces to the sum of the loading or driving forces as determined by accepted engineering practices.

  (84) Sedimentation Pond.

    (a) “Sedimentation pond” means an impoundment used as a primary sediment control structure designed, constructed, and maintained in accordance with the Regulatory Program and including but not limited to a barrier, dam, or excavated depression which slows down water runoff to allow sediment to settle out.

    (b) “Sedimentation pond” does not include secondary sedimentation control structures such as straw dikes, riprap, check dams, mulches, and other measures that reduce overland flow velocity, reduce runoff volume, or trap sediment to the extent that these secondary sedimentation structures drain to a sedimentation pond.

  (85) “Significant imminent environmental harm to land, air, or water resources” means the following:

    (a) An environmental harm is an adverse impact on land, air, or water resources, which resources include but are not limited to plant and animal life;

    (b) An environmental harm is imminent if a condition, practice, or violation exists which is causing this harm, or may reasonably be expected to cause this harm at any time before the end of the reasonable abatement time that would be set under a notice of violation issued by the Bureau;

    (c) An environmental harm is significant if that harm is appreciable and not immediately reparable.

  (86) “Slope” means average inclination of a surface, measured from the horizontal, expressed in percents, degrees, or as the ratio of a given number of units of horizontal distance to a unit of vertical distance (for example, 5:1).

  (87) Soil Horizons.

    (a) “Soil horizons” means contrasting layers of soil parallel or nearly parallel to the land surface. Soil horizons are differentiated on the basis of field characteristics and laboratory data.

    (b) The four master soil horizons are:

      (i) “A” horizon—the uppermost mineral layer, often called the surface soil. It is the part of the soil in which organic matter is most abundant, and leaching of soluble or suspended particles is typically the greatest.

      (ii) “E” horizon—the layer commonly near the surface below an “A” horizon and above a “B” horizon. An “E” horizon is most commonly differentiated from an overlying “A” horizon by lighter color and generally has measurably less organic matter than the “A” horizon. An “E” horizon is most commonly differentiated from an underlying “B” horizon in the same sequum by color of higher value or lower chroma, by coarser texture, or by a combination of these properties.

      (iii) “B” horizon—the layer that typically is immediately beneath the “E” horizon and often called the subsoil. This middle layer commonly contains more clay, iron, or aluminum than the “E” or “C” horizons.

      (iv) “C” horizon—the deepest layer of soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity.

  (88) “Soil survey” means a field and other investigation, resulting in a map showing the geographic distribution of different kinds of soils and an accompanying report that describes, classifies, and interprets these soils for use.

  (89) “Spoil” means overburden that has been removed during surface coal mining operations.

  (90) “Stabilize” means to control movement of soil, spoil piles, or areas of disturbed earth by modifying the geometry of the mass, or by otherwise modifying physical or chemical properties such as by providing a protective surface coating.

  (91) “Steep slope” means a slope of more than 20 degrees.

  (92) “Substantially disturb” means, for purposes of prospecting, to impact significantly upon land, air, or water resources by such activities as blasting, mechanical excavation, drilling or altering coal or water exploratory holes or wells, construction of roads and other access routes, and the placement of structures, excavated earth, or other debris on the surface land.

  (93) “Successor in interest” means any person who succeeds to rights granted under a permit, by transfer, assignment, or sale of those rights.

  (94) “Surety bond” means an indemnity agreement in a certain sum payable to the Bureau, executed by the permittee, which is supported by the performance guarantee of a corporation licensed to do business as a surety in the State.

  (95) “Suspended solids or nonfilterable residue, expressed as milligrams per liter” means organic or inorganic materials carried by a standard glass fiber filter in the procedure outlined by the Environmental Protection Agency's regulations for waste water and analyses (40 CFR 136).

  (96) “Temporary diversion” means a diversion of a stream or overland flow which is used during coal exploration or surface coal mining and reclamation operations and not approved by the Bureau to remain after reclamation as part of the approved postmining land use.

  (97) “Temporary impoundment” means an impoundment used during surface coal mining and reclamation operations, but not approved by the Bureau to remain as part of the approved postmining land use.

  (98) “Topsoil” means the “A” horizon and “E” horizon as defined in §B(87) of this regulation.

  (99) “Toxic mine drainage” means water that is discharged from active or abandoned mines or other areas affected by prospecting or surface coal mining and reclamation operations, which contains a substance that through chemical action or physical effects is likely to kill, injure, or impair biota commonly present in the area that might be exposed to it.

  (100) “Toxic-forming materials” means earth materials or wastes which, if acted upon by air, water, weathering, or microbiological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water.

  (101) “Transfer, assignment, or sale of rights” means a change in ownership or other effective control over the right to conduct prospecting or mining operations under a permit issued by the Bureau.

  (102) “Underground development wastes” means waste rock mixtures of coal, shale, claystone, siltstone, sandstone, limestone, or related materials that are excavated, moved, and disposed of during development and preparation of areas incident to underground mining activities.

  (103) “Valley fill” means a fill structure consisting of any material other than coal waste and organic material that is placed in a valley where side slopes of the existing valley measured at the steepest point are greater than 20 degrees or the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than 10 degrees.

  (104) “Violation notice” means any written notification from a governmental entity of a violation of law, regulation, permit condition, whether by letter, memorandum, legal or administrative pleading, or other written communication.

  (105) “Waste” means earth materials, which are combustible, physically unstable, or acid-forming or toxic-forming, wasted or otherwise separated from product coal, and are slurried or otherwise transported from coal-processing facilities or preparation plants after physical or chemical processing, cleaning or concentration of coal.

  (106) “Water table” means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.

  (107) “Willful violation” means an act or omission which violates the State or federal laws or regulations, or individual permit conditions, committed by a person who intends the result which actually occurs.

### Chapter 02 — Permit Applications — General Requirements

**Authority:** Environment Article, §§15-503 and 15-603, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01 and .02—.17 were previously codified as COMAR 08.13.09.02A—B and D—S, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Regulation .18 adopted effective February 13, 1995 (22:3 Md. R. 151)

**Administrative History:** Chapter recodified from COMAR 08.20.02 to COMAR 26.20.02, June 1996

**Administrative History:** Regulation .01C and D adopted effective July 8, 2002 (29:13 Md. R. 993)

**Administrative History:** Regulation .13 amended effective February 5, 2001 (28:2 Md. R. 105); March 14, 2005 (32:5 Md. R. 582)

**Administrative History:** Regulation .13M amended effective July 8, 2002 (29:13 Md. R. 993)

**Administrative History:** Regulation .15 amended effective March 14, 2005 (32:5 Md. R. 581)

**Administrative History:** Regulation .16 amended effective March 14, 2005 (32:5 Md. R. 581)

#### Regulation .01 Scope.

*COMAR 26.20.02.01*

A. A person may not conduct surface coal mining and reclamation operations as an operator within the State without first obtaining a permit from the Bureau and any other permits or approvals required by law, except that a person conducting surface coal mining operations on the effective date of these regulations, that were not regulated under the Interim Regulatory Program, may continue to conduct those operations until 8 months from the effective date of these regulations or until such later date as specified in the order of the Circuit Court for Allegany County in No. 35343, Equity, if an application for a permit has been made to the Bureau in accordance with the order of the Circuit Court for Allegany County in No. 35343, Equity.

B. Except as provided for in this section, on and after 8 months from the effective date of these regulations or on or after such later date as specified in the order of the Circuit Court for Allegany County in No. 35343, Equity, a person may not conduct surface coal mining operations unless that person has first obtained a permit issued by the Bureau pursuant to the Regulatory Program and that person complies with the terms and conditions of the permit and the requirements of the Regulatory Program. However, a person conducting surface coal mining operations under a permit issued or amended by the Bureau, in accordance with the requirements of the Interim Regulatory Program, may conduct those operations after 8 months from the date of approval, or after such date as specified in the order of the Circuit Court for Allegany County in No. 35343, Equity, if:

  (1) An application for a permit has been made to the Bureau by the date specified in the order of the Circuit Court for Allegany County in No. 35343, Equity;

  (2) The Bureau has not yet rendered an initial decision with respect to this application; and

  (3) The operations are conducted in compliance with all terms and conditions of the interim permit and the Interim Regulatory Program.

C. The Bureau may terminate its jurisdiction under the regulatory program over the reclaimed site of a completed surface coal mining and reclamation operation or increment of it, if the Bureau determines, in writing, that under the regulatory program, all requirements imposed under the applicable regulatory program have been successfully completed or, if a performance bond was required, the Bureau has made a final decision in accordance with this subtitle to fully release the performance bond.

D. Following a termination under §C of this regulation, the Bureau shall reassert jurisdiction under the regulatory program over a site if it is demonstrated that the bond release or written determination referenced in §C of this regulation was based on fraud, collusion, or misrepresentation of a material fact.

#### Regulation .02 General Application Information.

*COMAR 26.20.02.02*

A. Information set forth in the application shall be current, presented clearly and concisely, and supported by appropriate references to technical and other written material available to the Bureau. All technical data submitted in the application shall be accompanied by the names of persons or organizations which collected and analyzed the data, the dates of the collection and analyses, and the descriptions of methodology used to collect and analyze the data. Technical analyses shall be planned by or under the direction of a professional qualified in the subject to be analyzed. The application shall state the name, address, and position of officials of each private or academic research organization or governmental agency consulted by the applicant in preparation of the application for information on land uses, soils, geology, vegetation, fish and wildlife, water quantity and quality, air quality, and archeological, cultural, and historic features.

B. Maps submitted with applications shall include all types of information that are set forth on 7.5 minute topographic maps of the U.S. Geological Survey. Maps of the permit area, the mine plan area and within 1/2 mile of the mine plan area shall be at a scale of 500 feet to the inch or larger. Maps of the adjacent areas shall clearly show the lands and waters within those areas and be at a scale of 1 inch equals 2,000 feet or larger.

C. Maps and plans submitted with the applications shall distinguish among each of the phases during which surface coal mining operations were or will be conducted at any place within the mine plan area. At a minimum, distinctions shall be clearly shown among those portions of the mine plan area in which surface coal mining operations occurred before August 3, 1977; after August 3, 1977, and before May 3, 1978; after May 3, 1978, and before the effective date of these regulations; and after the estimated date of issuance of a permit by the Bureau.

D. Each application for a surface coal mining and reclamation permit pursuant to the Regulatory Program shall be accompanied by a $10 fee.

E. Applications for permits shall be submitted on forms provided by the Bureau and shall be verified under oath, by a responsible official of the applicant, that the information contained in the application is true and correct to the best of the official's information and belief.

F. All water quality analyses performed to meet the requirements of this chapter shall be conducted according to the methodology required by 30 CFR §780.21. Modeling techniques, interpolation, or statistical techniques may be included as part of a permit application, but actual surface and ground water information may be required by the Bureau when these techniques are used.

#### Regulation .03 Permit Application; Applicant Information.

*COMAR 26.20.02.03*

Except that the submission of a Social Security number is voluntary, a mining permit application shall contain the following:

A. The names, addresses, telephone numbers, and, as applicable, Social Security numbers and employer identification numbers of:

  (1) The permit applicant;

  (2) The operator, if the operator is a person different from the applicant;

  (3) The resident agent of the applicant who will accept service of process; and

  (4) The person who will pay the abandoned mine land reclamation fee.

B. The names and addresses of:

  (1) Every legal or equitable owner of record of the property (surface and mineral) to be mined;

  (2) The holders of record of any leasehold interest in the property to be mined; and

  (3) Any purchaser of record under a real estate contract of the property to be mined.

C. A statement of whether the applicant is a corporation, partnership, single proprietorship, association, and other business entity.

D. For each person who owns or controls the applicant under the definition of “owned or controlled” and “owns or controls” in COMAR 26.20.01.02B(62), as applicable:

  (1) The person's name, address, Social Security number, and employer identification number;

  (2) The person's ownership or control relationship to the applicant, including percentage of ownership and location in organization structure;

  (3) The title of the person's position, the date the position was assumed, and when submitted under COMAR 26.20.05.03I, the date of departure from the position;

  (4) Each additional name and identifying number, including employer identification number, federal or State permit number, and MSHA number with date of issuance, under which the person owns or controls, or previously owned or controlled, a surface coal mining and reclamation operation in the United States within 5 years preceding the date of the application; and

  (5) The application number or other identifier of, and the regulatory authority for, any other pending surface coal mining operation permit application filed by the person in any state in the United States.

E. For a surface coal mining operation owned or controlled by either the applicant or by a person who owns or controls the applicant, the operation's:

  (1) Name, address, identifying numbers, including employer identification number, federal or State permit number and MSHA number, the date of issuance of the MSHA number, and the issuing regulatory authority; and

  (2) Ownership and control relationship to the applicant, including percentage of ownership and location in the organizational structure.

F. The names and addresses of the owners of record of all surface and subsurface areas contiguous to any part of the proposed permit area.

G. The name of the proposed mine and Mine Safety and Health Administration identification number for the mine and all sections, if any.

H. A statement of all lands, interests in lands, options, or pending bids on interests held or made by the applicant for lands which are contiguous to the area to be covered by the permit.

I. A statement of whether the applicant, any subsidiary, affiliate, or persons controlled by or under common control with the applicant, has had a federal or State mining permit suspended or revoked in the last 5 years, or has forfeited a mining bond or similar security deposited in lieu of bond.

J. If any suspension, revocation, or forfeiture has occurred, a statement of the facts involved, including:

  (1) Identification number and date of issuance of the permit or date and amount of bond or similar security;

  (2) Identification of the authority that suspended or revoked a permit or forfeited a bond and the stated reasons for the action;

  (3) The current status of the permit, bond, or similar security involved;

  (4) The date, location, and type of any administrative or judicial proceedings initiated concerning the suspension, revocation, or forfeiture; and

  (5) The current status of these proceedings.

K. A list of all violation notices received by the applicant during the 3-year period preceding the application date for any violation of a provision of:

  (1) The Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87);

  (2) A law, rule, or regulation of the United States; and

  (3) A State law, rule, or regulation enacted under federal law, rule, or regulation pertaining to air or water environmental protection incurred in connection with any surface coal mining operation.

L. A list of all unabated cessation orders and unabated air and water quality violation notices received before the date of the application by any surface coal mining operation owned or controlled by either the applicant or by any person who owns or controls the applicant.

M. For each violation notice or cessation order reported under §§K and L of this regulation, the lists shall include the following information, as applicable:

  (1) Identifying numbers for the operation, including the:

    (a) Federal or State permit number and MSHA number,

    (b) Dates of issuance of the violation notice, and

    (c) MSHA number;

  (2) The name of the person to whom the violation notice was issued;

  (3) The name of the issuing regulatory authority, department, or agency;

  (4) A brief description of the violation alleged in the notice;

  (5) The date, location, and type of any administrative or judicial proceedings initiated concerning the violation;

  (6) The current status of the proceedings and of any violation notice; and

  (7) The actions taken to abate the violation.

N. A description of the documents upon which the applicant bases his legal right to enter and begin surface mining activities in the permit area and whether that right is the subject of pending litigation. The description shall identify those documents by type and date of execution, identify the specific lands to which the document pertains, and explain the legal rights claimed by the applicant. When the private mineral estate to be mined has been severed from the private surface estate, the application shall also provide, for lands within the permit area:

  (1) A copy of the written consent of the surface owner to the extraction of coal by surface mining methods;

  (2) A copy of the document of conveyance that expressly grants or reserves the right to extract the coal by surface mining methods;

  (3) If the conveyance does not expressly grant the right to extract the coal by surface mining methods, documentation that under State law the applicant has the legal authority to extract the coal by those methods; or

  (4) Information which pertains solely to the payment of royalties, or other specific financial obligations of the applicant, may be deleted from the submitted documents.

O. A copy of the written consent of landowner, on a form furnished by the Bureau, for the operator or the State or any of its authorized agents to enter on any land affected by the operator within a period of 5 years after the operation is completed and reclaimed in accordance with the specifications of the Bureau or abandoned. The consent shall include a commitment by the landowner that neither he nor his agents will perform any act or cause any act to be performed on the affected area which is inconsistent with any provision of the approved mining and reclamation plan or these regulations without the prior approval of the Bureau.

P. A waiver from the owner of any occupied dwellings within 300 feet of the proposed surface mining activities, if applicable, and full information in support of any other waivers desired by the applicant under COMAR 26.20.10.

Q. A certificate of liability insurance.

R. A statement of whether the proposed permit area is within an area designated unsuitable for surface mining activities or under study for designation in an administrative proceeding. If the proposed permit area is within an area under study for designation as unsuitable for surface mining activities and the applicant asserts that substantial legal and financial commitments were made before January 4, 1977, concerning the proposed surface mining activities, the application shall contain information supporting the applicant's assertion.

S. The anticipated or actual starting and termination date of each phase of the surface mining activities and the anticipated number of acres of land to be affected for each phase of mining, and over the total life of the permit. If the applicant proposes to conduct the surface mining activities in excess of 5 years, the application shall contain information demonstrating that a permit term in excess of 5 years is needed to allow the applicant to obtain necessary financing of equipment and the opening of the operation, and this need is confirmed in writing by the applicant's proposed source of financing.

T. The name and address of the public office where the applicant will simultaneously file a copy of the application for public inspection under COMAR 26.20.04.04.

#### Regulation .04 Copy of Advertisement of Application.

*COMAR 26.20.02.04*

A copy of the newspaper advertisement of the application and proof of publication of the advertisement shall be filed with the Bureau and made a part of the complete application, not later than 2 weeks after the last date of publication required under COMAR 26.20.04.03.

#### Regulation .05 Cultural and Historical Description in Permit Application.

*COMAR 26.20.02.05*

A. A permit application shall include a description of the existing, premining cultural and historical resources within the proposed permit and adjacent areas that may be affected or impacted by the proposed surface mining activities.

B. The description required by §A of this regulation shall include the nature of cultural and historic resources listed on or eligible for listing on the National Register of Historic Places and known archeological features. The description shall be based on all available information including, but not limited to, data of State and local archeological, historical, and cultural preservation agencies.

#### Regulation .06 Hydrology Information in the Permit Application.

*COMAR 26.20.02.06*

A. A permit application shall include baseline hydrologic information for the permit and adjacent areas in sufficient detail to assist in determining the probable hydrological consequences of the proposed operation.

B. The baseline ground water hydrology information shall include:

  (1) The location and ownership of existing wells, springs, and other ground water supplies;

  (2) The depth below the surface, lithology, thickness, and approximate areal extent of identified aquifers;

  (3) The seasonal quality, quantity, and usage of ground water;

  (4) Monitoring data on which the description of the seasonal variation in ground water quality is based, which includes total dissolved solids or specific conductance corrected to 25°C, pH, total iron, total manganese, sulfates, acidity, and alkalinity;

  (5) Monitoring data, on which the description of the seasonal variation in ground water quantity is based, which includes approximate rates of discharge or usage, depth of wells, and depth to water in the wells; and

  (6) Additional information, as required by the Bureau, which describes the usage, recharge, storage, and discharge characteristics of aquifers and the quality and quantity of ground water.

C. The baseline surface water hydrology information shall include:

  (1) A description of the watersheds which will receive water discharges, including the area and land uses by approximate percentage of watershed area;

  (2) The name and location of all surface water bodies such as streams, lakes, ponds, and impoundments;

  (3) The location and nature of any discharge into the surface water system;

  (4) A description of the seasonal variation in quality, quantity, and usage of surface water resources;

  (5) Monitoring data on which the description of the seasonal variation in surface water quality is based, including analyses of total suspended solids, total dissolved solids or specific conductance corrected to 25°C, pH, total iron, total manganese, sulfates, acidity, and alkalinity;

  (6) Monitoring data on which the description of the seasonal variation in surface water quantity is based, including measurements obtained during periods indicative of different seasonal flow rates; and

  (7) Additional information pertaining to quality, quantity, or usage of surface water as required by the Bureau, which describes characteristics of the surface water system.

#### Regulation .07 Geological Information in the Permit Application.

*COMAR 26.20.02.07*

A. A permit application shall include geologic information for the permit and adjacent area in sufficient detail to assist in determining the probable hydrologic consequences of the proposed operation, the existence of potentially acid-forming or toxic-forming strata, whether reclamation can be accomplished, and whether the operation has been designed to prevent material damage to the hydrologic balance outside the permit area, including:

  (1) A description of the structural geology, stratigraphy, and parameters which influence site reclamation and the occurrence, availability, movement, quantity, and quality of potentially impacted surface or ground water, based on:

    (a) The cross sections, maps, and plans required by Regulation .11 of this chapter,

    (b) The information obtained under §A(2) and (5) of this regulation, and

    (c) Geological literature and practices;

  (2) Analyses of samples collected from test borings, drill cores, or fresh, unweathered, uncontaminated samples from rock outcrops from the permit area, down to and including the deeper of either the stratum immediately below the lowest coal seam to be mined or any aquifer below the lowest seam to be mined which may be adversely impacted by mining, which identify:

    (a) Those strata that may contain acid-forming or toxic-forming or alkalinity-producing materials, except that the Bureau may find the analysis for alkalinity-producing materials is unnecessary, and

    (b) The chemical analyses of the coal seam for acid-forming or toxic-forming materials, total sulfur, and pyritic sulfur, except that the Bureau may find that the analysis of pyritic sulfur content is unnecessary;

  (3) Logs showing lithologic characteristics, including physical properties and thickness of each stratum;

  (4) The location of ground water where occurring; and

  (5) The collection, analysis, and description of any additional geologic information determined by the Bureau to be necessary to protect the hydrologic balance or to meet the performance standards of this subtitle.

B. An applicant may request the Bureau to waive in whole or in part the requirements of §A(2)—(4) of this regulation. The waiver may be granted if the Bureau finds in writing that the collection and analysis of the data is unnecessary or because other equivalent information is available to the Bureau in a satisfactory form.

#### Regulation .08 Determination of Probable Hydrologic Consequences.

*COMAR 26.20.02.08*

A. A permit application shall include a determination of the probable hydrologic consequences of the proposed operation upon the quality and quantity of surface and ground water under seasonal flow conditions for the proposed permit and adjacent areas. The determination shall be based on the information required under Regulations .06 and .07 of this chapter, and may include the use of modeling, interpolation, or statistical techniques.

B. The determination of the probable hydrologic consequences shall include findings on:

  (1) Whether adverse impacts may occur to the hydrologic balance;

  (2) Whether acid-forming or toxic-forming materials are present that could result in the contamination of surface or ground water supplies;

  (3) Whether the proposed operation may proximately result in contamination, diminution, or interruption of an underground or surface source of water within the proposed permit or adjacent areas which is used for domestic, agricultural, industrial, or other legitimate purpose; and

  (4) What impact the proposed operation will have on:

    (a) Sediment yield from the disturbed area,

    (b) Acidity, total suspended and dissolved solids, and other important water quality parameters of local impact,

    (c) Flooding or stream flow alteration,

    (d) Ground water and surface water availability, and

    (e) Other characteristics as required by the Bureau.

C. If the probable hydrologic consequences determination indicates that adverse impacts on or off the proposed permit area may occur to the hydrologic balance, or that acid-forming or toxic-forming material is present that may result in the contamination of ground water or surface water supplies, the permit application shall include information supplemental to that required under Regulations .06 and .07 of this chapter to evaluate the probable hydrologic consequences and to plan remedial and reclamation activities. The supplemental information may be based on:

  (1) Drilling;

  (2) Aquifer tests;

  (3) Hydrogeological analysis of the water-bearing strata;

  (4) Flood flows; or

  (5) Analysis of other water quality or quantity characteristics.

D. If the probable hydrologic consequences determination indicates that the proposed mining operation may proximately result in contamination, diminution, or interruption of an underground or surface source of water within the proposed permit or adjacent areas which is used for domestic, agricultural, industrial, or other legitimate purpose, the application shall contain information on water availability and alternative water sources, including the suitability of alternative water sources for existing premining uses and approved postmining land uses.

E. If required by the Bureau, the application shall include hydrologic and geologic information available from appropriate federal or State agencies necessary to assess the probable cumulative hydrologic impact of the proposed operation, and all anticipated mining on the surface and ground water systems of the cumulative impact study area designated by the Bureau. If the information is not available from federal and State agencies, the applicant may gather and submit the required information to the Bureau as part of the permit application.

#### Regulation .09 Description Included in Permit Application.

*COMAR 26.20.02.09*

A. Each permit application shall include a description of the existing premining environmental resources within the proposed mine plan area and adjacent areas that may be affected or impacted by the proposed surface mining activities.

B. The description shall include:

  (1) When required by the Bureau, a statement of the climatological factors that are representative of the proposed mine plan area, including the average seasonal precipitation, the average direction and velocity of prevailing winds, and seasonal temperature ranges.

  (2) When required by the Bureau, a map that delineates existing vegetative types and a description of the plant communities within the proposed permit area and within any proposed reference area. This description shall include information adequate to predict the potential for re-establishing vegetation.

  (3) Fish and wildlife resource information for the permit and adjacent area, at the scope and level of detail determined by the Bureau in consultation with State or federal agencies with responsibility for fish and wildlife, sufficient to design the fish and wildlife protection and enhancement plan required under Regulation .13H of this chapter, including site specific fish and wildlife resource information necessary to assess the respective species when the permit or adjacent area is likely to contain:

    (a) Listed or proposed endangered or threatened species of plants or animals and their critical habitats listed by the Secretary of the Interior under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), and those species and habitats protected by similar State statutes,

    (b) Eagles, migratory birds, and other species identified as requiring special protection under State or federal law, and

    (c) Habitats of unusually high value for fish and wildlife such as important streams, wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, migration routes, and reproduction and wintering areas.

  (4) Soil survey information of those lands within the permit area which a reconnaissance inspection suggests may be prime farmlands, consisting of the following:

    (a) A map delineating different soils;

    (b) Soil identification;

    (c) Soil description;

    (d) Present and potential productivity of existing soils;

    (e) If the applicant proposes to use selected overburden materials as a supplement or substitute for topsoil, the results of analyses, trials, and tests of overburden and topsoil.

  (5) A statement of the condition, capability, and productivity of the land within the proposed permit area, including:

    (a) A narrative of the uses of the land existing at the time of the filing of the application. If the premining use of the land has changed within 5 years before the anticipated date of beginning the proposed operations, the historic use of the land shall also be described.

    (b) A narrative of land capability and productivity. The narrative shall provide analyses of the capability of the land, before any mining, to support a variety of uses, giving consideration to soil and foundation characteristics, topography, vegetative cover, and the hydrology of the proposed permit area; and the productivity of the proposed permit area before mining, expressed as average yield of food, fiber, forage, or wood products from these lands obtained under high levels of management. The productivity shall be determined by yield data or estimates for similar sites based on current data from the U.S. Department of Agriculture, State agricultural universities, or appropriate State natural resource or agricultural agencies.

  (6) If the proposed permit area has been previously mined, provide information concerning the uses of the land preceding mining, if available.

  (7) A description of the existing land use classifications under local law of the proposed permit and adjacent areas.

  (8) Identification of the pre-mining use or uses of the land according to one or more of the following land-use categories:

    (a) “Cropland”, which is land used for the production of adapted crops for harvest, alone or in a rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar specialty crops. Land used for facilities in support of cropland farming operations which is adjacent to or an integral part of these operations is also included.

    (b) “Pastureland or land occasionally cut for hay”, is land used primarily for the long-term production of adapted, domesticated forage plants to be grazed by livestock or occasionally cut and cured for livestock feed. Land used for facilities in support of pastureland or land occasionally cut for hay which is adjacent to or an integral part of these operations is also included.

    (c) “Grazingland”, which includes both grasslands and forest lands where the indigenous vegetation is actively managed for grazing, browsing, or occasional hay production. Land use for facilities in support of ranching operations which are adjacent to or an integral part of these operations is also included.

    (d) “Forestry”, which is land used or managed for the long-term production of wood, wood fiber, or wood-derived products. Land used for facilities in support of forest harvest and management operations which is adjacent to or an integral part of these operations is also included.

    (e) “Residential”, which includes single and multiple-family housing, mobile home parks, and other residential lodgings. Land used for facilities in support of residential operations which is adjacent to or an integral part of these operations is also included. Support facilities include but are not limited to vehicle parking and open space that directly relate to the residential use.

    (f) “Industrial/commercial”, which is land used for:

      (i) Extraction or transformation of materials for fabrication of products, wholesaling of products, or for long-term storage of products. This includes all heavy and light manufacturing facilities such as lumber and wood processing, chemical manufacturing, petroleum refining, and fabricated metal products manufacture. Land used for facilities in support of these operations which is adjacent to or an integral part of that operation is also included. Support facilities include but are not limited to all rail, road, and other transportation facilities.

      (ii) Retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments. Land used for facilities in support of commercial operations which is adjacent to or an integral part of these operations is also included. Support facilities include but are not limited to parking, storage, or shipping facilities.

    (g) “Recreation”, which is land used for public or private leisure-time use, including developed recreation facilities such as parks, camps, and amusement areas, as well as areas for less intensive uses such as hiking, canoeing, and other undeveloped recreational uses.

    (h) “Fish and wildlife habitat”, which is land dedicated wholly or partially to the production, protection, or management of species of fish and wildlife.

    (i) “Developed water resources”, which includes land used for storing water for beneficial uses such as stockponds, irrigation, fire protection, flood control, and water supply.

    (j) “Undeveloped land or no current use or land management”, which is land that is undeveloped or, if previously developed, land that has been allowed to return naturally to an undeveloped state or has been allowed to return to forest through natural succession.

  (9) Other relevant information required by the Bureau.

#### Regulation .10 Map Included in Permit Application.

*COMAR 26.20.02.10*

A. The permit application shall include at least one U.S. Geological Survey, 7.5 minute topographic quadrangle map enlarged to a scale of 500 feet to the inch or larger, covering the proposed permit area and the land within 1/2 mile of the perimeter of the permit area, which identifies:

  (1) The boundaries of surface properties within the permit area and within 1,000 feet of the permit area and the names of the owners of the surface properties within the permit area and within 1/2 mile of the permit area;

  (2) The names of the mineral owners in and contiguous to the permit area, and a breakdown of the mineral ownership by boundaries and acreage within the permit area;

  (3) The boundaries of the proposed permit area upon which the applicant has the legal right to enter and begin surface mining activities;

  (4) The number of acres in the area to be disturbed including a breakdown of the acreage by property owners;

  (5) A breakdown of the open acre limit to include the following categories: haul roads, equipment maintenance areas, coal stockpile areas, sediment control facilities, topsoil storage areas, and mining areas;

  (6) The boundaries of all areas proposed to be affected over the estimated total life of the proposed surface mining activities, with a description of size, sequence, and timing of the mining of sub-areas for which it is anticipated that additional permits will be sought;

  (7) The location of all buildings on and within 1,000 feet of the proposed permit area, with identification of the current use of the buildings;

  (8) The location of surface and subsurface man-made features within, passing through, or passing over the proposed permit area, including but not limited to major electric transmission lines, pipelines, and agricultural drainage tile fields;

  (9) The location and boundaries of any proposed reference areas for determining the success of revegetation;

  (10) The locations of water supply intakes for current users of the surface water flowing into, out of, and within a hydrologic area defined by the Bureau, and those surface waters which will receive discharges from affected areas in the proposed mine plan area;

  (11) Each public road located in or within 1,000 feet of the proposed permit area;

  (12) The boundaries of any public park, forest or wildlife management area, and locations of any cultural or historic resources listed or eligible for listing in the National Register of Historic Places, and known archeological sites within the mine plan or adjacent areas;

  (13) Each public or private cemetery or Indian burial ground located in or within 100 feet of the proposed permit area;

  (14) Any land within the proposed permit area and adjacent area which is within the boundaries of any units of the National System of Trails or the National or State Wild and Scenic River System, including study rivers designated under §5A. of the Wild and Scenic Rivers Act;

  (15) The location of the mine and permit identification signs and perimeter markers sufficient to identify the boundaries of the permit area;

  (16) The name of the nearest municipality;

  (17) The State coordinates of the proposed operation;

  (18) Other relevant information required by the Bureau;

  (19) The date the map was prepared, the north point, a vicinity sketch in such detail as to easily locate the area to be disturbed, and a legend.

B. Maps shall be certified with the following statement: “I, the undersigned, hereby certify that to the best of my knowledge this map is correct and shows all of the information required by the strip mining laws and regulations of the State of Maryland.” The certification shall be signed and notarized.

#### Regulation .11 Additional Permit Application Information.

*COMAR 26.20.02.11*

In addition to the information required by Regulation .10 of this chapter, the permit application shall include maps, cross sections, and plans prepared by or under the direction of, and certified by, a qualified registered professional engineer or professional geologist, with assistance from people in related fields such as land surveying and landscape architecture, showing:

A. Elevations and locations of test borings and core samplings;

B. Locations of monitoring stations used to gather data for water quality and quantity, fish and wildlife, and air quality, if required, in preparation of the application;

C. Nature, depth, and thickness of the coal seams to be mined, any coal or rider seams above the seam to be mined, each stratum of the overburden, and the stratum immediately below the lowest coal seam to be mined;

D. All coal crop lines and the strike and dip of the coal to be mined within the proposed permit area;

E. Location and extent of known workings of active, inactive, or abandoned underground mines, including mine openings to the surface within the proposed permit and adjacent areas;

F. Location and extent of subsurface water, if encountered, within the proposed permit and adjacent areas;

G. Location of surface water bodies such as streams, creeks, lakes, ponds, springs, constructed or natural drains, and irrigation ditches within the proposed permit and adjacent areas;

H. The drainage pattern on and away from the land affected including the total drainage area encompassing the operation, the component drainage areas to be used in pond design, the directional flow of water, the location of constructed and natural drainways used for drainage, constructed ponds, dams, sediment traps, keyways, and culverts;

I. Location and extent of existing or previously surface-mined areas within the proposed permit area;

J. Location and dimensions of existing areas of spoil, waste, coal development waste, and non-coal waste disposal, dams, embankments, other impoundments, and water treatment and air pollution control facilities within the proposed permit area;

K. Location, and depth if available, of all active, plugged, and abandoned gas, oil, and water wells and springs within 1,000 feet of the proposed permit area, including the names and addresses of the owners of all water wells and springs;

L. Slope measurements shall be made every 200 feet along the contour, beginning with the proposed initial point of mining and including the proposed termination point of mining, measured and recorded according to the following:

  (1) Each measurement shall consist of an angle of inclination along the prevailing slope, perpendicular to the contour, extending 100 linear feet above and below or beyond the coal outcrop of the area to be disturbed or, where this is impractical, at locations specified by the Bureau,

  (2) If the area has been previously mined, the measurements shall extend at least 100 feet beyond the limits of mining disturbances, or any other distance determined by the Bureau to be representative of the pre-mining configuration of the land,

  (3) Slope measurements shall take into account natural variations in slope, to provide accurate representation of the range of natural slopes and reflect geomorphic differences of the area to be disturbed.

#### Regulation .12 Preapplication Investigation Regarding Prime Farmland.

*COMAR 26.20.02.12*

A. The applicant shall conduct a preapplication reconnaissance inspection of the proposed permit area in accordance with COMAR 26.20.03.05 to determine whether lands within the area may be prime farmland.

B. Land may not be considered prime farmland if the applicant can demonstrate one of the following:

  (1) The land has not been historically used as cropland;

  (2) The slope of the land is 10 percent or greater;

  (3) Other factors exist, such as a very rocky surface, or the land is frequently flooded during the growing season, more often than once in 2 years, and the flooding has reduced crop yields; or

  (4) On the basis of a soil survey of lands within the permit area, there are no soil map units that have been designated prime farmland by the U.S. Soil Conservation Service.

C. If the investigation establishes that the lands are not prime farmland, the applicant shall submit with the permit application a request for a negative determination which shows that the land for which the negative determination is sought meets one of the criteria of §B of this regulation.

D. If the investigation indicates that lands within the proposed permit area might be prime farmland, the applicant shall contact the U. S. Soil Conservation Service to determine whether the applicable soil map units have been designated as prime farmland. If so, the applicant shall submit an application in accordance with COMAR 26.20.03.05 for this designated land.

#### Regulation .13 Description of Proposed Mining Operations.

*COMAR 26.20.02.13*

Each application shall contain a description of the proposed mining operations during the life of the mine within the permit area, including:

A. A narrative description of the type and method of proposed coal mining procedures and engineering techniques, including the measures to be used to maximize the use and conservation of the coal resource.

B. Anticipated annual and total production of coal, by tonnage, and major equipment to be used for all aspects of the operations.

C. The method of marking the perimeter of the permit area.

D. A narrative explaining the construction, modification, use, maintenance, and removal (unless retention is necessary for postmining land use) of the following facilities:

  (1) Dams, embankments, and other impoundments;

  (2) Overburden and topsoil handling and storage areas and structures;

  (3) Coal removal, handling, storage, cleaning, and transportation areas and structures;

  (4) Spoil, coal processing waste, mine development waste, and non-coal waste removal, handling, storage, transportation, and disposal areas and structures;

  (5) Mine facilities; and

  (6) Water and air pollution control facilities.

E. The method of site preparation including the procedure for clearing and grubbing and disposal of trees, brush, structures, and debris.

F. A blasting plan for the proposed permit area explaining how the application will comply with the requirements of COMAR 26.20.22. The plan shall include the following:

  (1) Types and approximate amounts of explosives to be used for each type of blasting operation to be conducted;

  (2) Description of procedures and plans for recording and retention of information on the following during blasting:

    (a) Drilling patterns, including size, number, depths, and spacing of holes,

    (b) Charge and packing of holes,

    (c) Types of fuses and detonation controls, and

    (d) Sequence and timing of firing holes;

  (3) Description of blasting warning and site access control equipment and procedures;

  (4) Description of types, capabilities, sensitivities, and location of use of any blast monitoring equipment and procedures proposed to be used;

  (5) Description of plans for accomplishing and reporting to the Bureau the results of pre-blasting surveys, if required; and

  (6) Description of unavoidable hazardous conditions for which deviations from the blasting schedule will be needed;

  (7) Information setting forth the limitations the operator shall meet with regard to ground vibration and air blast, the bases for those limitations, and the methods to be applied in controlling the adverse effects of the blasting operations; and

  (8) If blasting operations are anticipated within 1,000 feet of a building used as a dwelling, public building, school, church, or community or institutional building outside the permit area, or 500 feet of an active or abandoned underground mine, a blast design shall be submitted as part of the blasting plan, which contains sketches of the drill patterns, delay periods, and decking and shall indicate the amount of explosives to be used, critical dimensions, and the location and general description of structures to be protected, as well as a discussion of design factors to be used, which protect the public and meet the applicable air blast, fly rock, and ground vibration standards in COMAR 26.20.22.06H, I, and J. The blast shall be prepared, designed, and signed by a certified blaster.

G. An air pollution control plan which includes the following:

  (1) A plan for fugitive dust control practices; and

  (2) An air quality monitoring program, if required by the Bureau, to provide sufficient data to evaluate the effectiveness of the fugitive dust control practices to comply with applicable federal and State air quality standards.

H. A protection and enhancement plan consistent with the requirements of COMAR 26.20.23.02 for fish and wildlife and related environmental values, which describes how, to the extent possible using the best technology currently available, disturbances and adverse impacts on fish and wildlife and related environmental values identified under Regulation .09B(3) of this chapter will be minimized, including compliance with the Endangered Species Act. The plan shall describe:

  (1) Protective measures to be used during the active mining phases of operation such as the:

    (a) Establishment of buffer zones,

    (b) Selective location and special design of haul roads and power lines, and

    (c) Monitoring of surface water quality and quantity;

  (2) Enhancement measures to be used during the reclamation and postmining phase of operation, to develop aquatic and terrestrial habitat such as:

    (a) Restoration of streams and other wetlands,

    (b) Retention of ponds and impoundments,

    (c) Establishment of vegetation for wildlife food and cover, and

    (d) The placement of perches and nest boxes.

I. When enhancement measures are not practicable under §H(2) of this regulation, a statement explaining why shall be provided by the applicant as part of the plan required by §H of this regulation.

J. Upon request, a copy of resource information provided under Regulation  .09B(3) of this chapter and the protection and enhancement plan shall be provided by the Bureau to the U.S. Department of Interior, Fish and Wildlife Service regional or field office for review within 10 days of receipt of the request from the Service.

K. Maps and plans of the proposed permit and adjacent areas showing the:

  (1) Lands proposed to be affected throughout the operation and any change in a facility or feature, shown under Regulations .10 and .11 of this chapter, to be caused by the proposed operations;

  (2) Area of land to be affected within the proposed permit area, according to the sequence of mining and reclamation.

L. Maps and plans of the proposed permit area showing:

  (1) Buildings, utility corridors, and facilities to be used;

  (2) Each area of land for which a performance bond or other equivalent guarantee will be posted;

  (3) Each coal storage, cleaning, and loading area;

  (4) Each topsoil, spoil, coal waste, and non-coal waste storage area;

  (5) The method of operation, indicating the extent and sequence of the cuts, and the maximum lineal feet of highwall to be open at one time;

  (6) Each water diversion, collection, conveyance, treatment, storage, and discharge facility to be used;

  (7) Each air pollution collection and control facility;

  (8) Each source of waste and each waste disposal facility relating to coal processing or pollution control;

  (9) Each facility to be used to protect and enhance fish and wildlife and related environmental values;

  (10) Each explosive storage and handling facility; and

  (11) Location of each sedimentation pond, permanent water impoundment, coal processing waste bank, and coal processing waste dam and embankment, and fill area for the disposal of excess spoil.

M. Except as provided in COMAR 26.20.26.01B, maps, plans, and cross sections required under §§K and L of this regulation shall be prepared by, or under the direction of and certified by, a qualified registered professional engineer or professional geologist.

N. A hydrologic reclamation plan, with appropriate maps and cross sections for the measures to be taken during mining and reclamation through bond release to:

  (1) Minimize disturbance to the hydrologic balance within the permit and adjacent areas;

  (2) Prevent material damage outside the permit area;

  (3) Meet applicable State and federal water quality laws and regulations; and

  (4) Protect or replace the rights of present water users.

O. A plan for the control and treatment, if necessary to meet applicable State and federal laws and regulations, of surface and ground water drainage into, through, and out of the permit area during the life of the permit to:

  (1) Avoid acid or toxic drainage; and

  (2) Prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to stream flow.

P. A plan which specifically addresses any potential adverse hydrologic consequences identified in the probable hydrologic consequences determination prepared under Regulation .08 of this chapter and which includes preventive and remedial measures.

Q. A plan for the restoration of the approximate recharge capacity of the permit area.

R. A plan for monitoring ground water based on the probable hydrologic consequences determination required under Regulation .08 of this chapter, and the analysis of all baseline hydrologic, geologic, and other information in the permit application. The plan shall provide for the monitoring of parameters that relate to the suitability of the ground water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance. It shall identify the quantity and quality parameters to be monitored, sampling frequency, and site locations, and describe how the data may be used to determine the impacts of the operation upon the hydrologic balance.

S. A plan for monitoring surface water based upon the probable hydrologic consequences determination required under Regulation .08 of this chapter, and the analysis of all baseline hydrologic, geologic, and other information in the permit application. The plan shall provide for the monitoring of parameters that relate to the suitability of the surface water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance. It shall identify the quantity and quality parameters to be monitored, sampling frequency, and site locations, and describe how the data may be used to determine the impacts of the operation upon the hydrologic balance.

T. A detailed description of the proposed use, following reclamation, of the land within the proposed permit area, including:

  (1) The landowner's plan for use of the land according to one or more of the categories in Regulation .09B(8) of this chapter;

  (2) A discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses;

  (3) The relationship of the proposed use to existing land use policies and plans;

  (4) An explanation of:

    (a) How the proposed postmining land use is to be achieved and the necessary support activities which may be needed to achieve the proposed land use,

    (b) If grazing is the proposed postmining use, the detailed management plans to be implemented,

    (c) If a land use different from the pre-mining land use is proposed, all materials needed for approval of the alternative use,

    (d) The consideration which has been given to making all of the proposed surface mining activities consistent with surface owner plans and applicable State and local land use plans and programs;

  (5) A copy of the comments concerning the proposed postmining land use by the:

    (a) Legal or equitable owner of record of the surface of the proposed permit area, and

    (b) State and local government agencies which would have to indicate, implement, approve, or authorize the proposed use of the land following reclamation.

U. A general plan for each proposed siltation structure, sedimentation pond, water impoundment, and coal processing waste bank, dam, or embankment within the proposed mine plan area, which:

  (1) Is prepared by, or under the direction of, and certified by a qualified registered professional engineer;

  (2) Contains a description, contour map, plan view, and cross section of the structure;

  (3) Contains hydrologic and geologic information required to assess the hydrologic impact of the structure; and

  (4) Contains a survey describing the potential effect on the structure from subsidence of the subsurface strata resulting from past underground mining operations if underground mining has occurred.

V. Design Plan.

  (1) A detailed design plan for each proposed siltation structure, sedimentation pond, water impoundment, and coal processing waste bank, dam, or embankment within the proposed permit area, which:

    (a) Is designed in compliance with the requirements of COMAR 26.20.21.06 and 26.20.21.08;

    (b) Is prepared by, or under the direction of, and certified by a qualified registered professional engineer;

    (c) Includes any geotechnical investigation, design, and construction requirements for the structure;

    (d) Describes the operation and maintenance requirements for each structure; and

    (e) Describes the timetable and plans to remove each structure, if appropriate.

  (2) Coal Processing Waste Dam and Embankment Plan.

    (a) Each coal processing waste dam and embankment plan shall contain the results of a geotechnical investigation of the proposed dam or embankment foundation area, to determine the structural competence of the foundation which will support the proposed dam or embankment structure and the impounded material.

    (b) The geotechnical investigation shall be planned and supervised by an engineer or engineering geologist, according to the following:

      (i) The number, location, and depth of borings and test pits shall be determined using current prudent engineering practice for the size of the dam or embankment, quantity of material to be impounded, and subsurface conditions;

      (ii) The character of the overburden and bedrock, the proposed abutment sites, and any adverse geotechnical conditions which may affect the particular dam, embankment, or reservoir site shall be considered;

      (iii) All springs, seepage, and ground water flow observed or anticipated during wet periods in the area of the proposed dam or embankment shall be identified on each plan;

      (iv) The possibility of mudflows, rock-debris falls, or other landslides into the dam, embankment, or impounded material shall be considered.

  (3) If a sedimentation pond, water impoundment, or coal processing waste dam, or siltation structure meets the Class (b) or (c) criteria for dams in the USDA, Soil Conservation Service Technical Release No. 60, (October 1985), as incorporated by reference in COMAR 26.20.21.01-1 or meets the size or other criteria of 30 CFR §77.216(a), the plan shall contain a stability analysis of each structure. The stability analysis shall include but not be limited to strength parameters, pore pressures, and long-term seepage conditions. The plan shall also contain a description of each engineering design assumption and calculation with a discussion of each alternative considered in selecting the specific design parameters and construction methods.

W. A description of the measures to be used to comply with the requirements for surface mining activities within 500 feet of an underground mine, if applicable.

X. Descriptions, including maps and cross sections, of stream channel diversions and other diversions to be constructed.

Y. Descriptions of measures to be used to:

  (1) Minimize or prevent potential adverse impacts on any public parks, forests or wildlife management areas, or historic places that may be adversely affected by the proposed operations; and

  (2) Obtain approval of the Bureau and the agencies with jurisdiction over these parks or places.

Z. Descriptions with appropriate maps and cross sections of the measures to be used to ensure that the interests of the public and landowners affected are protected if the applicant seeks to have the Bureau approve conducting the proposed surface mining activities within 100 feet of the right-of-way line of any public road, except where mine access or haul roads join that right-of-way, or relocating a public road.

AA. Descriptions of Excess Spoil Disposal Site.

  (1) Each application shall contain descriptions, including appropriate maps and cross-section drawings, of any proposed excess spoil disposal site and design of the spoil disposal structures in accordance with COMAR 26.20.26. These plans shall describe the geotechnical investigation, design, construction, operation, maintenance, and removal, if appropriate, of the site and structures.

  (2) Each application shall contain the results of a geotechnical investigation of the proposed disposal site, including the character of bedrock and any adverse geological conditions in the disposal area, a survey identifying all springs, seepage, and ground water flow observed or anticipated during wet periods in the area of the disposal site, a survey of the potential effects of subsidence of the subsurface strata due to past and future mining operations, a technical description of the rock materials to be used in the construction of those disposal structures containing rock chimney cores or underlain by a rock drainage blanket, and a stability analysis including but not limited to strength parameters, pore pressures and long-term seepage conditions. The data shall be accompanied by a description of all engineering design assumptions and calculations and the alternative considered in selecting the specific design specifications and methods.

  (3) If rock toe buttresses or keyway cuts are required, the application shall include the number, location, and depth of borings or test pits which shall be determined with respect to the size of the spoil disposal structure and subsurface conditions, and engineering specifications used to design the rock toe buttress or keyway cuts which shall be determined in accordance with §AA(2) of this regulation.

BB. A detailed description of each road, conveyor, or rail system to be constructed, used, or maintained within the proposed permit area, including:

  (1) A map, profile, and appropriate cross sections, design drawings, and specifications for road widths, gradients, surfacing materials, cuts, fill embankments, culverts, bridges, drainage ditches, low-water crossings, and drainage structures;

  (2) Drawings and specifications of each proposed road that is located in the channel of an intermittent or perennial stream, as necessary for approval of the road by the Bureau in accordance with COMAR 26.20.19;

  (3) Drawings and specifications for each proposed ford of perennial or intermittent streams that is used as a temporary route, as necessary for approval of the ford by the Bureau in accordance with COMAR 26.20.19;

  (4) A description of measures to be taken to obtain approval of the Bureau for alteration or relocation of a natural drainageway;

  (5) Drawings and specifications for each low-water crossing of perennial or intermittent stream channels so that the Bureau can maximize the protection of the stream in accordance with COMAR 26.20.19;

  (6) A description of measures, other than use of a rock headwall, to be taken to protect the inlet end of a ditch relief culvert, for approval by the Bureau; and

  (7) A description of the plans to remove and reclaim each road that will not be retained under an approved postmining land use, and the schedule for this removal and reclamation; and

  (8) Design and certification of the plans and drawings for each primary road by a qualified registered professional engineer in accordance with COMAR 26.20.19.01F.

CC. A description of each support facility to be constructed, used, or maintained within the proposed permit area, including plans and drawings. The plans and drawings shall include a map, appropriate cross sections, design drawings, and specifications sufficient to demonstrate compliance with COMAR 26.20.19.08 and .09.

#### Regulation .14 Plan for Land Reclamation.

*COMAR 26.20.02.14*

The permit application shall contain a plan for reclamation of the lands within the proposed permit area, including:

A. A detailed timetable for completion of each major step in the reclamation plan;

B. A detailed estimate of the cost of reclamation of the proposed operations required to be covered by a performance bond with supporting calculation for the estimates;

C. A description of measures to be employed to dispose of debris, acid-forming and toxic-forming materials, and materials constituting a fire hazard, and a description of the contingency plans which have been developed to preclude sustained combustion of these materials;

D. A plan for backfilling, soil stabilization, compacting, grading, and controlling surface drainage following regrading, with contour maps or cross sections that show the existing slope and the anticipated final surface configuration of the proposed permit area, and a list of the backfilling equipment to be used in the operation;

E. A plan for removal, storage, protection from erosion, and redistribution of topsoil, subsoil, and other materials;

F. A plan for revegetation, including the:

  (1) Schedule of revegetation,

  (2) Method of seed bed preparation,

  (3) Species and amounts per acre of seed and seedlings to be used,

  (4) Rate of lime application,

  (5) Analysis and rate of fertilizer application,

  (6) Methods to be used in planting and seeding,

  (7) Mulching techniques, type, and rate of application,

  (8) Irrigation, if appropriate, and pest and disease control measures, if any,

  (9) Measures proposed to be used to determine the success of revegetation, and

  (10) A soil testing plan for evaluation of the results of topsoil handling and reclamation procedures related to revegetation;

G. A description, including appropriate cross sections and maps, of the measures to be used to seal or manage mine openings, and to plug, case, or manage exploration holes, other bore holes, wells, and other openings within the proposed permit area; and

H. A description of steps to be taken to comply with the requirements of the Clean Air Act (42 U.S.C. §7401 et seq.), the Clean Water Act (33 U.S.C. §1251 et seq.), and other applicable air and water quality laws and regulations and health and safety standards.

#### Regulation .15 Survey of Structures and Renewable Resource Lands.

*COMAR 26.20.02.15*

A. An application for an underground mining permit shall contain a survey which shall show whether structures or renewable resource lands exist within the proposed permit and adjacent area, and whether subsidence, if it occurred, could cause material damage or diminution of reasonably foreseeable use of these structures or renewable resource lands.

B. The survey required by §A of this regulation shall contain:

  (1) A map of the permit area and adjacent areas at a scale of 1:12,000, or larger, if determined necessary by the Bureau, showing the location and type of:

    (a) Structures and renewable resource lands that subsidence may materially damage or for which the value or reasonably foreseeable use may be diminished by subsidence; and

    (b) Water supplies that could be contaminated, diminished, or interrupted by subsidence;

  (2) A narrative indicating whether subsidence, if it occurs, could:

    (a) Cause material damage to or diminish the value or reasonably foreseeable use of any structures or renewable resource lands; or

    (b) Contaminate, diminish, or interrupt any water supplies; and

  (3) A survey of the quantity and quality of all water supplies in the permit area and adjacent areas as required by COMAR 26.20.13.07E.

C. If the survey under §§A and B of this regulation shows that no structures, water supplies, or renewable resource lands exist, or that no material damage or diminution in value or reasonably foreseeable use of such structures or lands, or interruption of such water supplies would occur as a result of mine subsidence, and if the Bureau agrees with the conclusion, further information need not be provided in the application under this regulation.

D. If the survey, under §§A and B of this regulation shows that structures or renewable resource lands, or water supplies exist, and that subsidence could cause material damage or diminution of the value or reasonably foreseeable use of such structures or lands, or contamination, diminution, or interruption of water supplies, or if the Bureau determines that the damage, diminution in value or foreseeable use, or contamination, diminution, or interruption could occur, the application shall contain a subsidence control plan in accordance with Regulation .16 of this chapter.

#### Regulation .16 Subsidence Control Plan.

*COMAR 26.20.02.16*

A subsidence control plan, if required under Regulation .15 of this chapter, shall include:

A. A detailed description of the mining method and other measures to be taken which may affect subsidence, including:

  (1) The technique of coal removal, such as longwall mining, room and pillar with pillar removal, hydraulic mining, or other methods, including the size, sequence, and timing for the development of underground workings;

  (2) A description of the physical conditions, such as depth of cover, seam thickness, and lithology, which affect the likelihood or extent of subsidence and subsidence-related damage; and

  (3) A map of the underground workings which describes the location and extent of all areas when:

    (a) Planned subsidence mining methods will be used, and

    (b) Subsidence prevention or damage mitigation methods described in §B of this regulation will be used;

B. A detailed description of the measures to be taken to prevent subsidence from causing material damage or lessening the value or reasonably foreseeable use of the surface, including:

  (1) The anticipated effects of planned subsidence, if any;

  (2) Measures, if any, to be taken in the mine to reduce the likelihood of subsidence, including such measures as:

    (a) Backstowing or backfilling of voids,

    (b) Leaving support pillars of coal, and

    (c) Areas in which no coal removal is planned, including a description of the overlying area to be protected by leaving coal in place,

  (3) Measures to be taken on the surface to prevent material damage or lessening of the value or reasonably foreseeable use of the surface including such measures as:

    (a) Reinforcement of sensitive structures or features,

    (b) Installation of footers designed to reduce damage caused by movement,

    (c) Change of location of pipelines, utility lines, or other features,

    (d) Relocation of movable improvements to sites outside the angle of draw, and

    (e) Monitoring to determine the commencement and degree of subsidence so that other appropriate measures can be taken to prevent or reduce material damage;

C. A detailed description of the measures to be taken to mitigate the effects of any material damage or diminution of value or foreseeable use of lands which may occur, including one or more of the following:

  (1) Restoration or rehabilitation of structures and features, including approximate land-surface contours, to premining conditions;

  (2) Replacement of structures destroyed by subsidence;

  (3) Purchase of structures before mining and restoration of the land after subsidence to a condition capable of supporting and suitable for the structures and foreseeable land uses;

  (4) Purchase of noncancellable insurance policies payable to the surface owner in the full amount of the possible material damage or other comparable measures;

D. If required by the Bureau, a detailed description of measures to be taken to determine the degree of material damage or diminution of value of foreseeable use of the surface, including such measures as:

  (1) Presubsidence surveys of all structures and surface features which might be materially damaged by subsidence; and

  (2) Monitoring to measure deformations near specified structures or features or otherwise as appropriate for the operation;

E. A description of the measures to be taken in accordance with COMAR 26.20.13.05 and COMAR 26.20.13.09:

  (1) To replace adversely affected water supplies; or

  (2) To mitigate or remedy any subsidence-related material damage to the land and protected structures; and

F. Other information specified by the Bureau as necessary to demonstrate that the operation will be conducted in accordance with the performance standards of COMAR 26.20.13.

#### Regulation .17 Return of Waste.

*COMAR 26.20.02.17*

A. A plan for the return of coal processing waste to abandoned underground workings, if applicable, shall include:

  (1) A description of the design, operation, and maintenance of any proposed coal processing waste disposal facility, including:

    (a) Flow diagrams,

    (b) All necessary drawings and maps;

  (2) A description of the source and quality of waste to be stowed, area to be backfilled, percent of the mine void to be filled, method of constructing underground retaining walls, influence of the backfilling operation on active underground mine operations, surface area to be supported by the backfill, and the anticipated occurrence of surface effects following backfilling;

  (3) A description of the source of the hydraulic transport mediums, method of dewatering the placed backfill, retainment of water underground, treatment of water if released to surface streams, and the effect on the hydrologic regime;

  (4) A description of the ground water monitoring program.

B. All of the above requirements shall also apply to pneumatic backfilling operations, except where the operations are exempted by the regulatory authority from requirements specifying hydrologic monitoring.

#### Regulation .18 Deep Mine Applications.

*COMAR 26.20.02.18*

In addition to the applicable requirements of this chapter, an application for a deep mine permit shall also contain the following:

A. An application fee of $200;

B. Copies of other permits required by the Department in order to engage in the proposed operation;

C. The names of the owners of the minerals to be removed, including reference to the deeds or leases whereby the mineral rights have been acquired, and copies of the documents, if requested by the Bureau;

D. A map of the proposed underground portion of the affected area at a scale of 1 inch to 500 feet, unless a different scale is approved by the Bureau, which clearly identifies the following:

  (1) The boundaries of the proposed affected area for which the applicant has the legal right to conduct underground coal mining operations,

  (2) The number of acres in the affected area, including a breakdown of the acreage by property owner,

  (3) The boundaries of surface properties and the names and addresses of the owners of the surface within the affected area and within 1,000 feet of the affected area,

  (4) The location of active, plugged, or abandoned oil, gas, and water wells and springs within the proposed affected area and within 1,000 feet of the proposed affected area, including the names and addresses of the owners,

  (5) The location of all known test borings, and

  (6) The location and name, if known, of streams and other bodies of water, roads, railroads, public buildings, churches, cemeteries, and major fluid, gas, and utility transmission lines within the affected area and within 1,000 feet of the affected area;

E. Cross sections above the underground workings depicting presubsidence and postsubsidence ground profiles, based on approved prediction methods and at locations specified by the Bureau;

F. A geological structure map for the affected area and the adjacent areas specified by the Bureau at a scale of 500 feet to the inch, or smaller, which provides the following information:

  (1) Structural contours at the base of the coal seam to be mined,

  (2) The location of faults or fractures known to exist and, if required by the Bureau, the results of a fracture trace analysis,

  (3) The outcrop of the coal seam to be mined,

  (4) The strike and dip of the strata and the direction and amount of plunge of the regional structure,

  (5) The axis of any regional structural feature which occurs within the limits of the map,

  (6) The boundaries of any adjacent active or abandoned deep or surface mine areas;

G. The results of laboratory analyses, if required by the Bureau, for both chemical and mechanical properties of strata overlying and underlying the coal seam to be mined;

H. Information on adjacent active, inactive, or abandoned deep mines, including those in overlying or underlying coal seams, if available, describing the:

  (1) Current condition of the mine,

  (2) Approximate age of the mine,

  (3) Type of mining which occurred,

  (4) Existence and elevation of any mine pool,

  (5) Rate and quality of discharge from known entries or outlets, and

  (6) Existence and extent of any mine fires;

I. A determination of the anticipated mining and postmining water quality and quantity based on hydrologic models and monitoring data from hydrologically comparable mines; and

J. Other information requested by the Bureau.

### Chapter 03 — Permit Applications — Special Categories of Mining

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01 and .02—.10 were previously codified as COMAR 08.13.09.03 Introduction and A—I, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.03 to COMAR 26.20.03, June 1996

**Administrative History:** Regulation .05I amended effective July 8, 2002 (29:13 Md. R. 993)

**Administrative History:** Regulation .07 amended effective May 8, 2006 (33:9 Md. R. 797)

#### Regulation .01 Scope.

*COMAR 26.20.03.01*

These requirements are in addition to the general requirements contained in COMAR 26.20.02.

#### Regulation .02 Experimental Practices Mining.

*COMAR 26.20.03.02*

A. The requirements of this regulation apply to any person who conducts or intends to conduct surface coal mining and reclamation operations under a permit authorizing the use of alternative mining practices on an experimental basis, if the practices require a variance from the environmental protection performance standards of the Regulatory Program. The purpose of this regulation is to provide requirements for the permitting of surface coal mining and reclamation operations that encourage advances in mining and reclamation practices, or allow postmining land use for industrial, commercial, residential, or public use (including recreational facilities) on an experimental basis. “Experimental practice” means the use of alternative surface coal mining and reclamation operation practices for experimental or research purposes. Experimental practices need not comply with specific environmental protection performance standards of the Regulatory Program, if approved pursuant to this regulation.

B. A person may not engage in or maintain any experimental practice, unless that practice is first approved in a permit by the Bureau. The Bureau may not grant approval without first obtaining concurrence with appropriate officials of the federal Office of Surface Mining.

C. Each person who desires to conduct an experimental practice shall submit a permit application for the approval of the Bureau. The permit application shall contain appropriate descriptions, maps, and plans which show:

  (1) The nature of the experimental practice, including a description of the performance standards for which variances are requested, the duration of the experimental practice, and any special monitoring which will be conducted;

  (2) How use of the experimental practice:

    (a) Encourages advances in mining and reclamation technology, or

    (b) Allows a postmining land use for industrial, commercial, residential, or public use (including recreational facilities), on an experimental basis, when the results are not otherwise attainable under the approved Regulatory Program;

  (3) That the mining and reclamation operations proposed for using an experimental practice are not larger or more numerous than necessary to determine the effectiveness and economic feasibility of the experimental practice;

  (4) That the experimental practice:

    (a) Is potentially more, or at least as, environmentally protective during and after the proposed mining and reclamation operations as those practices normally required under the Regulatory Program, and

    (b) Will not reduce the protection afforded public health and safety below that provided by the requirements of the Regulatory Program;

  (5) That the applicant will conduct monitoring of the effects of the experimental practice during and after the operations involved. The monitoring program shall:

    (a) Insure the collection, analysis, and reporting of sufficient and reliable data to enable the Bureau and the federal Office of Surface Mining to make adequate comparisons with other surface coal mining and reclamation operations employing similar experimental practices,

    (b) Evaluate the effectiveness of the experimental practice, and

    (c) Include requirements designed to identify, as soon as possible, potential risks to the environment and public health and safety from the use of the experimental practice.

D. Each application shall set forth the environmental protection performance standards of the Regulatory Program which will be implemented, if the objective of the experimental practice is a failure.

E. All experimental practices for which variances are sought shall be specifically identified through newspaper advertisements by the applicant and the written notifications by the Bureau under COMAR 26.20.04.02C.

F. A permit authorizing an experimental practice may not be issued, unless the Bureau first finds, in writing, upon the basis of both a complete application filed in accordance with the requirements of this section, and the comments of the federal Office of Surface Mining, that:

  (1) The experimental practice meets all of the requirements of §C of this regulation;

  (2) The experimental practice is based on a clearly defined set of objectives which can reasonably be expected to be achieved;

  (3) The experimental practice has been specifically approved, in writing, by the federal Office of Surface Mining, based on a finding that all of the requirements of §C of this regulation will be met; and

  (4) The permit contains conditions which specifically:

    (a) Limit the experimental practice authorized to that granted by the Bureau and the federal Office of Surface Mining,

    (b) Impose enforceable alternative environmental protection requirements, and

    (c) Require the permittee to conduct the periodic monitoring, recording, and reporting program set forth in the application, with such additional requirements as the Bureau or the federal Office of Surface Mining may require.

G. Experimental practices granting variances from the special environmental protection performance standards applicable to prime farmlands shall be approved only after consultation with the U.S. Department of Agriculture, Soil Conservation Service.

H. Each experimental practice shall be reviewed by the Bureau at a frequency set forth in the approved permit, but not less frequently than every 2-1/2 years. After the annual review of any permit which authorizes the use of an experimental practice, the Bureau, with the consent of the federal Office of Surface Mining, shall require by order, supported by written findings, any reasonable revision or modification of the permit provisions necessary to ensure that the operations involved are conducted to protect fully the environment and public health and safety. Any person who is or may be adversely affected by the order shall be provided with an opportunity for a hearing.

I. Revisions or modifications to an experimental practice shall be processed in accordance with COMAR 26.20.07 and approved by the Bureau. Any revisions which propose significant alterations in the experimental practice shall, at a minimum, be subject to the notice, hearing, and public participation requirements of COMAR 26.20.04 and the concurrence of the federal Office of Surface Mining.

#### Regulation .03 Mountaintop Removal Mining.

*COMAR 26.20.03.03*

A. This regulation applies to any person who conducts or intends to conduct surface mining activities by mountaintop removal mining. “Mountaintop removal mining” means surface mining activities where the mining operation removes an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill (except where an outcrop barrier, consisting of the lowest coal seam and its associated overburden, is required to be retained by the Bureau) by removing substantially all of the overburden off the bench, and creating a level plateau or a gently rolling contour, with no highwalls remaining, and which is capable of supporting postmining land uses in accordance with the requirements of this regulation.

B. The Bureau will not issue a permit for mountaintop removal mining, unless it first finds, in writing, that the following requirements are met:

  (1) The proposed postmining land use of the lands to be affected will be an industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use, and, if after consultation with the appropriate land-use planning agencies, the proposed land use is deemed to constitute an equal or better economic or public use of the affected land compared with the pre-mining use, then:

    (a) The applicant demonstrates compliance with the requirement for acceptable alternative postmining land uses,

    (b) The proposed use would be compatible with adjacent land uses and existing State and local land use plans and programs, and

    (c) The Bureau has provided, in writing, an opportunity of not more than 60 days to review and comment on the proposed use, to the commissioners of the county in whose jurisdiction the land is located and any State or federal agencies which have any interest in the proposed use;

  (2) The applicant has demonstrated that, in place of restoration of the land to be affected to the approximate original contour, the operation will be conducted in compliance with the special performance standards of COMAR 26.20.24.03 for mountaintop removal, and these requirements are made a specific condition of the permit;

  (3) The proposed operations will meet all other requirements of the Regulatory Program;

  (4) The permit is clearly identified as being for mountaintop removal mining.

C. Any permits incorporating a variance issued under this regulation shall be reviewed annually, and before permit renewal, to establish that the operator is proceeding in accordance with the terms of the variance, unless the permittee has demonstrated and the Bureau found in writing, within 3 months before the scheduled review, that all operations under the permit are proceeding and will continue to be conducted in accordance with the terms of the permit and requirements of the Regulatory Program.

D. The terms and conditions of a permit for mountaintop removal mining may be modified at any time by the Bureau, if it determines that more stringent measures are necessary to insure that the operation involved is conducted in compliance with the requirements of the Regulatory Program.

#### Regulation .04 Steep Slope Mining.

*COMAR 26.20.03.04*

A. This regulation applies to any person who conducts or intends to conduct steep slope surface coal mining and reclamation operations. “Steep slope” means any slope of 20 degrees or more. This regulation does not apply to operations on predominantly flat or gently rolling terrain, but on which an occasional steep slope is encountered as the mining operation proceeds.

B. The Bureau will not issue a permit for surface mining activities on slopes of 20 degrees or more unless the application contains sufficient information to demonstrate that the following requirements will be met:

  (1) The mining operation will be conducted on lands containing a previously orphaned surface or deep mining operation;

  (2) The Land Reclamation Committee finds that the land can be restored to its original contour; and

  (3) The Bureau finds, in writing, that in addition to meeting all other requirements of the Regulatory Program, the operation will be conducted in accordance with the requirements for operations on steep slopes, as contained in COMAR 26.20.24.04.

#### Regulation .05 Prime Farmlands.

*COMAR 26.20.03.05*

A. This regulation applies to any person who conducts or intends to conduct surface coal mining and reclamation operations on prime farmland historically used for cropland. Nothing in this regulation applies to any permit issued before August 3, 1977, or to any revisions or renewals of it, or to any existing surface mining operations for which a permit was issued before August 3, 1977.

B. All permit applications shall include the results of a reconnaissance inspection of the proposed permit area to indicate whether prime farmland exists. The Bureau in consultation with the U.S. Soil Conservation Service shall determine the nature and extent of the reconnaissance inspection.

C. If the reconnaissance inspection establishes that land not within the proposed permit area may be prime farmland historically used for cropland, the applicant shall submit a statement that no prime farmland is present. The statement shall identify the basis upon which such a conclusion was reached.

D. If the reconnaissance inspection indicates that land within the proposed permit area may be prime farmland historically used for cropland, the applicant shall determine if a soil survey exists for those lands and whether soil mapping units in the proposed permit area have been designated as prime farmland.

E. If a soil survey does not exist, the applicant shall have a soil survey made of the lands within the proposed permit area which the reconnaissance inspection indicates could be prime farmland. Soil surveys of the detail used by the U.S. Soil Conservation Service for operational conservation planning shall be used to identify and locate prime farmland.

F. If the soil survey indicates that prime farmland soils are:

  (1) Not present within the proposed permit area, §C of this regulation shall apply; or

  (2) Present within the proposed permit area, §E of this regulation shall apply.

G. If land within the proposed permit area is identified as prime farmland, the applicant shall submit a plan for the mining and restoration of the land. Each plan shall contain, at a minimum:

  (1) A soil survey of all prime farmland within the permit area according to the standards of the National Cooperative Soil Survey and in accordance with the procedures set forth in the U.S. Department of Agriculture (USDA) Handbook 436 (Soil Taxonomy, 1975), as amended on March 22, 1982 and October 5, 1982 and Handbook 18 (Soil Survey Manual, 1951, as amended on December 18, 1979, May 7, 1980, May 9, 1980, September 11, 1980, June 9, 1981, June 29, 1981, and November 16, 1982). The U.S. Soil Conservation Service establishes the standards of the National Cooperative Soil Survey and maintains a National Soils Handbook which gives current acceptable procedures for conducting soil surveys. This National Soils Handbook is available for review at area and State SCS offices.

  (2) The soil survey shall include a map unit and representative soil profile description for each prime farmland soil within the permit area, including, but not limited to, soil-horizon depths, pH, and the range of soil densities for each prime farmland soil unit within the permit area. Other representative descriptions from the locality, prepared in conjunction with the National Cooperative Soil Survey, may be used if their use is approved by the Bureau.

  (3) The regulatory authority may request the operator to provide information on other physical and chemical soil properties as needed to make a determination that the operator has the technological capability to restore the prime farmland within the permit area to the soil reconstruction standards of COMAR 26.20.24.02.

  (4) The proposed method and type of equipment to be used for removal, storage, and replacement of the soil.

  (5) Identification of the procedures to be used to avoid excessive compaction during replacement of the soil.

  (6) The location of areas to be used for the separate stockpiling of the soil, and plans for soil stabilization before redistribution.

  (7) If applicable, documentation, such as agricultural school studies or other scientific data from comparable areas, that supports the use of other suitable material, instead of the “A”, “B”, or “C” soil horizon, to obtain equivalent or higher levels of yield on the restored area as on non-mined prime farmlands in the surrounding area under equivalent levels of management.

  (8) The conservation practices to be used, to adequately control erosion and sedimentation and restoration of an adequate soil moisture regime, during the period from completion of regrading until release of the performance bond. Proper adjustments for seasons shall be proposed so that final graded land is not exposed to erosion during seasons when vegetation or conservation practices cannot be established due to weather conditions.

  (9) Available agricultural school studies or other scientific data for areas with comparable soils, climate, and management (including water management) that demonstrate that the proposed method of reclamation will achieve, within a reasonable time, equivalent or higher levels of yield after mining as existed before mining.

  (10) Current estimated yields under a high level of management for each soil map unit from the USDA for each crop to be used in determining success of revegetation. These yield estimates shall be used by the Bureau as the predetermined target level for determining success of revegetation. The target yields may be adjusted by the Bureau in consultation with the USDA before approval of the permit application. In all cases, soil productivity for prime farmland shall be returned to equivalent levels of yield as non-mined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed pursuant to §G(1) and (2) of this regulation.

Editor's Note: The National Soils Handbook, which is incorporated by reference, can be found in State Soil Conservation Service offices located in each of the 23 counties of Maryland.

H. Before any permit is issued for areas that include prime farmlands, the Bureau shall consult with the USDA, which shall provide for review and comment of the proposed methods of soil reconstruction in the plan submitted under §G of this regulation. If the USDA considers those methods to be inadequate, it shall suggest revisions resulting in more complete and adequate reconstruction. USDA responsibilities under this section are assigned to the Administrator of the U.S. Soil Conservation Service.

I. A permit for the mining and reclamation of prime farmland will not be granted by the Bureau, unless it first finds the following, in writing, upon the basis of a complete application:

  (1) The approved proposed postmining land use of these prime farmlands will be cropland;

  (2) The permit incorporates, as specific conditions, the contents of the plan submitted under §G of this regulation, after consideration of any revisions to that plan suggested under §H of this regulation by the USDA;

  (3) The applicant has the technological capability to restore the prime farmland, within a reasonable time, to equivalent or higher levels of yield as non-mined prime farmland in the surrounding area under equivalent levels of management; and

  (4) The proposed operations will be conducted in compliance with the requirements of COMAR 26.20.24.02 for operations on prime farmland, and other environmental protection performance and reclamation standards for mining and reclamation of prime farmland of the Regulatory Program;

  (5) The aggregate total prime farmland acreage may not be decreased from that which existed prior to mining;

  (6) Water bodies, if any, to be constructed during mining and reclamation operations shall be located within the postreclamation nonprime farmland portions of the permit area; and

  (7) The creation of any such water bodies shall be approved by the Bureau and the consent of all affected property owners within the permit area shall be obtained.

#### Regulation .06 Variances for Delay in Contemporaneous Reclamation Requirement in Combined Surface and Underground Mining Operations.

*COMAR 26.20.03.06*

A. This regulation applies to any person who conducts or intends to conduct combined surface mining activities and underground mining activities, where contemporaneous reclamation is not practicable and a delay is requested to allow underground mining activities to be conducted before the reclamation operation for the surface mining activities can be completed. In general, delay in reclamation of surface mining activities will be permitted, if that delay will allow underground mining activities to be conducted to ensure both maximum practical recovery of coal resources and to avoid multiple future disturbances of surface land or waters.

B. Any person who desires to obtain a variance under this regulation shall file with the Bureau complete applications for both the surface mining activities and underground mining activities which are to be combined. The mining and reclamation operation plans for these permits shall contain appropriate narratives, maps, and plans, which:

  (1) Show why the proposed underground mining activities are necessary or desirable to assure maximum practical recovery of coal;

  (2) Show how multiple future disturbances of surface lands or waters will be avoided;

  (3) Identify the specific surface areas for which a variance is sought and the particular section of the Regulatory Program from which a variance is being sought;

  (4) Show how the activities will comply with the requirements under COMAR 26.20.24.07 for concurrent surface and underground mining and other applicable requirements of the Regulatory Program;

  (5) Show why the variance sought is necessary for the implementation of the proposed underground mining activities;

  (6) Provide an assessment of the adverse environmental consequences and damages, if any, that will result if the reclamation of surface mining activities is delayed; and

  (7) Show how off-site storage of spoil will be conducted.

C. The Bureau will not issue a permit incorporating a variance under this regulation unless it first finds, in writing, that:

  (1) The applicant has presented specific, feasible plans for the proposed underground mining activities;

  (2) The proposed underground mining activities are necessary or desirable to assure maximum practical recovery of the mineral resources and will avoid multiple future disturbances of surface land or waters;

  (3) The applications for the surface mining activities and underground mining activities conform to the requirements of the Regulatory Program and all other permits necessary for the underground mining activities have been issued by the appropriate authority;

  (4) The area of surface mining activities proposed for the variance are necessary for implementing the proposed underground mining activities;

  (5) No substantial adverse environmental damage, either on-site or off-site, will result from the delay in completion of reclamation otherwise required by the Regulatory Program;

  (6) The operations will, insofar as a variance is authorized, be conducted in compliance with the requirements of COMAR 26.20.24.07 for concurrent surface and underground mining and the Regulatory Program;

  (7) Provisions for off-site storage of spoil will comply with the requirements of the Regulatory Program;

  (8) Liability under the performance bond required to be filed by the applicant shall be for the duration of the underground mining activities and until all requirements of the Regulatory Program have been complied with; and

  (9) The permit for the surface mining activities:

    (a) Delineates the particular surface areas for which a variance is authorized,

    (b) Identifies the particular requirements for concurrent surface and underground mining which are to be complied with instead of the otherwise applicable provisions of the Regulatory Program, and a detailed schedule for compliance with those particular requirements.

D. Variances granted under this regulation shall be reviewed annually by the Bureau.

#### Regulation .07 Augering.

*COMAR 26.20.03.07*

A. Any application for a permit for augering operations shall contain, in the mining and reclamation plan, a description of the augering methods to be used and the measures to be used to comply with the requirements of COMAR 26.20.24.01 for auger mining.

B. A permit may not be issued for an augering operation unless the Bureau finds, in writing, that the operation:

  (1) Meets all other requirements of this subtitle; and

  (2) Will be conducted in compliance with COMAR 26.20.24.01.

#### Regulation .08 Coal Preparation Plants and Associated Facilities Not Located within the Permit Area of a Mine.

*COMAR 26.20.03.08*

A. Regulations .08 and .09 of this chapter apply to any person who conducts or intends to conduct surface coal mining and reclamation operations using coal preparation plants and associated facilities not otherwise within a permit area of a mine.

B. Any such person shall obtain a permit from the Bureau under the Regulatory Program in accordance with the requirements of this regulation.

C. Any application for a permit for operations covered by this regulation and Regulation .09 of this chapter shall contain in the mining and reclamation plan, specific plans, including descriptions, maps, and cross sections of the construction, operation, maintenance, and removal of the preparation plants and associated facilities.

D. The Bureau will not issue a permit for any operation covered by this regulation, unless it finds, in writing, that, in addition to meeting all other applicable application requirements, the operations will be conducted in compliance with the requirements of COMAR 26.20.24.05.

E. A person may not operate a coal preparation plant within the State without first obtaining a permit from the Bureau and any other permits or approvals required by law, except that a person operating a coal preparation plant on the effective date of this regulation who was not previously regulated under the Regulatory Program may continue to conduct that operation until 8 months from the effective date of this regulation if an application for a permit has been made to the Bureau in accordance with §F of this regulation and Regulation .09 of this chapter.

F. Except as provided in this regulation, on and after 8 months from the effective date of this regulation a person may not operate a coal preparation plant unless that person has first obtained a permit issued by the Bureau pursuant to the Regulatory Program, and that person complies with the terms and conditions of the permit and the requirements of the Regulatory Program. However, a person who is operating a coal preparation plant without a permit on the effective date of this regulation may continue to operate that plant after 8 months from the effective date of this regulation, if:

  (1) The plant was not regulated under the Regulatory Program before the effective date of this regulation;

  (2) A timely application has been made to the Bureau in accordance with the schedules in Regulation .09 of this chapter; and

  (3) The Bureau has not rendered a decision to issue or deny the permit.

#### Regulation .09 Schedules.

*COMAR 26.20.03.09*

A timely application pursuant to Regulation .08F of this chapter shall consist of filing of an application in accordance with the following schedules:

A. Within 2 months of the effective date of this regulation the following shall be submitted to the Bureau:

  (1) Module I and Module II of the application for mining operations.

  (2) A map at a scale of 500 feet to the inch, or larger. The map shall identify:

    (a) The boundaries of surface properties within the permit area and within 1,000 feet of the permit area, and the names of the owners of the surface properties within the permit area and within 1,000 feet of the permit area;

    (b) The boundaries of the proposed permit area upon which the applicant has the legal right to enter and conduct surface mining operations, and the boundaries of all existing contiguous permits;

    (c) The location of all buildings on and within 1,000 feet of the proposed permit area, with identification of the current use of the buildings;

    (d) The location of surface and subsurface man-made features within, passing through, or passing over the proposed permit area, including but not limited to major electric transmission lines, pipelines, and agricultural drainage tile fields;

    (e) Each public road located on or within 1,000 feet of the proposed permit area;

    (f) Each public or private cemetery or Indian burial ground located on or within 100 feet of the proposed permit area;

    (g) The location of surface water bodies such as streams, creeks, lakes, ponds, springs, constructed or natural drains, and irrigation ditches within the proposed permit and adjacent areas;

    (h) The boundaries of any public park, forest or wildlife management area, the locations of any cultural or historic resources listed in the National Register of Historic Places, and the locations of any known archaeological sites within the permit area or adjacent areas;

    (i) The distance from the permit area to the nearest structure and to any structure, dwelling, or physical feature, or all of these, where mining is prohibited, unless a waiver or exemption is obtained;

    (j) The location of monitoring stations used to gather water quality and quantity data in preparation of the application.

B. Within 4 months of the effective date of this regulation, the following shall be submitted to the Bureau:

  (1) Module III and Module IV of the application for mining operations;

  (2) A mining plan map; and

  (3) Other information required to complete an application under the Regulatory Program.

C. The application shall be submitted in accordance with COMAR 26.20.04.

#### Regulation .10 In Situ Processing Activities.

*COMAR 26.20.03.10*

A. This regulation applies to any person who conducts or intends to conduct surface coal mining and reclamation operations using in situ processing activities.

B. Any application for a permit for operations covered by this regulation shall be made according to all requirements applicable to underground mining activities. In addition, the mining and reclamation operations plan for operations involving in situ processing activities shall contain information establishing how those operations will be conducted in compliance with the requirements of COMAR 26.20.24.06, including:

  (1) Delineation of proposed holes and wells and production zone;

  (2) Specifications of drill holes and casings proposed to be used;

  (3) A plan for treatment, confinement, or disposal of all acid-forming, toxic-forming, or radioactive gases, solids, or liquids constituting a fire, health, safety, or environmental hazard caused by the mining and recovery process; and

  (4) Plans for monitoring surface and ground water and air quality.

C. The Bureau will not issue a permit for operations covered by this regulation, unless it first finds, in writing, that the operation will be conducted in compliance with all application requirements relating to underground mining activities, the Regulatory Program performance standards for underground mining activities, and COMAR 26.20.24.06.

### Chapter 04 — Permit Applications — Review Procedures

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 and .08—.13 were previously codified as COMAR 08.13.09.04A—G and H—M, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Regulation .02 amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .03B amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .07 amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .08A amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .08B amended effective October 23, 1995 (22:21 Md. R. 1614)

**Administrative History:** Regulation .09 repealed effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .10A, G, H amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .11 amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .12 amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .13 amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Chapter recodified from COMAR 08.20.04 to COMAR 26.20.04, June 1996

#### Regulation .01 Initial Submission of Application.

*COMAR 26.20.04.01*

A person seeking an open-pit mining permit shall simultaneously submit to the Bureau:

A. An original and three complete copies of an application containing all information required by COMAR 26.20.02, and applicable portions of COMAR 26.20.03. The application shall be submitted on forms provided by the Bureau, with any provision considered to be inapplicable being clearly identified as such.

B. A copy of an application for the National Pollutant Discharge Elimination System (NPDES) permit and any other permits required in order to engage in the proposed operation.

#### Regulation .02 Initial Review by the Bureau.

*COMAR 26.20.04.02*

A. Within 10 days of receipt of a permit application, the Bureau shall conduct a preliminary review for completeness. If it is determined that necessary information is not included, the Bureau shall return the application, with notification as to its deficiencies, and take no further action regarding the permit request.

B. If it is determined immediately that the requested permit cannot be issued, the Bureau shall so notify the applicant in accordance with the provisions of Regulation .12 of this chapter.

C. When the Bureau determines that an application is complete, the Bureau shall:

  (1) Notify the applicant in writing that the application is complete, and that the applicant shall advertise in a newspaper as required by Regulation .03 of this chapter, and file a copy of the application for public inspection as required by Regulation .04 of this chapter;

  (2) Forward copies of the application to the agency responsible for issuing the National Pollutant Discharge Elimination System permit and the soil conservation district in which the proposed operation is located, and provide these agencies an opportunity for a technical on-site evaluation within 2 weeks; and

  (3) Issue written notification of receipt of a complete application to:

    (a) Local government agencies with jurisdiction over or an interest in the area of the proposed surface coal mining and reclamation operation, including but not limited to the county commissioners, county planning and zoning agency, sewage and water treatment authorities, and

    (b) Federal or State government agencies with authority to issue permits and licenses applicable to the proposed surface coal mining and reclamation operation and those agencies with an interest in the proposed operation, including the U.S.D.A. Soil Conservation Service, the U.S. Army Corps of Engineers, the National Park Service, State and federal fish and wildlife agencies, the State Archeologist, and the Maryland Historical Trust.

D. Notwithstanding the notification under §C(1) of this regulation, the applicant is required to immediately submit any information which is later determined by the Bureau to be necessary for continued processing and evaluation of the application.

E. The notifications required by §C(3) of this regulation include:

  (1) A statement that the Bureau has received an application to surface mine a particularly described tract of land;

  (2) The name of the applicant, and any identifying number assigned to the application;

  (3) The location where a complete copy of the application may be inspected;

  (4) The address where written comments, objections, or a request for a hearing may be submitted on the application; and

  (5) The deadline for submission of comments, objections, or a request for a hearing.

#### Regulation .03 Applicant's Newspaper Advertisement.

*COMAR 26.20.04.03*

A. Upon receipt of Bureau notification that an application is complete, the applicant shall cause an advertisement to appear, at least once a week for 4 consecutive weeks, in a local newspaper of general circulation in the county where the operation will be located.

B. The advertisement shall contain, at a minimum, the following information:

  (1) A heading of “Notice of Application for Strip Mine Permit” in boldface type;

  (2) The name and business address of the applicant;

  (3) A map or description which:

    (a) Clearly shows or describes towns, rivers, streams, or other bodies of water, local landmarks, and any other information, including routes, streets, or roads and accurate distance measurements, necessary to allow local residents to readily identify the proposed permit area,

    (b) Clearly shows or describes the exact location and boundaries of the proposed permit area,

    (c) States the name of the U.S. Geological Survey 7.5-minute quadrangle map or maps which contain the area shown or described, and

    (d) If a map is used, indicates the north point;

  (4) The location where a copy of the application is available for public inspection;

  (5) The name and address of the Bureau and a statement that written comments, objections, or a request for a hearing on the application may be submitted to the Bureau within 30 days from the date of the last advertisement; and

  (6) If an applicant seeks a permit to mine within 100 feet of the outside right-of-way of a public road or to relocate a public road, a concise statement describing the public road, the particular part to be relocated, where the relocation is to occur, and the duration of the relocation.

#### Regulation .04 Application Available to Public.

*COMAR 26.20.04.04*

A. The applicant shall ensure that a complete copy of the application is available to the general public, for inspection and copying, by the date of the first advertisement under Regulation .03 of this chapter. This requirement shall be satisfied by filing a copy at the courthouse of the county where the mining is proposed to occur or, with the concurrence of the Bureau, at another public office more accessible to local residents.

B. The applicant shall file any subsequent revision of the application with the public office at the same time the revision is submitted to the Bureau.

C. Information requested to be held as confidential may not be made publicly available until after notice and opportunity to be heard is given persons both seeking and opposing disclosure of the information. All qualified confidential information shall be identified by the applicant and submitted separately from the remainder of the application. Confidential information is limited to information:

  (1) That pertains only to the analysis of the chemical and physical properties of the coal to be mined, except information on components of the coal which are potentially toxic in the environment;

  (2) That is not on file under State law and that the applicant has requested in writing to be held confidential; and

  (3) On the nature and location of archeological resources on public land and Indian land as required under the Archeological Resources Protection Act of 1979 (P.L. 96-95, 93 Stat. 721, 16 U.S.C. §470).

#### Regulation .05 Public Participation.

*COMAR 26.20.04.05*

A. Within 30 days from the last advertisement under Regulation .03 of this chapter, the Bureau shall receive and consider written comments, objections, and requests for a hearing on the application from any party directly notified under this regulation, an officer or head of any federal, State, or local government agency or authority, or any person having an interest which may be adversely affected by issuance of the requested permit.

B. Upon receipt of any written comment, objection, or request for a hearing, the Bureau shall immediately transmit a copy to the applicant, and to the public office where a copy of the application is filed pursuant to Regulation .04 of this chapter.

#### Regulation .06 On-Site Inspection.

*COMAR 26.20.04.06*

A. A person who files a written request for a hearing may include a request to be granted access to the proposed permit area for the purpose of gathering information relevant to the hearing under Regulation .10 of this chapter. The request shall briefly summarize the nature of the information sought, and the expected amount of time required.

B. If the Bureau determines that there is a reasonable basis for believing that the requested inspection will lead to relevant information not otherwise contained in the application, it shall so notify the requestor and the applicant. The applicant shall arrange and conduct the inspection as expeditiously as possible.

#### Regulation .07 Detailed Review by Bureau.

*COMAR 26.20.04.07*

A. The Bureau shall conduct a detailed review of the application and all other factors relevant to a determination as to whether the requested permit may be issued within the requirements of the Regulatory Program.

B. The Bureau shall notify the applicant of any substantial problems regarding the permit request, and provide an opportunity for the applicant to respond to these problems, to supplement the application, or to remedy any defects discovered during the detailed review. The applicant for a permit or a revision of a permit has the burden of establishing that the application is in compliance with all the requirements of the Regulatory Program.

C. If the Bureau determines that there is no reasonable possibility for the requested permit to be issued within the requirements of the Regulatory Program, the Bureau may immediately terminate its review of the application, and proceed in accordance with the provisions of Regulation .12 of this chapter for denial of the permit.

D. If the Bureau determines that the requested permit may be available under the Regulatory Program, and the applicant has satisfactorily responded to any comments noted by the Bureau, or any public comment or objection, then the Bureau shall require eight copies of the complete application from the applicant, including proof of publication of the advertisement required under Regulation .03 of this chapter.

#### Regulation .08 Public Hearing.

*COMAR 26.20.04.08*

A. If a request for a public hearing is received under Regulation .05 of this chapter, the Bureau shall schedule a hearing in the locality of the proposed operation.

B. The Bureau shall provide notice of the public hearing by:

  (1) Notifying the applicant and any person who requested a hearing of the date, time, and location of the hearing; and

  (2) Publishing the date, time, and location of the hearing in a newspaper of general circulation in the area of the proposed operation.

C. The notice under §B of this regulation shall contain the heading “Notice of Public Hearing on Strip Mine Permit Application” in bold-face type, and information sufficient to identify the particular permit application. The notice shall be published at least 15 but not more than 60 days before the date of the hearing.

D. The public hearing shall be legislative in nature. The rules of evidence do not apply and cross-examination is not permitted. Anyone wishing to speak on the application will be heard. However, the presiding officer may limit the time allowed for oral presentations, or restrict repetitive or irrelevant discussion, in order to ensure an orderly and expeditious hearing. Written statements will be accepted.

E. The applicant shall be present at the hearing and prepared to answer any question regarding the pending application. The Bureau shall make available an employee familiar with the application and its review by the Bureau.

F. Unless waived by all parties, an electronic or stenographic verbatim record shall be made of the hearing proceeding. A party to the hearing may, at the party's expense, obtain a verbatim transcript. The record shall be maintained and shall be accessible to the public until final release of the applicant's performance bond or other equivalent guarantee. In all cases, the Bureau shall prepare an abbreviated transcript of the hearing which will be available to the public.

G. The Presiding Officer may direct that public comment on the application be taken at each individual step in the proceeding, or simultaneously on all aspects of the permit request.

#### Regulation .09 Repealed.

*COMAR 26.20.04.09*

#### Regulation .10 Bureau Decision.

*COMAR 26.20.04.10*

A. The Bureau shall complete its review of the application and render a decision to approve or deny the permit application in accordance with the provisions of COMAR 26.20.05.

B. Based on available information concerning federal and State failure-to-abate cessation orders, unabated federal and State imminent harm cessation orders, delinquent civil penalties issued under §518 of the federal Surface Mining Control and Reclamation Act of 1977, bond forfeitures, delinquent abandoned mine reclamation fees, and unabated violations of federal and State laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, the Bureau may not issue the permit if any surface coal mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant is currently in violation of the federal Surface Mining Control and Reclamation Act of 1977, the Regulatory Program, or any other law, rule, or regulation referred to in this section. In the absence of a failure-to-abate cessation order, the Bureau may presume that a notice of violation issued under the Regulatory Program or under a federal or State program has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation, except when evidence to the contrary is set forth in the application, or when the notice of violation is issued for nonpayment of abandoned mine reclamation fees or civil penalties.

C. If a current violation exists under §B of this regulation, the Bureau shall require the applicant or any person who owns or controls the applicant, before issuance of the permit, to submit to the Bureau proof that the:

  (1) Current violation has been or is in the process of being corrected to the satisfaction of the agency that has jurisdiction over the violation; or

  (2) Applicant or any person owned or controlled by either the applicant or any person who owns or controls the applicant, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the current violation.

D. If the initial judicial review affirms the violation, then the applicant shall submit the proof required under §C(1) of this regulation within 30 days of the judicial action.

E. If the Bureau issues any permit on the basis of proof submitted under §C of this regulation, the permit shall be conditionally issued.

F. The Bureau may not issue the permit if it makes a determination that the applicant, anyone who owns or controls the applicant, or the operator specified in the application controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of the nature and duration, and with resulting irreparable damage to the environment, to indicate an intent not to comply with the provisions of the federal Surface Mining Control and Reclamation Act of 1977, the Regulatory Program, or any State program for the regulation of surface coal mining and reclamation operations approved by the Secretary of the Interior under the federal Surface Mining Control and Reclamation Act of 1977. The applicant or the operator shall be given an opportunity for an adjudicatory hearing on the determination as provided in COMAR 26.20.06.

G. If the Bureau approves the permit application, it shall proceed in accordance with the provisions of Regulation .11 of this chapter.

H. If the Bureau denies the permit application, it shall proceed in accordance with the provisions of Regulation .12 of this chapter.

#### Regulation .11 Permit Approval.

*COMAR 26.20.04.11*

A. If the Bureau decides to approve a permit application under this regulation, the Bureau shall notify the applicant, each person who filed written comments or objections to the permit application, and each party to a hearing, in writing, of its approval of the permit application. The notice to the applicant shall also contain:

  (1) Any special conditions which the Bureau has determined to impose on the permit beyond the normal requirements of the Regulatory Program;

  (2) A requirement for the applicant to update, correct, or indicate that no change has occurred in the information previously submitted in the application in accordance with COMAR 26.20.02.03A—F and I—K; and

  (3) A time limit within which the applicant shall submit to the Bureau all fees and bonds required under the Regulatory Program.

B. Before issuing the permit, the Bureau shall reconsider its decision to approve the application based on the review required by Regulation .10B and C of this chapter in light of any new information submitted under §A(2) of this regulation.

C. If the compliance review under §B of this regulation does not require the Bureau to change its decision to approve the application, the permit shall be issued by the Bureau within 15 days of the Bureau's receipt of all required bonds and fees.

D. When the permit is issued, the Bureau shall provide written notification of the issuance to the federal Office of Surface Mining.

E. Within 10 days of the issuance of the permit, the Bureau shall notify the local government officials in the area of the land to be affected that a permit has been issued, and shall describe the location of the permit area.

#### Regulation .12 Permit Denial.

*COMAR 26.20.04.12*

A. If the Bureau decides to deny a permit application under this regulation, the Bureau shall notify the applicant of the denial, in writing and by certified mail. The notice shall set forth:

  (1) A detailed description of the reasons for denial;

  (2) A statement that no further processing shall occur;

  (3) A statement that the applicant may, within 30 days of the date of the notice, request an adjudicatory hearing on the reasons for denial.

B. Within 10 days of its decision to deny a permit application, the Bureau shall send a notice of the permit denial to:

  (1) A person who filed a written comment or objection or who was party to a hearing on the permit application, stating that anyone whose interests are or may be adversely affected by the decision may request an adjudicatory hearing on the denial by notifying the Bureau in writing within 30 days of the date of the notice;

  (2) The local government officials in the area of the land to be affected, including a description of the land; and

  (3) The Office of Surface Mining.

#### Regulation .13 Administrative Review.

*COMAR 26.20.04.13*

Within 30 days after the applicant is notified of the decision of the Bureau concerning the application for a permit in accordance with Regulation .11 or .12 of this chapter, the applicant or any person with an interest which is or may be adversely affected may request an adjudicatory hearing on the reasons for the final decision in accordance with COMAR 26.20.06.

### Chapter 05 — Permit Applications — Bureau Decision

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01, .02A, B, and .03—.05 were previously codified as COMAR 08.13.09.05A, B, C, and D—F, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Regulation .01 amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .03J, K adopted effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Chapter recodified from COMAR 08.20.05 to COMAR 26.20.05, June 1996

**Administrative History:** Regulation .01 amended effective May 8, 2006 (33:9 Md. R. 797)

#### Regulation .01 Required Written Findings.

*COMAR 26.20.05.01*

A permit application or application for a significant revision of a permit may not be approved unless the application affirmatively demonstrates and the Bureau finds, in writing, on the basis of information set forth in the application, or information otherwise available and documented in the approval under COMAR 26.20.04.11A, the following:

A. The permit application is complete and accurate and the applicant has complied with all requirements of the Regulatory Program;

B. The applicant has demonstrated that reclamation operations as required by the Regulatory Program can be feasibly accomplished under the reclamation plan contained in the application;

C. The Bureau has made an assessment of the probable cumulative impacts of all anticipated coal mining in the cumulative impact area on the hydrologic balance and has determined that the operations proposed under the application have been designed to prevent material damage to the hydrologic balance outside the proposed permit area;

D. The proposed permit area is:

  (1) Not included within an area designated unsuitable, or an area where surface coal mining is prohibited under the federal or State Regulatory Program,

  (2) Not within an area under study for designation as unsuitable for surface coal mining operations, in an administrative proceeding that has been initiated under COMAR 26.20.11, unless the applicant demonstrates that, before January 4, 1977, substantial legal and financial commitments were made in relation to the proposed operation, and

  (3) Not within an area where surface coal mining is limited under COMAR 26.20.10 unless prerequisites for Bureau approval have been satisfied;

E. The proposed operations will not adversely affect any publicly owned parks, or places included in the National Register of Historic Places, unless approved by the appropriate jurisdictional agency;

F. The applicant has demonstrated that any existing structure will comply with the requirements of COMAR 26.20.17;

G. The applicant has submitted documentation establishing a legal right to enter and conduct the proposed surface mining activities;

H. The applicant has paid all federal and State reclamation fees;

I. The applicant has satisfied the applicable requirements of COMAR 26.20.03;

J. The applicant has, if applicable, satisfied the requirements for approval of a long-term intensive agricultural postmining land use, in accordance with COMAR 26.20.29.01D; and

K. The activities would not affect the continued existence of endangered or threatened species, or result in the destruction or adverse modification of their critical habitats, as determined under the Endangered Species Act.

#### Regulation .02 Term of Permit.

*COMAR 26.20.05.02*

A. A permit shall be issued for a fixed term not to exceed 5 years, unless the applicant shows that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing of equipment and the opening of the operation, and this need is confirmed, in writing, by the applicant's proposed source for the financing.

B. A permit shall terminate if the permittee has not begun the surface coal mining and reclamation covered by the permit within 3 years of the issuance of the permit. The Bureau may grant reasonable extensions of time for commencement of operations, upon receipt of a written statement showing that these extensions of time are necessary, due to litigation which precludes the commencement or threatens substantial economic loss to the permittee or other conditions beyond the control and without the fault or negligence of the permittee. With respect to coal to be mined for use in a synthetic fuel facility or specified major electric generating facility, the permittee shall be deemed to have commenced surface mining operations at the time construction of the facility is initiated. Extensions of time granted by the Bureau under this section shall be specifically set forth in the permit and notice of the extension shall be made to the public.

#### Regulation .03 Permit Conditions.

*COMAR 26.20.05.03*

Each permit shall contain the following express terms and conditions:

A. The permittee shall conduct all activities under the permit in accordance with the description contained in the application, and only on those lands specifically designated in the permit and which are subject to the performance bond or other equivalent guarantee.

B. The permittee shall allow the authorized representatives of the Bureau and the federal Office of Surface Mining, without advance notice or search warrant, at reasonable times, upon presentation of appropriate credentials, and without delay, to enter and inspect any monitoring equipment or method of exploration or operation, to have access to and copy any records required under the Regulatory Program or the permit, and to be accompanied by private persons for the purpose of conducting an inspection when the inspection is in response to an alleged violation reported by the private person.

C. The permittee shall take all possible steps to minimize any adverse impact to the environment or public health and safety resulting from noncompliance with any term or condition of the permit, including but not limited to:

  (1) Any accelerated or additional monitoring necessary to determine the nature and extent of noncompliance and the results of noncompliance;

  (2) Immediate implementation of measures necessary to comply; and

  (3) Warning, as soon as possible after learning of the noncompliance, any person whose health and safety is in imminent danger due to the noncompliance.

D. The permittee shall dispose of solids, sludge, filter backwash, or pollutants removed in the course of treatment or control of waters or emissions to the air in the manner required by the Regulatory Program, and which prevents violation of any other applicable State and federal law.

E. The permittee shall conduct its operations:

  (1) In accordance with any measures specified in the permit as necessary to prevent significant, imminent environmental harm to the health or safety of the public; and

  (2) Using any methods specified in the permit in the course of approving alternative methods of compliance with the performance standards of the Regulatory Program, in accordance with the provisions of the Regulatory Program.

F. The permittee shall submit a written notice to the Bureau whenever a temporary cessation of mining activities occurs for more than 30 days, or as soon as it is known that a temporary cessation will extend beyond 6 months. This notice shall include a statement of the exact number of acres which will have been affected in the permit area before the temporary cessation; the extent and kind of reclamation of those areas which will have been accomplished; and identification of the backfilling, regrading, revegetation, environmental monitoring, and water treatment activities which will continue during the temporary cessation.

G. If operations are permanently terminated, the permittee shall close or backfill or otherwise permanently reclaim all affected areas, in accordance with the permit approved by the Bureau. All underground openings, equipment, structures, or other facilities not required for monitoring, unless approved by the Bureau as suitable for the postmining land use or environmental monitoring, shall be removed and the affected land reclaimed.

H. The permittee shall ensure the right of the Bureau to enter on and inspect, without a warrant or advance notice, any area outside of the permit area where monitoring, record keeping, or other activity related to the permit is taking place.

I. Within 30 days after a cessation order is issued for a violation which creates an imminent danger to the health or safety of the public, or causes or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, or for failure to abate a violation within the time limits set in the order for operations conducted under the permit, except when a stay of the cessation order is granted and remains in effect, the permittee shall either notify the Bureau in writing that there has been no change since the immediately preceding submittal of this information, or submit to the Bureau, current to the date the cessation order was issued, the following information:

  (1) Any new information needed to correct or update the information previously submitted to the Bureau under COMAR 26.20.02.03D, including the date of departure from the position, if applicable; or

  (2) If not previously submitted, the information required from a permit applicant under COMAR 26.20.02.03D.

J. The permittee shall pay all reclamation fees as required by the federal Office of Surface Mining, for coal produced under the permit for sale, transfer, or use.

K. The permittee shall pay all fees and mine reclamation surcharges as required by Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland.

#### Regulation .04 Improvidently Issued Permits — General Procedures.

*COMAR 26.20.05.04*

A. If the Bureau has reason to believe that it improvidently issued a surface coal mining and reclamation permit, it shall review the circumstances under which the permit was issued, using the criteria in §B of this regulation. If the Bureau finds that the permit was improvidently issued, it shall comply with §C of this regulation.

B. The Bureau shall find that a surface coal mining and reclamation permit was improvidently issued if:

  (1) Under the violations review criteria of the Regulatory Program at the time the permit was issued, the:

    (a) Bureau should not have issued the permit because of an unabated violation or a delinquent penalty or fee, or

    (b) Permit was issued on the presumption that a notice of violation was in the process of being corrected to the satisfaction of the agency with jurisdiction over the violation, but a cessation order subsequently was issued;

  (2) The violation, penalty, or fee:

    (a) Remains unabated or delinquent, and

    (b) Is not the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; and

  (3) When the permittee was linked to the violation, penalty, or fee, through ownership or control, under the violations review criteria of the Regulatory Program at the time the permit was issued:

    (a) An ownership or control link between the permittee and the person responsible for the violation, penalty, or fee still exists, or

    (b) If the link was severed, the permittee continues to be responsible for the violation, penalty, or fee.

C. If the Bureau, under §B of this regulation, finds that a permit was improvidently issued, the Bureau shall use one or more of the following remedial measures:

  (1) Implement, with the cooperation of the permittee or other person responsible, and of the responsible agency, a plan for abatement of the violation or a schedule for payment of the penalty or fee;

  (2) Impose on the permit a condition requiring that in a reasonable period of time the permittee or other person responsible abate the violation or pay the penalty or fee;

  (3) Suspend the permit until the violation is abated or the penalty or fee is paid; or

  (4) Rescind the permit under Regulation .05 of this chapter.

#### Regulation .05 Improvidently Issued Permits — Rescission Procedures.

*COMAR 26.20.05.05*

If the Bureau, under Regulation .04C(4) of this chapter, elects to rescind an improvidently issued permit, the Bureau shall serve on the permittee a notice of proposed suspension and rescission which includes the reasons for the finding under Regulation .04B of this chapter and states that:

A. After a specified period of time not to exceed 90 days the permit automatically will be suspended, and, not to exceed 90 days after that, will be rescinded, unless within those periods the permittee submits proof and the Bureau finds that:

  (1) The finding of the Bureau was erroneous.

  (2) The permittee or other person responsible has abated the violation on which the finding was based, or paid the penalty or fee, to the satisfaction of the responsible agency,

  (3) The violation, penalty, or fee is the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency, or

  (4) Since the finding was made, the permittee has severed any ownership or control link with the person responsible for, and will not continue to be responsible for, the violation, penalty, or fee;

B. After permit suspension or rescission, the permittee shall cease all surface coal mining and reclamation operations under the permit, except for violation abatement and for reclamation and other environmental protection measures as required by the Bureau; and

C. The permittee may file an appeal for administrative review of the notice in accordance with COMAR 26.20.06.

### Chapter 06 — Permit Applications — Judicial Review

**Authority:** Environment Article, §§15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.03 were previously codified as COMAR 08.13.09.06A—C, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.06 to COMAR 26.20.06, June 1996

**Administrative History:** Regulation .02 repealed effective December 27, 1999 (26:26 Md. R. 1961)

#### Regulation .01 Adjudicatory Hearings.

*COMAR 26.20.06.01*

A. This regulation sets out specific provisions for adjudicatory hearings on decisions to deny or approve a permit application. General provisions regarding adjudicatory hearings under the Regulatory Program are contained in COMAR 26.20.34.

B. In order to satisfy any time requirement for requesting an adjudicatory hearing under this chapter, a person need only inform the Bureau, in writing, of his intent to request a hearing. The Bureau shall acknowledge receipt of the request, and notify the requestor that the following information must be submitted, in writing, within 10 days of the date of the notice:

  (1) Full name and address of the person requesting the hearing and a telephone number where they can be reached during normal business hours;

  (2) The name, address, and telephone number of any attorney representing the requestor or a statement that he intends to represent himself;

  (3) A detailed description of the grounds for the request, including the interests of the requestor which are or may be adversely affected by the decision of the Bureau;

  (4) A statement of the specific relief desired as a result of the adjudicatory hearing;

  (5) A general outline of the evidence to be presented in support of the desired relief, including the names and addresses of all witnesses expected to be called by the requestor.

C. An adjudicatory hearing will be held within 30 days of receipt of the above information. The Bureau shall notify the applicant and requestor, and any other interested party, of the hearing date, time, and location.

D. The Secretary of the Environment shall designate a hearing officer to preside at adjudicatory hearings under this chapter. However, in the case where a public hearing has been held under COMAR 26.20.04, no person who presided at that hearing may either preside at an adjudicatory hearing under this chapter, or participate in the decision or in any administrative appeal from it.

E. The person requesting an adjudicatory hearing shall have the burden of proof on all aspects of the requested relief.

F. The hearing officer may grant temporary relief, as deemed appropriate pending final determination of the proceeding, provided that:

  (1) All parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief;

  (2) The person requesting temporary relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceeding;

  (3) The relief will not adversely affect the public health or safety, or cause significant imminent environmental harm to land, air, or water resources; and

  (4) The relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the Bureau.

G. The Secretary shall render a final decision within 30 days of the close of the hearing record pursuant to COMAR 26.20.34, and shall notify all parties, in writing, of the decision and the reasons for it.

#### Regulation .02 Repealed.

*COMAR 26.20.06.02*

#### Regulation .03 Judicial Review.

*COMAR 26.20.06.03*

A. Any applicant or any person with an interest which is or may be adversely affected, who has participated in administrative proceedings under this chapter as an objector, and who is aggrieved by a decision of the Department, or if the Department fails to act within a time limit specified in this subtitle, has the right to appeal in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

B. If the final Department decision is to issue a permit, initiation of judicial review procedures does not automatically stay the issuance under the Regulatory Program.

### Chapter 07 — Permit Review and Transfer of Permit Rights

**Authority:** Environment Article, §§15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.04 were previously codified as COMAR 08.13.09.08A—D, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.07 to COMAR 26.20.07, June 1996

#### Regulation .01 Review of Outstanding Permits.

*COMAR 26.20.07.01*

A. The Bureau shall review each permit under the Regulatory Program on an annual basis, and before any permit renewal.

B. After review, the Bureau may require revision or modification of any permit provisions in order to ensure compliance with the Regulatory Program.

C. The Bureau shall inform the permittee, in writing, of any required changes in the permit.

D. Within 15 days of receipt of notification of any required changes, the permittee may request an adjudicatory hearing in accordance with COMAR 26.20.34.

#### Regulation .02 Permit Revisions.

*COMAR 26.20.07.02*

A. A revision to a permit shall be obtained:

  (1) Before implementation of any changes in the surface coal mining or reclamation operations approved under the original permit, when these changes constitute a significant departure from the method of conduct of mining or reclamation operations contemplated by the original permit;

  (2) In order to continue operation, after any material reduction of the performance bond or other equivalent guarantee upon which the original permit was issued; or

  (3) As otherwise required under the Regulatory Program.

B. Any application for revision which proposes significant alterations in the original permit shall be:

  (1) Subject to the applicable requirements of COMAR 26.20.02 and 26.20.03;

  (2) Approved or disapproved by the Bureau in accordance with COMAR 26.20.04 and 26.20.05; and

  (3) Submitted to the Bureau at least 150 days before the permittee desires to revise the permitted operation.

C. Any application for a revision which does not propose significant alterations in the original permit shall be:

  (1) Submitted to the Bureau at least 5 days before the permittee desires to revise the permitted operation;

  (2) Accompanied by such narratives, maps, cross sections, and documentation as would be required if the revision were part of a new permit application; and

  (3) Approved or disapproved by the Bureau if it would have been approved or disapproved as part of a new permit application.

D. The following revisions are not considered significant alterations in the original permit:

  (1) Changes in the seam of coal to be mined, with the approval of the mineral owner;

  (2) Mining within 300 feet of an occupied dwelling, with the approval of the owner;

  (3) Increases in the open acre limit;

  (4) Decreases in the open acre limit;

  (5) Decreases in the total permit acres;

  (6) Relocation of haul roads or culverts and turnouts;

  (7) Changes in the mining sequence or the direction or length of cuts;

  (8) Relocation of topsoil stockpiles;

  (9) Changes in the blasting plan, except that no changes are permitted to the hours of blasting without prior publication of the new schedule;

  (10) Changes in the placement of spoil material or handling of acid-producing or toxic-producing material;

  (11) Changes in the location or design of drainage control structures;

  (12) Changes in the location of water treatment facilities or method of water treatment;

  (13) Changes in the location, design, or number of diversion ditches;

  (14) Changes in the method or sequence of regrading;

  (15) Changes in the mining and reclamation equipment;

  (16) Changes in the method of procedure for redistributing topsoil material;

  (17) Changes in the seed bed preparation;

  (18) Change in the rate of application and analysis of lime and fertilizer;

  (19) Changes in the planting method, revegetation species or rate of application, and type or rate of application of mulch;

  (20) Changes in the seasonal maintenance plan for revegetated areas;

  (21) Incidental boundary revisions, provided the new permit area is contiguous to the original permit area and that no portion of the new area is more than 250 feet from the original area;

  (22) Increase in total approved permit acres of not more than 10 acres per permit over the life of the permit.

#### Regulation .03 Permit Renewals.

*COMAR 26.20.07.03*

A. Any valid, existing permit issued pursuant to the Regulatory Program shall carry with it the right of successive renewal upon expiration of the term of the permit. However, successive renewal is available only for those areas which were specifically approved by the Bureau as within the boundaries of the permit.

B. Complete applications for renewal of a permit shall be made at least 120 days before the expiration date of the permit. Renewal applications shall be in a form as required by the Bureau, and include at a minimum:

  (1) The name and address of the permittee, the term of the renewal requested, the permit number, and a description of any changes to the matters set forth in the original application for a permit or prior permit renewal;

  (2) A copy of the proposed newspaper advertisement under COMAR 26.20.04; the proof of publication of the advertisement shall be submitted within two weeks after the last date of publication; and

  (3) Evidence that a liability insurance policy will be provided by the applicant for the proposed new period of time.

C. Complete applications for renewal are subject to the requirements of public notice and participation contained in COMAR 26.20.04.

D. Except as provided in §H of this regulation, a permit renewal shall be for a term not to exceed the period of the original permit.

E. Upon the basis of a complete application for renewal and completion of all procedures required under COMAR 26.20.04, the Bureau shall issue a renewal of permit, unless the Bureau finds in writing that:

  (1) The terms and conditions of the existing permit are not being satisfactorily met;

  (2) The present mining and reclamation operations are not in compliance with the environmental protection standards under the regulatory program;

  (3) The requested renewal substantially jeopardizes the operator's continuing responsibility to comply with the regulatory program on existing permit areas;

  (4) The operator has not provided evidence of having liability insurance as required by COMAR 26.20.15;

  (5) The operator has not provided evidence that any performance bond required to be in effect for the operations will continue in full force and effect for the proposed period of renewal, as well as any additional bond the Bureau might require; or

  (6) Any additional revised or updated information required by the Bureau has not been provided by the applicant.

F. The Bureau shall send copies of its decision to the applicant, any persons who filed objections or comments to the renewal, and to any persons who were parties to the hearing held on the permit renewal.

G. Any person having an interest which is or may be adversely affected by the decision of the Bureau has the right to administrative and judicial review set forth in COMAR 26.20.06. In all cases, the burden of proof shall rest with the opponent of renewal.

H. The Bureau may issue a renewal of a permit for a period coinciding with the duration of liability on all bonds posted on the permit if:

  (1) An operator fails to submit an application for the renewal of a permit in accordance with §B of this regulation; or

  (2) Only reclamation activities remain to be accomplished on the permit.

I. The renewal of a permit under §H of this regulation includes the following conditions:

  (1) Surface coal mining operations may not be conducted on the renewed permit;

  (2) A liability insurance policy, as required by COMAR 26.20.15, shall be maintained in full force and effect during the period necessary to complete all reclamation activities on the permit; and

  (3) Reclamation activities shall be conducted in accordance with COMAR 26.20.28 and 26.20.29 and the permit.

#### Regulation .04 Transfer, Assignment, or Sale of Permit Rights.

*COMAR 26.20.07.04*

A. A person seeking to succeed by transfer, assignment, or sale to the rights granted by a permit issued under the Regulatory Program, and before the date of the transfer, assignment, or sale, shall:

  (1) Obtain performance bond coverage by methods that would provide that reclamation of all areas affected by the original permittee is assured under bonding coverage at least equal to that of the original permittee; and

  (2) Provide the Bureau with an application for approval of the proposed transfer, assignment, or sale, including:

    (a) The name and address of the existing permittee,

    (b) The name and address of the person proposing to succeed by the transfer, assignment, or sale, and the name and address of that person's resident agent,

    (c) A brief description of the proposed action requiring approval, and

    (d) The same information as is required under COMAR 26.20.02.03A—Q for applications for new permits.

B. The person applying for approval of the transfer, assignment, or sale of rights granted by a permit shall advertise the filing of the application in a newspaper of general circulation in the locality of the operations involved, indicating the name and address of the applicant, the original permittee, the number and particular geographic location of the permit, and the address to which written comments may be sent.

C. Any person whose interests are or may be adversely affected, including but not limited to the head of any local, State or federal government agency, may submit written comments on the application to the Bureau, within 30 days of the date of advertisement.

D. The Bureau may grant written approval for the transfer, sale, or assignment of rights under a permit, if it first finds, in writing, that:

  (1) The applicant is eligible to receive a permit in accordance with COMAR 26.20.04.10B and C and 26.20.05.01;

  (2) The applicant will conduct the operations covered by the permit in accordance with the Regulatory Program, and in full compliance with the terms and conditions of the original permit; and

  (3) The applicant has submitted a performance bond or other guarantee at least equal to that of the original permittee.

E. A successor in interest to a permittee may continue surface coal mining and reclamation operations according to the approved mining and reclamation plan and permit of the original permittee.

F. The Bureau shall notify the transferor, the transferee, commenters, and the federal Office of Surface Mining of its findings and decision.

G. The transferee shall immediately notify the Bureau of the consummation of the assignment or sale of permit rights.

### Chapter 08 — Prospecting

**Authority:** Environment Article, §§15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01, .02, and .03—.06 were previously codified as COMAR 08.13.09.07A and B, C—E, and F—I, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.08 to COMAR 26.20.08, June 1996

#### Regulation .01 Notice of Intent to Prospect.

*COMAR 26.20.08.01*

A. A person may not conduct any prospecting without filing a written notice of intent to prospect with the Bureau at least 2 weeks before the beginning of any surface disturbance.

B. A notice of intent to prospect shall be submitted in triplicate and contain the following information:

  (1) The name, address, and telephone number of the person seeking to prospect.

  (2) The name and address of all surface and mineral owners of the land on which prospecting is to be conducted.

  (3) The name, address, and telephone number of the person who will be present at and responsible for conducting the prospecting activities.

  (4) A description of the legal basis upon which the person who intends to prospect claims the right to enter and conduct prospecting operations, including reclamation, on the area.

  (5) A description and map of the area to be prospected. The map shall be a U.S. Geological Survey 7.5 minute topographic survey map or equivalent map, and the scale of the map shall be as follows:

    (a) If the prospecting involves only air or core drilling operations and does not cause substantial disturbance to the natural land surface the scale of the map shall be 2,000 feet to the inch or larger. The map shall show the following information:

      (i) The proposed prospecting area and all access roads to the area; and

      (ii) The approximate location of all drill holes.

    (b) If the prospecting involves the removal of the overburden to expose the coal seam or will cause substantial disturbance to the natural land surface or cause serious harm to water supply or water quality, the scale of the map shall be 500 feet to the inch or larger. The map shall show the following information:

      (i) The boundaries of the property and the names of the surface and mineral owners of the tract or tracts;

      (ii) The name of the quadrangle, a north arrow, and the Maryland coordinates of the area to be prospected;

      (iii) The names of all receiving streams;

      (iv) The approximate location of the seam or seams to be prospected; and

      (v) The number of acres to be disturbed and their approximate location, including all excavations and roads to be used or constructed to facilitate the prospecting.

  (6) A copy of an approved county grading or sediment and erosion control permit, if applicable.

  (7) A schedule indicating the estimated period of prospecting, including the anticipated dates of beginning and completion of prospecting.

  (8) A description of the intended prospecting operations.

  (9) A reclamation plan for the prospecting area. The reclamation plan shall include a plan for haul roads, sediment control, method of operation, casing or sealing wells, boreholes, or other underground opening, regrading, topsoil handling, and revegetation.

#### Regulation .02 Prospecting Bond.

*COMAR 26.20.08.02*

A. If the Department determines, after review of the notice filed pursuant to this chapter, that the proposed prospecting operation is reasonably likely to cause substantial disturbance to the natural land surface or to cause serious harm to a water supply or water quality, the Bureau shall inform the person submitting the notice that the proposed prospecting operation may not begin before obtaining the written approval of the Bureau and submitting to the Bureau a prospecting bond in the amount specified under §B of this regulation.

B. The amount of any prospecting bond required under §A of this regulation shall be $1,500 per acre of affected land, unless the Bureau determines in writing that conditions affecting reclamation costs at an operation require an amount greater than $1,500 per acre in order to assure that the estimated total cost of reclamation will be covered.

C. The prospecting bond may be applied against the requirement for bonding a surface coal mining operation permit if a permit is obtained covering the prospecting area. If an open-pit mining permit is not obtained on the area, the bond shall be released, upon casing, or sealing of all drill holes, and satisfactory regrading and establishment of a permanent diverse species vegetative cover on all disturbed areas.

#### Regulation .03 Reclamation Requirements.

*COMAR 26.20.08.03*

The Bureau may not give written approval to any prospecting operation proposed to be conducted or controlled by a person who has failed to reclaim any other prospecting or surface coal mining operation in accordance with the reclamation requirements applicable to that operation.

#### Regulation .04 Prospecting Operation Requirements.

*COMAR 26.20.08.04*

A. The following requirements shall apply to all prospecting operations:

  (1) A maximum of 200 tons of coal may be removed from any prospecting area;

  (2) Each prospect pit opening may not be more than 1 acre in size and shall be backfilled, seeded, and mulched within 30 days after it is opened;

  (3) A maximum of 10 acres may be affected under a notice of intent to prospect or prospecting approval; and

  (4) A notice of intent to prospect or prospecting approval shall be valid for 1 year from its date of filing or issue.

B. Prospecting Performance Standards.

  (1) Habitats of unique value for fish, wildlife, and other related environmental values shall be identified in the notice of intent to prospect and protected during the prospecting activities, in accordance with COMAR 26.20.23.02.

  (2) Roads.

    (a) Vehicle travel on other than established graded and surfaced roads shall be limited by the person who conducts prospecting to that absolutely necessary to conduct the prospecting. Travel shall be confined to graded and surfaced roads during periods when excessive damage to vegetation or rutting of the land surface could result.

    (b) All roads shall be used, improved, or constructed in a manner which does not contribute additional suspended solids to stream flow or runoff and prevents damage to private or public property. If possible, existing roads should be used for prospecting.

    (c) Promptly after prospecting activities are completed, all roads constructed during prospecting shall be reclaimed by regrading to the approximate original contour, and seeded and mulched, or to a condition equal to or better than their pre-prospecting condition. If a road is to remain after prospecting activities, the construction, maintenance, and stabilization of the road shall comply with the provisions of COMAR 26.20.19.

  (3) Blasting is prohibited on prospecting operations unless specifically approved by the Bureau. All blasting shall be conducted in accordance with COMAR 26.20.22.

  (4) All areas disturbed during a prospecting operation shall be returned to the approximate original contour promptly after these areas are no longer needed for prospecting.

  (5) Toxic-forming or acid-forming materials shall be handled and disposed of in accordance with the Regulatory Program.

  (6) Topsoil shall be removed, stored, and redistributed on disturbed areas as necessary to assure successful revegetation as required by the Bureau in accordance with the Regulatory Program.

  (7) Revegetation of areas disturbed by prospecting shall be performed by the person who conducts the prospecting, or by that person's agent, in accordance with the revegetation standards of the Regulatory Program.

  (8) Except for small and temporary diversions of overland flow of water around new roads, drill pads, and support facilities, an ephemeral, intermittent, or perennial stream may not be diverted during coal prospecting activities. Overland flow of water shall be diverted in a manner that:

    (a) Prevents erosion;

    (b) Prevents, to the extent possible and using the best technology currently available, additional contributions of suspended solids to streamflow or runoff outside the prospecting area; and

    (c) Complies with all other applicable State or federal requirements.

  (9) Each prospecting hole, borehole, well, or other exposed underground opening created during prospecting shall meet the requirements of the Regulatory Program.

  (10) All facilities and equipment shall be removed from the prospecting area promptly when they are no longer needed, except for those facilities and equipment that the Bureau determines may remain to:

    (a) Provide additional environmental quality data;

    (b) Reduce or control the on-site and off-site effects of the prospecting activities; or

    (c) Facilitate future surface mining and reclamation operations by the person conducting the prospecting under an approved open-pit mining permit.

  (11) Prospecting shall be conducted in a manner which minimizes disturbance of the prevailing hydrologic balance and may include sediment control measures such as those required in the Regulatory Program.

#### Regulation .05 Public Availability of Information.

*COMAR 26.20.08.05*

A. Except as provided in §B of this regulation, all information submitted to the regulatory authority under this chapter shall be made available for public inspection and copying at the local offices of the regulatory authority closest to the exploration area.

B. The regulatory authority may not make information available for public inspection, if the person submitting it requests in writing, at the time of submission, that it not be disclosed and the regulatory authority determines that the information is confidential.

C. The regulatory authority shall determine that information is confidential if it concerns trade secrets or is privileged commercial or financial information which relates to the competitive rights of the person intending to conduct coal exploration.

D. Information requested to be held as confidential under this regulation may not be made publicly available until after notice and opportunity to be heard is afforded both persons seeking and opposing disclosure of the information.

#### Regulation .06 Copy of Notice or Approval.

*COMAR 26.20.08.06*

All operators conducting prospecting activities shall have a copy of the notice of intent to prospect or prospecting approval available at or near the prospecting area or areas for review by the Bureau upon request.

### Chapter 09 — Open-Pit Mining on State-Owned Land

**Authority:** Environment Article, §§15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01, .02, and .03 were previously codified as COMAR 08.13.09.09A; B, C, D, F; and E, G, H, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.09 to COMAR 26.20.09, June 1996

#### Regulation .01 General Policy.

*COMAR 26.20.09.01*

When mining is not otherwise prohibited by statute or regulation, all open-pit mining operations on land owned by the State, whether or not the ownership includes mineral rights incident to the land, shall comply with the requirements of this subtitle. This includes provisions relating to permit applications, bonding and insurance, as well as all performance and reclamation standards. In addition, the following regulations set out special requirements applicable to open-pit mining and reclamation operations on land owned by the State. Open-pit mining on State-owned land is permitted only:

A. To the extent that it will directly promote the proper reclamation of abandoned surface or deep mines; or

B. In the case of public construction activities, to the extent that mining will accomplish the construction project or avoid, eliminate, or reduce adverse environmental impacts and hazardous conditions associated with construction projects such as water pollution, subsidence, and landslides.

#### Regulation .02 Permits.

*COMAR 26.20.09.02*

A. Applicants for permits to mine on State-owned land shall comply with the permit application requirements of this subtitle as specified in COMAR 26.20.02 and, if applicable, COMAR 26.20.03. The Bureau of Mines shall process the application as provided by COMAR 26.20.04 except that the Bureau shall also forward a copy of the application to the agency responsible for management of the area to be affected by mining. The copy of the application that is sent to the management agency shall be instead of any notification that would otherwise be sent to that agency under COMAR 26.20.04. The management agency shall evaluate the application and prepare an analysis of the impact of the proposed mining on the current and future use of the area and on State policies and objectives applicable to the area. The management agency shall forward its recommendations to the Bureau.

B. Any permit for open-pit mining on State-owned land is subject to the approval of the Board of Public Works.

C. Permits may not be issued for open-pit mining in conjunction with the reclamation of abandoned open-pit mines unless:

  (1) The disturbed area of the abandoned open-pit mine is at least 2 acres; and

  (2) One or more of the following conditions exist which will be wholly or partially corrected by the proposed mining:

    (a) Active soil erosion,

    (b) Water pollution,

    (c) Highwalls more than 10 feet high, or

    (d) Potential landslide areas.

D. Permits may not be issued for open-pit mining in conjunction with the reclamation of an abandoned deep mine unless one or more of the following conditions exist which will be wholly or partially corrected by the proposed mining:

  (1) Gob piles or spoil materials in excess of 1 acre;

  (2) Subsidence damage;

  (3) Water pollution; or

  (4) Underground fire.

#### Regulation .03 Disturbed Areas.

*COMAR 26.20.09.03*

A. The area to be disturbed by open-pit mining in conjunction with the reclamation of an abandoned open-pit mine shall be limited to that area necessary to blend the abandoned mine with the surrounding adjacent topography. This area may not exceed the disturbed area of the abandoned mine, including the pit and spoil areas, plus:

  (1) The area within a distance of 400 feet perpendicular to the abandoned mine highwall;

  (2) The area within a distance of 200 feet lateral to the ends of the abandoned mine highwall; and

  (3) The minimal area necessary to stockpile topsoil and overburden during mining activities and to gain access to the site as determined by the Bureau.

B. The area to be disturbed by open-pit mining in conjunction with the reclamation of an abandoned deep mine shall be limited to the surface area above the abandoned mine plus:

  (1) The area within 200 feet of the perimeter of the abandoned deep mine;

  (2) The minimal area required to gain access to the site;

  (3) The minimal area required to blend gob piles and spoil materials into the surrounding undisturbed topography.

C. The area to be disturbed by open-pit mining in conjunction with public construction activities shall be limited to:

  (1) The area which would be disturbed by the construction project in the absence of any open-pit mining; and

  (2) Additional areas necessary to avoid or mitigate adverse environmental impacts and hazardous conditions caused by or affecting the construction project such as water pollution, subsidence, and landslides.

### Chapter 10 — Areas Where Mining is Prohibited or Limited

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.03 were previously codified as COMAR 08.13.09.10A—C, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.10 to COMAR 26.20.10, June 1996

**Administrative History:** Regulation .01B amended effective February 12, 2007 (34:3 Md. R. 301)

**Administrative History:** Regulation .01-1 adopted effective February 12, 2007 (34:3 Md. R. 301)

**Administrative History:** Regulation .02 amended effective February 12, 2007 (34:3 Md. R. 301)

**Administrative History:** Regulation .03 amended effective February 12, 2007 (34:3 Md. R. 301)

**Administrative History:** Regulation .04 adopted effective February 12, 2007 (34:3 Md. R. 301)

**Administrative History:** Regulation .05 adopted effective February 12, 2007 (34:3 Md. R. 301)

**Administrative History:** Regulation .06 adopted effective February 12, 2007 (34:3 Md. R. 301)

**Administrative History:** Regulation .07 adopted effective February 12, 2007 (34:3 Md. R. 301)

#### Regulation .01 Definitions.

*COMAR 26.20.10.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Cemetery” means any area of land where human bodies are interred.

  (2) “Community or institutional building” means any structure, other than a public building or an occupied dwelling, which:

    (a) Is used primarily for meetings, gatherings, or functions of local civic organizations or other community groups;

    (b) Functions as an educational, cultural, historic, religious, scientific, correctional, mental health, or physical health care facility; or

    (c) Is used for public services, including but not limited to water supply, power generation, or sewage treatment.

  (3) “Occupied dwelling” means any building that is currently being used on a regular or temporary basis for human habitation.

  (4) “Public building” means any structure that is owned or leased by a government agency and used principally for public business, meetings, or other group gatherings.

  (5) “Public park” means an area dedicated or designated by any federal, State, or local agency for public recreational use, whether this use is limited to certain times or days, including any land leased, reserved, or held open to the public because of that use.

  (6) “Public road” means any thoroughfare open to the public which has been, and is being used by the public for vehicular travel, and which is maintained by a government agency.

  (7) Valid Existing Rights.

    (a) “Valid existing rights” means, except for haul roads:

      (i) Those property rights in existence at the time the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, that were created by a legally binding conveyance, lease, deed, contract, or other document which authorizes the applicant to produce coal by a surface coal mining operation; and

      (ii) The person proposing to conduct surface coal mining operations on the land had obtained all permits and other authorizations required to conduct surface coal mining operations or had made a good faith effort to obtain all necessary permits and authorizations to conduct the operations on the land that came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and at a minimum had submitted an application for any permit required under this subtitle, or can demonstrate to the Bureau that the coal land is needed for and immediately adjacent to a surface coal mining operation for which all permits and other authorizations had been obtained, or a good faith attempt to obtain all permits and authorizations had been made, before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter.

    (b) “Valid existing rights” means, for haul roads:

      (i) A properly recorded right-of-way or easement for a road in that location which existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and under the document creating the right-of-way or easement, and under subsequent conveyances, the person has a legal right to use or construct a road across the right-of-way or easement for surface coal mining operations;

      (ii) Any road in existence when the land upon which it is located came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and the person has a legal right to use the road for surface coal mining operations;

      (iii) A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter; or

      (iv) Valid existing rights exist under §B(7)(a) of this regulation.

    (c) Interpretation of the terms of the document relied upon to establish valid existing rights shall be based either upon applicable State case law concerning interpretation of documents conveying mineral rights or, if no applicable State case law exists, upon the usage and custom at the time and place that it came into existence and upon a showing by the applicant that the parties to the document actually contemplated a right to conduct the same underground or surface mining activities for which the applicant claims a valid existing right.

    (d) “Valid existing rights” does not mean mere expectation of a right to conduct surface coal mining operations, or the right to conduct underground coal mining. Examples of rights which alone do not constitute valid existing rights include but are not limited to coal exploration permits or licenses, applications, or bids for leases.

#### Regulation .01-1 Demonstration Standards.

*COMAR 26.20.10.01-1*

A. In order to meet the needed for and immediately adjacent standard in Regulation .01B(7)(a)(ii) of this regulation, a person shall demonstrate that prohibiting expansion of the surface coal mining operation onto land under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, would unfairly impact the viability of the operation as originally planned before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter. Except for operations in existence before August 3, 1977, or for which a good faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, when the Bureau approved the permit for the original operation or when the good faith effort to obtain all necessary permits for the original operation was made.

B. In evaluating whether a person meets the standard in §A of this regulation, the Bureau may consider factors such as:

  (1) The extent to which the coal supply contracts or other legal and business commitments that predate the time the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, depend upon use of that land for surface coal mining operations;

  (2) The extent to which plans used to obtain financing for the operation before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, rely upon the use of that land for surface coal mining operations;

  (3) The extent to which investments in the operation before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, rely upon the use of that land for surface coal mining operations; or

  (4) Whether the land lies within the areas identified on the map required under COMAR 26.20.02.10A(6) before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter.

#### Regulation .02 Prohibition.

*COMAR 26.20.10.02*

Subject to valid existing rights, as determined under Regulation .07 of this chapter, or an exception for an existing operation under Regulation .04 of this chapter, surface coal mining operations may not be conducted on any of the following lands:

A. Lands within the boundaries of the Youghiogheny River Scenic Corridor;

B. Lands which will adversely affect any publicly owned park or any publicly owned places included on the National Register of Historic Places, unless approved jointly by the Bureau and the federal, State, or local agency with jurisdiction over the park or places;

C. Lands within 100 feet measured horizontally from the outside right-of-way line of any public road, except:

  (1) Where mine access roads or haulage roads are located within the right-of-way line in order to join the public road; or

  (2) Where the Bureau allows the public road to be relocated, closed, or the area affected to be within 100 feet of this road, after requiring the applicant to obtain the written approval of the authority with jurisdiction over the public road, and making a written finding that the interests of the affected public and landowners will be protected;

D. Lands within 300 feet measured horizontally from any occupied dwelling, unless the owner of the dwelling has provided a written waiver consenting to surface coal mining operations closer than 300 feet;

E. Lands within 25 feet, or a distance of 2 feet for each vertical foot of highwall, whichever is greater, of any adjacent property line, unless the owner of the adjacent property has provided a written waiver consenting to surface coal mining operations within a closer distance;

F. Lands within 300 feet measured horizontally from any public building, school, community or institutional building, or public park; or

G. Lands within 100 feet measured horizontally from a cemetery.

#### Regulation .03 Determination of Limits and Prohibitions.

*COMAR 26.20.10.03*

A. Upon receipt of a complete application for a surface coal mining operation permit or a revision of the boundaries of a surface coal mining operation permit, the Bureau shall review the application to determine whether the proposed surface coal mining operations are limited or prohibited under this chapter.

B. If the proposed operation is to be located on any lands where surface coal mining is prohibited, the Bureau shall reject any portion of the application that would locate surface coal mining operations on land protected under Regulation .02 of this chapter unless:

  (1) The site qualifies for an exception for existing operations under Regulation .04 of this chapter;

  (2) The applicant has valid existing rights for the land as determined under Regulation .07 of this chapter;

  (3) The applicant obtains a waiver or exception from the prohibitions of Regulation .02C, D, and E of this chapter in accordance with §§D, E, and F of this regulation; or

  (4) For land protected by Regulation .02B of this chapter, both the Bureau and the agency with jurisdiction over the park or place jointly approve the proposed operation in accordance with §H of this regulation.

C. If the Bureau is unable to determine whether the proposed operation is located within the boundaries of any of the lands in Regulation .02A of this chapter, or closer than the limits provided in Regulation .02F and G of this chapter, the Bureau shall transmit a copy of the relevant portions of the permit application to the appropriate federal, State, or local government agency with a request for assistance in making a determination or clarification of the relevant boundaries or distances, with a notice to the appropriate agency that the agency has 30 days from receipt of the request in which to respond. On request by the appropriate agency, the Bureau shall grant an extension to the 30-day period of an additional 30 days. If a response is not received within the 30-day period or within the extended period granted, the Bureau may make the necessary determination based on the information it has available.

D. If the proposed mining operation is to be conducted within 100 feet measured horizontally from the outside right-of-way line of any public road, except where mine access roads or haulage roads join this right-of-way line, or if the applicant proposes to relocate or close any public road, the Bureau:

  (1) Shall require the applicant to obtain necessary approvals of the authority with jurisdiction over the public road;

  (2) Shall require the applicant to specifically advertise that the proposed surface mining operation would relocate or close a public road or would be conducted within 100 feet of the right-of-way of a public road and provide a public comment period and opportunity to request a public hearing;

  (3) Shall make a written finding based upon information received at the public hearing, within 30 days after completion of the hearing, or after any public comment period ends if no hearing is held, as to whether the interests of the public and affected landowners will be protected from the proposed mining operation; and

  (4) May not allow mining within 100 feet of the outside right-of-way line of a public road, or allow a public road to be relocated or closed, unless the Bureau determines that the interests of the public and affected landowners will be protected.

E. If the proposed surface coal mining operation is to be conducted within 300 feet measured horizontally from any occupied dwelling, the applicant shall submit with the application a written waiver from the owner of the dwelling, stating that the owner and signator had the legal right to deny mining and knowingly waived that right and consented to the operations within a closer distance of the dwelling as specified in the waiver. The waiver shall be knowingly made and separate from a lease or deed unlessthe lease or deed contains an explicit waiver. If an applicant obtained a valid waiver before August 3, 1977, a new waiver is not required. If an applicant obtained a valid waiver on or after August 3, 1977, that waiver shall remain effective against subsequent purchasers who had actual or record knowledge of the existing waiver at the time of purchase.

F. A subsequent purchaser is considered to have record knowledge if the waiver has been properly filed in public property records under State laws, or if the mining has proceeded to within the 300-foot limit before the date of purchase.

G. If the proposed surface coal mining operation is to be conducted within 25 feet, or a distance of 2 feet for each vertical foot of highwall, of any adjacent property line, the applicant shall submit with the application a written waiver from the owner of the adjacent property, consenting to the operations within a closer distance as specified in the waiver.

H. If the Bureau determines that the proposed surface mining operation will adversely affect any publicly owned park or any places included on the National Register of Historic Places, the Bureau shall transmit to the federal, State, or local agencies with jurisdiction over the park or historic place, a copy of applicable parts of the permit application, together with a request for that agency's approval or disapproval of the operation, and a notice to that agency that the agency has 30 days from receipt of the request in which to respond, and that failure to interpose a timely objection constitutes approval. The Bureau, upon request by the appropriate agency, may grant an extension to the 30-day period of an additional 30 days. Failure to interpose an objection within 30 days or the extended period granted constitutes an approval of the proposed permit. A permit for the operation may not be issued unless jointly approved by all affected agencies.

I. The Bureau's determination as to whether a person holds a valid existing right, or whether surface coal mining operations existed on the date of enactment, is subject to administrative and judicial review.

#### Regulation .04 Exception for Existing Operations.

*COMAR 26.20.10.04*

The prohibitions and limitations of Regulation .02 of this chapter do not apply to surface coal mining operations for which a permit issued by the Bureau under the Regulatory Program exists when the land comes under the protection of Regulation .02 of this chapter. This exception only applies to lands within the permit area as it exists when the land comes under the protection of Regulation .02 of this chapter.

#### Regulation .05 Submission of Valid Existing Rights Determination.

*COMAR 26.20.10.05*

A. A person that intends to conduct surface coal mining operations on the basis of valid existing rights under Regulation .02 of this chapter shall submit a request for a valid existing rights determination to the Bureau. This request may be submitted before preparing and submitting an application for a permit for the land.

B. A request for a valid existing rights determination that relies on the good faith/all permits standard or the needed for and adjacent standard in Regulation .01B(7)(a)(ii) of this chapter shall provide a property rights demonstration. The demonstration shall include:

  (1) A legal description of the land to which the request pertains;

  (2) Complete documentation of the character and extent of the requestor's current interests in the surface and mineral estates of the land to which the request pertains;

  (3) A complete chain of title for the surface and mineral estates of the land to which the request pertains;

  (4) A description of the nature and effect of each title instrument that forms the basis of the request, including any provision pertaining to the type or method of mining or mining-related surface disturbances and facilities;

  (5) A description of the type and extent of surface coal mining operations that the requestor claims the right to conduct, including the method of mining, any mining-related surface activities and facilities, and an explanation of how these operations would be consistent with State property law;

  (6) Complete documentation of the nature and ownership, as of the date that the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, of all property rights for the surface and mineral estates of the land to which the request pertains;

  (7) Names and addresses of the current owners of the surface and mineral estates of the land to which the request pertains;

  (8) Documentation that, if the coal interests have been severed from other property interests, the owners of other property interests in the land to which the request pertains have been notified and provided an opportunity to comment on the validity of the property rights claimed in the request within 30 days of the notice; and

  (9) Any comments received in response to the notification required by §B(8) of this regulation.

C. A request for a valid existing rights determination that relies on the good faith/all permits standard in Regulation .01B(7)(a)(ii) of this chapter shall contain:

  (1) All of the information required by §B of this regulation;

  (2) Approval and issuance dates and identification numbers for any permits, licenses, and authorizations that were obtained before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter;

  (3) Application dates and identification numbers for any permits, licenses, and authorizations for which applications were submitted before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter; and

  (4) An explanation of any other good faith effort made to obtain the necessary permits, licenses, and authorizations as of the date that the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter.

D. A request for a valid existing rights determination that relies upon the needed for and adjacent standard in Regulation .01B(7)(a)(ii) of this chapter shall contain:

  (1) All of the information required by §B of this regulation; and

  (2) An explanation of how and why the land is needed for and immediately adjacent to the operation upon which the request is based, including the demonstration required by Regulation .01-1 of this chapter that prohibiting expansion of the operation onto the land would unfairly impact the viability of the operation as originally planned before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter.

E. A request for a valid existing rights determination that relies upon one of the standards for roads in Regulation .01B(7)(b) of this chapter shall contain satisfactory documentation that:

  (1) The road existed when the land on which it is located came under the protection of Environment Article, §15-505(b)(2), or Regulation .02 of this chapter, and the requestor has a legal right to use the road for surface coal mining operations;

  (2) A properly recorded right-of-way or easement for a road in that location existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and under the document creating the right-of-way or easement, and under any subsequent conveyances the requestor has a legal right to use or construct a road across that right-of-way or easement to conduct surface coal mining operations; or

  (3) A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter.

#### Regulation .06 Review of Valid Existing Rights Request.

*COMAR 26.20.10.06*

A. Upon receipt of a request for a valid existing rights determination, the Bureau shall complete an initial review to determine if the request includes all applicable requirements of Regulation .05 of this chapter. If the request does not include all of the applicable information, the Bureau shall return the request with notification of the missing information.

B. If the request is not returned to the Bureau within 30 days after receipt of the notification in §A of this regulation, the Bureau shall issue a determination that valid existing rights have not been demonstrated in accordance with Regulation .07 of this chapter.

C. When the Bureau determines that a request for a valid existing rights determination is complete, the Bureau shall:

  (1) Notify the requestor, in writing, that the application is complete and require the requestor to publish the notice required by §D of this regulation; and

  (2) Provide a copy of the notice required by §C(1) of this regulation to:

    (a) The Bureau of Mines;

    (b) All reasonably locatable owners of surface and mineral estates in the land included in the request; and

    (c) The owner of the feature causing the land to come under the protection of Regulation .02 of this chapter, and when applicable, the agency with primary jurisdiction over the feature with respect to the values causing the land to come under the protection of Regulation .02 of this chapter.

D. Upon receipt of the Bureau notification that the request is complete, the requestor shall cause a notice to appear in a newspaper of general circulation in the county in which the land is located. The notice shall contain:

  (1) A heading of “Notice of Request for Valid Existing Rights Determination”;

  (2) The name and address of the requestor;

  (3) The location of the land to which the request pertains;

  (4) A description of the type of surface coal mining operations planned;

  (5) A reference to and brief description of the applicable standards under the definition of valid existing rights in Regulation .01B(7) of this chapter that contains the information required by §E of this regulation;

  (6) A statement that the Bureau will not make a decision on the merits of the request if, by the close of the comment period of the notice, a person with a legal interest in the land initiates appropriate legal action to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the claim for valid existing rights if the request relies upon one or more of the standards in Regulation .01B(7)(a)(ii) and (b)(i)and (ii) of this chapter;

  (7) A description of the procedures the Bureau will follow in processing the request;

  (8) The closing date of a comment period that is a minimum of 30 days after publication of the notice;

  (9) A statement that interested persons may obtain a 30 day extension of the comment period upon written request to the Bureau; and

  (10) The name and address of the Bureau office where a copy of the request is available for public inspection and where comments and requests for extension of the comment period may be sent.

E. The reference and description required by §D(5) of this regulation shall include a description of the:

  (1) Property rights claimed and the basis for the claim if the request relies upon the good faith/all permits standard or the needed for and adjacent standard in Regulation .01B(7)(a)(ii) of this regulation;

  (2) Basis for the claim that the road existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and that a legal right exists to use the road for surface coal mining operations if the request relies upon the standard in Regulation .01B(7)(b)(ii) of this chapter; or

  (3) Basis for the claim that a properly recorded right-of-way or easement for a road in that location existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and under the document creating the right-of-way or easement, and under any subsequent conveyances a legal right exists to use or construct a road across the right-of-way or easement to conduct surface coal mining operations, if the request relies upon the standard in Regulation .01B(7)(b)(i) of this regulation.

F. The notice required by §C(2) of this regulation shall provide a 30 day comment period starting from the date of service and specify that an additional 30 days is available upon written request. The Bureau may grant additional time for good cause upon request and is not required to consider comments received after the closing date of the comment period.

#### Regulation .07 Decision on Valid Existing Rights.

*COMAR 26.20.10.07*

A. The Bureau shall review the information submitted under Regulation .05 of this chapter, the comments received under Regulation .06 of this chapter, and any other reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request for valid existing rights. The Bureau shall notify the applicant, in writing, if it determines the record is inadequate, providing an explanation of the inadequacy and requesting the submittal of additional information that is necessary to complete the record. The notice shall require the requested information to be submitted within 30 days from receipt of the notice.

B. When the record is complete and adequate, the Bureau shall determine whether the request submitted under Regulation .05 of this chapter has demonstrated valid existing rights. The Bureau's decision shall be in writing and contain findings of fact and conclusions sufficient to justify the decision.

C. The Bureau shall issue a determination that valid existing rights have not been demonstrated if the property rights claims are the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question. The determination shall be made without prejudice. The request may be refiled when the property rights dispute is finally adjudicated. This section only applies to legal action that is initiated as of the closing date of the comment period under Regulation .06D and F of this chapter.

D. If the record of the request indicates disagreement as to the accuracy of the property rights claims, but is not the subject of any pending litigation, the Bureau shall evaluate the merits of the information in the record and determine whether a demonstration of valid existing rights has been made. The Bureau shall issue a decision in accordance with §B of this regulation.

E. The Bureau shall issue a determination that valid existing rights have not been demonstrated if any of the information requested under §A of this regulation is not submitted within 30 days from receipt of the notice. This determination is made without prejudice and a revised request may be refiled at any time.

F. After making a determination under this regulation, the Bureau shall:

  (1) Require the person requesting the determination to publish notice in a newspaper of general circulation in the county in which the land is located and provide a copy of the published notice to the Bureau; and

  (2) Provide a copy of the determination and an explanation of appeal rights to:

    (a) The person requesting the determination;

    (b) The owner or owners of the land to which the determination applies;

    (c) The owners of the feature causing the land to come under the protection of Regulation .01B(7) of this chapter; and

    (d) When applicable, to the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of Regulation .01B(7) of this chapter.

G. A determination by the Bureau on valid existing rights is subject to administrative and judicial review under COMAR 26.20.06.

### Chapter 11 — Designation of Areas as Unsuitable for Mining

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.10 were previously codified as COMAR 08.13.09.11A—J, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.11 to COMAR 26.20.11, June 1996

#### Regulation .01 Definitions.

*COMAR 26.20.11.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Fragile lands” means geographic areas containing natural, ecologic, scientific, or esthetic resources that could be damaged or destroyed by surface coal mining operations. Examples of fragile lands include valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants, uncommon geologic formations, National Natural Landmark sites, areas where mining may cause flooding, environmental corridors containing a concentration of ecologic and esthetic features, areas of recreational value due to high environmental quality, and buffer zones adjacent to the boundaries of areas where surface coal mining operations are prohibited under COMAR 26.20.10.

  (2) “Historic lands” means historic or cultural districts, places, structures, or objects, including archeological and paleontological sites, National Historic Landmark sites, sites listed on or eligible for listing on a State or national register of historic places, sites having religious or cultural significance to Native Americans or religious groups or sites for which historic designation is pending.

  (3) “Natural hazard lands” means geographic areas in which natural conditions exist that pose or, as a result of surface coal mining operations, may pose, a threat to the health, safety, or welfare of people, property, or the environment, including areas subject to landslides, cave-ins, severe wind or soil erosion, frequent flooding, avalanches, and areas of unstable geology.

  (4) “Substantial legal and financial commitments in a surface coal mining operation” means significant investments that have been made on the basis of a long-term coal contract in power plants, railroads, coal-handling, preparation, extraction or storage facilities, and other capital-intensive activities. An example would be an existing mine, not actually producing coal, but in a substantial stage of development before production. Costs of acquiring the coal in place or of the right to mine it without an existing mine, as described in the above example, alone are not sufficient to constitute substantial legal and financial commitments.

#### Regulation .02 Right to Petition.

*COMAR 26.20.11.02*

A. A person having an interest which is or may be adversely affected has the right to petition the Bureau to have an area designated as unsuitable for surface coal mining operations, or to have an existing designation terminated.

B. For the purpose of this chapter, a person having an interest which is or may be adversely affected shall demonstrate how the person:

  (1) Meets an “injury in fact” test by describing the injury to the person's specifically affected interests; and

  (2) Is among the injured.

#### Regulation .03 Petition Information.

*COMAR 26.20.11.03*

A. The Bureau shall determine what information shall be provided by the petitioner to:

  (1) Have an area designated as unsuitable for surface coal mining operations; or

  (2) Terminate an existing designation.

B. At a minimum, a complete petition for designation shall include:

  (1) The petitioner's name, address, telephone number, and notarized signature;

  (2) Identification of the petitioned areas, including the area's location and size, and a U.S. Geological Survey 7.5 minute topographic map outlining the perimeter of the petitioned area;

  (3) An identification of the petitioner's interest which is or may be adversely affected by surface coal mining operations, including a statement demonstrating how the petitioner satisfies the requirements of Regulation .02 of this chapter;

  (4) A description of how mining of the area has affected or may adversely affect people, land, air, water, or other resources, including the petitioner's interests; and

  (5) Allegations of fact and supporting evidence, covering all lands in the petition area, which establish that the area is unsuitable for all or certain types of surface coal mining operations under specific criteria of Regulation .04 of this chapter, assuming that contemporary mining practices required under the Regulatory Program would be followed if the area were to be mined.

C. Each of the allegations of fact under §B of this regulation should be specific as to the portion of the petitioned area and petitioner's interests to which the allegation applies, and be supported by evidence that tends to establish the validity of the allegations for the portion of the petitioned areas.

D. The Bureau may request that the petitioner provide other supplementary information which is readily available.

E. At a minimum, a complete petition for termination shall include:

  (1) The petitioner's name, address, telephone number, and notarized signature;

  (2) Identification of the petitioned area, including its location and size, and a U.S. Geological Survey 7.5 minute topographic map outlining the perimeter of the petitioned area to which the termination petition applies;

  (3) An identification of the petitioner's interest which is or may be adversely affected by the designation that the area is unsuitable for surface coal mining operations including a statement demonstrating how the petitioner satisfies the requirements of Regulation .02 of this chapter; and

  (4) Allegations of facts covering all lands for which the termination is proposed.

F. Each of the allegations of fact under §E(4) of this regulation shall be specific as to the portions of the petitioned area and petitioner's interests to which the allegation applies. The allegations shall be supported by evidence, not contained in the record of the designation proceeding, that tends to establish the validity of the allegations for the portion of the petitioned area. For areas previously and unsuccessfully proposed for termination, significant new allegations of facts and supporting evidence shall be presented in the petition. Allegations and supporting evidence should also be specific to the basis for which the designation was made and tend to establish that the designation should be terminated.

G. The Bureau may request that the petitioners provide other supplementary information which is readily available.

#### Regulation .04 Criteria for Designating Lands as Unsuitable.

*COMAR 26.20.11.04*

A. Upon petition, an area shall be designated as unsuitable for all or certain types of surface coal mining operations if the Bureau determines that reclamation is not technologically and economically feasible under the Regulatory Program.

B. Upon petition an area may be (but is not required to be) designated as unsuitable for certain types of surface coal mining operations, if the operations will:

  (1) Be incompatible with existing State or local land use plans or programs;

  (2) Affect fragile or historic lands in which the operations could result in significant damage to important historic, cultural, scientific, or esthetic values or natural systems;

  (3) Affect renewable resource lands in which the operations could result in a substantial loss or reduction of long-range productivity of water supply or of food or fiber products; or

  (4) Affect natural hazard lands in which the operations could substantially endanger life and property, these lands to include areas subject to frequent flooding and areas of unsuitable geology.

#### Regulation .05 Land Exempt from Designation as Unsuitable for Surface Coal Mining Operations.

*COMAR 26.20.11.05*

The requirements of this chapter do not apply to:

A. Lands on which surface coal mining operations were being conducted on August 3, 1977;

B. Lands covered by a permit issued under the Interim Regulatory Program or the Regulatory Program; or

C. Lands where substantial legal and financial commitments in surface coal mining operations were in existence before January 4, 1977.

#### Regulation .06 Prospecting on Area Designated Unsuitable.

*COMAR 26.20.11.06*

Designation of any area as unsuitable for all or certain types of surface coal mining operations pursuant to this chapter does not prohibit coal prospecting in the area, if conducted in accordance with the Regulatory Program, and other applicable requirements. Prospecting on any lands designated unsuitable for surface coal mining operations must be approved by the Bureau to ensure that exploration does not interfere with any value for which the area has been designated unsuitable for surface coal mining.

#### Regulation .07 Petition Processing Procedures.

*COMAR 26.20.11.07*

A. Within 30 days of receipt of a petition, the Bureau shall notify the petitioner by certified mail as to whether the petition is complete. For the purpose of this regulation, “complete” means that all of the information required under Regulation .03A or B of this chapter has been provided.

B. If the Bureau determines that the petition is incomplete or frivolous, or that the petitioner does not have an interest which is or may be adversely affected, the Bureau shall return the petition to the petitioner together with a written statement of the reasons for the determination and the categories of information needed to complete the petition.

C. The Bureau shall determine whether any identified coal deposits exist in the area covered by the petition, without requiring any showing from the petitioner. If the Bureau finds that there are not any identified coal deposits in that area, the Bureau shall return the petition to the petitioner with a statement of the findings.

D. The Bureau may reject petitions for designations or terminations of designations which are frivolous. A frivolous petition is one in which the allegations of harm lack serious merit.

E. When considering a petition for an area which was previously but unsuccessfully proposed for designation, the Bureau shall determine if the new petition presents significant new allegations of facts with evidence which tends to establish the allegations. If the petition does not contain the material, the Bureau may not consider the petition and shall return the petition to the petitioner, with a statement of its findings and a reference to the record of the previous designation proceedings where the facts were considered.

F. The Bureau shall notify the person who submits a petition of any application for a permit received which proposes to include any area covered by the petition.

G. Any petitions received on a permit application after the first newspaper notice in the applicant's newspaper advertisement under COMAR 26.20.04.03 do not prevent the Bureau from issuing a decision on that permit application. The Bureau may return any petition received thereafter to the petitioner with a statement why the Bureau cannot consider the petition.

H. After a petition is received, the Bureau shall notify the general public of the receipt of the petition by advertising in a local newspaper providing broadest circulation in the area covered by the petition in the region of the petitioned area, and in the Maryland Register. The Bureau shall:

  (1) Make copies of the petition available to the public; and

  (2) Provide copies of the petition to:

    (a) Other interested government agencies;

    (b) Intervenors;

    (c) Persons with an ownership interest of record in the property; and

    (d) Other persons known to the Bureau to have an interest in the property.

I. Promptly after the determination that a petition is complete, the Bureau shall request submissions from the general public of relevant information:

  (1) By a newspaper advertisement placed once a week for 2 consecutive weeks in the location of the area covered by the petition;

  (2) In the newspaper providing broadest circulation in the region of the petitioned area; and

  (3) In the Maryland Register.

J. Until 3 days before the Bureau holds a hearing under §L of this regulation, any person may intervene in the proceeding by filing allegations of facts, supporting evidence, a short statement identifying the petition to which the allegations pertain, and the intervenor's name, address, and telephone number.

K. Beginning immediately after a complete petition is filed, the Bureau shall compile and maintain a record consisting of all documents relating to the petition filed with or prepared by the Bureau. The Bureau shall make the record available for public inspection during all normal business hours at the main office of the Bureau. Copying will be permitted at the Bureau at the normal rate per page. The Bureau shall also maintain information at or near the area in which the petitioned land is located and make this information available to the public for inspection and for copying at reasonable cost during all normal business hours. At a minimum, this information shall include a copy of the petition.

L. Legislative and Fact-Finding Hearing.

  (1) Within 10 months after receipt of a complete petition, the Bureau shall hold a public hearing in the locality of the area covered by the petition, unless all petitioners and intervenors agree that the hearing need not be held. The hearing shall be legislative and fact-finding in nature. The Bureau may subpoena witnesses as necessary. The hearing may be conducted with cross-examination of expert witnesses only. A record of the hearing shall be made and preserved. A person does not bear the burden of proof or persuasion. All relevant parts of the data base and inventory system and all public comments received during the public comment period shall be included in the record and considered by the Bureau in its decision on the petition.

  (2) The Bureau shall give notice of the date, time, and location of the hearing to:

    (a) Local, State, and federal agencies that may have an interest in the decision on the petition;

    (b) The petitioner and the intervenors; and

    (c) Any persons with an ownership or other interest known to the Bureau in the area covered by the petition.

  (3) Notice of the hearing shall be sent by certified mail and postmarked not less than 30 days before the scheduled date of the hearing.

  (4) The Bureau shall notify the general public of the date, time, and location of the hearing by placing a newspaper advertisement once a week for 2 consecutive weeks in the locale of the area covered by the petition, and once during the week before the scheduled date of the public hearing. The consecutive weekly advertisement shall begin between 4 and 5 weeks before the scheduled date of the public hearing.

  (5) The Bureau may consolidate in a single hearing the hearings required for each of several petitions which relate to areas in the same locale.

M. Before designating any land areas as unsuitable for surface coal mining operations, the Bureau shall prepare a detailed statement, using existing and available information on the potential coal resources of the area, the demand for coal resources, and the impact of this designation on the environment, the economy, and the supply of coal.

N. If all petitioners and intervenors stipulate agreement before the hearing, the petition may be withdrawn from consideration.

#### Regulation .08 Petition Decision Procedures.

*COMAR 26.20.11.08*

A. In reaching its decision on a petition, the Bureau shall use:

  (1) The information contained in the data base and inventory system;

  (2) Information provided by other governmental agencies;

  (3) The detailed statement prepared under Regulation .07M of this chapter; and

  (4) Any other relevant information submitted during the comment period.

B. A final written decision shall be issued by the Bureau, including a statement of reasons, within 60 days of completion of the public hearing, or, if no public hearing is held, then within 12 months after receipt of the complete petition. The Bureau shall simultaneously send the decision by certified mail to the petitioner and intervenors and by regular mail to all other persons involved in the proceeding.

C. The decision of the Bureau with respect to a petition, or the failure of the Bureau to act within the time limits set forth in this regulation, shall be a final action of the Department subject to judicial review.

#### Regulation .09 Data Base and Inventory System Requirements.

*COMAR 26.20.11.09*

A. The Bureau shall develop a data base and inventory system to assist in evaluation of petitions under this chapter.

B. The Bureau shall include in the system information relevant to the criteria in Regulation .04 of this chapter, including but not limited to information received from the United States Fish and Wildlife Service, the State Historic Preservation Officer, and the agency administering §127 of the Clean Air Act, as amended (42 U.S.C. §7470 et seq.).

C. The Bureau shall add to the data base and inventory system information on potential coal resources of the State, demand for those resources, the environment, the economy, and the supply of coal, sufficient to enable the Bureau to prepare the statements required by Regulation .07M of this chapter. The Bureau also shall add to the data base and inventory system information that becomes available from petitions, publications, experiments, permit applications, mining and reclamation operations, and other sources.

#### Regulation .10 Public Information.

*COMAR 26.20.11.10*

The Bureau shall:

A. Make the information and data base system developed under Regulation .09 of this chapter available to the public for inspection free of charge and for copying at reasonable cost;

B. Provide information to the public on the petition procedures necessary to have an area designated as unsuitable for all or certain types of surface coal mining operations or to have designations terminated and describe how the inventory and data base system can be used;

C. Maintain maps of areas designated as unsuitable for all or certain types of surface coal mining operations;

D. Make available to any person any information within its control regarding designations, including mineral or elemental content which is potentially toxic in the environment, except proprietary information on the chemical and physical properties of the coal.

### Chapter 12 — Exemption for Coal Extraction Incidental to Government-Financed Highway or Other Construction

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01, .02, and .03 were previously codified as COMAR 08.13.09.12A, A(1) and (2), and B, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.12 to COMAR 26.20.12, June 1996

**Administrative History:** Regulation .02 amended effective May 14, 2001 (28:9 Md. R. 890)

**Administrative History:** Regulation .04 adopted effective May 14, 2001 (28:9 Md. R. 890)

#### Regulation .01 General.

*COMAR 26.20.12.01*

Coal extraction which is an incidental part of government-financed construction is exempt from all requirements of the Regulatory Program except the requirements of this chapter.

#### Regulation .02 Definitions.

*COMAR 26.20.12.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) Government-Financed Construction.

    (a) “Government-financed construction” means construction funded 50 percent or more by funds appropriated from a government financing agency's budget or obtained from general revenue bonds. Funding at less than 50 percent may qualify if the construction is undertaken as an approved reclamation project under Environment Article, Title 15, Subtitle 11, Annotated Code of Maryland, and 30 CFR Subchapter R.

    (b) “Government-financed construction” does not mean government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or their equivalent, or in-kind payments.

  (2) “Extraction of coal incidental to government-financed construction” means the extraction of coal which is necessary to enable the construction to be accomplished. Only that coal extracted from within the right-of-way, in the case of a road, railroad, utility line, or other similar constructions, or within the boundaries of the area directly affected by other types of government-financed construction, may be considered incidental to that construction. Extraction of coal outside the right-of-way or boundary of the area directly affected by the construction is subject to the requirements of the Regulatory Program.

#### Regulation .03 Documentation.

*COMAR 26.20.12.03*

A. Any person extracting coal incidental to government-financed highway or other construction shall maintain, on the site of the extraction operation and available for inspection, documents which show:

  (1) A description of the construction project;

  (2) The exact location of the construction, right-of-way, or the boundaries of the area which will be directly affected by the construction; and

  (3) The government agency which is providing the financing and the kind and amount of public financing, including the percentage of the entire construction costs represented by the government financing.

B. The government financing agency may be a federal, State, county, municipal, or local unit of government, or a department, bureau, agency, or office of the unit which, directly or through another unit of government, finances construction.

#### Regulation .04 Government-Funded Reclamation Projects.

*COMAR 26.20.12.04*

A. When the Bureau is considering an abandoned mine land reclamation project as government-financed construction and the level of funding will be less than 50 percent of the total cost because of planned coal extraction, the Bureau shall determine the likelihood:

  (1) That nearby or adjacent mining activities may create new environmental problems or adversely affect existing environmental problems at the site;

  (2) That reclamation activities at the site may adversely affect nearby or adjacent mining activities; and

  (3) Of the coal being mined under a permit issued in accordance with Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland.

B. The determination under §A(3) of this regulation shall take into account available information, such as:

  (1) Coal reserves from existing mine maps or other sources;

  (2) Existing environmental conditions;

  (3) All prior mining activity on or adjacent to the site;

  (4) Current and historic coal production in the area; and

  (5) Any known or anticipated interest in the mining site.

C. If the Bureau decides to proceed with the reclamation project after making the determinations under §A of this regulation, the Bureau shall:

  (1) Determine the limits on any coal refuse, coal waste, or other coal products which may be extracted under this regulation; and

  (2) Delineate the boundaries of the abandoned mine land reclamation project.

D. The Bureau shall include documentation in the abandoned mine land project file for the:

  (1) Determinations made under §§A and C of this regulation;

  (2) Information taken into account in making the determinations; and

  (3) Names of the persons making the determinations.

E. For each abandoned mine land reclamation project to be approved under this regulation, the Bureau shall:

  (1) Characterize the site in terms of mine drainage, active slides and slide prone areas, erosion and sedimentation, vegetation, toxic materials, and hydrologic balance;

  (2) Ensure that the reclamation project is conducted in accordance with the provisions of Environment Article, Title 15, Subtitle 11, Annotated Code of Maryland, and 30 CFR Subchapter R;

  (3) Develop specific-site reclamation requirements, including performance bonds, when appropriate, in accordance with State procedures; and

  (4) Require the contractor conducting the reclamation to provide, before the time the reclamation project begins, documents that clearly authorize the extraction of coal and payment of royalties.

F. The Bureau shall require a reclamation contractor who extracts coal beyond the limits of the incidental coal specified in §C of this regulation to obtain a permit for the coal in accordance with Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland.

### Chapter 13 — Surface Effects of Deep Mines

**Authority:** Environment Article, §§15-503 and 15-603, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.10 were previously codified as COMAR 08.13.09.13A—J, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Regulation .01 amended effective February 13, 1995 (22:3 Md. R. 152)

**Administrative History:** Regulation .03C adopted effective February 13, 1995 (22:3 Md. R. 152)

**Administrative History:** Regulation .04D adopted effective February 13, 1995 (22:3 Md. R. 152)

**Administrative History:** Regulation .10 amended effective February 13, 1995 (22:3 Md. R. 152)

**Administrative History:** Regulations .11 and .12 adopted effective February 13, 1995 (22:3 Md. R. 152)

**Administrative History:** Chapter recodified from COMAR 08.20.13 to COMAR 26.20.13, June 1996

**Administrative History:** Regulation .05 amended effective March 14, 2005 (32:5 Md. R. 581)

**Administrative History:** Regulation .07 amended effective March 14, 2005 (32:5 Md. R. 581)

**Administrative History:** Regulation .09D adopted effective March 14, 2005 (32:5 Md. R. 581)

#### Regulation .01 General.

*COMAR 26.20.13.01*

All surface operations and activities conducted in conjunction with deep mining of coal pursuant to Environment Article, Title 15, Subtitle 6, Annotated Code of Maryland, shall comply with the requirements of this subtitle. This includes provisions relating to permit applications, bonding, and insurance, as well as all performance and reclamation standards. In addition, the following regulations in this chapter set out special requirements applicable to deep mines.

#### Regulation .02 Temporary Casing and Sealing of Underground Openings.

*COMAR 26.20.13.02*

A. Each mine entry which is temporarily inactive, but has a further projected useful service under the approved permit application, shall be protected by barricades or other covering devices, and fenced and posted with signs, to prevent access into the entry and to identify the hazardous nature of the opening. These devices shall be periodically inspected and maintained in good operating condition by the person who conducts the underground mining activities.

B. Each exploration hole, other drill hole, or borehole, shaft, well, and other exposed underground opening which has been identified in the approved permit application for use to return underground development waste, coal processing waste, or water to underground workings, or to be used to monitor ground water conditions, shall be temporarily sealed until actual use.

#### Regulation .03 Permanent Casing and Sealing of Underground Openings.

*COMAR 26.20.13.03*

A. Unless excepted under §B of this regulation, each shaft, drift, adit tunnel, exploratory hole, entryway, or other opening to the surface from underground shall be capped, sealed, backfilled, or otherwise properly managed, as required by the Bureau. Permanent closure measures shall be designed to prevent access to the mine workings by people, livestock, fish and wildlife, and machinery, and to keep acid or other toxic drainage from entering ground or surface waters.

B. Permanent closure may not be required where an opening is needed for monitoring purposes, or is approved for transfer as a water well or some other use upon a showing of no adverse environmental or health and safety effects. Bureau approval shall be required for all these exceptions.

C. Mine opening seals shall be:

  (1) Designed using the best technology currently available and certified by a qualified registered professional engineer; and

  (2) Certified after construction by a qualified registered professional engineer as having been constructed according to the approved design.

#### Regulation .04 Face-Up Areas.

*COMAR 26.20.13.04*

A. The surface disturbance for the face-up area may not exceed 400 lineal feet along the seam to be mined.

B. The face-up area shall be prepared in such a manner that drainage from the face-up area will result in minimum erosion and sedimentation. The face-up area may not be located in an area where the original contour of the land, measured from the cropline of the seam to be mined to the estimated toe of the fill bench, exceeds 20 degrees from the horizontal, unless no fill bench is created and the spoil from the face-up area is disposed in a suitable disposal area.

C. The amount of overburden and the amount of coal to be removed from the face-up area shall be set forth in the plan.

D. Surface openings and accesses to underground workings shall be located to prevent gravity discharge of water from the mine, unless it is demonstrated that the untreated discharge will comply with the performance standards of COMAR 26.20.21.02F.

#### Regulation .05 Hydrologic Balance: General Requirements.

*COMAR 26.20.13.05*

A. In this regulation, an owner of interest in real property includes an owner, a renter, a tenant, or a lessee of real property.

B. Operations shall be conducted to minimize water pollution, and, where necessary, treatment methods shall be used to control water pollution.

C. Acceptable practices to control and minimize water pollution include but are not limited to:

  (1) Stabilizing disturbed areas through land shaping;

  (2) Diverting runoff;

  (3) Achieving quickly germinating and growing stands of temporary vegetation;

  (4) Regulating channel velocity of water;

  (5) Lining drainage channels with rock or vegetation;

  (6) Mulching;

  (7) Selectively placing and sealing acid-forming and toxic-forming materials;

  (8) Designing mines to prevent gravity drainage of acid waters;

  (9) Sealing;

  (10) Controlling subsidence; and

  (11) Preventing acid mine drainage.

D. The permittee shall promptly replace the water supply of an owner of interest in real property who obtains all or part of the owner's supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source that is contaminated, diminished, or interrupted proximately resulting from underground mining activities.

E. Upon agreement by the permittee and the water supply owner, the obligation to pay such operation and maintenance costs may be satisfied by a one time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period agreed to by the permittee and the water supply owner.

F. If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If this approach is selected, written concurrence shall be obtained from the water supply owner.

#### Regulation .06 Hydrologic Balance: Water Quality Standards and Effluent Limitations.

*COMAR 26.20.13.06*

A. All surface drainage from the disturbed area, including disturbed areas that have been graded, seeded, or planted, shall be passed through a sedimentation pond, a series of sedimentation ponds, or a treatment facility before leaving the permit area. Any discharge of water from underground workings to surface waters which does not meet the effluent limitations of the Regulatory Program shall also be passed through a sedimentation pond, a series of sedimentation ponds, or a treatment facility before leaving the permit area.

B. Sedimentation ponds and treatment facilities for surface drainage from the disturbed area shall be maintained until the disturbed area has been restored and the vegetation requirements are met and the quality of the untreated drainage from the disturbed area meets the applicable State and federal water quality standards requirements for the receiving stream. Sedimentation ponds and treatment facilities for discharges from underground workings shall be maintained until either the discharge continuously meets the effluent limitations of the Regulatory Program or until the discharge has permanently ceased.

C. The Bureau may grant exemptions from these requirements only in accordance with the following:

  (1) The person who conducts the underground mining activities shall demonstrate that sedimentation ponds and treatment facilities are not necessary for the drainage to be exempted to meet the effluent limitations of the Regulatory Program.

  (2) For drainage from areas affected by surface operations and facilities, an exemption may be authorized only if the disturbed surface drainage area within the total disturbed surface area is small and there is no mixture of surface drainage with a discharge from underground mine workings. For drainage from underground mine workings, exemption may be authorized only if there is no mixture of that drainage from surface areas.

D. Sedimentation ponds shall be constructed in accordance with the Regulatory Program, in appropriate locations before beginning any underground mining activities in the affected drainage area.

E. If the sedimentation ponds or series of sedimentation ponds are used so as to result in the mixing of drainage from the disturbed areas with drainage from other areas not disturbed by current surface coal mining and reclamation operations, the permittee shall achieve the effluent limitations of the Regulatory Program for all of the mixed drainage when it leaves the permit area.

#### Regulation .07 Subsidence Control: General Requirements.

*COMAR 26.20.13.07*

A. Underground mining activities shall be planned and conducted so as to prevent subsidence from causing material damage to the extent technologically and economically feasible, and so as to maintain the value and reasonably foreseeable use of surface lands. This may be accomplished by leaving adequate coal in place, backfilling, or other measures to support the surface, or by conducting underground mining in a manner that provides for planned and controlled subsidence.

B. Except as provided in §C of this regulation, underground mining activities that employ mining technology that provides for planned subsidence in a predictable and controller manner shall utilize necessary and prudent measures, consistent with the mining method employed, to minimize material damage to the extent technologically and economically feasible to all structures.

C. Measures required to minimize material damage to structures under §B of this regulation are not required if:

  (1) The permittee has the written consent of the owners of the structures; or

  (2) The cost of the measures exceeds the anticipated costs of repair, unless the anticipated damage would constitute a threat to health or safety.

D. Nothing in this regulation prohibits the standard method of room-and-pillar mining.

E. The person engaged in underground mining activities shall comply with all provisions of the approved subsidence control plan prepared in accordance with COMAR 26.20.02.16.

F. Presubsidence Surveys of Water Supplies.

  (1) Each application for a permit shall contain a survey of the condition of the quantity and quality of all water supplies within the permit area and adjacent area that could be contaminated, diminished, or interrupted by subsidence.

  (2) The applicant or permittee shall pay for any survey, technical assessment, or engineering evaluation used to determine the quantity and quality of any water supplies. A copy of the survey and any technical assessment or engineering evaluation shall be provided to the property owner and the Bureau.

#### Regulation .08 Subsidence Control: Public Notice.

*COMAR 26.20.13.08*

A. The mining schedule shall be distributed by mail to all owners of property and residents within the area above the underground workings and adjacent areas. Each of these persons shall be notified by mail at least 6 months before mining beneath his property or residence.

B. The notification shall contain, as a minimum:

  (1) Identification of specific areas in which mining will take place;

  (2) Dates of mining activities that could cause subsidence and affect specific structures; and

  (3) Measures to be taken to prevent or control adverse surface effects.

#### Regulation .09 Subsidence Control: Surface Owner Protection.

*COMAR 26.20.13.09*

A. Each person who conducts underground mining activities shall adopt all measures approved by the Bureau to reduce the likelihood of subsidence, to prevent subsidence that causes material damage or reduces the value of reasonably foreseeable use of surface lands, and to mitigate the effects of this damage or reduction of the value of reasonably foreseeable use of surface lands, and to mitigate the effects of this damage or reduction which may occur.

B. Each person who conducts underground mining which results in subsidence that causes material damage or reduces the value or reasonably foreseeable use of the surface lands shall, with respect to each surface area affected by subsidence:

  (1) Restore, rehabilitate, or remove and replace each damaged structure, feature, or value, promptly after the damage is suffered, to the condition it would be in if no subsidence had occurred, and restore the land to a condition capable of supporting reasonably foreseeable uses it was capable of supporting before subsidence;

  (2) Purchase the damaged structure or feature for its fair market pre-subsidence value, and promptly after subsidence occurs restore the land surface to a condition capable and appropriate of supporting the purchased structure and other foreseeable uses it was capable of supporting before mining. This may not be deemed to grant or authorize an exercise of the power of condemnation or the right of eminent domain by any person engaged in underground mining activities.

C. Each person who conducts underground mining activities will:

  (1) Compensate the owner of any surface structure in the full amount of the diminution in value resulting from subsidence, by purchase before mining of noncancellable premium prepaid insurance policy or other means approved by the Bureau as assuring before mining begins that payment will occur;

  (2) Indemnify every person with an interest in the surface for all damages suffered as a result of the subsidence; and

  (3) Fully restore the land to a condition capable of maintaining reasonably foreseeable uses which it could support before subsidence.

D. In determining whether damage to protected structures was caused by subsidence from underground mining, the Bureau shall consider all relevant and reasonably available information.

#### Regulation .10 Subsidence Control: Buffer Zones.

*COMAR 26.20.13.10*

A. Underground mining activities may not be conducted beneath or adjacent to any perennial stream, or impoundment having a storage volume of 20 acre-feet or more, unless the Bureau, on the basis of detailed subsurface information submitted by the applicant, determines that subsidence will not cause material damage to streams, water bodies and associated structures. If subsidence causes material damage, measures will be taken to correct the damage and to prevent additional subsidence from occurring.

B. Underground mining activities beneath any aquifer that serves as a significant source of water supply to any public water system shall be conducted so as to avoid disruption of the aquifer and consequent exchange of ground water between the aquifer and other strata. The Bureau may prohibit mining in the vicinity of the aquifer or may limit the percentage of coal extraction to protect the aquifer and water supply.

C. Underground mining activities may not be conducted beneath or adjacent to any public buildings or facilities, including but not limited to churches, schools, hospitals, courthouses, and government offices, unless the Bureau, on the basis of detailed subsurface information, determines that subsidence from those activities will not cause material damage to these structures and specifically authorizes the mining activities. If the Bureau determines that it is necessary in order to minimize the potential for material damage to the features or facilities described above or to any aquifer or body of water that serves as a significant water source for any public water supply system, it may limit the percentage of coal extracted under or adjacent to it.

D. Underground mining activities may not be conducted within the subjacent area where mining is predicted to result in subsidence of any public bridge.

E. If subsidence causes material damage to any of the features or facilities covered under this regulation, the Bureau may suspend mining under or adjacent to those features or facilities until the subsidence control plan is modified to ensure prevention of further material damage.

F. The Bureau shall suspend underground coal mining under urbanized areas, cities, towns, and communities, and adjacent to industrial or commercial buildings, major impoundments, or permanent streams, if imminent danger is found to inhabitants of the urbanized areas, cities, towns, or communities.

G. Within a schedule approved by the Bureau, the operator shall submit a detailed plan of the underground workings. The detailed plan shall include maps and descriptions, as appropriate, of significant features of the underground mine, including:

  (1) The size, configuration, and approximate location of pillars and entries;

  (2) Extraction ratios;

  (3) Measures taken to prevent or minimize subsidence and related damage;

  (4) Areas of full extraction; and

  (5) Other information required by the Bureau.

#### Regulation .11 Barriers.

*COMAR 26.20.13.11*

A. Except for the approved mine entries, a barrier of solid coal shall be provided around the perimeter of the underground mine area. The barriers shall be:

  (1) Of sufficient width to withstand the weight of supported overburden without squeezing, crushing, or punching into the floor or roof of the mine; and

  (2) Designed to withstand anticipated hydrostatic pressure and deterioration over time without failure.

B. Barriers shall be a minimum of 50 feet in width or greater as determined by the formula W = 20 + 4T + 0.1D, when W = width of the barrier, T=thickness of the extraction, and D=depth of overburden. Perimeter barriers shall have a minimum of 50 feet of overburden.

C. Barriers subject to a hydrostatic head shall be at least 1 foot wide for each foot to head.

D. When mining is proposed to be conducted beneath barriers in an existing underground mine, the barriers in the existing upper mine shall be provided subsidence protection sufficient to assure preservation of their design integrity.

#### Regulation .12 Projection Maps.

*COMAR 26.20.13.12*

A. Two copies of a projection map as required by Environment Article, §15-615(c), Annotated Code of Maryland, shall be submitted to the Bureau at least once every 6 months. The map shall be prepared by, or under the supervision of, and certified by a qualified registered professional engineer. Unless approved by the Bureau, the scale of the map shall be the same as the map submitted under COMAR 26.20.02.18A(4).

B. The map shall provide the following information:

  (1) Areas where mining occurred before the term of the map, including the type of mining;

  (2) Areas where mining occurred during the term of the map, including the type of mining;

  (3) Areas where mining is contemplated during the projection period, including the type of mining;

  (4) Structural contours of the coal pavement based on actual survey information from the area where coal has been extracted;

  (5) The date of the last survey upon which structural information is based;

  (6) The location and dimensions, drawn to scale, of all surface structures;

  (7) The area where coal will be left in place to provide subsidence protection for surface structures and features;

  (8) Grid lines or symbols corresponding to the Maryland State Plane Coordinate System;

  (9) If three or more sheets are required to cover the boundaries of the mine, a key map or index showing the arrangement of sheets in relation to the overall mine;

  (10) A legend block identifying the different colors or symbols appearing on the map; and

  (11) A title block containing the:

    (a) Permittee's name;

    (b) Name of the mine;

    (c) Permit number;

    (d) Dates of the term of the map;

    (e) Dates to which the projection applies;

    (f) Map scale; and

    (g) Date the map was prepared.

### Chapter 14 — Performance Bonds

**Authority:** Environment Article, §§15-503 and 15-603, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.13 were previously codified as COMAR 08.13.09.15A—M, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Regulation .01 amended effective August 15, 1994 (21:16 Md. R. 1382)

**Administrative History:** Regulation .05B amended effective August 15, 1994 (21:16 Md. R. 1382)

**Administrative History:** Regulation .08 amended effective August 15, 1994 (21:16 Md. R. 1382)

**Administrative History:** Regulation .09 amended effective August 15, 1994 (21:16 Md. R. 1382)

**Administrative History:** Regulation .10 repealed effective August 15, 1994 (21:16 Md. R. 1382)

**Administrative History:** Regulation .13 amended effective February 13, 1995 (22:3 Md. R. 152)

**Administrative History:** Regulation .13A amended effective August 15, 1994 (21:16 Md. R. 1382)

**Administrative History:** Chapter recodified from COMAR 08.20.14 to COMAR 26.20.14, June 1996

**Administrative History:** Regulation .04 amended effective March 22, 1999 (26:6 Md. R. 488)

**Administrative History:** Regulation .05 amended effective March 22, 1999 (26:6 Md. R. 488)

**Administrative History:** Regulation .06 amended effective March 22, 1999 (26:6 Md. R. 488)

**Administrative History:** Regulation .08D amended effective March 22, 1999 (26:6 Md. R. 488)

**Administrative History:** Regulation .09A amended effective July 8, 2002 (29:13 Md. R. 993)

**Administrative History:** Regulation .09B amended effective March 22, 1999 (26:6 Md. R. 488)

**Administrative History:** Regulation .12D adopted effective March 22, 1999 (26:6 Md. R. 488)

**Administrative History:** Regulation .13D, E adopted effective March 14, 2005 (32:5 Md. R. 581)

#### Regulation .01 Bond Requirements.

*COMAR 26.20.14.01*

A. After an application for a new, revised, or renewed permit to conduct surface coal mining and reclamation operations has been approved, but before the permit is issued, the operator shall file a performance bond with the Bureau, as required by Environment Article, §15-507, Annotated Code of Maryland. The bond covers the entire approved area or an identified increment of land within the approved area upon which the operator shall initiate and conduct surface coal mining and reclamation operations.

B. The bond shall be payable to the State, shall be on forms provided by the Bureau, and shall be conditioned upon the permittee faithfully performing every requirement of Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland, the Regulatory Program, the permit, and the reclamation plan.

C. An operator may not disturb surface acreage or extend any underground shafts, tunnels, or operations before receipt of approval from the Bureau of the performance bonds covering the surface acreage to be affected.

D. Liability on the performance bonds shall cover all surface coal mining and reclamation operations to be conducted within the permit area during the life of the mine. After the amount of the bonds has been determined for the permit area, the operator may either file the entire amount of bond required during the term of the permit, or an incremental bond schedule and the amount of bond required for the first increment in the schedule.

E. When the operator elects to file the amount of the bond in increments, he shall identify the initial and successive incremental areas for bonding on the permit application map submitted under COMAR 26.20.02. Before issuing the permit, the Bureau shall determine the bond amount required for the initial incremental area and the operator shall file the bond on the initial incremental area of the permit. The operator shall file with the Bureau the required bond amount for succeeding increments before initiating surface coal mining and reclamation operations on the increments.

#### Regulation .02 Form of Performance Bonds.

*COMAR 26.20.14.02*

In accordance with Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland, the Bureau may accept either:

A. A surety bond executed by the operator and a corporate surety licensed to do business in the State; or

B. A collateral bond in one of the following forms:

  (1) A deposit of cash or negotiable bonds of the U.S. Government having a market value equal to the required bond amount,

  (2) A certificate of deposit equal to the required bond, issued by a bank in the State and accompanied by a written agreement of the bank to pay on demand to the State, or

  (3) An irrevocable letter of credit that is equivalent to the required bond, issued by a bank in the State that expressly states that the total sum is guaranteed to be available and payable directly to the State on demand in the event of forfeiture. The irrevocable letter of credit may not expire during the anticipated life of the mining activities and the reclamation period after that.

#### Regulation .03 Amount of Performance Bonds.

*COMAR 26.20.14.03*

A. The amount of the performance bonds required for a surface coal mining and reclamation permit shall be the estimated cost to perform the reclamation and restoration work required to achieve compliance with the Regulatory Program, and requirements of the permit, if the work had to be contracted out by the Bureau in the event of forfeiture.

B. This amount shall be based on, but not limited to:

  (1) The estimated costs submitted by the permittee;

  (2) The additional estimated costs to the Bureau which may arise from applicable public contracting requirements, including the need to bring personnel and equipment to the permit area after its abandonment by the permittee to perform reclamation and restoration work;

  (3) An additional amount based on factors of cost changes during the preceding 5 years for the types of activities associated with the reclamation to be performed; and

  (4) Other cost information that may be required by or available to the Bureau.

C. The minimum amount of the general bond shall be $1,500 per acre for the approved open acre limit.

D. The minimum amount of the revegetation bond shall be $600 per acre of affected land.

E. The minimum amount of the total bonds shall be $10,000 for the entire area under one permit.

#### Regulation .04 Adjustment of Bond Amount.

*COMAR 26.20.14.04*

A. The amount of the performance bond liability applicable to a permit shall be adjusted by the Bureau as acreage in the permit area is revised, or when the cost of future reclamation or restoration work changes. The Bureau shall notify the permittee, the surety, and any person with a property interest in collateral who has requested notification in accordance with Regulation .06D of this chapter of any proposed bond adjustment and provide the permittee an opportunity for an informal conference on the adjustment.

B. A permittee may request reduction of the required performance bond amount upon submission of evidence to the Bureau proving that the permittee's method of operation or other circumstances will reduce the maximum estimated cost to the Bureau to complete the reclamation of the bond amount. The request shall be considered as a request for partial bond release.

C. In addition, when the permittee submits the annual mining and reclamation progress report for a permit, the amount of bond required for the operation may be adjusted by the Bureau to the amounts required to assure completion of reclamation and revegetation.

#### Regulation .05 Duration of Performance Bonds.

*COMAR 26.20.14.05*

A. Liability under performance bonds applicable to a permit shall continue until all reclamation and restoration work required by the Regulatory Program and the provisions of the permit have been completed, and the permit terminated by the release of the permittee from any further liability.

B. In addition, except on lands eligible for remining, the period of liability for a bond shall continue for a minimum period of not less than 5 years, beginning with the last year of augmented seeding, fertilizing, irrigation, or other work. The period of liability shall begin again when augmented seeding, fertilizing, irrigation, or other work is ordered by the Bureau to correct a failure to maintain the permanent vegetative cover required under COMAR 26.20.29 on the site.

C. On lands eligible for remining included in permits issued before September 30, 2004, or any later date authorized by the federal Surface Mining Control and Reclamation Act, or any renewal thereof, the period of liability for a bond shall continue for a period of not less than 2 full years, beginning with the last year of augmented seeding, fertilizing, irrigation, or other work. The period of liability of not less than 2 full years shall begin again when augmented seeding, fertilizing, irrigation, or other work is ordered by the Bureau to correct a failure to maintain the permanent vegetative cover required under COMAR 26.20.29 on the site.

D. If the Bureau approves a long-term intensive agricultural post-mining land use, the applicable period of liability shall commence at the date of initial planting for such long-term intensive agricultural land use.

#### Regulation .06 Conditions of Bonds.

*COMAR 26.20.14.06*

A. Surety bonds are subject to the following conditions:

  (1) The Bureau may not accept the bond of a surety company unless the bond is totally noncancellable by the surety, regardless of time or reason, including but not limited to nonpayment of premium or bankruptcy of the permittee during the period of liability;

  (2) The Bureau may provide in the bond that the amount shall be confessed to judgment upon forfeiture;

  (3) The bond shall provide that the surety and the permittee shall be jointly and severally liable;

  (4) The bond shall provide that:

    (a) The surety will give prompt notice to the permittee and the Bureau of any notice received or action filed alleging the insolvency or bankruptcy of the surety, or alleging any violations of regulatory requirements which could result in suspension or revocation of the surety's license to do business;

    (b) If the surety becomes unable to fulfill its obligations under the bond for any reason, notice shall be given immediately to the permittee and the Bureau.

B. Collateral bonds shall be subject to the following conditions:

  (1) The Bureau shall obtain possession of and keep in custody all collateral deposited by the applicant, until authorized for release or replacement;

  (2) The Bureau shall value collateral at its current market value, not face value;

  (3) The Bureau shall require that certificates of deposit be made payable to the Bureau, in writing, and upon the books of the bank issuing these certificates;

  (4) The Bureau may not accept an individual certificate for a denomination in excess of $100,000, or maximum insurable amount as determined by FDIC;

  (5) The Bureau shall require the bank issuing these certificates to waive all rights of setoff or liens which it has or might have against these certificates, and to agree in writing that these certificates are payable in full to the Bureau upon demand;

  (6) The Bureau shall accept only automatically renewable certificates of deposit;

  (7) The applicant shall deposit sufficient amounts of certificates of deposit, to assure that the Bureau will be able to liquidate those certificates before maturity, upon forfeiture, for the amount of the bond required; and

  (8) The bank shall give prompt notice to the Bureau and the permittee of any notice received or action filed alleging:

    (a) The insolvency or bankruptcy of the bank or the permittee, or

    (b) Any violations of regulatory requirements which could result in suspension or revocation of the bank's charter or license to do business.

C. Letters of credit shall be subject to the following conditions:

  (1) The letter may only be issued by a bank organized or authorized to do business in Maryland;

  (2) The letter shall be irrevocable until released by the Bureau;

  (3) The letter shall be payable to the Bureau in full upon demand and receipt from the Bureau of a notice of forfeiture;

  (4) The Bureau may not accept a letter of credit in excess of 10 percent of the bank's capital surplus account as shown on a balance sheet certified by a certified public accountant, except when, before or at the time of issuance of the letter of credit, the issuing bank has set aside sufficient funds in a segregated deposit account, clearly marked for that purpose, to cover the bank's maximum liability under the letter of credit;

  (5) The Bureau may not accept letters of credit from a single bank for any person on all permits held by that person in excess of three times the company's maximum single obligation, except when, before or at the time of issuance of the letter of credit, the issuing bank has set aside sufficient funds in a segregated deposit account, clearly marked for that purpose, to cover the bank's maximum liability under the additional letters of credit;

  (6) Before accepting a letter of credit secured by a segregated deposited account, the Bureau shall require the bank issuing the letter of credit to execute a satisfactory waiver of all rights of setoff or liens which the bank has or might have against any segregated deposit account which secures the letter of credit;

  (7) The Bureau may require in the letter of credit that the amount shall be confessed to judgment upon forfeiture; and

  (8) The letter of credit shall provide that:

    (a) The bank will give prompt notice to the permittee and the Bureau of any notice received or action filed alleging the insolvency or bankruptcy of the bank, or alleging any violations or regulatory requirements which could result in suspension or revocation of the bank's charter or license to do business, and

    (b) If the bank becomes unable to fulfill its obligations under the letter of credit for any reason, notice shall be given immediately to the permittee and the Bureau.

D. A person with an interest in any collateral posted as a bond who desires notification of actions pursuant to the bond, shall request the notification, in writing, to the Bureau at the time the collateral is posted as bond.

E. Upon the incapacity of a bank or surety company holding the bond by reason of bankruptcy, insolvency, or suspension or revocation of a charter or license, the permittee is considered to be without bond coverage and shall promptly notify the Bureau. The Bureau, upon receipt of notification shall notify, in writing, any permittee who is considered to be without bond coverage due to the bankruptcy, insolvency, or suspension or revocation of a charter or license of a bank or surety company and specify a reasonable period, not to exceed 90 days, to replace bond coverage and inform the permittee that additional acreage may not be disturbed on the permit. If an adequate bond is not posted by the end of the period allowed, the permittee shall cease coal extraction and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan. Mining operations may not resume until the Bureau has determined that acceptable bond has been posted.

#### Regulation .07 Replacement of Bonds.

*COMAR 26.20.14.07*

A. The Bureau may allow permittees to replace existing surety or collateral bonds with other surety or collateral bonds, if the liability which has accrued against the permittee on the permit area is transferred to those replacement bonds.

B. The Bureau may not release existing performance bonds until the permittee has submitted and the Bureau has approved acceptable replacement performance bonds.

#### Regulation .08 Criteria and Schedule for Release of Performance Bond.

*COMAR 26.20.14.08*

A. The Bureau may not release any liability under any performance bonds until it finds that the permittee has met the requirements of the applicable reclamation phase as defined in §E of this regulation. The Bureau may release portions of the liability under performance bonds applicable to a permit following completion of reclamation phases on portions of the permit.

B. Acreage may be released from the permit area only after Reclamation Phase III has been completed on the entire permit.

C. The Bureau may not release any liability under performance bonds applicable to a permit if the release would reduce the total remaining liability under performance bonds to an amount less than that necessary for the Bureau to complete the approved reclamation plan, achieve compliance with the requirements of the Regulatory Program or the permit, and abate any significant environmental harm to the air, water, or land resources or danger to the public health and safety which might occur before the release of all lands from the permit area. If the permit area includes an alternative postmining land use plan, the Bureau shall also retain sufficient liability for the Bureau to contract for any additional work which would be required to achieve compliance with the general standards for revegetation if the permittee fails to implement the approved alternative postmining land use plan within the 2 years required.

D. The Bureau shall generally release liability under performance bonds in accordance with the following schedule:

  (1) The portion of the bond submitted in accordance with Regulation .03C of this chapter may be released upon completion of all Reclamation Phase I work on the permit and the submission of a bond release application, unless the permittee requests a reduction of the open acre limit before the completion of all Reclamation Phase I work;

  (2) For acreage on which Reclamation Phase II has been completed and for which a bond release application has been submitted, a portion of the bond for performance not to exceed 50 percent of the per acre rate submitted in accordance with Regulation .03D of this chapter may be released;

  (3) For acreage on which Reclamation Phase III has been completed and for which a bond release application has been submitted, the remaining amount of bond equal to 50 percent of the per acre rate submitted in accordance with Regulation .03D of this chapter may be released;

  (4) On lands eligible for remining, for acreage on which Reclamation Phases II and III have been completed and for which a bond release application has been submitted, bond in the amount of the per acre rate submitted in accordance with Regulation .03D of this chapter may be released.

E. For the purposes of this chapter:

  (1) Reclamation Phase I is deemed to have been completed when the permittee completes backfilling, regrading, topsoil replacement, seeding, mulching, and drainage control in accordance with the approved reclamation plan.

  (2) Reclamation Phase II is deemed to have been completed when:

    (a) Revegetation has been established in accordance with the approved reclamation plan and the standards for the success of revegetation are met;

    (b) The lands are not contributing suspended solids to stream flow or runoff outside the permit area in excess of the requirements of the Regulatory Program, or the permit;

    (c) With respect to prime farmlands, soil productivity has been returned to the level of yield required;

    (d) The provisions of a plan approved by the Bureau for the sound future management of any permanent impoundment by the permittee or land owner have been implemented to the satisfaction of the Bureau;

    (e) The Land Reclamation Committee has inspected and approved the revegetation of the area; and

    (f) All temporary drainage control structures not authorized to remain on the permit area to be released are removed and the affected area regraded, seeded, mulched, or all permanent structures are inspected and their deficiencies repaired by the operator.

  (3) Reclamation Phase III is deemed to have been completed when the permittee has successfully completed surface coal mining and reclamation operations in accordance with the approved reclamation plan and achieved compliance with the requirements of the Regulatory Program, the permit, and the applicable liability period has expired.

#### Regulation .09 Procedures for Release of Bonds.

*COMAR 26.20.14.09*

A. Application for Release.

  (1) The permittee may file an application with the Bureau for release of all or part of the bond required under Regulation .01A of this chapter for a particular permit in accordance with Regulation .08D of this chapter. Applications may be filed only at times or seasons that allow the Bureau to evaluate properly the reclamation operations presented in the applications as having been completed. These times and seasons will be identified by the Bureau.

  (2) The application shall include copies of letters sent to adjoining property owners, surface owners, local government bodies, planning agencies, sewage and water treatment authorities, and water companies in the locality of the permit area, notifying them of:

    (a) The permittee's intention to seek release of performance bonds; and

    (b) The permittee's opportunity to submit comments or objections, or request an informal conference.

  (3) For the purpose of §A(2) of this regulation, “adjoining property owners” means a property owner whose property touches or bounds the permit area, or whose property boundary is within 300 feet of the permit area.

  (4) Within 30 days after filing the application for release, the permittee shall submit proof of publication of the advertisement required by §B of this regulation. The proof of advertisement shall be considered part of the bond release application.

  (5) The permittee shall include in the application for bond release a notarized statement which certifies that all applicable reclamation activities have been accomplished in accordance with the requirements of Environment Article, Title 15, Subtitle 5, Annotated Code of Maryland, the Regulatory Program, and the approved reclamation plan. A certification shall be submitted for each application or phase of bond release.

B. Advertisement of Filing of Application.

  (1) At the time of filing of an application for bond release, the permittee shall advertise the filing of the application in a newspaper of general circulation in the county of the permit area.

  (2) The advertisement shall:

    (a) Be placed in the newspaper at least once a week for 4 consecutive weeks;

    (b) Identify the name of the permittee, the number of the permit and the issuance date of the permit;

    (c) Identify the location and the number of acres of the lands subject to the application;

    (d) Identify the type and amount of bond filed on the permit and the total amount of bond for which release is sought;

    (e) Identify the type and dates of reclamation work performed; and

    (f) State that written comments or objections may be submitted to the office of the Bureau, provide the address of the Bureau's office, and the closing date by which comments, objections, and requests must be received.

C. Written comments, objections, or requests for an informal conference to a proposed bond release may be filed with the Bureau by any person within 30 days following the last advertisement of the filing of the application.

D. Inspection by the Bureau. The Bureau shall inspect and evaluate the reclamation work involved within 30 days after receiving a complete application for bond release, or as soon after that as weather conditions permit. The surface owner, or agent, or lessee shall be given notice of this inspection and may participate with the Bureau in making the inspection.

E. Informal Conferences.

  (1) The Bureau shall schedule a conference if written objections are filed and a conference is requested. The conference shall be held at the offices of the Bureau.

  (2) Notice of an informal conference shall be published in a newspaper of general circulation in the locality of the conference, at least 2 weeks before the date of the conference.

  (3) The Bureau shall set a date for inspection of the permit area by any party to an informal conference, and include information on participation in this inspection in the notice published under §E(2) of this regulation.

  (4) The informal conference shall be held within 30 days from the date of notice.

  (5) An electronic or stenographic record shall be made of the conference and the record maintained for access by the parties, until final release of the bond.

F. In determining whether to release all or part of a bond, the Bureau shall consider:

  (1) Whether the permittee has met the criteria for release;

  (2) The degree of difficulty in completing any remaining reclamation, or restoration work: and

  (3) Whether pollution of surface and subsurface water is occurring, the probability of future pollution or the continuance of any present pollution, and the estimated cost of abating any pollution.

G. If no informal conference has been held, the Bureau shall notify the permittee, anyone who filed comments or objections, and any other known interested parties, in writing, of its decision as to whether to release all or part of the bond within 60 days from the receipt of the completed application, or within 30 days from the close of the public comment period, whichever occurs last.

H. If there has been an informal conference, the notification of the decision shall be made to the permittee and all interested parties within 30 days after conclusion of the conference.

I. The notice of the decision shall state the reasons for the decision, recommend any corrective actions necessary to secure the release, and indicate the requirements for requesting an adjudicatory hearing pursuant to Regulation .11 of this chapter.

J. The Bureau may not release a bond until:

  (1) The town, city, or other municipality nearest to the operation, or the county in which the operation is located, has received at least 30 days notice of a proposed release by certified mail; and

  (2) The right to request an adjudicatory hearing has not been exercised, or a final decision of the Bureau has been entered approving the release after an adjudicatory hearing.

#### Regulation .10 Repealed.

*COMAR 26.20.14.10*

#### Regulation .11 Adjudicatory Hearings on Bond Release.

*COMAR 26.20.14.11*

A. Within 30 days of receipt of notice of a decision by the Bureau on a bond release application, the permittee or any person adversely affected by the decision may request an adjudicatory hearing.

B. Adjudicatory hearings shall be held in accordance with the procedures contained in COMAR 26.20.34.

C. The party seeking to reverse the decision of the Bureau shall have the burden of proof.

D. The Bureau shall render a final decision on bond release within 60 days of the completion of an adjudicatory hearing.

#### Regulation .12 Bond Forfeiture.

*COMAR 26.20.14.12*

A. Bonds may be forfeited if the Bureau finds any of the following:

  (1) The permittee has violated any of the terms or conditions of the bond;

  (2) The permittee has failed to conduct mining operations in accordance with the conditions of the permit and the Regulatory Program;

  (3) The permit for the area under bond has been revoked, unless the operator assumes liability for completion of reclamation work;

  (4) The permittee has become insolvent, failed in business, been adjudicated a bankrupt, filed a petition in bankruptcy or for a receiver, or had a receiver appointed by any court;

  (5) A creditor of the permittee has attached or executed a judgment against the permittee's equipment, materials, or facilities at the permit area; or

  (6) The permittee cannot demonstrate or prove the ability to continue to operate in compliance with the Regulatory Program and the permit.

B. Bond forfeiture shall be in accordance with the procedures contained in COMAR 26.20.33.

C. An operator may not engage in open-pit mining if he has forfeited any prior bond posted under the Regulatory Program. A permit may not be issued to an applicant owned or controlled by someone who has forfeited a bond.

D. In the event the forfeited bond is insufficient to pay for the full cost of reclamation, the permittee shall be liable for remaining costs. The Bureau may:

  (1) Complete or authorize completion of reclamation of the permit area; and

  (2) Recover from the permittee all costs of reclamation in excess of the amount forfeited.

#### Regulation .13 Deep Mine Bonding Requirements.

*COMAR 26.20.14.13*

A. Deep mine operations in the State shall comply with all of the bonding provisions of this chapter unless specifically indicated otherwise in this regulation. This requirement is independent of and in addition to any bonding requirements for these operations under the deep mining provisions of Environment Article, Title 15, Subtitle 6, Annotated Code of Maryland.

B. The amount of bond under this chapter shall be calculated with respect to the general surface effects of deep mining controlled by these regulations, and any special considerations as provided in COMAR 26.20.13.

C. Bond liability with respect to subsidence shall cover all effects of planned subsidence, and measures undertaken to prevent damage to surface facilities, including construction, site preparation, and relocations. Release of bond coverage for damage from planned subsidence may be obtained upon final inspection and approval by the Bureau, and without regard to the liability period of Regulation .05 of this chapter or criteria for release in Regulation .08 of this chapter.

D. When subsidence-related material damage to land, structures, or facilities protected under COMAR 26.20.13.09 occurs, or when contamination, diminution, or interruption to a water supply protected under COMAR 26.20.13.05C occurs, the Bureau shall require the permittee to obtain additional performance bond until the repair, compensation, or replacement is completed, in the amount of:

  (1) The estimated cost of the repairs, if the permittee will be repairing;

  (2) The decrease in value, if the permittee will be compensating the owner; or

  (3) The estimated cost to replace the water supply, if the permittee will be replacing the water supply.

E. If the repair, compensation, or replacement is completed within 90 days of the occurrence of damage, no additional bond is required. The Bureau may extend the requirement to post bond beyond 90 days, but not to exceed 1 year, if the permittee demonstrates and the Bureau finds, in writing:

  (1) One of the following:

    (a) That subsidence is not complete;

    (b) That not all probable subsidence-related material damage has occurred to lands or protected structures; or

    (c) That not all reasonably anticipated changes have occurred affecting the protected water supply; and

  (2) That it would be unreasonable to complete the repair of the subsidence-related material damage to lands or protected structures, or the replacement of protected water supply, within 90 days.

### Chapter 15 — Liability Insurance

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.03 were previously codified as COMAR 08.13.09.16A—C, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.15 to COMAR 26.20.15, June 1996

#### Regulation .01 Certificate.

*COMAR 26.20.15.01*

Each applicant for a permit shall submit to the Bureau, as part of the permit application, a certificate, issued by an insurance company authorized to do business in the United States, certifying that the applicant has a public liability insurance policy in force for the surface coal mining and reclamation operation for which the permit is sought.

#### Regulation .02 Applicant's Public Liability Insurance Policy.

*COMAR 26.20.15.02*

A. The applicant's public liability insurance policy shall provide for personal injury and property damage protection in an amount adequate to compensate all persons entitled to compensation under the applicable provisions of State law for injury or property damage as a result of surface coal mining and reclamation operations, including use of explosives and damage to water wells.

B. Minimum insurance coverage for bodily injury shall be $300,000 per occurrence, $500,000 aggregate, and for property damage shall be $300,000 per occurrence, $500,000 aggregate.

C. The policy shall be maintained in full force during the life of the permit.

D. The policy shall require that the insuror notify the Bureau whenever substantive changes are made, and before any termination.

#### Regulation .03 Deep Mining Operations.

*COMAR 26.20.15.03*

Deep mining operations shall obtain identical insurance coverage for all surface effects, including subsidence as outlined in COMAR 26.20.13.

### Chapter 16 — Small Operators Assistance Program

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.08 were previously codified as COMAR 08.13.09.17A—H, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.16 to COMAR 26.20.16, June 1996

**Administrative History:** Regulation .02A amended effective September 23, 1996 (23:19 Md. R. 1378)

**Administrative History:** Regulation .03 amended effective September 23, 1996 (23:19 Md. R. 1378)

**Administrative History:** Regulation .08 amended effective September 23, 1996 (23:19 Md. R. 1378)

#### Regulation .01 Definitions.

*COMAR 26.20.16.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Monitoring” means the collection of environmental data by either continuous or periodic sampling methods.

  (2) “Probable cumulative impact” means the expected total qualitative and quantitative direct and indirect effects of mining and reclamation activities on the hydrologic regime.

  (3) “Probable hydrologic consequence” mean the projected result of proposed surface coal mining and reclamation operations which may reasonably be expected to change the quantity or quality of the surface and ground water; the surface or ground water flow, timing and pattern; the stream channel conditions; and the aquatic habitat on the permit area and other affected areas.

  (4) “Qualified laboratory” means a designated public agency, private consulting firm, or analytical laboratory which can provide the required determination or statement under Regulation .06 of this chapter.

#### Regulation .02 Program Services.

*COMAR 26.20.16.02*

A. For eligible operators who request assistance, to the extent possible with available funds, the Department shall select and pay a qualified laboratory or other qualified entity to provide the following services:

  (1) The determination of the probable hydrologic consequences of the surface mining and reclamation operation in the proposed permit area and adjacent areas, including the engineering and designs necessary for the determination in accordance with COMAR 08.20.02.08;

  (2) The drilling and statement of the results of test borings or core samplings for the proposed permit area in accordance with COMAR 08.20.02.07;

  (3) The development of cross-sectional maps and plans required by COMAR 08.20.02.11;

  (4) The collection of archeological and historic information and related plans required by COMAR 08.20.02.05 and any other archeological and historic information required by the Department;

  (5) Pre-blast surveys required by COMAR 08.20.22.02;

  (6) The collection of site-specific resources information for fish and wildlife and other environmental values required by COMAR 08.20.02.09; and

  (7) The production of protection and enhancement plans for fish and wildlife habitats required by COMAR 08.20.02.13H and other environmental values required by COMAR 08.20.02.09.

B. The information provided shall be limited to that required to relate the basin or subbasin hydrology to the hydrology of the proposed permit area.

#### Regulation .03 Eligibility for Assistance.

*COMAR 26.20.16.03*

A. An applicant is eligible for assistance if the applicant:

  (1) Intends to apply for a permit;

  (2) Establishes that the probable attributed annual production from all locations on which the operator is issued a surface coal mining and reclamation permit does not exceed 300,000 tons;

  (3) Is not restricted in any manner from receiving a permit under the permanent Regulatory Program; and

  (4) Does not organize or reorganize a company solely for the purpose of obtaining assistance under the Small Operators Assistance Program (SOAP).

B. Production from the following operations shall be attributed to the applicant:

  (1) The pro rata share, based upon percentage of ownership of the applicant, of coal produced by operations in which the applicant owns more than a 10 percent interest;

  (2) The pro rata share, based upon percentage of ownership of applicant, of coal produced in other operations by persons who own more than 10 percent of the applicant's operation;

  (3) All coal produced by operations owned by persons who directly or indirectly control the applicant by reason of direction of the management;

  (4) All coal produced by operations owned by members of the applicant's family and the applicant's relatives, unless it is established that there is no direct or indirect business relationship between or among them.

#### Regulation .04 Filing for Assistance.

*COMAR 26.20.16.04*

Each application for assistance under the Small Operators Assistance Program shall contain, at a minimum:

A. A statement of intent to file a permit application.

B. The names and addresses of the potential permit applicant, and of the potential operator if different from the applicant.

C. A schedule of the estimated total production of coal from the proposed permit area and all other locations from which production is attributed to the applicant. The schedule shall include for each location:

  (1) The name under which coal is or will be mined;

  (2) The permit number and Mining Enforcement and Safety Administration identification number;

  (3) The actual coal production for the year preceding the application for assistance and that portion of the production attributed to the applicant; and

  (4) The estimated coal production for each year of the proposed permit and that portion attributed to the applicant.

D. A description of:

  (1) The method of surface coal mining operation proposed;

  (2) The anticipated starting and termination dates of mining operations;

  (3) The number of acres of land to be affected by the proposed mining; and

  (4) A general statement on the probable depth and thickness of the coal resource, including a statement of reserves in the permit area and the method by which they were calculated.

E. A U.S. Geological Survey topographic map of 1:24,000 scale or larger or other topographic map of equivalent detail which clearly shows:

  (1) The area of land to be affected and the natural drainage above and below the affected area;

  (2) The names of property owners within the area to be affected and of adjacent lands;

  (3) The location of existing structures and developed water sources within the area to be affected and on adjacent lands;

  (4) The location of existing and proposed test boring or core samplings; and

  (5) The location and extent of known working of any underground mines.

F. Copies of documents which show that:

  (1) The applicant has a legal right to enter and commence mining within the permit area; and

  (2) A legal right of entry has been obtained for the U.S. Office of Surface Mining, the Bureau, and laboratory personnel to inspect the lands to be mined and adjacent lands which may be affected to collect environmental data or install necessary instruments.

#### Regulation .05 Application Approval and Notice.

*COMAR 26.20.16.05*

A. If the Bureau finds the applicant eligible, and it does not have information readily available which would preclude issuance of a permit to the applicant for mining in the area proposed, it shall:

  (1) Determine the minimum data requirements necessary to meet the requirements of Regulation .06 of this chapter; and

  (2) Select the services of one or more qualified laboratories to perform the required work. A copy of the contract or other appropriate work order and the final approved report shall be provided to the applicant.

B. The Bureau shall inform the applicant in writing if the application is denied and shall state the reasons for denial.

C. The granting of assistance under this chapter may not be a factor in decisions by the Bureau on a subsequent permit application.

#### Regulation .06 Data Requirements.

*COMAR 26.20.16.06*

A. General. This regulation describes the minimum requirements for the collection of data to meet the objective of the Small Operators Assistance Program. The Bureau shall determine the data collection requirements for each applicant or group of applicants. Data collection and analysis may proceed concurrently with the development of mining and reclamation plans by the operator. The data requirements will be based on:

  (1) The extent of hydrologic and core analysis data for the applicable area currently available to the Bureau; and

  (2) The data collection and analysis guidelines developed and provided by the U.S. Office of Surface Mining.

B. Specific Provisions.

  (1) A determination of the probable hydrologic consequences of the mining and reclamation operations, both on-site and off-site, shall be made by a qualified laboratory. The data for this determination shall include:

    (a) The existing and projected surface and ground water seasonal flow regime, including water level and water table evaluations. The Bureau shall specify duration and return frequencies to be used in the determination.

    (b) The existing and projected seasonal quality of the surface and ground water regime. This shall include measurements and estimates of dissolved and suspended solids, pH, iron, manganese, surface and channel erosion and other water quality parameters as specified by the Bureau.

  (2) A statement of the result of test borings or core samplings from the proposed permit area, including:

    (a) Logs from any drill holes including identification of each stratum and water level penetrated;

    (b) The coal seam thickness and its chemical analysis including sulfur content;

    (c) The chemical analysis of potentially acid-forming or toxic-forming sections of the overburden, and the chemical analysis of the stratum lying immediately underneath the coal to be mined.

C. Exemptions. The statement by a qualified laboratory of the result of test borings or core samplings may be waived by the Bureau by a written determination that these requirements are unnecessary with respect to the specific permit application.

D. Data availability. Data collected under this program shall be made available to all interested persons, except information related to the chemical and physical properties of coal. Information regarding the mineral or elemental content of the coal which is potentially toxic in the environment shall be made available.

#### Regulation .07 Qualified Laboratories.

*COMAR 26.20.16.07*

A. The Bureau shall establish and maintain at its office a list of qualified laboratories which may be used to provide the required determination or statement under this program.

B. Inclusion in the List of Qualified Laboratories.

  (1) Persons who desire to be included in the list of qualified laboratories established by the Bureau shall apply to the Bureau and provide the information necessary to establish the required qualifications.

  (2) Basic Qualifications. To qualify for designation, the laboratory shall demonstrate that it:

    (a) Is staffed with experienced, professional personnel in the fields of hydrology, mining engineering, aquatic biology, geology, or chemistry applicable to the work to be performed;

    (b) Is capable of collecting necessary field data and samples;

    (c) Has adequate space for material preparation, cleaning and sterilizing necessary equipment, stationary equipment, storage, and space to accommodate periods of peak work loads;

    (d) Meets the requirements of the State safety and health program;

    (e) Has the financial capability and business organization to perform the work required;

    (f) Has analytical, monitoring, and measuring equipment capable of meeting the applicable standards and methods contained in “Standard Methods for the Examination of Water and Waste Water”, 14th Edition, 1975, or “Methods for Chemical Analysis of Water and Wastes”, 1974;

    (g) Has the capability of making hydrologic field measurements and analytical laboratory determinations by acceptable hydrologic engineering or analytical methods, or by those appropriate methods or guidelines for data acquisition recommended by the Bureau.

C. The qualified laboratory shall be capable of performing either the determination or statement. Subcontractors may be used to provide the services required provided their use is defined in the application for designation and approved by the Bureau.

#### Regulation .08 Applicant Liability.

*COMAR 26.20.16.08*

A. The applicant shall reimburse the Bureau for the cost of the services performed pursuant to this chapter if the applicant:

  (1) Submits false information;

  (2) Fails to submit a permit application within 1 year from the date of receipt of the approved laboratory report;

  (3) Fails to mine after obtaining a permit;

  (4) Is determined by the Bureau to have an actual and attributed annual production of coal exceeding 300,000 tons for all locations during the 12 months immediately following the date on which the operator is issued the permit;

  (5) Sells, transfers, or assigns the permit to another person and the transferee's total actual and attributed production exceeds 300,000 tons during the 12 months immediately following the date on which the permit was originally issued.

B. Under §A(5) of this regulation the applicant and its successor are jointly and severally obligated to reimburse the Bureau.

C. The Bureau may waive the reimbursement obligation if it finds that the applicant at all times acted in good faith.

### Chapter 17 — Existing Structures

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01, .02, and .03 were previously codified as COMAR 08.13.09.20A, B—E, and F, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.17 to COMAR 26.20.17, June 1996

#### Regulation .01 Description.

*COMAR 26.20.17.01*

A. The permit application shall contain a description of each existing structure proposed to be used in connection with an operation.

B. The description shall include:

  (1) Location;

  (2) Plans of the structure which describe its current condition;

  (3) Approximate dates on which construction of the existing structure was begun and completed; and

  (4) A showing, including relevant monitoring data or other evidence, that the structure meets either the performance standards of the Regulatory Program, or those performance standards of the Interim Regulatory Program which are at least as stringent as the performance standards of the Regulatory Program.

#### Regulation .02 Compliance with Performance Standards.

*COMAR 26.20.17.02*

A. Each structure shall comply with the performance standards and the design requirements of the Regulatory Program, except that an existing structure may be exempted from the design requirements if it meets:

  (1) The performance standards of the Regulatory Program; or

  (2) Those performance standards of the Interim Regulatory Program which are at least as stringent as the comparable performance standards of the Regulatory Program.

B. The Bureau may grant exemptions, only as part of the permit application process, if it finds that no significant harm to the environment or public health or safety will result from use of the structure.

C. An existing structure which does not meet a performance standard of the Regulatory Program, or a performance standard of the Interim Regulatory Program which is at least as stringent as the comparable performance standard of the Regulatory Program, shall be modified or reconstructed to meet the design standard of the Regulatory Program pursuant to a compliance plan, submitted by the applicant and approved by the Bureau, that includes:

  (1) Design specifications for the modification or reconstruction of the structure to meet the design and performance standards of the Regulatory Program;

  (2) A construction schedule which shows dates for beginning and completing interim steps and final reconstruction;

  (3) Provisions for monitoring the structure during and after modification or reconstruction to ensure that the performance standards of the Regulatory Program are met; and

  (4) A showing that the risk of harm to the environment or to public health or safety is not significant during the period of modification or reconstruction.

D. Before issuance of the permit, the Bureau must find that:

  (1) The compliance plan under §C of this regulation will bring the existing structure into compliance not later than 6 months after issuance of the permit;

  (2) The risk of harm to the environment or to public health or safety is not significant during the period of modification or reconstruction; and

  (3) The applicant will monitor the structure to determine compliance with the performance standards of the Regulatory Program.

#### Regulation .03 Existing Structure.

*COMAR 26.20.17.03*

A. If the Bureau finds that the existing structure cannot be reconstructed without causing significant harm to the environment or public health or safety, the applicant will be required to abandon and reclaim the existing structure.

B. The structure may not be used for or to facilitate surface coal mining operations after the effective date of issuance of the Regulatory Program permit.

C. Abandonment of the structure shall proceed on a schedule approved by the Bureau.

### Chapter 18 — Signs and Markers

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.05 were previously codified as COMAR 08.13.09.21A—E, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.18 to COMAR 26.20.18, June 1996

#### Regulation .01 Specifications.

*COMAR 26.20.18.01*

All signs and markers shall:

A. Be posted and maintained by the permittee;

B. Be easily seen and read, and of a uniform design throughout the operation;

C. Be made of durable material;

D. Conform to local ordinances and codes; and

E. Be maintained during the conduct of all activities to which they pertain.

#### Regulation .02 Permit Identification.

*COMAR 26.20.18.02*

Permit identification signs shall:

A. Be displayed at each point of access to the permit area from public roads;

B. Contain information identifying the name, business address, and telephone number of the operator, the Bureau of Mines permit number, the Water Resources Administration discharge permit number, and NPDES discharge permit number;

C. Be constructed of metal or wood and be a minimum of 2 feet by 2 feet, affixed to a suitably located tree, or a 2 inch diameter metal or wood post driven into the earth at least 3 feet with a minimum of 4 feet exposed;

D. Be retained and maintained until after the release of all bonds for the permit area.

#### Regulation .03 Perimeter Markers.

*COMAR 26.20.18.03*

All perimeter markers shall clearly mark the perimeter of the permit area before and during surface mining activities. The markers shall be, at a minimum, 2 inch diameter pipes or wood posts or metal posts driven into the earth with a minimum of 3 feet exposed to mark the beginning and ending points of the permit area and any other point necessary to clearly identify the permit area. They shall be identified by painting the exposed portion red or other color as indicated in the permit application. Other marker specifications may be used if approved by the Bureau.

#### Regulation .04 Blasting Signs.

*COMAR 26.20.18.04*

If blasting is conducted incident to surface mining activities, the permittee shall:

A. Conspicuously display signs reading “Blasting Area” along the edge of any blasting area that comes within 50 feet of any road within the permit area, and within 100 feet of any public road right of way.

B. Conspicuously flag or post within the blasting area, the immediate vicinity of charged holes.

C. Place at all entrances to the permit area from public roads or highways conspicuous signs which state: “Blasting Area”, and which clearly explain the blast warning and all-clear signals that are in use, and the marking of blast areas and charged holes within the permit area. These signs shall be a minimum size of 2 feet by 4 feet.

#### Regulation .05 Topsoil Markers.

*COMAR 26.20.18.05*

If topsoil or other vegetation-supporting material is segregated and stockpiled, the stockpiled material shall be clearly marked by a method described in the permit application.

### Chapter 19 — Roads

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 and .08—.09 were previously codified as COMAR 08.13.09.22A—G and V—W, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.19 to COMAR 26.20.19, June 1996

**Administrative History:** Chapter revised effective February 5, 2001 (28:2 Md. R. 105)

#### Regulation .01 General.

*COMAR 26.20.19.01*

A. Each road, as defined in COMAR 26.20.01.02B(82), shall be classified as either a primary road or an ancillary road.

B. A primary road is any road which is:

  (1) Used for transporting coal or spoil;

  (2) Frequently used for access or other purposes for a period in excess of 6 months; or

  (3) To be retained for an approved postmining land use.

C. An ancillary road is any road not classified as a primary road.

D. Each person who conducts surface mining activities shall locate, design, construct or reconstruct, utilize, and maintain roads and restore the area to meet the requirements of the Regulatory Program to:

  (1) Control or prevent erosion, siltation, and the air pollution attendant to erosion, including road dust as well as dust occurring on other exposed surfaces, by measures such as vegetating, watering, using chemical or other dust suppressants, or otherwise stabilizing all exposed surfaces in accordance with current, prudent engineering practices;

  (2) Control or prevent damage to fish, wildlife, or their habitat and related environmental values;

  (3) Control or prevent additional contributions of suspended solids to stream flow or runoff outside the permit area;

  (4) Neither cause nor contribute to, directly or indirectly, the violation of State or federal water quality standards applicable to receiving waters;

  (5) Refrain from seriously altering the normal flow of water in stream beds or drainage channels;

  (6) Prevent or control damage to public or private property, including the prevention or mitigation of adverse effects on lands within the boundaries of units of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including designated study rivers, and National Recreation Areas designated by Act of the U.S. Congress; and

  (7) Use nonacid-forming and nontoxic-forming substances in road surfacing.

E. All roads shall be removed and the land affected regarded and revegetated in accordance with the Regulatory Program unless:

  (1) Retention of the road is approved as part of the approved postmining land use, or as being necessary to adequately control erosion;

  (2) The necessary maintenance is assured; and

  (3) All drainage is controlled.

F. The plans and drawings for primary roads shall be prepared by, or under the direction of, and certified by a qualified registered professional engineer as meeting the requirements of this chapter and any prudent engineering practices.

G. The construction or reconstruction of primary roads shall be certified in a report to the Bureau by a qualified registered professional engineer. The report shall indicate that the primary road has been constructed or reconstructed as designed and in accordance with the approved plan.

#### Regulation .02 Location of Primary Roads.

*COMAR 26.20.19.02*

A. Primary roads shall be located, insofar as possible, on the most stable available areas to minimize erosion.

B. No part of any roads may be located in the channel of an intermittent or perennial stream unless specifically approved by the Bureau in accordance with the applicable requirements of COMAR 26.20.20 and COMAR 26.20.21.02—.04.

C. Stream fords on perennial or intermittent streams by primary roads are prohibited unless they are specifically approved by the Bureau as temporary routes during periods of construction.

D. Roads shall be located to minimize downstream sedimentation and flooding.

E. Seeding of Disturbed Area. All areas disturbed in the construction of the road, including all cut and fill slopes, shall be seeded and mulched at the earliest possible time during the first planting season after construction.

#### Regulation .03 Design and Construction of Primary Roads.

*COMAR 26.20.19.03*

A. Primary roads shall be designed and constructed or reconstructed in compliance with the standards of this regulation in order to control subsequent erosion and disturbance of the hydrologic balance.

B. Vertical Alignment. Maximum road grades shall be as follows:

  (1) The overall grade may not exceed 10:1 (10 percent);

  (2) The maximum grade may not exceed 6.5:1 (15 percent);

  (3) There may not be more than 300 feet of grade exceeding 10 percent within any consecutive 1,000 feet of a road but there may not be any grade over 15 percent.

C. Road Cuts. Cut slopes may not be steeper than 1.5:1 in unconsolidated materials or 0.25:1 in rock, except that steeper slopes may be authorized by the Bureau.

D. Road Embankments.

  (1) Embankment sections shall be constructed in accordance with the provisions of this section:

  (2) All vegetative material and topsoil shall be removed from the embankment foundation during construction to increase stability, and vegetative material or topsoil may not be placed beneath or in any road embankment.

  (3) Each layer of the embankment shall be leveled and compacted before the succeeding layer is placed. Loads of material shall be leveled as placed and kept smooth. The successive layers shall be compacted evenly by routing the hauling and leveling equipment over the entire width of the embankment. This procedure shall be continued until no visible horizontal movement of the embankment material is apparent.

  (4) Embankment slopes may not be steeper than 2:1, except that where the embankment material is a minimum of 85 percent rock, slopes may not be steeper than 1.5:1.

  (5) The road surface shall be sloped toward the ditch line, at a minimum rate of 1/2 inch per foot of surface width, or crowned at a minimum rate of 1/2 inch per foot of surface width as measured from the centerline of the road.

  (6) All material used in embankments shall be reasonably free of organic material, coal or coal blossom, frozen materials, wet or peat material, natural soils containing organic matter, or any other material considered unsuitable by the Bureau.

  (7) Excess or unsuitable material from excavations, and acid- forming and toxic-forming material shall be disposed of as required by the Bureau.

  (8) Acid-producing materials shall be permitted for constructing embankments for only those roads constructed or reconstructed on coal processing waste banks, and only if it has been demonstrated to the Bureau that no additional acid will leave the confines of the coal processing waste bank. Acid-bearing refuse material may not be used outside the confines of the coal processing waste bank.

  (9) Each primary road embankment shall have a minimum static safety factor of 1.3.

  (10) Each road embankment shall be constructed of fill material that contains sufficient moisture content to achieve proper compaction.

  (11) A primary road embankment that is designed and constructed to meet the criteria of this section with an embankment slope not steeper than 2:1 and a foundation slope equal to or less than 25 percent shall be considered to meet the minimum static safety factor under §D(9) of this regulation.

E. Topsoil Removal. Before initiation of construction or reconstruction of a road, topsoil shall be removed from the design roadbed, shoulders, and surfaces where associated structures will be placed and handled in accordance with COMAR 26.20.25.02.

#### Regulation .04 Drainage Control for Primary Roads.

*COMAR 26.20.19.04*

A. General.

  (1) Each primary road shall be designed, constructed or reconstructed, and maintained to have adequate drainage, using structures such as but not limited to bridges, ditches, cross drains, and ditch relief drains. The drainage control system shall be designed to safely pass peak runoff from a 2-year, 24-hour precipitation event.

  (2) Drainage pipes and culverts shall be installed as designed and maintained in a free and operating condition and to prevent or control erosion at inlets and outlets.

  (3) Drainage ditches shall be constructed and maintained to prevent uncontrolled drainage over the road surface and embankment.

  (4) Culverts shall be installed and maintained to sustain the vertical soil pressure, the passive resistance of the foundation, and the weight of vehicles using the road.

B. Ditches. A ditch shall be provided on both sides of a through-cut and on the inside shoulder of a cut-and-fill section, with ditch relief cross drains spaced according to a grade. Water shall be intercepted before reaching a switchback or large fill and drained safely away. Water from a fill or switchback shall be released below the fill, through conduits or in riprapped channels, and may not be discharged onto the fill. Drainage ditches shall be placed at the toe of all cut slopes formed by the construction of roads.

C. Culverts.

  (1) Culverts shall be designed to safely pass a 2-year, 24-hour precipitation event. The applicant shall be responsible for obtaining all other local, State, and federal permits pertaining to waterway crossings or obstructions.

  (2) Drainage pipes and culverts shall be constructed to avoid plugging, collapse, or erosion at inlets and outlets. Culvert openings installed on the road may not be less than 12 inches in diameter.

  (3) All culverts shall be covered by compacted fill to a minimum of 1 foot, or half the culvert diameter, whichever is greater.

  (4) Culverts for road-surface drainage only shall be constructed in accordance with the following:

    (a) Spacing may not exceed 1,000 feet on grades of 0 to 3 percent;

    (b) Spacing may not exceed 800 feet on grades of 3 to 6 percent;

    (c) Spacing may not exceed 300 feet on grades of 6 to 10 percent;

    (d) Spacing may not exceed 200 feet on grades of 10 percent or greater;

    (e) Culverts at closer intervals than the maximum listed above shall be installed if required by the Bureau as appropriate for the erosive properties of the soil or to accommodate flow from small intersecting drainages;

    (f) Culverts may be constructed at greater intervals than the maximum if authorized by the Bureau upon a finding that greater spacing will not increase erosion;

    (g) The inlet end shall be protected by a rock headwall or other material approved by the Bureau as adequate protection against erosion of the headwall. The water shall be discharged below the toe of the fill through conduits or in riprapped channels and may not be discharged onto the fill.

  (5) If it is necessary to control sediment, culverts shall have a vertical riser on the inlet end. The top of the riser shall be lower than the centerline of the road to ensure adequate freeboard (a minimum of 1 foot is recommended). These structures shall be maintained and cleaned out when the sediment reaches 60 percent of their capacity.

D. Natural Drainage. Natural channel drainageways may not be altered or relocated for road construction or reconstruction without the prior approval of the Bureau. The Bureau may approve alterations and relocations only if:

  (1) The natural channel drainage is not blocked;

  (2) No significant damage occurs to the hydrologic balance; and

  (3) There is no adverse impact on adjoining landowners.

E. Stream Crossings. Drainage structures are required for stream channel crossings. Drainage structures may not affect the normal flow of gradient of the stream, or adversely affect fish migration and aquatic habitat or related environmental values. The applicant shall be responsible for obtaining all other local, State, and federal permits pertaining to waterway crossings or obstructions.

#### Regulation .05 Surfacing.

*COMAR 26.20.19.05*

A. Roads shall be surfaced with material approved by the Bureau as sufficiently durable for the anticipated volume of traffic, and weight and speed of vehicles to be used.

B. Acid-forming or toxic-forming substances may not be used in road surfacing.

#### Regulation .06 Maintenance.

*COMAR 26.20.19.06*

A. Roads and related structures shall be maintained in such a manner that the required or approved design standards are met throughout their entire period of use.

B. Access and haul roads shall be maintained to eliminate water accumulation on the surface, rutting, and dust.

C. Ditches, culverts, drains, debris basins, and any sediment control structure may not be blocked in any manner that impedes drainage or adversely affects the intended purpose of the structure.

D. A road damaged by a catastrophic event, such as a flood, shall be repaired as soon as is practicable after the damage has occurred.

#### Regulation .07 Reclamation of Roads.

*COMAR 26.20.19.07*

A road not to be retained under an approved postmining land use shall be reclaimed in accordance with the approved reclamation plan as soon as practicable after it is no longer needed for mining and reclamation operations. This reclamation shall include:

(1) Closing the road to traffic;

(2) Removing all bridges and culverts, unless approved as part of the postmining land use;

(3) Removing or disposing of road surfacing materials that are incompatible with the postmining land use and revegetation requirements;

(4) Reshaping cut and fill slopes as necessary to be compatible with the postmining land use and to complement the natural drainage pattern of the surrounding terrain;

(5) Protecting the natural drainage pattern by installing dikes or cross drains, as necessary, to control surface runoff and erosion; and

(6) Scarifying or ripping the roadbed, replacing topsoil or substitute material, and revegetating disturbed surfaces.

#### Regulation .08 Other Transportation Facilities.

*COMAR 26.20.19.08*

Railroad loops, spurs, sidings, surface conveyor systems, chutes, aerial tramways, or other transportation facilities shall be designed, constructed or reconstructed, and maintained, and the area restored in order to:

A. Prevent damage to fish, wildlife, and related environmental values;

B. Prevent additional contributions of suspended solids to streamflow or runoff outside the permit area; any contributions may not be in excess of the effluent limitations of the Regulatory Program;

C. Control and minimize diminution or degradation of water quality and quantity;

D. Control and minimize erosion and siltation;

E. Control and minimize air pollution;

F. Prevent damage to public or private property.

#### Regulation .09 Support Facilities and Utility Installations.

*COMAR 26.20.19.09*

A. Support facilities required for, or used incidental to, the operation of the mine, including but not limited to mine buildings, coal loading facilities at or near the mine site, coal storage facilities, equipment-storage facilities, fan buildings, preparation plants, sheds, shops, and other buildings, shall be designed, constructed or reconstructed, and located to prevent or control erosion and siltation, water pollution, and damage to public or private property. Support facilities shall be designed, constructed or reconstructed, maintained, and used in a manner which prevents:

  (1) Damage to fish, wildlife, and related environmental values.

  (2) To the extent possible, additional contributions of suspended solids to streamflow or runoff outside the permit area. Any contributions may not be in excess of the effluent limitations of the Regulatory Program.

B. All surface mining activities shall be conducted in a manner which minimizes damage, destruction, or disruption of services provided by oil, gas, and water wells; oil, gas, and coal-slurry pipelines; railroads; electric and telephone lines; and water and sewage lines which pass over, under, or through the permit area, unless approved by the owner of those facilities and the Bureau.

### Chapter 20 — Hydrologic Balance

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.11 were previously codified as COMAR 08.13.09.23A—K, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Regulations .03—.05, .09A, and .10A amended effective October 23, 1995 (22:21 Md. R. 1614)

**Administrative History:** Chapter recodified from COMAR 08.20.20 to COMAR 26.20.20, June 1996

#### Regulation .01 Ground Water Protection.

*COMAR 26.20.20.01*

A. Backfilled materials shall be placed so as to:

  (1) Minimize contamination of ground water systems with acid, toxic, or otherwise harmful mine drainage;

  (2) Minimize adverse effects of mining on ground water systems outside the permit area; and

  (3) Support approved postmining land uses.

B. Pits, cuts, and other mine excavations or disturbances shall be located, designed, constructed, and utilized in such a manner as to prevent or control discharge of acid, toxic, or otherwise harmful mine drainage waters into ground water systems, and to prevent adverse impacts on the ground water systems or on approved postmining land uses.

#### Regulation .02 Protection of Ground Water Recharge Capacity.

*COMAR 26.20.20.02*

A. Surface mining activities shall be conducted in a manner that facilities restoration of the approximate pre-mining recharge capacity, through restoration of the capability of the reclaimed areas as a whole (excluding coal processing waste and underground development waste disposal areas and fills) to transmit water to the ground water system.

B. The recharge capacity shall be restored to a condition which:

  (1) Supports the approved postmining land use;

  (2) Minimizes disturbances to the prevailing hydrologic balance in the mine plan area and in adjacent areas; and

  (3) Provides a rate of recharge that approximates the pre-mining recharge rate.

#### Regulation .03 Protection of Streams.

*COMAR 26.20.20.03*

A. Land within 100 feet of a perennial stream or an intermittent stream may not be disturbed by surface mining activities unless the Bureau specifically authorizes surface mining activities closer to or through such a stream.

B. The Bureau may authorize the surface mining activities closer to or through a stream upon finding that:

  (1) The activities will not cause or contribute to the violation of applicable State or federal water quality standards;

  (2) The activities will not adversely affect the water quantity and quality or other environmental resources of the stream; and

  (3) If there will be a temporary or permanent stream-channel diversion, the stream-channel diversion will comply with COMAR 26.20.21.04.

#### Regulation .04 Ground Water Monitoring.

*COMAR 26.20.20.04*

A. Ground water monitoring shall be conducted according to the ground water monitoring plan approved under COMAR 26.20.02.13R.

B. Frequency of Monitoring Ground Water.

  (1) The frequency of monitoring ground water at the approved monitoring location or locations shall be once every calendar quarter unless more frequent monitoring is required by the Bureau.

  (2) Ground water monitoring data shall be submitted to the Bureau within 28 days of the end of the quarter.

  (3) The samples for consecutive quarters shall be collected at a minimum of 60-day intervals.

  (4) If an analysis of a ground water sample indicates noncompliance with a permit condition, the operator shall promptly notify the Bureau and immediately take the actions provided for in COMAR 26.20.02.13N, O, and P and 26.20.05.03C.

C. At a minimum, the following parameters shall be monitored at each monitoring location:

  (1) Specific conductance corrected to 25°C, or total dissolved solids in milligrams per liter;

  (2) Total suspended solids in milligrams per liter;

  (3) Acidity and alkalinity;

  (4) pH in standard units;

  (5) Total iron in milligrams per liter;

  (6) Total manganese in milligrams per liter;

  (7) Sulfates;

  (8) Depth to water, rates of discharge, or usage, as appropriate; and

  (9) Other parameters required by the Bureau.

D. Ground water monitoring shall proceed through mining and continue during reclamation until bond release or until the operator demonstrates, using the monitoring data obtained under this regulation, that:

  (1) The operation has minimized disturbances of the hydrologic balance both onsite and offsite, water availability and quality are suitable to support approved postmining land uses, and the water rights of other users have been protected or replaced; or

  (2) Monitoring is no longer necessary to achieve the purposes of the monitoring plan.

E. When surface mining activities may affect the ground water systems which serve as aquifers which significantly impact the hydrologic balance of water use on or off the mine plan area, ground water levels and ground water quality shall be periodically monitored. Monitoring shall include a sufficient number of measurements from wells, and mineralogical and chemical analyses of aquifers, overburden, and spoil to reflect changes in ground water quantity and quality. Monitoring shall be adequate to plan for modification of surface mining activities, if necessary, to minimize disturbance of the prevailing hydrologic balance.

F. As required by the Bureau, the person who conducts surface mining activities shall conduct additional hydrologic tests, including drilling, infiltration tests, and aquifer tests, and shall submit the results to the Bureau, to demonstrate compliance with the Regulatory Program.

G. The Bureau may waive the ground water monitoring requirements under §§A—D of this regulation when it is not feasible to determine pre-mining ground water conditions because:

  (1) Previous surface or deep mines, or both, within the permit area or adjacent area have affected ground water quantity or quality;

  (2) Deep mine underdrainage has resulted in an absence of ground water within the stratigraphic sequence of the proposed mining operation;

  (3) A preexisting mine operation, with a significant degree of completion, has affected ground water quantity or quality and the effects of the proposed mine operation would be inseparable from previous mining impacts;

  (4) The location of the mining operation with respect to topographic or stratigraphic constraints, or both, precludes the installation of an effective monitoring system.

#### Regulation .05 Surface Water Monitoring.

*COMAR 26.20.20.05*

A. Surface water monitoring shall be conducted according to the surface water monitoring plan approved under COMAR 26.20.02.13S.

B. Monitoring of Surface Water.

  (1) The frequency of monitoring surface water at the approved monitoring location or locations shall be once every calendar quarter unless more frequent monitoring is required by the Bureau.

  (2) The samples for consecutive quarters shall be collected at a minimum of 60-day intervals.

  (3) Surface water monitoring data shall be submitted to the Bureau within 28 days of the end of the quarter.

C. At a minimum, the following parameters shall be monitored at each monitoring location:

  (1) Specific conductance corrected to 25°C or total dissolved solids in milligrams per liter;

  (2) Total suspended solids in milligrams per liter;

  (3) Acidity and alkalinity;

  (4) pH in standard units;

  (5) Total iron in milligrams per liter;

  (6) Total manganese in milligrams per liter;

  (7) Sulfates;

  (8) Flows; and

  (9) Other parameters required by the Bureau.

D. Monitoring of Discharges in Accordance with NPDES Permits.

  (1) Discharges from the permit area shall be monitored in accordance with National Pollutant Discharge Elimination System (NPDES) permits issued by the Maryland Department of the Environment.

  (2) The person who conducts the surface mine activities shall submit to the Bureau, on the same time schedule as required by the NPDES permit, either a copy of the completed reporting form filed to meet NPDES permit requirements or a letter identifying the State government official with whom the reporting form was filed to meet NPDES permit requirements and the date of the filing.

  (3) In all cases in which the analytical results of the sample collections indicate that noncompliance with a permit condition or applicable standard has occurred, the person conducting the surface mining activities shall notify the Bureau immediately, and immediately take the actions provided for in COMAR 26.20.02.13N, O, and P and 26.20.05.03C.

E. Surface water monitoring shall proceed through mining and continue during reclamation until bond release. The Bureau may modify the monitoring requirements, including the parameters covered and the sampling frequency, if the operator demonstrates that the:

  (1) Operation has minimized disturbance to the hydrologic balance in the permit area and adjacent areas and prevented material damage to the hydrologic balance outside the permit area;

  (2) Water quality and quantity are suitable to support approved postmining land uses;

  (3) Postmining water quantity and quality is not adversely impacting identified water users and is not expected to adversely impact identified water users; and

  (4) Water supply of any adversely impacted water users has been replaced.

F. The Bureau may modify the surface water monitoring requirements, including the parameters covered and sampling frequency, if the operator demonstrates that the monitoring is no longer necessary to achieve the purpose of the monitoring plan.

G. Equipment, structures, and other devices necessary to measure and accurately sample the quality and quantity of surface water discharges from the disturbed area shall be properly installed, maintained, and operated, and shall be removed when no longer required.

#### Regulation .06 Casing and Sealing of Drilled Holes: General Requirements.

*COMAR 26.20.20.06*

Each prospect hole, other drill or borehole, well, or other exposed underground opening shall be cased, sealed, or otherwise managed, as approved by the Bureau, to prevent acid or other toxic drainage from entering ground or surface waters, to minimize disturbance to the prevailing hydrologic balance, and to ensure the safety of people, livestock, fish and wildlife, and machinery in the mine plan and adjacent area. If these openings are uncovered or exposed by surface mining activities within the permit area they shall be permanently closed, unless approved for water monitoring, or otherwise managed in a manner approved by the Bureau. This does not apply to holes drilled and used only for blasting.

#### Regulation .07 Casing and Sealing of Drilled Holes: Temporary.

*COMAR 26.20.20.07*

Prospect holes, other drill or boreholes, wells, and other exposed underground openings, which have been identified in the approved permit application for use in returning coal processing waste or water to underground workings, or which are to be used to monitor ground water conditions, shall be temporarily sealed before use and protected during use by barricades, fences, or other protective devices approved by the Bureau. These devices shall be periodically inspected and maintained in good operating condition by the person who conducts the surface mining activities.

#### Regulation .08 Casing and Sealing of Drilled Holes: Permanent.

*COMAR 26.20.20.08*

When no longer needed for monitoring or other use approved by the Bureau, unless approved for transfer as a water well, each prospect hole, other drilled hole or borehole, well, and other exposed underground opening shall be capped, sealed, backfilled, or otherwise properly managed, as required by the Bureau in accordance with the Regulatory Program. Permanent closure measures shall be designed to prevent access to the mine workings by people, livestock, fish, wildlife, and machinery, and to keep acid or other toxic drainage from entering ground or surface waters.

#### Regulation .09 Transfer of Wells.

*COMAR 26.20.20.09*

A. A prospect or monitoring well may only be transferred by the person who conducts surface mining activities for further use as a water well with the prior approval of the Bureau and in accordance with State and local law. That person and the surface owner of the lands where the well is located shall jointly submit a written request to the Bureau for that approval.

B. Upon an approved transfer of a well, the transferee shall:

  (1) Assume primary liability for damages to persons or property from the well;

  (2) Plug the well when necessary, but not later than abandonment of the well; and

  (3) Assume primary responsibility for compliance with the Regulatory Program with respect to the well.

C. Upon an approved transfer of a well, the transferor shall be secondarily liable for the transferee's obligations under §B of this regulation, until release of the bond or other equivalent guarantee required by the Regulatory Program for the area in which the well is located.

#### Regulation .10 Discharge of Water into an Underground Mine.

*COMAR 26.20.20.10*

Surface water, or water from another underground mine, may not be diverted or otherwise discharged into underground mine workings, unless the person who conducts the surface mining activities demonstrates to the Bureau that this will:

A. Abate water pollution or otherwise eliminate public hazards resulting from surface mining activities, and prevent material damage outside the permit area;

B. Be discharged as a controlled flow, meeting the effluent limitations of the Regulatory Program for pH and total suspended solids; however, the pH and total suspended solids limitations may be exceeded if approved by the Bureau and limited to:

  (1) Coal processing waste,

  (2) Fly ash from a coal-fired facility,

  (3) Sludge from an acid mine drainage treatment facility,

  (4) Flue gas desulfurization sludge,

  (5) Inert materials used for stabilizing underground mines, or

  (6) Underground mine development wastes;

C. Minimize disturbance to the hydrologic balance;

D. Meet with the approval of the Mine Safety and Health Administration;

E. Not cause, result in, or contribute to a violation of applicable water quality standards or effluent limitations.

#### Regulation .11 Water Rights and Replacement.

*COMAR 26.20.20.11*

Any person who conducts surface mining activities shall replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source when this supply has been affected by contamination, diminution, or interruption proximately resulting from surface mining activities.

### Chapter 21 — Ponds and Sediment Control Measures

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.09 were previously codified as COMAR 08.13.09.24A—I, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Regulation .02 amended effective October 11, 1993 (20:20 Md. R. 1569)

**Administrative History:** Chapter revised effective October 23, 1995 (22:21 Md. R. 1614)

**Administrative History:** Chapter recodified from COMAR 08.20.21 to COMAR 26.20.21, June 1996

**Administrative History:** Regulation .01-1 adopted effective March 14, 2005 (32:5 Md. R. 582)

**Administrative History:** Regulation .08 amended effective March 14, 2005 (32:5 Md. R. 582)

**Administrative History:** Regulation .09D amended effective March 14, 2005 (32:5 Md. R. 582)

#### Regulation .01 General Requirements.

*COMAR 26.20.21.01*

A. Surface mining activities shall be planned and conducted to minimize changes to the prevailing hydrologic balance in both the mine plan and adjacent areas, in order to prevent long-term adverse changes in that balance that could result from those activities.

B. Changes in the depth to ground water, in water quality and quantity, and in the location of surface water drainage channels shall be minimized so that the approved postmining land use of the permit area is not adversely affected.

C. Federal and State water quality statutes, regulations, standards, or effluent limitations may not be violated.

D. Operations shall be conducted to minimize water pollution, and treatment methods shall be used to control water pollution where necessary.

E. Mining activities shall emphasize mining and reclamation practices that prevent or minimize water pollution.

F. The Bureau may require that water accumulated in a pit be removed and the pit maintained in a dewatered condition whenever water quality or spoil stability is affected or before the approval of temporary cessation of mining activities.

#### Regulation .01-1 Incorporation by Reference.

*COMAR 26.20.21.01-1*

A. In this chapter, the following document is incorporated by reference.

B. Document Incorporated. U.S. Department of Agriculture, Soil Conservation Service Technical Release No. 60 (210-VI-TR60, October, 1985), “Earth Dams and Reservoirs”, (TR-60).

#### Regulation .02 Water Quality Standards and Effluent Limitations.

*COMAR 26.20.21.02*

A. If drainage from the disturbed areas is mixing with drainage from other areas not disturbed by current surface coal mining and reclamation operations, the permittee shall achieve the effluent limitation set forth below for all the mixed drainage when it leaves the permit area.

B. Discharges of water from areas disturbed by surface mining shall be made in compliance with applicable State laws and regulations, the federal Clean Water Act, and with effluent limitations for coal mining promulgated by the U.S. Environmental Protection Agency set forth in 40 CFR 434.

C. Adequate facilities shall be installed, operated, and maintained to treat any water discharged from the disturbed area so that it complies with all federal and States laws and regulations and the limitations of this regulation. If the pH of water to be discharged from the disturbed area is less than 6.0, an automatic lime feeder or other automatic neutralization process approved by the Bureau shall be installed, operated, and maintained. The Bureau may authorize the use of a manual system if it finds that:

  (1) Flow is infrequent and presents small and infrequent treatment requirements to meet applicable standards which do not require use of an automatic neutralization process; and

  (2) Timely and consistent treatment is ensured.

#### Regulation .03 Diversions and Conveyance of Overland Flow and Shallow Ground Water Flow, and Ephemeral Streams.

*COMAR 26.20.21.03*

A. Overland flow, including flow through litter, and shallow ground water flow from undisturbed areas, and flow in ephemeral streams, may be diverted away from disturbed areas by means of temporary or permanent diversions, if required or approved by the Bureau as necessary to minimize erosion, to reduce the volume of water to be treated, and to prevent or remove water from contact with acid-forming or toxic-forming materials.

B. The following requirements shall be met for all diversions and for all collection drains that are used to transport water into water treatment facilities and for all diversions of overland and shallow ground water flow and ephemeral streams:

  (1) Temporary diversions shall be constructed to pass safely the peak runoff from a 2-year, 24-hour precipitation event with sufficient freeboard to pass a 10-year, 24-hour precipitation event or a larger event as specified by the Bureau.

  (2) To protect fills and property and to avoid danger to public health and safety, permanent diversion shall be constructed to pass safely the peak runoff from a 10-year, 24-hour precipitation event, or a larger event as specified by the Bureau. Permanent diversions shall be constructed with gently sloping banks that are stabilized by vegetation. Asphalt, concrete, or other similar linings shall be used only when approved by the Bureau to prevent seepage or to provide stability.

  (3) Diversions shall be designed, constructed, and maintained in a manner which prevents additional contributions of suspended solids to streamflow and to runoff outside the permit area, to the extent possible using the best technology currently available. Appropriate sediment control measures for the diversions may include, but not be limited to, maintenance of appropriate gradients, channel lining, revegetation, roughness structures, and detention basins.

  (4) A diversion may not be located so as to increase the potential for landslides. A diversion may not be constructed on existing landslides, unless approved by the Bureau.

  (5) When no longer needed, each temporary diversion shall be removed and the affected land regraded, topsoiled, and revegetated.

  (6) Diversions shall be designed to minimize adverse impacts to the hydrologic balance within the permit and adjacent areas, to prevent material damage outside the permit area, and to assure the safety of the public.

C. Diversion design shall incorporate the following:

  (1) Channel lining shall be designed using standard engineering practices to pass safely the design velocities.

  (2) Freeboard shall be not less than 1 foot. Protection shall be provided for transition of flows and for critical areas such as swales and curves. Where the area protected is a critical area as determined by the Bureau, the design freeboard may be increased.

  (3) Energy dissipators shall be installed when necessary at discharge points, where diversions intersect with natural streams and exit velocity of the diversion ditch flow is greater than that of the receiving stream.

  (4) Excess excavated material not necessary for diversion channel geometry or regarding of the channel shall be disposed of.

  (5) Topsoil shall be handled in accordance with the Regulatory Program.

  (6) Diversions may not be constructed or operated to divert water into underground mines without the approval of the Bureau.

#### Regulation .04 Stream Channel Diversions.

*COMAR 26.20.21.04*

A. Flow from perennial and intermittent streams within the permit area may be diverted, if the diversions:

  (1) Are approved by the Bureau after making a finding that the diversion will not adversely affect the water quantity and quality and related environmental resources of the stream;

  (2) Comply with other requirements of this regulation; and

  (3) Comply with local, State, and federal statutes and regulations.

B. When streamflow is allowed to be diverted, the stream channel diversion shall be designed, constructed, and removed, in accordance with the following:

  (1) The longitudinal profile of the stream, the channel, and the floodplain shall be designed and constructed to remain stable and, to the extent possible using the best currently available technology, to prevent additional contributions of suspended solids to streamflow or to runoff outside the permit area. These contributions may not be in excess of requirements of State or federal law. Erosion control structures such as channel lining structures, retention basins, and artificial channel roughness structures shall be used in diversions only when approved by the Bureau as being necessary to control erosion. These structures shall be approved for permanent diversions only where they are stable and will require infrequent maintenance.

  (2) The combination of channel, bank, and floodplain configurations shall be adequate to pass safely the peak runoff of a 10-year, 24-hour precipitation event for temporary diversions, a 100-year, 24-hour precipitation event for permanent diversions, or larger events specified by the Bureau. However, the capacity of the channel itself should be at least equal to the capacity of the unmodified stream channel immediately upstream and downstream of the diversion.

  (3) The design and construction shall be certified by a qualified professional engineer as meeting the design criteria of the Regulatory Program.

C. When no longer needed to achieve the purpose for which they were authorized, all temporary stream channel diversions shall be removed and the affected land regraded and revegetated. At the time diversions are removed, downstream water treatment facilities previously protected by the diversion shall be modified or removed to prevent overtopping or failure of the facilities. This requirement does not relieve the permittee from maintenance of a water treatment facility otherwise required under this chapter or the permit.

D. When permanent diversions are constructed or stream channels restored, after temporary diversions, the operator shall:

  (1) Restore, enhance where practicable, or maintain natural riparian vegetation on the banks of the stream;

  (2) Establish or restore the stream to its natural meandering shape or an environmentally acceptable gradient, as determined by the Bureau; and

  (3) Establish or restore the stream to a longitudinal profile and cross section, including aquatic habitats that approximate pre-mining stream channel characteristics.

#### Regulation .05 Sediment Control Measures.

*COMAR 26.20.21.05*

A. Appropriate sediment control measures shall be designed, constructed, and maintained using the best technology currently available to:

  (1) Prevent, to the extent possible, additional contributions of sediment to streamflow or to runoff outside the permit area;

  (2) Meet the more stringent of applicable State or federal effluent limitations; and

  (3) Minimize erosion to the extent possible.

B. Sediment control measures include practices carried out within and adjacent to the disturbed area. Sediment control methods include but are not limited to:

  (1) Disturbing the smallest practicable area at any one time during the mining operation through progressive backfilling, grading, and prompt revegetation;

  (2) Diverting runoff away from disturbed areas;

  (3) Diverting runoff using protected channels or pipes through disturbed areas so as not to cause additional erosion;

  (4) Using straw dikes, riprap, check dams, mulches, vegetative sediment filters, and other measures that reduce overland flow velocity, reduce runoff volume, or trap sediment;

  (5) Treating with chemicals.

#### Regulation .06 Siltation Structures.

*COMAR 26.20.21.06*

A. Exemptions. Exemptions to the requirements of this regulation may be granted if the:

  (1) Disturbed drainage area within the total disturbed area is small; and

  (2) Operator demonstrates that siltation structures and alternate sediment control measures are not necessary to meet the effluent limitations in this chapter and the applicable State and federal water quality standards for receiving waters.

B. In this regulation, the following terms have the meanings indicated.

C. Terms Defined.

  (1) Disturbed Area.

    (a) “Disturbed area” means an area from which vegetation, topsoil, or overburden is removed or land occupied by topsoil stockpiles, spoil piles, the open pit, access or haul roads, haulageways, storage areas, shop areas, processing and shipping areas, drainage or sediment control structures, coal processing wastes, underground development waste, or non-coal waste.

    (b) “Disturbed area” does not include those areas where the:

      (i) Only surface mining activities include diversion ditches, siltation structures, or roads that are designed, constructed, and maintained in accordance with COMAR 26.20.19; and

      (ii) Upstream area is not otherwise disturbed by the operator.

  (2) “Other treatment facilities” means any chemical treatments, such as flocculation, or mechanical structures, such as clarifiers, that have a point source discharge and that are utilized to prevent additional contribution of suspended solids to streamflow or runoff outside the permit area.

  (3) “Siltation structure” means a sedimentation pond, a series of sedimentation ponds, or other treatment facility.

D. General Requirements for Siltation Structures. All siltation structures:

  (1) Shall prevent additional contributions of suspended solids sediment to streamflow or runoff outside the permit area to the extent possible using the best technology currently available;

  (2) Shall collect all surface drainage from the disturbed area before leaving the permit area, except as provided in §A of this regulation;

  (3) Shall be constructed before beginning a surface mining activity in an area and, upon construction, be certified by a qualified professional engineer as being constructed in accordance with the approved design;

  (4) Shall be designed, constructed, and maintained in accordance with Regulation .08 of this chapter if the structure impounds water;

  (5) Shall be maintained until:

    (a) Removal is authorized by the Department;

    (b) The disturbed area has been stabilized and revegetated;

    (c) The quality of the untreated drainage from the disturbed area meets applicable State and federal water quality standards for the receiving stream; and

  (6) May not be removed if augmented seeding has occurred within the last 2 years.

E. When a siltation structure is removed, the land on which the structure was located shall be regraded and revegetated in accordance with the approved reclamation plan.

F. The design, construction, and maintenance of a siltation structure does not relieve the person from compliance with applicable effluent limitations.

G. Sedimentation Ponds. Sedimentation ponds shall be used individually or in series and shall be:

  (1) Designed, constructed, and maintained in accordance with Regulation .08 of this chapter;

  (2) Located as near as possible to the disturbed area and out of perennial streams, unless approved by the Bureau; and

  (3) Designed, constructed, and maintained to:

    (a) Provide a minimum sediment storage volume of 67 cubic yards per acre of drainage area to the pond;

    (b) Provide adequate detention time to allow the effluent from the ponds to meet State and federal effluent limitations;

    (c) Contain or treat the 10-year, 24-hour precipitation event so there is no outflow through the emergency spillway unless a lesser design event is approved by the Bureau based on terrain, climate, other site conditions, and on a demonstration by the operator that the effluent limits of Regulation .02 of this chapter will be met;

    (d) Provide a nonclogging dewatering device adequate to maintain the detention time;

    (e) Minimize, to the extent possible, short circuiting; and

    (f) Provide for the removal of sediment when the volume of sediment accumulates to 60 percent of the sediment storage volume.

H. The dewatering device required by §G(3)(d) of this regulation may not be located at an elevation lower than the maximum elevation of the sediment storage volume, unless approval is obtained from the Bureau.

I. Other Treatment Facilities. Other treatment facilities shall be designed:

  (1) In accordance with the applicable requirements of this section; and

  (2) To contain or treat the 10-year, 24-hour precipitation event unless a lesser design event is approved by the Bureau in accordance with §G(3)(c) of this regulation.

#### Regulation .07 Discharge Structures.

*COMAR 26.20.21.07*

Discharge from sedimentation ponds, permanent and temporary impoundments, coal processing waste dams and embankments, and diversions shall be controlled, by energy dissipators, riprap channels, and other devices, where necessary, to reduce erosion, to prevent deepening or enlargement of stream channels, and to minimize disturbance of the hydrologic balance. Discharge structures shall be designed according to standard engineering-design procedures.

#### Regulation .08 Impoundments.

*COMAR 26.20.21.08*

A. General Requirements. The requirements of this section apply to both temporary and permanent impoundments. Impoundments shall be designed and constructed to ensure:

  (1) Compliance with USDA, Natural Resources Conservation Service, Maryland Conservation Practice, Standard Pond Code 378 (January 2000), as incorporated by reference in COMAR 26.17.02.01-1B(2);

  (2) Compliance with requirements of COMAR 26.17.04.05 if the embankment is more than 15 feet in height as measured from the upstream toe of the embankment to the crest of the emergency spillway;

  (3) Impoundments meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60 shall comply with “Minimum Emergency Spillway Hydrologic Criteria” table in TR-60 and the requirements of this regulation;

  (4) The minimum elevation at the top of the settled embankment shall be 1 foot above the water surface in the pond with the emergency spillway flowing at design depth;

  (5) The height of the embankment is a minimum of 5 percent over the design height to allow for settlement, unless it has been demonstrated to the Bureau that the material used and the design will ensure against all settlement;

  (6) The top width of the embankment is not less than the quotient of (H+35)/5, when H is the height, in feet, of the embankment, as measured from the upstream toe of the embankment;

  (7) Perimeter slopes are stable, are not steeper than 2:1, and are protected against erosion where water enters the impoundment;

  (8) The combined upstream and downstream side slopes of the settled embankment are not less than 5:1 with neither slope steeper than 2:1;

  (9) The crest of the emergency spillway is a minimum of 1 foot above the crest of the principal spillway;

  (10) A cut-off trench is installed before initiating the placement of fill material for the embankment with side slopes not steeper than 1:1;

  (11) The embankment foundation area is cleared of all organic material and the entire area scarified;

  (12) The embankment begins by placing and spreading fill material at the lowest point of the foundation, is brought up in horizontal layers not to exceed 8 inches as required to facilitate compaction, and is compacted as specified in the design approved by the Bureau;

  (13) Fill material used in the construction of the embankment is free of sod, large roots and other vegetative matter, frozen soil, and coal processing waste;

  (14) The embankment slope is protected against surface erosion and against damage caused by sudden drawdown;

  (15) The embankment faces and surrounding areas are vegetated, except that the faces where water is impounded may be riprapped or otherwise stabilized in accordance with accepted design practices; and

  (16) Newly constructed areas and those areas disturbed by the construction are vegetated immediately upon completion of the construction.

B. Stability.

  (1) Impoundments meeting the Class (b) or (c) criteria for dams contained in “Earth Dams and Reservoirs”, TR-60 or the size or other criteria of 30 CFR §77.216(a) shall have a minimum static safety factor of 1.5 for a normal pool with steady state seepage saturation conditions and a seismic safety factor of at least 1.2.

  (2) Impounds not included in §B(1) of this regulation, except for coal mine waste impounding structures, shall be constructed to achieve a minimum static safety factor of 1.3 for a normal pool with steady state seepage saturation conditions.

  (3) Unless otherwise determined by the Department based on site specific conditions, impoundments meeting the criteria of §§A(1) and B(2) of this regulation shall be considered to meet a minimum static safety factor of 1.3 for a normal pool with steady state seepage condition, if the:

    (a) Embankment is not constructed of organic soil or clay of high plasticity;

    (b) Embankment is constructed of fill material that contains sufficient moisture content to achieve proper compaction; and

    (c) Existing slope of the foundation area is not steeper than the slope provided for the soil type to be used to construct the embankment in the chart at §B(4) of this regulation.

  (4) Soil Classification Chart.

  (5) An indication of sufficient moisture content in the fill material referenced in §B(3)(b) of this regulation is that the soil should form a ball which does not readily separate when kneaded by hand. The engineer may also specify other methods of testing moisture content.

C. Freeboard.

  (1) Impoundments shall have adequate freeboard to resist overtopping by waves and by sudden increases in storage volume.

  (2) Impoundments meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60 shall comply with the freeboard hydrograph criteria in “Minimum Emergency Spillway Hydrologic Criteria” table in TR-60.

D. Foundation.

  (1) Foundations and abutments for an impounding structure shall be stable during all phases of construction and operation and shall be designed based on adequate and accurate information on the foundation conditions.

  (2) For an impoundment meeting the Class (b) or (c) criteria for dams contained in “Earth Dams and Reservoirs”, TR-60 or the size or other criteria of 30 CFR §77.216(a), foundation investigation, as well as any necessary laboratory testing of foundation material, shall be performed to determine the design requirements for foundation stability.

  (3) For impoundments not meeting the size or other criteria of 30 CFR §77.216(a), foundation investigation, as well as any necessary laboratory testing of foundation material, may be required to establish the stability of the foundation.

E. Spillways.

  (1) An impoundment shall include either a combination of principal and emergency spillways or a single spillway configured as specified in §D(2) of this regulation, designed and constructed to safely pass the applicable design precipitation event specified in §D(3) of this regulation.

  (2) The Department may approve a single open-channel spillway that is:

    (a) Of nonerodible construction and designed to carry sustained flows; or

    (b) Rock or grass-lined and designed to carry short-term, infrequent flows at nonerosive velocities when sustained flows are not expected.

  (3) The required design precipitation event for impoundments meeting the spillway requirements of this section are:

    (a) For an impoundment meeting the size or other criteria of 30 CFR §77.216(a), a 100-year, 24-hour event, or larger event specified by the Department;

    (b) For impoundments not meeting the size or other criteria of 30 CFR §77.216(a), a 25-year, 24-hour event, or larger event specified by the Department; or

    (c) For impoundments meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60, in accordance with the emergency spillway hydrograph criteria in the “Minimum Emergency Spillway Hydrologic Criteria” table in TR-60, or larger event specified by the Department.

F. Impoundments meeting the size or other qualifying criteria of 30 CFR §77.216(a) shall comply with 30 CFR §77.216 and this regulation. The plan required to be submitted to the district manager of the Mine Safety and Health Administration (MSHA) under 30 CFR §77.216 shall also be submitted to the Department as part of the permit application.

G. All temporary and permanent impoundments shall be designed by, or under the supervision of, a professional engineer, using current, prudent, engineering practices and design criteria, and the design certified by a professional engineer.

H. Impoundments shall be routinely maintained during the mining operations in the following areas:

  (1) Vegetative growth shall be cut where necessary to facilitate inspection and repair;

  (2) Ditches and spillways shall be cleaned;

  (3) Combustible material present on the surface, other than material like mulch or dry vegetation used for surface stability, shall be removed; and

  (4) Other appropriate maintenance procedures shall be followed.

I. Plans for an enlargement, reduction in size, reconstruction, or other modification of dams or impoundments shall be submitted to the Department and shall comply with the requirements of this regulation.

J. Except when a modification is required to eliminate an emergency condition constituting a hazard to public health, safety, or the environment, the Department shall approve the plans before modification begins.

#### Regulation .09 Inspection and Certification of Impoundments.

*COMAR 26.20.21.09*

A. Construction Inspections.

  (1) A qualified professional engineer or other qualified specialist, under the direction of the professional engineer, shall inspect the impoundment. The professional engineer or specialist shall be experienced in the construction of impoundments. These inspections shall be made:

    (a) At appropriate times during construction, including:

      (i) Site preparation,

      (ii) Construction of the cut-off trench,

      (iii) Placement of the principal spillway pipe, including anti-seep collars and riser base,

      (iv) Placement and compaction of fill material around the principal spillway,

      (v) Placement and compaction of fill in the impounding structure; and

    (b) Upon completion of construction.

  (2) After each inspection required by §A(1) of this regulation, the professional engineer shall submit to the Department a certified report that the impoundment is being constructed in accordance with the approved plan and Regulation .08 of this chapter. A copy of each report shall be retained at or near the mine site.

B. Certification of Construction.

  (1) Upon completion of construction, a certification statement and as-built drawing shall be submitted for each impoundment and impounding structure. The as-built drawing shall show the approved design and any modification or minor changes. The certification statement shall be signed and sealed by a professional engineer, and shall certify that:

    (a) The impoundment and impounding structure has been constructed in accordance with the plans and specifications in the approved permit;

    (b) Observations and measurements were made at appropriate times during and following construction by a professional engineer or a qualified person experienced in the design and construction of impoundments and impounding structures acting as a representative and reporting directly to the professional engineer;

    (c) The completed impoundment and impounding structure meet the safety requirements of safe engineering practices, the regulatory program, and the design approved in the permit application; and

    (d) Modifications made during construction meet the requirements of the regulatory program.

  (2) The Department may require color photographs to be taken at the appropriate times specified in §A(1) of this regulation and submitted with the certification statement.

C. Annual Inspection.

  (1) An impoundment shall be inspected at least annually by a professional engineer or other qualified specialist under the direction of the professional engineer until removal of the impoundment or release of the performance bond. The professional engineer or specialist shall be experienced in the construction of impoundments.

  (2) After each annual inspection, the professional engineer shall submit to the Department a certified report that the impoundment has been maintained in accordance with the approved plan and this chapter. The report shall include discussion of:

    (a) Appearances of instability;

    (b) Structural weakness or other hazardous conditions;

    (c) Depth and elevation of any impounded waters;

    (d) Existing storage capacity;

    (e) Existing or required monitoring procedures and instrumentation; and

    (f) Other aspects of the structure affecting stability.

  (3) A copy of the report shall be retained at or near the mine site.

D. Examinations.

  (1) Impoundments meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60 or the size or other criteria of 30 CFR §77.216 shall be examined in accordance with 30 CFR §77.216-3. Other impoundments not meeting the Class (b) or (c) criteria for dams in “Earth Dams and Reservoirs”, TR-60 or subject to 30 CFR §77.216 shall be examined at least quarterly by a qualified person for appearance of structural weakness and other hazardous conditions.

  (2) If an examination or inspection discloses that a potential hazard exists, the permittee shall immediately notify the Department of the hazard and of the emergency procedures formulated for public protection and remedial action. If adequate emergency procedures cannot be formulated or implemented, the Department shall be notified immediately. The Department shall then immediately notify the appropriate agencies that other emergency procedures are required to protect the public.

#### Regulation .10 Permanent and Temporary Impoundments.

*COMAR 26.20.21.10*

A. Permanent Impoundments. A permanent impoundment of water may be created, if authorized by the Department in the approved permit, based upon a demonstration that the:

  (1) Size and configuration of the impoundment will be adequate for its intended purposes;

  (2) Quality of the impounded water will be suitable on a permanent basis for its intended use and after reclamation will meet applicable State and federal water quality standards;

  (3) Discharges from the impoundment will meet applicable effluent limitations and will not degrade the quality of receiving water below applicable State and federal water quality standards;

  (4) Water level will be sufficiently stable and capable of supporting the intended use;

  (5) Final grading will provide for adequate safety and access for proposed water users;

  (6) Impoundment will not result in diminution of the quality and quantity of water utilized by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic uses;

  (7) Impoundment will be suitable for the approved postmining land use; and

  (8) Vertical portion of any remaining highwall shall be located far enough below the low-water line along the full extent of the highwall to provide adequate safety and access for the proposed water users.

B. Temporary Impoundments. The Department may authorize the construction of temporary impoundments as part of a surface coal mining operation.

#### Regulation .11 Postmining Rehabilitation of Sedimentation Ponds, Diversions, Impoundments, and Treatment Facilities.

*COMAR 26.20.21.11*

Before final bond release of the permit area, the permittee shall renovate all permanent sedimentation ponds, diversions, impoundments, and treatment facilities to meet criteria specified in the detailed design plan of the permanent structures and impoundments.

### Chapter 22 — Explosives

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.08 were previously codified as COMAR 08.13.09.25A—H, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.22 to COMAR 26.20.22, June 1996

#### Regulation .01 General.

*COMAR 26.20.22.01*

A. The permittee shall comply with all applicable local, State, and federal laws and regulations related to the storage, handling, preparation, and use of explosives.

B. Blasting operations that use more than the equivalent of 5 pounds of explosives shall be conducted according to a time schedule approved by the Bureau.

C. Not later than 1 year after the effective date of this chapter, all blasting operations shall be conducted by or under the direction of at least one person who has been certified by the Bureau in accordance with Regulation .08 of this chapter. Before this time all blast operations shall be conducted by or under the supervision of a person who has obtained a certificate of completion of training and qualification from the Bureau, or from any state with an equivalent blasting training program, provided the person passes an examination administered by the Bureau.

D. Certificates of blaster certification shall be carried by blasters or shall be on file at the permit area during blasting operations.

E. A certified blaster and at least one other person shall be present at the firing of a blast.

F. Persons responsible for blasting operations at a blasting site shall be familiar with the blasting plan and site specific performance standards.

G. A person who is not certified and is assigned to a blasting crew to assist in the use of explosives shall receive direction and training from the certified blaster in charge of blasting operations.

#### Regulation .02 Pre-blasting Survey.

*COMAR 26.20.22.02*

A. A resident or owner of a dwelling or structure within 1/2 mile of the permit area may request a pre-blasting survey. This request shall be made, in writing, directly to the permittee or the Bureau, who shall promptly notify the permittee. The permittee shall promptly have a pre-blast survey of the dwelling or structure conducted and a written report of the survey prepared. If requested by the resident or owner, the permittee shall have any updated survey of any additions, modifications or renovations performed.

B. The survey shall be conducted, by a person approved by the Bureau, to determine the condition of the dwelling or structure and to document any pre-blasting damage and other physical factors that could reasonably be affected by the blasting. Assessments of structures such as pipes, cables, transmission lines, and wells and other water systems shall be limited to surface condition and other readily available data. Special attention shall be given to the pre-blasting condition of wells and other water systems used for human, animal, or agricultural purposes and to the quantity and quality of the water.

C. A written report of the survey shall be prepared and signed by the person who conducted the survey. The report may include recommendations of any special conditions or proposed adjustments to the blasting procedure which should be incorporated into the blasting plan to prevent damage. Copies of the report shall be promptly provided to the person requesting the survey and to the Bureau. If the person requesting the survey disagrees with the results of the survey, he may notify, in writing, both the permittee and the Bureau of the specific areas of disagreement.

D. A survey requested more than 10 days before the planned initiation of blasting shall be completed before the initiation of blasting.

#### Regulation .03 Public Notice of Blasting Schedule.

*COMAR 26.20.22.03*

A. Each permittee shall publish a blasting schedule at least 30 days, but not more than 45 days, before beginning a blasting program in which blasts that use more than 5 pounds of explosive or blasting agent are detonated. The blasting schedule shall be published in a newspaper of general circulation in the locality of the blasting site. A copy of the certification of publication shall be retained with the blasting records in Regulation .07 of this chapter.

B. At least 30 days before initiation of blasting, copies of the schedule shall be distributed to local governments, public utilities, and to each resident or owners of dwellings or other structures within 1/2 mile of the permit area described in the schedule. Copies sent to residents or owners of dwellings or other structures shall be accompanied by information advising the owner or resident how to request a pre-blasting survey. The copies shall be sent by mail or hand delivered. However, proof of notification shall be procured and retained with the blasting records in Regulation .07 of this chapter.

C. The permittee shall republish and redistribute the schedule by mail at least every 12 months.

D. Blasting Schedule Contents.

  (1) A blasting schedule may not be so general as to cover the entire permit area or all working hours, but shall identify as accurately as possible the location of the blasting sites and the time periods when blasting will occur.

  (2) The blasting schedule shall contain at a minimum:

    (a) Name, address, and telephone number of permittee;

    (b) Identification of the specific areas in which blasting will take place. Each specific blasting area described shall be reasonably compact and not larger than 300 acres.

    (c) Dates and time periods when explosives are to be detonated, expressed in not more than 4-hour increments. These periods may not exceed an aggregate of 8 hours in any one day.

    (d) Methods to be used to control access to the blasting area.

    (e) Types of audible warnings and all-clear signals to be used before and after blasting.

    (f) A description of unavoidable hazardous situations which have been approved by the Bureau for blasting at times other than those described in the schedule.

    (g) A notice that a resident or owner of a dwelling within 1/2 mile of the permit area may request a pre-blast survey by contacting the permittee or the Bureau in writing.

#### Regulation .04 Public Notice of Changes to Blasting Schedules.

*COMAR 26.20.22.04*

A. Before blasting in areas or at times not in a previous schedule, the permittee shall publish and distribute a revised blasting schedule, at least 10 days but not more than 30 days before blasting. Information on requesting a pre-blast survey need not be repeated in a change notice.

B. If there is a substantial pattern of non-adherence to the published blasting schedule as evidenced by the absence of blasting during a scheduled period, the Bureau may require that the permittee submit to the Bureau and republish a revised blasting schedule.

#### Regulation .05 Blasting Signs.

*COMAR 26.20.22.05*

All blasting signs shall be constructed, installed, and maintained in accordance with COMAR 26.20.18 on signs and markers.

#### Regulation .06 Surface Blasting Requirements.

*COMAR 26.20.22.06*

A. All blasting shall be conducted between sunrise and sunset.

B. Blasting shall be conducted at times approved by the Bureau and announced in the published blasting schedule. The Bureau may limit the area covered, specify more restrictive time periods, and limit the sequence of blasting as listed in the schedule, if the limitations are necessary or reasonable in order to protect the public health and safety or welfare.

C. Unscheduled blasts may be conducted only when public or permittee health and safety so require and for emergency blasting actions. When an unscheduled blast is conducted, the permittee shall:

  (1) Using audible signals, notify residents within 1/2 mile of the blasting site;

  (2) Orally notify residents within 1,000 feet of the blasting site and the Bureau;

  (3) File a complete written report of the unscheduled blasting with the Bureau not later than 3 days after the unscheduled blast; the report shall include a detailed description of the reasons for the unscheduled blast, including reasons why the blast could not have been delayed until the next day, the actual time the blast was conducted, the warning notices that were given, and a copy of the blasting record.

D. Warning and all-clear signals of different character that are audible within a range of 1/2 mile from the point of the blast shall be given. Each person within the permit area and each person who resides or regularly works within 1/2 mile of the permit area shall be notified of the meaning of the signals in the blasting schedule.

E. Access to an area subject to flyrock from blasting shall be regulated to protect the public and livestock. Access to the area shall be controlled to prevent the presence of livestock or unauthorized personnel during blasting and until an authorized representative of the permittee has reasonably determined that:

  (1) No unusual circumstances, such as imminent slides or undetonated charges exist; and

  (2) Access to and travel in or through the area can be safely resumed.

F. Blasting shall be conducted to prevent injury to persons, damage to public or private property outside the permit area, adverse impacts on underground mines and change in the course, channel, or availability of ground or surface waters outside the permit area.

G. Except where lesser distances are approved by the Bureau based upon a pre-blasting survey, seismographic investigation, or other appropriate investigation, blasting may not be conducted within:

  (1) Three hundred feet of any building used as a dwelling, school, church, hospital, or nursing facility; and

  (2) Five hundred feet of facilities including, but not limited to, disposal wells, petroleum or gas-storage facilities, municipal water-storage facilities, fluid-transmission pipelines, gas or oil-collection lines, or water and sewage lines.

H. Airblast.

  (1) Limits.

    (a) An airblast may not exceed the maximum limits listed below at the location of any dwelling, public building, school, church, or community or institutional building outside the permit area except as provided in §K of this regulation:

    (b) If necessary to prevent damage, the Bureau may specify lower maximum allowable airblast levels than those of §H(1)(a) of this regulation for use in the vicinity of a specific blasting operation.

  (2) Monitoring.

    (a) The operator shall conduct periodic monitoring to ensure compliance with the airblast standards. The Bureau may require airblast measurement of any or all blasts and may specify the location at which the measurements are taken.

    (b) The measuring systems shall have an upper end flat-frequency response of at least 200 Hz.

I. Flyrock, including blasted material traveling along the ground, may not be cast more than half the distance from the blasting vicinity to the nearest dwelling or other occupied structure beyond the area of regulated access under §E of this regulation, or beyond the permit boundary.

J. Ground Vibration.

  (1) In all blasting operations, except as otherwise authorized in §K of this regulation, the maximum ground vibration may not exceed the values approved in the blasting plan required under COMAR 26.20.02.13F. The maximum ground vibration for protected structures listed in §J(2)(a) of this regulation shall be established in accordance with either the maximum peak-particle-velocity limits of §J(2), the scaled-distance equation of §J(3), or by the Bureau of Mines under §J(4) of this regulation. All structures in the vicinity of the blasting area, not listed in §J(2)(a) of this regulation, such as water towers, pipelines, and other utilities, tunnels, dams, impoundments and underground mines shall be protected from damage by establishment of a maximum allowable limit on the ground vibration, submitted by the operator of the blasting plan, and approved by the Bureau of Mines.

  (2) Maximum Peak Particle Velocity.

    (a) The maximum ground vibration may not exceed the following limits at the location of any dwelling, public building, school, church, or community or institutional building outside the permit:

    (b) A seismographic record shall be provided for each blast.

  (3) Scaled-Distance Equation.

    (a) An operator may use the scaled-distance equation, W = (D/Ds)B., to determine the allowable charge weight of explosives to be detonated in any 8-millisecond period, without seismic monitoring, where W = the maximum weight of explosives, in pounds, D = the distance, in feet, from the blasting site to the nearest protected structure, and Ds = the scaled-distance factor, which may initially be approved by the Bureau using the values for scaled-distance factor listed in the following chart:

    (b) For distances between 100 and 5,000 feet, solution of the equation results in the following maximum weight:

    (c) The development of a modified scale-distance factor may be authorized by the Bureau on receipt of a written request by the operator, supported by seismographic records of blasting at the minesite. The modified scale-distance factor shall be determined such that the particle velocity of the predicted ground vibration does not exceed the prescribed maximum allowable peak particle velocity of §J(2)(a) of this regulation, at a 95-percent confidence level.

  (4) Blasting-Level Chart.

    (a) An operator may use the ground vibration limits in Figure 1 to determine the maximum allowable ground vibration.

    (b) If the Figure 1 limits are used, a seismographic record including both particle velocity and vibration frequency levels shall be provided for each blast. The method for analysis of the predominant frequency contained in the blasting records shall be approved by the Bureau before application of this alternative blasting criterion.

  (5) The maximum allowable ground vibration shall be reduced by the Bureau to less than the limits otherwise provided by this regulation, if determined necessary to provide damage protection.

  (6) The Bureau may require an operator to conduct seismic monitoring of any or all blasts and may specify the location at which the measurements are taken and the degree of detail necessary in the measurements.

K. Exemptions to Certain Standards. The maximum airblast and ground-vibration standards of §§H and J of this regulation may not apply at the following locations:

  (1) At structures owned by the permittee and not leased to another person;

  (2) At structures owned by the permittee and leased to another person, if a written waiver by the lessee is submitted to the regulatory authority before blasting.

L. Blasting operations within 500 feet of active underground mines require approval of the Bureau and federal regulatory authorities concerned with the health and safety of underground miners.

#### Regulation .07 Records of Blasting Operations.

*COMAR 26.20.22.07*

A. The operator shall retain a record of all blasts for at least 3 years. Upon request, copies of these records shall be made available to the Bureau and to the public for inspection.

B. The records shall contain the following data:

  (1) Name of the operator conducting the blast;

  (2) Location, date, and time of blast;

  (3) Name, signature, and certification number of blaster conducting the blast;

  (4) Identification, direction, and distance, in feet, from the nearest blast hole to the nearest dwelling, public building, school, church, community or institutional building outside the permit area, except those described in Regulation .06K of this chapter;

  (5) Weather conditions, including those which may cause possible adverse blasting effects;

  (6) Type of material blasted;

  (7) Sketches of the blast pattern including number of holes, burden, spacing, decks, and delay pattern;

  (8) Diameter and depth of holes;

  (9) Types of explosives used;

  (10) Total weight of explosives used per hole;

  (11) The maximum weight of explosives detonated in any 8-millisecond period;

  (12) Initiation system;

  (13) Type and length of stemming;

  (14) Mats or other protections used;

  (15) Seismographic and airblast records, if required, which shall include:

    (a) Type of instrument, sensitivity, and calibration signal or certification of annual calibration,

    (b) Exact location of instrument and the date, time, and distance from the blast,

    (c) Name of the person and firm taking the reading,

    (d) Name of the person and firm analyzing the seismographic record, and

    (e) The vibration or airblast level recorded, or both;

  (16) Reasons and conditions for each unscheduled blast.

#### Regulation .08 Blaster Training Examination and Certification.

*COMAR 26.20.22.08*

A. As used in this chapter, a blaster is a person who is directly responsible for the use of explosives in surface coal mining operations and is certified under this regulation.

B. Qualifications. Persons applying to become certified blasters shall:

  (1) Be at least 21 years old;

  (2) Have received at least 1 year of qualifying experience under the direction and supervision of a certified blaster in the handling and use of explosives; and

  (3) Receive training including, but not limited to, the technical aspects of blasting operations and State and federal laws concerning the storage, transportation, and use of explosives.

C. Training. Blaster training courses shall include training and discussion in the practical applications of:

  (1) Explosives, including:

    (a) Selection of the type of explosive to be used;

    (b) Determination of the properties of explosives which will produce desired results at an acceptable level of risk, and

    (c) Handling, transportation, and storage;

  (2) Blast designs, including:

    (a) Geologic and topographic considerations,

    (b) Design of a blast hole, with critical dimensions,

    (c) Pattern design, field layout, and timing of blast holes, and

    (d) Field applications;

  (3) Loading blast holes, including priming and boostering;

  (4) Initiation systems and blasting machines;

  (5) Blasting vibrations, airblast, and flyrock, including:

    (a) Monitoring techniques, and

    (b) Methods to control adverse effects;

  (6) Secondary blasting applications;

  (7) Current federal and State regulations applicable to the use of explosives;

  (8) Blast records;

  (9) Schedules;

  (10) Pre-blasting surveys, including:

    (a) Availability,

    (b) Coverage, and

    (c) Use of in-blast design;

  (11) Blastplan requirements;

  (12) Certification and training;

  (13) Signs, warning signals, and site control;

  (14) Unpredictable hazards, including:

    (a) Lightning,

    (b) Stray currents,

    (c) Radio waves, and

    (d) Misfires.

D. The Bureau shall ensure that courses that cover the topics identified in §C of this regulation are available to train competent persons responsible for the use of explosives in surface coal mining operations.

E. Examination.

  (1) The Bureau of Mines shall examine candidates for blaster certification who have successfully completed a training course approved by the Bureau and covering the topics set forth in §C of this regulation or have received training and certification as a blaster in any state with a federally approved blaster certification program.

  (2) The examination, at a minimum, shall include the topics set forth in §C of this regulation and shall review and verify the:

    (a) Competence of persons directly responsible for use of explosives in surface coal mining operations through a written examination in technical aspects of blasting and State and federal laws governing the storage, use, and transportation of explosives.

    (b) Practical field experience of the candidates as necessary to qualify a person to accept the responsibility for blasting operations in surface coal mining operations. The experience shall demonstrate that the candidate possesses practical knowledge of blasting techniques, understands the hazards involved in the use of explosives, and otherwise has exhibited a pattern of conduct consistent with the acceptance of responsibility for blasting operations.

F. Certification. Upon determination that a candidate for blaster certification has successfully passed the examination and has been found to be competent and have the necessary experience, the Bureau shall issue to the individual a certificate indicating that the individual is a certified blaster for a period of 3 years.

G. Suspension and Revocation.

  (1) The Bureau, when practicable, following written notice and opportunity for a hearing, may, and upon a finding of willful conduct, shall suspend or revoke the certification of a blaster during the term of certification or take other necessary action for any of the following reasons:

    (a) Noncompliance with any order of the Bureau;

    (b) Unlawful use in the work place of, or current addiction to, alcohol, narcotics, or other dangerous drugs;

    (c) Violation of any provision of the State or federal explosives laws or regulations;

    (d) Providing false information or a misrepresentation to obtain certification;

    (e) Refusal to exhibit his or her certificate to any authorized representative of the Bureau or the Office of Surface Mining, U.S. Department of the Interior, upon request.

  (2) If advance notice and opportunity for hearing cannot be provided, an opportunity for a hearing shall be provided as soon as practical following the suspension, revocation, or other adverse action.

  (3) Upon notice of a revocation, the blaster shall immediately surrender to the regulatory authority the revoked certificate.

H. Recertification.

  (1) Recertification of all blasters is required every 3 years. Each applicant for recertification shall be currently certified and shall submit validated proof that he has had at least 1 year of blasting experience in the previous 3 years.

  (2) Reexamination. A certified blaster may not be recertified two consecutive times unless upon the second application, the applicant also successfully passes the examination as required in §E of this regulation.

I. Protection of Certification. Certified blasters shall take every reasonable precaution to protect their certificates from loss, theft, or unauthorized duplication. Any occurrence of loss, theft, or unauthorized duplication shall be reported immediately to the Bureau.

J. Conditions.

  (1) A blaster shall immediately exhibit his or her certificate to any authorized representative of the Bureau or the Office of Surface Mining, U.S. Department of Interior, upon request.

  (2) Blaster certifications may not be assigned or transferred.

  (3) A blaster may not delegate the blaster's responsibility to an individual who is not a certified blaster.

### Chapter 23 — Environmental Resources Protection

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01 and .02 were previously codified as COMAR 08.13.09.27 and .26, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Regulation .01 amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Chapter recodified from COMAR 08.20.23 to COMAR 26.20.23, June 1996

#### Regulation .01 Air Resources Protection.

*COMAR 26.20.23.01*

A. An exposed surface area shall be protected and stabilized to effectively control erosion and air pollution attendant to erosion.

B. Fugitive dust control measures may include, but not be limited to:

  (1) Periodic watering of unpaved roads;

  (2) Chemical stabilization of unpaved roads with proper application of nontoxic soil cement or dust palliatives;

  (3) Paving of roads;

  (4) Prompt removal of coal, rock, soil, and other dust-forming debris from roads and frequent scraping and compaction of unpaved roads to stabilize the road surface;

  (5) Restricting the speed of vehicles to reduce fugitive dust caused by travel;

  (6) Revegetating, mulching, or otherwise stabilizing the surface of all areas adjoining roads that are sources of fugitive dust;

  (7) Restricting the travel of unauthorized vehicles on other than established roads;

  (8) Minimizing the area of disturbed land;

  (9) Prompt revegetation of regraded lands;

  (10) Restriction of dumping procedures, wetting of disturbed materials during handling, and compaction of disturbed areas;

  (11) Control of dust from drilling, using water sprays, hoods, dust collectors, or other controls;

  (12) Reducing the period of time between initially disturbing the soil and revegetating or other surface stabilization;

  (13) Restricting fugitive dust at spoil and coal transfer and loading points with water sprays; and

  (14) Enclosing, covering, watering, or otherwise treating loaded haul trucks to reduce loss of material to winds and slippage.

C. Where the Bureau determines that application of the above control measures is inadequate, the Bureau may require additional measures and practices as necessary.

#### Regulation .02 Fish and Wildlife Protection.

*COMAR 26.20.23.02*

A. Any person conducting surface mining activities shall, to the extent possible, and using the best technology currently available, minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, and shall achieve enhancement of the resources when practicable.

B. A surface mining activity may not be conducted which is likely to jeopardize the continued existence of endangered or threatened species listed by the Secretary of the U.S. Department of the Interior, or which is likely to result in destruction or adverse modification of designated critical habitats of the species in violation of the Endangered Species Act of 1973, as amended (16 U.S.C. §1531 et seq.), or similar State statute. Surface mining may not be conducted in a manner which would result in unlawful taking of a bald or golden eagle, its nest, or its eggs.

C. A person conducting surface mining activities who becomes aware of a State or federally listed endangered or threatened species within the permit area, or designated critical habitats of the species as identified by the Endangered Species Act of 1973, as amended (16 U.S.C. §1531 et seq.), or similar State statute, or a golden or bald eagle nest promptly shall notify the Bureau.

D. On notification or discovery of any threatened or endangered species, critical habitat of the species, or golden or bald eagle nest, the Bureau shall consult with appropriate State and federal fish and wildlife agencies and determine whether, and under what conditions, the operator may proceed.

E. This regulation does not authorize the taking of an endangered or threatened species or a bald or golden eagle, its nest, or its eggs in violation of the Endangered Species Act of 1973, as amended (16 U.S.C. §1531 et seq.), or the Bald Eagle Protection Act as amended (16 U.S.C. §668 et seq.).

F. Each person who conducts surface mining activities shall, to the extent possible and using the best technology currently available:

  (1) Ensure that electric powerlines and other transmission facilities used for, or incidental to, surface mining activities on the permit area are designed and constructed to minimize electrocution hazards to raptors, except when the Bureau determines these requirements are unnecessary;

  (2) Locate and operate haul and access roads so as to avoid or minimize impacts on important fish and wildlife species or other species protected by State or federal law;

  (3) Design fences, overland conveyors, and other potential barriers to permit passage for large mammals, except when the Bureau determines these requirements are unnecessary; and

  (4) Fence, cover, or use other appropriate methods to exclude wildlife from ponds which contain hazardous concentrations of toxic-forming materials.

G. If fish and wildlife habitat is to be a primary or secondary postmining land use, the operator shall:

  (1) Select plant species to be used on reclaimed areas, based on their nutritional and cover value for fish and wildlife and their ability to support and enhance fish and wildlife habitat after release of bonds;

  (2) Distribute plant groupings to maximize benefit to fish and wildlife; plants should be grouped and distributed in a manner which optimizes edge effect, cover, and other benefits for fish and wildlife.

H. If cropland is to be the postmining land use, and when appropriate for wildlife and crop-management practices, and the landowner approves, each person who conducts surface mining activities shall, to the extent possible, intersperse the fields with trees, hedges, or fence rows throughout the harvested area to break up large blocks of monoculture and to diversify habitat types for birds and other animals.

I. If the primary land use is to be residential, public service, or industrial land use, and when the landowner approves, each person who conducts surface mining activity shall, to the extent possible, intersperse reclaimed lands with greenbelts using species of grass, shrubs, and trees useful as food and cover for birds and small animals, unless greenbelts are inconsistent with the approved postmining or adjacent land use.

J. The operator conducting surface mining activities shall avoid disturbance to, enhance when practicable, restore, or replace:

  (1) Wetlands;

  (2) Riparian vegetation along rivers and streams and bordering ponds and lakes; and

  (3) Habitats of unusually high value for fish and wildlife.

### Chapter 24 — Special Performance Standards

**Authority:** Environment Article, §§1-404, 15-503, and 15-702, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 were previously codified as COMAR 08.13.09.28A—G, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.24 to COMAR 26.20.24, June 1996

**Administrative History:** Regulation .08 adopted effective December 1, 2008 (35:24 Md. R. 2080)

#### Regulation .01 Auger Mining.

*COMAR 26.20.24.01*

A. Any auger mining associated with surface mining activities shall be conducted to maximize recoverability of mineral reserves remaining after the mining activities are completed. The permittee shall leave areas of undisturbed coal as approved by the Bureau, to provide access for removal of those reserves by future underground mining activities, unless the Bureau determines that the coal reserves have been depleted or are limited in thickness or extent to the point that it will not be practicable to recover the remaining coal reserves. The Bureau shall make the determination upon presentation of appropriate technical evidence by the permittee.

B. An auger hole may not extend closer than 500 feet in horizontal distance to any abandoned or active underground mine workings, except as approved in accordance with Regulation .07 of this chapter.

C. Each auger hole shall be plugged by backfilling and compacting noncombustible and impervious material into the hole, as follows:

  (1) Each auger hole discharging water containing toxic-forming or acid-forming material shall be plugged within 72 hours after completion, or the discharge shall be treated to meet applicable effluent limitations and water quality standards until the hole is properly sealed; and

  (2) Each auger hole not discharging water shall be sealed to close the opening within 30 days following completion.

D. An auger hole need not be plugged, if the Bureau finds that:

  (1) Impoundment of the water which would result from plugging the hole may create a hazard to the environmental or public health or safety; and

  (2) Drainage from the auger hole will not pose a threat of pollution to surface water.

E. The Bureau shall prohibit auger mining, if it determines that:

  (1) Adverse water quality impacts cannot be prevented or corrected;

  (2) Fill stability cannot be achieved;

  (3) The prohibition is necessary to maximize the utilization, recoverability, or conservation of the solid fuel resources; or

  (4) Subsidence resulting from auger mining may disturb or damage powerlines, pipelines, buildings, or other facilities.

F. The permittee shall adopt:

  (1) Measures consistent with known technology which prevent subsidence from causing material damage to the extent technologically and economically feasible, and maintain the value and reasonably foreseeable use of surface lands; or

  (2) Mining technology which provides for planned subsidence in a predictable and controlled manner.

G. The permittee shall:

  (1) Correct any material damage resulting from subsidence caused to surface lands, to the extent technologically and economically feasible, by restoring the land to a condition capable of maintaining the value and reasonably foreseeable uses which it was capable of supporting before subsidence; and

  (2) Correct material damage resulting from subsidence caused to any structures or facilities by repairing the damage or compensate the owner of the structures or facilities in the full amount of the diminution in value resulting from the subsidence.

H. Repair of damage under §G(2) of this regulation includes rehabilitation, restoration, or replacement of damaged structures or facilities.

I. Compensation under §G(2) of this regulation may be accomplished by the purchase before mining of a noncancellable premium-prepaid insurance policy.

#### Regulation .02 Operations on Prime Farmland.

*COMAR 26.20.24.02*

Surface coal mining and reclamation operations conducted on prime farmland shall meet the following requirements:

A. Soil materials to be used in the reconstruction of prime farmland shall be removed before drilling, blasting, or mining, in a manner that prevents mixing or contamination with undesirable material. The minimum depth of soil and soil material to be removed for use in reconstruction of prime farmland soils shall be sufficient to meet the soil replacement requirements. If removal of soil materials results in erosion that may cause air and water pollution, the Bureau shall specify methods to control erosion of exposed overburden. Operations shall be conducted so as to separately remove the:

  (1) Topsoil or other suitable materials when the other soil materials which will create a final soil having an equal or greater productive capacity than that which existed before mining;

  (2) “B” horizon of the soil, a combination of “B” horizon and underlying “C” horizon, or other suitable soil material that will create a reconstructed soil of equal or greater productive capacity than that which existed before mining;

  (3) Underlying “C” horizons, other strata, or a combination of horizons or other strata, to be used instead of the “B” horizon; when replaced, these combinations shall be equal to, or more favorable for plant growth than, the “B” horizon.

B. If not utilized immediately, the topsoil or other suitable soil materials, the “B” horizon or other suitable materials, and the “C” horizon or other suitable soil materials, shall be stored separately from each other and from spoil. These stockpiles shall be placed within the permit area so they are not disturbed or exposed to excessive water or wind erosion before the stockpiles horizons can be redistributed. Stockpiles in place for more than 30 days shall meet the requirements for topsoil storage.

C. Soil Replacement.

  (1) The minimum depth of soil and soil material to be reconstructed for prime farmland shall be 48 inches, or a depth equal to the depth of a subsurface horizon in the natural soil that inhibits root penetration, whichever is shallower. The Bureau shall specify a depth greater than 48 inches wherever necessary to restore productive capacity due to uniquely favorable soil horizons at greater depths. Soil horizons shall be considered as inhibiting root penetration if their densities, chemical properties, or water-supplying capacities restrict or prevent penetration by roots of plants common to the vicinity of the permit area, and have little or no beneficial effect on soil productive capacity.

  (2) Soil material may be replaced only on land which has been first returned to final grade, and scarified, unless site-specific evidence is provided and approved by the Bureau showing that scarification will not enhance the capability of the reconstructed soil to achieve equivalent or higher levels of yield.

  (3) Replacement of the soil horizons or other suitable soil material shall be in a manner that avoids excessive compaction.

  (4) The “B” horizon or other suitable material shall be replaced to the thickness needed to meet the requirements of §C(1) of this regulation.

  (5) The “A” horizon or other suitable soil materials shall be replaced as the final surface soil layer. This surface soil layer shall equal or exceed the thickness of the original soil, and be replaced in a manner that protects the surface layer from wind and water erosion before it is seeded or planted.

  (6) Nutrients and soil amendments shall be applied as needed to quickly establish vegetation growth.

D. Revegetation.

  (1) Following soil replacement, a vegetative cover shall be established which is capable of stabilizing the soil surface with respect to erosion. All vegetation shall be carried out in a manner that encourages prompt vegetation cover and the recovery of productive capacity.

  (2) Prime farmland soil productivity shall be restored in accordance with the following provisions:

    (a) Measurement of soil productivity shall be initiated within 10 years after completion of soil replacement.

    (b) Soil productivity shall be measured on a representative sample or on all of the mined and reclaimed prime farmland area using the reference crop determined under §D(2)(f) of this regulation. A statistically valid sampling technique at a 90 percent or greater statistical confidence level shall be used as approved by the Regulatory Authority in consultation with the U.S. Soil Conservation Service.

    (c) The measurement period for determining average annual crop production (yield) shall be a minimum of 3 crop years before release of the operator's performance bond.

    (d) The level of management applied during the measurement period shall be the same as the level of management used on nonmined prime farmland in the surrounding area.

    (e) Restoration of soil productivity shall be considered achieved when the average yield during the measurement period equals or exceeds the average yield of the reference crop established for the same period for non-mined soils of the same or similar texture or slope phase of the soil series in the surrounding area under equivalent management practices.

    (f) The reference crop on which restoration of soil productivity is proven shall be selected from the crops most commonly produced on the surrounding prime farmland. When row crops are the dominant crops grown on prime farmland in the area, the row crop requiring the greatest rooting depth shall be chosen as one of the reference crops.

E. Reference crop yields for a given group season are to be determined from the:

  (1) Current yield records of representative local farms in the surrounding area, with concurrence by the U.S. Soil Conservation Service; or

  (2) Average county yields recognized by the U.S. Department of Agriculture, which have been adjusted by the U.S. Soil Conservation Service for local yield variation within the county that is associated with differences between non-mined prime farmland soil and all other soils that produce the reference crop.

F. Under the procedures in §E(1) or (2) of this regulation, the average reference crop yield may be adjusted with the concurrence of the U.S. Soil Conservation Service for:

  (1) Disease, pest, and weather-induced seasonal variations; or

  (2) Difference in specific management practices when the overall management practices of the crops being compared are equivalent.

#### Regulation .03 Mountaintop Removal.

*COMAR 26.20.24.03*

The Bureau may grant a variance from the requirement for restoring affected areas to their approximate original contour if all of the following conditions are satisfied:

A. The permit application specifically requests a variance, and contains information in accordance with COMAR 26.20.03.03, and the following criteria, which enables the Bureau to make all necessary findings.

B. The activities involve the mining of an entire coal seam running through the upper fraction of a mountain, ridge, or hill, by removing all of the overburden and creating a level plateau or gently rolling contour with no highwalls remaining.

C. An industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use is proposed and approved for the affected land.

D. The alternative land-use requirements in COMAR 26.20.03.03 are met.

E. All applicable requirements of the Regulatory Program, other than the requirement to restore affected areas to their approximate original contour, are met.

F. An outcrop barrier of sufficient width, consisting of the toe of the lowest coal seam, and its associated overburden, are retained to prevent slides and erosion. The Bureau may permit an exemption to the retention of the coal barrier requirement if the following conditions are satisfied:

  (1) The proposed mine site was mined before May 3, 1978, and the toe of the lowest seam has been removed; or

  (2) A coal barrier adjacent to a head-of-hollow fill may be removed after the elevation of a head-of-hollow fill attains the elevation of the coal barrier if the head-of-hollow fill provides the stability otherwise ensured by the retention of a coal barrier.

G. The final graded slopes on the mined area are less than 5:1 so as to create a level plateau or gently rolling configuration, and the outslope of the plateau does not exceed 2:1 except where engineering data substantiates and the bureau finds, in writing, and includes in the permit, that a minimum static safety factor of 1.5 will be attained.

H. The resulting level or gently rolling contour is graded to drain inward from the outslope, except at specified points where it drains over the outslope in stable and protected channels. The drainage may not be through or over a valley or head-of-hollow fill.

I. Natural watercourses below the lowest coal seam mined are not damaged.

J. All waste and acid-forming or toxic-forming materials, including the strata immediately below the coal seam, are covered with non-toxic spoil to prevent pollution and achieve the approved postmining land use.

K. Spoil is placed on the mountaintop bench as necessary to achieve the postmining land use approved. All excess spoil material not retained on the mountaintop shall be placed in accordance with the Regulatory Program.

#### Regulation .04 Operations on Steep Slopes.

*COMAR 26.20.24.04*

The following special requirements apply whenever the affected area includes steep slopes:

A. The permittee shall prevent the following materials from being placed or allowed to remain on the downslope:

  (1) Spoil;

  (2) Waste materials, including waste mineral matter;

  (3) Debris, including that from clearing and grubbing of haul road construction; and

  (4) Abandoned or disabled equipment.

B. Nothing in §A of this regulation shall prohibit the placement of material in road embankments located on the downslope, so long as the material used and embankment design comply with the requirements of the Regulatory Program, and the material is moved and placed in a controlled manner.

C. The permittee shall demonstrate to the Bureau, using standard geotechnical analysis, that the minimum static factor of safety for the stability of all portions of the reclaimed land is at least 1.5.

D. Land above the highwall may not be disturbed, unless the Bureau finds that the disturbance assists compliance with the requirements of this regulation.

E. Material in excess of that required by the grading and backfilling provisions shall be disposed of in accordance with the requirements of the Regulatory Program.

F. Woody materials may not be buried in the backfilled area unless the Bureau determines that the proposed method for placing woody material beneath the highwall will not deteriorate the stable condition of the backfilled area. Woody materials may be chipped and distributed over the surface of the backfill as mulch, if special provision is made for their use and approved by the Bureau.

G. Unlined or unprotected drainage channels may not be constructed on backfills unless approved by the Bureau as stable and not subject to erosion.

H. In multiple-seam, steep slope affected areas, spoil not required to reclaim and restore the permit area may be placed on a preexisting bench, if approved by the Bureau and if the following requirements are met:

  (1) All excess spoil shall be hauled, placed, and retained on the solid bench;

  (2) The spoil shall be graded to a moderate slope, so as to eliminate the existing highwall to the extent possible with the available material;

  (3) The fill shall comply with the Regulatory Program.

#### Regulation .05 Coal Preparation Plants and Associated Facilities.

*COMAR 26.20.24.05*

Each person who operates a coal preparation plant and associated facilities, as defined in COMAR 26.20.01, shall obtain a permit to conduct those operations and otherwise comply with, at a minimum, the Regulatory Program requirements related to:

A. Signs and markers for the coal processing plant, coal processing waste disposal area, and water treatment facilities;

B. Roads, transport, and associated structures;

C. Stream or channel realignment;

D. Sediment control structures, and all discharges from disturbed areas;

E. Permanent impoundments associated with coal preparation plants, and dams constructed of or impounding coal processing waste;

F. Use of water wells, and provisions for protection of water rights;

G. Disposal of coal processing waste, solid waste, and any excavated materials;

H. Discharge structures for diversions and sediment control structures;

I. Air pollution control measures associated with fugitive dust emissions;

J. Protection of fish, wildlife, and related environmental values;

K. Slide areas and other surface areas in general;

L. Adverse effects upon or resulting from nearby underground coal mining activities;

M. Reclamation, including proper topsoil handling procedures, revegetation, and abandonment;

N. Conveyors, buildings, storage bins or stockpiles, water treatment facilities, water storage facilities, and any other related structure or system;

O. Prime farmland.

#### Regulation .06 In Situ Processing.

*COMAR 26.20.24.06*

A. In situ processing activities shall be planned and conducted to minimize disturbance to the prevailing hydrologic balance by:

  (1) Avoiding discharge of fluids into holes or wells, other than as approved by the Bureau;

  (2) Injecting process recovery fluids only into geologic zones or intervals approved as production zones by the Bureau;

  (3) Avoiding annular injection between the wall of the drill hole and the casing; and

  (4) Preventing discharge of process fluid into surface waters.

B. Each person who conducts in situ processing activities shall submit for approval as part of the application for a permit, a plan that ensures that all acid-forming, toxic-forming, or radioactive gases, solids, or liquids constituting a fire, health, safety, or environmental hazard, and caused by the mining and recovery process, are promptly treated, confined, or disposed of in a manner that prevents contamination of ground and surface waters, damage to fish, wildlife, and related environmental values, and threats to the public health and safety.

C. Each person who conducts in situ processing activities shall prevent flow of the process recovery fluid:

  (1) Horizontally beyond the affected area identified in the permit; and

  (2) Vertically into overlying or underlying aquifers.

D. Each person who conducts in situ processing activities shall restore the quality of affected ground water in the mine plan and adjacent area, including ground water above and below the production zone, to the approximate pre-mining levels or better, to ensure that the potential for use of the ground water is not diminished.

E. Monitoring.

  (1) Each person who conducts in situ processing activities shall monitor the quality and quantity of surface and ground water and the subsurface flow and storage characteristics, in a manner approved by the Bureau, to measure changes in the quantity and quality of water in surface and ground water systems in the mine plan and in adjacent areas.

  (2) Air and water quality monitoring shall be conducted in accordance with monitoring programs approved by the Bureau as necessary according to appropriate federal and State air and water quality standards.

#### Regulation .07 Concurrent Surface and Underground Mining.

*COMAR 26.20.24.07*

A. Surface coal mining activities may not be conducted closer than 500 feet to any point of either an active or abandoned underground mine, except to the extent that:

  (1) For active underground mines, including abandoned sections of active mines:

    (a) The nature, timing, and sequence of the operations are jointly approved by the Mine Safety and Health Administration and the Bureau; and

    (b) The activities result in improved resource recovery, abatement of water pollution, or elimination of hazards to the health and safety of the public;

  (2) For abandoned underground mines:

    (a) The nature, timing, and sequence of the operations are approved by the Bureau, and

    (b) The activities result in improved resource recovery, abatement of water pollution, or elimination of hazards to the health and safety of the public.

B. Surface mining activities shall be designed to protect disturbed areas, including spoil disposal sites, so as not to endanger any present or future operations of either surface or underground mining activities.

C. Deep mine areas containing significant amounts of impounded water shall be bypassed in open-pit mining unless plans for water handling during and after mining are submitted with the application and demonstrate that there will be no adverse effects.

#### Regulation .08 Utilization of Coal Combustion Byproducts.

*COMAR 26.20.24.08*

A. Purpose and Scope.

  (1) This regulation establishes certain minimum standards pertaining to the use of coal combustion byproducts in surface coal mining and reclamation operations and in abandoned coal mines.

  (2) Coal combustion byproducts may not be used in surface coal mining and reclamation operations or in abandoned coal mines, except in accordance with this regulation.

  (3) Compliance with this regulation does not relieve a person from the duty to comply with any other applicable federal, State, and local laws, regulations, and ordinances, including but not limited to the general requirements of COMAR 26.20. This regulation is in addition to the general requirements of COMAR 26.20.

B. Definitions.

  (1) In this regulation, the following terms have the meanings indicated.

  (2) Terms Defined.

    (a) “Alkaline coal combustion byproducts (ACCBs)” means coal combustion byproducts which, either naturally or by the addition of lime or other alkaline materials, exhibit a net neutralization potential of 5 tons per 1,000 tons CaCO3 equivalent or greater.

    (b) Coal Combustion Byproducts.

      (i) “Coal combustion byproducts” means the residue generated by or resulting from the burning of coal.

      (ii) “Coal combustion byproducts” includes fly ash, bottom ash, boiler slag, pozzolan, and other solid residuals removed by air pollution control devices from the flue gas and combustion chambers of coal burning furnaces and boilers, including flue gas desulfurization sludge and other solid residuals recovered from flue gas by wet or dry methods.

    (c) “Department” means the Maryland Department of the Environment.

    (d) “Pozzolan” has the meaning stated in Environment Article, §15-407, Annotated Code of Maryland.

C. Conditions for Utilization. A person may utilize coal combustion byproducts at a permitted surface coal mining and reclamation operation or as part of an abandoned coal mine project only if:

  (1) The coal combustion byproducts are:

    (a) Not regulated under COMAR 26.13; and

    (b) Alkaline coal combustion byproducts;

  (2) The person proposing to utilize the ACCBs provides to the Bureau a certified laboratory analysis demonstrating that the coal combustion byproducts proposed to be utilized constitute ACCBs; and

  (3) The utilization is approved by the Bureau in writing.

D. Coal Combustion Byproducts Utilization Request.

  (1) A person who proposes to utilize coal combustion byproducts in a surface coal mining and reclamation operation or in an abandoned coal mine project shall complete and submit to the Bureau a Coal Combustion Byproducts Utilization Request in the form provided by the Bureau for review and approval by the Bureau.

  (2) In a surface coal mining and reclamation operation, the utilization request shall be submitted as part of the permit application and reclamation plan, or modification of an existing permit. The Bureau's review and approval of the utilization request shall be in accordance with the permit and reclamation plan review process.

  (3) In an abandoned coal mine project, the utilization request shall be submitted to the Bureau before the proposed use and the Bureau shall approve, disapprove, or provide comments on the utilization request within 90 days of submission.

  (4) The utilization request shall be signed and certified by a duly authorized official of the person proposing to utilize the coal combustion byproducts and shall include at a minimum the following information:

    (a) Name, address, and contact information of the applicant;

    (b) Surface coal mine operation permit number, if applicable;

    (c) An estimate of coal tonnage produced, if applicable;

    (d) Whether the request is a result of a haul-back agreement, and, if so, whether the agreement is proposed or finalized;

    (e) A letter approving the utilization of the coal combustion byproducts from the landowner or landowners of the area where utilization is proposed;

    (f) Name, address, and contact information of the source of the coal combustion byproducts;

    (g) Type of facility that generated the coal combustion byproducts;

    (h) Type of fuel burned to generate the coal combustion byproducts;

    (i) Type of coal combustion byproduct (that is, bottom ash/slag, fly ash, fluidized bed combustion ash, desulfurization sludge, calcium spray dryer sludge, other);

    (j) If combined coal combustion byproducts, a description of the types and relative percentages;

    (k) A copy of a solids analysis of the coal combustion byproducts, performed within the last 60 days, which at a minimum provides analysis for the following:

      (i) Aluminum;

      (ii) Arsenic;

      (iii) Barium;

      (iv) Boron;

      (v) Cadmium;

      (vi) Chromium;

      (vii) Copper;

      (viii) Lead;

      (ix) Lithium;

      (x) Manganese;

      (xi) Mercury;

      (xii) Molybdenum;

      (xiii) Selenium;

      (xiv) Silver; and

      (xv) Zinc;

    (l) A copy of a Toxicity Characteristics Leaching Procedure (TCLP) leachate analysis, or other test approved by the Department, of the coal combustion byproducts, performed within the last 60 days, which at a minimum includes analysis for the following:

      (i) Aluminum;

      (ii) Arsenic;

      (iii) Barium;

      (iv) Cadmium;

      (v) Chromium;

      (vi) Copper;

      (vii) Lead;

      (viii) Manganese;

      (ix) Mercury;

      (x) Selenium;

      (xi) Silver; and

      (xii) Zinc;

    (m) A copy of an acid-base accounting analyses for the coal combustion byproducts and any materials to be used to increase the net neutralization potential of the coal combustion byproducts, providing the following:

      (i) Neutralization potential in tons of CaCO3 equivalents per thousand tons of material;

      (ii) Maximum potential acidity in terms of tons per thousand tons of material; and

      (iii) Net neutralization potential in tons of CaCO3 equivalents per thousand tons of material;

    (n) A copy of water quality analyses for the proposed coal combustion byproducts utilization area, performed within the last 60 days, which provides analysis for the following parameters:

      (i) pH;

      (ii) Specific conductance;

      (iii) Total dissolved solids;

      (iv) Total suspended solids;

      (v) Acidity;

      (vi) Alkalinity;

      (vii) Aluminum;

      (viii) Arsenic;

      (ix) Barium;

      (x) Boron;

      (xi) Cadmium;

      (xii) Chromium;

      (xiii) Copper;

      (xiv) Iron;

      (xv) Lead;

      (xvi) Lithium;

      (xvii) Manganese;

      (xviii) Mercury;

      (xix) Molybdenum;

      (xx) Selenium;

      (xxi) Silver;

      (xxii) Sulfate; and

      (xxiii) Zinc;

    (o) The quantity of coal combustion byproducts to be utilized per month;

    (p) A narrative description with map or maps, drawings, and cross-sections of the proposed handling plan, including at a minimum details on:

      (i) Where the coal combustion byproducts will be placed;

      (ii) How the coal combustion byproducts will be placed;

      (iii) How instability in fills or backfills will be prevented;

      (iv) How the approximate original contour of the mine backfill configuration will be achieved; and

      (v) How coal combustion byproducts that cannot be immediately utilized will be stored;

    (q) A narrative description with drawings and cross-sections, if appropriate, explaining how dust from hauling, unloading, storage, and coal combustion byproducts placement operations will be controlled;

    (r) A narrative description with drawings and cross-sections, if appropriate, explaining how contamination of surface and ground water will be prevented, and how surface and ground water will be monitored;

    (s) A narrative description of the potential hazards to workers involved in the handling of the coal combustion byproducts, and the plan to protect them if warranted;

    (t) A narrative description of the processes and procedures used or to be used to augment the net neutralization potential of the coal combustion byproducts, including a description of the type and quantity of any materials to be used to increase the net neutralization potential of the coal combustion byproducts; and

    (u) Other information as the Bureau or Department requires.

E. Permitted Utilization of Alkaline Coal Combustion Byproducts. Subject to the other provisions of this regulation, ACCBs may be used for the purpose of alkaline addition to neutralize potentially acid materials in and around coal mines or in surface coal mine reclamation as follows:

  (1) A layer on the pit floor to reduce the acid producing potential of the coal pavement;

  (2) Mixed with overburden material in the backfilling process to add alkalinity;

  (3) Part of a Bureau designed or approved reclamation project; or

  (4) Otherwise as approved by the Bureau.

F. Testing and Monitoring. Before using ACCBs in a surface coal mining and reclamation operation or in an abandoned coal mine, and annually thereafter or on such other basis as the Bureau may require, a person using or proposing to use ACCBs shall:

  (1) Submit to the Bureau a chemical analysis of the ACCB that includes a Toxicity Characteristic Leaching Procedure (TCLP), an acid-base accounting, and any other analysis required by the Bureau; and

  (2) Submit to the Bureau a report of the number of tons of ACCBs placed or to be placed at a site each month.

G. A utilization of coal combustion byproducts in a surface coal mining and reclamation operation or in an abandoned coal mine that is not in compliance with the provisions of this regulation as determined by the Department may be a disposal of a solid waste as determined by the Department and subject to all applicable laws and regulations governing the disposal of a solid waste, including applicable permit requirements of the Department.

H. The Bureau or the Department may require additional controls or impose other conditions on the utilization of coal combustion byproducts under this regulation as it considers necessary for the protection of human health and the environment.

### Chapter 25 — Soil Conservation

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01, .02, and .03 were previously codified as COMAR 08.13.09.30, .31, and .37, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.25 to COMAR 26.20.25, June 1996

**Administrative History:** Regulation .02D amended effective May 8, 2006 (33:9 Md. R. 797)

#### Regulation .01 Clearing and Disposal of Trees and Shrubs.

*COMAR 26.20.25.01*

All trees and shrubs shall be cut and removed from the affected area. Shrubs or brush removed from the disturbed area shall be buried at the bottom of the pit, separate from any acid or toxic materials, or in other suitable locations approved by the Bureau.

#### Regulation .02 Topsoil Handling.

*COMAR 26.20.25.02*

A. Topsoil Removal.

  (1) Topsoil to be saved shall be removed after vegetation that could interfere with the use of the topsoil is cleared from the areas to be disturbed, but before any drilling, blasting, mining, or other surface disturbance.

  (2) All topsoil shall be removed in a separate layer from the areas to be disturbed, unless use of substitute or supplemental materials is approved by the Bureau. If the topsoil is less than 6 inches, a separate layer shall be removed that includes all of the topsoil and the unconsolidated materials immediately below the topsoil to a minimum depth of 6 inches.

  (3) If the Bureau determines that it is necessary or desirable, to ensure soil productivity consistent with the post-mining land use, then the Bureau may require removal of an additional layer (including portions of the “B” or “C” horizons) to be segregated and redistributed as subsoil.

  (4) The maximum amount of topsoil that shall be saved shall be an amount sufficient to cover the areas to be revegetated to a depth of 4 feet.

  (5) Selected overburden materials may be substituted for, or used as a supplement to, topsoil if the Bureau determines that the resulting soil medium is equal to or more suitable for sustaining revegetation than is the available topsoil and if the substitute material is the best available to support revegetation. This determination shall be based on analysis of the thickness of soil horizons, total depth, texture, percent coarse fragments, pH, and areal extent of the different kinds of soils. The Bureau may require other chemical and physical analyses, field-site trials, or greenhouse tests, if determined to be necessary or desirable to demonstrate the suitability of topsoil substitutes or supplements.

  (6) If the removal of vegetative material, topsoil, or other materials may result in erosion which may cause air or water pollution:

    (a) The size of the area from which topsoil is removed at any one time shall be limited;

    (b) The surface soil layer shall be redistributed at a time when the physical and chemical properties of topsoil can be protected and erosion can be minimized; and

    (c) Such other measures shall be taken as the Bureau may approve or require to control erosion.

B. Topsoil Storage.

  (1) Topsoil and topsoil substitutes removed under §A of this regulation shall be stockpiled only when it is impractical to promptly redistribute these materials on regraded areas.

  (2) Protection measures shall be accomplished either by:

    (a) An effective cover of non-noxious, quick-growing annual and perennial plants, seeded, or planted during the first normal period after removal for favorable planting conditions; or

    (b) Other methods demonstrated to, and approved by, the Bureau to provide equal protection.

  (3) Unless approved by the Bureau, stockpiled topsoil and other materials may not be moved until required for redistribution on a regraded area.

C. Topsoil Redistribution.

  (1) After final grading and before the replacement of topsoil and topsoil substitutes, regraded land shall be scarified or otherwise treated as required by the Bureau to eliminate slippage surfaces and to promote root penetration.

  (2) Topsoil and other materials shall be redistributed in a manner that:

    (a) Achieves an approximate uniform, stable thickness consistent with the approved postmining land uses, contours, and surface water drainage system;

    (b) Prevents excess compaction of the topsoil; and

    (c) Protects the topsoil from wind and water erosion before and after it is seeded and planted.

D. Nutrients and Soil Amendments. Nutrients and soil amendments shall be applied to the initially redistributed material when necessary to establish the vegetative cover.

#### Regulation .03 Slides.

*COMAR 26.20.25.03*

A. An undisturbed natural barrier shall be provided beginning at the elevation of the lowest coal seam to be mined, and extending from the outslope for such distance as may be determined by the Bureau as is needed to assure stability. The barrier shall be retained in place to prevent slides and erosion.

B. At any time a slide occurs which may have a potential affect on public property, health, safety, or the environment, the person who conducts the surface mining activities shall notify the Bureau by the fastest available means and comply with any remedial measures required by the Bureau.

### Chapter 26 — Excess Spoil Disposal

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.04 were previously codified as COMAR 08.13.09.32A—D, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.26 to COMAR 26.20.26, June 1996

**Administrative History:** Regulation .01A amended effective January 14, 1999 (26:1 Md. R. 25)

**Administrative History:** Regulation .05 adopted effective January 14, 1999 (26:1 Md. R. 25)

#### Regulation .01 General Requirements.

*COMAR 26.20.26.01*

A. Except as provided in Regulation .05 of this chapter, excess spoil shall be placed in designated disposal areas within the permit area in a controlled manner to:

  (1) Minimize the adverse effects of leachate and surface water runoff from the fill on surface and ground waters;

  (2) Ensure mass stability and prevent mass movement during and after construction; and

  (3) Ensure that the final fill is suitable for reclamation and revegetation compatible with the natural surroundings and the approved postmining land use.

B. The fill and appurtenant structures shall be designed using current, prudent engineering practices and shall meet any design criteria established by the Bureau. A qualified registered professional engineer experienced in the design of earth and rock fills shall certify the design of the fill and appurtenant structures.

C. All vegetative and organic materials shall be removed from the disposal area and disposed of in an approved manner and location. All topsoil shall be removed and handled in accordance with COMAR 26.20.25.02.

D. Slope protection shall be provided to minimize surface erosion at the site. All disturbed areas, including diversion ditches that are not riprapped, shall be vegetated upon completion of construction.

E. The disposal areas shall be located on the most moderately sloping and naturally stable areas available as approved by the Bureau. If the placement provides additional stability and prevents mass movement, fill materials suitable for disposal shall be placed upon or above a natural terrace, bench, or berm.

F. The spoil shall be hauled or conveyed and placed in horizontal lifts not exceeding 4 feet in thickness in a controlled manner, concurrently compacted as necessary to ensure mass stability and prevent mass movement during and after construction, covered with topsoil or substitute material, and graded to allow surface and subsurface drainage to be compatible with the natural surroundings and ensure a long-term static safety factor of 1.5. The Bureau may approve a design which incorporates placement of excess spoil in horizontal lifts other than 4 feet in thickness when it is demonstrated by the operator and certified by a qualified registered professional engineer that the design will ensure the stability of the fill and will meet all other applicable requirements.

G. The final configuration of the fill shall be suitable for postmining land uses approved in accordance with the permit, except that no depressions or impoundments shall be allowed on the completed fill.

H. Terraces may be constructed on the outslope of the fill if required for stability, control of erosion, to conserve soil moisture, or to facilitate the approved postmining land use. The grade of the outslope between terrace benches may not be steeper than 2:1 (50 percent).

I. If the slope in the disposal area exceeds 2.8:1 keyway cuts (excavations to stable bedrock) or rock toe buttress shall be constructed to stabilize the fill. If the toe of the spoil rests on a downslope, stability analyses shall be performed to determine the size of rock toe buttresses and keyway cuts.

J. Excess spoil that is acid-forming or toxic-forming or combustible shall be adequately covered with nonacid, nontoxic and noncombustible material, or treated to control the impact on surface and ground water in accordance with COMAR 26.20.20, to prevent sustained combustion, and to minimize adverse effects on plant growth and the approved postmining land use.

K. A qualified registered professional engineer, or other qualified professional specialist under the direction of the professional engineer, shall periodically inspect the fill during construction. The professional engineer or specialist shall be experienced in the construction of earth and rock fills.

L. The inspections shall be made at least quarterly throughout construction and during critical construction periods. Critical construction periods shall include at a minimum:

  (1) Foundation preparation, including the removal of all organic material and topsoil;

  (2) Placement of underdrains and protective filter systems;

  (3) Installation of final surface drainage systems; and

  (4) The final graded and revegetated fill.

M. Regular inspections by the engineer or specialist shall also be conducted during placement and compaction of fill materials.

N. The qualified registered professional engineer shall provide a certified report to the Bureau promptly after each inspection stating that the fill has been constructed and maintained as designed and in accordance with the approved plan and this chapter. The report shall include:

  (1) Appearances of instability;

  (2) Structural weakness; and

  (3) Other hazardous conditions.

O. The certified report on the drainage system and protective filters shall include color photographs taken during and after construction, but before underdrains are covered with excess spoil. If the underdrain system is constructed in phases, each phase shall be certified separately.

P. The photographs accompanying each certified report shall be taken in adequate size and number with enough terrain or other physical features of the site shown to provide a relative scale to the photographs and to specifically and clearly identify the site.

Q. A copy of each inspection report shall be retained at or near the mine site.

R. Coal processing wastes may not be disposed of in head-of-hollow or valley fills, and may only be disposed of in other excess spoil fills if the waste is:

  (1) Placed in accordance with the construction specifications;

  (2) Demonstrated to be nontoxic and non-acid-forming; and

  (3) Demonstrated to be consistent with the design stability of the fill.

S. If the disposal area contains springs, natural or man-made water courses, or wet weather seeps, an underdrain system consisting of durable rock shall be constructed from the wet areas in a manner that prevents infiltration of the water into the spoil material. The underdrain system shall be protected by an adequate filter and shall be designed and constructed using standard geotechnical engineering methods.

T. The foundation and abutments of the fill shall be stable under all conditions of construction and operation. Sufficient foundation investigation and laboratory testing of foundation materials shall be performed in order to determine the design requirements for stability of the foundation. Analyses of foundation conditions shall include the effect of underground mine workings, if any, upon the stability of the structure.

U. Excess spoil may be returned to underground mine workings, but only in accordance with a disposal program approved by the Bureau and MSHA.

#### Regulation .02 Valley Fills.

*COMAR 26.20.26.02*

A. Valley fills shall meet all of the general requirements for disposal of excess spoil and the additional requirements of this regulation.

B. The fill shall be designed to attain a long-term static safety factor of 1.5 based upon data obtained from subsurface exploration, geotechnical testing, foundation design, and accepted engineering analyses.

C. A subdrainage system for the fill shall be constructed in accordance with the following:

  (1) A system of underdrains constructed of durable rock shall meet the following requirements:

    (a) Be installed along the natural drainage system;

    (b) Extend from the toe to the head of the fill; and

    (c) Contain lateral drains to each area of potential drainage or seepage.

  (2) A filter system to insure the proper functioning of the rock underdrain system shall be designed and constructed using standard geotechnical engineering methods.

  (3) In constructing the underdrains, not more than 10 percent of the rock may be less than 12 inches in size and no single rock may be larger than 25 percent of the width of the drain. The minimum size of the main underdrain shall be:

  (4) Underdrains shall consist of nondegradable, non-acid-forming or non-toxic-forming rock such as natural sand and gravel, sandstone, limestone, or other durable rock that will not slake in water and will be free of coal, clay, or shale.

D. Spoil shall be hauled or conveyed and placed in a controlled manner and concurrently compacted as specified by the Bureau, in lifts not greater than 4 feet or less if required by the Bureau to:

  (1) Achieve the densities designed to ensure mass stability;

  (2) Prevent mass movement;

  (3) Avoid contamination of the rock underdrain or rock core; and

  (4) Prevent formation of voids.

E. Surface water runoff from the area above the fill shall be diverted away from the fill and into stabilized diversion channels designed to pass safely the runoff from a 100-year, 24-hour precipitation event. Surface runoff from the fill surface shall be diverted to stabilized channels off the fill which will safely pass the runoff from a 100-year, 24-hour precipitation event.

F. The tops of the fill and any terrace constructed to stabilize the face shall be graded no steeper than 20:1. The vertical distance between terraces may not exceed 50 feet.

G. Drainage may not be directed over the outslope of the fill.

H. The outslope of the fill may not exceed 2:1.

#### Regulation .03 Head-of-Hollow Fills.

*COMAR 26.20.26.03*

A. Disposal of spoil in a head-of-hollow fill shall meet all standards set forth in Regulations .01 and .02 of this chapter, and the additional requirements of this regulation.

B. The fill shall be designed to completely fill the disposal site to the approximate elevation of the ridgeline. A rock-core chimney drain may be used instead of the subdrain and surface diversion system required for valley fills. If the crest of the fill is not approximately at the same elevation as the low point of the adjacent ridgeline, the fill shall be designed as specified in valley fills, with diversion of runoff around the fill. A fill associated with contour mining and placed at or near the coal seam, and which does not exceed 250,000 cubic yards may use the rock-core chimney drain.

C. The alternative rock-core chimney drain system shall be designed and incorporated into the construction of head-of-hollow fills as follows:

  (1) The fill shall have, along the vertical projection of the main stream channel or rill, a vertical core of durable rock at least 16 feet thick which shall extend from the toe of the fill to the head of the fill, and from the base of the fill to the surface of the fill. A system of lateral rock underdrains shall connect this rock core to each area of potential drainage or seepage in the disposal area. Rocks used in the rock core and underdrains shall meet the requirements of valley fills.

  (2) A filter system to ensure the proper functioning of the rock core shall be designed and constructed using standard geotechnical engineering methods.

  (3) The grading may drain surface water away from the outslope of the fill and toward the rock core. The maximum slope of the top of the fill shall be 33:1. A drainage pocket may be obtained at the head of the fill during and after construction, to intercept surface runoff and discharge the runoff through or over the rock drain, if stability of the fill is not impaired. This pocket or sump may not have a potential for impounding more than 10,000 cubic feet of water. Terraces on the fill shall be graded with a 3 to 5 percent grade toward the fill and 1 percent slope toward the rock core.

D. The drainage control system shall be capable of passing safely the runoff from a 100-year, 24-hour precipitation event.

#### Regulation .04 Durable Rock Fills.

*COMAR 26.20.26.04*

A. The Bureau may approve alternative methods of disposal of hard rock spoil, including fill placement by dumping in a single lift, on a site specific basis, provided the services of a registered professional engineer experienced in the design and construction of earth and rockfill embankments are used and provided the requirements of this regulation and the general requirements for disposal of excess spoil are met.

B. “Hard rock spoil” means rock fill consisting of at least 80 percent by volume of sandstone, limestone, or other rocks that do not slake in water. Resistance of the hard rock spoil to slaking shall be determined by using the slake index and slake durability tests in accordance with guidelines and criteria established by the Bureau.

C. Special Placement.

  (1) Spoil is to be transported and placed in a specified and controlled manner which will ensure stability of the fill.

  (2) The method of spoil placement shall be designed to ensure mass stability and prevent mass movement.

  (3) Loads of noncemented clay shale, clay spoil, or both, in the fill shall be mixed with hard rock spoil in a controlled manner to limit on a unit basis concentrations of noncemented clay shale and clay in the fill. These materials shall comprise not more than 20 percent of the fill volume as determined by tests performed by a registered professional engineer and approved by the Bureau.

D. Stability Analyses.

  (1) Stability analyses shall be made by a registered professional engineer.

  (2) Parameters used in the stability analyses shall be based on adequate field reconnaissance, subsurface investigations, including borings, and laboratory tests.

  (3) The embankment which constitutes the valley fill or head-of-hollow fill shall be designed with the following factors of safety:

E. Internal Drainage System.

  (1) The design of a head-of-hollow fill shall include an internal drainage system which will ensure continued free drainage of anticipated seepage from precipitation and from springs or wet weather seeps.

  (2) Anticipated discharge from springs and seeps and due to precipitation shall be based on records, field investigations, or both, to determine seasonal variation. The design of the internal drainage system shall be based on the maximum anticipated discharge.

  (3) All granular material used for the drainage system shall be free of clay and consist of durable particles such as natural sands and gravels, sandstone, limestone, or other durable rock which will not slake in water.

  (4) The internal drain shall be protected by a properly designed filter system.

F. Surface water runoff from the areas adjacent to and above the fill may not be allowed to flow onto the fill and shall be diverted into stabilized channels which are designed to pass safely the runoff from a 100-year, 24-hour precipitation event.

G. The top surface of the completed fill shall be graded so that the final slope after settlement will be no steeper than 20:1 toward properly designed drainage channels in natural ground and the periphery of the fill. Surface runoff from the top surface of fill may not be allowed to flow over the outslope of the fill.

H. Surface runoff from the outslope of the fill shall be diverted off the fill to properly designed channels which will pass safely a 100-year, 24-hour precipitation event.

I. Terraces shall be constructed on the outslope if required for control of erosion or for roads included in the approved postmining land use plan. Terraces shall meet the following requirements:

  (1) The slope of the outslope between terrace benches may not exceed 2:1.

  (2) To control surface runoff, each terrace bench shall be graded to a slope of 20:1 toward the embankment. Runoff shall be collected by a ditch along the intersection of each terrace bench and the outslope.

  (3) Terrace ditches shall have a 5 percent slope toward the channels specified in Regulation .04H of this chapter unless steeper slopes are necessary in conjunction with approved roads.

#### Regulation .05 Placement of Excess Spoil on Abandoned Mine Land.

*COMAR 26.20.26.05*

A. Excess spoil from a permitted coal mining operation may be placed on abandoned mine land outside of the permit area if the Department determines that the:

  (1) Abandoned mine land is eligible for funding under Environment Article, Title 15, Subtitle 11, Annotated Code of Maryland;

  (2) Abandoned mine land is referenced in the permit application and identified on the permit map;

  (3) Plan for the placement of the excess spoil on the abandoned mine land meets all applicable design requirements of Maryland's approved program;

  (4) Legal right to enter upon the abandoned mine land to place excess spoil on the area has been obtained from the surface owner; and

  (5) Excess spoil will be placed in accordance with the provisions of a contract executed between the Department and the permittee for reclamation of the abandoned mine land.

B. Reclamation Standards.

  (1) Excess spoil beyond the amount needed to restore the abandoned mine land to its approximate original contour may not be placed on the abandoned mine land.

  (2) The final configuration of the excess spoil that is placed on the abandoned mine land area outside of the permit area shall be compatible with the natural surroundings and suitable for the intended land use.

  (3) Valley, head of hollow, or durable rock fills may not be constructed on abandoned mine land.

  (4) Placement of excess spoil on abandoned mine land shall be planned and implemented in accordance with the requirements of Maryland's approved program.

C. The placement of excess spoil from a permit area on abandoned mine land outside of a permit area may not be approved unless the Department finds, in writing, on the basis of information set forth in the plan or otherwise available, that:

  (1) Placement of the excess spoil and reclamation of the abandoned mine land can be accomplished in accordance with the plan submitted by the operator;

  (2) Excess spoil placement operation has been designed to prevent damage to the hydrologic balance outside of the abandoned mine land;

  (3) Excess spoil placement operation will not adversely affect any publicly owned parks or places included in the National Register of Historic Places, unless approved by the appropriate jurisdictional agency;

  (4) Applicant has submitted documentation establishing a legal right to enter and conduct the proposed reclamation on the abandoned mine land; and

  (5) Proposed activities will not affect the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitats, as determined under the Endangered Species Act.

D. The placement of excess spoil from a permitted coal mining operation on abandoned mine land outside of the permit area shall be accomplished in accordance with a contract between the Department and the permittee that contains conditions which:

  (1) Document the method of placement of the excess spoil and reclamation on the area;

  (2) Require the operator to permit and bond the abandoned mine land area if the operator defaults on the contract; and

  (3) Authorize the Department to issue a cessation order to cease all mining operations on the adjacent permit area until the operator submits:

    (a) An application for a permit, and

    (b) The required amount of bond for the abandoned mine land area in the event the operator defaults on the contract.

E. The Department shall monitor the placement of excess spoil and the reclamation of the abandoned mine land area to ensure that the work is performed in accordance with the contract. If the operator fails to meet the terms of the contract, the Department shall issue a cessation order to stop work on the area until the failure has been corrected.

### Chapter 27 — Waste Handling

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.11 were previously codified as COMAR 08.13.09.33A—K, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.27 to COMAR 26.20.27, June 1996

#### Regulation .01 General Requirements.

*COMAR 26.20.27.01*

A. All coal mine waste shall be placed in designated disposal areas within a permit area, which are approved by the Bureau for this purpose. Coal mine waste shall be placed in a controlled manner to:

  (1) Minimize adverse effects of leachate and surface water runoff on surface and ground water quality and quantity;

  (2) Ensure mass stability and prevent mass movement during and after construction;

  (3) Ensure that the final disposal facility is suitable for reclamation and revegetation compatible with the natural surroundings and the approved postmining land use;

  (4) Create no public hazard; and

  (5) Prevent combustion.

B. Coal mine waste materials from activities located outside a permit area, such as those activities at other mines or abandoned mine waste piles, may be disposed of in the permit area only if approved by the Bureau. Approval shall be based on a showing by the permittee, using hydrologic, geotechnical, physical, and chemical analysis, that the disposal will be in accordance with the standards of this chapter.

C. The disposal facility shall be designed using current, prudent engineering practices to attain a minimum long-term static safety factor of 1.5 and to meet any design criteria established by the Bureau. A qualified registered professional engineer, experienced in the design of similar earth and waste structures, shall certify the design of the disposal facility.

D. The foundation and abutments must be stable under all conditions of construction. Sufficient foundation investigations, as well as any necessary laboratory testing of foundation material, shall be performed in order to determine the design requirements for foundation stability. The analyses of the foundation conditions shall take into consideration the effect of underground mine workings, if any, upon the stability of the disposal facility.

#### Regulation .02 Site Inspections.

*COMAR 26.20.27.02*

A. A qualified registered professional engineer, or other qualified professional specialist under the direction of the professional engineer, shall inspect the coal mine waste disposal facility during construction. The professional engineer or specialist shall be experienced in the construction of similar earth and waste structures.

B. Inspections shall be made at least quarterly throughout construction and during critical construction periods. Critical construction periods shall include at a minimum:

  (1) Foundation preparation including the removal of all organic material and topsoil;

  (2) Placement of underdrains and protective filter systems;

  (3) Installation of final surface drainage systems; and

  (4) The final graded and revegetated facility.

C. Regular inspections by the engineer or specialist shall be conducted during placement and compaction of coal mine waste materials. More frequent inspections shall be conducted if a danger of harm exists to the public health and safety or the environment. Inspections shall continue until the waste disposal facility has been finally graded and revegetated or until a later time as required by the Bureau.

D. The qualified registered professional engineer shall provide a certified report to the Bureau within 10 days after each inspection stating that the waste disposal facility has been constructed and maintained as designed and in accordance with the approved plan and this subtitle. The report shall include appearances of instability, structural weakness, and other hazardous conditions.

E. The certified report on the drainage system and protective filters shall include color photographs taken during and after construction, but before underdrains are covered with coal mine waste. If the underdrain system is constructed in phases, each phase shall be certified separately. The photographs accompanying each certified report shall be taken in adequate size and number with enough terrain or other physical features of the site shown to provide a relative scale to the photographs and to specifically and clearly identify the site.

F. A copy of each inspection report shall be retained at or near the mine site.

G. If any inspection discloses that a potential hazard exists, the Bureau shall be informed immediately of the findings and of emergency procedures considered necessary for public protection and remedial action. If adequate procedures cannot be immediately implemented, the Bureau shall notify appropriate emergency agencies of the need for measures to protect the public.

#### Regulation .03 Water Control Measures for Coal Mine Waste Disposal Facilities.

*COMAR 26.20.27.03*

A. If the disposal area contains springs, natural or man-made water courses, or wet weather seeps, the design shall include diversions and underdrains as necessary to control erosion, prevent water infiltration into the disposal facility, and ensure stability. If a subdrainage system is used, it shall:

  (1) Intercept all ground water sources;

  (2) Be protected by an adequate filter;

  (3) Be covered so as to protect against the entrance of surface water or leachate from the coal mine waste;

  (4) Consist of durable rock or pipe;

  (5) Be designed and constructed using current, prudent engineering practices and meet design criteria established by the Bureau and the requirements of 30 CFR §77.214 and 77.215; and

  (6) Be designed to carry the anticipated seepage of water due to rainfall away from the fill and from seeps and springs in the foundation of the disposal area and be protected from piping and contamination by an adequate filter.

B. Rock underdrains shall be constructed of durable, nonacid, non-toxic-forming rock, for example, natural sand and gravel, sandstone, limestone, or other durable rock that does not slake in water or degrade to soil material, and which is free of coal, clay, or other nondurable material. Perforated pipe underdrains shall be corrosion resistant and shall have characteristics consistent with the long-term life of the fill.

C. Uncontrolled surface drainage may not be diverted over the outslope of refuse piles. All surface drainage runoff from the area above refuse piles and runoff from the surface of refuse piles shall be diverted into stabilized diversion channels designed to safely pass the runoff from a 100-year, 6-hour precipitation event.

D. Slope protection shall be provided to minimize surface erosion at the site. All disturbed areas, including diversion ditches that are not riprapped, shall be vegetated upon completion of construction.

E. All water discharged from a refuse pile shall comply with the effluent limitations of the Regulatory Program.

#### Regulation .04 Construction Requirements.

*COMAR 26.20.27.04*

A. Refuse piles shall be constructed in compliance with the requirements of COMAR 26.20.26, except to the extent that the requirements of that chapter are varied in this regulation.

B. Refuse piles shall have a minimum static safety factor of 1.5.

C. Compaction requirements during construction or modification of all coal mine waste disposal facilities are as follows:

  (1) Waste shall be spread in layers not more than 24 inches in thickness.

  (2) Waste shall be compacted to attain 90 percent of the maximum dry density to prevent spontaneous combustion and to provide the strength required for stability of the coal processing waste bank. Dry densities shall be determined in accordance with the American Association of State Highway and Transportation Officials (AASHTO) Specification T99-74 (Twelfth Edition) (July, 1978), or an equivalent method.

D. Following final grading of the coal mine waste disposal facility, the site shall be covered with a minimum of 4 feet of the best available nontoxic and noncombustible material in a manner that does not impede flow from subdrainage systems and shall be revegetated. The Bureau may allow less than 4 feet of cover material based on physical and chemical analyses which show that the revegetation requirements will be satisfied.

E. Permanent impoundments may not be allowed on completed refuse piles.

F. The final configuration of refuse piles shall be suitable for the approved postmining land use. Terraces may be constructed on the outslope if required for stability, control of erosion, conservation of soil moisture, or facilitation of the approved postmining land use. The grade of the outslope between terrace benches may not be steeper than 2h:1v (50 percent).

#### Regulation .05 Burning Coal Mine Wastes.

*COMAR 26.20.27.05*

Coal mine waste fires shall be extinguished by the person who conducts the surface mining activities, in accordance with a plan approved by the Bureau and the federal Mine Safety and Health Administration (MSHA). The plan shall contain, at a minimum, provisions to ensure that only those persons authorized by the operator and who have an understanding of the procedures to be used shall be involved in the extinguishing operations.

#### Regulation .06 Removal of Burned or Burning Coal Mine Wastes from a Disposal Area.

*COMAR 26.20.27.06*

Before any burned or burning coal mine waste is removed from a disposal area, approval shall be obtained from the Bureau. A plan for removal, with maps and appropriate drawings to illustrate the proposed sequence of the operation, shall be submitted to the Bureau. Consideration shall be given in the plan to potential hazards to persons working or living in the vicinity of the structure. The plan shall be certified by a qualified engineer.

#### Regulation .07 Disposal of Coal Mine Waste to Underground Workings.

*COMAR 26.20.27.07*

Coal mine waste may be disposed of in underground mine workings only in accordance with a plan approved by the Bureau and MSHA.

#### Regulation .08 Disposal of Non-Coal Wastes.

*COMAR 26.20.27.08*

A. Non-coal wastes including, but not limited to, grease, lubricants, paints, flammable liquids, garbage, abandoned mining machinery, lumber, and other combustibles generated during surface mining activities shall be placed and stored in a controlled manner in a designated portion of the permit area. Placement and storage shall ensure that leachate and surface runoff do not degrade surface or ground water, fires are prevented, and that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings.

B. Final disposal of non-coal wastes shall be in a designated disposal site in the permit area or a State-approved solid waste disposal area. Disposal sites shall be designed and constructed with appropriate water barriers on the bottom and sides of the site. Wastes shall be routinely compacted and covered to prevent combustion and wind-borne waste. When the disposal is completed, a minimum of 2 feet of soil cover shall be placed over the site, slopes stabilized, and revegetation accomplished. Operation of the disposal site shall be conducted in accordance with all local, State, and federal requirements.

C. Non-coal waste may not be deposited in a refuse pile or impounding structure. An excavation for a non-coal mine waste disposal site may not be located within 8 feet of any coal outcrop or coal storage area.

D. Any non-coal mine waste defined as “hazardous” under §3001 of the Resource Conservation and Recovery Act (PL 94-580) shall be handled in accordance with the requirements of Subtitle C of RCRA and any implementing regulations.

#### Regulation .09 General Requirements for Coal Mine Waste Impounding Structures.

*COMAR 26.20.27.09*

A. Coal mine waste may not be used in the construction of impounding structures unless it has been demonstrated that the stability of the structure will be ensured, and that the use of coal mine waste will not have a detrimental effect on downstream water quality or the environment due to acid seepage through the impounding structure. All demonstrations shall be submitted to and approval obtained from the Bureau before construction.

B. Impounding structures constructed of coal mine waste or impounding coal mine waste may not be retained permanently as part of the approved postmining land use.

#### Regulation .10 Site Preparation for Coal Mine Waste Impounding Structures.

*COMAR 26.20.27.10*

Before coal mine waste is placed at a dam or embankment site:

A. All vegetative and organic materials shall be removed from the site and disposed of in an approved manner and location. All topsoil shall be removed and handled in accordance with COMAR 26.20.25.02.

B. Surface drainage that may cause instability or erosion to the embankment area, or the embankment features, whether during construction or after completion, shall be diverted away from the embankment by diversion ditches. Diversions that are designed to divert drainage from the upstream area or from the surface of the facility shall be designed to carry the peak runoff from a 100-year, 6-hour precipitation event. The diversion shall be maintained to prevent blockage, and sediment control measures shall be provided at the discharge of each diversion ditch before entry into natural watercourses.

#### Regulation .11 Design and Construction Requirements for Coal Mine Waste Impounding Structures.

*COMAR 26.20.27.11*

A. The design of each dam and embankment constructed of coal mine waste, or intended to impound this waste, shall comply with the permanent and temporary impoundment requirements of the Regulatory Program, modified as follows:

  (1) The design freeboard between the lowest point on the embankment crest and the maximum water elevation shall be at least 3 feet. The maximum water elevation shall be that determined by the freeboard hydrograph criteria contained in the U.S. Soil Conservation Service criteria referenced in COMAR 26.20.21.08A(5).

  (2) The dam and embankment shall have a minimum safety factor of 1.5 for the partial pool with steady seepage saturation conditions, and a seismic safety factor of at least 1.5.

  (3) The dam or embankment foundation and abutments shall be designed to be stable under all conditions of construction and operation of the impoundment. Sufficient foundation investigations and laboratory testing shall be performed to determine the safety factors of the dam or embankment for all loading conditions shown in §A(1) and (2) of this regulation, for all increments of construction.

B. Spillways and outlet works shall be designed to provide adequate protection against erosion and corrosion. Inlets shall be protected against blockage. The combination of principal and emergency spillways shall be able to safely pass the 100-year, 6-hour design precipitation event.

C. Dams or embankments constructed of or impounding waste materials shall be designed so that at least 90 percent of the water stored during the design precipitation event shall be removed within a 10-day period.

### Chapter 28 — Backfilling

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.06 were previously codified as COMAR 08.13.09.34A—F, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.28 to COMAR 26.20.28, June 1996

#### Regulation .01 Contemporaneous Reclamation.

*COMAR 26.20.28.01*

A. Reclamation efforts, including, but not limited to, backfilling, grading, topsoil replacement and revegetation, of all land that is disturbed by surface mining activities, shall occur as contemporaneously as practicable with mining operations.

B. Unless otherwise approved by the Bureau, upon a demonstration by the permittee, through a detailed written analysis, in the permit application, that a variation is necessary:

  (1) In contour mining operations, rough backfilling and grading shall follow coal removal by not more than 1500 linear feet;

  (2) In area surface mining operations, rough backfilling and grading may not be more than three spoil ridges behind the pit being worked, the spoil from the active pit being considered the first ridge;

  (3) In addition to, and notwithstanding the requirements of, §B(1) and (2) of this regulation, rough backfilling and grading shall begin within a time not to exceed 60 days of completion of all coal removal within a pit, designated area, or phase, and shall be continuous until completion;

  (4) Within 5 days of completion of all coal removal on the permit area, rough backfilling and grading shall begin on the unreclaimed areas, and shall be continuous until completion, not to exceed 1 year after all coal removal.

C. The number of open acres may not exceed the open acre limit.

D. In order to minimize the amount of area that has not been backfilled and seeded by the close of a planting season, the Bureau may require backfilling, grading, topsoil redistribution, and seeding of open acres at times, rates, and locations that do not impinge upon the areas required for overburden removal, spoil placement, coal removal, approved haul roads, sediment control structures, and processing and shipping areas.

#### Regulation .02 Method for Backfilling and Grading.

*COMAR 26.20.28.02*

A. Except as specifically exempted in this chapter, all disturbed areas shall be returned to their approximate original contour. All spoil shall be transported, backfilled, compacted (where advisable to ensure stability or to prevent leaching) and graded to eliminate all highwalls, spoil piles, and depressions.

B. Backfilled material shall be placed to minimize erosion and water pollution both on and off the site, to minimize adverse effects on ground water, and to support the approved postmining land use.

C. The postmining graded slopes need not be of uniform slope.

D. Cut-and-fill terraces may be used only in those situations expressly identified in Regulation .03 of this chapter.

#### Regulation .03 General Requirements.

*COMAR 26.20.28.03*

A. Postmining final graded slopes need not be uniform but shall approximate the general nature of the pre-mining topography. These requirements may be modified by the Bureau where the surface mining activities are reaffecting previously mined lands that have not been restored to these standards, and sufficient spoil is not available to otherwise comply with this chapter. The permittee shall, at a minimum:

  (1) Retain all overburden and spoil on the solid portion of existing or new benches; and

  (2) Backfill and grade to the most moderate slope possible to eliminate the highwall which does not exceed either the angle of repose or such lesser slope as is necessary to achieve a minimum long-term static safety factor of 1.5. In all cases the highwall shall be eliminated.

B. On approval by the Bureau in order to conserve soil moisture, ensure stability, and control erosion on final graded slopes, cut and fill terraces may be allowed. The terraces shall be compatible with the approved postmining land use, and can be appropriate substitutes for construction of lower grades on the reclaimed lands. The terraces shall meet all of the following requirements:

  (1) The width of the individual terrace bench may not exceed 20 feet, unless specifically approved by the Bureau as necessary for stability, erosion control, or roads included in the approved postmining land use plan.

  (2) The vertical distance between terraces shall be as specified by the Bureau to prevent excessive erosion and to provide long-term stability.

  (3) The slope of the terrace outslope may not exceed 2:1. Outslopes which exceed 2:1 may be approved, if they have a minimum static safety factor of 1.5, provide adequate control over erosion, and closely resemble the surface configuration of the land before mining. Highwalls may not be left as part of terraces.

C. Small depressions may be constructed, if they:

  (1) Are approved by the Bureau to minimize erosion, conserve soil moisture, create and enhance wildlife habitat, or promote vegetation;

  (2) Do not restrict normal access; and

  (3) Are approved, in writing, by the landowner.

D. Preparation of final graded surfaces shall be conducted in a manner which minimizes erosion and provides a surface for replacement of topsoil which will minimize slippage.

E. Spoil may be placed on the permit outside the mined-out area in non-steep slope areas to restore the approximate original contour by blending the spoil into the surrounding terrain if the following requirements are met:

  (1) All vegetative and organic material shall be removed from the area;

  (2) The topsoil on the area shall be removed, segregated, stored, and redistributed in accordance with COMAR 26.20.25.02;

  (3) The spoil shall be backfilled and graded on the area in accordance with the requirements of this chapter.

#### Regulation .04 Covering Coal and Acid-Forming and Toxic-Forming Materials.

*COMAR 26.20.28.04*

A. Cover.

  (1) The permittee shall either cover, with a minimum of 4 feet of the best available nontoxic and noncombustible material, or treat all exposed coal seams remaining after mining, and all acid-forming materials, toxic-forming materials, combustible materials, or any other materials identified by the Bureau as exposed, used, or produced during mining.

  (2) Cover or treatment shall be provided so as to neutralize toxicity, acidity, and combustibility in order to prevent water pollution and sustained combustion, and to minimize adverse effects on plant growth and land uses.

  (3) Where necessary to protect against upward migration of salts, exposure by erosion, formation of acid or toxic seeps, to provide an adequate depth for plant growth, or otherwise to meet local conditions, the Bureau shall specify thicker amounts of cover using nontoxic materials, or special compaction and isolation from ground water contact.

  (4) Acid-forming or toxic-forming material may not be buried or stored in proximity to a drainage course so as to cause or pose a threat of water pollution.

B. Drainage from acid-forming and toxic-forming spoil into ground and surface water shall be avoided by:

  (1) Identifying, burying, and treating, where necessary, spoil which in the judgement of the Bureau may be detrimental to vegetation or may adversely affect water quality if not treated or buried;

  (2) Preventing water from coming into contact with acid-forming and toxic-forming spoil and other measures as required by the Bureau; and

  (3) Burying or otherwise treating all acid-forming or toxic-forming spoil within 30 days after it is first exposed on the mine site, or within a lesser period required by the Bureau. Temporary storage of the spoil may be approved by the Bureau upon a finding that burial or treatment within 30 days is not feasible, and that storage will not result in any material risk of water pollution or other environmental damage. Storage approval shall expire as soon as burial or treatment first becomes feasible. Acid-forming or toxic-forming spoil to be stored shall be placed on impermeable material and protected from erosion and contact with surface water.

C. Stabilization. Backfilled materials shall be selectively hauled or conveyed, and compacted, wherever necessary to prevent leaching of acid-forming and toxic-forming materials into surface or ground waters and wherever necessary to insure stability of the backfilled materials. The method and design specifications of compacting materials shall be approved by the Bureau before acid-forming and toxic-forming materials are covered.

#### Regulation .05 Overburden.

*COMAR 26.20.28.05*

Surface mining activities shall be conducted to meet, at a minimum, the following standards:

A. All spoil and wastes not required to achieve the approximate original contour of the mine plan area shall be hauled or conveyed, backfilled, or graded to the lowest practicable grade, to achieve a static factor of safety of 1.3 and cover all acid-forming and other toxic-forming materials;

B. Haul or convey, backfill, and grade excess spoil and wastes only within the permit area and dispose of the materials in accordance with COMAR 26.20.26.

C. Haul or convey, backfill, and grade excess spoil and wastes to maintain the hydrologic balance and to provide long term stability by preventing slides, erosion, and water pollution;

D. Haul or convey, backfill, grade, and revegetate wastes and excess spoil to achieve an ecologically sound land use approved by the Bureau as compatible with the prevailing land uses in unmined areas surrounding the mine plan area;

E. Eliminate all highwalls and depressions by backfilling with spoil and suitable waste materials; and

F. Meet the revegetation requirements for all disturbed areas.

#### Regulation .06 Regrading or Stabilizing Rills and Gullies.

*COMAR 26.20.28.06*

When rills or gullies deeper than 9 inches form in areas that have been regraded and top-soiled, the rills and gullies shall be filled, graded, or otherwise stabilized and the area area reseeded or replanted in accordance with the revegetation requirements. The Bureau shall specify that rills or gullies of lesser size be stabilized and the area reseeded or replanted if the rills or gullies are disruptive to the approved postmining land use or may result in additional erosion and sedimentation.

### Chapter 29 — Revegetation

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 were previously codified as COMAR 08.13.09.35A—G, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.29 to COMAR 26.20.29, June 1996

**Administrative History:** Regulation .07 amended effective March 22, 1999 (26:6 Md. R. 488)

#### Regulation .01 General Requirements.

*COMAR 26.20.29.01*

A. Except for water areas and surface areas of roads that are approved as part of the postmining land use, the permittee shall establish a vegetative cover on regraded areas and on all other disturbed areas to stabilize the soil, minimize damage from sediment and runoff to downstream areas, and establish a permanent vegetative cover compatible with the approved postmining land use, that is in accordance with the approved permit and reclamation plan and that is:

  (1) Diverse, effective, and permanent;

  (2) Comprised of species native to the area, or of introduced species when desirable and necessary to achieve the approved postmining land use and approved by the Bureau;

  (3) At least equal in extent of cover to the natural vegetation of the area; and

  (4) Capable of quickly stabilizing the soil surface from erosion.

B. The reestablished vegetative cover shall:

  (1) Be compatible with the approved postmining land use;

  (2) Have the same seasonal characteristics of growth as the original vegetation;

  (3) Be capable of self-regeneration and plant succession;

  (4) Be compatible with the plant and animal species of the area; and

  (5) Meet the requirements of applicable State and federal seed, poisonous and noxious plant, and introduced species laws and regulations.

C. The Bureau may grant exception to the requirements of §B(2) and (3) of this regulation when the species are necessary to achieve a quick-growing, temporary, stabilizing cover, and measures to establish permanent vegetation are included in the approved permit and reclamation plan.

D. When a cropland postmining land use is approved, the Bureau may grant a waiver to the requirements of §§A(1) and (3) and B(2) and (3) of this regulation.

E. The person who conducts surface mining activities shall perform proper management practices including but not limited to the maintenance of any necessary fences, and periodic measurements of water, vegetation, and soils, as directed by the Bureau, to identify conditions during the period of liability.

#### Regulation .02 Timing.

*COMAR 26.20.29.02*

Seeding and planting of disturbed areas shall be conducted during the first normal period for favorable planting conditions after final regrading and spreading of topsoil. The normal period for favorable planting shall be that planting time generally accepted locally for the type of plant materials selected. When necessary to effectively control erosion, any disturbed area shall be seeded and planted, as contemporaneously as practicable with the completion of backfilling and grading, with a temporary cover of small grains, grasses, or legumes until a permanent cover is established.

#### Regulation .03 Plant Species Selection and Land Treatment.

*COMAR 26.20.29.03*

A. All planting plans, including trees and shrubs, shall include provisions for a herbaceous cover. The selection of plant species shall be based on proposed postmining land use, elevation, and soil conditions.

B. Establishment of a temporary or permanent herbaceous vegetative cover requires the following treatment:

  (1) Preparation of a seed bed by discing, harrowing, or other methods, if an adequate seed bed does not exist;

  (2) Application of lime to obtain a proper pH for the seed mixture to be planted, with minimum rate of 4 tons of lime per acre required, although a liming rate based on a soil analysis may be substituted for the minimum rate;

  (3) Application of fertilizer to ensure proper nutrients for plant growth, with minimum rate of 400 pounds per acre of 10-20-20 or equivalent required, although a fertilizer rate based on soil analysis may be substituted for the minimum rate;

  (4) Inoculation of legume seed with proper strain, and triple the inoculation rate if hydroseeded;

  (5) Protection of seeded area from livestock grazing and harvesting;

  (6) Fall seeding of legumes to be completed by September 1; and

  (7) Spring planting of seedlings to be completed before May 1.

#### Regulation .04 Revegetation Plan.

*COMAR 26.20.29.04*

A. The guidelines in §§B—I of this regulation shall be used in the development of a revegetation plan for the selected postmining land use.

B. Cropland. The plan shall contain appropriate crops for harvesting. These may include row crops, small grain crops, hay crops, nursery crops, orchard crops, or other similar crops. The crops may be planted alone or in combination with herbaceous cover. However, if nursery or orchard crops are planted, they shall include a herbaceous cover.

C. Pastureland and Hay Land. The plan shall include an appropriate selection of grasses and legumes to support the intended use of the area.

D. Forestry and Forest Land. The plan shall include the planting of a variety of trees and shrubs to support the intended use. A herbaceous cover shall also be provided for the area.

E. Residential and Industrial/Commercial. The plan shall provide for a vegetative cover for all open space areas in the developed area. The cover may be herbaceous or a combination of herbaceous/woody cover.

F. Recreation. The plan shall include the planting of a herbaceous cover and, if necessary, the planting of an appropriate variety of trees and shrubs to develop the area.

G. Fish and Wildlife. The plan shall include a herbaceous cover and the appropriate trees and shrubs necessary to enhance the use of the area, and shall be prepared in consultation with the Forest, Park and Wildlife Service and approved by the Bureau.

H. Developed Water Resources. The plan shall provide for the revegetation of all land not covered by water in accordance with one of the above land use categories.

I. Undeveloped Land. The plan shall provide for the revegetation of the area in accordance with the fish and wildlife or forestry land use categories.

#### Regulation .05 Soil-Stabilizing Practices.

*COMAR 26.20.29.05*

A. Suitable mulch and other soil-stabilizing practices shall be used on all regraded and topsoiled areas to control erosion, promote germination of seeds, or increase the moisture-retention capacity of the soil. The Bureau may modify this if seasonal, soil, or slope factors result in a condition when a lower application rate of mulch is adequate to control erosion and to promptly establish an effective vegetative cover.

B. When required by the Bureau, mulches shall be mechanically or chemically anchored to the soil surface to assure effective protection of the soil and vegetation.

C. Annual grasses and grains may be used alone, as in situ mulch, or in conjunction with another mulch, when the Bureau determines that they will provide adequate soil erosion control and will later be replaced by perennial species approved for the postmining land use.

D. Chemical soil stabilizers, alone or in combination with appropriate mulches, may be used in conjunction with vegetative covers approved for the postmining land use.

E. The minimum rate of application for hay or straw mulch is 2—3 tons per acre.

F. Other mulching materials may be substituted for hay or straw, on written request from the operator, and approval of the Bureau, of the mulch material and the rate of application.

#### Regulation .06 Backfilling and Planting Reports and Inspection.

*COMAR 26.20.29.06*

A. A backfilling and planting report shall be prepared by the permittee on forms furnished by the Bureau and filed with the Bureau not later than the time the mining and reclamation progress report required by Environment Article, §15-508(b), Annotated Code of Maryland, is submitted. The report shall include a location map showing the location of the acres backfilled and planted and covered by the report.

B. The permittee shall review all planted areas before the recognized planting seasons. The permittee shall cause those areas deficient of vegetative cover to be regraded, top dressed with lime and fertilizer, seeded, or mulched, or to have any other necessary treatment to establish a satisfactory cover of vegetation.

C. A vegetation inspection shall be made by the Bureau and the Land Reclamation Committee when the planted area has survived 2 years after the last augmented seeding. Following the inspection by the Bureau and the Land Reclamation Committee, the Bureau shall notify the operator whether the standards for success have been achieved. If standards have been met, the Bureau may then reduce the amount of bond on the area in accordance with COMAR 26.20.14. If the standards have not been met, the Bureau may order the operator to correct the deficiencies.

D. A final inspection shall be made by the Bureau on the planted areas at the end of the 5-year responsibility period. The Bureau shall notify the permittee, in writing, of its approval or disapproval of the revegetation. On areas for which the revegetation is:

  (1) Approved, the notification shall include procedures for bond release;

  (2) Not approved, the notification shall state the reasons for the disapproval.

#### Regulation .07 Standards for Success.

*COMAR 26.20.29.07*

A. Success of revegetation shall be judged on the effectiveness of the vegetation for the approved postmining land use, the extent of the cover compared to the cover occurring in natural vegetation of the area, and the general requirements of Regulation .01 of this chapter. Ground cover, production, or stocking of trees and shrubs shall be considered equal to the success standard when they are not less than 90 percent of the success standard using a 90 percent statistical confidence interval. A one-sided test with a 0.10 alpha error is an example of this.

B. Standards for success shall be applied in accordance with the approved postmining land use and, at a minimum, meet the following conditions:

  (1) For areas developed for use as pastureland or hay land, the ground cover and production of living plants on the revegetated area shall be at least equal to that of the approved reference area, or the revegetated area shall sustain a vegetative ground cover of 90 percent for the last 2 years of the responsibility period, with at least 10 percent of the area consisting of legumes well distributed, and contain no bare areas in excess of 300 square feet;

  (2) For areas developed for use as cropland, crop production on the revegetated area shall be at least equal to that of a reference area approved by the Bureau, or the crop production on the area shall be at least 90 percent of a production/yield standard recommended by the appropriate soil conservation district for the area and approved by the Bureau as part of the revegetation plan;

  (3) For areas to be developed for wildlife habitat, recreation, commercial forestry, or forest land, when a combination of herbaceous cover and woody plants is to be used, the success of the vegetation shall be determined on the basis of tree and shrub stocking and vegetative ground cover, and the following standards of success apply:

    (a) At the time of bond release the trees and shrubs shall be healthy, and at least 80 percent shall have been in place for at least 3 growing seasons,

    (b) Trees and shrubs may not be in place for less than 2 growing seasons and shall be counted in determining stocking adequacy,

    (c) On areas planted to woody species, there shall be at least 400 woody plants per acre on slopes less than 12 degrees, and 600 woody plants per acre on slopes greater than 12 degrees,

    (d) The herbaceous ground cover may not be less than that required to control erosion, and shall sustain a vegetative ground cover of 70 percent for the last 2 years of the responsibility period, and

    (e) For areas within the plan which are planted with herbaceous cover only, the success standards of §B(1) of this regulation apply;

  (4) For areas to be developed for industrial, commercial, or residential use less than 2 years after regrading is complete, the vegetative ground cover may not be less than that required to control erosion;

  (5) For areas classified as undeveloped land for which no specific postmining land use is specified, the success standards of §B(3) of this regulation apply unless another success standard is developed for §B(3)(b) of this regulation in consultation with the Forest, Park and Wildlife Service and approved by the Bureau;

  (6) The period of extended responsibility for successful revegetation shall begin after the last year of augmented seeding, fertilizing, or other work, excluding normal conservation and management practices approved by the Bureau;

  (7) Approved practices shall be normal conservation and management practices within the area for unmined lands having land uses similar to the approved postmining land use of the disturbed area;

  (8) The period of responsibility shall continue for a period of not less than 5 full years, except on lands eligible for remining as provided in §B(9) of this regulation; and

  (9) On lands eligible for remining included in permits issued before September 30, 2004, or on any later date authorized by the federal Surface Mining Control and Reclamation Act, or any renewal thereof, the period of responsibility shall continue for a period of not less than 2 full years.

C. On lands eligible for remining included in any permit, the lands shall equal or exceed the standards for success during the growing season of the last year of the responsibility period in §B(9) of this regulation.

### Chapter 30 — Postmining Land Use

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulation .01 was previously codified as COMAR 08.13.09.36. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.30 to COMAR 26.20.30, June 1996

#### Regulation .01 General.

*COMAR 26.20.30.01*

A. All affected areas shall be restored in a timely manner to:

  (1) Conditions that are capable of supporting the uses which they were capable of supporting before any mining; or

  (2) Equal or better uses achievable under criteria and procedures of this chapter.

B. Pre-Mining Uses.

  (1) The pre-mining uses of land to which the postmining land use is compared shall be those uses which the land previously supported, if the land had not been previously mined and had been properly managed.

  (2) The postmining land use for land that has been previously mined and not reclaimed shall be judged on the basis of the best use that can be achieved and which is compatible with surrounding areas.

  (3) The postmining land use for land that has received improper management shall be judged on the basis of the pre-mining use of surrounding lands.

  (4) If the pre-mining use of the land was changed within 5 years of the beginning of mining, the comparison of postmining use to pre-mining use shall include a comparison with the historic use of the land as well as its use immediately preceding mining.

C. The permit area shall be restored, in a timely manner, either to conditions capable of supporting the uses they were capable of supporting before any mining, or to conditions capable of supporting approved alternative land uses. Alternative land uses may be approved by the Bureau after consultation with the landowner or the land management agency having jurisdiction over the lands or as submitted in the mining plans, if the following criteria are met:

  (1) The proposed postmining land use is compatible with adjacent land use and, where applicable, with existing local, State, or federal land use policies and plans. Any required approval, including any necessary zoning or other changes required for land use by local, State, or federal land management agencies, is obtained and remains valid throughout the surface mining activities.

  (2) Specific plans are prepared and submitted to the Bureau which show the feasibility of the postmining land use as related to projected land use trends and markets and that include a schedule showing how the proposed use will be developed and achieved within a reasonable time after mining and will be sustained. The Bureau may require appropriate demonstrations to show that the planned procedures are feasible, reasonable, and integrated with mining and reclamation, and that the plans will result in successful reclamation.

  (3) There is a reasonable likelihood that any necessary public facilities will be developed.

  (4) Specific and feasible plans are submitted to the Bureau which show that financing, attainment, and maintenance of the postmining land use are feasible and reasonably likely to occur.

  (5) Plans for the postmining land use are designed under the general supervision of a registered professional engineer, or other appropriate professional, who will ensure that the plans conform to applicable accepted standards for adequate land stability, drainage, vegetative cover, and esthetic design appropriate for the postmining use of the site.

  (6) The proposed use will neither present actual or probable hazard to public health or safety nor pose any actual or probable threat of water flow diminution or pollution.

  (7) The use will not involve unreasonable delays in reclamation.

  (8) Necessary approval of measures to prevent or mitigate adverse effects on fish, wildlife, and related environmental values and threatened or endangered plants is obtained from the Bureau. Appropriate State and federal fish and wildlife management agencies have been provided a 60-day period in which to review the plan before surface mining activities begin.

  (9) Proposals to change pre-mining land uses of fish and wildlife habitat, forest land, hay land, or pasture to a postmining cropland use, where the cropland would require continuous maintenance such as seeding, plowing, cultivation, fertilization, or other similar practices to be practicable or to comply with applicable federal, State, and local laws, are reviewed by the Bureau to ensure that:

    (a) There is sufficient water available and committed to maintain crop production; and

    (b) Topsoil quality and depth are sufficient to support the proposed use.

  (10) Grazing and Harvesting. When grazing or harvesting is not the approved postmining land use, but the landowner desires to engage in these activities, a written request and plan must be submitted to the Bureau. The Bureau may approve the request, in consultation with the local soil conservation district, if the permittee agrees, and the Bureau determines that no adverse impact to revegetation success is likely to occur.

### Chapter 31 — Inspection and Enforcement

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.11 were previously codified as COMAR 08.13.09.40A—K, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.31 to COMAR 26.20.31, June 1996

**Administrative History:** Regulation .02 amended effective July 8, 2002 (29:13 Md. R. 993)

#### Regulation .01 General.

*COMAR 26.20.31.01*

A. Failure to comply with the requirements of the Regulatory Program, or any condition of a permit or prospecting approval, may result in both civil and criminal penalties pursuant to Environment Article, §§15-520 and 15-521, Annotated Code of Maryland. Further, an operator may be enjoined by the circuit court in the county where the operation is located to enforce compliance with the Regulatory Program, permit, or prospecting approval. In those cases when an operator persistently or repeatedly fails to comply with the Regulatory Program, permit, or prospecting approval, a permit or approval may be revoked by the Bureau, and all bonds forfeited.

B. In general, sanctions will be imposed upon the person licensed to operate under Environment Article, §15-504, Annotated Code of Maryland, to whom the applicable permit has been issued which is in violation. However, any officer, director, employee, contractor, or agent of a corporation who willfully and knowingly participates in a violation under the Regulatory Program, permit, or prospecting approval may be subject to all penalty provisions.

C. Any actions to be performed by the Bureau may, unless otherwise noted, be performed by any authorized employee of the Bureau.

D. The Bureau may require the operator to establish and maintain any records reasonably required to show that the operation is being conducted in compliance with these regulations and all permit conditions.

#### Regulation .02 Inspections.

*COMAR 26.20.31.02*

A. The Bureau shall conduct an average of one partial inspection per month of each active surface mining and reclamation operation, and shall conduct as many partial inspections of each inactive surface mining and reclamation operation as necessary to ensure effective enforcement of the Regulatory Program. A partial inspection is an on-site or aerial review for compliance with some of the permit conditions and requirements of the Regulatory Program.

B. The Bureau shall conduct an average of at least one complete inspection per calendar quarter of each active or inactive surface mining and reclamation operation. A complete inspection is an on-site review for compliance with all permit conditions and requirements of the Regulatory Program.

C. Prospecting operations shall be periodically inspected for compliance with all conditions and requirements of the Regulatory Program and the prospecting approval.

D. Aerial inspections shall be conducted in a manner which reasonably ensures the identification and documentation of conditions of each surface mining and reclamation operation inspected.

E. A potential violation observed during an aerial inspection shall be investigated on-site within 3 days, except that any indication of a condition, practice, or violation constituting cause for issuance of a cessation order shall be investigated on-site within 1 day. The on-site investigation of a potential violation observed during an aerial inspection is not considered to be an additional partial or complete inspection.

F. Inspections shall be carried out on an irregular basis and without prior notice. Within 2 weeks of the completion of each inspection, a written report shall be filed at the Bureau containing any findings made, and whether any notice of violation or cessation order was issued as a result of the inspection.

G. For the purposes of this regulation, an inactive surface mining and reclamation operation is one for which:

  (1) The Bureau has received from the permittee the written notice provided for under COMAR 26.20.05.03F; or

  (2) Reclamation Phase II as defined in COMAR 26.20.14.08F(2) has been completed.

H. A surface coal mining and reclamation operation is an abandoned site if the Bureau finds in writing that:

  (1) All surface and underground coal mining and reclamation activities at the site have ceased;

  (2) At least one notice of violation has been issued, and the notice:

    (a) Could not be served in accordance with Regulation .08 of this chapter; or

    (b) Was served and has progressed to a failure-to-abate cessation order;

  (3) Action is being taken to ensure that the permittee and operator, and owners and controllers of the permittee and operator, will not receive future permits while the violations continue at the site;

  (4) Action is being taken in accordance with the requirements of the Regulatory Program to ensure that abatement occurs or that the failure-to-abate will not recur, except if after evaluating the circumstances it is concluded that further enforcement offers little or no likelihood of successfully compelling abatement or recovering any reclamation costs; and

  (5) Where the site is, or was, permitted and bonded, the permit has either expired or been revoked, and the Bureau has initiated and is diligently pursuing forfeiture of, or has forfeited, any available performance bond.

I. Instead of the inspection frequency required in §§A and B of this regulation, the Bureau shall inspect each abandoned site on a set frequency commensurate with the public health and safety and environmental considerations present at each specific site. However, the inspection frequency may not be less than one complete inspection per calendar year.

J. The Bureau shall conduct a complete inspection of the abandoned site and provide the public notice required under §K of this regulation in order to select an alternative inspection frequency under §I of this regulation. Following the inspection and public notice, the Bureau shall prepare and maintain for public review a written finding that justifies the selected alternative inspection frequency. The written finding shall justify the new inspection frequency by addressing in detail all of the following criteria:

  (1) How the site meets each of the criteria under the definition of abandoned site under §H of this regulation and thereby qualifies for a reduction in inspection frequency;

  (2) Whether, and to what extent, there exists on the site impoundments, earthen structures, or other conditions that pose, or may reasonably be expected to become, imminent dangers to the health and safety of the public or significant environmental harms to land, air, or water resources;

  (3) The extent to which existing impoundments or earthen structures were constructed and certified in accordance with prudent engineering designs approved in the permit;

  (4) The degree to which erosion and sediment control is present and functioning;

  (5) The extent to which the site is located near or above urbanized areas, communities, occupied dwellings, schools, and other public or commercial buildings and facilities;

  (6) The extent of reclamation completed prior to abandonment and the degree of stability of unreclaimed areas, taking into consideration the physical characteristics of the land mined and the extent of settlement or revegetation that has occurred naturally with them; and

  (7) Based on a review of the complete and partial inspection report record for the site during at least the last 2 consecutive years, the rate at which adverse environmental or public health and safety conditions are expected to progressively deteriorate.

K. Public Notice.

  (1) The Bureau shall place a notice in the newspaper with the broadest circulation in the area of the abandoned site providing the public with a 30-day period to submit written comments concerning the alternative inspection frequency.

  (2) The public notice shall contain the:

    (a) Permittee's name and permit number;

    (b) Precise location of the land affected;

    (c) Inspection frequency proposed;

    (d) General reasons for reducing the inspection frequency;

    (e) Bond status of the permit;

    (f) Telephone number and address of the Bureau where written comments may be submitted; and

    (g) Closing date of the comment period.

#### Regulation .03 Right of Entry.

*COMAR 26.20.31.03*

A. The Bureau may enter on and inspect any strip mining and reclamation operation or prospecting operation to determine compliance with the requirements of the Regulatory Program, or condition of a permit or prospecting approval. The entry and inspection may occur at reasonable times and upon presentation of appropriate credentials. A search warrant is not required, except when entry into a building is a necessary aspect of the inspection.

B. The Bureau shall be permitted access to any records related to any activities conducted pursuant to the Regulatory Program, permit or prospecting approval, and shall have the right to inspect and copy these records.

#### Regulation .04 Availability of Enforcement Records.

*COMAR 26.20.31.04*

A. Unless expressly noted in this regulation, all information related to the enforcement of the Regulatory Program and conditions of permits and prospecting approvals shall be open to inspection by the general public for at least 5 years after expiration of the period during which a surface mining and reclamation operation is active or is covered by any portion of a performance bond required by COMAR 26.20.14.

B. Records shall be accessible at the office of the Bureau during normal working hours. The Bureau shall have the right to refuse access when not requested at least 24 hours in advance, provided that, at the time of refusal, a substitute appointment is arranged for the immediate future. Records may not be removed from the office of the Bureau. Copying shall be permitted at fees to be determined by the Bureau.

#### Regulation .05 Public Participation.

*COMAR 26.20.31.05*

A. Any person may request that the Bureau inspect any strip mining and reclamation operation or prospecting operation by furnishing a signed written statement which shows reason to believe that a violation of the Regulatory Program, permit condition, or prospecting approval is occurring. The statement shall contain the phone number and address where the person can be reached during normal business hours.

B. If the Bureau determines that the information supplied provides reason to believe that a violation is occurring, the Bureau shall conduct an inspection. Before conducting the inspection, the Bureau shall notify the complainant of the complainant's right to be present during the inspection. Any person who accompanies an inspector under this regulation shall agree, in writing, to at all times remain in the presence of the inspector and under his control, direction, and supervision while on the permit site.

C. Regardless of whether the person accompanies the inspector, he or she shall be provided, within 10 days of the inspection, a written description of the enforcement action taken (which may include copies of the inspection report and any notices or orders issued). Likewise, if the Bureau determines not to inspect the permit area, the person shall be provided, within 15 days of receipt of his statement under §A of this regulation, a written explanation of the reason no inspection was conducted. The Bureau shall also inform the person of the person's right to review of the Bureau's action or inaction in regard to the complaint filed. Copies of all material shall be provided to the person alleged to be in violation of the Regulatory Program, permit condition, or prospecting approval, except that the name of the requestor shall be kept confidential if this protection was obtained under §D of this regulation and has been maintained.

D. If requested in the original signed statement required in §A of this regulation, and if the person elects not to accompany the inspector under §B of this regulation, the identity of the person supplying information to the Bureau shall be kept confidential to the extent permitted under Maryland law.

E. If, as the result of an inspection requested under §A of this regulation, the Bureau issues a notice or order to the operator, the requestor shall be permitted to participate in any enforcement proceedings or appeals in the same manner as if the requestor were a person “adversely affected” by the violation.

F. A person who is or may be adversely affected by a surface mining and reclamation operation or prospecting operation may notify the Director, in writing, of any alleged failure on the part of the Bureau to make adequate and complete or periodic inspections of the operation. The notification shall include sufficient information to create a reasonable belief that regulations pertaining to inspections are not being complied with, and to demonstrate that the person is or may be adversely affected. The Director shall determine within 15 days of receipt of the notification whether adequate and complete or periodic inspections have been made. The Director shall notify the complainant, in writing, of the reasons for the determination and the actions, if any, taken to remedy the noncompliance.

G. In those instances where an authorized representative of the Director of the Bureau decides not to inspect an operation or fails to issue a notice or order as a result of an inspection requested under §A of this regulation, the requestor may seek informal review by the Director. The request for review shall be in writing, include a statement of how the person is or may be adversely affected by the alleged violation, and state why the decision merits review. The Director shall conduct a review and inform the person of the Director's decision in writing within 30 days of receipt of the request. The operator shall also be sent a copy of the Director's decision, except that the name of the requestor shall be kept confidential if this protection was initially obtained under §D of this regulation and has been maintained. Any person adversely affected by the Director's decision may obtain an adjudicatory hearing under COMAR 26.20.34, and shall bear the burden of proof as to existence of the alleged violation at the permit site.

#### Regulation .06 Notices of Violation.

*COMAR 26.20.31.06*

A. The Bureau shall issue a notice of violation, whenever an operation is found to be in violation of the Regulatory Program or any condition of a permit or a prospecting approval, and the violation is not of a nature to require the issuance of a cessation order.

B. A notice of violation shall be in writing, signed by the authorized representative who issues it, and shall set forth:

  (1) The nature of the violation;

  (2) A description of its location on the surface coal mining and reclamation or prospecting operation; and

  (3) An order stating the remedial measures to be accomplished and establishing a reasonable time for abatement, which may include a time for accomplishment of interim steps.

C. The Bureau may extend the time set for abatement or for the accomplishment of an interim step. The total time for abatement, including all extensions, may not exceed 90 days from the date of issuance, except upon request and a showing by the permittee that it is not feasible to abate the violation within 90 calendar days due to one or more of the circumstances in §D of this regulation. An extended abatement time may not be granted when the permittee's failure to abate within 90 days has been caused by a lack of diligence or intentional delay by the permittee in completing the remedial measures.

D. Circumstances which may qualify a surface coal mining operation for an abatement period of more than 90 days are when:

  (1) The permittee of an ongoing permitted operation has timely applied for and diligently pursued a permit renewal, or other necessary approval of designs or plans, but the permit or approval has not been or will not be issued within 90 days after a valid permit expires or is required, for reasons not within the control of the permittee;

  (2) There is a valid judicial order precluding abatement within 90 days as to which the permittee has diligently pursued all rights of appeal and as to which there is no other effective legal remedy;

  (3) The permittee cannot abate within 90 days due to a labor strike;

  (4) Climatic conditions preclude abatement within 90 days, or if, due to climatic conditions, abatement within 90 days would clearly cause more environmental harm than it would prevent; or

  (5) Abatement within 90 days requires action that would violate established mine safety standards under Maryland law or the Mine Safety and Health Act of 1977, or regulations under those statutes.

E. Whenever an abatement time in excess of 90 days is granted, interim abatement measures shall be imposed to the extent necessary to minimize harm to the public or the environment.

F. Extension.

  (1) If any of the conditions in §D of this regulation exists, the permittee may request the Bureau to grant an abatement period exceeding 90 days.

  (2) The Bureau may not grant an extension to the abatement period without the approval of the Director, and the abatement period granted may not exceed the shortest possible time necessary to abate the violation.

  (3) The permittee shall have the burden of establishing clear and convincing proof, in writing, that he is entitled to an extension under §D of this regulation.

  (4) The Director shall document the reasons for granting or denying the request.

  (5) The Director's written decision shall contain the right to appeal in accordance with this chapter.

G. An extension granted under § F of this regulation may not exceed 90 days in length. If the condition or circumstance still exists at the expiration of any extension, the permittee may request a further extension in accordance with this chapter.

H. The Bureau may modify or vacate a notice of violation for good cause.

I. The Bureau shall terminate a notice of violation, in writing, when it determines that all violations listed in the notice of violation have been abated. Termination does not affect the right of the Bureau to assess a civil penalty for the violations.

#### Regulation .07 Cessation Orders.

*COMAR 26.20.31.07*

A. The Bureau shall issue a cessation order whenever it is determined that an operation is not in compliance with the requirements of the Regulatory Program, the permit, or the prospecting approval, and that the noncompliance:

  (1) Involves mining operations being conducted without a permit or license, outside of a permit area, or in excess of an established open acre limit;

  (2) Creates an imminent danger to the health or safety of the public; or

  (3) Is causing or can reasonably be expected to cause significant, imminent environmental harm.

B. The Bureau shall issue a cessation order whenever an operator has failed to meet the time set for abatement or for the accomplishment of an interim step specified in a notice of violation.

C. The Bureau may issue a cessation order whenever it is determined that an operation is in violation of the Regulatory Program, the permit, or other prospecting approval, and that the violation involves discharges to the waters of the State in violation of applicable effluent limitations, or when continued operation in the area of the violation would contribute to an additional or more serious violation. The Bureau may also issue a cessation order for repeated violations of the Regulatory Program or permit condition in conjunction with issuance of a show cause order leading to possible revocation of the permit under COMAR 26.20.33.

D. A cessation order shall be in writing, signed by the authorized representative who issues it, and shall set forth:

  (1) The nature of the violation;

  (2) A description of its location on the prospecting or surface coal mining and reclamation operation;

  (3) An order stating the remedial measures to be accomplished and establishing a time for abatement, which may include a time for accomplishment of any interim steps; and

  (4) A description of the portion of the operation to which the cessation order applies.

E. Upon issuance of a cessation order, the operator shall immediately cease and desist all prospecting or strip mining operations within the entire area or the portion specified in the order, and shall devote full attention to abatement of the violation or violations and achieving compliance with the order as expeditiously as possible, provided that reclamation and water treatment operations shall continue during the period of the cessation order.

F. If full compliance with a cessation order will not completely abate an imminent danger or harm in the most expeditious manner physically possible, the Bureau shall impose affirmative obligations on the operator to abate the violation, including use of existing or additional personnel or equipment.

G. A cessation order shall remain in effect until the violation has been abated and until the order has been vacated, modified, or terminated in writing by the Bureau.

H. The Bureau may modify, terminate, or vacate a cessation order for good cause, and may extend the time for abatement when the operator is diligently attempting to comply.

I. The Bureau shall terminate a cessation order in writing when it determines that all violations listed in the order have been abated and that the operation is in compliance with the Regulatory Program, and conditions of the permit or prospecting approval. Termination of the order does not affect the right of the Bureau to assess a civil penalty for the violation or violations.

J. Within 60 days after issuance of a cessation order under §§A(2) and (3) and B of this regulation, the Bureau shall notify in writing any person who has been identified under COMAR 26.20.05.03I and 26.20.02.03D and E as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or controller.

#### Regulation .08 Service of Notices and Orders.

*COMAR 26.20.31.08*

In most instances, notices of violation and cessation orders will be issued by a Bureau inspector immediately upon discovery of conditions warranting the action. The inspector will first attempt to serve the operator at the site of the violation. If the operator is not available, the inspector may serve any individual at the site who appears to be an employee or agent of the permit holder or operator. In all cases, service shall be complete upon tender of a notice or order, and is not deemed incomplete because of refusal to accept delivery. Service may also be effected by mailing a copy of the notice or order in writing, and by certified mail, to the last address the permittee has filed with the Bureau. Service on a person conducting an unpermitted operation may also be effected by certified mail. Service in this manner is complete upon mailing, and not considered incomplete because of refusal to accept delivery.

#### Regulation .09 Informal Review.

*COMAR 26.20.31.09*

A. Within 10 days of issuance of any notice of violation or cessation order, an operator may request an enforcement conference at the mine site or the Bureau to review the grounds of the notice or order. The conference shall be informal in nature, and presided over by the Director of the Bureau or the Director's designee. The conference shall be held within 30 days of receipt of request.

B. The purpose of an enforcement conference is to determine whether any question exists regarding the violation cited by the Bureau as underlying the notice or order. The operator should be prepared to discuss the situation at the mine site, and present any evidence indicating that the Bureau should exercise its authority to modify, terminate, or vacate the notice or order.

C. If a notice or order requires cessation of mining, the Bureau shall hold an enforcement conference within 30 days of the issuance of the notice or order. However, the conference need not be held if waived by the operator or if the violation is abated within this time.

D. If a notice or order requires cessation of mining, the Bureau shall notify the operator, in writing, that an enforcement conference will be held within 30 days of the service of the notice or order. The notice shall:

  (1) Be delivered to the operator at the time the notice or order is served, or sent by certified mail to the operator not later than 5 days after the notice or order is served;

  (2) Inform the operator that the enforcement conference shall be considered to have been waived unless the Bureau is notified that the operator will attend the conference within 30 days after the service of the notice or order; and

  (3) Inform the operator that an extension of time for holding the conference shall be considered to have been consented to if the notification under §D(2) of this regulation is received by the Bureau on or after 21 days after the service of the notice or order.

E. The extension of time consented to under §D(3) of this regulation shall equal the number of days elapsed after 21 days after service of the notice or order.

F. The Bureau shall give as much advance notice as is practicable of the time, place, and subject matter of the enforcement conference to the operator and any person who filed a report which led to the notice or order being reviewed.

G. The Bureau shall post notice of the enforcement conference at the office of the Bureau, and publish it, when practicable, in a newspaper of general circulation in the area of the mine.

H. The Bureau shall notify the operator and any person who filed a report which led to the notice or order, in writing, of its decision to affirm, modify, or vacate the notice or order within 5 days from the conclusion of any enforcement conference.

I. The granting or waiver of an enforcement conference does not affect the right of any person to formal review in accordance with this chapter.

J. The person conducting the conference shall determine whether the mine site should be viewed during the conference. In making this determination, the only consideration is whether a view of the mine site will assist in reviewing the appropriateness of the enforcement action or of the required remedial action.

#### Regulation .10 Formal Review.

*COMAR 26.20.31.10*

A. Within 30 days of issuance of any notice of violation or cessation order, or within 10 days from receipt of the Bureau's decision after an enforcement conference, whichever is later, an operator may request a hearing by the Department to review the notice or order. Formal review may also be requested by any person having an interest which is or may be adversely affected by a notice of violation or cessation order, or by any modification, vacation, or termination of any notice or order, provided that the request shall be submitted within 30 days of the action. All requests shall be submitted to the Bureau, in writing and signed by the requestor, and shall contain:

  (1) The full name and address of the person requesting the hearing and a telephone number where he can be reached during normal business hours;

  (2) The name, address, and telephone number of any attorney representing the requestor, or a statement that he intends to represent himself;

  (3) A detailed description of the grounds for the request, including the interests of the requestor which are or may be adversely affected by the decision of the Bureau;

  (4) A statement of the specific relief desired;

  (5) A general outline of the evidence to be presented in support of the desired relief at the hearing, including the names and addresses of all witnesses expected to be called by the requestor.

B. Formal review hearings shall be conducted in accordance with COMAR 26.20.34. The Bureau shall have the burden of proof as to the validity of the notice or order, or modification, termination, or vacation of it.

C. The filing of a hearing request does not operate as a stay of any notice or order, or other action for which review is requested. The requestor for a hearing may file with the hearing officer a written request that the hearing officer grant temporary relief from any notice or order, together with a detailed statement of the reasons for granting the relief. The hearing officer shall issue a decision granting or denying the temporary relief as expeditiously as possible. The hearing officer may grant temporary relief, under those conditions considered appropriate, pending final determination of the proceeding, if:

  (1) All parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief;

  (2) The person requesting temporary relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceeding;

  (3) The relief will not adversely affect the public health or safety, or cause significant imminent environmental harm to land, air, or water resources; and

  (4) The relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the Bureau.

D. Inability to comply with a notice or order is not grounds for vacation or termination.

#### Regulation .11 Intervention.

*COMAR 26.20.31.11*

A. Any person, including the Secretary of the United States Department of Interior, may petition for leave to intervene at any stage of an administrative proceeding under this subtitle.

B. A petitioner for leave to intervene shall incorporate in the petition a statement setting forth the interest of the petitioner and a showing of why the petitioner's interest is or may be adversely affected.

C. Intervention shall be granted if the petitioner:

  (1) Had a statutory right to initiate the proceeding in which the petitioner wishes to intervene; or

  (2) Has an interest which is or may be adversely affected by the outcome of the proceeding.

D. If neither §C(1) nor (2) of this regulation applies, the following shall be considered in determining whether intervention is appropriate:

  (1) The nature of the issues;

  (2) The adequacy of representation of petitioner's interest which is provided by the existing parties to the proceeding;

  (3) The ability of the petitioner to present relevant evidence and argument; and

  (4) The effect of intervention on the Department's implementation of its statutory mandate.

E. Any person granted leave to intervene in a proceeding may participate in this proceeding as a full party or, if desired, in a capacity less than that of a full party. If the intervenor wishes to participate in a limited capacity, the extent and terms of the participation shall be in the discretion of the Department.

### Chapter 32 — Civil Penalties

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 were previously codified as COMAR 08.13.09.41A—G, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.32 to COMAR 26.20.32, June 1996

#### Regulation .01 General.

*COMAR 26.20.32.01*

A. The Bureau may assess civil penalties upon the issuance of any notice of violation or cessation order, regardless of a person's subsequent efforts to comply with the requirements of the Regulatory Program.

B. Civil penalties may be as much as $5,000 for each violation of the Regulatory Program. Each day of continuing violation may be deemed a separate violation for purposes of penalty assessments.

C. Civil penalties shall be assessed whenever the Bureau issues a cessation order for a violation that creates an imminent danger to the health and safety of the public, or is causing or can reasonably be expected to cause significant, imminent environmental harm.

D. If a person fails to correct a violation within the time specified in either a notice of violation or cessation order, the Bureau shall assess a civil penalty of not less than $750 for each day up to 30 days beyond the compliance deadline during which the violation continues, and may assess this penalty beyond that time for continued noncompliance. However, in all cases the daily penalty may not begin until the Bureau conducts a reinspection of the permit and informs the person that compliance has not been achieved.

E. Whenever the $750 per day penalty of §D of this regulation is not assessed beyond 30 days, the Bureau shall take appropriate action pursuant to the Regulatory Program, within 30 days, to ensure that abatement occurs or to ensure that there will not be a recurrence of the failure to abate.

F. A civil penalty may not be assessed without providing an opportunity for a hearing. If the person charged with the violation fails to request a hearing, the Bureau shall assess a civil penalty only after determining, in writing, that a violation did occur.

#### Regulation .02 Procedure.

*COMAR 26.20.32.02*

A. If the requirements of a notice of violation or cessation order are expected to be satisfied within 30 days of issuance, the Bureau will await the conclusion of the matter before instituting civil penalty procedures. If satisfactory compliance has not been achieved by that time the Bureau, in its discretion, may wait a further period, or assess a penalty for the first 30 days only, reserving the ability to impose further assessments until compliance is achieved.

B. Civil penalty assessments shall be initiated by sending a Notice of Proposed Assessment, in writing and by certified mail, to the operator. The notice shall contain:

  (1) A description of the violation for which the penalty is being assessed, including reference to any related notice of violation or cessation order;

  (2) The amount of penalty proposed to be assessed;

  (3) The time period covered by the assessment;

  (4) A statement of the appeal procedures under this chapter; and

  (5) A work sheet showing the computation of the proposed assessment.

C. Service of the Notice of Proposed Assessment is complete upon mailing in accordance with COMAR 26.20.31.08.

D. Failure by the Bureau to serve any proposed assessment within 30 days of the issuance of a notice of violation or cessation order is not grounds for dismissal of all or part of the assessment unless the person against whom the proposed penalty has been assessed:

  (1) Proves actual prejudice as a result of the delay; and

  (2) Makes a timely objection to the delay.

E. An objection under §D(2) of this regulation is timely only if made in the normal course of administrative review.

#### Regulation .03 Informal Review.

*COMAR 26.20.32.03*

A. Within 30 days of the date a Notice of Proposed Assessment is served, the person against whom the penalty has been assessed may request an assessment conference at the Bureau regarding the amount of penalty.

B. An assessment conference shall be informal in nature, and presided over by the Director of the Bureau or the Director's designee. The purpose of the conference is to discuss the amount of penalty only.

C. The assessment conference shall be held within 60 days from the date of issuance of the Notice of Proposed Assessment, or the end of the abatement period, whichever is later. Failure by the Bureau to hold the conference within this time period is not grounds for dismissal of all or part of the proposed assessment unless the person against whom the proposed penalty has been assessed proves actual prejudice as a result of the delay.

D. The Bureau shall post notice at the Bureau of the date and time of the assessment conference at least 5 days before the conference. Any person has the right to attend and participate in the conference.

E. An assessment conference may result in an increase or decrease in the amount of penalty.

F. If possible, a settlement agreement can be entered at the conference, under which the operator shall waive all further rights of appeal except as stated in the agreement. If an operator fails to make full payment of any settlement amount within 30 days after the date of signing, the Bureau may enforce the agreement, or rescind it and proceed with final assessment within 30 days from the date of rescission.

G. Within 30 days of the conclusion of an assessment conference, or, in the absence of a request for a conference, within 30 days after the violation is abated, the Bureau shall send a Notice of Final Assessment in writing and by certified mail. The notice shall contain the:

  (1) Basis for the Bureau's determination that a violation has occurred;

  (2) Amount of penalty assessed, or as stipulated in a settlement agreement and a work sheet if the penalty is raised or lowered.

H. Service of the Notice of Final Assessment is complete upon mailing in accordance with COMAR 26.20.31.08.

#### Regulation .04 Formal Review.

*COMAR 26.20.32.04*

A. The person against whom the final penalty has been assessed may request formal review of the final assessment by submitting a petition and an amount equal to the final assessment to the Bureau within 30 days from receipt of the Notice of Final Assessment. The formal review hearing shall be conducted in accordance with COMAR 26.20.34. If the person has requested formal review of the underlying violation under COMAR 26.20.31.09, and the fact of the violation has not been adjudicated, formal review of the final assessment may be combined with formal review of the violation.

B. The fact of the violation may not be contested if the person has not requested a hearing to review the notice of violation or cessation order in accordance with COMAR 26.20.31.09, or if the fact of the violation has been decided in a review proceeding under COMAR 26.20.31.

C. At the conclusion of an adjudicatory hearing on an assessment, the hearing officer may increase or decrease the amount set by the Bureau's Notice of Final Assessment.

#### Regulation .05 Penalty Assessment Criteria.

*COMAR 26.20.32.05*

A. In determining the amount of penalty to be assessed for a violation of the Regulatory Program, the Bureau shall compute a separate figure from each of the following categories:

  (1) History of previous violations at the same permit site;

  (2) Seriousness of the violation;

  (3) Negligence or willfulness of the violation;

  (4) Effect of the violation; and

  (5) Good faith in attempting to achieve compliance.

B. In determining the amount of the penalty to be assessed under §A(1) of this regulation, the Bureau shall consider violations regardless of whether they resulted in civil penalty assessments. Cessation orders shall constitute a more serious history than notices of violation. A violation may not be considered if it was subsequently vacated or is still being contested or appealed. The maximum amount to be assessed for this category is $2,000.

C. In determining the amount of the penalty to be assessed under §A(2) of this regulation, the Bureau shall consider the probability of occurrence of the violation and the extent of actual or potential damage to the environment or general public health and safety. If the violation relates to an administrative requirement, such as record keeping, seriousness shall be judged on the extent to which the violation obstructs enforcement under the Regulatory Program. The maximum amount to be assessed for this category is $1,000.

D. In determining the amount of the penalty to be assessed under §A(3) of this regulation, the Bureau shall evaluate the degree of fault of the person contributing to a violation, such as whether the exercise of reasonable care would have avoided the violation, or whether the person acted intentionally or with reckless disregard of the requirements of the Regulatory Program. The maximum amount to be assessed for this category is $1,500.

E. In determining the amount of the penalty to be assessed under §A(4) of this regulation, the Bureau shall evaluate the effect of the violation on the probability for eventual success of reclamation on the permit site in accordance with the requirements of the Regulatory Program. The maximum amount to be assessed for this category is $500.

F. The Bureau shall reduce the amount of the civil penalty under §A(5) of this regulation if the person contributing to a violation takes extraordinary measures to correct a violation in the shortest possible time and achieves compliance before the deadline set in the notice of violation or cessation order. The maximum reduction of the civil penalty for this category is $1,000.

G. The Bureau shall identify, in a Notice of Proposed Assessment, the amount calculated for each of the categories in §A of this regulation.

#### Regulation .06 Payment of Penalty Amount.

*COMAR 26.20.32.06*

A. In all cases, civil penalty assessments shall be paid within 30 days of receipt of a Notice of Final Assessment. Failure to forward the full amount within this time shall result in a loss of any right to contest or otherwise appeal the penalty amount, or the violation on which the assessment is based.

B. The Bureau shall place all penalty payments in escrow pending expiration of appeal deadlines or final resolution of any challenge to the violation or penalty amount.

C. If the final decision upon appeal results in elimination or reduction of a penalty, the Bureau shall refund the amount within 30 days, with interest from the date of payment into escrow to the date of refund at the rate of 6 percent.

D. If the final decision upon appeal results in an increase in a penalty, the person shall forward the full amount to the Bureau within 15 days of the decision.

#### Regulation .07 Individual Civil Penalties.

*COMAR 26.20.32.07*

A. Definitions. For the purpose of this regulation, the following terms have the meanings indicated:

  (1) “Knowingly” means that an individual knew or had reason to know in authorizing, ordering, or carrying out an act or omission on the part of a corporate permittee that the act or omission constituted a violation, failure, or refusal;

  (2) “Violation, failure, or refusal” means a:

    (a) Violation of a condition of a permit issued pursuant to the Regulatory Program, or

    (b) Failure or refusal to comply with any order issued under the Regulatory Program or any order incorporated in a final decision issued by the Department, except an order to pay a civil penalty issued in accordance with this chapter or in accordance with Environment Article, §15-521, Annotated Code of Maryland;

  (3) “Willfully” means that an individual acted either intentionally, voluntarily, or consciously, and with intentional disregard or plain indifference to legal requirements in authorizing, ordering, or carrying out a corporate permittee's action or omission that constituted a violation, failure, or refusal.

B. Except as provided in §C of this regulation, the Department may assess an individual civil penalty against any corporate director, officer, or agent of a corporate permittee who knowingly and willfully authorized, ordered, or carried out a violation, failure, or refusal.

C. The Department may not assess an individual civil penalty in situations resulting from a permit violation by a corporate permittee until a cessation order has been issued by the Department to the corporate permittee for the violation, and the cessation order has remained unabated for 30 days.

D. In determining the amount of an individual civil penalty assessed under this regulation, the Department shall consider the following criteria:

  (1) The individual's history of authorizing, ordering, or carrying out previous violations, failures, or refusals at the particular surface coal mining site;

  (2) The seriousness of the violation, failure, or refusal, as indicated by the extent of the damage and the cost of reclamation, including any irreparable harm to the environment and any hazard to the health and safety of the public; and

  (3) The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure, or refusal.

E. The penalty may not exceed $5,000 for each violation. Each day of a continuing violation may be considered a separate violation and the Department may assess a separate individual civil penalty for each day the violation, failure, or refusal continues, from the date of service of the underlying notice of violation, cessation order, or other order incorporated in a final decision issued by the Department, until abatement or compliance is achieved.

F. The Department shall serve on each individual to be assessed an individual civil penalty, a notice of proposed individual civil penalty assessment, including a narrative explanation of the reasons for the penalty, the amount to be assessed, and a copy of any underlying notice of violation and cessation order.

G. The notice of proposed individual civil penalty assessment shall become a final order of the Department 30 days after service upon the individual, unless the:

  (1) Individual files a petition for review with the Department within 30 days of service of the notice of individual civil penalty assessment; or

  (2) Department and the individual or responsible corporate permittee agree within 30 days of service of the notice of proposed individual civil penalty assessment to a schedule or plan for the abatement or correction of the violation, failure, or refusal.

H. Service of the notice of proposed individual civil penalty assessment is complete upon mailing in accordance with COMAR 26.20.31.08.

I. If a notice of proposed individual civil penalty assessment becomes a final order in the absence of a petition for review or abatement agreement, the penalty is due upon issuance of the final order.

J. If an individual named in the notice of proposed individual civil penalty assessment files a petition for review with the Department, the penalty is due upon issuance of a final administrative order affirming, increasing, or decreasing the proposed penalty.

K. When the Department and the corporate permittee or individual have agreed in writing on a plan for compliance with the unabated order, an individual named in the notice of proposed individual civil penalty assessment may postpone payment until receiving either a final order from the Department stating that the penalty is due on the date of the final order, or written notice that abatement or compliance is satisfactory and the penalty has been withdrawn.

L. Following the expiration of 30 days after the issuance of a final order assessing an individual civil penalty, any delinquent penalty is subject to interest at the rate of 6 percent per annum. Interest on unpaid penalties runs from the date payment first was due until the date of payment. The civil penalty is payable to the State and is collectable in any manner provided at law for the collection of debts.

### Chapter 33 — Permit Suspension, Revocation, and Bond Forfeiture

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 were previously codified as COMAR 08.13.09.42A—G, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.33 to COMAR 26.20.33, June 1996

#### Regulation .01 General.

*COMAR 26.20.33.01*

A. Any permit issued under the Regulatory Program may be revoked upon a determination by the Bureau that a permittee has persistently or repeatedly failed to comply with the requirements of the Regulatory Program, or has failed to produce coal or remove overburden on the permit site for a period in excess of 6 months.

B. If the Director determines that a permittee has persistently or repeatedly failed to comply with any requirements of the Regulatory Program, or that the permittee has not produced coal or removed overburden on the permit site for more than 6 months, the Director shall issue an order which requires the permittee to show cause why the permit should not be revoked and the bonds forfeited, and shall give the permittee 30 days in which to request an adjudicatory hearing.

C. Violations by a person conducting surface coal mining and reclamation operations on behalf of the permittee shall be attributed to the permittee unless the permittee proves that they were acts of deliberate sabotage.

#### Regulation .02 Persistent Failure to Comply.

*COMAR 26.20.33.02*

A. The Director may determine that a permittee has persistently failed to comply with the requirements of the Regulatory Program if, on two or more occasions within a 12-month period, a permittee has failed to meet the requirements of a:

  (1) Notice of violation within the time limit set forth in the NOVO;

  (2) Cessation order within the time limit set forth in the order.

B. In making a determination under §A of this regulation, the Director may consider mitigating circumstances, including the severity of departure of a violation from the requirements of the Regulatory Program.

C. The Director shall determine that a permittee has persistently failed to comply with the requirements of the Regulatory Program if, within a 12-month period, a permittee has failed to meet the requirements of a cessation order issued under COMAR 26.20.31.07B within 30 days from the date the cessation order was issued.

#### Regulation .03 Repeated Failure to Comply.

*COMAR 26.20.33.03*

A. The Director may review the history of violations of a permittee who, within a 12-month period, has been issued on:

  (1) Two or more occasions violation of the same or related requirements of the Regulatory Program;

  (2) Three or more occasions for violations of different requirements of the Regulatory Program.

B. The Director shall review the history of violations of a permittee who, within a 12-month period, has been issued on three or more occasions:

  (1) Violations for the same or related requirements of the Regulatory Program;

  (2) Cessation orders under COMAR 26.20.31.07B, regardless of whether the permittee abated the violation within 30 days.

C. After the review in §§A and B of this regulation, the Director shall determine whether a permittee has repeatedly failed to comply with the requirements of the Regulatory Program.

#### Regulation .04 Show Cause Order and Hearing.

*COMAR 26.20.33.04*

A. If, after a review of the history of any permit, the Director determines that a persistent or repeated failure to comply under Regulation .02 or .03 of this chapter exists or has existed, or that the permittee has not produced coal or removed overburden on the permit site for more than 6 months, the Director shall issue a show cause order as required by Regulation .01B of this chapter.

B. The Director may decline to issue a show cause order if he finds that, taking into account exceptional factors present in the particular case, it would be demonstrably unjust to issue the order. The basis for this finding shall be documented, in writing, and may include a determination that the violations were not the result of willful or unwarranted failure to comply on the part of the permittee.

C. A show cause order issued by the Director shall be in writing and sent by certified mail to the permittee. The order shall contain a:

  (1) Detailed description of the basis for the Bureau's determination that the permittee has persistently or repeatedly failed to comply with the requirements of the Regulatory Program, or has failed to produce coal or remove overburden on the permit site for a period in excess of 6 months;

  (2) Statement that the permittee has 30 days from receipt of the order to request an adjudicatory hearing;

  (3) Statement that unless the permittee requests an adjudicatory hearing to show cause why the permit should not be revoked and the bonds forfeited, the Bureau will immediately, upon expiration of the 30-day period, revoke the permit and forfeit the bonds covering the permit area;

  (4) Statement that the permittee may be represented by an attorney;

  (5) Statement that permit revocation and bond forfeiture will result in denial of future Maryland operator licenses to anyone involved in the failure to comply with the Regulatory Program.

D. If the permittee requests a hearing, the Bureau shall give 30 days written notice of the date, time, and place of the hearing to the permittee and all interested parties. If practicable, the Bureau shall publish notice of the hearing in a newspaper of general circulation in the area of the permit and shall post the notice at the Bureau's office.

E. Show cause hearings to revoke a permit and forfeit the bonds shall be held in accordance with COMAR 26.20.34. The Bureau shall have the burden of going forward to establish a prima facie case for revocation of a permit and forfeiture of the bonds. The ultimate burden of persuasion that a permit should not be revoked and the bonds should not be forfeited shall rest with the permittee. The show cause order shall be made part of the hearing record, provided that the Bureau makes available a witness, subject to cross-examination on the reasons contained in the order for initiating revocation and bond forfeiture proceedings.

F. The existence of a show cause proceeding does not relieve the permittee from the permittee's responsibilities under the permit and the Regulatory Program. Failure to abate any continuing violation, or to manage the site properly, may subject the permittee to civil penalties and will be a significant factor in any decision to seek further prosecution.

#### Regulation .05 Suspension.

*COMAR 26.20.33.05*

A. If, at any time before a final decision in a permit revocation and bond forfeiture proceeding, the permittee demonstrates that the permittee is making good faith efforts to bring the operation into compliance and submits a schedule acceptable to the Bureau for bringing the operation into complete compliance, the parties may request the hearing officer to order the temporary suspension of the permit, instead of revocation and forfeiture.

B. Suspension of a permit shall be accepted by the permittee in a written agreement in which the permittee stipulates to:

  (1) The facts and circumstances which led to the show cause order;

  (2) The present conditions at the permit site;

  (3) A specific reclamation or compliance schedule;

  (4) The submission of periodic reports, or other conditions required by the Bureau, to ensure the operation is brought into compliance;

  (5) The payment of any civil penalties assessed against the permittee within 30 days of the execution of the agreement; and

  (6) The immediate revocation of the permit and forfeiture of the bonds by the Director, without further adjudication, if the permittee fails to comply with the schedule.

C. Suspensions may be lifted by the Director, in writing, based upon a finding that the operation has been returned to compliance with all requirements of the Regulatory Program. Lifting of suspension will result in reactivation of the permit.

D. If the permittee fails to comply with any reclamation or compliance schedule set forth in a stipulation agreement, the Director shall immediately notify the permittee, in writing, and by certified mail, that the permit is revoked and the bonds or other collateral covering the permit are forfeited.

#### Regulation .06 Revocation and Forfeiture.

*COMAR 26.20.33.06*

A. If the right of appeal is not exercised within the appeal deadline, or if the final decision upon appeal is to revoke the permit and forfeit the bond, the Director shall, in writing, and by certified mail, notify the former permittee and the surety, if applicable, that all bonds are forfeited and shall make claim for payment. The notice and claim shall advise that payment may be avoided if the former permittee or another person with a financial interest in the permit begins reclamation activities and continuously reclaims the site in accordance with a compliance schedule which meets the conditions of the Regulatory Program.

B. Completion of reclamation work by a third party, instead of forfeiture, does not entitle that party to receipt of any collateral held by the Bureau. In all instances, the Bureau shall return collateral to the former permit holder in the same manner as if the permit had not been revoked, and may not become involved in private arrangements between the former permit holder and a third party.

C. In all cases, the total bond amount or other collateral held on a permit shall be forfeited, regardless of the actual amount of reclamation work required at the site. The Director shall pay all forfeited bond funds into the Bituminous Coal Open-Pit Mining Reclamation Fund.

#### Regulation .07 Service of Show Cause Orders and Notices.

*COMAR 26.20.33.07*

A. Show cause orders and any notices required by this chapter shall be served on the permittee at the address shown on the permit, or on the operator's license.

B. Service shall be made by sending a copy of the order or notice by certified mail. Service shall be complete upon mailing and may not be deemed incomplete because of refusal to accept.

### Chapter 34 — General Provisions on Adjudicatory Hearings

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.04, .05, and .06—.10 were previously codified as COMAR 08.13.09.43A—D, E—J, and K—O, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.34 to COMAR 26.20.34, June 1996

**Administrative History:** Regulation .06G amended effective December 27, 1999 (26:26 Md. R. 1961)

**Administrative History:** Regulation .09G amended effective December 27, 1999 (26:26 Md. R. 1961)

#### Regulation .01 Scope.

*COMAR 26.20.34.01*

Whenever the right to request an adjudicatory hearing is provided by the Regulatory Program, the conduct of any resulting adjudicatory hearing is governed by this chapter, any specific requirements contained in the chapter authorizing an adjudicatory hearing, and the Maryland Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

#### Regulation .02 Initial Review of Request for Adjudicatory Hearing.

*COMAR 26.20.34.02*

A. The Director shall review a request for an adjudicatory hearing and shall consider the following criteria in reaching a decision to grant or deny an adjudicatory hearing:

  (1) Whether the request was timely made;

  (2) Whether the request contains all the required information;

  (3) Whether the request raises issues within the scope of the statutory authority of the Bureau;

  (4) Whether the issues presented in the request are relevant and material; and

  (5) Whether the request demonstrates that the requestor has a right, duty, interest, statutory entitlement, or privilege which is or may be adversely affected.

B. If the request for an adjudicatory hearing contains insufficient information for the Director to reach a decision, the Director shall notify the requestor, in writing and by certified mail, of the information that shall be submitted. The Director's notification shall require the requestor to submit the information, in writing, within 10 days of the receipt of the notification by the requestor.

C. The Director shall notify the requestor, in writing and by certified mail, of a decision to grant or deny an adjudicatory hearing.

D. If the Director denies the request for an adjudicatory hearing, the notice required by this regulation shall inform the requestor that for any hearing request filed after December 28, 1989, the requestor has the right to request a review of the denial by filing a motion for reconsideration with the Director of the Water Management Administration within 10 days of receipt of the notice. The notice shall also inform the requestor that, if no motion for reconsideration is filed within 10 days, the denial is the Department's final decision as to the adjudicatory hearing request.

E. If a motion for reconsideration is filed, the motion shall be accompanied by a written statement of the grounds in support of the motion, and if oral argument is requested, a written statement to that effect. Within 10 days of receipt of a motion for reconsideration, the Bureau may file a written response with the Director of the Water Management Administration. After considering the motion and supporting statement and the Bureau's response, if any, the Director of the Water Management Administration or the Director's designee may hear oral argument, and shall issue a written final decision.

F. If the final decision of the Director of the Water Management Administration, or the Director's designee, is adverse to a party other than the Bureau, the party may obtain judicial review of the decision in accordance with the provisions of the Maryland Administrative Procedure Act and the Maryland Rules of Procedure.

G. If the Director grants the request for an adjudicatory hearing, the Director shall forward the request to the Secretary or the Secretary's designee. The Secretary or the Secretary's designee shall act as the hearing officer. The hearing officer shall give notice to all parties of the date, time, and place of the hearing.

#### Regulation .03 Parties.

*COMAR 26.20.34.03*

A. The applicant or permittee shall be made a party to any adjudicatory hearing involving a permit application or permit under the Regulatory Program.

B. The Bureau shall in all cases be made a party to any adjudicatory hearing under the Regulatory Program.

C. Any person may be granted intervention as a party upon a showing, before the beginning of the hearing, that they would have been entitled to request a hearing in their own right, and that existing parties cannot be expected to adequately represent their interests.

#### Regulation .04 Prehearing Conference.

*COMAR 26.20.34.04*

A. Before the date of the adjudicatory hearing, the hearing officer may hold a prehearing conference, for which he shall give notice to all parties of the date, time, and place.

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

C. At a prehearing conference, or within some reasonable time set by the hearing officer, the following matters shall be considered:

  (1) The documents within the administrative file shall be identified;

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

  (3) Matters of which official notice shall be taken shall be identified;

  (4) Disputed issues of a purely legal nature shall be identified;

  (5) When possible, consideration shall be given and decisions made upon objections to the introduction into evidence at the hearing of any written documents, papers, exhibits, testimony, or materials proposed to be introduced at the hearing by a party;

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

    (a) Submission of written statements;

    (b) Presentation of oral statements;

    (c) Presentation of oral direct and cross-examinations;

    (d) Presentation of oral arguments.

D. The hearing officer shall prepare a written prehearing order reciting the actions taken at the prehearing conference.

#### Regulation .05 Conduct of Adjudicatory Hearing.

*COMAR 26.20.34.05*

A. An adjudicatory hearing shall be conducted generally in the following order, unless modified by the hearing officer during the prehearing conference:

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

  (2) Opening statements by the parties;

  (3) Presentation of evidence in the following order:

    (a) Unless otherwise directed by the specific regulation providing a right to a hearing, the party requesting the hearing has the burden of proof on all material issues, has the burden of going forward to present an affirmative case upon the issues, and has the ultimate burden of persuasion;

    (b) Other parties;

    (c) Rebuttals in the same order;

    (d) Closing statements of the parties in the same order of opening statements.

B. The hearing officer shall have the authority and duty to conduct a fair and impartial hearing, to take action to avoid unnecessary delay in the disposition of the proceedings, and to maintain order, including, but not limited to the following:

  (1) To administer oaths;

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

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

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

  (5) To examine witnesses;

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

  (7) To identify and rule upon issues of law provided that, in making the rulings, the hearing officer shall be bound by the:

    (a) Department's regulations;

    (b) Constitution;

    (c) Laws of the United States; and

    (d) Laws of Maryland;

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

  (9) To require parties to submit proposed findings of fact and conclusions of law; and

  (10) To provide an opportunity for any party to file a brief containing legal argument and citations in support of the party's position on issues of law identified in the proceedings.

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

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

E. Rulings of the hearing officer on the admissibility of evidence, the propriety of cross-examination, and other procedural matters shall be final and shall appear in the record.

F. Evidence may not be excluded on the grounds that it was generated, discovered, or became available after the action which is the subject of the hearing.

#### Regulation .06 Procedure after Testimony is Concluded.

*COMAR 26.20.34.06*

A. The hearing officer shall notify all parties by certified mail as soon as the hearing record is compiled and available.

B. Within 15 days from the date of the notification in §A of this regulation, any party may file proposed findings of fact, conclusions of law, and a brief in support thereof with the hearing officer. Copies shall be mailed to all other parties at the same time.

C. Within 60 days from the notification in §A of this regulation, the hearing officer shall prepare a proposed decision with findings of fact and conclusions of law. The proposed decision shall be submitted to the Director of the Water Management Administration and copies shall be mailed to all parties.

D. Within 15 days of receipt of the proposed decision of the hearing officer, any party adversely affected may file written exceptions and request oral argument before the Director of the Water Management Administration, unless the Director of the Water Management Administration has personally heard the evidence at the adjudicatory hearing.

E. If exceptions and a request to present oral argument are filed, the Director of the Water Management Administration shall notify the parties of the date, time, and place for the argument. The oral argument shall be heard within 15 days from receipt of the exceptions and request to present oral argument.

F. The Director of the Water Management Administration shall render a final decision within 30 days of receipt of the proposed decision of the hearing officer, or from the receipt of written exceptions, or date of oral argument, whichever is later.

G. If the final decision is adverse to a party to the hearing other than the Bureau, the party is entitled to judicial review in accordance with State Government Article, §10-222, Annotated Code of Maryland.

H. The time limits in this regulation may be adjusted as required to meet specific statutory deadlines, or to ensure full presentation of all relevant evidence, provided, however, that a decision on a request to review a cessation order issued for a violation which creates an imminent danger to the health or safety of the public, or is causing, or can reasonably be expected to cause, significant, imminent environmental harm to land, air, or water resources, or for failure to abate a violation within the time limits set in the order pursuant to Environment Article, §15-508(f), Annotated Code of Maryland, shall be rendered by the hearing officer within 30 days of receipt of the application for review, unless temporary relief is granted by the hearing officer.

#### Regulation .07 Record of Adjudicatory Hearing.

*COMAR 26.20.34.07*

A. Adjudicatory hearings shall be either stenographically reported verbatim or tape recorded, and then may be transcribed. Stenographic notes or tapes, or originals of the transcript, shall be filed with the record along with all exhibits. Any party who desires a copy of a transcript of the hearing may request a copy from the hearing officer and pay the costs. If the transcript is prepared by a private stenographer, the hearing officer may direct interested persons to make arrangements for copies by dealing directly with the reporter.

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

#### Regulation .08 Decision.

*COMAR 26.20.34.08*

The Director of the Water Management Administration shall notify the parties to the hearing, in writing and by certified mail, of the final decision. The notice shall include a:

A. Copy of the decision, including findings of fact and conclusions of law in accordance with the Maryland Administrative Procedure Act; and

B. Statement regarding the parties' right of appeal.

#### Regulation .09 Award of Costs.

*COMAR 26.20.34.09*

A. Any person may file a petition for award of costs and expenses including attorneys' fees reasonably incurred as a result of that person's participation in any adjudicatory hearing under this subtitle.

B. The petition for an award of costs and expenses including attorneys' fees shall be filed with the Secretary within 45 days of receipt of a final decision under Regulation .08 of this chapter. Failure to make a timely filing of a petition may constitute a waiver of the right to this award.

C. The petition shall include the name of the person from whom costs and expenses are sought, and the following shall be submitted in support of the petition:

  (1) An affidavit setting forth in detail all costs and expenses, including attorneys' fees reasonably incurred for, or in connection with, the person's participation in the proceeding;

  (2) Receipts or other evidence of these costs and expenses; and

  (3) If attorneys' fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for these services in the area, and the experience, reputation, and ability of the individual or individuals performing the service.

D. Any person served with a copy of a petition shall have 30 days from service of the petition within which to file an answer to this petition.

E. Appropriate costs and expenses including attorneys' fees may be awarded as follows:

  (1) To any person from the permittee, if:

    (a) The person initiates any administrative proceedings reviewing enforcement actions, upon a finding that a violation of the Act, regulations, or permit has occurred, or that an imminent hazard existed, or to any person who participates in an enforcement proceeding where such a finding is made if the Secretary determines that the person made a substantial contribution to the full and fair determination of the issues, or

    (b) The person initiates an application for review of alleged discriminatory acts, upon a finding of discriminatory discharge or other acts of discrimination;

  (2) To any person, other than a permittee or his representative, from the Bureau, if the person initiates or participates in any proceeding under this subtitle, upon a finding that the person made a substantial contribution to a full and fair determination of the issues;

  (3) To a permittee from the Bureau when the permittee demonstrates that the Bureau issued an order of cessation, a notice of violation, or an order to show cause why a permit should not be suspended or revoked, in bad faith for the purpose of harassing or embarrassing the permittee;

  (4) To a permittee from any person when the permittee demonstrates that the person initiated a proceeding under this subtitle or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee;

  (5) To the Bureau when it demonstrates that any person applied for review under this subtitle or that any party participated in such a proceeding in bad faith and for the purpose of harassing or embarrassing the Government.

F. An award under this chapter may include:

  (1) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of initiation or participation in a proceeding under this subtitle;

  (2) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award.

G. Any person aggrieved by a decision concerning the award of costs and expenses in an administrative proceeding under this chapter is entitled to judicial review in accordance with State Government Article, §10-222. Annotated Code of Maryland.

#### Regulation .10 Delegation of Authority; Time Limitations.

*COMAR 26.20.34.10*

A. The Secretary or the Director of the Water Management Administration may delegate all or part of his authority to act pursuant to this chapter.

B. The failure of the Bureau to do any act within the time periods specified in this chapter may not be construed as a waiver or a derogation of any rights, powers, or authority of the Department or of the Bureau.

### Chapter 35 — Discovery During Adjudicatory Hearings

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.12 were previously codified as COMAR 08.13.09.44A—L, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.35 to COMAR 26.20.35, June 1996

#### Regulation .01 Discovery Methods.

*COMAR 26.20.35.01*

Parties may obtain discovery by one or more of the following methods:

A. Depositions upon oral examination or upon written interrogatories;

B. Written interrogatories;

C. Production of documents or things or permission to enter upon land or other property, for inspection and other purposes; and

D. Requests for admission.

#### Regulation .02 Time for Discovery.

*COMAR 26.20.35.02*

Following the initiation of a proceeding, the parties may initiate discovery at any time as long as it does not interfere with the conduct of the hearing.

#### Regulation .03 Scope of Discovery.

*COMAR 26.20.35.03*

A. Unless otherwise limited by order of the hearing officer, the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of any discoverable matter.

B. It is not ground for objection that information sought will not be admissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

C. A party may obtain discovery of documents and tangible things otherwise discoverable under §A of this regulation and prepared in anticipation of or for the hearing by or for another party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of these materials when the required showing has been made, the hearing officer shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding.

D. Upon motion by a party or the person from whom discovery is sought, and for good cause shown, the hearing officer may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

  (1) The discovery may not be had;

  (2) The discovery may be had only on specific terms and conditions, including a designation of the time or place;

  (3) The discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

  (4) Certain matters not relevant may not be inquired into, or that the scope of discovery be limited to certain matters;

  (5) Discovery be conducted with no one present except persons designated by the hearing officer; or

  (6) A trade secret or other confidential research, development, or commercial information may not be disclosed or be disclosed only in a designated way.

#### Regulation .04 Sequence and Timing of Discovery.

*COMAR 26.20.35.04*

Unless the hearing officer, upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, may not operate to delay any other party's discovery.

#### Regulation .05 Supplementation of Responses.

*COMAR 26.20.35.05*

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:

A. A party is under duty to supplement timely his response with respect to any question directly addressed to:

  (1) The identity and location of persons having knowledge of discoverable matters, and

  (2) The identity of each person expected to be called as an expert witness at the hearing, the subject matter on which he is expected to testify, and the substance of his testimony;

B. A party is under a duty to amend timely a prior response if he later obtains information upon the basis of which:

  (1) He knows the response was incorrect when made; or

  (2) He knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment;

C. A duty to supplement responses may be imposed by order of the hearing officer or agreement of the parties.

#### Regulation .06 Motion to Compel Discovery.

*COMAR 26.20.35.06*

A. If a deponent fails to answer a question propounded, or a party upon whom a request is made pursuant to Regulation .11 of this chapter, or a party upon whom answers to interrogatories are served fails to adequately respond or objects to the request, or any part of it, or fails to permit inspection as requested, the discovering party may move the hearing officer for an order compelling a response or inspection in accordance with the request.

B. The motion shall set forth the following:

  (1) The nature of the questions or request;

  (2) The response or objection of the party upon whom the request was served; and

  (3) Arguments in support of the motion.

C. For purposes of this regulation, an evasive answer or incomplete answer or response shall be treated as a failure to answer or respond.

D. In ruling on a motion made pursuant to this regulation, the hearing officer may make such protective order as he is authorized to make on a motion made pursuant to Regulation .03D of this chapter.

#### Regulation .07 Failure to Comply with Orders Compelling Discovery.

*COMAR 26.20.35.07*

If a party or an officer, director, or other agent of a party fails to obey an order to provide or permit discovery, the hearing officer may make such orders in regard to the failure as are just, including but not limited to the following:

A. An order that the matters sought to be discovered or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

B. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters into evidence; or

C. An order striking out pleadings or parts of them, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

#### Regulation .08 Depositions upon Oral Examination or upon Written Questions.

*COMAR 26.20.35.08*

A. Any party desiring to take the testimony of any other party or other person by deposition upon oral examinations or written questions shall, without leave of the hearing officer, give reasonable notice in writing to every other party, to the person to be examined, and to the hearing officer, of the following:

  (1) The proposed time and place of taking the deposition;

  (2) The name and address of each person to be examined, if known, or, if the name is not known, a general description sufficient to identify him or the particular group or class to which he belongs;

  (3) The matter upon which each person will be examined; and

  (4) The name or descriptive title and address of the officer before whom the deposition is to be taken.

B. A deposition may be taken before any officer authorized to administer oaths by the laws of the United States or of the place where the examination is held.

C. The actual taking of the deposition shall proceed as follows:

  (1) The deposition shall be on the record;

  (2) The officer before whom the deposition is to be taken shall put the witness on oath or affirmation;

  (3) Examination and cross-examination shall proceed as at a hearing;

  (4) All objections made at the time of the examination shall be noted by the officer upon the deposition;

  (5) The officer may not rule on objections to the evidence, but evidence objected to shall be taken subject to the objections.

D. When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and signature, unless examination and signature are waived by the deponent. The officer shall certify the deposition or, if the deposition is not signed by the deponent, shall certify the reasons for the failure to sign.

E. If the deposition is to be taken upon written questions, the party taking the deposition shall serve a copy of the questions, showing each question separately and consecutively numbered, on every other party with a notice stating the name and address of the person who is to answer them, and the name, description, title, and address of the officer before whom they are to be taken. Within 30 days after service, any other party may serve cross-questions. The questions, cross-questions, and answers shall be recorded and signed, and the deposition certified, as in the case of a deposition on oral examination.

F. A deposition will not become a part of the record in the hearing unless received in evidence. If only part of a deposition is offered in evidence by a party, any other party may introduce any other parts.

G. A deponent whose deposition is taken and the officer taking a deposition shall be entitled to the same fees as are paid for like services in the district courts of the United States, to be paid by the party at whose instance the deposition is taken.

H. The deponent may be accompanied, represented, and advised by legal counsel.

#### Regulation .09 Use of Depositions.

*COMAR 26.20.35.09*

A. At the hearing, any part or all of a deposition, so far as admissible, may be used against any party who was present or represented at the taking of the deposition, or who had reasonable notice of it.

B. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness.

C. The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent or a person designated to testify on behalf of a public or private corporation, partnership, or association or governmental agency which is a party, may be used by an adverse party for any purpose.

D. The deposition of a witness, whether or not a party, may be used by a party for any purpose, if the hearing officer finds that:

  (1) The witness is dead;

  (2) The witness is at a distance greater than 100 miles from the place of hearing, or is outside the United States, unless it appears that the absence of the witness was procured by the party offering the deposition;

  (3) The witness is unable to attend or testify because of age, illness, infirmity, or imprisonment;

  (4) The party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

  (5) Exceptional circumstances exist that make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally at the hearing, to allow the deposition to be used.

#### Regulation .10 Written Interrogatories to Parties.

*COMAR 26.20.35.10*

A. Any party may serve upon any other party written interrogatories to be answered in writing by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish this information as is available to the party. A copy of the interrogatories, answers, and all related pleadings shall be served on the hearing officer and upon all parties to the proceeding.

B. Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless it is objected to, in which event the reasons for objection shall be stated instead of an answer. The answer and objections shall be signed by the person making them. The party upon whom the interrogatories were served shall serve a copy of the answers and objections upon all parties to the proceeding within 30 days after service of the interrogatories, or within such shorter or longer period as the hearing officer may allow.

C. Interrogatories may relate to any matters which can be inquired into under Regulation .03 of this chapter. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the hearing officer may order that such an interrogatory need not be answered until after designated discovery has been completed or until a prehearing conference or other later time.

#### Regulation .11 Production of Documents and Things and Entry upon Land for Inspection and Other Purposes.

*COMAR 26.20.35.11*

A. Any party may serve on any other party a request to:

  (1) Produce and permit the party making the request, or a person acting on his behalf, to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things within the scope of Regulation .03 of this chapter and which are in the possession, custody, or control of the party upon whom the request is served; or

  (2) Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property (including the air, water, and soil) or any designated object or operation on it, within the scope of Regulation .03 of this chapter.

B. The request may be served on any party without leave of the hearing officer.

C. The request shall:

  (1) Set forth the items to be inspected either by individual item or by category;

  (2) Describe each item or category with reasonable particularity; and

  (3) Specify a reasonable time, place, and manner of making the inspection and performing the related acts.

D. The party upon whom the request is served shall serve on the party submitting the request a written response within 30 days after service of the request.

E. The response shall state, with respect to each item or category:

  (1) That inspection and related activities will be permitted as requested; or

  (2) That objection is made in whole or in part, in which case the reasons for objection shall be stated.

#### Regulation .12 Admissions.

*COMAR 26.20.35.12*

A. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the genuineness and authenticity of any relevant document described in or attached to the request, or for the admission of the truth of any specified relevant matter of fact.

B. Each matter of which an admission is requested is admitted unless, within 30 days after service of the request or such shorter or longer time as the hearing officer may allow, the party to whom the request is directed serves on the requesting party:

  (1) A sworn statement denying specifically the relevant matters of which an admission is requested;

  (2) A sworn statement setting forth in detail the reasons why he can neither truthfully admit nor deny them; or

  (3) Written objections on the ground that some or all of the matters involved are privileged or irrelevant or that the request is otherwise improper in whole or in part.

C. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.

D. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the hearing officer determines that an objection is justified, he shall order that an answer be served. If the hearing officer determines that an answer does not comply with the requirements of this regulation, he may order either that the matter is admitted or that an amended answer be served. The hearing officer may, in place of these orders, determine that final disposition of the request be made at a prehearing conference or at a designated time before hearing.

E. Any matter admitted under this section is conclusively established unless the hearing officer on motion permits withdrawal or amendment of the admission.

F. Any admission made by a party under this section is for the purpose of pending action only and is not an admission by him for any other purpose and may not be used against him in any other proceeding.

## Subtitle 21 — Mining

### Chapter 01 — Surface Mining

**Authority:** Environment Article, §§15-803 and 15-813; Natural Resources Article, §10-2A-06(c); Annotated Code of Maryland

**Administrative History:** Effective date: December 11, 1989 (16:24 Md. R. 2617)

**Administrative History:** Regulation .23C, E amended effective May 14, 1990 (17:9 Md. R. 1088)

**Administrative History:** Chapter recodified from COMAR 08.05.10 to COMAR 26.21.01, June 1996

**Administrative History:** Regulation .03E adopted effective May 14, 2001 (28:9 Md. R. 890)

#### Regulation .01 Definitions.

*COMAR 26.21.01.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Act” means Environment Article, §§15-801—15-834, Annotated Code of Maryland.

  (2) “Angle of repose” means the maximum angle of slope (measured from a horizontal plane) at which loose cohesionless material will come to rest on a pile of similar material.

  (3) “Applicant” means that person making application to the Department under the Act for a license or a permit and who is responsible for fulfilling the requirements of the Act, all license and permit conditions, and regulations adopted under the Act.

  (4) “Backfill” means earth overburden, mine waste, or imported material used to replace material removed during mining.

  (5) “Bench” means a flat surface from which a pit or quarry is worked.

  (6) “Critical gradient” means the maximum stable inclination of an unsupported slope.

  (7) “Cut slope or face” means a bank or slope that is created by removing material below the existing ground surface.

  (8) “Department” means the Department of the Environment.

  (9) “Diversion” means a channel, embankment, or other man-made structure constructed for the purpose of redirecting water from one area to another, including interceptor swales, perimeter dikes, and earth dikes.

  (10) “Erosion” means the process by which the land surface is worn away by the action of water, wind, ice, or gravity.

  (11) “Excavation” means the extraction or removal of minerals so as to make them suitable for sale, exchange, commercial, or industrial use.

  (12) “Fill slope” means a bank or slope that has been created by the placing of material on top of the existing ground surface.

  (13) “Final grade” means the finished elevation of any excavated surface disturbance before replacement of topsoil.

  (14) “Grading” means to bring an existing surface to a designed form by cutting, filling, or smoothing operations.

  (15) “Ground water” means subsurface water that fills available openings in rock or soil material such that they may be considered water saturated.

  (16) Haul Road.

    (a) “Haul road” means a road that is constructed or used in surface mining and reclamation operations, including one used by vehicles leading to transfer, processing, or storage areas.

    (b) “Haul road” does not mean a road maintained with public funds.

  (17) “Highwall” means a site of a pit or quarry adjacent to unmined land.

  (18) “Impoundment” means a closed basin naturally formed or man-made for the retention of water, sediment, or waste.

  (19) “License” means the annual written certification from the Department that the licensee is authorized to conduct surface mining activities in the State.

  (20) “Mined lands” means the surface or subsurface of an area in which surface mining operations will be, are being, or have been conducted. Mined lands include:

    (a) Private ways and roads used for mining appurtenant to any surface mining area;

    (b) Land excavations;

    (c) Workings; and

    (d) Overburden.

  (21) “Mine waste” means the residual soil, rock, mineral, liquid, vegetation, equipment, machines, tools, or other materials or property directly resulting from, used in, or displaced by, surface mining operations.

  (22) “Peak particle velocity” means the maximum velocity of a particle (rate of movement of the ground) in inches per second as measured by the three mutually perpendicular components of motion in the ground immediately adjacent to a structure of concern.

  (23) “Permit” means the written authorization to mine a particular site, including all conditions, maps, plans, and other supporting documents made a part of the permit that the Department issues to a permittee under the Act.

  (24) “Processing plant” means any equipment, buildings, structures, or appurtenances used to process non-coal minerals, including crushers, shakers, screens, washers, conveyor belts, settling ponds, and stockpiles of processed materials, and the land upon which these are located.

  (25) “Sediment” means soils or other surficial materials transported or deposited by the action of wind, water, ice, or gravity as a product of erosion, or by artificial means.

  (26) “Sediment pond” means any natural or artificial structure or depression used to remove sediment from water and store sediment, including, for example, sediment basins and traps.

  (27) “Setback” means the distance from a property line, road, or other limiting feature, to an excavation or to the toe of a fill which serves to protect property, a road, or other features.

  (28) “Stabilization” means methods used to control movement of soil, spoil piles, or areas of disturbed earth and includes any combination of the following:

    (a) Increasing bearing capacity;

    (b) Draining;

    (c) Revegetating;

    (d) Mulching;

    (e) Liming; and

    (f) Fertilizing.

  (29) “Subsoil” means the part of the soil profile below the topsoil and is sometimes called overburden.

  (30) “Surface water” means water either flowing or standing on the surface of the earth.

  (31) “Topsoil” means the upper part of the soil profile that is rich in humus, also known as the A horizon.

#### Regulation .02 Surface Mining License.

*COMAR 26.21.01.02*

A. A person may not engage in surface mining within the State without first obtaining a surface mining license.

B. Application Requirements for Initial License.

  (1) The application for a license shall be on a form furnished by the Department and shall include all appropriate information required by the Department.

  (2) The person making the application shall be as follows:

    (a) If a corporation is making application, an authorized agent or employee may complete the application, but an officer of the corporation or an authorized agent shall sign the application form;

    (b) If a partnership or association is making application, any authorized partner may complete and sign the application form;

    (c) An individual making application shall complete and sign the application form.

  (3) The person making application for an initial license shall submit the filing fee prescribed by the Act in the form of cash, check, money order, or any combination, made payable to the Department of the Environment.

  (4) All licenses shall expire on December 31 of the year in which they are issued except as provided in §B(5) of this regulation.

  (5) A license issued for an application that is received after November 1 of any calendar year and is approved by the Department shall be issued for up to 14 months as appropriate to include the entire following calendar year.

C. Application Requirements for Renewal.

  (1) An application for renewal shall be submitted by January 1 and shall be on a form furnished by the Department.

  (2) The Department will provide all current licensees with a renewal form on or before November 30.

  (3) The licensee shall submit the filing fee prescribed by the Act in the form prescribed by the Act and §B(3) of this regulation.

D. Expired Licenses.

  (1) If a licensee fails to apply for a renewal by January 1 of any year, the licensee:

    (a) May not continue to mine any minerals or perform any activity pertaining to surface mining, except reclamation, beyond the expiration date of the license; and

    (b) Shall apply for an initial surface mining license pursuant to §B of this regulation in order to be reinstated.

  (2) If a license is not renewed, for any reason, then all surface mining permits issued to that person shall be suspended or revoked in accordance with Environment Article, §15-821, Annotated Code of Maryland, and Regulation .05 of this chapter.

E. Review of Application.

  (1) Within 10 working days of receipt of an initial or a renewal application, the Department shall review the application to determine whether it contains all information required by §§B and C of this regulation.

  (2) If all necessary information is not included, the Department may return the application with written notification that further information is required.

  (3) The Department may deny the license if:

    (a) In the judgment of the Department the applicant has failed and continues to fail to comply with the provisions of this chapter and the Act; or

    (b) The applicant does not submit a corrected and acceptable application within 30 days after the applicant has received the application that was returned pursuant to §E(2) of this regulation.

F. Approval or Denial of License.

  (1) Within 30 days of receipt of a completed application, the Department shall notify the applicant whether the license has been issued or denied.

  (2) If the license is issued it shall provide:

    (a) Name of the licensee;

    (b) License number;

    (c) Expiration date;

    (d) That the license is not transferable;

    (e) That the license shall be displayed publicly; and

    (f) That the license may be suspended or revoked for cause.

  (3) If the license is denied, the Department shall notify the applicant of the reasons for denial by certified mail.

G. A license is not transferable.

H. A license shall be displayed publicly at the licensee's principal place of business.

#### Regulation .03 Surface Mining Permit.

*COMAR 26.21.01.03*

A. A person may not obtain a surface mining permit unless that person is licensed in accordance with the Act and Regulation .02 of this chapter.

B. A licensee may not engage in a mining operation unless the licensee has a surface mining permit for the affected land.

C. Forms.

  (1) A licensee shall apply to the Department for a permit on either a short form or long form furnished by the Department.

  (2) Short Form.

    (a) The short form may be used if all of the following conditions are met:

      (i) The proposed permit area does not exceed 5 acres;

      (ii) Not more than 20,000 cubic yards or 30,000 tons of minerals are to be extracted each year; and

      (iii) The Department determines that a long form is not required because of special circumstances such as the mining method, the proximity of the operation to residences, the proposed reclamation, or past experience of the Department with similar mining operations.

    (b) The short form application shall be accompanied by all of the following:

      (i) The mining and reclamation plan on a form furnished by the Department;

      (ii) A notarized right-of-entry agreement provided by the Department and executed by the landowner as described in Environment Article, §15-808(d)(1), Annotated Code of Maryland;

      (iii) An amount necessary to reimburse the Department for its expense in recording the right-of-entry agreement in the appropriate land records;

      (iv) A sediment control plan approved by the local soil conservation district;

      (v) A written statement by the licensee listing all other State, county, and local permits and approvals required, and the status of each;

      (vi) A filing fee prescribed by the Act;

      (vii) A special reclamation fee as prescribed by the Act prorated for each acre and each fraction of an acre;

      (viii) A topographic map described in §D of this regulation;

      (ix) A certification by the permittee that all work will be done pursuant to this plan; and

      (x) Any other relevant materials and documents deemed necessary by the Department.

  (3) Long Form.

    (a) The long form shall be used if the Department determines that the short form is not acceptable.

    (b) The long form application shall be accompanied by all of the following:

      (i) A mining and reclamation plan which shall be on a form furnished by the Department which meets the requirements of Environment Article, §15-822, Annotated Code of Maryland;

      (ii) A notarized right-of-entry agreement provided by the Department and executed by the landowner as described in Environment Article, §15-808(d)(1), Annotated Code of Maryland;

      (iii) An amount necessary to reimburse the Department for its expense in recording the right-of-entry agreement in the appropriate land records;

      (iv) A sediment control plan approved by the local soil conservation district;

      (v) A written statement by the licensee listing all other State, county, and local permits and approvals required, and the status of each;

      (vi) A filing fee prescribed by the Act;

      (vii) A special reclamation fee as prescribed by the Act prorated for each acre and each fraction of an acre;

      (viii) A topographic map described in §D of this regulation;

      (ix) A certification by the permittee that all work will be done pursuant to this plan; and

      (x) Any other materials and documents deemed necessary by the Department.

D. With each application form, the licensee shall submit a topographic map in triplicate meeting all of the following conditions:

  (1) The map shall be on a scale not smaller than 1 inch equals 200 feet with a contour interval spacing appropriate for the topography;

  (2) A single sheet of the map shall be not larger than 36 inches by 42 inches;

  (3) The map shall contain the information required in Environment Article, §15-822(b)—(d), Annotated Code of Maryland and all of the following:

    (a) A vicinity map of the tract of land to be affected,

    (b) Property lines, name of the landowner of the affected area, and names of the adjacent landowners,

    (c) The name of the municipality or election district and county,

    (d) The location of all buildings within 200 feet of the outer perimeter of the affected land and the name and address of the owner, and the use of each building,

    (e) The location and names of streams, roads, railroads, utility lines, and known archaeological and historical sites that are on or immediately adjacent to the affected lands,

    (f) The outline and designation of pit areas, soil (topsoil and subsoil) storage areas, stockpiles, processing plants, settling and tailings ponds, disposal areas, reclamation areas, and areas to be mined at a future date,

    (g) All existing disturbance on the site,

    (h) The location of existing and proposed access, haul, and support roads,

    (i) The location where mining will begin, the location where mining will end, and the direction that mining will proceed,

    (j) The location of proposed highwalls or slopes that will be left upon completion of mining,

    (k) The location, identification, and elevation of test borings or excavations which the licensee has conducted on the affected land,

    (l) Cross sections showing the location of test borings, sample sites, test pits, the nature and depth of the various strata, the thickness of any mineral seam or deposit, and a description of the overburden, subject, however, to confidentiality provided by the Act,

    (m) Proposed final contours and elevations,

    (n) Title block containing information stating whether the map is an “application map”, “modification map”, “annual report map”, “final map”, or “renewal map”, and

    (o) Date of revision block stating revisions made, date made, and initials of the preparer;

  (4) If borings were not taken, then the cross sections shall be prepared based upon adjacent previously mined areas or any source of information that is acceptable to the Department;

  (5) The map shall be prepared and certified by a Maryland registered professional engineer or Maryland registered land surveyor, but the Department may waive this requirement when the short form is used.

E. For permit applications for surface mines subject to the provisions of Environment Article, §§15-812 and 15-813, Annotated Code of Maryland, the Department may require the permittee to submit the following additional information:

  (1) Monitoring well data and reports derived from monitoring data;

  (2) Boring logs;

  (3) A written report of known sinkhole occurrences in the vicinity including an aerial photograph or map showing the location;

  (4) Aquifer pump test reports or other pertinent hydrologic data;

  (5) Geologic reports;

  (6) Field investigation reports, dye trace analyses, or any other information requested by the Department; and

  (7) A map at a scale and in a format established by the Department showing:

    (a) A proposed zone of dewatering influence,

    (b) Topography, geology, sinkhole locations, stream and road locations, and any environmental or geologic features relevant to the determination of a zone of dewatering influence, and

    (c) Any cultural features, including structures and water supply wells, and property lines within and adjacent to the proposed zone of dewatering influence.

#### Regulation .04 Review of Application.

*COMAR 26.21.01.04*

The Department shall review the application for a surface mining permit (original, modification, renewal, transfer) in accordance with the following procedures:

A. Within 20 working days of receipt of an application, accompanying documents, and the appropriate fees, the Department shall review the application to determine whether it contains all information required by Regulation .03C and D of this chapter;

B. If the required information is not included, the Department shall advise the applicant with written or oral notification;

C. Upon receipt of all required information, the Department shall arrange a date and time with the applicant for a site investigation;

D. As a result of the site investigation, the Department shall:

  (1) Determine the accuracy of the submitted drawings required by Environment Article, §15-822(b)—(d), Annotated Code of Maryland, and Regulation .03D of this chapter,

  (2) Determine the acceptability of the proposed mining and reclamation methods,

  (3) Determine the potential impacts that the mining activity will have on the environment and public safety, and

  (4) Assist the applicant in determining whether other State approvals and permits are required;

E. The Department shall enter a written field report of the site inspection into the applicant's file containing at a minimum the following:

  (1) A description of the site and the surrounding area, including the geology, physiography, land use, and proximity and location of dwellings,

  (2) A description of the proposed mining method, including the beginning and end point of mining, the mining sequence, the depth of the mining, the mining schedule, and stockpile storage areas,

  (3) A description of the proposed reclamation method, including final grades, topsoil restoration, type and amount of revegetation, final impoundments, and haul road reclamation,

  (4) A description of any requirements set forth in permits and approvals that have been issued by State, county, and local agencies,

  (5) A description of the potential impacts that the mining activity will have on the environment and public safety, and

  (6) A list of additional required information needed to complete the application;

F. The Department shall determine the area of maximum disturbance, in part, based upon the following factors:

  (1) Type of mineral to be excavated;

  (2) Location of mineral to be excavated;

  (3) Depth of mineral to be excavated;

  (4) Potential impacts upon the environment and public safety;

  (5) Estimated annual production;

  (6) Proposed mining method;

  (7) Proposed date of termination of mining;

  (8) Proposed reclamation method;

  (9) Size and location of stockpile areas;

  (10) Size and location of haul roads;

  (11) Size and location of erosion and sediment controls; and

  (12) Size and location of storage areas;

G. After the completion of the site visit and the review of the factors set forth in §§D—F of this regulation, the Department may require additional information from the applicant under the following procedures:

  (1) The Department shall mail within 30 days to the applicant a list of required additional information,

  (2) The applicant shall submit the additional information within 40 working days after receipt of the Department's list, or submit acceptable justification as to why the Department should not terminate its review of the application,

  (3) If the information is not submitted within 40 days, or the justification for an extension is deemed insufficient, the Department shall return the permit application to the applicant with a notice that the Department's review has terminated,

  (4) Upon receipt of the additional information the Department shall notify the applicant within 30 working days whether the application is complete;

H. Not later than 30 days after the Department determines that the application is complete, the Department shall notify the applicant by certified mail, as required by Environment Article, §15-810, Annotated Code of Maryland, of the Department's decision to issue or deny the permit;

I. If the Department's decision is to issue the permit, the letter shall advise the applicant of the amount of the performance bond as required by Environment Article, §15-823, Annotated Code of Maryland, and the expiration date of the permit;

J. If the Department's decision is to deny the permit, the letter shall state the reasons for denial, any modifications necessary for acceptance of the application, and the appeal right afforded by Environment Article, §15-810(d), Annotated Code of Maryland;

K. The Department may deny an application for any permit if:

  (1) The information necessary for acceptance of the application was not submitted in accordance with §G of this regulation,

  (2) The decision to issue or deny an application has been deferred at the applicant's request for more than 12 months, or

  (3) Any of the reasons for denial listed in Environment Article, §15-810(b), 15-815(f), 15-816(a), 15-819(d), or 15-821(d), Annotated Code of Maryland, apply;

L. Upon receipt of an acceptable performance bond the Department shall issue the permit stating the effective date, the expiration date, and all conditions for compliance with the Act and this chapter;

M. The Department shall process the permit application concurrently with any local or county land use and zoning reviews.

#### Regulation .05 Effect of License Denial or Expiration on Permits.

*COMAR 26.21.01.05*

If the Department denies the renewal of a surface mining license or a licensee fails to renew a license as provided for in Regulation .02D(2) of this chapter, the following shall apply:

A. In accordance with Environment Article, §15-821, Annotated Code of Maryland, the Department shall suspend all permits issued to the licensee;

B. If an administrative appeal is not filed, the Department shall revoke all permits issued to the former licensee;

C. The permittee shall reclaim all affected land under all permits that have been revoked pursuant to §B of this regulation within the time period specified by the Department and in accordance with the plans set forth in each permit or as modified by the Department;

D. If reclamation has not begun within the time specified by the Department, the Department shall begin bond forfeiture proceedings in accordance with Environment Article, §15-825, Annotated Code of Maryland.

#### Regulation .06 Termination of Lease.

*COMAR 26.21.01.06*

If a landowner terminates a permittee's lease agreement, the Department may:

A. Transfer the permit to another licensee if the landowner and the permittee consent;

B. Require the permittee to initiate reclamation within 3 months after the date that the lease is terminated or sooner if required by the mining and reclamation plan, and to complete reclamation by a certain date; or

C. Delay any action pending resolution of any outstanding appeals.

#### Regulation .07 Fees.

*COMAR 26.21.01.07*

A. License and permit fees shall be as prescribed in the Act.

B. Application fees are not refundable.

C. The Department shall return the special reclamation fee and recording fee for the right-of-entry agreement to the applicant if a permit is denied.

D. The Department shall deposit all fees except right-of-entry recording fees in the Surface Mined Land Reclamation Fund.

#### Regulation .08 Surface Mining License Exceptions.

*COMAR 26.21.01.08*

A. In determining whether certain farming, including aquaculture, construction, and processing activities are subject to this chapter, the Department shall apply the criteria set forth in §§B—F of this regulation.

B. Processing Plant.

  (1) Operations engaged in processing minerals which are not subject to this chapter are as follows:

    (a) Processing plants that are not contiguous to a permit area; or

    (b) Processing plants that are contiguous to a permit area, but are not affected by and do not affect the permit area.

  (2) A processing plant, or portions of it, is subject to the requirements of the Act and this chapter when one of the following occurs:

    (a) It is constructed in the permit area after the permit has been issued;

    (b) It receives drainage from the permit area;

    (c) It is used in controlling sediment from the permit area; or

    (d) The permittee requests that a processing plant that is adjacent to the permit area be included in the permit area.

  (3) If a processing plant is included in the permit, the permittee is not relieved of the responsibility for any permits or approvals required by other State, federal, or local regulatory agencies.

C. On-Site Farming.

  (1) Excavation or grading, including excavation or grading for a pond, is not subject to the requirements of this chapter if the extraction of minerals furthers a farming activity on the site, and if the excavated material is used for a noncommercial purpose on the site. The farmer shall have a soil and water conservation plan approved by the local soil conservation district.

  (2) If the excavated material is not for the farmer's own noncommercial use on the site, the Department may review the following criteria to determine if the excavation is solely in aid of on-site farming:

    (a) Purpose of the excavation or grading;

    (b) Type and quantity of material to be excavated;

    (c) Surface area and depth of the excavation;

    (d) Proposed use for the excavated material;

    (e) On-site handling of excavated material;

    (f) How, and by whom, the excavation will be conducted;

    (g) Final land use;

    (h) Commercial value of the material;

    (i) Access to and from the site;

    (j) Soil conservation district approval;

    (k) Any applicable permit; and

    (l) The excavation and removal of material from the site is completed within 18 months.

D. On-Site Construction. Excavation and grading, including excavation or grading for a pond, which is done solely in aid of on-site construction, is not subject to the requirements of this chapter if all of the following conditions, whenever applicable, are met:

  (1) The construction project has all of the following:

    (a) A building permit;

    (b) Grading permit;

    (c) Zoning approval;

    (d) Sediment and erosion control approval;

    (e) Stormwater management approval;

    (f) Other required approvals; and

    (g) A bond posted with the proper regulatory authority, if required, in an amount sufficient to cover reclamation costs;

  (2) No more material is removed than necessary to:

    (a) Reach the final elevations specified in the permits and approvals listed in §D(1) of this regulation; or

    (b) Reach elevations needed to meet load-bearing capacity requirements; and

  (3) The excavation and removal of material from the site is completed within 18 months.

E. Operations Supplying Public Facilities. A mineral extraction site is not subject to this chapter if it is within one of the following categories:

  (1) A borrow pit owned and operated by the State Highway Administration which is maintained in compliance with the standards of reclamation that have been approved by the Department under Environment Article, §15-834, Annotated Code of Maryland;

  (2) A borrow pit owned and operated by a county or municipal roads department that is maintained in compliance with standards of reclamation that have been adopted by the county or municipal government, either by resolution or passage of an ordinance, and have been approved by the Department; or

  (3) A borrow pit operated by a person working under contract with the State Highway Administration, county roads department, or municipal corporation if the public body has:

    (a) Received approval from the Department for their standards of reclamation,

    (b) Passed a resolution or ordinance that formally adopts the standards of reclamation, and

    (c) Given the Department specific notice of the operation of the site by a private contractor.

F. One-Acre Sites.

  (1) A mined mineral extraction site is not subject to the requirements of this chapter if the affected lands at the site do not exceed 1 acre.

  (2) Any tract of land will be allowed only one mineral extraction site that does not exceed 1 acre.

  (3) The 1-acre site shall be clearly marked by stakes.

#### Regulation .09 Surface Mining and Reclamation Requirements.

*COMAR 26.21.01.09*

The practices described in Regulations .10—.20 of this chapter are the minimum requirements that shall be included in the mining and reclamation plan. The Department may specify additional practices. In addition, the intended use of the affected land shall comply with local land use requirements.

#### Regulation .10 Grading and Sediment Control.

*COMAR 26.21.01.10*

A. The permittee shall minimize the removal of vegetation, topsoil, and overburden before surface mining.

B. The permittee shall construct and maintain erosion and sediment control devices in accordance with the grading and sediment control plan approved by the local soil conservation district.

C. The permittee shall confine mining activity to the maximum area of disturbance at any one time as described in the permit.

D. The permittee shall maintain a valid sediment and erosion control approval, including the necessary renewal by the approving authority, for the life of the permit.

#### Regulation .11 Topsoil.

*COMAR 26.21.01.11*

A. The permittee shall remove, segregate, and stockpile topsoil on-site for reclamation unless the Department approves the removal from the site in the permit.

B. The permittee shall protect stockpiled topsoil in accordance with the approved mining and reclamation plan by a vegetative cover or by other methods demonstrated to provide protection, including but not limited to, chemical binders and mulching.

C. After the final grade has been completed in accordance with the approved mining and reclamation plan, but before the topsoil is replaced, the permittee shall disk or scarify the land to a depth of 2 inches to promote root penetration.

D. The permittee shall distribute topsoil in accordance with the approved mining and reclamation plan in a manner which:

  (1) Achieves an approximate uniform thickness;

  (2) Prevents excessive compaction of subsoil;

  (3) Protects it from erosion before it is seeded.

E. Topsoil may not be placed while in a frozen or muddy condition, when the subgrade is excessively wet, or while in a condition that would otherwise be detrimental to proper grading.

F. If topsoil was not conserved during mining or if there is an insufficient quantity of topsoil, the permittee shall upgrade the remaining native materials by the application of soil conditioners, mulches, or imported topsoil.

#### Regulation .12 Overburden, Mine Waste, and Rock.

*COMAR 26.21.01.12*

A. The permittee shall use overburden, mine waste, and rock to reduce the slope gradient of highwalls unless the permittee demonstrates that this use is impractical.

B. The permittee shall stabilize storage piles of overburden, mine waste, and rock in accordance with the approved mining and reclamation plan and may not restrict any natural drainage without an approved diversion.

C. The Department may require mine waste piles to be graded, covered with overburden or topsoil, and vegetated.

#### Regulation .13 Backfilling and Grading.

*COMAR 26.21.01.13*

A. The permit area shall include any area which will be mined to produce additional materials for backfilling and grading.

B. The mining and reclamation plan shall provide that if settling occurs additional backfilling shall be performed.

C. If the postmining land use includes roads, building sites, or other improvements, the mining and reclamation plan shall require compaction of the fill materials in conformance with good engineering practice.

#### Regulation .14 Final Slope Gradient.

*COMAR 26.21.01.14*

A. The designed steepness and proposed treatment of the final slopes of the mined land shall take into consideration the physical properties of the slope material, its probable maximum water content, landscaping requirements, and other factors. For example, the maximum stable slope angle may range from 90 degrees in a sound limestone, igneous rock, or similar hard rock to less than 20 degrees in highly expansive clay.

B. The mining and reclamation plan shall specify slope angles flatter than the critical gradient for the type of material involved.

C. Whenever final slopes approach the critical gradient for the type of material involved, the Department may require an engineering analysis of the slope stability.

D. The Department may require additional measures if public safety or adjacent property may be affected.

#### Regulation .15 Vegetation.

*COMAR 26.21.01.15*

A. The permittee shall vegetate the affected area as specified by the Department and by the approved mining and reclamation plan.

B. Vegetation shall include existing roadside and property line screens and any additional plantings specified by the Department.

#### Regulation .16 Reclamation Schedule.

*COMAR 26.21.01.16*

A. The permittee shall begin reclamation activities required by this chapter as soon as practicable after mining starts, continuing concurrently with mineral extraction and, upon termination of mining, until the entire permit area is reclaimed.

B. If site conditions dictate that reclamation cannot begin until mineral extraction is terminated, the reasons for this delay shall be detailed in the mining and reclamation plan, and the reclamation shall begin within 30 days of the termination of mineral extraction.

C. The permittee shall complete reclamation in accordance with the mining and reclamation plan within 2 years after mineral extraction has terminated.

D. If reclamation cannot be successfully completed within 2 years after mineral extraction has been terminated, the permittee shall submit a written request to the Department providing:

  (1) The reasons for the delay;

  (2) A description of measures to stabilize affected land, prevent any pollution, and eliminate hazards to health and safety; and

  (3) A written acknowledgement of the delay of the reclamation from the landowner if different from the permittee.

#### Regulation .17 Setback Requirements.

*COMAR 26.21.01.17*

A. The permit area shall be not less than 25 feet measured in a horizontal plane from any property line. This 25-foot setback shall also apply to any easement or right-of-way unless written permission is obtained from the holder of the easement or right-of-way.

B. Setbacks greater than 25 feet may be required whenever the permit area is adjacent to any school, hospital, church, cemetery, river, stream, or similar area.

C. The permit area may not be less than 100 feet measured in a horizontal plane from any of the following:

  (1) Any scenic and wild river or its tributaries as designated by Natural Resources Article, §8-401—8-411, Annotated Code of Maryland;

  (2) Any parcel of land that has been designated an area of critical State concern as designated by the Department of State Planning in the State Development Plan under State Finance and Procurement Article, §5-611, Annotated Code of Maryland.

D. The permit area may not be in conflict with the Chesapeake Bay Critical Area Commission Criteria under COMAR 27.01 or any locally adopted Critical Area Plan.

E. If an applicant provides sufficient justification, the Department may allow a lesser setback distance.

F. In determining the setback requirement on land located adjacent to any parcel described in §§B—D of this regulation, the Department shall evaluate the impact of the proposed operation on the fundamental character, the natural values of the area, and the technical aspects of the operation, taking into consideration:

  (1) The size of the proposed operation;

  (2) The proximity and geographic relation of the proposed operation;

  (3) The proximity of the proposed mining operation to other man-made changes in the natural landscape;

  (4) The scenic value and wilderness nature of the area;

  (5) The archaeological and recreational value of the area;

  (6) The effect of the proposed operation on the vegetation, land surface, and existing land uses;

  (7) The generation of noise and dust by the proposed operation;

  (8) The availability of technology to lessen the impact of the proposed operation;

  (9) The length of time that any significant changes in the landscape caused by the proposed operation will be visible from off site; and

  (10) The effectiveness of available technology to reclaim the proposed operation to a condition that is compatible with the adjacent land uses.

G. The permittee may not cause land disturbance of any type or removal of any vegetation within the setback except for the construction of approved access roads as provided for in Regulation .18 of this chapter.

#### Regulation .18 Roads.

*COMAR 26.21.01.18*

A. Construction. The permittee:

  (1) Shall construct and maintain access and haul roads in a manner that minimizes erosion and does not cause sedimentation or flooding;

  (2) Shall obtain prior approval from the Department for all stream crossings;

  (3) May clear vegetation for the essential width necessary for road and associated ditch construction;

  (4) Shall stabilize all fill and cut slopes.

B. Drainage.

  (1) The permittee shall drain any access or haul road using ditches, water barriers, pipe culverts, cross drains, ditch relief drains, or similar structures.

  (2) For an access or haul road that is to be maintained for more than 1 year, the permittee shall design and construct water control structures in accordance with the current Maryland Standards and Specifications for Soil Erosion and Sediment Control, which is incorporated by reference in COMAR 26.17.01.11.

  (3) The permittee shall construct drainage pipes and culverts to minimize plugging, collapse, and erosion at inlets and outlets.

  (4) The permittee shall construct a drainage ditch at the toe of any cut slope formed by the construction of a road.

C. Maintenance.

  (1) The permittee shall routinely maintain access and haul roads for dust and mud control, proper drainage, and stability.

  (2) The permittee shall maintain ditches, culverts, drains, trash racks, and other structures draining an access or haul road to prevent conditions that adversely affect the purpose of the structure.

D. Removal and Reclamation.

  (1) Upon termination of mining the permittee shall remove access or haul roads and shall grade and vegetate the land affected to be consistent with the approved mining and reclamation plan, unless retention of a road is approved as part of the postmining land use.

  (2) If a road is to remain permanently, the permittee shall leave it drained, and in a stable condition.

#### Regulation .19 Miscellaneous Requirements.

*COMAR 26.21.01.19*

A. The permittee shall restore temporary stream or watershed diversions to the original conditions wherever practicable as determined by the Department.

B. The permittee shall remove and dispose of any old equipment and man-made materials.

#### Regulation .20 Impoundments.

*COMAR 26.21.01.20*

A. Impoundments, including wash plant impoundments within surface mining permit limits, shall be permitted in accordance with Environment Article, §5-503, Annotated Code of Maryland, and COMAR 26.17.05, or approved by the appropriate soil conservation districts as appropriate according to the size of the impoundment.

B. If surface water or ground water is appropriated or used for purposes of the mining operation, the permittee shall comply with Environment Article, §5-502, Annotated Code of Maryland, and COMAR 26.17.04.

C. Any change in course, current, or cross-section of a stream shall be performed in accordance with Environment Article, §5-503, Annotated Code of Maryland, and COMAR 26.17.05.

D. A post-mining impoundment shall have a minimum water depth of 5 feet or more in at least 25 percent of its detention area, unless otherwise approved by the Department.

E. The Department may require that an impoundment having a depth greater than 5 feet be constructed with safety devices, including the following:

  (1) Vegetative or structural fencing barriers;

  (2) Earth berms;

  (3) Safety benches; and

  (4) Shallow water areas.

F. Approval of pond construction pursuant to Environment Article, §5-503, Annotated Code of Maryland, does not create an exemption to any requirement otherwise applicable under these regulations or the Act.

G. If other permits such as those listed in §§A—C of this regulation are required, the Department shall assist the permittee by supplying the proper application forms and the name and telephone number of the person to contact.

#### Regulation .21 Blasting.

*COMAR 26.21.01.21*

A. General.

  (1) The permittee shall comply with all applicable local, State, and federal laws and regulations and with this regulation in the use of explosives. To the extent this regulation is more restrictive than other applicable law or regulations, this regulation shall control.

  (2) The permittee is responsible for insuring that blasting is conducted by a person licensed under Article 38A, §§26—36, Annotated Code of Maryland.

  (3) The permittee shall conduct blasting so as not to cause injury to persons, damage to public or private property, adverse impacts on an underground mine, or adverse changes in the course, channel, or availability of ground or surface waters.

  (4) The Department may prohibit blasting in specific sensitive areas if necessary for public safety.

  (5) The Department may require a seismographic record of any blast.

  (6) Explosive weight limitations prescribed in Regulation .22B(2) of this chapter do not apply to any detonation when every person owning or controlling potentially affected residences, buildings, or structures within 1,300 feet of the permit area executes a written statement of consent, and that consent is submitted to the Department before detonation.

  (7) The permittee shall post a permanent sign, at least 2 feet by 3 feet in size at the entrance of the property, stating “Warning—Blasting Area” in legible letters.

  (8) The air blast and ground vibration limits specified in this regulation are considered the threshold below which blasting damage is unlikely to occur. The Department may require an evaluation of any blast site by a vibration consultant and, if necessary, impose more stringent limits to protect property outside the permitted area and not within the permittee's ownership or control, or to protect public safety.

  (9) After receipt and review of an application for a permit for a new surface mining operation, or for expansion of a surface mining operation permitted before the enactment of these regulations, the Department may specify a potential impact area and may require a pre-blast survey, to be submitted before any blasting. The pre-blast survey shall document any pre-blasting damage and other physical factors that could reasonably be affected by the blasting.

  (10) Assessment of structures such as pipes, cables, transmission lines, wells, and other water systems shall be limited to surface conditions and other readily available data. Special attention shall be given to the pre-blasting condition of wells and other water systems used for human, animal, or agricultural purposes, and to the quantity and quality of the water.

B. Air Blast Effects.

  (1) The maximum allowable air blast at any inhabited building may not exceed 130 decibels peak when measured by an instrument having a flat frequency response (±3 decibels) over the range of 6 to 200 hertz.

  (2) The maximum allowable air blast at any uninhabited building may not exceed 140 decibels peak when measured by an instrument having a flat frequency response (±3 decibels) over the range of 6 to 200 hertz.

  (3) When blasting is of a continuing nature, 124—130 decibels shall be the caution range.

  (4) When the air blast effects are consistently within the caution range, the blasting procedures shall be changed to reduce the decibel level on subsequent blasts in order to protect property outside the permitted rea and not within the permittee's ownership or control, or to protect public safety.

  (5) The permittee shall employ a person who is competent to use an approved instrument that has been calibrated in accordance with the manufacturer's recommendations for determining compliance with this section.

#### Regulation .22 Ground Vibration.

*COMAR 26.21.01.22*

A. Maximum Blasting Limitation.

  (1) Blasting near any dwelling, public building, school, church, commercial, or institutional building, or any other structure shall be in accordance with §B of this regulation and Regulation .23 of this chapter.

  (2) The maximum peak particle velocity of any blasting operation may not exceed 2 inches per second, measured on the ground adjacent to the nearest structure of concern, unless otherwise directed by the Department. The nearest structure of concern shall be located outside of the permit area, and may not be under the ownership or control of the permittee.

  (3) The Department may require the permittee to reduce the peak particle velocity if it determines that a lower standard is required to protect property outside the permitted area, and not under the permittee's ownership or control, or to protect public safety because of sensitive conditions relating to density of population, land use, age or type of structure, geology or hydrology of the area, frequency of blasts, or other factors.

  (4) The maximum peak particle velocity of ground motion does not apply to property inside the permit boundary.

  (5) The standards included in this regulation are intended to protect conventional low-rise structures such as homes and schools. Engineered structures may safely withstand higher vibration levels and, based upon an approved engineering study, the Department may allow higher vibration levels for engineered structures.

B. Monitoring Ground Vibration.

  (1) Monitoring Methods.

    (a) The permittee shall select a method described in Regulation .24B, Table I, Table II, or Graph I, and use it in accordance with this regulation, or use a response spectra analysis to monitor ground vibration resulting from blasting.

    (b) If the permittee uses Table I, the permittee shall submit information to the Department for approval under §A(2) of this regulation.

    (c) The permittee may select a method described in Table II or Graph I, or use a response spectra analysis without approval by the Department.

    (d) The order of methods in increasing sophistication are charge weight per delay versus distance (Table I), distance versus peak particle velocity (Table II), peak particle velocity versus frequency (Graph I), or response spectra analysis.

  (2) Table I Use.

    (a) Table I applies to ground vibration limits for blasting which the Department does not require to be measured with approved seismic instrumentation.

    (b) The maximum amount of explosives per delay may not exceed the limits in Table I.

    (c) The amount of explosives per delay may not exceed 520 pounds in any 8 millisecond or greater delay period.

    (d) The Department may approve the use of Table I at a particular site upon request of the permittee, but may request seismographic records of test blasting at the site and other information requested by the Department.

    (e) The Department may not approve the use of Table I if the peak particle velocity of 2 inches per second will be exceeded.

  (3) Table II or Graph I Use.

    (a) Table II or Graph I shall be used when the Department determines that blasting is to be monitored by a seismic instrument or system of instrumentation approved by the Department.

    (b) Blasting measured in accordance with Table II shall be conducted so that the peak particle velocity on any one component of an instrument measuring the 3 mutually perpendicular components of motion does not exceed the limits of the table.

    (c) Seismic instruments that monitor blasting in accordance with Table II shall have the instrument's transducer firmly coupled to the ground.

    (d) Blasting measured in accordance with Graph I shall be conducted so that the continuously variable particle velocity criteria versus frequency criteria is not exceeded.

  (4) If response spectra analysis is selected by the permittee, it shall be used to determine that blasting vibrations are controlled so that a relative velocity of 1.5 inches per second is not exceeded (within the 4—12 hertz range of natural frequencies for low rise structures).

#### Regulation .23 Blasting Procedures; Restrictions.

*COMAR 26.21.01.23*

A. The permittee may conduct blasting from 7 a.m. to 10 p.m. local time, except that the Department may impose a more restrictive time period if required by the local government pursuant to a local ordinance.

B. The permittee shall use sufficient stemming or natural cover to prevent flyrock from leaving the permit site.

C. If a permittee proposes to perform any blasting within 1,000 feet of any occupied dwelling, the operator shall notify any occupant and owner in the following manner:

  (1) The permittee shall publish a blasting schedule in a newspaper of general circulation in the locality of the blasting site and distribute a copy to each resident and owner of any occupied dwelling or structure at least 30 days, but not more than 45 days, before beginning a blasting program;

  (2) The copies of the schedule shall be sent by regular mail or hand delivered and record of notification and certification of publication shall be retained with the blasting records as required by §F of this regulation;

  (3) The permittee shall republish and redistribute the schedule by regular mail or hand delivery whenever there is a change in the criteria specified by §C(5) of this regulation and at least every 12 months;

  (4) A blasting schedule may not be so general as to cover the entire permit area or all working hours but shall identify as accurately as practicable the location of the blasting sites and the time periods when blasting will occur;

  (5) The blasting schedule shall contain at a minimum:

    (a) Name, address, and telephone number of permittee,

    (b) Identification of those specific areas which are not larger than 125 acres each in which blasting will take place,

    (c) Dates and time periods when explosives are to be detonated, expressed in not more than 5-hour segments, not to exceed an aggregate of 10 hours in any one day,

    (d) Methods to be used to control access to the blasting area,

    (e) A description of the audible warnings and all-clear signals to be used before and after blasting;

  (6) If blasting cannot be conducted in accordance with the published schedule because of weather or other circumstances, the permittee shall notify the Department of the reason and the date and time of blast at least 1 hour before detonation.

D. A permittee filing application for a new surface mining operation, or an expansion of the permit area of a surface mining operation permitted before the enactment of these regulations, may not conduct any blasting within the following areas except with the approval of the Department set forth in §E of this regulation;

  (1) 1,000 feet of any school, church, hospital, nursing facility, or dwelling;

  (2) 100 feet of any public road or property line;

  (3) 500 feet of facilities, such as disposal wells, petroleum or gas storage facilities, public water well or water storage facilities, fluid transmission lines, or sewer lines.

E. The Department may grant written permission to a permittee, who is subject to the requirement of §D of this regulation, to conduct blasting in the areas set forth in §D based upon the following:

  (1) The applicant obtains permission to enter appropriate nearby properties and conducts a pre-blast survey, or the applicant documents an offer and the unsuccessful attempts to conduct a pre-blast survey; or

  (2) The applicant obtains written consent of the owners of all buildings, dwellings, or structures situated within those areas.

F. If the Department grants approval the permittee shall notify the owners of properties listed in §D of this regulation in writing with a copy to the Department of the date and place of the blasting. The Department shall keep the written request and approval for a period of 4 years from the date of the blast.

G. A permittee may not detonate any explosive that is likely to cause the banks of any stream or other waterway (surface or underground), not otherwise intended to be affected by mining, to rupture causing pollution of waters of the State or alterations to the direction or volume of flow.

H. A permittee may not detonate any explosives within 500 feet of an underground mine except with the concurrence of the Mine Safety and Health Administration of the United States Department of Labor.

#### Regulation .24 Seismographic Measurements.

*COMAR 26.21.01.24*

A. When seismographic measurements are required the following shall apply:

  (1) A record of each blast shall be kept.

  (2) All records including seismographic reports shall be retained at least 4 years and shall be available for inspection and shall contain the following minimum data:

    (a) Name of blasting company or blasting contractor;

    (b) Location, date, and time of blast;

    (c) Name, signature, Social Security number of blasters;

    (d) Type of material blasted;

    (e) Number of holes, burden, and spacing;

    (f) Diameter and depth of holes;

    (g) Type of explosives used;

    (h) Total amount of explosives used;

    (i) Maximum amount of explosives per delay period of 8 milliseconds or greater;

    (j) Maximum number of holes per delay period of 8 milliseconds or greater;

    (k) Method of firing and type of circuit;

    (l) Direction and distance in feet to nearest dwelling house, public building, school, church, commercial, or institutional building not owned or leased by the person conducting the blasting;

    (m) Weather conditions (including such factors as wind direction and cloud cover);

    (n) Height or length of stemming;

    (o) Mats or other protection used;

    (p) Type of detonators used and delay periods used;

    (q) The exact location of the seismograph, and the distance of the seismograph from the blast;

    (r) Seismographic readings;

    (s) Name and signature of person operating seismograph;

    (t) Name of person and the firm analyzing seismographic record.

  (3) All field seismographs shall record the full analog wave form of the three mutually perpendicular components of motion in terms of particle velocity. All seismographs shall be capable of internal dynamic calibration and shall be calibrated according to the manufacturer's recommendations.

B. Official Tables.

#### Regulation .25 Landfills.

*COMAR 26.21.01.25*

A. If any part of the affected land is to be used as a landfill during mining or upon completion of mining, the Department may suspend the reclamation requirements for the area.

B. The permittee shall obtain the prior written approval of the Maryland Department of the Environment and any other appropriate State, county, or local agency before engaging in landfilling activities.

C. The permittee shall provide a time schedule to the Department for the orderly and timely completion of the landfill.

D. Lands used for a landfill shall continue under performance bond for the benefit of the Department until the land is approved by the Department for release.

E. The performance bond may be released if the Maryland Department of the Environment or other appropriate regulating agency approves a performance bond that is equal to or greater than the amount of bond held by the Department and if the bond provides that the mined area will be adequately reclaimed.

#### Regulation .26 Archaeological Artifacts, Historical Sites, and Threatened and Endangered Species.

*COMAR 26.21.01.26*

A. An application for a permit shall indicate the existence of known archaeological artifacts, historical sites, threatened or endangered species, or species in need of conservation located within the property to be permitted. Threatened and endangered species are defined in Natural Resources Article, §10-2A-01, Annotated Code of Maryland. Species in need of conservation are listed in COMAR 08.03.08.

B. The Department may require an archaeological, historical, threatened and endangered species, or species in need of conservation evaluation of any site before issuance of a surface mining permit.

C. In order to prevent or minimize adverse effects on these special State resources, the Department may deny or modify an application for a surface mining permit in any area where the existence of artifacts of archaeological value, historical structures, threatened and endangered species, or species in need of conservation have been documented.

#### Regulation .27 Surface Mining Permit Bond or Other Security.

*COMAR 26.21.01.27*

A. Before the Department may issue a surface mining permit, an applicant shall file a performance bond with the Department in accordance with Environment Article, §15-823, Annotated Code of Maryland.

B. Liability under the bond shall be for the duration of the mining permit, and for a period of 5 years after the permit's expiration date.

C. The bond shall be released before the time specified in §B of this regulation if the Department determines that the reclamation has been completed in accordance with the permit, the approved mining and reclamation plan, and the topographic map.

D. Upon application of the permittee, the Department may make a partial release of the bond in proportion to the amount of land reclaimed as set out in §E of this regulation.

E. A site shall be considered reclaimed if all of the following conditions are met:

  (1) The site has been reclaimed in accordance with the permit, the approved mining and reclamation plan, and topographic map;

  (2) If vegetation is required, it has been viable for at least two or more growing seasons;

  (3) 90 percent of the permit area that is required to be vegetated has been successfully vegetated;

  (4) If the permit area is to be reclaimed as farmland, the operator shall demonstrate that two or more crops have been harvested, and that the crop yield is typical of the area;

  (5) Any trees that have been planted survive three or more growing seasons.

F. The Department may withhold release of the bond or other security for a period not to exceed 3 years from the Department's determination of completion of the reclamation requirements of the mining and reclamation plan in order to verify the success of reclamation, but not longer than the duration of the bond.

G. The permittee may request that the Department reduce the amount of the bond during the extended period provided for in §F of this regulation, except that the new bond amount shall be sufficient to cover the cost of performing any additional work necessary to complete the reclamation.

H. Bonds may be adjusted upon renewal, modification, or transfer of a permit to maintain the bond at a level sufficient to accomplish the approved mining and reclamation plan.

I. The permittee, or the bond issuing entity, shall send a written notice to the Department 90 days before the expiration or maturity date of any surety bond, certificate of deposit, or irrevocable letter of credit.

J. A processing plant area may be considered reclaimed and the portion of the bond that applies to that area may be released, if one of the following conditions is met:

  (1) The plant, except for buildings which are permanent structures, is dismantled and removed from the site, and the site is reclaimed in accordance with the approved mining and reclamation plan and topographic map; or

  (2) A county or local regulatory agency issues a grading permit or other applicable permit that:

    (a) Applies to a wash processing plant area,

    (b) Requires the site to be reclaimed,

    (c) Requires a bond to be filed with the regulatory agency in an amount sufficient to reclaim the site, and

    (d) Requires the bond to be used to reclaim the site.

K. Any impoundment that results from mining activity and that will remain as part of the final landform shall be constructed or reconstructed in accordance with Environment Article, §5-503, Annotated Code of Maryland, and COMAR 26.17.05 before the bond will be released by the Department.

#### Regulation .28 Confidentiality.

*COMAR 26.21.01.28*

A. Except as provided in §B of this regulation, the Department will not consider the information contained in applications for a surface mining license or surface mining permit and any supporting documents to be confidential, unless the applicant requests that information not be disclosed by the Department in accordance with State Government Article, Title 10, Subtitle 6, Annotated Code of Maryland.

B. The following information submitted to the Department is confidential and not a matter of public record and may be released only with the written consent of an applicant or permittee:

  (1) Information pertaining to the volume of mineral produced and the value of product that is submitted on the Annual Mining and Reclamation Report;

  (2) Information resulting from test borings submitted as a requirement to obtain a surface mining permit.

#### Regulation .29 Violations.

*COMAR 26.21.01.29*

A. In addition to other enforcement remedies provided by law, if the Department has reason to believe that an operation is in violation of the Act, these regulations, or the permit, the Department may issue a site complaint, notice of violation, stop work order, or any combination of these notices.

B. Site Complaints and Notices of Violation.

  (1) A site complaint or notice of violation shall be in writing, signed by an authorized representative of the Department, and shall contain the following:

    (a) Name of the violator;

    (b) Factual findings of the Department;

    (c) Description of the location of the violation;

    (d) Statute, regulation, or permit condition that the Department believes to have been violated;

    (e) Description of the remedial measures to be taken and a time limit including a schedule for interim steps;

    (f) Notice of the opportunity for a hearing.

  (2) The Department, by written notice, may extend any time limit set by a site complaint or notice of violation for a period not to exceed 90 days from the date of issuance of the site complaint or notice of violation, except upon request and showing by the violator that it is not feasible to abate the violation within 90 days due to one or more of the following circumstances:

    (a) The violator has timely applied for and diligently pursued necessary approval from the appropriate State, county, and local agencies of designs or plans, but the approval will not be issued within the time required by the Department for reasons not within the control of the permittee;

    (b) There is a valid judicial order precluding abatement within 90 days; or

    (c) Climatic conditions preclude abatement within 90 days.

  (3) The Department will not extend a time limit when the violator's failure to comply within 90 days has been caused by a lack of diligence or intentional delay by the permittee.

C. Stop Work Order.

  (1) The Department may issue a stop work order when it determines that an operation is in violation and that the noncompliance:

    (a) Involves mining operations being conducted without a permit or license;

    (b) Involves mining outside the permit area;

    (c) Involves mining in excess of the maximum area of disturbance specified in the permit;

    (d) Creates an imminent danger to the health and safety of the public; or

    (e) Is causing or can reasonably be expected to cause significant environmental harm.

  (2) The Department may issue a stop work order if a violator has failed to meet the time set for abatement or an interim step specified in a notice of violation.

  (3) The Department may issue a stop work order for repeated violations of the Act, these regulations, the permit, or the license.

  (4) A stop work order shall be in writing, signed by an authorized representative of the Department, and shall contain the following:

    (a) Name of the violator;

    (b) Factual findings of the Department;

    (c) Description of the location of the violation;

    (d) Statute, regulation, or permit condition that the Department believes to have been violated;

    (e) Description of the remedial measures to be taken and a time limit including a schedule for interim steps;

    (f) Notice of the opportunity for a hearing.

  (5) Upon issuance of a stop work order, the violator shall immediately cease all mining activities as specified in the order and shall immediately take steps to abate the violation or violations and to comply with the order provided that reclamation that would not deter compliance shall continue during the period of the stop work order.

  (6) A stop work order shall remain in effect until the violation has been corrected and until the Department has modified or terminated the stop work order in writing.

  (7) The Department by written notice may modify or terminate a stop work order for good cause shown.

  (8) The Department may terminate a stop work order in writing when it determines that all violations in the stop work order have been corrected and that the operation is in compliance with the Act, these regulations, and the permit.

  (9) Termination of the stop work order does not preclude legal action by the State relating to the present or a subsequent violation.

D. Service of Site Complaints, Notices of Violations, and Stop Work Orders.

  (1) The Department first shall attempt to serve the permittee or the violator if the site is unpermitted. The Department may serve any individual at the site who is an employee or agent of the permittee or violator. Service shall be effective upon tender of a notice or order, and is effective whether or not delivery is accepted.

  (2) If personal service as set forth in §D(1) of this regulation is not possible, service shall also be effected by mailing a copy of the notice or order by certified mail, return receipt requested, to the address stated on the permit. Service by mail shall be effective upon mailing and is effective whether or not delivery is accepted.

#### Regulation .30 Certification of Inspectors.

*COMAR 26.21.01.30*

A. The Department shall employ qualified inspectors and other personnel to enforce the Act, these regulations, and permit conditions.

B. Criteria for qualifying as an inspector shall include the following:

  (1) A college degree in mining engineering, civil engineering, geology, hydrology, agronomy, forestry, biology, or any of the physical or earth sciences; or

  (2) A working knowledge of erosion and sediment control technology, health, safety, earth moving, or any other field pertinent to surface mining activities.

### Chapter 02 — Zone of Dewatering Influence

**Authority:** Environment Article, §§15-803 and 15-813, Annotated Code of Maryland

**Administrative History:** Effective date: May 14, 2001 (28:9 Md. R. 891)

#### Regulation .01 Scope.

*COMAR 26.21.02.01*

The provisions of this chapter, which are in addition to the requirements of COMAR 26.21.01, apply to permit applications for surface mines that:

A. Are located in karst terrane, as defined in Environment Article, §15-813, Annotated Code of Maryland, within Baltimore, Carroll, Frederick, and Washington counties; and

B. Require a water appropriation permit under Environment Article, §5-502, Annotated Code of Maryland.

#### Regulation .02 Definitions.

*COMAR 26.21.02.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Carbonate rock” means a rock primarily composed of calcium carbonate or magnesium carbonate.

  (2) “Dewatering effects” means the lowering of ground water levels as a result of pumping ground water out of a surface mine.

  (3) “Sinkhole” means a sudden subsidence or collapse of the land surface in an area where the bedrock is comprised of carbonate rock.

  (4) “Zone of dewatering influence” means an area:

    (a) Approved by the Department, based on Environment Article, §15-813, Annotated Code of Maryland, around a surface mine in karst terrane;

    (b) In which dewatering of the surface mine may significantly interfere with water supply wells and may cause sudden subsidence of land; and

    (c) In which the Department may require the permittee to:

      (i) Replace water supplies that fail as a result of declining ground water levels;

      (ii) Repair property damage caused as a result of the sudden subsidence of the surface of the land; or

      (iii) Pay monetary compensation to the affected property owner if the subsidence cannot be repaired.

#### Regulation .03 Permit Conditions.

*COMAR 26.21.02.03*

A. Monitoring Network.

  (1) The Department may require the permittee to establish a ground water monitoring observation network in the vicinity of the surface mine. The locations of monitoring points and the frequency of measurements shall be specified by the Department in the permit.

  (2) Existing and privately owned wells may be a part of the monitoring network if approved by the Department and written consent is given by the property owner.

  (3) The Department may require the permittee to install monitoring wells.

B. The Department may require the permittee to measure stream flow and precipitation on a continuing basis in the vicinity of the surface mine. The locations and frequency of measurement shall be specified by the Department in the permit.

C. The Department may require the permittee, when the permittee becomes aware of a sinkhole which occurs on lands located within the zone of dewatering influence, to immediately report the sinkhole to the Department. If a sinkhole occurs within a roadway or creates a public safety hazard, the permittee shall also report the sinkhole to the appropriate authorities.

D. The permittee shall maintain liability insurance in the amount of $1,000,000 per occurrence, payable to any property owner for:

  (1) The full amount of damages resulting from subsidence due to the permittee's mining operation; or

  (2) Water supply replacement within the zone of dewatering influence.

E. The permittee shall develop a water supply replacement plan to provide for replacement of water supplies affected within the zone of dewatering influence.

#### Regulation .04 Sinkhole Occurrence Within the Zone of Dewatering Influence.

*COMAR 26.21.02.04*

A. When the permittee becomes aware that a sinkhole has occurred within a zone of dewatering influence, the permittee shall immediately:

  (1) Report the occurrence to the Department; and

  (2) Implement appropriate safety measures to protect the public.

B. When a sinkhole occurs within a zone of dewatering influence, the permittee may not knowingly:

  (1) Leave a sinkhole which occurs within a roadway or creates a public safety hazard unattended until appropriate State or local officials arrive, or

  (2) Repair the sinkhole without authorization from the Department, unless protection of property or public safety warrants immediate repair.

C. Investigation of Reported Sinkholes.

  (1) The Department shall investigate reported sinkholes to determine their proximate cause.

  (2) The Department's investigation may include the following:

    (a) Stratigraphic analysis of the site;

    (b) Surface and subsurface drainage patterns;

    (c) Investigation of water tables and usage in the area;

    (d) Topographic and geologic maps;

    (e) Dye tracing;

    (f) Aerial photography analysis; and

    (g) Any other evidence available to the Department.

D. If the Department determines that the proximate cause of sinkhole damage within a zone of dewatering influence is surface mine dewatering, it shall notify the permittee, in writing. Within 14 days of receipt of the Department's notification, the permittee may provide a written response or information to the Department.

E. If the permittee does not respond, or responds but the Department does not change its finding of proximate cause, the permittee shall, within 14 days after the Department issues its findings, submit a plan and schedule for repair of the sinkhole damage to the Department for approval, subject to any right to contested case hearing. The repair plan shall ensure future stability and protection of ground water quality. The permittee shall repair real or personal property in accordance with Environment Article, §15-813(e), Annotated Code of Maryland. The permittee shall obtain written approval from the owner of the affected real property before beginning any repair work.

F. Damage Assessment and Compensation.

  (1) If the damage cannot be restored to its presubsidence condition, the permittee shall pay monetary compensation to the property owner.

  (2) The property owner shall be compensated for the value of the owner's property based upon the difference in the fair market value before the subsidence damage and the fair market value as it exists with the damage.

  (3) Fair market value shall be established by a certified general appraiser familiar with property values in the area.

  (4) The permittee shall retain a certified general appraiser who is:

    (a) Licensed by the Maryland Department of Labor; and

    (b) Familiar with property values in the area of the affected property.

  (5) The permittee shall pay the cost of the damage assessment.

  (6) The property owner shall bear all cost for any independent appraisal if the property owner does not accept the damage assessment as established by the appraisal performed by the certified general appraiser.

  (7) A copy of the appraisal or appraisals shall be submitted to the Department and the property owner impacted by the damage.

  (8) The Department shall make the final determination of the damage assessment if the damage assessment established by the property owner's appraisal differs from the damage assessment established by the appraisal performed by the certified general appraiser.

G. If the property owner refuses the permittee permission to enter the land to make sinkhole repairs, conduct appraisals, or establish damages, the Department shall notify the property owner that, by refusing to grant the permission, the permittee has no obligation to repair the damage or to pay monetary compensation until permission to enter the land is granted by the property owner.

#### Regulation .05 Water Supply Loss Within the Zone of Influence.

*COMAR 26.21.02.05*

A. Within the Zone of Dewatering Influence.

  (1) The permittee shall:

    (a) Notify the Department within 24 hours of any reported or known water supply failure; and

    (b) File a written report with the Department within 72 hours of the notification that identifies the cause of the water loss and how and when the permittee will replace water supply.

  (2) The Department may extend the time for filing the report based upon the permittee demonstrating that the delay is due to circumstances beyond the control of the permittee.

B. Unless the permittee can demonstrate by clear and convincing evidence that the proximate cause of the water supply loss is not surface mine dewatering, the permittee shall:

  (1) Immediately provide a temporary water supply until a permanent replacement can be restored;

  (2) Replace at no cost to the property owner a permanent potable water supply that meets the minimum yield requirements established in COMAR 26.04.04;

  (3) Notify the property owner that if it is determined by the Department that the permittee's dewatering activity is not the proximate cause of the water supply loss, the cost of water supply replacement is subject to reimbursement by the property owner;

  (4) Take responsibility for providing adequate testing to verify the potability of the water supply; and

  (5) File, within 15 days of the completion of replacement, a report detailing the procedures taken to replace the failed water supply.

C. If it is determined by the Department that the permittee's dewatering activity is not the proximate cause of the water supply loss, the permittee may seek reimbursement for the cost of the water supply replacement from the affected property owner.

D. If the property owner refuses the permittee permission to enter the land to replace water supplies or to conduct investigations to make a determination of the cause of the water supply loss, the Department shall notify the property owner that, by refusing to grant the permission, the permittee has no obligation to replace the water supply until permission to enter the land is granted.

#### Regulation .06 Request for Contested Case Hearing.

*COMAR 26.21.02.06*

A. Water Supply Replacement.

  (1) Within 14 days of the mailing date of a decision by the Department regarding the replacement of a water supply, an aggrieved party may make a written request for a contested case hearing.

  (2) The request for a contested case hearing shall be in writing and shall clearly state the reasons for the request and the remedy sought.

  (3) A request for a contested case hearing does not stay the findings of the Department in regard to water supply replacement.

  (4) An aggrieved party may request a stay of the final decision of the Department as provided in Environment Article, §5-204(h), Annotated Code of Maryland.

B. Sinkhole Damage.

  (1) Within 14 days of the mailing date of any decision by the Department regarding the repair of a sinkhole, an aggrieved party may make written request for a contested case hearing.

  (2) The request for a contested case hearing shall be in writing and shall clearly state the reasons for the request and the remedy sought.

  (3) A request for a contested case hearing does not stay the findings of the Department in regard to sinkhole damage and repair.

  (4) An aggrieved party may request a stay of the final decision of the Department as provided in Environment Article, §5-204(h), Annotated Code of Maryland.

### Chapter 03 — Public Notice for Existing Permits

**Authority:** Environment Article, §§15-803 and 15-813, Annotated Code of Maryland

**Administrative History:** Effective date: May 14, 2001 (28:9 Md. R. 891)

#### Regulation .01 Scope.

*COMAR 26.21.03.01*

For surface mining permits issued before the effective date of this regulation, for which the Department is to establish zones of dewatering influence in accordance with Environment Article, §15-812, Annotated Code of Maryland, the Department shall provide public notice and informational hearings in accordance with the provisions of this chapter.

#### Regulation .02 Interested Persons List.

*COMAR 26.21.03.02*

The Department shall compile an interested persons list containing the names of:

A. All property owners within and contiguous to the Department's proposed zone of dewatering influence;

B. Appropriate local officials; and

C. All individuals that comment on, make inquiries about, or provide information about the zone.

#### Regulation .03 Public Informational Hearing.

*COMAR 26.21.03.03*

A. When the Department has made a tentative decision on the areal extent of the zone of dewatering influence, a public informational hearing shall be conducted to discuss the proposed zone.

B. The Department shall notify all persons on the interested persons list of the time, date, and location of the public informational hearing a minimum of 14 days before the hearing. The Department shall publish notice of the public informational hearing in a newspaper of general circulation in the county where the surface mine is located a minimum of 14 days before the scheduled public informational hearing.

C. The public notice provided under §B of this regulation shall include:

  (1) The name and location of the surface mine operation;

  (2) The name, address, and telephone number of the office within the Department from which information regarding the proposed zone of dewatering influence may be obtained;

  (3) A statement that further notices about the decision of the Department regarding establishment of the zone of dewatering influence will be provided only by mail to those persons on the interested persons list;

  (4) A description of how persons may submit information or comments about the proposed zone of influence or request to be on the interested persons list; and

  (5) The date, time, and location of the public informational hearing.

#### Regulation .04 Department Decision.

*COMAR 26.21.03.04*

The Department shall mail written notice of the decision establishing the zone of dewatering influence to:

A. The permittee; and

B. Persons on the interested persons list.

#### Regulation .05 Requests for Contested Case Hearings.

*COMAR 26.21.03.05*

A person on the interested persons list aggrieved by the decision of the Department regarding establishment of the zone of dewatering influence may request a contested case hearing as provided in Environment Article, §5-204, Annotated Code of Maryland.

### Chapter 04 — Utilization of Coal Combustion Byproducts in Noncoal Surface Mine Reclamation

**Authority:** Environment Article, §§1-404 and 15-803, Annotated Code of Maryland

**Administrative History:** Effective date: December 1, 2008 (35:24 Md. R. 2080)

#### Regulation .01 Scope.

*COMAR 26.21.04.01*

A. The purpose of this chapter is to establish certain requirements pertaining to the use of coal combustion byproducts in the reclamation of a noncoal surface mine.

B. Except as otherwise specifically provided in this chapter, this chapter applies to persons engaged in the generation, storage, handling, processing, recycling, or use of coal combustion byproducts that are used or are to be used in the reclamation of a noncoal surface mine.

C. Compliance with the provisions of this chapter does not relieve a person from the duty to comply with any other applicable federal, State, and local laws, regulations, and ordinances.

#### Regulation .02 Definitions.

*COMAR 26.21.04.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) Coal Combustion Byproducts.

    (a) “Coal combustion byproducts” means the residue generated by or resulting from the burning of coal.

    (b) “Coal combustion byproducts” includes fly ash, bottom ash, boiler slag, pozzolan, and other solid residuals removed by air pollution control devices from the flue gas and combustion chambers of coal burning furnaces and boilers.

    (c) “Coal combustion byproducts”, in this chapter, does not include flue gas desulfurization sludge and other solid residuals recovered from flue gas by wet or dry methods.

  (2) “Department” means the Department of the Environment.

  (3) “Leachate” means liquid that:

    (a) Has percolated through, has drained from, or has been generated by coal combustion byproducts; and

    (b) Has extracted dissolved material, miscible material, suspended material, or all of these from the coal combustion byproducts.

  (4) “Monitoring plan” means the ground water and surface water monitoring plan described in Regulation .07 of this chapter.

  (5) “Monitoring well” means any hole made in the ground to examine ground water.

  (6) “Owner” means a person who owns a site or any part of a site.

  (7) “Permeability” means the hydraulic conductivity of a media relative to water at standard temperature, unit hydraulic gradient, and a kinematic viscosity of 1.0 centipoise, irrespective of media thickness.

  (8) “Permittee” means a person that:

    (a) Holds a valid permit to conduct surface mining and reclamation operations under Environment Article, Title 15, Subtitle 8, Annotated Code of Maryland, that includes the use of coal combustion byproducts for mine reclamation;

    (b) Holds a valid permit to conduct surface mining and reclamation operations under Environment Article, Title 15, Subtitle 8, Annotated Code of Maryland, and is applying for a permit modification to use coal combustion byproducts for mine reclamation; or

    (c) Is applying for a permit to conduct surface mining and reclamation operations under Environment Article, Title 15, Subtitle 8, Annotated Code of Maryland, and proposes to use coal combustion byproducts for mine reclamation.

  (9) “Person” means an individual, corporation, company, association, society, firm, partnership, joint venture, joint stock company, or other entity, or a federal, State, or local government or governmental unit, or any political subdivision of this State or any of its agencies or instrumentalities.

  (10) “Pozzolan” has the meaning stated in Environment Article, §15-407, Annotated Code of Maryland.

  (11) “Runoff” means any rainwater, leachate, or other liquid that drains over land from any part of a site.

  (12) “Run-on” means any rainwater, leachate, or other liquid that drains over land onto any part of a site.

  (13) “Site” means a noncoal surface mine where coal combustion byproducts are used, or are proposed to be used, for reclamation of the surface mine, including areas contiguous to the mine, which are covered by the surface mining permit.

  (14) “Sludge” means any solid, semi-solid or liquid waste generated by a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility, including sewage sludge but exclusive of the treated effluent from a wastewater treatment plant.

  (15) “State” means the State of Maryland.

  (16) “TCLP” means Toxicity Characteristic Leaching Procedure.

#### Regulation .03 Authorization of Use and General Requirements.

*COMAR 26.21.04.03*

A. Authorization of Use.

  (1) Coal combustion byproducts may be used in the reclamation of a permitted noncoal surface mine only when approved by the Department.

  (2) The Department shall review and approve the use as part of a permit review or permit modification in accordance with this chapter and in accordance with the applicable provisions of Environment Article, Title 15, Subtitle 8, Annotated Code of Maryland, and COMAR 26.21.

B. General Requirements.

  (1) Flue gas desulfurization sludge and other solid residuals recovered from flue gas by wet or dry methods that are generated by the combustion of coal may not be used in the reclamation of a noncoal surface mine.

  (2) The use of coal combustion byproducts in the reclamation of a noncoal surface mine shall be designed to prevent the degradation of water quality.

  (3) Coal combustion byproducts containing a constituent at a level exceeding the TCLP toxicity limits defined in 40 CFR §261.24 may not be used in the reclamation of a noncoal surface mine.

  (4) To minimize leachate generation, coal combustion byproducts used in noncoal surface mine reclamation shall be placed in layers and compacted to at least 90 percent of its maximum dry density based on ASTM D698 (Standard Proctor), or to a permeability of less than 10-5 centimeters/second. Thickness of each layer may not be greater than 12 inches.

  (5) Final grade of a site after reclamation may not exceed approximate pre-mining contours at the site, except where post-mining land use requires minimal variation and is approved by the Department.

  (6) Coal combustion byproducts may not be placed in ground or surface waters and may not be placed within 3 feet of the maximum expected ground water elevation at the site, unless the Department approves otherwise upon a demonstration that ground water contamination will not occur.

  (7) The area of exposed coal combustion byproducts at a site shall be minimized and may not exceed 5 acres unless approved by the Department.

  (8) Coal combustion byproducts at a site shall be immediately placed and compacted and may not be stockpiled.

  (9) If placement of coal combustion byproducts is halted for more than 15 days, the coal combustion byproducts shall be covered to prevent infiltration of ground or surface water.

  (10) Adequate measures shall be taken to minimize dust at a site as follows:

    (a) A person shall control dust by moisture-conditioning the coal combustion byproducts before they leave the coal combustion byproducts generating facility, or by handling them in sealed containers designed for transportation of powdery solids and moisture-conditioning them prior to off-loading them to the ground;

    (b) A person shall control dust by spreading and compacting the coal combustion byproducts upon arrival at a site;

    (c) A person may not store uncompacted coal combustion byproducts at a site;

    (d) A water truck shall be available to add water at a site as needed for fugitive dust control; and

    (e) The Department may require other measures it considers necessary to protect public health and the environment.

  (11) Only coal combustion byproducts obtained from sources approved by the Department may be used at a site.

  (12) Coal combustion byproducts may not be placed within 200 feet of any lands not owned by the permittee or owner.

  (13) A permittee shall implement an erosion and sediment control plan that satisfies the requirements of Environment Article, Title 4, Subtitle 1, Annotated Code of Maryland, and COMAR 26.17.01.

  (14) A permittee shall provide a minimum of two upgradient and two downgradient monitoring wells at a site. The Department may require additional monitoring wells based upon site conditions. Monitoring wells shall be constructed and installed by a State-licensed well driller in accordance with COMAR 26.04.04. The well screen or slotted casing shall extend from the seasonally high water table downward a minimum of 15 feet.

  (15) A permittee shall comply with all other permits and approvals required by the Department.

#### Regulation .04 Application for Use.

*COMAR 26.21.04.04*

A. Before using coal combustion byproducts in the reclamation of a noncoal surface mine, a permittee shall submit to the Department for review and approval an application and comprehensive plans for the reclamation project, including, but not limited to, plans for the development and implementation of a leachate control and collection system.

B. The Department shall review and, if acceptable, approve the application and plans before the use of the coal combustion byproducts.

C. The plans shall contain the following at a minimum:

  (1) A completed and signed application on a form provided by the Department;

  (2) A comprehensive physical and chemical description of the coal combustion byproducts to be used for reclamation at the site, including:

    (a) Identification of the source of the coal combustion byproducts;

    (b) The amounts of coal combustion byproducts proposed to be used in the reclamation; and

    (c) The characterization report required by Regulation .05 of this chapter;

  (3) A topographic map which is an accurate depiction of the site at the time the application is filed, prepared to a scale not smaller than 1 inch equals 100 feet, which depicts the property boundaries, on-site buildings and structures, and obvious surficial features, including but not limited to:

    (a) Current and proposed affected lands;

    (b) Springs and seeps;

    (c) Streams, whether intermittent or perennial;

    (d) Rock outcrops;

    (e) Sink holes;

    (f) Surface impoundments;

    (g) Existing wells within 1,250 feet of the boundaries of the site;

    (h) 100-year flood plain and any nontidal wetlands;

    (i) Forested or other vegetated areas; and

    (j) The location of any buried or overhead power transmission lines, utility pipelines, or storage tanks on the site;

  (4) A discussion of the geologic formations directly underlying and in close proximity to the site;

  (5) Ground water elevation data from the site and a prediction of the maximum expected ground water elevation at the site, including an explanation of how the ground water elevation estimates were derived;

  (6) Geologic cross sections of the site in sufficient detail and orientation to clearly identify subsurface conditions;

  (7) Representative background ground water quality data from monitoring wells identified by the Department for the parameters set forth in Table I in Regulation 07A of this regulation, or other parameters required by the Department;

  (8) Test boring logs, well completion reports, piezometric measurements, chemical or physical soil analyses, or both, and accompanying geotechnical analyses;

  (9) A description of how coal combustion byproducts will be placed, including a detailed description of fill construction and phasing;

  (10) A map or drawing depicting the initial and final grades of the site after completion of coal combustion byproduct placement;

  (11) A discussion of the projected future use of the site;

  (12) The volume and type of available cover material to be used;

  (13) Means of controlling access to the site;

  (14) Proposed operating procedures, including:

    (a) Hours of operation;

    (b) Necessary equipment to handle materials delivered to the site;

    (c) Means to control dust and wind erosion;

    (d) Means to control dust and wind erosion; and

    (e) Procedures to be followed upon delivery of the coal combustion byproducts;

  (15) Methods of controlling runoff or run-on to the site and a detailed description of the sediment and erosion control system to be implemented, which shall satisfy the requirements of Environment Article, Title 4, Subtitle 1, Annotated Code of Maryland, and COMAR 26.09.01;

  (16) A description of proposed methods of covering and stabilizing completed areas;

  (17) A description, including flow diagrams, of the processes generating leachate, including raw materials, intermediate byproducts, final products, and process streams;

  (18) A description of the design features and systems intended to protect ground water from leachate, including a detailed description of the proposed liner and leachate collection system;

  (19) A discussion as to how leachate will be collected, removed from the site, and ultimately disposed of;

  (20) A description of quality assurance/quality control protocols;

  (21) A monitoring plan as described in Regulation .07 of this chapter; and

  (22) Other information as may be required by the Department.

#### Regulation .05 Initial and Ongoing Characterization.

*COMAR 26.21.04.05*

A. A person who uses or intends to use, or gives, sells, or otherwise provides for use, coal combustion byproducts for noncoal surface mine reclamation shall develop and implement a sampling plan, using a methodology acceptable to the Department for the initial characterization of the coal combustion byproducts.

B. The sampling plan shall include the following:

  (1) A list of the parameters to be analyzed and their detection limits (Practical Quantitation Limits—PQL), which shall include, at a minimum, the following:

  (2) A description of analytical methods to be used in the characterization, which is subject to the approval of the Department; and

  (3) Other information as may be required by the Department.

C. Coal combustion byproducts shall be characterized in accordance with the sampling plan developed under §A of this regulation at least one time per calendar year.

D. Laboratory results from the initial and ongoing characterizations of the coal combustion byproducts shall be submitted to the Department and to any recipients of the coal combustion byproducts.

E. If there is a change in the raw materials or processes that generate the coal combustion byproducts, the generator of the coal combustion byproducts shall characterize the byproducts in accordance with the sampling plan and submit the results to the Department. All subsequent characterizations shall include any additional parameters found in the coal combustion byproducts.

#### Regulation .06 Leachate Control and Collection.

*COMAR 26.21.04.06*

A. Minimum Requirements.

  (1) The use of coal combustion byproducts in the reclamation of a noncoal surface mine requires the installation of a liner and leachate control and collection system that meets the minimum requirements of this section.

  (2) A liner system shall be designed, constructed, and installed to facilitate collection of leachate generated from the coal combustion byproducts to prevent migration of pollutants to the adjacent subsurface soil, ground water, or surface water. The subbase referenced below shall be constructed of natural earthen materials which are excavated from on the site or which are imported from another location, or of a synthetic or manufactured membrane material. The liner system shall be:

    (a) Constructed of materials that have sufficient strength and thickness to prevent failure due to pressure gradients, physical contact with the coal combustion byproducts or leachate, climatic conditions, the stress of installation, and the stress of daily operation;

    (b) Constructed of one or more unreinforced synthetic membranes with a combined minimum thickness of 50 mil, or a single reinforced synthetic membrane with a minimum thickness of 30 mil, which has a permeability less than or equal to 1 × 10-10 centimeters/second, placed over a prepared subbase with a minimum thickness of 2 feet and a permeability less than or equal to 1 × 10-5 centimeters/second, unless the Department authorizes the installation of a liner system with specifications different than those listed in this paragraph only upon a successful demonstration by the permittee that:

      (i) The alternate system is capable of collecting and managing the leachate generated at the site; and

      (ii) The liner system provides an equivalent level of protection to public health and the environment;

    (c) Placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, uplift, puncture, cutting, or activities at the site;

    (d) Installed to cover all surrounding earth likely to be in contact with the coal combustion byproducts or leachate;

    (e) Installed with a minimum slope of 2 percent to facilitate movement of leachate towards the leachate collection system and prevent leachate from ponding on the fill floor; and

    (f) Located entirely above the composite high water table and bedrock, with a minimum buffer distance of 3 feet between the bedrock elevation and the maximum expected ground water elevation, and the bottom of the liner system including the thickness of the prepared subbase.

  (3) A leachate collection and removal system, located immediately above the liner shall be designed, constructed, maintained, and operated to collect and remove leachate generated from the coal combustion byproducts. The leachate collection and removal system shall be:

    (a) Constructed of materials that are chemically resistant to the coal combustion byproducts and the leachate expected to be generated, and of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying coal combustion byproducts, cover and other materials, and by any equipment used at the site;

    (b) Designed and operated to function without clogging; and

    (c) Designed and operated to ensure that the leachate depth over the liner does not exceed 12 inches.

B. Based on site conditions, the size and design of the project, and other considerations as determined by the Department, the Department may require other liner and leachate control and collection requirements it considers necessary to protect public health and the environment.

#### Regulation .07 Monitoring.

*COMAR 26.21.04.07*

A. A person who proposes to use coal combustion byproducts in the reclamation of a noncoal surface mine shall submit a monitoring plan to the Department for review and approval.

B. The monitoring plan shall be prepared in accordance with the following requirements and include at least the following information:

  (1) A description of a system for monitoring the quality of the waters of the State around and beneath the site, including:

    (a) A description of the number, location, and types of monitoring wells and sampling stations;

    (b) The methods of construction of the monitoring wells; and

    (c) A monitoring well location map;

  (2) A schedule for the frequency of the analyses;

  (3) A description of sampling and analyses procedures;

  (4) A list of parameters to be monitored;

  (5) A schedule of reporting periods; and

  (6) Other information as the Department may require.

C. Monitoring and Reporting Requirements.

  (1) A permittee shall submit to the Department a report on water quality on at least a quarterly basis, or at such other times as outlined in the approved monitoring plan, containing summary and interpretative discussion of all analyses of the chemical quality of ground water from all of the monitoring wells and all of the surface water monitoring points specified in the approved monitoring plan.

  (2) The quarterly report on water quality shall be submitted to the Department within 30 days of the close of each quarter unless an alternative schedule is specified in the approved monitoring plan.

  (3) Sampling shall occur monthly unless an alternative schedule is included in the approved monitoring plan.

  (4) A permittee shall arrange for a qualified ground water scientist to sample, or to oversee qualified environmental technicians who sample, the monitoring wells.

  (5) The parameters to be measured and their Practical Quantitation Limits (PQL) are listed in Table I of this regulation. The Department may require and approve an alternative or additional list of parameters or an alternative PQL for any parameter.

  (6) The sampling, sample handling, analyses and reporting of analytical parameters shall be performed in accordance with the approved monitoring plan.

  (7) A permittee shall arrange for a qualified independent laboratory or which is otherwise acceptable to the Department to perform the analyses.

  (8) A permittee shall arrange for a qualified ground water scientist or professional to evaluate the results and advise the permittee of any changes in water quality or any exceedance of a State or federal drinking water or ground water quality standard.

  (9) A permittee shall include a complete copy of the laboratory data, and the qualified ground water scientist or professional's interpretive findings in each report.

  (10) If analytical results from samples collected from any sources associated with a site or surrounding properties exceed a State or federal drinking water or ground water quality standard for the first time, a permittee shall notify the Department within 24 hours of receipt of the analytical data detecting the occurrence. Thereafter, if there is a significant increase above a State or federal drinking water or ground water quality standard, a permittee shall notify the Department within 24 hours of receipt of the analytical data detecting this occurrence.

  (11) Upon detection of the exceedance of a State or federal drinking water or ground water quality standard for the first time, a permittee shall immediately resample each monitoring point in which the standard was exceeded to verify the initial detection. This resampling shall occur as soon as possible. If circumstances make immediate resampling impossible, the permittee shall notify the Department of the circumstances, and the Department may approve a longer period for resampling which shall be not later than 30 days following notification of a permittee of the initial exceedance.

  (12) If the exceedance continues beyond the 30-day resampling period, a permittee shall submit a noncompliance report to the Department within 5 days, and notify the local health department of the exceedance. The Department may require a permittee to submit a clean up and containment plan or take such other action as it considers necessary to address the exceedance.

  (13) All data for each monitoring well shall be summarized and presented in time series format. The data for each monitoring well shall be presented on a chart so that the water quality data for each parameter for each well can be observed simultaneously.

  (14) All “J” values shall be reported. “J” values are analytical results that are below the PQL but can be estimated.

  (15) Each report on water quality shall include a time series analysis of the data. The historical data from each monitoring well shall be presented in a tabular form in each report. The discussion shall emphasize historical trends in the data.

  (16) Each report shall include a status report of the amount of coal combustion byproducts placed to date and within the last quarter, the status of reclamation within the permit area, and a summary of any complaints received within the last quarter.

  (17) Each report shall include a TCLP analysis, or other test approved by the Department analyzing the chemical characteristics of the coal combustion byproducts.

  (18) The Department may require that a permittee conduct surface water monitoring if streams, springs, or other surface water features are identified.

  (19) Based on site conditions, the size and design of the project, and other considerations as determined by the Department, the Department may require other ground water and surface water monitoring requirements it considers necessary to protect public health and the environment.

D. Table I—Monitoring Parameters.

#### Regulation .08 Closure.

*COMAR 26.21.04.08*

A. Minimum Design Features.

  (1) As each section of the mine reclamation using coal combustion byproducts is completed, the section shall be closed using the minimum design features specified in this regulation, unless otherwise approved by the Department.

  (2) Low Permeability Layer. A low permeability cap shall be emplaced over the filled area. The cap material shall consist of synthetic material with a minimum thickness of 20 mil and a maximum permeability of 1 × 10-10 centimeters/second, or a minimum of 1 foot of clay or other natural fine-grained material having an in-place permeability less than or equal to 1 × 10-7 centimeters/second. The cap shall be installed with a minimum slope of 4 percent to facilitate drainage of percolate. The cap shall be placed on a bedding that is free of rocks, roots, and other injurious materials.

  (3) Drainage Layer. A drainage layer with a minimum thickness of 6 inches shall be emplaced immediately above the low permeability cap. Acceptable drainage layer material shall include clean sand or other natural coarse grained material with an in-place permeability greater than 1 × 10-3 centimeters/second adequate to remove water from above the low permeability layer sufficiently quickly that the overlying protective layers remain stable. The drainage layer shall be free of materials which may puncture or otherwise jeopardize the integrity of the low permeability cap. Commercially available filter fabrics, when used in conjunction with synthetic drainage blankets, may serve instead of the fine material, provided that the Department reviews and approves the selected materials and design configuration.

  (4) Soil Cover. A final earthen cover shall be placed over the drainage layer. The minimum cover thickness shall be 2 feet. The minimum cover slope shall be 4 percent to facilitate surface drainage from the site. The cover material shall contain sufficient organic material and nutrients to sustain a vegetative cover over time. Topsoil, or topsoil created using sewage sludge, and less select soils as authorized by COMAR 26.04.06, shall constitute acceptable final cover.

  (5) Vegetative Stabilization. Within 30 days after the final earthen cover has been installed, the area shall be vegetatively stabilized using a perennial cover species as specified in the mining and reclamation plan.

B. Based on site conditions, the size and design of the project, and other considerations as determined by the Department, the Department may require other closure requirements it considers necessary to protect public health and the environment.

#### Regulation .09 Post-Closure Monitoring and Maintenance.

*COMAR 26.21.04.09*

A. A permittee shall conduct post-closure monitoring and maintenance of a permitted site as specified in this regulation for a period of time not less than 5 years after the complete installation of the closure cap under Regulation .08 of this chapter. This time period may be extended by the Department if the Department determines an extension is necessary under §F of this regulation.

B. A permittee shall conduct all leachate management activities necessary to insure that no discharge of leachate to the ground water or unauthorized discharge to surface water occurs during the post-closure period.

C. Inspections. A permittee or a permittee's authorized representative shall inspect a closed site at least twice a year. The inspection shall include:

  (1) Observation of the cover at the site;

  (2) Notation of any drainage irregularities or signs of erosion of the cover;

  (3) Notation of any surface expressions of leachate at the site; and

  (4) Checking the status of the monitoring wells.

D. Maintenance. A permittee shall correct irregularities or problems noted during an inspection within 30 days of their observance unless otherwise directed by the Department.

E. Reporting and Record Keeping. A permittee shall record and report to the Department within 60 days of an inspection the results of the inspection. A permittee of a site shall maintain copies of the results of inspections on file at an accessible location for a period of 5 years following closure of the site.

F. Environmental Monitoring.

  (1) A permittee shall conduct ground water and surface water monitoring in accordance with the monitoring plan under Regulation .07 of this chapter for a period of at least 5 years following closure of a site.

  (2) The time period specified under §F(1) of this regulation may be extended by the Department:

    (a) If results of monitoring indicate that a possible impact on water quality caused by the surface mine reclamation is or may be occurring;

    (b) If the ground water flow regime and disposition of the monitoring system is such that the monitoring system may not yet have detected any changes if they have occurred;

    (c) If significant maintenance situations occur at a site during the 5 year period after closure; or

    (d) For other good cause.

G. If post-reclamation land use includes development of a site, a permittee shall submit to the Department for review and approval an operations plan for disturbance of the closure cap and to verify the integrity of the liner and leachate collection system.

H. The Department may retain the full surface mine bond required under Environment Article, §15-823, Annotated Code of Maryland, until the Department is satisfied that no offsite impacts from the coal combustion byproducts will occur. In making this determination, the Department shall consider the monitoring and post-closure monitoring results reported by the permittee pursuant to Regulations .07 and .09 of this chapter.

#### Regulation .10 Drinking Water Supply.

*COMAR 26.21.04.10*

Based upon monitoring data, if a drinking water supply is impacted as determined by the Department during active operation or during post-closure up to the time of bond release, a permittee shall:

A. Immediately provide a temporary potable water supply as directed by the Department until a permanent replacement is restored or replaced; and

B. Replace at no cost to affected persons a permanent potable water supply that meets the minimum yield requirements established in COMAR 26.04.04.

#### Regulation .11 Coordinated Review.

*COMAR 26.21.04.11*

The Department shall coordinate the review of an application for the use of coal combustion byproducts in noncoal surface mine reclamation with all relevant Department administrations. The Department may seek comment and advice from other agencies as it considers appropriate.

#### Regulation .12 Unauthorized Use of Coal Combustion Byproducts.

*COMAR 26.21.04.12*

A use of coal combustion byproducts in a noncoal surface mine reclamation operation that is not in compliance with the provisions of this chapter as determined by the Department may be a disposal of a solid waste as determined by the Department and subject to all applicable laws and regulations governing the disposal of a solid waste, including applicable permit requirements of the Department.

## Subtitle 22 — Coastal Facilities Review

### Chapter 01 — Coastal Facilities Review

**Authority:** Environment Article, §14-503, Annotated Code of Maryland

**Administrative History:** Effective: April 13, 1977 (4:8 Md. R. 641)

**Administrative History:** Regulations .06 and .07 amended effective February 10, 1978 (5:3 Md. R. 138)

**Administrative History:** Chapter recodified from COMAR 08.13.03 to 26.22.01, June 1996

#### Regulation .01 Definitions.

*COMAR 26.22.01.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Coastal area” means all that land and water lying within Anne Arundel, Baltimore, Calvert, Caroline, Cecil, Charles, Dorchester, Harford, Kent, Prince George's, Queen Anne's, St. Mary's, Somerset, Talbot, Wicomico, and Worcester counties, including the waters of the Chesapeake Bay, and waters lying seaward to the State's territorial jurisdiction.

  (2) “Construction” means any clearing, grading, excavation, building, or other action that would affect the natural environment of the coastal area or the commencement of any of these activities. This does not include any activity for the sole purpose of securing biological or geological data or other data for an economic or environmental analysis.

  (3) “Department” means the Department of the Environment.

  (4) “Facility” means:

    (a) Any pipeline designed to carry crude oil or natural gas ashore from offshore sources;

    (b) Any intermediate production terminal or refinery which is designed to process at least 10,000 barrels of crude oil equivalent per calendar day;

    (c) Any oil storage facility designed to handle crude oil, and:

      (i) Whose total design capacity is at least 100,000 barrels,

      (ii) Which occupies at least 50 acres, or

      (iii) Whose average throughput is at least 10,000 barrels per calendar day;

    (d) Any operations base which:

      (i) Includes port and harbor facilities,

      (ii) Occupies at least 25 acres, and

      (iii) Is designed, constructed, and operated as an assembly area for the storage, handling, and transport of supplies whose next and final destination is any oil and/or gas exploration, development, or production-related operation conducted in the territorial sea, contiguous zone, or high seas area; or

    (e) Any fabrication yard which is an assembly operation used for the construction or preparation of petroleum drilling rigs, jackets or platforms, or wellhead installations, whose final destination is installation or operation in the territorial sea, contiguous zone, or high seas area.

  (5) “Government agencies” means the government of the United States, the State of Maryland, or any other state, their political subdivisions, units, or instrumentalities, and interstate units.

  (6) “Intermediate production terminal” means a facility which is designed to perform one or more of the following functions:

    (a) Separation of natural gas from an oil or oil/water mixture or sand from an oil or oil/water mixture;

    (b) Dehydration of natural gas;

    (c) Pressurization of an oil or oil/water mixture or natural gas;

    (d) Extract and treat heavy fractions of natural gas such as butane and propane; or

    (e) Load, offload, or transship crude oil or natural gas in any form.

  (7) “Person” includes corporations, companies, associations, firms, partnerships, and joint stock companies, as well as individuals and government agencies.

  (8) “Secretary” means the Secretary of the Environment.

  (9) “Statement” means the economic, fiscal, and environmental statement required by Environment Article, §14-506, Annotated Code of Maryland.

#### Regulation .02 Statement of Purpose.

*COMAR 26.22.01.02*

These regulations are promulgated to establish procedures governing applications for the construction of facilities in the coastal area and to provide for the comprehensive review and evaluation of coastal facilities applications.

#### Regulation .03 General Procedure.

*COMAR 26.22.01.03*

A. A person may not construct, or cause to be constructed, a facility in the coastal area unless he first obtains a permit pursuant to these regulations.

B. If an application is, in the determination of the Secretary, substantively modified after the review process begins, the application, as modified, shall be processed and evaluated in accordance with these regulations.

C. Facilities for which on-site construction, excluding site preparation, has legally begun before July 1, 1975, are exempt from the provisions of the Coastal Facilities Review Act.

#### Regulation .04 Contents of Application.

*COMAR 26.22.01.04*

A. A person proposing to construct a facility in the coastal area shall file a written application with the Department.

B. The application shall contain the information set forth in this regulation.

C. The application shall contain the applicant's name and business address, and the name, title, and business address of the person or persons authorized to act on behalf of the applicant for the purposes of the application.

D. The application shall contain a summary description of the project including the purpose of the facility, location, design and operating features, provisions to mitigate aesthetic and environmental impacts, preliminary construction cost figures, and general schedules for the engineering, construction, and activation phases of the project.

E. The application shall contain general engineering descriptions for all proposed structures.

F. The application shall contain maps displaying the project as follows:

  (1) A county-wide map at a scale of 1 inch to 1 mile (1:63,360); this map shall include the number of grids in the Maryland Automated Geographic Information System pertaining to the project site;

  (2) A project location map drawn on a current 7.5 minute topographic quadrangle sheet;

  (3) A tax map showing the site by block and lot numbers, the block and lot numbers and acreage of lots within 200 feet of the site shall be included; the names and addresses of the owners of these adjacent lots shall be listed on a separate sheet;

  (4) An existing site conditions map as follows:

    (a) A topographic map and hydrographic chart, if applicable, of the site and its surroundings to a distance of 1,000 feet, prepared at a scale no smaller than 1 inch equals 200 feet, with contour levels for the site portion of the map at intervals not greater than 5 feet;

    (b) The map shall be accompanied by appropriate text identifying and describing the following items:

      (i) Boundary lines of the site, with bearings and distances;

      (ii) General topography and natural features;

      (iii) Existing structures and land uses, including open space, within 1,000 feet of the site;

      (iv) Existing easements on and within 1,000 feet of the site, with their location, width, purpose, and ownership:

      (v) Total acreage of the project site and acreage of the contiguous property owned or controlled by the applicant, if the project for which the permit application is made includes only part of this property;

      (vi) Provisions of municipal zoning ordinances, municipal and county master plans, county water and sewer and solid waste plans, State water quality management plans, transportation and school construction plans, solid waste, critical areas, and official maps applicable to the site and the area within 1,000 feet of the site;

      (vii) Public and private wetlands as defined by Environment Article, §16-101, Annotated Code of Maryland, publicly owned lands, flood plains as defined by 24 CFR §1909.1, and forested lands.

G. The application shall contain a completed Board of Public Works master application form if the application is filed in accordance with the Consolidated Permit Procedures of Article 78A, Annotated Code of Maryland.

H. The application shall contain a detailed project description as follows:

  (1) A conceptual design including maps, diagrams, and engineering descriptions of each structure; the conceptual design shall contain the following information:

    (a) The number of acres of the project site owned, leased, or held under option or other similar arrangement;

    (b) Existing and proposed buildings, major accessory structures and total land required;

    (c) Existing and proposed roads and other transportation facilities such as railroads, entranceways, parking and loading areas, piers, wharves, boat landings, and other port facilities;

    (d) Existing and proposed gas and electric utility, drainage, and other rights-of-way other than roads;

    (e) Project landscaping features;

    (f) Soil erosion and sedimentation control measures;

    (g) Storm water management techniques;

    (h) Improvements to the site and adjacent land including dredging and soil disposal activities; and

    (i) If the project is to be developed in phases, a description of each of the prospective development stages;

  (2) Descriptions and general estimates of construction costs, the construction schedule, and construction methods including the following:

    (a) The total estimated capital cost of the facility;

    (b) The number and types of firms and individuals to be employed during construction, estimates of the total construction materials and payroll, and the value of construction materials and services to be purchased in Maryland;

    (c) The construction timetable for each major component and for the total project;

    (d) The approximate dates construction will begin and end;

    (e) The construction and building techniques including procedures to be taken before or during construction of proposed facilities such as relocation of homes and commercial or industrial facilities, clearing, surveying, and environmental planning;

  (3) A description of the operations of the completed facility including the following items:

    (a) A description of the industrial operations;

    (b) The goods and services to be produced including the dollar value of goods and services if known;

    (c) Estimated annual payroll of the facility; if the facility operations will increase on a phased basis, state the total estimated payroll at each phase;

    (d) Estimated effect of the facility upon State, county, and local taxes and depreciation rates for the facility;

    (e) For both the construction and operational phases of the project, the method of transportation (pipeline, rail, water, air, or highway) for moving materials, equipment, and products to and from the facility and the expected size and weight of trucks and volume of daily truck and auto traffic;

    (f) New transportation facilities (pipelines, roads, rail lines, airports, port facilities) required as a result of construction and operation of facility;

    (g) The type of power and fuels to be used during facility operations;

    (h) The type and estimated amount of solid and liquid waste to be produced by facility construction and operation;

    (i) A description of the number and type of employees including:

      (i) The total number of employees; if the facility operations will increase on a phased basis, state the total for each phase;

      (ii) The largest number of employees on a single shift;

      (iii) If employment will be seasonal, the estimated number of seasonal employees at the peak season; and

      (iv) The estimated percentage of permanent, and temporary, employees to be hired locally;

    (j) The estimated annual amount and dollar value of supplies and services to be purchased in the State during operations;

    (k) Expected date operations will begin;

    (l) Safety provisions for emergency access by police, fire protection, and ambulance services;

    (m) Operating requirements of the facility including an explanation of how the following requirements will be met:

      (i) Electricity and other energy demands;

      (ii) Surface, or ground water, or both;

      (iii) Shoreline access; and

      (iv) Municipal facility improvements and interconnections including water, sewers, highways, and fire services;

  (4) Special facility characteristics including the following information;

    (a) For pipelines:

      (i) Starting point;

      (ii) Terminus;

      (iii) Route;

      (iv) Diameter;

      (v) Total daily throughput capacity;

      (vi) Anticipated operating capacity;

      (vii) Materials to be transported;

      (viii) Operating pressures and temperature;

      (ix) Location of pumping stations;

      (x) Sources of materials to be handled; and

      (xi) Destination of materials to be handled;

    (b) For intermediate production terminals:

      (i) Type and industrial purpose of project;

      (ii) Total daily throughput capacity;

      (iii) Anticipated operating capacity;

      (iv) Materials to be handled;

      (v) Source, destination, and end use of materials to be handled;

    (c) For crude oil storage facilities:

      (i) Total capacity of structures; and

      (ii) Source, destination, and end use of materials to be handled;

    (d) For an operations base:

      (i) Total warehouse area, and office area;

      (ii) Materials to be handled;

      (iii) Source, destination, and end use of materials to be handled;

      (iv) Port, highway, and rail traffic estimates; and

      (v) Operating procedures;

    (e) For fabrication yards:

      (i) Source of major materials;

      (ii) Destination of finished items;

      (iii) Number of structures to be constructed at one time in the facility;

      (iv) Port, highway, and rail traffic estimate;

      (v) Operating procedures to be employed in the facility;

      (vi) Industrial techniques to be employed in the facility; and

      (vii) Provisions for health, safety, general welfare, and pollution containment including written and schematic information on provisions for occupational safety, fire prevention systems, and pollution containment systems including oil containment capability, water pollution containment capability, and air pollution prevention capacity.

I. The application shall contain, for both the construction and operation phases of the project, an identification of potential sources of impacts, including noise, visual, air and water pollution, and other environmental impacts caused by the project.

J. The application shall contain a summary of the probable impacts of the project in at least the following areas:

  (1) Geology and soils of the site and surrounding region;

  (2) Hydrology of the site and surrounding region;

  (3) Vegetation of the site and surrounding region;

  (4) Fish, shellfish, and wildlife of the site and surrounding region;

  (5) Historic, archeological, and cultural resources of the surrounding regions;

  (6) Air quality;

K. The application shall contain a description of the status of all required federal licenses, permits, and other approvals, with attached supporting material, if appropriate.

L. The application shall contain a discussion of the need for the facility in the light of feasible alternatives available to the applicant, concerning, in particular:

  (1) The demand for the goods and services to be provided by the facility, including a discussion of the means employed to determine present and future demands;

  (2) The need for the construction of this particular facility, including:

    (a) An inventory of similar existing facilities operated by or available to the applicant within a reasonable service region and a determination of their available capacity and anticipated expansion of capacity, if any; and

    (b) A documentation of why this identified available capacity or expansion of capacity will not suffice to meet the demand for the service to be provided by the proposed facility;

  (3) Alternatives to the facility, including:

    (a) A concise description of economically and environmentally feasible alternative facilities, facility locations, and industrial processes available to the applicant;

    (b) An evaluation of the advantages and disadvantages, in terms of operating requirements, employment levels, pollution loads, environmental quality costs, and economic impact on local government of each identified alternative; and

    (c) A comparison of the proposed facility with each of the alternatives identified including an analysis of the environmental and economic advantages and disadvantages of each alternative.

M. Completed Application Forms for Licenses or Permits.

  (1) Copies of the following completed application forms for licenses or permits shall be attached if they have been completed:

    (a) Public and private wetlands;

    (b) Oil handler's;

    (c) Surface water appropriations;

    (d) Ground water appropriations;

    (e) Waterway construction and obstruction;

    (f) Water discharge (MPDES); and

    (g) All other applicable State permits.

  (2) Application forms completed after initiation of procedures pursuant to these regulations shall be forwarded at the time of completion.

N. The applicant shall furnish any other information determined by the Department to be necessary for processing the application.

O. The applicant shall certify that all the information contained in the application is true, complete, and accurate to the best of the applicant's knowledge.

#### Regulation .05 Application Distribution.

*COMAR 26.22.01.05*

A. The applicant shall furnish at least 12 copies of the application to the Department.

B. The copies shall be distributed as follows:

  (1) Three copies shall be forwarded to each county and incorporated municipality in which the facility is to be located;

  (2) Six copies shall be retained by the Secretary and distributed to State agencies;

  (3) Two copies shall be placed on open file in public buildings in the county in which the project is to be located; and

  (4) One copy shall be placed on open file at the offices of the Department of the Environment.

C. Upon receipt of a completed application, the Department promptly shall place a notice in the Maryland Register that an application has been received.

#### Regulation .06 Local Certification.

*COMAR 26.22.01.06*

A. An application may not be processed further until the county in which the facility is to be located or in which the pipeline is to terminate has certified to the Secretary one of the following:

  (1) All local land use classifications including zoning, variances, special exceptions, or conditional uses necessary for the location and operation of the facility have been or will be granted;

  (2) The county has postponed certification pending completion of the statement; or

  (3) Local land-use classifications necessary for the location and operation of the facility have been or will be denied.

B. If there has been no local government decision pursuant to §A of this regulation within 60 days after notice that an application has been received appears in the Maryland Register, then the Secretary may assume that the local government has stayed its decision, pursuant to §A(2), and may proceed with preparation of the statement.

C. If the county certifies its approval or stays certification, then the Secretary shall proceed to process the application. If the county notifies the State of its denial, then the application process shall terminate.

D. Once the statement is complete, but before the Secretary's decision, a county that has stayed its decision pursuant to §A(2) of this regulation or by operation of §B of this regulation shall certify to the Secretary one of the following:

  (1) All local land-use classifications including zoning, special exceptions, variances, conditional uses, and other permits or required local government actions necessary for the location or operation of the facility have been granted;

  (2) The county supports the location and operation of the proposed facility and reasonably expects to grant local land-use classifications including zoning, special exceptions, variances, conditional uses, and other permits or required local government actions necessary for the location and operation of the facility; or

  (3) Local land-use classifications necessary for the location or operation of the facility have been or will be denied.

E. If the county certifies its approval pursuant to §D(1) or (2) of this regulation, the Secretary shall continue to process the application. If the county notifies the State of its denial, then the application process shall terminate.

#### Regulation .07 Statement.

*COMAR 26.22.01.07*

A. Once an application has been received and reviewed by State agencies, the Secretary has received the comments of the State agencies, and the county in which the proposed facility is proposed to be located has either certified its approval or stayed certification, the Secretary, after consulting with the applicant, appropriate governmental agencies, and interested parties, shall select appropriate parties to prepare an economic, fiscal, and environmental impact statement. The Coastal Zone Management Program shall coordinate preparation of the statement. The purpose of the statement is to develop and assemble in one document material, facts, and analyses to assist the Secretary and the local government in making a decision on whether to grant, grant conditionally, or deny a permit.

B. To the maximum extent possible, the statement shall incorporate and utilize studies, inventories, and other work relevant to the facility and prepared pursuant to any law including but not limited to the National Environmental Policy Act. The Secretary shall determine the applicability of these materials.

C. The statement shall be filed with the Department within 6 months of the Secretary's designation unless the Secretary extends the period of preparation up to but not more than an additional 12 months for good cause. If the period of preparation is extended, the Secretary shall notify the applicant and the county by letter and shall place a notice in the Maryland Register.

D. Contents of Statement.

  (1) Upon receipt of the advisory comments of other State agencies, the Secretary shall set forth the minimum contents of each statement.

  (2) All statements shall include the following:

    (a) An inventory of existing economic and environmental conditions at the project site and in the immediate area;

    (b) A project description of what is to be constructed, and the manner and construction schedule and the method of construction;

    (c) A complete description of the proposed facility including at least its anticipated size, effluent load, and production levels;

    (d) An assessment of the probable economic, fiscal, and environmental impact of the project upon the natural environment of the project site, coastal area, and the immediate area;

    (e) Recommendations for minimizing any adverse economic, fiscal, or environmental impacts;

    (f) An evaluation of the need for the facility and the relative merits of other possible sites;

    (g) In the case of a refinery, a description of the manner of transportation of the feed stock and the product of the crude oil;

    (h) Expected secondary impacts of constructing the facility, including new residential housing, schools, commercial services, and additional public services;

    (i) Probable adverse environmental impacts of the project that cannot be avoided including irretrievable commitment of resources, which shall include a description of significant secondary consequences and cumulative and long-term effects of the project on the environment and the natural resources base, and the extent to which the project curtails the range of beneficial uses of the environment.

#### Regulation .08 Public Review.

*COMAR 26.22.01.08*

A. The Department shall make the statement available for public review, and shall distribute the statement as provided by Regulation .05 of this chapter.

B. Within 60 days of completion of the statement, the Department shall hold at least one public hearing in the county in which the facility or any part of it is to be located. The purpose of the hearing is to solicit the views of the public concerning the permit application. Comments prepared by the Department or other State agencies, any proposed permits to be issued by a State agency to the applicant, any condition proposed by the Department before granting a permit, and any other pertinent information shall be made available to the public before the public hearing.

C. The Department shall give notice of hearing by placing a public notice in the classified section of appropriate newspapers of Statewide and local circulation and in the Maryland Register. Notice shall also be given to State agencies and local governments.

#### Regulation .09 Permit Evaluation.

*COMAR 26.22.01.09*

A. After receiving advisory comments and recommendations, but not later than 90 days following the completion of the public hearing, and after local certification pursuant to Regulation .06A(1), D(1), or D(2) of this chapter, the Secretary shall grant, grant conditionally, or deny the permit.

B. Secretary's Decision.

  (1) In making his decision, the Secretary shall consider the application, the statement, the advisory comments, the public hearing record, and any other information which may be available to him.

  (2) The Secretary's decision shall be delivered in writing to the applicant and the county and incorporated municipality in which the facility is to be located.

  (3) The Secretary's decision shall be based upon a determination of whether the facility meets the following requirements:

    (a) Conforms with and meets all applicable air, water, noise, and solid waste laws of the State as determined and certified in writing by the appropriate State units with jurisdiction over these laws;

    (b) Conforms with adopted or approved county or local land use planning, the official county or local comprehensive zoning map;

    (c) Conforms with the State development plan, when this plan has been lawfully approved and adopted;

    (d) Would have no material adverse effect upon the natural environment of the area, its scenic or natural beauty, rare or irreplaceable natural resources, or unique historic sites;

    (e) Would not be located or constructed so as to have a material adverse effect upon the public health, safety, or welfare;

    (f) Would not be a potential or immediate undue burden on the water supply of the site or region;

    (g) Would not materially contribute to an extant level of undue environmental degradation or resource exhaustion;

    (h) Conforms with any coastal zone management program developed by the State pursuant to the Federal Coastal Zone Management Act of 1972 as amended;

    (i) Would have no material adverse effect upon critical areas identified and designated pursuant to State Finance and Procurement Article, Title 5, Subtitle 6, and Article 66C, §3.05, Annotated Code of Maryland;

    (j) Would not impose, directly or indirectly, a substantial burden on existing State, regional, or county public facilities beyond their respective capacities, or that new public facilities, if necessary, would be either:

      (i) Completed in time to serve the facility; or

      (ii) Adequate to serve the facility without causing overloading of the public facilities.

#### Regulation .10 Duration of Validity of a Permit.

*COMAR 26.22.01.10*

A. Plans and specifications in the permit and conditions imposed by a permit shall remain in full force and effect so long as the proposed facility, or any portion of it, is in existence unless the permit is modified. A permit is subject to suspension and revocation for violation of its terms and conditions or for violations of the Coastal Facilities Review Act.

B. A permit shall be valid authority to begin construction of a facility within 2 years from the date of issuance of the permit. Upon written request from the permittee, and if the Department determines that the project has not been substantively modified, the Department may extend this authority for 1 year. Not more than three of these 1-year extensions may be approved. If construction does not commence and continue within this 2-year period and no extension is granted, then the permit shall lapse.

#### Regulation .11 Fees.

*COMAR 26.22.01.11*

The applicant shall bear the cost of processing an application and the cost of preparing a statement, according to the following schedule:

A. All applications shall be accompanied by an application fee of $500, which shall be retained by the Department and used to cover initial application processing costs. Processing costs shall be computed at the rate of $15 per man-hour. Costs in excess of $500 shall be billed to the applicant on a monthly basis. An applicant may not be required to pay more than $5,000 processing costs for any one application unless an original application is substantively modified.

B. The applicant shall pay the Department at the rate of $15 per man-hour for in-house time spent by the Department in the preparation of a statement. The applicant shall be billed on a monthly basis for these costs.

C. The applicant shall be responsible for any and all contractual costs incurred by the Department in preparing a statement. The applicant shall be notified by the Department of anticipated contractual costs before signing any contract. The applicant shall remit to the Department on a monthly basis an amount sufficient to cover estimated contractual costs to be incurred during the following month.

D. If the applicant should withdraw his application at any time during preparation of the statement, he shall be responsible only for costs incurred up to and through the withdrawal date and any costs incurred in terminating the application process.

E. The Department shall keep accurate records of all administrative and contractual costs. These records shall be open for inspection by the applicant upon reasonable notice to the Department.

## Subtitle 23 — Nontidal Wetlands

### Chapter 01 — General

**Authority:** Environment Article, §§5-901—5-911, Annotated Code of Maryland

**Administrative History:** Effective date: March 15, 1990 (17:5 Md. R. 637)

**Administrative History:** Chapter revised as an emergency provision effective January 1, 1991 (18:2 Md. R. 128)

**Administrative History:** Chapter revised effective May 13, 1991 (18:9 Md. R. 1007)

**Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994

**Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); Regulations .01—.04, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813)

**Administrative History:** Regulations .01 and .15—.18 amended and Regulation .17-1 adopted effective November 7, 1994 (21:22 Md. R. 1874)

**Administrative History:** Regulations .01—.05 were recodified from Regulations .01, .08, .22, .23, .and .24, respectively, under COMAR 08.05.04 Nontidal Wetlands, June 1996

**Administrative History:** Regulation .02 amended effective June 18, 2018 (45:12 Md. R. 620)

**Administrative History:** Regulation .02-1 adopted as an emergency provision effective October 22, 1996 (23:23 Md. R. 1552); emergency status expired April 22, 1997

**Administrative History:** Regulation .03C, D amended effective June 18, 2018 (45:12 Md. R. 620)

**Administrative History:** Regulation .04A amended effective February 5, 2001 (28:2 Md. R. 104)

**Administrative History:** Regulation .05B, D amended effective June 18, 2018 (45:12 Md. R. 620)

#### Regulation .01 Definitions.

*COMAR 26.23.01.01*

A. The following definitions describe the meaning of terms used in this subtitle, unless the context in which they are used clearly requires a different meaning or a different meaning is prescribed at the point of use. Terms not defined below shall have the meaning given to them in Environment Article, Title 5, Subtitle 9, Annotated Code of Maryland, in other or relevant statutes or regulations in this title or, if not defined in statutes, the meaning attributed by common use.

B. Terms Defined.

  (1) “Act” means the Nontidal Wetlands Protection Act, Environment Article, Title 5, Subtitle 9, Annotated Code of Maryland.

  (2) “Adaptive vegetation” means plant species which are not native but provide similar value to native species and grow successfully in Maryland.

  (3) “Administrative Procedure Act” means the provisions of State Government Article, §10-101 et seq., Annotated Code of Maryland.

  (4) “Adverse impact” means any diminishment of nontidal wetland acreage or function.

  (5) “Agricultural activity” means aquaculture and farming activities including plowing, tillage, cropping, seeding, cultivating, the grazing and raising of livestock, sod production, other products cultivated as part of a recognized commercial enterprise, and harvesting for production of food and fiber products, excluding forest products. The definition includes tobacco, nursery stock, Christmas trees, and aquaculture ponds and other ponds used to conduct farming activities. Activities that result in a change to a land use other than agriculture are not agricultural activities. Structures or temporary storage areas related to the sale of the products are excluded from this definition.

  (6) “Agriculture” means a land use dominated by the production of food, fiber, aquaculture, or livestock, and other products cultivated as part of a recognized commercial enterprise.

  (7) “Areas that have lain fallow” means areas used for agriculture or forestry activities that are not in production for agriculture or forest products.

  (8) “Aquaculture” means the commercial rearing of finfish, shellfish, and aquatic plants for sale, trade, barter, or shipment.

  (9) “Aquaculture facility” means a pond, impoundment, raceway, or tank, and their associated structures essential for the purpose of aquaculture.

  (10) “Avoid” means to refrain from conducting an activity that may adversely impact a nontidal wetland.

  (10-1) “Bank operator” means the person responsible for construction, maintenance, monitoring, and undertaking activities to establish a mitigation bank and to sell mitigation credits.

  (11) “Bedding” means a site preparation method when a small ridge of surface soil is formed to provide an elevated area on which forest seedlings are to be planted.

  (12) “Best management practices” means conservation practices or systems of practices and management measures that:

    (a) Control soil loss and reduce water quality degradation caused by nutrients, animal waste, toxics, and sediment; and

    (b) Minimize adverse impacts to the surface water, ground water flow, and circulation patterns, and to the chemical, physical, and biological characteristics of nontidal wetlands.

  (13) “Bog” means a nontidal wetland characterized by organic soils, accumulated peat, and soils saturated to the surface throughout the year with minimal fluctuation in water level.

  (14) “Buffer” means a regulated area, 25 feet in width, surrounding a nontidal wetland, measured from the outer edge of the nontidal wetland.

  (15) “Clean Water Act” means the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977 and later amendments (33 U.S.C. §1251 et seq.).

  (16) “COMAR” means the Code of Maryland Regulations.

  (17) “Comprehensive watershed management plan” means a plan developed in cooperation with local, county, State, and federal agencies and approved by the Department which addresses nontidal wetland protection, creation, restoration, enhancement, cumulative impacts, flood protection, water supply concerns, and other natural resource elements.

  (18) “Conventional rotational cycle” means the growing of crops in a planned and used system that:

    (a) Alternates the type of crop planted in a method that protects soil and water from degradation, noxious weeds, insects, and diseases; and

    (b) Seeks to achieve the objectives of the landowner.

  (19) “Creation” means actions performed which establish nontidal wetlands on upland sites.

  (19-1) Critical Area.

    (a) “Critical Area” means the Chesapeake Bay Critical Area and all lands and waters defined in Natural Resources Article, §8-1807, Annotated Code of Maryland.

    (b) “Critical Area” includes:

      (i) All waters of and lands under the Chesapeake Bay and its tributaries to the head of the tide as indicated on the State tidal wetlands maps, and all State and private tidal wetlands designated under Environment Article, Title 16, Annotated Code of Maryland;

      (ii) All land and water areas within 1,000 feet beyond the landward boundaries of State or private tidal wetlands and the heads of tides designated under Environment Article, Title 16, Annotated Code of Maryland; and

      (iii) Modification to the areas in this subsection through inclusions or exclusions proposed by local jurisdictions and approved by the Critical Area Commission as specified in Natural Resources Article, §8-1807, Annotated Code of Maryland.

  (20) “Critical habitat” means habitat necessary for the survival of threatened or endangered species, or species in need of conservation.

  (21) “Delmarva bay” means a nontidal wetland characterized by an elliptical or oval shape and centripetal drainage, usually bordered by a distinct rim, that is:

    (a) Located in a depression with seasonal surface water that is absent in summer;

    (b) Generally located on the Delmarva Peninsula; and

    (c) Thinly forested or unforested with abundant herbaceous vegetation that may be apparent only after surface water recedes in the summer.

  (22) “Department” means the Department of the Environment.

  (23) “Destruction or removal of plant life that would alter the character of a nontidal wetland” means:

    (a) The physical removal of natural nontidal wetlands vegetation; or

    (b) Causing mortality of nontidal wetland vegetation by the application of herbicides, hydrologic alteration, or by other means.

  (24) “Detention basin” means an impoundment area made by constructing an embankment or excavating a pit, or both, for the purpose of temporarily storing storm water.

  (25) “Director” means the Director of the Water Management Administration in the Department.

  (26) “Discharge of fill material” means the addition from any source of fill material into nontidal wetlands, which includes the following activities:

    (a) Placement of fill necessary for the construction of any structure;

    (b) Building of any structure or impoundment requiring rock, sand, dirt, or other materials for its construction;

    (c) Site development fill for recreational, industrial, commercial, residential, and other uses;

    (d) Causeways or road fills;

    (e) Dams and dikes;

    (f) Artificial islands;

    (g) Property protection or reclamation devices, or both;

    (h) Levees; and

    (i) Fills for structures such as, and associated with, sewage treatment facilities and intake and outfall pipes.

  (27) “Disturbance of water level or water table” means the alteration of the existing elevation of ground water or surface water by:

    (a) Adding or impounding a sufficient quantity of storm water or water from other sources to modify the existing vegetation, values, or functions of the nontidal wetland; or

    (b) Draining, ditching, or otherwise causing the depletion of the existing ground water or surface water levels so that the activity would modify the existing vegetation.

  (28) “Drainage” means methods for changing the hydrologic conditions of nontidal wetlands, including lowering ground water or surface water levels through pumping, ditching, or otherwise altering water flow patterns.

  (29) “Emergent nontidal wetland” means that portion of a nontidal wetland dominated by erect, rooted, herbaceous vegetation as the uppermost vegetative strata.

  (30) “Enhancement” means actions performed to provide additional protection to, or create or improve the functions of, a nontidal wetland, or other aquatic sites or resources.

  (31) “Excavation” means to dig or remove soil, rocks, or other materials resulting in a change in all or part of the elevation of a site.

  (32) “Exotic” means any species of plant or animal that is foreign to the State.

  (33) “Expanded buffer” means a regulated area 100 feet in width, surrounding a nontidal wetland, measured from the outer edge of a nontidal wetland, and established because of the presence of steep slopes, highly erodible soils, or the presence of nontidal wetlands of special State concern.

  (34) “Extenuating circumstances” means conditions requiring extension of a set time limit to process an application, render a decision, or conduct a public hearing.

  (35) “Farm pond” means a predominantly open water body used primarily to support agricultural activities, including livestock watering, irrigation, sediment control, fire protection, or aquaculture. Predominantly open water bodies on areas with a land use other than agriculture or that are not used primarily for agricultural activities are not considered farm ponds.

  (36) “Farmed nontidal wetlands” means an area designated by §B(62) that is presently tilled, grazed, or under conservation tillage for agricultural activities, or is lying fallow and has been out of production for agricultural activities for less than 5 consecutive years.

  (37) “Federal Manual” means the “Federal Manual for Identifying and Delineating Jurisdictional Wetlands”, 1989, promulgated by the Federal Interagency Committee for Wetland Delineation, which is incorporated by reference.

  (38) “Fill” means any materials placed in an area which change the elevation of the preexisting surface or ground water level, or the soil surface.

  (39) “Forested nontidal wetland” means that portion of a nontidal wetland dominated by woody vegetation greater than 20 feet in height.

  (40) “Forestry activity” means planting, cultivating, thinning, harvesting, or any other activity undertaken to use forest resources or to improve their quality or productivity. Activities that change nontidal wetlands to another land use, including but not limited to agriculture or development, are not forestry activities.

  (41) “Forest harvesting” means the felling, skidding, loading, and transporting of forest products.

  (42) “Forest road” means a temporary or permanent access road used to conduct forestry activities or transport timber or other forest products from a felling site to a public road. Roads constructed or used to convert forest land to another land use are not forest roads.

  (43) “Functions” means roles nontidal wetlands serve through:

    (a) Reduction of pollutant loadings, including excess nutrients, sediment, and toxics;

    (b) Attenuation of flood waters and storm waters;

    (c) Shoreline stabilization and erosion control;

    (d) Breeding grounds and habitat for many species of plants and wildlife including fish, game, and nongame birds and mammals, including threatened and endangered species and species in need of conservation;

    (e) Food chain support; and

    (f) Timber production.

  (44) “General area” means the geographic or market vicinity that has desired characteristics for fulfilling the basic project purpose.

  (45) “Grazing” means feeding on grass or other herbaceous plants in a field.

  (46) “Hybrid” means the offspring of any species of plants or animals of genetically dissimilar parents or stock.

  (47) “Hydrologically connected” means a nontidal wetland that:

    (a) Is contiguous to a watercourse, surface water body, tidal wetland, or drainage ditch;

    (b) Is within or connected to any 100-year floodplain as determined by calculation or Federal Emergency Management Agency maps;

    (c) Receives or discharges surface water or groundwater as intermittent or perennial flow from or to a surface water body, watercourse, or other tidal or nontidal wetland as demonstrated by the presence of an intermittent or perennial stream or spring flow; or

    (d) Was formerly contiguous to a surface water body, watercourse, or a nontidal wetland described in §B(47)(a)—(c), above, and is presently separated from these areas by a man-made berm, fill, road, or other structure.

  (48) “Hydrophyte” means plant life adapted to growth and reproduction under periodically saturated root zone conditions during at least a portion of the growing season. A listing of these plants can be found in the “National List of Plant Species that Occur in Wetlands: 1988, Maryland”, which is incorporated by reference.

  (49) “In kind” means characteristics closely approximating those of a nontidal wetland before it was adversely impacted by a regulated or an agricultural activity.

  (50) “Initial planning phase” means the period of time in which the feasibility of a project is evaluated before committing resources necessary for its implementation.

  (51) “Intermittent stream” means those areas that are surface waters, contained within a defined channel or bed, that flow at least once per year. A defined channel or bed is indicated by hydraulically sorted sediment, or the removal of vegetative litter, or loosely rooted vegetation by the action of moving water.

  (52) “Isolated nontidal wetland” means a nontidal wetland that is not hydrologically connected, through surface or subsurface flow to streams, tidal or nontidal wetlands, or tidal waters.

  (53) “Landscape management” means to maintain or enhance vegetation on land that was planted or manipulated for horticultural purposes. Landscape management includes mowing, pruning, and private gardening, excluding agricultural activities.

  (54) “Landscape management area” means an area predominately covered with grasses or herbaceous ground cover established and maintained for horticultural purposes. The landscape management area may include a lawn which contains trees, shrubs, or other plants.

  (55) “Log deck” means a place where logs or tree-length materials are assembled in or near the forest for loading and transporting.

  (56) “Loss of nontidal wetlands” means the alteration of:

    (a) Existing nontidal wetland vegetation or water levels that significantly impairs or eliminates its principal functions, but excluding:

      (i) Forestry activities conducted in accordance with an approved sediment and erosion control plan that complies with COMAR 26.23.05.02 and .03;

      (ii) Rectification; and

      (iii) Department-approved enhancement projects; or

    (b) An area so that it no longer meets the nontidal wetland definition.

  (57) Maintenance.

    (a) “Maintenance” means activities undertaken to prevent the deterioration, impairment, or need for repair of a serviceable fill area, structure, right-of-way, or land use, which includes management of vegetation and replacement of structural components.

    (b) “Maintenance” does not include the following activities, unless conducted in a temporary sediment control structure, wash pond, or roadside ditch:

      (i) Dredging;

      (ii) Excavating; or

      (iii) Filling.

  (58) “Minimize” means to reduce adverse impacts to nontidal wetlands to the greatest practicable and reasonable degree.

  (59) “Mitigation” means creation, restoration, or enhancement of nontidal wetlands, that were or will be lost due to regulated or agricultural activities.

  (60) “Mitigation bank” means an area of land that is:

    (a) Developed and operated as approved by the Department;

    (b) Used to satisfy wetland mitigation requirements when use of mitigation credits is specifically approved by the Department;

    (c) Managed using a system of credits and debits jointly recorded by the bank operator and the Department.

  (60-1) “Mitigation banking agreement” means a legally binding document between a bank operator, mitigation bank owner, and the Department that describes operation, maintenance, remediation, and monitoring requirements for a mitigation bank.

  (60-2) “Mitigation credit” or “credit” means an acreage value assigned to a mitigation bank.

  (61) “Native” means any plant or animal species indigenous to Maryland.

  (62) “Nontidal wetland”:

    (a) Means an area that is inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation;

    (b) Is determined according to the Federal Manual;

    (c) Does not include tidal wetlands regulated under Environment Article, Title 16, Annotated Code of Maryland.

  (63) “Nontidal wetlands of special State concern” means the areas designated based on criteria in Regulation .04 of this chapter, and listed in COMAR 26.23.06.01 as having exceptional ecological or educational value of State wide significance.

  (64) “Off-site” means not on the same parcel as a nontidal wetland which has been adversely impacted by a regulated activity.

  (65) “On-site” means the same parcel on which a nontidal wetland has been adversely impacted by a regulated activity.

  (66) “Out of kind” means biological characteristics not closely approximating those of the nontidal wetland before it was adversely impacted by a regulated or an agricultural activity.

  (67) “Peat mining” means the extraction of peat of a commercially valuable quality and quantity.

  (68) “Person” means the federal government, the State, any county, municipal corporation, or other political subdivision of the State, or any of their units, or an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation, or any other entity.

  (69) “Practicable” means available and capable of being done after taking into consideration costs, existing technology, and logistics in light of overall project purposes.

  (70) “Presently conducted” means existing or ongoing.

  (71) “Project” means the entire activity on a parcel of land including all proposed and projected phases and sections of land subdivisions of which all regulated or other activities conducted in a nontidal wetland, buffer, or expanded buffer are a part.

  (72) “Project purpose” means the principal reason for conducting all regulated activities and other activities on a project site.

  (73) “Rectify” or “rectification” means actions performed to nontidal wetlands which have been temporarily impacted by regulated, forestry, or agricultural activities to return them to previous conditions with at least the same nontidal wetland acreage and equivalent function.

  (74) “Regulated activity”:

    (a) Means any of the following activities which are directly undertaken or originate in a nontidal wetland, or within a buffer or expanded buffer of a nontidal wetland:

      (i) Removal, excavation, or dredging of soil, sand, gravel, minerals, organic matter, or materials of any kind;

      (ii) Changing existing drainage characteristics, sedimentation patterns, flow patterns, or flood retention characteristics;

      (iii) Disturbance of the water level or water table by drainage, impoundment, or other means;

      (iv) Dumping, discharging of material, or filling with material, including the driving of piles, and placing of obstructions;

      (v) Grading or removal of material that would alter existing topography; and

      (vi) Destruction or removal of plant life that would alter the character of a nontidal wetland; and

    (b) Does not include an agricultural activity or forestry activity as defined in this subtitle.

  (74-1) “Remediation” means corrective actions necessary to ensure success of a mitigation site or a mitigation bank.

  (75) “Repair” means an activity that restores the scope, size, and design of a serviceable fill area, structure, or land use to its previously authorized and undamaged condition. Activities that change the size or scope of a project beyond the original design so as to drain, dredge, fill, flood, change the hydrology, or otherwise convert nontidal wetlands that were not previously impacted by the project are not included in this definition. Minor deviations to plans or specifications are allowed as long as no permanent nontidal wetland impact results from the deviation.

  (75-1) “Replacement ratio” or “compensation ratio” means the ratio of the area of wetland restored, created, or enhanced to the area of wetland for which mitigation is required.

  (76) “Restoration” or “restore” means actions performed which establish nontidal wetlands on former nontidal wetland sites.

  (77) “Scrub-shrub wetland” means that portion of a nontidal wetland dominated by woody vegetation less than 20 feet in height as the uppermost strata.

  (78) “Seed tree law” means Natural Resources Article, §5-501 et seq., Annotated Code of Maryland.

  (79) “Serviceable” means presently usable or currently fulfilling its basic, original purpose.

  (80) “Significant plant or wildlife value” means a nontidal wetland:

    (a) Of the following unusual or unique community types:

      (i) Bogs;

      (ii) Areas with bald cypress (Taxodium distichum), Atlantic white cedar (Chamaecyparis thyoides), red spruce (Picea rubens), balsam fir (Abies balsamea), or American larch (Larix laricina) that contain at least 20 percent of these species in any strata as determined by the Federal Manual; or

      (iii) Delmarva bays;

    (b) With water discharge that maintains minimum stream base flow important for maintaining plant and wildlife species;

    (c) With threatened or endangered species, or species in need of conservation;

    (d) Adjacent to Class III or Class IV waters defined in COMAR 26.08.02.08;

    (e) Of special State concern;

    (f) Supporting vernal pools; or

    (g) That is regularly or periodically influenced by tidal waters.

  (81) “Site preparation” means a forest activity to remove unwanted vegetation and other material, and to cultivate or prepare the soil for reforestation.

  (82) “Skid trail” means a temporary, nonstructural pathway over forest soil to drag felled trees or logs to a log deck.

  (83) “Soil conservation and water quality plan” means a land use plan for a farm that shows a farmer how to make best possible use of soil and water resources while protecting and conserving those resources for the future.

  (84) “Spring” means a nontidal wetland that discharges ground water at the surface to form a pool or to provide intermittent or perennial surface flow, and that is usually characterized by saturated or organic soils.

  (85) “State programmatic general permit” means a general permit issued by the U.S. Army Corps of Engineers governing the protection of nontidal wetlands in Maryland.

  (86) “Utility line” means any underground or overhead transmission line, pipe, cable, or wire for the conveyance of public or private water or sewer, natural gas, or the transmission of electrical, radio, or telecommunications service.

  (87) “Vernal pool” means a nontidal wetland in a confined depression that has surface water for at least 2 consecutive months during the growing season, and:

    (a) Is free of adult fish populations;

    (b) Provides habitat for amphibians; and

    (c) Lacks abundant herbaceous vegetation.

  (88) “Water dependent activity” means an activity for which the use of surface water would be essential to fulfill a basic purpose of the proposed project.

  (88-1) “Watershed sub-basin” means one of the 20 watershed areas delineated by the Department in COMAR 26.08.01 and comprising, in sum total, the surface waters of the State.

  (89) “Wildlife” means any species of a vertebrate or invertebrate animal, excluding domestic species.

#### Regulation .02 Activities Exempt from Permit Requirement.

*COMAR 26.23.01.02*

The following activities are exempt from the letter of authorization, permit, and mitigation requirements of this subtitle:

A. Forestry activities.

B. Agricultural activities in COMAR 26.23.05.01B. All other agricultural activities are exempt from the permit requirements of this subtitle, but are subject to the mitigation requirements of COMAR 26.23.04.01 and COMAR 26.23.04.03—.07.

C. Approved mitigation projects required under this subtitle.

D. Any proposed regulated activity conducted by a person who has applied to the U.S. Army Corps of Engineers by December 31, 1990, for a permit under §404 of the Clean Water Act, provided that the following conditions are satisfied:

  (1) The U.S. Army Corps of Engineers ultimately issues a permit or other document under §D(3) of this regulation;

  (2) The applicant does not alter the scope of the regulated activity originally applied for without authorization from the U.S. Army Corps of Engineers;

  (3) A person submits the following information to the Department, as may be applicable, and as may be requested by the Department:

    (a) A copy of a dated application for a permit under §404 of the Clean Water Act;

    (b) A copy of the plans for the project which were submitted to the U.S. Army Corps of Engineers;

    (c) A letter from the U.S. Army Corps of Engineers describing the project and proposed activity and stating one of the following:

      (i) The project and proposed activity is authorized by the U.S. Army Corps of Engineers;

      (ii) The proposed activity is exempt from §404 of the Clean Water Act permit requirements.

E. Activities within farmed nontidal wetlands and their buffers, excluding farmed nontidal wetlands with 15 or more consecutive days of inundation during the growing season, and their buffers. The duration of inundation is determined by the Department consistent with federal agency procedures adopted pursuant to the Food Security Act of 1985, 16 U.S.C. §3801 et seq.

F. The following activities, if they do not result in cumulative direct or indirect adverse impacts:

  (1) Construction of additions, outbuildings, and accessories to existing structures within a landscape management area which impacts less than 1,000 square feet of nontidal wetlands;

  (2) Construction placed on existing impervious surfaces or on structures within the buffer or expanded buffer;

  (3) Removal of 30 percent of the trees in the buffer, provided that:

    (a) The density but not the areal extent of the trees is reduced; and

    (b) Not more than 30 percent of the understory is removed;

  (4) Mowing or other forms of vegetation control on existing rights-of-way;

  (5) The control of State-designated noxious weeds;

  (6) Landscape management in the nontidal wetland, buffer, or expanded buffer;

  (7) Soil investigations;

  (8) Percolation tests for sewage disposal fields;

  (9) Survey markers or survey monuments;

  (10) Other similar activities with minimal adverse impacts as approved by the Department;

  (11) The maintenance of the following serviceable structures or fills:

    (a) Aboveground and underground utilities;

    (b) Structures in rights-of-way;

    (c) Railroad beds;

    (d) Road beds, roadside ditches, culverts, outlet ditches, wash ponds, and temporary sediment control structures;

    (e) Bridges;

    (f) Dams;

    (g) Dikes;

    (h) Levees;

    (i) Water and wastewater control structures; and

    (j) Facilities designed for storm water management;

  (12) Within the Critical Area, a cumulative removal of 10 percent of the trees within the buffer or expanded buffer, if:

    (a) The density but not the areal extent of the trees is reduced; and

    (b) Not more than 10 percent of the understory is removed.

#### Regulation .03 County Delegation.

*COMAR 26.23.01.03*

A. Request for Delegation.

  (1) The Department may delegate all or part of its authority under the Act to a county that enacts a nontidal wetlands protection program that meets or exceeds the standards adopted by the Department.

  (2) To request delegation, a county shall submit a written request to the Department which includes the following information:

    (a) A copy of the proposed program, as enacted, or other evidence of authority to implement a program;

    (b) Schedule for program implementation and procedures;

    (c) Description of overall program administration, including sufficient staff for enforcement, administration, and training;

    (d) Proposed program budget and funding; and

    (e) Evidence that the program has been approved by the county legislative body.

  (3) The Department may provide technical assistance and a model county ordinance for use and consideration by a county.

  (4) Within 30 days of receiving all of the information in this section, the Department shall submit written comments to the county, including recommendations and proposals for program revisions and improvements. This time period may be modified by mutual agreement of the Department and the county. A county shall resolve any issues raised in the Department's written comments to the Department's satisfaction, including making any required legislative changes.

  (5) In reviewing the acceptability of the county's program, the Department may consider:

    (a) Consistency with the minimum standards of the Act;

    (b) Consistency with this subtitle;

    (c) Whether the county employs or plans to employ an adequate number of qualified personnel to implement the program; and

    (d) Likelihood of successful implementation.

  (6) When the county has formally approved a program satisfactory to the Department, the Department shall, in writing, grant or deny delegation. If denied, the Department, in writing, shall state its grounds for denial. The Department may not deny a requested delegation unless opportunity has been afforded to the appropriate officials of the affected county to present arguments before the Secretary on why delegation should be granted. The presentation of arguments to the Secretary is not a contested case hearing. The Secretary's determination shall be final.

  (7) If granted, delegation shall be effective from the date of written notice to the county and shall continue for not more than 2 years unless renewed or withdrawn by the Department.

  (8) A county accepting delegation in accordance with this subtitle shall:

    (a) Use the joint federal and State permit application form;

    (b) For activities not qualifying under a State programmatic general permit from the U.S. Army Corps of Engineers, issue a joint State and county permit on a form adopted by the Department; the joint State and county permit shall be separate and distinct from existing county permits and approval; and

    (c) For activities qualifying under a State programmatic general permit, issue a recommended permit decision to the Department.

  (9) If a county is authorized to issue permits for activities qualifying under a State programmatic general permit, it shall establish a nontidal wetland compensation fund, independent of the fund maintained by the Department, in accordance with the Act and COMAR 26.23.04.07.

B. Authority and Standards for Delegation.

  (1) Provided that this authority has been delegated, a county with an approved nontidal wetlands protection program shall have the authority to issue, deny, or condition nontidal wetlands permits for all regulated activities within a nontidal wetland or buffer, except for the following regulated activities:

    (a) In nontidal wetlands of special State concern and their expanded buffers;

    (b) Which directly impact two or more county jurisdictions;

    (c) Undertaken by a unit of the State or federal government, or on State or federal owned or controlled land;

    (d) Qualifying under a State programmatic general permit that does not apply to county governments; and

    (e) For which the State has elected to make the final permit decision.

  (2) The Department may not grant local program delegation authority for agricultural and forestry activities specified under Environment Article, §5-905, Annnotated Code of Maryland. However, this section is not intended to preclude a county from exercising any authority over agricultural or forestry activities granted to it under any other existing State law.

  (3) If authorized by the U.S. Army Corps of Engineers, the Department may grant a county the authority to issue nontidal wetland permits for activities qualifying under a State programmatic general permit.

C. State Oversight.

  (1) The following procedures apply for permit applications evaluated by a county for activities not qualifying under a State programmatic general permit:

    (a) Complete applications shall be submitted to the Department and the county.

    (b) The Department shall notify the county when the Department intends to process the application and render a final permit decision.

    (c) A county shall provide the Department with a copy of the public notice for any complete application that the Department has not processed for a final permit decision, if the responsibility to prepare public notices has been delegated to the county.

    (d) If the Department intends to comment upon, object to, or make recommendations with respect to a permit application, the Department shall notify the county within 10 days of receipt of the public notice. If a county is notified, a permit may not be issued until the Department has approved issuance of the permit.

    (e) At the Department's request, a county shall transmit the following information to the Department:

      (i) A copy of the complete permit application with all of the information required by COMAR 26.23.02.01;

      (ii) A copy of any other documents relevant to permit review including a mitigation plan; and

      (iii) Information brought out by the public during the comment period or at a hearing.

    (f) Within 20 days of receipt of all of the information required by §C(1)(e) of this regulation, the Department shall comment upon, object to, recommend, or condition issuance of a permit. The Department's recommendation shall be binding on a county. A recommendation of permit denial shall state the reasons for a denial. If the Department fails to make a recommendation to the county within the specified time period, the county may take whatever action it deems appropriate.

    (g) If a county denies an application due to the recommendation of the Department, the applicant may appeal the denial to the Department under COMAR 26.24.02.03B.

    (h) A county shall provide a copy of a mitigation plan upon written request by the Department.

  (2) Permit applications for activities qualifying under a State programmatic general permit shall be:

    (a) Submitted to the Department and the county; and

    (b) Processed and evaluated by a county for a recommended permit decision within 10 days of the:

      (i) Expiration of the public comment period under COMAR 26.23.02.02F(2)(d); or

      (ii) Determination that the activity tentatively qualifies for a letter of authorization.

  (3) A county shall submit its recommended permit or letter of authorization decision to the Department.

  (4) The final permit or letter of authorization decision shall be made by the Department.

  (5) An applicant aggrieved by the Department's decision may appeal the decision under COMAR 26.23.02.03B.

D. Program Reporting. A county granted delegation authority shall submit an annual report to the Department, coinciding with the State fiscal year and evaluating the county's administration of the program. The report shall include the following information:

  (1) Number of permits issued, modified, and denied;

  (2) Types of activities;

  (3) Locations of activities;

  (4) Number of violations identified and number and nature of enforcement actions taken;

  (5) Comments from the regulated community and members of the public, including copies of any written complaints on a county's administration of the program;

  (6) Acreage totals of nontidal wetland losses by type;

  (7) Mitigation actions, including acreage totals of mitigation projects by type of project;

  (8) Examples of minimization efforts;

  (9) Number of letters of authorization granted and nontidal wetlands lost as a result; and

  (10) A report on the county's nontidal wetland compensation fund in accordance with COMAR 26.23.04.07.

E. The Department may investigate complaints concerning a county's implementation of the Act. The investigation may include an on-site investigation.

F. The Department may take enforcement action against a permittee or person not complying with the requirements of the Act and this subtitle when it determines that the action is necessary and appropriate, and shall notify the county in a timely manner of the action taken.

G. Renewal.

  (1) At least 3 months before a county's delegation expires, the county may submit a written request to the Department for renewal of program delegation. The Department shall notify the county, in writing, within 30 days of receipt of the request whether its request is granted or denied.

  (2) The Department may require necessary or appropriate amendments to a county program before renewing a delegation.

  (3) The Department may not deny delegation renewal unless opportunity has been afforded to the appropriate officials of the county to present arguments before the Secretary as to why delegation should be renewed. The Secretary's determination shall be final.

  (4) The presentation of arguments to the Secretary is not a contested case hearing.

H. Withdrawal of Delegation Authority.

  (1) The Department may withdraw program delegation authority upon a finding that the county program is not being administered in a manner consistent with the Act or this subtitle.

  (2) The Department shall notify the county in writing that delegation is withdrawn and the reason for withdrawal.

  (3) The Department may not withdraw delegation unless opportunity has been afforded to the appropriate officials of the county to present arguments before the Secretary as to why delegation should be renewed. The Secretary's determination shall be final.

  (4) The presentation of arguments to the Secretary is not a contested case hearing.

  (5) If county delegation is withdrawn, any unencumbered funds contained in a county's nontidal wetlands compensation fund shall be transferred to the nontidal wetland compensation fund maintained by the Department.

#### Regulation .04 Expanded Buffer.

*COMAR 26.23.01.04*

A. Nontidal wetlands for which the buffer shall be expanded to 100 feet by regulation are:

  (1) Nontidal wetlands of special State concern; and

  (2) Nontidal wetlands with adjacent areas containing:

    (a) Steep slopes; or

    (b) Highly erodible soils; and

  (3) Outstanding National Resource Waters (ONRW).

B. Nontidal Wetlands of Special State Concern.

  (1) The following criteria shall be used by the Department to designate nontidal wetlands of special State concern that:

    (a) Provide habitat or ecologically important buffers for the habitat of plant or animal species:

      (i) Listed as endangered or threatened by the U.S. Fish and Wildlife Service;

      (ii) Listed as endangered or threatened, or species listed as in need of conservation by the Department of Natural Resources; or

      (iii) Considered to be a candidate for listing by the U.S. Fish and Wildlife Service, or considered to be locally unusual or rare by the Department of Natural Resources; or

    (b) Are unique natural areas or contain ecologically unusual natural communities.

  (2) Nontidal wetlands of special State concern are designated in COMAR 26.23.06.01.

C. Nontidal Wetlands with Steep Slopes and Highly Erodible Soils.

  (1) The following criteria may be used by the Department in designating nontidal wetlands with steep slopes or highly erodible soils:

    (a) Slopes immediately adjacent to the nontidal wetlands in excess of 15 percent; or

    (b) Soils adjacent to a nontidal wetland with an erodibility factor greater than 0.35 as determined by the United States Soil Conservation Service.

  (2) Specific nontidal wetland sites with steep slopes and highly erodible soils identified by the Department shall be designated by regulation.

#### Regulation .05 Enforcement.

*COMAR 26.23.01.05*

A. Enforcement Authority. The means of enforcement under this regulation may be made available to county governments with delegated authority under Regulation .03 of this chapter. Any hearing and associated processes under this regulation may be conducted by authorized county governments when these enforcement means are used, upon agreement between the Department and the county.

B. Complaints and Orders.

  (1) In addition to any other sanction authorized by Environment Article, §5-911, Annotated Code of Maryland, the Department may serve a written complaint upon an alleged violator if the Department determines that there has been a violation of:

    (a) Any provision of Environment Article, §§5-901—5-911, Annotated Code of Maryland;

    (b) A regulation in this subtitle;

    (c) A permit or condition of a permit;

    (d) An administrative order; or

    (e) A condition of an authorization letter.

  (2) The complaint shall:

    (a) Identify the violator and the location of the violation;

    (b) State the provision violated;

    (c) State the specific facts upon which the complaint is based; and

    (d) Provide an opportunity to request a hearing to contest the complaint.

  (3) At any time, including during an enforcement action, the Department may issue an administrative order requiring the violator to take corrective action within a certain time period. The corrective action may include any or all of the following:

    (a) Cease the violation;

    (b) Stabilize the site;

    (c) Stop all construction work at the site of a regulated activity;

    (d) Restore or rectify unlawfully impacted nontidal wetlands; or

    (e) Submit a written report or plan concerning the violation.

  (4) Service.

    (a) A complaint, order, or other administrative notice issued by the Department may be served on the violator personally, on the violator's agent at the activity site, or by certified mail to the violator's last known address as shown in the Department's records.

    (b) An order issued under this regulation is effective immediately, according to its terms, when it is served.

C. Hearings.

  (1) The Department shall give notice and hold any hearing under this subtitle  in conformance with the Administrative Procedure Act and COMAR 08.01.04.

  (2) Within 10 calendar days of receiving a complaint, order, or notice under this regulation, the violator may request a hearing in writing.

  (3) If a person has been served with an order for corrective action, the person may request a stay in conjunction with a request for a hearing.

  (4) A request for stay may be heard before or during a hearing on the complaint. At the request of a permittee, a request for stay may be heard within 10 business days of the Department's receipt of the request.

D. Administrative Action with Regard to Permit or Bond. The Department may suspend or revoke a permit, letter of authorization, or forfeit a bond on a mitigation plan upon failure of the violator to comply with the requirements of an administrative order. The administrative procedures for permit or letter authorization suspension, revocation, and bond forfeiture are set forth in COMAR 26.23.02.09 and 26.23.04.04.

E. Statutory Remedies. The provisions of this regulation may not be construed to limit or otherwise affect the authority of the Department to proceed against violators under Environment Article, §5-911, Annotated Cose of Maryland.

### Chapter 02 — Permit Application and Processing

**Authority:** Environment Article, §§5-901—5-911, Annotated Code of Maryland

**Administrative History:** Effective date: March 15, 1990 (17:5 Md. R. 637)

**Administrative History:** Chapter revised as an emergency provision effective January 1, 1991 (18:2 Md. R. 128)

**Administrative History:** Chapter revised effective May 13, 1991 (18:9 Md. R. 1007)

**Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994

**Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); Regulations .01—.04, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813)

**Administrative History:** Regulations .01 and .15—.18 amended and Regulation .17-1 adopted effective November 7, 1994 (21:22 Md. R. 1874)

**Administrative History:** Regulations .01—.09 were recodified from Regulations .02—.07, .11, .12, and .25, respectively, under COMAR 08.05.04 Nontidal Wetlands, June 1996

**Administrative History:** Regulation .01 amended effective June 18, 2018 (45:12 Md. R. 620)

**Administrative History:** Regulation .02G, J amended effective June 18, 2018 (45:12 Md. R. 620)

**Administrative History:** Regulation .05-1 adopted as an emergency provision effective October 22, 1996 (23:23 Md. R. 1552); emergency status expired April 22, 1997

**Administrative History:** Regulation .08 amended effective June 18, 2018 (45:12 Md. R. 620)

**Administrative History:** Regulation .09 amended effective June 18, 2018 (45:12 Md. R. 620)

#### Regulation .01 Application Requirements for Regulated Activities.

*COMAR 26.23.02.01*

A. A person may not conduct a regulated activity in a nontidal wetland, or within a buffer or expanded buffer, unless the Department has issued a permit or letter of authorization, or the regulated activity is exempt under COMAR 26.23.01.02. Applications received by the Department after September 30, 1993, to conduct a regulated activity in the Critical Area are subject to the requirements of this subtitle.

B. Application Form.

  (1) An application for a nontidal wetland permit or letter of authorization shall include all of the information required in the application form and any additional information required by the Department in §D of this regulation.

  (2) The application form shall be a joint federal and State application for regulated activities in nontidal wetlands in Maryland.

  (3) The Department shall:

    (a) Coordinate with other State, federal, and county governmental agencies to expedite review of associated permits;

    (b) Work with the U.S. Army Corps of Engineers in developing a State programmatic general permit for regulated activities in nontidal wetlands;

    (c) Coordinate the permit review process under memoranda of understanding with other State agencies.

  (4) The application form may be obtained from the following governmental agencies:

    (a) Water Management Administration in the Department;

    (b) U. S. Army Corps of Engineers, Baltimore District; or

    (c) Any agency designated by each county.

  (5) An applicant is encouraged to consult guidance maps prepared by the Department to assist in identifying and locating nontidal wetlands.

  (6) The person signing the application form shall be the legal property owner and:

    (a) An officer of the corporation, or an authorized agent of a corporation;

    (b) A legally authorized official of a federal, State, or local government;

    (c) An authorized partner of an association or partnership; or

    (d) An individual applicant.

  (7) The person who signs an application shall be responsible for the truth, accuracy, and completeness of all information in the application.

  (8) An applicant may not submit false or misleading information on the application form, or submit an application without intending to conduct the activity described in the application.

C. An applicant for a permit or letter of authorization shall submit all of the information required in the application form.

D. In addition to the information required in §C of this regulation, an applicant for a permit or letter of authorization may be required to submit one or more of the following items of information for an application to be considered complete and the delineation correct:

  (1) A site plan at a scale not less than 1 inch equals 200 feet that includes the following, if applicable:

    (a) Nontidal wetland boundary, as marked or flagged in the field, based on a field delineation and in accordance with the Federal Manual, including a buffer and expanded buffer;

    (b) Location of existing and proposed structures;

    (c) Location of proposed regulated activities;

    (d) Property lines of parcels impacted by the regulated activity;

    (e) Names of contiguous property owners;

    (f) Location of nontidal wetlands of special State concern; and

    (g) Location and number of all soil investigations;

  (2) A cross section of estimated final elevations after filling, grading, or excavating;

  (3) The acreage, function, and type of nontidal wetlands, buffer, and expanded buffer to be affected permanently or temporarily by the regulated activity;

  (4) A representative photograph of the affected nontidal wetland;

  (5) Data from soil samples which shall be:

    (a) Taken to a minimum depth of 20 inches and which include a description of soil colors and textures obtained from borings sufficient to verify hydric or nonhydric conditions;

    (b) On transects perpendicular to the nontidal wetlands boundary, starting within the nontidal wetlands area and moving towards the uplands; and

    (c) Numbered and accompanied by a soil description indicating the observed or estimated depth to the highest water table during the year;

  (6) Data sheets from the Federal Manual identifying and describing hydrology and vegetation along the transects required in §D(5)(b) and (c) of this regulation;

  (7) Identification of nontidal wetlands known or believed to have significant plant or wildlife value;

  (8) Description of the type and quantity of fill material to be used;

  (9) Alternative site information, including a description of available utilities, site access, type of nontidal wetland, and description of potential impacts for each alternative site considered by the applicant;

  (10) Map of the geographic boundaries of the general area where the proposed project could be undertaken and still meet the project purpose;

  (11) Brief discussion of demographic factors which are critical to the success of the project including census data, statistics, or marketing studies;

  (12) Description of water, wastewater, community facilities, schools, transportation, or other public facility requirements of the project;

  (13) Evidence of present or future availability of projects with the same or similar public need;

  (14) Demonstration of public need, including evidence of a demand for the project in the general area;

  (15) An assessment of nontidal wetland, buffer, and expanded buffer functions;

  (16) Field survey of animal species or the natural characteristics of the site;

  (17) Larger scale or more detailed engineering design plans or maps;

  (18) Soil infiltration rates as determined in the field;

  (19) Factors considered for avoiding and minimizing losses of nontidal wetlands;

  (20) Evidence of an applicant's efforts to accommodate site constraints;

  (21) Evidence that the regulated activity will not cause or contribute to a degradation of water quality standards;

  (22) Information for fulfilling potential mitigation requirements;

  (23) Information about, or status of, any local government approvals or permits.

E. The Department may require the applicant to flag the nontidal wetland boundary in the field in accordance with the Federal Manual, including a buffer and expanded buffer. The applicant shall maintain the boundary flags in place until notified by the Department.

F. Confidential Information.

  (1) Except as provided in §F(2) of this regulation, information submitted to the Department under this regulation shall be made available for public inspection and copying.

  (2) An applicant may request in writing, at the time of submission of the application, that confidential information submitted as part of an application not be disclosed. The Department shall determine if the information is confidential under State Government Article, §10-611 et seq., Annotated Code of Maryland, and other applicable law. If the Department denies the applicant's request for nondisclosure, the applicant may withdraw an application or seek review of the Department's determination under applicable law. If the applicant withdraws an application, the Department shall, at the request of the applicant, return any documents designated as confidential.

#### Regulation .02 Application Processing Procedures for the Department.

*COMAR 26.23.02.02*

A. The Department shall acknowledge receipt of the application in writing, by regular mail, and assign the application a processing number. An applicant shall use the application processing number when making inquiries concerning the application.

B. The Department shall notify an applicant in writing within 45 days of receipt of an application whether the application is complete and the delineation correct.

C. The Department shall consider an application complete if:

  (1) It contains all of the information required in Regulation .01C of this chapter and requested in Regulation .01D of this chapter; and

  (2) The Department determines that all the information submitted is sufficient for the Department to process the application.

D. The following apply to the Department's determination whether the application is complete and the delineation correct:

  (1) If the information submitted is insufficient for the Department to make either determination, the Department shall notify the applicant in writing of any items of additional information listed in Regulation .01D of this chapter that will be required.

  (2) If the information submitted is so insufficient that the Department is unable to make an initial completeness determination, the Department shall return the application and may not review the delineation, if one is submitted.

E. If the Department fails to notify an applicant within 45 days of receipt of the application, the application shall be considered complete and the delineation correct.

F. The Department, upon written notice to the applicant, may extend the 45-day time period when the following extenuating circumstances prevent consideration of the application:

  (1) Inclement weather conditions;

  (2) Review required by federal agencies; or

  (3) Review required by other State agencies, or local government agency.

G. Public Notice.

  (1) After the Department has determined that an application is complete, and the delineation is correct, the Department shall issue, at the applicant's expense, a public notice of an opportunity to submit written comments or to request a public informational hearing about the application. Public notice may not be required for activities that qualify for a letter of authorization under COMAR 26.23.03.

  (2) The public notice shall contain:

    (a) The name and address of the applicant;

    (b) A description of the nature and location of the proposed activity and mitigation plan, if applicable;

    (c) Instructions for submission of written comments, requests for a public hearing, and requests to be included on the interested persons list;

    (d) The expiration date for the opportunity to comment or to request a public informational hearing;

    (e) A statement that any further notices concerning actions on the application will be provided only by mail to those persons on the interested persons list;

    (f) The name, address, and telephone number of a person in the Department from which information about the application may be obtained; and

    (g) A reference to the applicable statute or regulations governing the application process.

  (3) The public notice may be given by:

    (a) Joint notice with other federal, State, or county agencies;

    (b) Joint notice with other units or programs within the Department;

    (c) Selected mailing to federal, State, county, or municipal authorities and other persons on the interested persons list;

    (d) Publication for at least 1 business day in a daily newspaper distributed in one or more counties which the Department determines may be directly affected by the proposed activity or, if there is no local daily newspaper, in a newspaper of general circulation in that county; or

    (e) Publication in the Maryland Register under State Government Article, §7-214, Annotated Code of Maryland.

H. Public Informational Hearing.

  (1) Any interested person may request in writing a public informational hearing.

  (2) If requested, a public informational hearing shall be held on a permit application within 45 days of the expiration date specified in the public notice. After setting the date, time, and place for the hearing, the Department shall mail a hearing notice only to those persons on the interested persons list.

  (3) The Department may extend the time period for the public informational hearing for the following extenuating circumstances:

    (a) Circumstances listed in §F of this regulation;

    (b) A request by an applicant; or

    (c) A Department request for individual permit review under COMAR 26.23.01.03C.

  (4) The Director may delegate all or part of the Director's authority to hold a public informational hearing to any employee of the Department, or a county delegated authority under COMAR 26.23.01.03. The employee authorized to conduct the public informational hearing shall be designated as the presiding official.

  (5) An applicant and any interested person shall be given an opportunity at the public informational hearing to present facts and make statements for or against granting the permit. Questions may be asked of, and directed to, the presiding official, but cross-examination may not be conducted. The hearing is not a contested case hearing under the Administrative Procedure Act.

  (6) The presiding official may determine the order of presentation of comments and questions at the public informational hearing. The public informational hearing may be conducted in the following order:

    (a) Introduction by the Department;

    (b) Presentation of proposed project by the applicant;

    (c) Comments and questions by public officials;

    (d) Comments and questions by other persons; and

    (e) Closing of the public informational hearing by the presiding official.

  (7) The presiding official has the authority and duty to:

    (a) Conduct a full and fair public informational hearing;

    (b) Act to avoid unnecessary delay, and to maintain order; and

    (c) Regulate the course of the public informational hearing and the conduct of the participants.

  (8) The presiding official shall prepare an official record of the public informational hearing.

  (9) A tape recording or stenographic notes of the public informational hearing, if any, may not be transcribed unless the Department, the applicant, or a participant in the public informational hearing requests a transcript. Costs of transcription shall be paid by the person requesting the transcript.

I. In calculating any time period provided for in this subtitle, if the last day falling within the time period falls on a Saturday, Sunday, or a State holiday, the time period will be extended until the close of business on the next normal business day.

J. Letters of Authorization.

  (1) Within 21 days of the Department's determination that the application is complete and the delineation correct, the Department shall notify the applicant in writing whether the activity qualifies for a letter of authorization and, if so, what best management practices, if any, will be required.

  (2) The letter of authorization is void if the information submitted is later shown to have been false, misleading, or inaccurate, and the Department shall pursue any appropriate enforcement action under COMAR 26.23.01.05 as to any activities that have been undertaken under the void letter of authorization.

  (3) If the Department determines that the proposed activity does not qualify for a letter of authorization, it shall notify the applicant of the need to apply for a permit under Regulation .01 of this chapter.

  (4) The Department shall specify in the letter of authorization the time period for which it is valid.

  (5) If an applicant applies for both a letter of authorization and a permit, the Department may withhold its decision on the letter of authorization pending a final permit decision.

K. Interested Persons List. Upon written request, the Department may add additional names to the interested persons list. Those wishing to have their names placed on the interested persons list may send a written request to the Water Management Administration, Nontidal Wetlands and Waterways Division.

#### Regulation .03 Permit Decision and Appeal.

*COMAR 26.23.02.03*

A. Permit Decision.

  (1) After the closing date for receipt of written comments and after a public informational hearing, if requested, the Department shall:

    (a) Consider the written comments, testimony, and other information received; and

    (b) Render a decision to grant, deny, or condition a permit within:

      (i) 60 days from the Department's determination that an application is complete and the delineation correct, if no public informational hearing is requested, or

      (ii) 45 days of a public informational hearing.

  (2) The Department may extend the time period in which to render a decision for an additional 30 days for the following extenuating circumstances:

    (a) Review required by a federal, State, or local government agency;

    (b) A Department request for individual permit review under COMAR 26.23.01.03; or

    (c) A request by an applicant.

  (3) The Department may afford the applicant an opportunity to provide additional information to address concerns raised in written comments or testimony at the public informational hearing.

  (4) The applicant may request in writing that the Department withhold its decision until additional information can be provided. The Department may withhold its permit decision for 6 months, after which the application shall be deemed withdrawn and a new application submitted, unless otherwise determined by the Department.

  (5) The Department may request additional information from the applicant as a result of concerns raised in written comments or testimony at the public informational hearing.

  (6) Written notice of the permit decision shall be mailed to the applicant and to all persons on the interested persons list. Notice of the permit decision need not be published.

  (7) Work authorized under a permit shall begin within 3 years of the date of permit issuance and the work shall be completed within the time period specified in the permit, which may not exceed 10 years.

  (8) An applicant may not resubmit a denied permit application for 6 months from the date of denial unless there is a substantive change in the application.

  (9) A permit may not be issued, and work may not begin under a permit, unless a final site plan or any other necessary information is provided to the Department.

B. Appeal of Permit Decision.

  (1) A person who has legal rights, duties, interests, or privileges different from the general public which are adversely affected by the Department's decision to grant, deny, or condition a permit, may request a contested case hearing.

  (2) The contested case hearing request shall be in writing and filed within 30 days of issuance of the permit decision with the unit issuing the decision.

  (3) The contested case hearing request shall contain:

    (a) The name, address, and telephone number of the person requesting the hearing;

    (b) The name, address, and telephone number of any attorney representing the person requesting a hearing, or a statement of intent to proceed without counsel;

    (c) A description of the grounds for the request, including the specific legal right, duty, privilege, or interest which may be adversely affected by the permit determination, and which is different from those interests held by the general public;

    (d) A statement of the specific relief desired as a result of the contested case hearing; and

    (e) A general outline of the evidence to be presented in support of the desired relief, including the names and addresses of all witnesses to be called.

  (4) The contested case hearing shall be conducted under the Administrative Procedure Act and COMAR 08.01.04.

  (5) The decision of the Department on the basis of the contested case hearing shall be the final decision for purposes of judicial review.

C. Delegation of Decision-Making Authority.

  (1) The Chief of the Nontidal Wetlands and Waterways Division in the Water Management Administration shall render the decision to grant, deny, or condition a permit under §A of this regulation.

  (2) In the event of an appeal under §B of this regulation, the Director shall render the final decision for the Department.

D. Determinations on Standing.

  (1) The Director or a designee shall review a request for a contested case hearing to determine whether the person requesting a hearing has:

    (a) A specific legal right, duty, privilege, or interest which is or may be adversely affected by the permit determination and which is different from that held by the general public;

    (b) Raised at least one issue that is related to the subject of the permit and arises under the Act or this subtitle; and

    (c) Made a contested case hearing request within the required 30-day time period.

  (2) The Director or a designee shall determine whether to grant or deny the request for a contested case hearing. If the determination is to deny the request for a contested case hearing, the determination shall be in writing and mailed by certified mail to the person requesting a hearing.

  (3) The notification of the determination to deny a request for a contested case hearing shall contain the following:

    (a) The specific reasons for the denial;

    (b) A statement of the right to request a review of the denial under §D(4) of this regulation; and

    (c) A statement that if review under this regulation is not sought, the denial shall be the Department's final decision as to the contested case hearing request.

  (4) A person who is adversely affected by the determination to deny a request for a contested case hearing may, within 10 calendar days of receipt of the denial, file with the Director written exceptions and a request to present oral argument. After considering the written exceptions, the Director may hear oral argument, and shall issue a written final decision.

  (5) If the Director's written final decision as to the contested case hearing request is adverse to a party other than the Department, the party may obtain judicial review of the decision in accordance with the Administrative Procedure Act and the Maryland Rules of Procedure.

#### Regulation .04 Criteria for Review of Nontidal Wetland Permit Applications.

*COMAR 26.23.02.04*

A. The Department may not issue a permit for a regulated activity unless the Department finds that the applicant has demonstrated that the:

  (1) Proposed project is water dependent and requires access to a nontidal wetland as a central element of its basic function under the criteria in §§B and C of this regulation, or is not water dependent, and has no practicable alternative under the criteria in §D of this regulation;

  (2) Regulated activity will first avoid and then minimize adverse impacts to the nontidal wetland based on consideration of existing topography, vegetation, fish and wildlife resources, and hydrological conditions under the criteria in Regulation .05B of this chapter;

  (3) Regulated activity does not cause or contribute to a degradation of ground waters or surface waters under the criteria in Regulation .06A of this chapter; and

  (4) Proposed project is consistent with any comprehensive watershed management plan developed or approved by the Department under Environment Article, §5-908, Annotated Code of Maryland.

B. Water Dependency Test.

  (1) A proposed project is considered water dependent if the use of surface water or a nontidal wetland would be essential to fulfill the basic purpose of the proposed project.

  (2) The Department shall apply the following criteria in determining whether a proposed project is water dependent:

    (a) Whether an alternate water source is available for use, including surface runoff or ground water that may have fewer adverse impacts on nontidal wetlands; and

    (b) Whether the use of a nontidal wetland would only enhance a project rather than function as an essential element of a project.

  (3) In determining whether a proposed project is water dependent, the Department shall consider the applicant's definition of project purpose but may independently determine whether the proposed project is water dependent.

  (4) For a multiple use project which has both water-dependent and non-water-dependent features, the Department shall determine which features are water dependent.

C. Access Test.

  (1) In determining whether the proposed project requires access to a nontidal wetland as a central element of its basic function, the Department shall consider whether access could be accomplished at another location that would first avoid and then minimize nontidal wetland impacts.

  (2) A water-dependent project which the Department determines requires access to a nontidal wetland is exempted from the requirements of §D of this regulation, but shall comply with all other requirements referenced in §A of this regulation.

D. Practicable Alternative Analysis.

  (1) The applicant shall demonstrate to the satisfaction of the Department that practicable alternatives, including both alternative site analysis and on-site minimization, have been analyzed and that the proposed regulated activity has no practicable alternative.

  (2) In determining whether the proposed regulated activity has a practicable alternative, the Department shall consider whether:

    (a) The basic project purpose cannot be reasonably accomplished using one or more other sites in the same general area as the proposed project that would avoid or result in less adverse impact to nontidal wetlands under the criteria in Regulation .05 of this chapter. The Department shall consider the applicant's definition of the general area, but may make an independent determination.

    (b) A reduction in the size, scope, configuration, or density of the proposed project and all alternative designs that would avoid or result in less adverse impact to nontidal wetlands would not accomplish the basic purpose of the project, under the criteria in Regulation .05B of this chapter.

    (c) The applicant has made a good faith effort to accommodate site constraints such as inadequate zoning, infrastructure, or parcel size, that caused an alternative to the proposed regulated activity and project to be rejected. To determine if an applicant has made a reasonable effort to accommodate constraints, the Department shall consider any pertinent information, including:

      (i) Correspondence or other written documentation between an applicant and a local authority, including a request for a special exception or other zoning variance;

      (ii) Evidence of efforts to modify the local infrastructure, including future planned expansions or redesign of the project because of a potential nontidal wetland impact; and

      (iii) Written documentation of efforts undertaken to acquire another site or reconfigure the proposed project to accommodate the constraint.

    (d) The regulated activity is necessary for the project to meet a demonstrated public need. The following apply:

      (i) To determine if the regulated activity is necessary for the proposed project to meet a demonstrated public need, the Department shall consider any pertinent information, including the economic value that the proposed project contributes to an identified State or local economic priority and if the proposed project promotes the public health, safety, or welfare.

      (ii) In weighing the economic value of the proposed project in meeting a demonstrated public need in the general area, and the ecological and economic value associated with the nontidal wetland, the Department shall consider the functions of, and benefits and economic value provided to the general public by, the nontidal wetland adversely impacted by the regulated activity, and the ability of the nontidal wetland to continue to provide those identified functions and benefits to the general public.

#### Regulation .05 Alternative Site and Avoidance and Minimization Analyses.

*COMAR 26.23.02.05*

A. Alternative Sites.

  (1) An applicant shall prove to the Department's satisfaction that alternative sites for the proposed project have been examined during the initial planning phase.

  (2) An applicant shall search during the initial planning phase for one or more alternative sites that meet the basic project purpose and would result in less or no adverse impact to nontidal wetlands.

  (3) Determining the Initial Planning Phase.

    (a) The intent of this section is to require an applicant to evaluate the feasibility of the project and the adverse impact on nontidal wetlands at the earliest stage of the development process, before the applicant has committed substantial resources in the project site. Consideration of alternative sites at the earliest stage enables the applicant to retain the flexibility to avoid adverse impacts to nontidal wetlands.

    (b) An applicant shall select the earliest of the following times as the initial planning phase for the proposed project:

      (i) When an applicant conducts a formal or informal feasibility or market study, prepares an environmental impact statement or assessment, or a similar study for the project;

      (ii) When an applicant enters into an option agreement or contract of sale for the property;

      (iii) When an applicant applies for a building permit, subdivision or infrastructure approval, zoning change, or any other local governmental approvals for the project;

      (iv) At the time an applicant applies for a permit under this subtitle;

      (v) When a budget or financing request is secured; or

      (vi) Any other appropriate time selected by the applicant.

    (c) For the time selected in §A(3)(b) of this regulation, an applicant shall provide a written justification of the selection, including copies of any documentation supporting the selection and an explanation of why earlier times would be inappropriate or inapplicable to the proposed project.

    (d) While the Department will give serious consideration to the initial planning phase selected by the applicant, the Department reserves the right to require additional information from the applicant concerning the initial planning phase selection or independently to determine the appropriate time.

  (4) To determine if the project purpose cannot be reasonably accomplished by using other sites, the Department shall, if applicable, consider:

    (a) Whether an applicant has made and can document a good faith effort to analyze alternative sites in the general area during the initial planning phase of the proposed project to first avoid and then minimize adverse impacts to nontidal wetlands;

    (b) Whether an applicant has made and can document attempts to obtain land ownership interests or other rights to conduct the proposed project activity on alternative sites which avoid and minimize impact to nontidal wetlands;

    (c) The total number of alternative sites and the physical, economic, and demographic characteristics of the alternative sites considered by an applicant;

    (d) The physical, economic, and demographic requirements of the proposed project relative to the alternative sites analyzed;

    (e) The degree to which use of potential alternative sites is constrained by other governmentally imposed restrictions and requirements, including concern for avoidance of environmental, social, community, archaeological, historic, and parkland impacts;

    (f) Efforts undertaken to reduce adverse impacts to nontidal wetlands through consideration of reduction of proposed density or other site designs or project configuration on each alternative site analyzed; and

    (g) The costs of fulfilling potential mitigation requirements for the project on the selected or alternative site.

  (5) An alternative site may not be excluded from consideration during the initial planning phase because it includes or requires an area not owned by the applicant which could reasonably be obtained, used, expanded, or managed to fulfill the basic purpose of the proposed project.

B. Avoidance and Minimization Analysis.

  (1) The applicant shall demonstrate to the Department's satisfaction that all necessary steps have been taken to first avoid and then minimize adverse impacts to the nontidal wetlands. Losses of nontidal wetlands shall be permitted only when adverse impacts to nontidal wetlands are necessary and unavoidable.

  (2) In reviewing the sufficiency of the applicant's efforts to first avoid and then minimize adverse impacts to a nontidal wetland by a reduction in the size, scope, or density of the proposed project, or by an alternative configuration or design, the Department shall include consideration of:

    (a) The spatial requirements of the proposed project;

    (b) The location of any existing structural or natural features that may dictate the placement or configuration of the proposed project;

    (c) The purpose of the proposed project, and how the purpose relates to placement, configuration, or density;

    (d) Sensitivity of the site design to nontidal wetlands;

    (e) An applicant's efforts to:

      (i) Reduce the scope of the proposed project;

      (ii) Remove or accommodate site constraints including zoning, infrastructure, access, or natural features; and

      (iii) Otherwise avoid or minimize adverse impacts; and

    (f) The costs of fulfilling potential mitigation requirements based on the proposed project configuration or design versus the alternative project configuration or design.

  (3) The Department shall consider pertinent factors when evaluating the extent to which a proposed project has avoided, or the regulated activity has minimized, direct or indirect adverse impacts to nontidal wetlands under this section, including:

    (a) Reduction in acreage of a nontidal wetland affected by a regulated activity;

    (b) Harm to a threatened or endangered species or species in need of conservation, or to the critical habitat of these species;

    (c) Movement of wildlife indigenous to the nontidal wetland or water body;

    (d) Ability of the nontidal wetland to continue to support and provide habitat for those species of wildlife using the area;

    (e) Hydrologic regime of the areas upstream and downstream of the area of impact;

    (f) Functions of the impacted or adjacent nontidal wetlands;

    (g) Passage of normal or expected high flows, or the relocation of water;

    (h) Subsurface water flow into or out of any nontidal wetland area;

    (i) Presence of fish spawning areas;

    (j) Presence of areas having significant plant or wildlife value; and

    (k) Cumulative impact to nontidal wetlands.

#### Regulation .06 Water Quality and Watershed Management Plans.

*COMAR 26.23.02.06*

A. To meet the requirements of Regulation .04A(3) of this chapter, a regulated activity may not:

  (1) As determined by the Department, cause an individual or cumulative effect that degrades:

    (a) Aquatic ecosystem diversity, productivity, and stability;

    (b) Plankton, fish, shellfish, and wildlife;

    (c) Recreational and economic values; and

    (d) Public welfare; or

  (2) As determined by the Department, cause an individual or cumulative effect that:

    (a) Violates any applicable State water quality standard, the Environment Article of the Annotated Code of Maryland, or the Clean Water Act;

    (b) Degrades surface and ground water quality.

B. To meet the requirements of Regulation .04A(4) of this chapter, a regulated activity shall be consistent with any comprehensive watershed management plan developed or approved by the Department. Comprehensive watershed management plans shall meet the following criteria:

  (1) Comprehensive watershed management plans may be prepared by local, State, or federal government agencies;

  (2) A private property owner may request to assist in the preparation of a comprehensive watershed management plan when the entire watershed is owned by the private property owner; and:

    (a) When the Department, after consultation with appropriate local, State, and federal agencies, approves of the request;

    (b) A private property owner agrees to assist in the preparation of the comprehensive management plan in accordance with this section; and

    (c) The comprehensive watershed management plan meets the requirements of §B(3)—(5) of this regulation;

  (3) Comprehensive watershed management plans shall be prepared in cooperation with local, State, and federal agencies and approved by the Department;

  (4) The Department may not adopt or approve a plan before conducting a public informational hearing on the proposed plan in the county or counties affected by the comprehensive watershed management plan;

  (5) A comprehensive watershed management plan shall include the following elements:

    (a) A functional assessment of nontidal wetlands within the watershed;

    (b) The location of potential mitigation sites;

    (c) Protection of nontidal wetlands;

    (d) A plan for limiting cumulative impacts to nontidal wetlands;

    (e) Water supply management; and

    (f) Flood management.

#### Regulation .07 Permit Modifications.

*COMAR 26.23.02.07*

A. The Department may require modification of a nontidal wetland permit to ensure compliance with this subtitle.

B. The Department may make modifications to a permit:

  (1) Upon written request by the permittee; or

  (2) When the rights of the permittee under the permit have not vested, and the Department:

    (a) Receives new, relevant information; or

    (b) Has amended the regulation under which the permit was issued.

C. Requests by Permittee for Modification.

  (1) A permittee may apply for a modification of an unexpired permit by submitting a written request to the Department.

  (2) A request for a permit modification shall contain the following:

    (a) Description of the requested modification;

    (b) Statement of the reasons and need for the requested modification; and

    (c) Statement of the impact of the modification to nontidal wetlands.

  (3) An applicant shall provide additional information requested by the Department.

  (4) Within 30 days of receiving a request for permit modification, or of receiving additional information, if any, the Department shall notify the permittee if the modification is major or minor and of its decision to grant, deny, or condition the request.

  (5) Within 15 days of receipt of notification, a permittee may request a contested case hearing on a complete or partial denial of a request to modify a permit. The hearing shall be conducted in conformance with the Administrative Procedure Act and COMAR 26.01.02.

  (6) A permittee may be required to submit a new permit application for major modifications.

D. Minor Modifications.

  (1) Minor modifications are changes to the original permit which do not constitute a significant departure from its terms and conditions, including:

    (a) Correction of typographical errors;

    (b) Changes in frequency of monitoring by the permittee;

    (c) Changes of land ownership or permittee;

    (d) Extension or reduction of the term of the permit;

    (e) Minor field modifications, including substitution of comparable materials, structural realignments, and sediment and erosion control corrections; and

    (f) Relocation of the regulated activity at the permit site where the adverse impact is equal to or smaller than originally authorized.

  (2) The Department may make minor modifications without public notice or review.

E. Major Modifications.

  (1) Major modifications are changes to the original permit which constitute a significant departure from its terms and conditions, including changes in the scope of the project which result in a greater adverse impact to nontidal wetlands than originally authorized.

  (2) Major modifications are subject to the public notice and hearing procedures required for permit applications under Regulation .02 of this chapter.

F. Notice to Permittee of Required Modifications.

  (1) The Department shall notify a permittee, in writing, if a modification to a permit is required under §B(2) of this regulation.

  (2) Within 15 days of receipt of notification, a permittee may request a contested case hearing on the modification. The hearing shall be conducted in conformance with the Administrative Procedure Act and COMAR 08.01.04.

#### Regulation .08 Temporary Emergency Nontidal Wetland Authorizations.

*COMAR 26.23.02.08*

A. The Department may issue a temporary emergency nontidal wetland permit or letter of authorization for a regulated activity if:

  (1) A threat to life, severe loss or damage of property, or threat to public safety or public works is imminent; and

  (2) The anticipated threat, loss, or damage may occur before a permit or letter of authorization can be issued under the procedures otherwise required by this subtitle.

B. Emergency Authorization Requirements. The temporary emergency permit or letter of authorization shall:

  (1) Incorporate, to the greatest extent practical and feasible, the standards and criteria required for nonemergency regulated activities;

  (2) Be limited in duration to the time required to complete the authorized emergency activity, not to exceed 90 days;

  (3) Require rectification for nontidal wetlands with temporary adverse impacts; and

  (4) Require mitigation for nontidal wetland losses, unless exempt under COMAR 26.23.04.02.

C. Temporary Emergency Procedure.

  (1) Not later than the next business day after beginning an emergency regulated activity, a temporary emergency permit or letter of authorization shall be requested.

  (2) A temporary emergency permit or letter of authorization request may be made orally. However, the applicant shall submit a written request to the Department within 3 business days of the oral request.

  (3) The request in §C(2) of this regulation shall include the:

    (a) Applicant's name;

    (b) Location of the emergency activity;

    (c) Extent of work to be done;

    (d) Anticipated adverse impact on nontidal wetlands; and

    (e) Reason for the emergency.

  (4) The temporary emergency permit or letter of authorization may be granted orally or in writing. If oral approval is granted, the Department shall issue a written emergency permit or letter of authorization within 3 business days of the approval.

  (5) If oral approval is not granted, the Department shall issue a written temporary emergency permit or letter of authorization within 10 business days of the request if the temporary emergency permit or letter of authorization is approved by the Department.

D. For activities which do not qualify for a letter of authorization under Chapter .03 of this subtitle, the Department shall provide public notice and opportunity for comment on the issuance of a temporary emergency permit in a local newspaper of general circulation, not later than 15 days after the issuance of a permit.

E. Upon written request by a permittee, or authorized person, the Department may extend the temporary emergency permit or letter of authorization if more time is required to complete the work authorized or to rectify the site.

F. The Department may suspend or revoke a temporary emergency permit or letter of authorization in conformance with Regulation .09 of this chapter.

G. Work performed under a temporary emergency permit or letter of authorization shall conform to conditions specified by the Department.

H. A person shall apply for a nontidal wetland permit or letter of authorization pursuant to Regulation .01 of this chapter if:

  (1) The person intends to conduct an additional regulated activity at the site which does not qualify for a temporary emergency permit or letter of authorization;

  (2) A temporary emergency permit or letter of authorization is denied;

  (3) Work authorized under the temporary emergency permit or letter of authorization is conducted beyond the 90-day period in §B(2) of this regulation without approval from the Department;

  (4) The activity does not qualify for a temporary emergency permit or letter of authorization; or

  (5) Mitigation is required under §B(4) of this regulation.

#### Regulation .09 Suspension and Revocation.

*COMAR 26.23.02.09*

A. Grounds for Suspension or Revocation. The Department may suspend or revoke a permit or a letter of authorization after notice to the permittee or person issued letter of authorization and opportunity for a hearing if the Department determines that any of the following has occurred:

  (1) Failure of a permittee or person issued letter of authorization to post a bond required under COMAR 26.23.04.04;

  (2) Permittee or person issued letter of authorization has failed to comply with the requirements of an administrative action or order under this subtitle or for a violation of the Act or this subtitle;

  (3) Misrepresentation or fraud in the application process or failure to disclose a relevant or material fact;

  (4) Requirements of the permit or letter of authorization have been violated;

  (5) Substantial deviation from the plans, specifications, or requirements of the permit or letter of authorization;

  (6) Permittee or person issued letter of authorization has prevented a representative of the Department from entering the activity site to make reasonable inspections;

  (7) Rights under the permit or letter of authorization have not vested and new information, changes in site conditions, or amended regulatory requirements necessitate revocation or suspension;or

  (8) The permittee or person issued letter of authorization has not begun work under the authorization and requested that the permit or letter of authorization be withdrawn.

B. Notice. Except as provided for emergency actions under §D of this regulation, the Department may not suspend or revoke a nontidal wetlands permit or letter of authorization unless the Department first gives written notice by certified mail of the specific facts that warrant suspension or revocation, and an opportunity to make a written request for a contested case hearing under §C of this regulation.

C. Contested Case Hearings.

  (1) Upon receipt of written notice to suspend or revoke a permit or a letter of authorization, the permittee or person issued letter of authorization shall have 10 calendar days to request a contested case hearing.

  (2) A hearing under this section shall be conducted in conformance with the Administrative Procedure Act and COMAR 26.01.02 and 26.23.02.09.

  (3) If the Department receives no request for a hearing, the permit or letter of authorization shall be revoked or suspended.

D. Emergency Action.

  (1) The Department may order the immediate suspension or revocation of a permit letter of authorization if the Department:

    (a) Finds that the public health, safety, or welfare imperatively requires the emergency action; and

    (b) Promptly gives the permittee written notice of the emergency action.

  (2) A notice of emergency action shall include a statement of the:

    (a) Specific facts upon which the emergency action is based; and

    (b) Permittee's opportunity to be heard, in accordance with §C of this regulation.

### Chapter 03 — Letter of Authorization

**Authority:** Environment Article, §§5-901—5-911, Annotated Code of Maryland

**Administrative History:** Effective date: March 15, 1990 (17:5 Md. R. 637)

**Administrative History:** Chapter revised as an emergency provision effective January 1, 1991 (18:2 Md. R. 128)

**Administrative History:** Chapter revised effective May 13, 1991 (18:9 Md. R. 1007)

**Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994

**Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); Regulations .01—.04, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813)

**Administrative History:** Regulations .01 and .15—.18 amended and Regulation .17-1 adopted effective November 7, 1994 (21:22 Md. R. 1874)

**Administrative History:** Regulations .01 and .02 were recodified from Regulations .09 and .10, respectively, under COMAR 08.05.04 Nontidal Wetlands, June 1996

**Administrative History:** Regulation .01 amended effective June 18, 2018 (45:12 Md. R. 620)

**Administrative History:** Regulation .02 amended effective June 18, 2018 (45:12 Md. R. 620)

**Administrative History:** Regulation .02C amended as an emergency provision effective October 22, 1996 (23:23 Md. R. 1552); emergency status expired April 22, 1997

#### Regulation .01 Activities Requiring a Letter of Authorization.

*COMAR 26.23.03.01*

A. Except for regulated activities proposed within the Critical Area, an activity that qualifies for a letter of authorization is exempt from the permit and mitigation requirements of this subtitle. Activities proposed in the Critical Area are not exempt from the mitigation requirements of COMAR 26.23.04.02—.07.

B. Upon application, the activities listed below may qualify for a letter of authorization provided that the conditions in Regulation .02B of this chapter are satisfied and best management practices, which may be required by the Department, are all met:

  (1) Activities in isolated nontidal wetlands of less than 1 acre and having no significant plant or wildlife value. An applicant's determination of whether an area is an isolated nontidal wetland shall be based on published hydrologic and hydraulic data or data obtained in the field which shows whether the nontidal wetland is hydrologically connected.

  (2) Activities whose cumulative loss of nontidal wetlands and buffer, which contains no significant plant or wildlife value, is:

    (a) Less than 5,000 square feet; or

    (b) Greater than 5,000 square feet, provided that:

      (i) The actual loss of nontidal wetlands is less than 5,000 square feet, and

      (ii) Activities in the buffer result in minimal additional adverse impacts to nontidal wetlands, as determined by the Department.

  (3) Installation of Utility Lines.

    (a) The installation of utility lines includes the following activities:

      (i) Trenching, jetting, jackhammering, or plowing of nontidal wetlands;

      (ii) Laying of pipe, cable, or wire;

      (iii) Backfilling of the excavated trench containing the pipe, cable, or wire;

      (iv) Placement of riprap; and

      (v) Rectification of nontidal wetland areas which have been disturbed.

    (b) Utility lines do not include:

      (i) Intake and outfall structures;

      (ii) Pipe or pipeline used to transport any liquid or slurry substance except as associated with water and sewage lines;

      (iii) Natural gas lines greater than 12 inches in diameter; or

      (iv) Storm water conveyance systems.

  (4) Construction of overhead power transmission lines.

  (5) Mitigation projects not required under this subtitle.

  (6) Regulated activities which impact the buffer, and less than 2 acres of farmed nontidal wetlands with 15 or more consecutive days of inundation during the growing season, except in nontidal wetlands of special State concern or their expanded buffer.

  (7) The repair of the following serviceable structures or fills:

    (a) Aboveground and underground utilities;

    (b) Structures in rights-of-way;

    (c) Railroad beds;

    (d) Road beds, roadside ditches, culverts, and outlet ditches;

    (e) Bridges;

    (f) Dams;

    (g) Dikes;

    (h) Levees;

    (i) Water and wastewater control structures; and

    (j) Facilities designed for storm water management.

  (8) Activities which will result in the loss of nontidal wetlands that have been temporarily created by a permitted or authorized construction activity or as a result of a permitted mining activity, including wetlands created:

    (a) Incidental to mining activities that were conducted under an approved mining plan or permit, or wetlands that have been created incidental to a mining activity, and that will be impacted during implementation of an approved reclamation plan;

    (b) As a result of the construction of an approved sediment control structure; and

    (c) For a specific purpose that will remain for a specified period of time, including wash ponds and grassed waterways.

C. The following conditions apply to the activities listed in §B(7) of this regulation:

  (1) If the structure or fill has been put to uses other than the use originally intended or authorized for the original construction, and the repair activity will alter or impair any additional nontidal wetland area, the repair of the structure may not be exempted.

  (2) Repair to be made more than 3 years after damage occurs or is first identified does not qualify for an exemption.

D. An applicant seeking a letter of authorization under §B(8) of this regulation shall submit the following:

  (1) Information regarding the creation of the wetlands;

  (2) The purpose of the wetland creation, if applicable;

  (3) The length of time the wetland will exist;

  (4) A copy of the approved site plan, erosion and sediment control plan, mining plan, or reclamation plan;

  (5) A description of the function the created wetland will serve;

  (6) A request for the length of time the letter of authorization is to be valid; and

  (7) Justification for conducting the regulated activity in the nontidal wetland.

E. Structures that have been placed in nontidal wetlands (for example, sediment traps), or that have impacted nontidal wetlands through their construction or operation do not qualify for a letter of authorization under §B(8) of this regulation.

F. A letter of authorization issued under §B(8) of this regulation is in effect for a period of up to 5 years and may be extended for one additional 5-year period. A letter of authorization granted under §B(8) may not be extended for more than one 5-year period, for a total of 10 years, unless the regulated activity is part of a permitted mining activity or involves implementation of a mining reclamation plan.

#### Regulation .02 Best Management Practices for Letters of Authorization.

*COMAR 26.23.03.02*

A. If a letter of authorization is granted, the Department may require an applicant to comply with best management practices, including one or more of the following:

  (1) Conduct the regulated activity so as not to harm a threatened or endangered species, or species in need of conservation, or alter or impair the critical habitat of these species;

  (2) Properly maintain the structure or fill;

  (3) Design the project to first avoid and then minimize any adverse impacts to the nontidal wetlands' existing topography, vegetation, fish and wildlife resources, and hydrologic conditions;

  (4) Conduct the regulated activity so as not to restrict or impede the:

    (a) Movement of wildlife indigenous to the nontidal wetlands or adjacent water, or

    (b) Passage of normal or expected high water flows;

  (5) Adhere to time-of-year restrictions as required by the Department under COMAR 26.08.02;

  (6) Avoid any disturbances in breeding areas for migratory waterfowl;

  (7) Maintain the hydrologic regime of the nontidal wetlands upstream, downstream, or adjacent to the exempted activity;

  (8) Remove excess fill or construction material or debris to an upland disposal area;

  (9) Place materials in a location and manner which does not adversely impact surface or subsurface water flow into or out of the nontidal wetland;

  (10) If backfill is obtained from sources other than the originally excavated material, use clean material free of waste metal products, unsightly debris, toxic material, or any other deleterious substance;

  (11) Place heavy equipment on mats or suitably design the equipment to prevent damage to the nontidal wetlands;

  (12) Repair and maintain any serviceable structures or fills so as not to result in a substantial deviation from the plans or specifications or the original structure or fill, although minor deviations due to changes in materials or construction techniques, and which are necessary for repair and maintenance, are permitted;

  (13) Rectify any nontidal wetlands temporarily impacted by any proposed repair and maintenance activity;

  (14) Repair and maintain any serviceable structure or fill so there is no permanent loss of nontidal wetlands in excess of nontidal wetlands lost under the original construction or fill;

  (15) Conduct the activity so as not to cause or contribute to a degradation of water quality as determined by the Department;

  (16) For installation of utility lines, make postconstruction grades and elevations of nontidal wetlands the same as the original grades and elevations.

B. A proposed activity does not qualify for a letter of authorization if the Department determines that the activity:

  (1) Does not qualify under Regulation .01 of this chapter;

  (2) May result in significant individual or cumulative impacts to nontidal wetlands, attributable to an entire and complete project; or

  (3) Does not comply with the best management practices in this regulation.

C. Activities of a Similar Nature.

  (1) Applicants proposing to conduct repeated regional or Statewide activities of a similar nature that may qualify for a letter of authorization may submit a single application to the Department.

  (2) The Department may issue a single letter of authorization for these activities in §C(1) of this regulation.

  (3) Activities may include:

    (a) Structural repair and maintenance; or

    (b) Work within rights-of-way.

### Chapter 04 — Mitigation

**Authority:** Environment Article, §§5-901—5-911, Annotated Code of Maryland

**Administrative History:** Effective date: March 15, 1990 (17:5 Md. R. 637)

**Administrative History:** Chapter revised as an emergency provision effective January 1, 1991 (18:2 Md. R. 128)

**Administrative History:** Chapter revised effective May 13, 1991 (18:9 Md. R. 1007)

**Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994

**Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); Regulations .01—.04, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813)

**Administrative History:** Regulations .01 and .15—.18 amended and Regulation .17-1 adopted effective November 7, 1994 (21:22 Md. R. 1874)

**Administrative History:** Regulations .01—.07 were recodified from Regulations .13—.18, respectively, under COMAR 08.05.04 Nontidal Wetlands, February 1996

#### Regulation .01 Mitigation for Agricultural Activities.

*COMAR 26.23.04.01*

A. Exemptions. Mitigation or monetary compensation for nontidal wetland losses are not required for agricultural activities which are exempted under COMAR 26.23.05.01B.

B. Requirements.

  (1) The Department shall require that a person conducting an agricultural activity in nontidal wetlands after December 31, 1990, mitigate for the loss of nontidal wetlands within 3 years of the loss, if the agricultural activity is not exempted under COMAR 26.23.05.01B.

  (2) A person conducting an agricultural activity which causes the loss of nontidal wetlands shall, in consultation with a soil conservation district, develop a mitigation component of the soil conservation and water quality plan.

  (3) A person conducting an agricultural activity shall submit the mitigation component of a soil conservation and water quality plan to the Department for review before final approval by a soil conservation district.

  (4) The Department shall review the mitigation component of the soil conservation and water quality plan for consistency with Regulations .03—.07 of this chapter. The Department shall notify the landowner and the soil conservation district if the mitigation component is consistent within 60 days of receipt of a mitigation component.

  (5) If the Department fails to notify the landowner and the soil conservation district within 60 days of receipt of a mitigation component, then the mitigation component shall be deemed to be consistent with Regulations .03—.07 of this chapter.

  (6) A soil conservation district may not approve the components of a soil conservation and water quality plan pertaining to nontidal wetland impacts if the Department has determined that the mitigation component is inconsistent with Regulations .03—.07 of this chapter.

  (7) The Department, in determining the extent of mitigation, shall consider the benefit provided by best management practices in replacing lost nontidal wetland acreage and functions.

  (8) The Department may accept monetary compensation only if it is determined that creation, restoration, or enhancement of nontidal wetlands are not feasible alternatives. Monetary compensation shall be accepted only under the conditions, and based on the fee structure guidelines, in Regulation .07 of this chapter.

  (9) If the Department of Agriculture determines in writing that mitigation will create an economic hardship that would jeopardize the continued operation of a farm, mitigation may be deferred until one or more of the following occur:

    (a) The economic hardship no longer exists.

    (b) The current owner or operator transfers the farm to a new owner or operator. In this case, the current owner or operator shall remain responsible for mitigation.

    (c) Agricultural activities no longer take place on the nontidal wetland.

  (10) When an economic hardship, as determined by the Department of Agriculture, ends due to conditions described in §B(9) of this regulation:

    (a) A person conducting an agricultural activity shall implement the mitigation component of an approved soil conservation and water quality plan within 3 years of the loss of the nontidal wetland, or within 1 year of the end of the economic hardship, whichever is greater; and

    (b) The Department of Agriculture shall notify the Department in writing within 30 days of the end of the economic hardship.

  (11) The Department shall require that a person conducting an agricultural activity in a nontidal wetland, which requires mitigation, to file a surety bond with the Department consistent with Regulation .04B of this chapter, within:

    (a) 60 days of approval of the soil conservation and water quality plan which includes the mitigation component, provided that an economic hardship determination has not been granted; or

    (b) 90 days of the expiration of an economic hardship determination.

  (12) The Department of Agriculture shall submit a mitigation report to the Department at the end of each fiscal year. This report shall provide the following information on the status of the Department of Agriculture's economic hardship determinations for each farm:

    (a) Whether the economic hardship still exists;

    (b) Whether the owner or operator granted the deferral is the current owner or operator; and

    (c) The acreage of nontidal wetland losses for which mitigation has been deferred by the economic hardship.

#### Regulation .02 Mitigation for Regulated Activities.

*COMAR 26.23.04.02*

A. Exemptions. Mitigation or monetary compensation for nontidal wetland losses is not required for regulated activities:

  (1) Exempted in COMAR 26.23.01.02 and 26.23.03.01, except when specified;

  (2) Which do not result in a loss of nontidal wetlands;

  (3) Occurring only in the buffer or expanded buffer.

B. Requirements.

  (1) A permittee shall take all necessary steps to first avoid adverse impacts and then minimize losses of nontidal wetlands. If the permittee demonstrates to the Department's satisfaction that losses of nontidal wetlands are unavoidable and necessary, the Department shall require the permittee to develop and implement mitigation practices.

  (2) The Department shall require a permittee, as a condition of a permit, to mitigate or monetarily compensate for nontidal wetland losses caused by regulated activities not listed as exemptions in §A of this regulation.

  (3) The Department may waive some or all of the off-site mitigation requirements for up to 1 acre of nontidal wetland loss for construction of special wastewater disposal facilities in a nontidal wetland on residential property. The waiver is conditioned upon the applicant siting the special wastewater disposal facility so as to avoid and minimize impacts to nontidal wetlands, and upon performance of on-site mitigation to the maximum extent practicable.

  (4) The Department may reduce mitigation requirements if the regulated activity provides a significant environmental benefit or if the proposed mitigation project has a high likelihood of success, as determined by the Department.

  (5) The Department shall require a permittee to develop and submit for Department review and approval mitigation plans consistent with the mitigation:

    (a) Standards of Regulation .03 of this chapter;

    (b) Plan requirements in Regulation .05 of this chapter; and

    (c) Monitoring and bond requirements in Regulation .04 of this chapter.

  (6) The Department may accept monetary compensation only if it is determined that creation, restoration, or enhancement of nontidal wetlands are not feasible alternatives. Monetary compensation shall only be accepted under conditions and based on the fee structure guidelines described in Regulation .07 of this chapter.

  (7) The Department may not base a final nontidal wetland permit determination solely on the environmental benefits of a mitigation proposal or the financial benefits of monetary compensation proposals.

  (8) If the Department denies approval of a mitigation plan and the permittee is aggrieved by the decision, the permittee may appeal the denial under the procedures in COMAR 26.23.02.03B. The Department may order a cessation of the permitted activity or interim stabilization measures pending resolution of the contested case over denial of a mitigation plan.

  (9) The Department may approve of mitigation bank sites in consultation with the appropriate local, State, and federal agencies for the purpose of providing mitigation for identified projects. Mitigation bank sites for identified projects are required to meet the standards of Regulation .03H, I, and J and the monitoring requirements of Regulation .04A of this chapter.

#### Regulation .03 Mitigation Standards.

*COMAR 26.23.04.03*

A. Goal. It is the goal of the Act to attain no net overall loss in nontidal wetland acreage and function, and to strive for a net resource gain in nontidal wetlands. However, it may not be possible for the goal of no net loss to be achieved in each permit action. Achievement of this goal will occur through the regulatory components of this subtitle and other Statewide initiatives which incorporate nontidal wetlands creation, restoration, and enhancement projects outside of the regulatory framework.

B. Mitigation standards shall be determined in part through the use of acreage replacement ratios. Acreage replacement ratios are expressed as a relationship between two numbers. The first number shall specify the acreage of nontidal wetlands to be mitigated and the second shall specify the acreage of nontidal wetlands lost.

C. The Department shall consider the mitigation requirement for replacing a loss of nontidal wetlands to be fulfilled when:

  (1) The following acreage replacement ratios have been met through in-kind creation or restoration for:

    (a) Emergent nontidal wetlands—1:1 or 1.5:1 when using credit from an approved mitigation bank,

    (b) Scrub-shrub nontidal wetlands—2:1 or 3:1 when using credit from an approved mitigation bank,

    (c) Forested nontidal wetlands—2:1 or 3:1 when using credit from an approved mitigation bank,

    (d) Emergent nontidal wetlands designated as nontidal wetlands of special State concern—2:1 or 3:1 when using credit from an approved mitigation bank,

    (e) Scrub-shrub nontidal wetlands designated as nontidal wetlands of special State concern—3:1 or 4.5:1 when using credit from an approved mitigation bank, and

    (f) Forested nontidal wetlands designated as nontidal wetlands of special State concern—3:1 or 4.5:1 when using credit from an approved mitigation bank;

  (2) A minimum in-kind acreage replacement ratio of 1:1 has been met, and lost nontidal wetland functions have been replaced by additional creation, restoration, or enhancement activities including best management practices for agricultural activities;

  (3) The Department has determined on a case-by-case basis that enhancement is the only mitigation option, and has specified requirements which have been met by the permittee or person conducting an agricultural activity; or

  (4) The Department has specified mitigation requirements which have been agreed to and implemented by the permittee or a person conducting an agricultural activity.

D. The Department shall consider the mitigation requirement for replacing a loss of farmed nontidal wetlands to be fulfilled when the following replacement ratios have been met through:

  (1) Enhancement of farmed nontidal wetlands—1:1 or 1.5:1 when using credit from an approved mitigation bank; or

  (2) Creation or restoration of emergent, scrub-shrub, or forested nontidal wetlands—1:1 or 1.5:1 when using credit from an approved mitigation bank.

E. In order for enhancement activities to be accepted towards replacement of lost nontidal wetlands functions, the permittee or person conducting an agricultural activity may be required to:

  (1) Perform a functional assessment on the wetland proposed to be impacted before the loss of any nontidal wetlands occurs based on-site assessment techniques acceptable to the Department; and

  (2) Identify how enhancement activities are to replace specified nontidal wetland functions that will be lost.

F. Enhancement activities may be accepted to replace the loss of nontidal wetland functions when an enhancement activity provides additional protection to, creates, or improves the functions of, nontidal wetlands. Activities may include:

  (1) Enhancement of farmed wetlands;

  (2) Enhancement of degraded nontidal wetlands;

  (3) Best management practices for agricultural activities;

  (4) Department-approved wildlife ponds;

  (5) Purchase or preservation of upland buffers adjacent to existing, created, restored, or enhanced nontidal wetlands;

  (6) Purchase or preservation of existing nontidal wetlands; and

  (7) Activities consistent with plans and agreements to create or improve waterfowl habitats in Maryland.

G. In determining if enhancement activities will replace nontidal wetland acreage and functional losses, the Department shall consider the following:

  (1) Degree to which the enhancement activity replaces functions of the lost nontidal wetland;

  (2) Benefits of the enhancement activity in rehabilitating or maintaining nontidal wetlands;

  (3) Scope and extent of the enhancement activity;

  (4) Proximity of the enhancement activity to the nontidal wetland loss;

  (5) Technical merits of the enhancement activity and its likelihood of long-term success;

  (6) Adverse impact of the enhancement activity on natural resources;

  (7) Relationship of the enhancement activity to ongoing natural resource management activities; and

  (8) Compatibility of the enhancement activity with approved comprehensive watershed management plans, if applicable.

H. Geographic Location. Mitigation projects preferably shall be connected to existing nontidal wetlands, waterways, or 100-year floodplains. Projects may be located on multiple parcels. Projects shall be located according to the following geographic location in order of preference, unless otherwise determined by the Department:

  (1) Locations on-site;

  (2) Locations off-site, and:

    (a) Identified in a comprehensive watershed management plan approved by the Department;

    (b) Identified in plans and agreements to create or improve waterfowl habitats in Maryland and approved by the Department;

    (c) Where the Department has determined, in consultation with other State, local, and federal government agencies, that regional needs for nontidal wetlands functions strongly justify the siting of mitigation projects, and the mitigation project is located:

      (i) In the watershed where the nontidal wetland loss occurred;

      (ii) In the drainage basin where the nontidal wetland loss occurred; or

  (3) In a county with delegation authority, the preferred location of off-site mitigation projects is within the county.

I. Siting Within Geographic Locations. In selecting sites within geographic regions for mitigation, a permittee or person conducting an agricultural activity shall pursue mitigation projects on upland sites which have undergone significant human disturbances. A permittee or person conducting an agricultural activity should avoid, whenever possible, siting mitigation projects on:

  (1) Forested lands;

  (2) Lands used for dredged disposal, mine refuse, or other purposes where contaminant problems may exist; or

  (3) Lands which are existing or potential habitat for plant or animal species:

    (a) Listed as endangered or threatened by the U.S. Fish and Wildlife Service;

    (b) Listed as endangered or threatened or species listed as in need of conservation by the Department of Natural Resources; or

    (c) Considered as a candidate for listing by the U.S. Fish and Wildlife Service, or considered to be locally unusual or rare by the Department of Natural Resources.

J. Project Standards.

  (1) The permittee or person conducting an agricultural activity shall successfully implement the approved mitigation plan within the time period required by the Department and specified in the mitigation plan.

  (2) Created or restored nontidal wetlands shall meet the following plant survival criteria:

    (a) After 5 years, greater than 85 percent of the site shall be vegetated by planted species approved by the Department or by a species composition agreed to by the Department;

    (b) Allowances shall be made for natural species changes as long as the plant communities are similar to those lost; and

    (c) After 5 years, the nontidal wetland shall be dominated by native or adaptive vegetation.

  (3) In the case of a permittee or person conducting an agricultural activity, who has proposed the use of natural revegetation as part of the creation, restoration, or enhancement project, after 5 years, greater than 85 percent of the site shall be:

    (a) Vegetated by species similar to those found in the nontidal wetland lost or by a species composition agreed to by the Department; and

    (b) Dominated by native or adaptive vegetation.

  (4) In the case where the nontidal wetland was dominated by exotic or nuisance plants, the Department shall accept out-of-kind mitigation.

  (5) The Department may not approve mitigation plans that include exotic or nuisance plants.

K. Protection Mechanisms.

  (1) The permittee, bank operator, or person conducting an agricultural activity shall provide mechanisms to assure the protection of the created, restored, or enhanced nontidal wetlands in perpetuity. This may be achieved through any protection mechanism approved by the Department, including:

    (a) Deed restrictions;

    (b) Conservation easements;

    (c) Deeding the created, restored, or enhanced nontidal wetland to an organization or public agency capable of protecting the area in perpetuity; or

    (d) Restrictive covenants.

  (2) Any protection mechanism under §K(1) of this regulation shall include provisions on the following:

    (a) Language granting the Department, or any successor agency, access to the mitigation site for inspections during the monitoring period and for construction of the mitigation project, if the permittee or person conducting an agricultural activity forfeits a bond and the Department decides to complete construction of the mitigation project;

    (b) In the case of an easement agreement, language allowing assignment of a permittee's, or person conducting an agricultural activity's, interest under the easement agreement to the Department, if the bond is forfeited and the Department decides to complete construction of the mitigation project;

    (c) An absolute prohibition on the draining, dredging, removal, or filling of the created nontidal wetland site;

    (d) Language that the restriction is perpetual, binding on the grantor's personal representatives, heirs, successors, and assigns and runs with the land.

#### Regulation .04 Monitoring and Bonding.

*COMAR 26.23.04.04*

A. Monitoring.

  (1) The monitoring period begins with the first full growing season following completion of construction. The period of the growing season is specified in the post-construction monitoring plan, Phase II plan, or mitigation banking agreement.

  (2) Monitoring reports are submitted by:

    (a) A permittee or person conducting an agricultural activity for a period of 5 years from the completion of construction of the mitigation project, unless the Department provides written notice that the monitoring requirements have been fulfilled in less than 5 years;

    (b) A mitigation bank operator, for a minimum of 5 years after completion of construction of the bank or until the last available credit is withdrawn, whichever is later.

  (3) The Department shall require that monitoring reports be submitted:

    (a) Annually, not later than December 31; and

    (b) In an acceptable form.

  (4) The permittee, bank operator, or person conducting an agricultural activity shall consider monitoring requirements fulfilled upon receipt of written notice from the Department. If the Department fails to send written notice to the permittee, bank operator, or person conducting an agricultural activity within 60 days after the end of the monitoring period, the monitoring requirement shall be considered fulfilled.

  (5) Through written notification to the permittee, bank operator, or person conducting an agricultural activity, the Department may extend the required monitoring period for not more than an additional 3-year period, if the mitigation project fails to comply with Regulation .03J of this chapter.

  (6) The permittee, bank operator, or person conducting an agricultural activity shall provide annual monitoring reports to the Department which include the following information:

    (a) A description of how the mitigation project meets the mitigation project standards in Regulation .03J of this chapter;

    (b) Photographs of the mitigation project;

    (c) The commercial source of planting stock whenever planting is required;

    (d) A description of any modifications which have been made or need to be made to implement the mitigation plan or component so as to meet the standards of Regulation .03J of this chapter; and

    (e) For mitigation banks, monitoring information required in a mitigation banking agreement.

  (7) The Department reserves the right to inspect the mitigation project at any time during the construction and required monitoring period, and any time after that to assess the long-term viability of the mitigation site.

B. Bonding.

  (1) This section does not apply to agencies of any federal, State, county, or municipal government.

  (2) Within 60 days of the Department's approval of Phase II of the mitigation plan, or the mitigation component of a soil conservation and water quality plan, a permittee or person conducting an agricultural activity shall file with the Department a surety bond on a form to be prescribed and furnished by the Department.

  (3) The bond shall be payable to the State and conditioned upon the successful completion of construction of the mitigation project according to an approved mitigation plan, as it may be modified under Regulation .05D of this chapter, by a permittee or a person conducting an agricultural activity.

  (4) Alternate Forms of Security.

    (a) Instead of a surety bond, the Department may accept one of the following alternate forms of security:

      (i) A deposit of cash or negotiable bonds of the U.S. Government having a market value equal to the acceptable bond amount accompanied by a written agreement of the bank to pay the State on demand in the event of forfeiture;

      (ii) A certificate of deposit equal to the required bond, issued by a bank in the State and accompanied by a written agreement of the bank to pay the State on demand in the event of forfeiture;

      (iii) An irrevocable letter of credit that is equivalent to the required bond, issued by a bank or financial institution organized or authorized to do business in the State, that expressly states that the total sum is guaranteed to be available and payable directly to the State on demand in the event of forfeiture;

      (iv) The grant to the Department, in trust, of a deed, an easement, or other interest in upland property owned by the permittee or person conducting an agricultural activity that has at least the same monetary value as the selected mitigation site;

      (v) Fulfillment of mitigation requirements before completion of the permitted activity or before the approved agricultural activity results in a loss of nontidal wetlands.

    (b) The permittee or person conducting an agricultural activity shall submit to the Department all alternate forms of security deposited under §B(4)(a)(i)—(iii) of this regulation until authorized for release. All alternate forms of security may not expire until construction of the mitigation project has been successfully completed pursuant to the approved mitigation plan, as may be modified under Regulation .05D of this chapter.

  (5) Amount of Bond.

    (a) The amount of the bond for a permittee shall be set at $20,000 per acre of nontidal wetland mitigation required under the permit.

    (b) The permittee may request reduction of the bond amount by submitting a written request to the Department with a justification for reducing the bond amount, including estimated or actual costs to complete the mitigation project, and any other relevant information.

    (c) The Department shall determine whether a lesser amount is sufficient to cover the cost of mitigation, taking into account the following:

      (i) Number of acres to be mitigated;

      (ii) The cost of land in the area of the mitigation site;

      (iii) The proposed method of mitigation; and

      (iv) Any other relevant factors, including the likelihood of success of the project.

  (6) Liability under a bond shall continue until the Department receives and approves of an as-built plan for the mitigation project and the surety or financial institution receives written notice from the Department that construction of the mitigation project was successfully completed.

  (7) A surety bond or other alternative form of security may not be cancelled by the surety, bank, or other issuing entity unless both of the following conditions are satisfied:

    (a) The surety notifies the Department and the permittee or person conducting an agricultural activity of its intent to cancel the bond, in writing, by registered mail, not less than 90 days before cancellation; and

    (b) At least 45 days before the cancellation date indicated in the notice, the permittee or person conducting an agricultural activity files a commitment from a surety, bank, or other issuing entity to provide a substitute security which will be effective on the cancellation date indicated in the notice.

  (8) Bond Forfeiture.

    (a) The bond or other instrument securing compliance with the mitigation plan or component may be subject to forfeiture upon:

      (i) Revocation of a nontidal wetlands permit;

      (ii) Failure of the permittee to comply with an administrative order; or

      (iii) Failure to comply with any element of the approved mitigation plan and any approved modifications; or

      (iv) Failure to comply with any element of the approved mitigation component of a soil conservation and water quality plan, and any approved modifications.

    (b) The Department, in writing and by certified mail, shall notify the permittee or a person conducting an agricultural activity, and the surety or other financial institution, of the Department's intention to initiate forfeiture proceedings.

    (c) The permittee or a person conducting an agricultural activity shall have 30 days from receipt of the notice of forfeiture to show cause why the bond or other instrument may not be forfeited.

    (d) On showing cause, the Department shall provide for a reasonable time for the permittee or person conducting an agricultural activity, or surety or other financial institution, to correct the problem.

    (e) If the permittee or person conducting an agricultural activity fails to show cause, the bond or other instrument shall be forfeited nisi and the Department shall notify the permittee, surety or other financial institution, or the person conducting an agricultural activity of the forfeiture. If a showing of an intention to correct the problem in compliance with the mitigation plan is not submitted to the Department within 30 days from forfeiture nisi, the bond or other security shall be forfeited absolute.

    (f) The Department shall use forfeited bonds or alternate forms of security to perform mitigation requirements.

  (9) To avoid double bonding, the Department shall work with an applicant required to post bond under Environment Article, §15-823, Annotated Code of Maryland, and other Department programs requiring a bond.

  (10) A permittee or person conducting an agricultural activity may not conduct a regulated or agricultural activity in a nontidal wetland if the permittee or person conducting an agricultural activity previously forfeited any bond or alternate security under this subtitle, unless the permittee or person conducting an agricultural activity repays the Department the cost of completing the mitigation project in excess of the forfeited bond or alternate security, plus interest at the rate set in the Courts and Judicial Proceedings Article, §11-107(a), Annotated Code of Maryland. If the mitigation project is still not completed, the permittee or person conducting an agricultural activity shall complete the mitigation project at its expense according to the approved mitigation plan and any approved modifications.

C. Bonding for Mitigation Banks.

  (1) Government agencies operating a mitigation bank are not subject to the provisions of this section.

  (2) As approved by the Department and as provided in §B(4), (5), and (7) of this regulation, a mitigation bank operator shall:

    (a) Post a performance bond, or alternate form of security, payable to the Department;

    (b) Guarantee to pay to the Department, or place in escrow or trust, an amount equal to the amount due under the mitigation fee structure for the county in which the mitigation bank is located or under guidelines in Regulation .07 of this chapter;

    (c) Perform the mitigation on another site acceptable to the Department; or

    (d) Provide such other alternate form of security as may be acceptable to the Department.

  (3) Liability under the performance bond or alternate form of security set forth in §B(2)(a) or (4) of this regulation commences at the time the Department approves use of the mitigation bank and continues:

    (a) Through the end of the monitoring period specified in the mitigation banking agreement or until the last credit is withdrawn, whichever is later; and

    (b) Until the surety or financial institution receives written notice from the Department that the bond or alternate form of security may be released.

  (4) The Department may partially release the performance bond or alternate form of security during the term of the monitoring period.

  (5) The performance bond or alternate form of security is subject to forfeiture upon failure of the bank operator to comply with:

    (a) The terms of the mitigation banking agreement; or

    (b) Regulations .03—.07 of this chapter, as applicable.

  (6) The bond forfeiture provisions of §B(8)(b)—(e) of this regulation apply to mitigation banks.

#### Regulation .05 Mitigation Plan.

*COMAR 26.23.04.05*

A. A person conducting an agricultural activity in nontidal wetlands shall submit mitigation components of a soil conservation and water quality plan to the Department consistent with the requirements of this regulation.

B. Phase I.

  (1) A permittee shall submit Phase I of a mitigation plan as part of the permit application.

  (2) Phase I of the mitigation plan shall include all of the following information:

    (a) Names, addresses, and telephone numbers of the principals associated with project implementation.

    (b) A proposal, if applicable, to use monetary compensation consistent with Regulation .04 of this chapter to fulfill mitigation requirements.

    (c) A photograph and description of the type and acreage of proposed nontidal wetland losses.

    (d) A description of the activity which may cause the loss of nontidal wetlands.

    (e) A description of mitigation projects, including best management practices for agricultural activities, proposed as fulfillment of the required replacement of lost nontidal wetland acreage and functions. The description shall include the proposed source of hydrology and project location maps showing the geographic relationship between the area of potential nontidal wetland losses and the proposed mitigation sites.

    (f) A description of the site selection process and a justification of the selection of the proposed mitigation site based on Regulation .03H and I of this chapter.

    (g) A description of the selected protection mechanisms for each mitigation site as required in Regulation .03K of this chapter.

    (h) A proposal, if applicable, to mitigate through the use of mitigation credits in a mitigation bank, including the:

      (i) Name of the bank operator and owner,

      (ii) Location of the mitigation bank,

      (iii) Type and acreage of mitigation credits in the mitigation bank proposed for use.

  (3) The Department shall render a decision concerning the acceptability of Phase I of a mitigation plan as part of the final permit decision.

  (4) The Department, in rendering a decision on Phase I of a mitigation plan, shall provide guidance to the applicant on the contents, timing, and necessity of proceeding with Phase II of the mitigation plan.

  (5) The Department shall review proposals to use mitigation credit from an approved mitigation bank based on Regulation .03 of this chapter and:

    (a) Evidence that the applicant has investigated on-site mitigation and that on-site mitigation is infeasible;

    (b) Ability of the proposed mitigation bank to replace or enhance the functions of the wetland that are proposed to be lost;

    (c) Compliance by the bank operator with the terms of the mitigation banking agreement; and

    (d) Availability of credits in the mitigation bank.

C. Phase II.

  (1) A permittee may submit Phase II of a mitigation plan as part of the permit application.

  (2) Unless otherwise determined by the Department, Phase II of the mitigation plan shall be submitted within 3 months of the Department's final permit decision and shall include all of the following information about each mitigation project:

    (a) Plan view scaled drawings, including:

      (i) Vicinity map showing the mitigation project location, existing land use, and zoning;

      (ii) Location, type, and acreage of proposed nontidal wetland mitigation activities;

      (iii) Proposed location of stockpile areas;

      (iv) Location of sediment and erosion control practices;

      (v) Locations of all areas used to store machinery, equipment, or supplies;

      (vi) Proposed source of borrow materials;

      (vii) Proposed location, spacing, and type of propagules for each plant species;

      (viii) Location of best management practices for agricultural activities; and

      (ix) Other information pertinent to Phase II of a mitigation plan as required by the Department.

    (b) Cross-section drawing showing existing and proposed final site conditions including grade, elevation, and slope.

    (c) Description of how enhancement activities, including best management practices for agricultural activities, will replace lost nontidal wetland acreage and functions.

    (d) If applicable, a description of how the enhancement of farmed nontidal wetlands will replace lost nontidal wetland acreage and functions.

    (e) Construction schedule, which includes estimated start and completion dates.

    (f) Hydrology, which includes:

      (i) Estimated elevation of surface and ground water as measured from the soil surface bimonthly, March—May, and monthly, June—October;

      (ii) The source of the water such as ground water, precipitation, and surface water, over various seasons of the year; and

      (iii) The reliability of the hydrologic sources throughout the various seasons of the year; and

      (iv) Relevant precipitation data.

    (g) Substrate conditions including a description of:

      (i) Existing soil and substrate conditions; and

      (ii) Soil and substrate amendments needed to meet hydric soil characteristics and maintain the specified plant species.

    (h) Vegetation to be planted including all of the following:

      (i) The scientific and common name of plant species, which shall be native or adaptive to the State;

      (ii) Planting dates for each species according to propagation method; and

      (iii) Planting stock fertilizer requirements for the entire 5-year monitoring period.

    (i) A 5-year monitoring schedule establishing responsibility for the removal of exotic and nuisance vegetation, and permanent establishment of the nontidal wetland system and its component parts. The Department shall encourage the permittee or person conducting an agricultural activity to provide for the long-term maintenance and monitoring of mitigation sites beyond the required monitoring period.

    (j) A detailed budget of the proposed mitigation project costs including:

      (i) Land acquisition; and

      (ii) Design, which includes construction, monitoring, and maintenance.

    (k) Documentation of the protection mechanisms required in Regulation .03K of this chapter.

  (3) The permittee or person conducting an agricultural activity shall present evidence of a legal right to implement the proposed mitigation plan on the selected sites by providing:

    (a) An executed deed conveying title to the selected site to the permittee or person conducting an agricultural activity;

    (b) An executed conservation easement agreement;

    (c) Written evidence of the landowner's consent to the use of the selected site;

    (d) A fully executed option agreement, long-term lease agreement, or contract of sale for the selected site; or

    (e) Other written evidence of a possessory or ownership interest in the selected site.

  (4) The Department may waive all or part of the requirements of Phase II of a mitigation plan.

  (5) The Department may not release a bond or terminate monitoring without receipt of a legally binding deed, long-term lease, or conservation easement agreement on those lands where mitigation will occur.

  (6) The permittee or person conducting an agricultural activity shall provide the Department access to the mitigation site during business hours.

  (7) The Department shall render a decision concerning the acceptability of Phase II of a mitigation plan within 45 days of receipt of a completed plan, unless a final permit decision has not been made. If the Department fails to notify the applicant within the 45-day period, the plan shall be considered acceptable unless a final permit decision has not been made.

D. Mitigation Plan Modification.

  (1) The Department may require, and a permittee or person conducting an agricultural activity may request, modifications to an approved mitigation plan or component during construction to ensure compliance with this subtitle. Modification, substitution, or other deviations from an approved mitigation plan or component may not be made without approval under this section.

  (2) A modification request may be made orally or in writing.

  (3) A written request shall contain the following information:

    (a) The name of the permittee or person conducting an agricultural activity;

    (b) Location of the mitigation project;

    (c) A description of the proposed modification; and

    (d) A justification for the modification.

  (4) The Department's decision may be given orally or in writing. The Department shall notify a permittee or person conducting an agricultural activity of its decision within 10 days of a written request. If an oral decision is made, the Department shall confirm its decision in writing within 10 days. The Department's decision, whether oral or written, is binding on the permittee or person conducting an agricultural activity.

#### Regulation .06 Mitigation Banking.

*COMAR 26.23.04.06*

A. Application Procedures.

  (1) A person proposing to establish and operate a mitigation bank shall submit a mitigation bank application on a form provided by the Department.

  (2) The application shall meet the requirements of COMAR 26.23.02.01B(6).

  (3) A mitigation bank concept plan is submitted with the application and includes:

    (a) Drawings at a scale equal to 1 inch equals 200 feet or other scale approved by the Department, and showing existing topography, nontidal wetland boundaries and buffers, and 100-year floodplain boundaries, if applicable;

    (b) A vicinity map of the proposed mitigation bank site;

    (c) Proposed acreage and type of nontidal wetlands to be established in the bank;

    (d) A description of methods of establishment of nontidal wetlands;

    (e) The proposed water source;

    (f) A description of proposed earth disturbance necessary;

    (g) A preliminary assessment of impact, if any, on existing nontidal wetlands, buffers, and 100-year floodplains;

    (h) A proposed mechanism to protect the mitigation bank site in perpetuity, including easements, covenants, deed restrictions, or similar means approved by the Department;

    (i) As applicable, information regarding consistency with natural resource management plans, approved watershed plans, forest conservation, local growth management policies, and local comprehensive plans; and

    (j) Other information required by Regulation .05C of this chapter.

  (4) The applicant shall provide other pertinent information as required by the Department.

  (5) The Department shall render a decision on the completeness of the mitigation bank application within 45 days of receipt.

  (6) The Department may extend the time period for review of the mitigation bank application due to:

    (a) Inclement weather conditions; or

    (b) Additional review required by other State, federal, or local agencies.

B. Public Notice and Public Informational Hearing.

  (1) The Department may issue a public notice for a proposed mitigation bank less than 5 acres in size.

  (2) After the Department has determined that an application for a proposed mitigation bank greater than 5 acres in size is complete, the Department shall issue, at the applicant's expense, a public notice in accordance with COMAR 26.23.02.02G(2) and (3).

  (3) If requested, a public informational hearing shall be conducted in accordance with COMAR 26.23.02.02H.

  (4) Based on information presented at the public informational hearing, the applicant may be required to submit additional information.

C. Mitigation Banking Agreement.

  (1) A mitigation banking agreement shall be developed after the Department approves a mitigation banking application.

  (2) The Department and the applicant shall execute a mitigation banking agreement before:

    (a) Construction of the mitigation bank; and

    (b) Consideration by the Department of the use of the mitigation credits by applicants.

  (3) At the Department's discretion, a mitigation banking agreement may include:

    (a) Construction plans and specifications developed in accordance with Regulation .05C(2) of this chapter;

    (b) Specifications for:

      (i) A bond or alternate form of security, as approved by the Department; or

      (ii) A remedy to be imposed on a government agency responsible for a government-operated mitigation bank, upon failure to perform remediation;

    (c) Performance standards to demonstrate anticipated success of the mitigation bank, including:

      (i) Sufficiency of hydrology to sustain a nontidal wetland;

      (ii) An interim standard of a minimum of 45 percent coverage of planted or naturally occurring plant species;

      (iii) A final standard of a minimum of 85 percent coverage of planted or naturally occurring plant species within a time frame specified by the Department which may not exceed the term of the monitoring period specified in Regulation .04A of this chapter; and

      (iv) Evidence to document that the mitigation bank is providing or will provide specific nontidal wetland functions;

    (d) Provisions for post-construction monitoring and maintenance of the mitigation bank consistent with Regulation .04A of this chapter;

    (e) The executed instrument to protect the mitigation bank in perpetuity;

    (f) Bank operation and maintenance procedures;

    (g) Bank operator responsibilities;

    (h) Remediation procedures;

    (i) Accounting and reporting requirements;

    (j) Monitoring requirements;

    (k) Mitigation bank close-out procedures;

    (l) Procedures for termination of the agreement; and

    (m) Other terms agreed upon by the bank operator and the Department.

  (4) The bank operator shall construct, operate, and maintain the mitigation bank according to the terms of the mitigation banking agreement.

  (5) The Department shall approve, in writing, all revisions, amendments, or modifications to the mitigation banking agreement.

  (6) The bank operator shall notify the Department upon completion of construction of the mitigation bank.

  (7) Within 60 days of completion of construction, the bank operator shall submit to the Department:

    (a) As-built drawings with post-construction contours; and

    (b) Drawings showing actual planting, which are attached to and made a part of the mitigation banking agreement.

  (8) The bank operator shall allow representatives or agents of the Department to enter the mitigation bank at any time during or after construction to conduct inspections and to assess the success of the mitigation bank.

D. Timing of Sale of Mitigation Credit and Approval of Mitigation Bank Use.

  (1) The bank operator may select the time to begin sale of credits.

  (2) The sale of credits by a bank operator may not imply approval of the use of those credits by the Department for specific projects.

  (3) The Department may approve use of not more than 1/2 of the acreage in a mitigation bank before the end of two full growing seasons after construction, based on approval by the Department of:

    (a) Executed mitigation banking agreement;

    (b) As-built plans showing completed site construction, preparation, and contouring;

    (c) Executed mechanism to protect the mitigation bank in perpetuity; and

    (d) Fulfillment of bonding requirements, if applicable.

  (4) The Department may approve use of the remaining 1/2 of the acreage after two full growing seasons have elapsed, if remediation is not required and the interim performance standards specified in the mitigation banking agreement have been met.

  (5) The Department shall advise the bank operator and applicants proposing to use credits of the Department's approval of the bank.

  (6) The Department may approve use of mitigation credits as partial fulfillment of a permittee's mitigation requirement.

E. Accounting and Reporting Requirements.

  (1) Within the time frames allowed in the mitigation banking agreement, the bank operator shall submit to the Department for each transaction the:

    (a) Name and address of the person purchasing or returning credits;

    (b) Date of the transaction;

    (c) Amount and type of wetland acreage to be used as credit; and

    (d) Project name, location, and the Department's application processing number, if applicable, for which use of mitigation credit is proposed.

  (2) A government agency responsible for a government operated mitigation bank shall submit the name and address of the agency utilizing credits, the name of the contact person, and the information specified in §E(1)(b)—(d) of this regulation.

  (3) The bank operator and the Department shall jointly record withdrawal of the acreage approved for use by an applicant.

  (4) Mitigation credit will be withdrawn from the mitigation bank in the order approved by the Department.

  (5) For each year of operation, a summary of all activities relating to the sale or transfer of mitigation credits is submitted to the Department within 30 days after December 31 of each calendar year.

  (6) The bank operator shall notify the Department if the bank operator wishes to cease consideration of areas representing unsold or unused credits as part of the mitigation bank.

  (7) Mitigation credit withdrawn for a project anticipated to be authorized by the Department under this subtitle is returned to the mitigation bank if the Department:

    (a) Denies the authorization;

    (b) Authorizes impacts that are less than the amount anticipated; or

    (c) Requires mitigation by a method other than use of the mitigation credit.

F. Remediation.

  (1) The Department may require remediation at any time before the end of the monitoring period to ensure compliance with the performance standards specified in the mitigation banking agreement.

  (2) To determine if remediation is necessary, the Department may require that specific data be collected and submitted by the bank operator.

  (3) Remediation required by the Department is directly related to ensuring that the performance standards specified in the mitigation banking agreement will be met.

  (4) The Department may withhold or suspend approval of use of credits in the bank until remediation is completed to the Department's satisfaction.

  (5) The Department may consider continuing to approve use of credits in the bank for that portion of the bank not requiring remediation.

  (6) If, after a period to be specified in a mitigation banking agreement, the Department determines that a government agency responsible for a government-operated mitigation bank has not performed remediation, the remedy specified in the mitigation banking agreement is imposed.

G. Close Out of Mitigation Banks.

  (1) The Department and a bank operator may close out a mitigation bank when:

    (a) All credits have been withdrawn;

    (b) Monitoring has been completed to the Department's satisfaction;

    (c) Remediation, if required by the Department, has been completed to the Department's satisfaction;

    (d) Protection in perpetuity has been established; and

    (e) The bond or alternate form of security, if applicable, has been released.

  (2) The bank operator shall notify the Department in writing to request confirmation of the decision to close out the mitigation bank.

  (3) The Department shall confirm the close out within 45 days of receipt of the request, unless additional information is needed or the conditions in §G(1) of this regulation have not been met.

#### Regulation .07 Nontidal Wetland Compensation Fund.

*COMAR 26.23.04.07*

A. The Department may accept monetary compensation if it determines that mitigation for nontidal wetland losses is not a feasible alternative. Monetary compensation may not substitute for the requirement to avoid or minimize nontidal wetland losses.

B. When a permittee or person conducting an agricultural activity maintains that mitigation is not a feasible alternative based on the requirements of §C of this regulation, the permittee or person conducting an agricultural activity shall propose that the Department accept monetary compensation. A proposal for acceptance of monetary compensation shall be submitted as a part of Phase I of a mitigation plan or as part of the mitigation component of the soil conservation and water quality plan submitted to the Department for review.

C. Monetary compensation may be accepted under one or more of the following circumstances:

  (1) The size of the nontidal wetland loss is less than 1 acre.

  (2) In-kind mitigation of nontidal wetlands to be lost is technically infeasible.

  (3) An acceptable mitigation site cannot be located within the areas identified in Regulation .03H of this chapter, as documented by submission of:

    (a) A map and description of sites rejected.

    (b) A justification of why each site was unsuitable for mitigation.

    (c) Other information required by the Department.

  (4) The Department recommends the use of the compensation fund.

D. Monetary compensation proposals may be rejected if the Department determines that:

  (1) Mitigation requirements can be fulfilled on-site; or

  (2) Conditions in §C of this regulation are not fulfilled.

E. The Department shall render decisions on proposals to accept monetary compensation based on §B of this regulation as part of a final permit or mitigation component decision.

F. The Nontidal Wetland Compensation Fund shall include:

  (1) Monetary compensation paid by a permittee or person conducting an agricultural activity instead of engaging in the creation, restoration, or enhancement of nontidal wetlands;

  (2) A civil or criminal penalty imposed by a court pursuant to COMAR 26.23.01.05 or 26.23.02.09; and

  (3) Other monetary contributions to the Nontidal Wetland Compensation Fund from other sources.

G. Funds in the Nontidal Wetland Compensation Fund may be used only for the creation, restoration, or enhancement of nontidal wetlands. This includes:

  (1) Development of mitigation plans;

  (2) Location and acquisition of land;

  (3) Acquisition of easements;

  (4) Design, construction, planting, monitoring, and maintenance of mitigation sites; and

  (5) Purchase of credits in mitigation banks.

H. The Department may determine monetary compensation fees based on costs anticipated to construct mitigation projects, including location and acquisition of land, design, construction, maintenance, and monitoring costs. The Department may use the following to determine these costs:

  (1) Land acquisition costs derived from fair market value of the converted nontidal wetland by the permittee or person conducting an agricultural activity, based on at least two independent appraisals or other evidence of land value which may be acceptable to the Department;

  (2) Design costs derived from a percentage of construction costs or actual costs for projects similar in size and complexity completed by a permittee, person conducting an agricultural activity, or the Department;

  (3) Construction costs derived on a case-by-case basis, taking into account the following factors:

    (a) Nontidal wetland type, size, and functions;

    (b) Amount of planting, grading, and other site preparations; and

    (c) Costs of similar mitigation projects completed by permittees, persons conducting agricultural activities, or the Department; and

  (4) Monitoring and maintenance costs derived from a percentage of construction costs or actual costs for projects similar in size and complexity completed by a permittee, person conducting an agricultural activity, or the Department.

I. Funds credited and any interest accrued to the Nontidal Wetland Compensation Fund shall remain available until expended, and may not revert to the general fund.

J. The Department shall prepare an annual report on the Nontidal Wetland Compensation Fund that includes an accounting of:

  (1) Financial receipts and expenditures to and from the Fund; and

  (2) Mitigation projects completed and in progress.

K. The Department shall provide a copy of the annual report to the General Assembly as provided under State Government Article, §2-1312, Annotated Code of Maryland.

### Chapter 05 — Agricultural and Forestry Activities

**Authority:** Environment Article, §§5-901—5-911, Annotated Code of Maryland

**Administrative History:** Effective date: March 15, 1990 (17:5 Md. R. 637)

**Administrative History:** Chapter revised as an emergency provision effective January 1, 1991 (18:2 Md. R. 128)

**Administrative History:** Chapter revised effective May 13, 1991 (18:9 Md. R. 1007)

**Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994

**Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); Regulations .01—.04, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813)

**Administrative History:** Regulations .01 and .15—.18 amended and Regulation .17-1 adopted effective November 7, 1994 (21:22 Md. R. 1874)

**Administrative History:** Regulations .01—.03 were recodified from Regulations .19—.21, respectively, under COMAR 08.05.04 Nontidal Wetlands, February 1996

#### Regulation .01 Agricultural Activities.

*COMAR 26.23.05.01*

A. A person conducting an agricultural activity is exempt from the requirement to obtain a nontidal wetlands permit under this subtitle. Unless exempted in §B of this regulation, a person conducting an agricultural activity which adversely impacts a nontidal wetland shall implement best management practices to protect nontidal wetlands and provide mitigation for any loss of nontidal wetlands through a soil conservation and water quality plan submitted to, and approved by, a soil conservation district after December 31, 1990.

B. Exemptions. The following activities are exempt from the approval and mitigation requirements of this subtitle:

  (1) Repair and maintenance for agricultural activities in nontidal wetlands. These activities include repair and maintenance of:

    (a) Drainage ditches;

    (b) Farm ponds;

    (c) Channels;

    (d) Subsurface drains;

    (e) Bridges;

    (f) Water control structures;

    (g) Aquaculture ponds and associated structures;

    (h) Roads and causeways; and

    (i) Existing best management practices.

  (2) Agricultural activities and operation and maintenance activities conducted in accordance with public drainage regulations contained in COMAR 15.20.01.

  (3) Agricultural activities on areas that have lain fallow for any reason. The exemption may not apply if agricultural activities have not taken place for 5 consecutive years.

  (4) Agricultural activities on areas set aside or taken out of production if the area is under and complies with a formal program for agriculture, as authorized by the Agricultural Stabilization and Conservation Service within the U.S. Department of Agriculture, or the Conservation Reserve Program, or other formal set-aside programs that may be established by the Maryland Department of Agriculture. The exemption does not apply if agricultural activities have not resumed within 5 years after expiration of the time limit specified in the set-aside program.

  (5) Structures for agricultural activities essential to the continued operation of a farm if the nontidal wetland being impacted is on land which is farmed, set aside, lying fallow, or part of a crop rotation.

  (6) Agricultural activities including plowing, seeding, cultivating, harvesting, tilling, grazing, farm pond construction, and draining on areas not otherwise fallow or part of a set-aside program, provided that the activities do not drain, dredge, fill, or otherwise convert a nontidal wetland on which agricultural activities are not presently conducted. The following apply:

    (a) Construction or operation of a pond in nontidal wetlands used exclusively for wildlife management is not considered an agricultural activity.

    (b) Agricultural activities in nontidal wetlands dominated by woody hydrophytes shall maintain a dominance of woody hydrophytes and not alter the surface or ground water hydrology or drain, dredge, fill, convert, or degrade the water quality of nontidal wetlands, to qualify for an exemption under this subsection.

  (7) Agricultural activities in isolated nontidal wetlands of less than 1 acre and having no significant plant or wildlife value. A soil conservation district shall:

    (a) Determine whether an area is an isolated nontidal wetland based on published hydrologic and hydraulic data and data obtained in the field which shows whether the nontidal wetland is hydrologically connected.

    (b) Determine whether a nontidal wetland has significant plant or wildlife value.

    (c) Notify the Department when a determination is made under §B(7)(a) or (b) of this regulation. If the Department has not responded within 60 days of the notification, the determination made by a soil conservation district shall be considered correct. If the Department verifies or rejects the determination within 60 days of the notification, the decision made by the Department shall be binding on a soil conservation district.

  (8) Agricultural activities whose cumulative impact for the entire and complete project is less than 5,000 square feet of nontidal wetland which contains no significant plant or wildlife value. A soil conservation district shall:

    (a) Determine whether a nontidal wetland has significant plant or wildlife value.

    (b) Notify the Department when a determination under §B(8)(a) of this regulation is made. If the Department has not responded within 60 days of the notification, the determination made by a soil conservation district shall be considered correct. If the Department verifies or rejects the determination within 60 days of the notification, the decision made by the Department shall be binding on a soil conservation district.

C. Aquaculture facilities associated with land uses other than agriculture shall be used exclusively for aquaculture in order to be considered an agricultural activity.

D. Intent of Best Management Practices. Best management practices for agricultural activities in nontidal wetlands shall be designed to achieve the following goals:

  (1) Control soil loss and minimize sediment deposition in nontidal wetlands;

  (2) Minimize water quality degradation;

  (3) Minimize adverse impacts to the surface water and ground water circulation patterns; and

  (4) Minimize adverse impacts to the chemical, physical, or biological characteristics of nontidal wetlands.

E. A soil conservation district shall consider all of the following criteria when approving the use of a best management practice for agricultural activities in nontidal wetlands:

  (1) Whether an alternate best management practice can accomplish the purpose with less adverse impact to a nontidal wetland.

  (2) The feasibility of future nontidal wetland restoration.

  (3) The cost and extent of mitigation.

  (4) Landowner objectives.

  (5) Whether activities change the level of surface water or ground water in a nontidal wetland. This includes whether changes to flow and circulation:

    (a) Are recommended in the soil conservation and water quality plan; and

    (b) Are reversible.

  (6) Whether the locations of aquaculture ponds, farm ponds, and any other structures for agriculture minimize adverse impacts to nontidal wetlands. The following locations minimize nontidal wetland adverse impacts in decreasing order of preference:

    (a) Uplands;

    (b) Isolated farmed nontidal wetlands;

    (c) Other farmed nontidal wetlands;

    (d) Emergent nontidal wetlands;

    (e) Scrub-shrub nontidal wetlands; and

    (f) Forested nontidal wetlands.

F. Best Management Practices.

  (1) A person conducting agricultural activities in nontidal wetlands that are not otherwise exempt in §B of this regulation shall implement best management practices that meet the intent of §§D and E of this regulation as set forth in a soil conservation and water quality plan that is consistent with this regulation.

  (2) A person conducting an agricultural activity may use best management practices recommended in publications by the Maryland Department of Agriculture and the U.S. Department of Agriculture Soil Conservation Service. Individual practices may include:

    (a) Conservation cropping sequences;

    (b) Conservation tillage;

    (c) Filter strips;

    (d) Fertilizer management; or

    (e) Waste management.

  (3) When farm roads are constructed in nontidal wetlands, they shall be designed according to the following criteria:

    (a) Contain not more than the minimum length and width necessary to conduct agricultural activities;

    (b) Minimize encroachment in nontidal wetlands;

    (c) Maintain flow of water unless otherwise recommended in the soil conservation and water quality plan; and

    (d) Be stabilized.

  (4) Best management practices for changes in surface water patterns or ground water levels shall attempt to accommodate nontidal wetland restoration, creation, or enhancement if agricultural activities no longer occur on the site.

  (5) Best management practices that require planting of vegetation shall use native or adaptive vegetation.

  (6) Farm ponds or aquaculture facilities that are located in intermittent or perennial streams, or that divert water from intermittent or perennial streams, shall:

    (a) Not cause a violation of applicable State water quality standards as established by the Department;

    (b) Allow the continued migration and reproduction of fish and wildlife that do occur, and that traditionally have occurred, in the streams and nontidal wetlands; and

    (c) Minimize changes to upstream, downstream, and adjacent nontidal wetland hydrology and vegetation.

  (7) Aquaculture facilities shall be designed to minimize the escape of exotic or hybrid plant species into nontidal wetlands.

  (8) Temporary adverse impacts shall be rectified.

G. Plan Processing and Approval.

  (1) A soil conservation district shall:

    (a) Delineate or review and approve the extent of nontidal wetlands impacted by the agricultural activity according to the Federal Manual; and

    (b) Assist in the preparation of and approve a soil conservation and water quality plan, including mitigation components, that complies with this regulation and COMAR 26.23.04.01 and .03—.07.

  (2) A soil conservation district may use guidance maps prepared by the Department to assist in the identification of nontidal wetlands.

  (3) A soil conservation district may not approve a plan if it fails to comply with criteria and best management practices as set forth in this regulation, and mitigation requirements contained in COMAR 26.23.04.01 and .03—.07.

  (4) A soil conservation district shall modify a plan when there is a change in the agricultural activity being conducted or a new best management practice is implemented that results in the loss of additional nontidal wetlands on areas not exempted under §B of this regulation. A modified plan that impacts additional nontidal wetlands shall require additional mitigation.

H. Coordination with Other Programs.

  (1) To assist a person conducting agricultural activities in expediting the permit process for other State or federal programs, the Department may provide additional comments on voluntary protection standards for agricultural activities in nontidal wetlands.

  (2) A person conducting an agricultural activity in a nontidal wetland may request that the soil conservation district incorporate the voluntary protection standards into the soil conservation and water quality plan.

  (3) If additional standards are met, the person conducting an agricultural activity may request that the Department coordinate review of the agricultural activities in nontidal wetlands with other appropriate governmental agencies.

I. Agricultural activities in nontidal wetlands shall be subject to the enforcement provisions of COMAR 26.23.01.05.

J. A soil conservation district and the Department of Agriculture shall cooperate with the Department to resolve a violation of these regulations caused by an agricultural activity.

#### Regulation .02 Forestry Activities.

*COMAR 26.23.05.02*

A. A person conducting a forestry activity is exempt from the requirements under this subtitle to obtain a nontidal wetland permit and to provide mitigation. Unless exempted in §B of this regulation, a person conducting a forestry activity shall implement best management practices to protect nontidal wetlands through a sediment and erosion control plan submitted to and approved by a soil conservation district after December 31, 1990.

B. Exemptions. The following forestry activities shall be exempt from the plan approval requirements of this regulation and Regulation .03 of this chapter:

  (1) Repair and maintenance of existing structures associated with forestry activities in nontidal wetlands, including drainage ditches, roads, skid trails, causeways, bridges, culverts, and firebreaks, provided the repair and maintenance activities do not drain, dredge, fill, or convert nontidal wetlands.

  (2) Forestry activities on areas that have lain fallow due to disease eradication or before site preparation. A person conducting forestry activities shall implement best management practices when the land is no longer fallow and the area is replanted or allowed to regenerate.

  (3) Forestry activities on areas that have lain fallow after harvesting before replanting or regeneration due to a civil action involving ownership of the property. A person conducting forestry activities shall implement best management practices to protect nontidal wetlands upon resolution of the civil action.

  (4) Forestry activities on nontidal wetlands that have been set aside or taken out of production under a formal State or federal program for forest land for the time period of the set aside if change does not occur in land use. A person conducting forestry activities shall implement best management practices upon expiration of the time period of the set aside and when a new sediment and erosion control plan is required.

  (5) Forestry activities that do not require a sediment and erosion control plan.

  (6) Forestry activities that are begun before January 1, 1991, in accordance with a sediment and erosion control plan approved before January 1, 1991.

C. Intent of Best Management Practices. Best management practices for forestry activities in nontidal wetlands shall be designed to achieve the following goals:

  (1) Control soil loss and sediment deposition in nontidal wetlands;

  (2) Minimize water quality degradation caused by sediment;

  (3) Minimize adverse impacts to circulation patterns or flow of surface water or ground water;

  (4) Prevent a nontidal wetland from being changed to upland or any other area that no longer meets the nontidal wetland definition; and

  (5) Minimize adverse impacts to the chemical, physical, or biological characteristics of nontidal wetlands.

D. A soil conservation district shall consider the following factors in approving the use of best management practices for forestry activities in nontidal wetlands:

  (1) Properties of specific soils to resist compaction or ruts and support equipment;

  (2) Ability to maintain surface and ground water levels in the nontidal wetland after the harvest; and

  (3) Maintenance of the ecological value of nontidal wetlands of special State concern.

E. Best Management Practices.

  (1) A person conducting forestry activities in nontidal wetlands shall implement best management practices that meet the intent of §§C and D of this regulation as set forth in a sediment and erosion control plan prepared by a registered professional forester, and approved by a soil conservation district that is consistent with this regulation and Regulation .03 of this chapter.

  (2) For skid trails, log decks, and roads, a person conducting a forestry activity shall use site specific best management practices approved by a soil conservation district. These best management practices may include:

    (a) Locating major skid trails to the maximum extent feasible on soils that resist compaction, ruts, or other disturbances that adversely impact nontidal wetland hydrology.

    (b) Selecting appropriate equipment to skid logs shall be based upon:

      (i) Slope; and

      (ii) Ability of the soil to resist erosion or other disturbance.

    (c) Constructing forest roads:

      (i) On uplands where feasible, or on the highest available ground if uplands are unavailable, so as to minimize encroachment into nontidal wetlands.

      (ii) Using stabilization techniques to minimize erosion.

      (iii) Following natural contours of the land, wherever feasible.

      (iv) Maintaining the hydrology of the nontidal wetland by constructing diversion ditches at the minimum depth to maintain flow of water and using mats or similar temporary structures to reduce compaction or creation of ruts.

      (v) By not using fill materials for forest roads or using the minimum amount of fill material necessary to maintain a road. Fill shall be excavated from uplands when feasible, and shall be free from State or federally designated toxic pollutants.

    (d) Constructing stream crossings as to:

      (i) Cross in the shortest distance feasible.

      (ii) Be of appropriate design, considering the size of the stream and whether the crossing is temporary or permanent. Examples of these structures are mats, bridges, or culverts.

      (iii) Allow unrestricted movement of aquatic life in the stream.

    (e) Locating and maintaining log decks:

      (i) On uplands when they are on-site or available;

      (ii) As far from streams or nontidal wetlands as practicable or on the highest available ground if uplands are unavailable;

      (iii) At a minimum size and number necessary for the operation;

      (iv) With diversion ditches to direct water away from the deck during use;

      (v) By collecting and disposing of trash, debris, and chemicals outside the nontidal wetland.

    (f) Regrading and revegetating as necessary areas affected by skid trails, log decks, and temporary roads after harvesting is completed.

  (3) For harvest and regeneration practices, a person conducting a forestry activity shall use site-specific best management practices approved by a soil conservation district. These best management practices may include one or more of the following:

    (a) Using high flotation equipment when nontidal wetland soils are unable to support conventional equipment or harvesting on frozen or dry nontidal wetland soils when these soils are capable of supporting equipment to prevent compaction, ruts, or other significant disturbances to nontidal wetland soils or hydrology.

    (b) Conducting forestry activities so as to prevent impoundment of water or increased runoff in the nontidal wetland, unless the change is recommended in a sediment and erosion control plan.

    (c) Employing site preparation methods that do not result in the conversion of nontidal wetland to upland by grading, bedding, or other disturbances to the soil.

    (d) Complying with the seed tree law.

    (e) Employing natural regeneration as the preferred method of regeneration in nontidal wetlands, excluding nontidal wetlands with loblolly pine that are regulated under the seed tree law and nontidal wetlands described in §E(3)(f) of this regulation, if surface water is present for at least 1 month of the growing season and high ground water is present for most of the growing season. Presence of surface or high ground water can be determined by:

      (i) Visual observation;

      (ii) Soil samples; or

      (iii) Other hydrological indicators that are described in the Federal Manual.

    (f) Managing nontidal wetlands with at least 20 percent of the live trees being Atlantic white cedar (Chamaecyparis thyoides), red spruce (Picea rubens), balsam fir (Abies balsamea), American larch (Larix laricina), or bald cypress (Taxodium distichum) to maintain at least the same distribution after harvest.

  (4) For nontidal wetlands of special State concern, a person conducting a forestry activity shall use site-specific best management practices approved by a soil conservation district under all of the following criteria:

    (a) These best management practices shall maintain the ecological value of nontidal wetlands of special State concern by establishing a:

      (i) Primary protection area for the crucial portions of nontidal wetlands of special State concern within which a disturbance may not occur, and

      (ii) Secondary protection area, when appropriate, within the nontidal wetland of special State concern where group selection, single tree selection, natural regeneration, limited skidder access, disturbance restrictions during the breeding and nesting season, and other low-impact techniques shall be used; and

    (b) Practices to maintain the ecological value of nontidal wetlands of special State concern may not be such that harvesting is prohibited within the secondary protection area provided that best management practices are consistent with §E(4)(a)(ii) of this regulation and this section.

F. Best management practices for loblolly pine nontidal wetlands that are regulated by the seed tree law shall be simplified and limited to practices listed under §E(1), (2), and (3)(a)—(d) of this regulation, as appropriate to a specific site.

#### Regulation .03 Plan Review and Approval for Forestry Activities.

*COMAR 26.23.05.03*

A. A soil conservation district shall obtain and consider all of the following information to determine which best management practices are necessary and appropriate:

  (1) A delineation according to the Federal Manual of the extent of nontidal wetlands affected by forestry activities including acreage of nontidal wetland to be harvested.

  (2) The method and schedule for harvesting as prepared by a registered professional forester.

  (3) A description of equipment to be used to conduct forestry activities in nontidal wetlands.

  (4) The estimated location of:

    (a) Major skid trails;

    (b) Log decks; and

    (c) Roads.

  (5) The proposed location of diversion ditches.

  (6) A description of anticipated site preparation methods. Methods may include one or more of the following, as appropriate:

    (a) Bedding;

    (b) Stabilization;

    (c) Additional clearing or stump removal;

    (d) Chemical treatment.

  (7) Description of measures to rectify disturbances from temporary forest roads, log decks, skid trails, and other temporary structures as necessary.

  (8) The proposed planting or regeneration method.

  (9) Forestry activities and protection areas in nontidal wetlands of special State concern described in Regulation .02E(4) of this chapter.

B. A person conducting forestry activities in loblolly pine nontidal wetlands regulated under the seed tree law may submit a reforestation plan, instead of the information requirements of §A of this regulation, to a soil conservation district to expedite a review of a sediment and erosion control plan if the reforestation plan:

  (1) Contains information required under §A of this regulation to approve best management practices appropriate to the site; and

  (2) Has been approved by the Department.

C. Plan Processing and Approval.

  (1) A soil conservation district shall:

    (a) Delineate or review and approve the delineation of nontidal wetlands according to the Federal Manual; and

    (b) Review and approve the sediment and erosion control plan if it complies with this regulation and Regulation .02 of this chapter.

  (2) A soil conservation district may use guidance maps prepared by the Department to assist in the identification of nontidal wetlands of special State concern.

  (3) The Department shall delineate the primary and secondary protection areas for nontidal wetlands of special State concern in consultation with a soil conservation district. Comments from the landowner and the registered professional forester prescribing the harvest method and schedule shall be considered.

  (4) A person conducting forestry activities shall:

    (a) Submit copies of an approved sediment and erosion control plan to the Department; and

    (b) Notify the soil conservation district when site conditions require a change in best management practices.

  (5) A person conducting forestry activities in nontidal wetlands on State lands shall submit sediment and erosion control plans to the Department for approval.

  (6) The Department shall recommend additional voluntary protection standards for forestry activities in nontidal wetlands upon request from a person conducting forestry activities.

  (7) Forestry activities in nontidal wetlands shall be subject to the enforcement provisions of COMAR 26.23.01.05.

  (8) A soil conservation district shall cooperate with the Department to resolve a violation of these regulations caused by a forestry activity.

### Chapter 06 — Nontidal Wetlands of Special State Concern

**Authority:** Environment Article, §§5-901—5-911, Annotated Code of Maryland

**Administrative History:** Effective date: March 15, 1990 (17:5 Md. R. 637)

**Administrative History:** Chapter revised as an emergency provision effective January 1, 1991 (18:2 Md. R. 128)

**Administrative History:** Chapter revised effective May 13, 1991 (18:9 Md. R. 1007)

**Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994

**Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); Regulations .01—.04, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813)

**Administrative History:** Regulations .01 and .15—.18 amended and Regulation .17-1 adopted effective November 7, 1994 (21:22 Md. R. 1874)

**Administrative History:** Regulations .01 and .02 were recodified from Regulations .26 and .27, respectively, under COMAR 08.05.04 Nontidal Wetlands, June 1996

**Administrative History:** Regulation .01 amended as an emergency provision effective September 1, 2000 (27:19 Md. R. 1723); emergency status expired December 31, 2000; emergency status extended at 28:3 Md. R.; amended permanently effective February 5, 2001 (28:2 Md. R. 105)

**Administrative History:** Regulation .02 amended as an emergency provision effective September 1, 2000 (27:19 Md. R. 1723); emergency status expired December 31, 2000; emergency status extended at 28:3 Md. R.; amended permanently effective February 5, 2001 (28:2 Md. R. 105)

**Administrative History:** Regulation .03 adopted as an emergency provision effective September 1, 2000 (27:19 Md. R. 1723); emergency status expired December 31, 2000; emergency status extended at 28:3 Md. R.; amended permanently effective February 5, 2001 (28:2 Md. R. 105)

#### Regulation .01 Areas Designated as Nontidal Wetlands of Special State Concern.

*COMAR 26.23.06.01*

Maps of areas designated as nontidal wetlands of special State concern shall be maintained by the Department and available for public review. Areas designated as nontidal wetlands of special State concern are listed below:

Site Name
            U.S.G.S Quad Name
          
        
        
          
            A. Allegany County.
          
          
            (1) Fifteenmile Creek Macrosite
            Artemas
          
          
            (2) Little Knob Seep
            Evitts Creek
          
          
            (3) Long Pond
            Artemas
          
          
            (4) Murley Branch Spring
            Flintstone
          
          
            (5) North Branch Bottomland
            Patterson Creek
          
          
            (6) Pinto Marsh
            Cresaptown
          
          
            (7) Potomac Bends Wildland
            Paw Paw
          
          
            (8) Selinger Marsh
            Flintstone
          
          
            (9) Sideling Hill Creek Macrosite
            Bellegrove
          
          
            (10) Spring Gap Bottomland
            Patterson Creek
          
          
            (11) West Fairplay
            Paw Paw
          
          
            B. Anne Arundel County.
          
          
            (1) Benfield Bottomland
            Odenton
          
          
            (2) Conrail/Patuxent River
            Laurel
          
          
            (3) Fort George G. Meade
            Laurel, Odenton
          
          
            (4) Freetown Swamp
            Curtis Bay
          
          
            (5) Gumbottom Wetland
            Round Bay
          
          
            (6) Jabez Branch
            Odenton
          
          
            (7) John Wesley Church Site
            Round Bay
          
          
            (8) Little Patuxent Oxbow
            Laurel
          
          
            (9) Mountain Road Peninsula Bog Complex
            Round Bay, Gibson Island
          
          
            (10) Patuxent Community Ponds
            Odenton
          
          
            (11) Patuxent Maple Swamp
            Bowie
          
          
            (12) Patuxent Wildlife Research Center
            Laurel
          
          
            (13) Round Bay Bog
            Round Bay
          
          
            (14) Stony Run
            Relay
          
          
            (15) Watershed Woods
            South River
          
          
            C. Baltimore County.
          
          
            (1) Beaverdam Run
            Cockeysville
          
          
            (2) Beetree Run
            New Freedom
          
          
            (3) Big Gunpowder Falls—Forge Road Site
            White Marsh
          
          
            (4) Club Hill Forest
            White Marsh
          
          
            (5) Glencoe/Gunpowder Falls
            Hereford
          
          
            (6) Gwynn Falls North
            Reisterstown
          
          
            (7) Gwynn Falls South
            Reisterstown
          
          
            (8) Loch Raven—Hampton Area
            Towson
          
          
            (9) Lower Chimney Branch
            Reisterstown
          
          
            (10) Monkton Bog
            Phoenix
          
          
            (11) Phoenix Marsh
            Phoenix
          
          
            (12) Pikall Riverbank
            Ellicott City
          
          
            (13) Putty Hill Wetlands
            Towson, White Marsh
          
          
            (14) Red Run Branch
            Reisterstown
          
          
            (15) Rockland Meadows
            Cockeysville
          
          
            (16) Soldiers Delight
            Reisterstown
          
          
            D. Calvert County.
          
          
            (1) Battle Creek Cypress Swamp
            Broomes Island, Prince Frederick
          
          
            (2) Calvert Cliffs State Park
            Cove Point
          
          
            (3) Patuxent Highlands
            Lower Marlboro
          
          
            (4) Port Republic Watershed
            Prince Frederick
          
          
            (5) West Governor Run Watershed
            Prince Frederick
          
          
            E. Caroline County.
          
          
            (1) Baltimore Corner
            Goldsboro
          
          
            (2) Bates Ditch
            Hickman
          
          
            (3) Bridgetown Ponds NRMA
            Goldsboro
          
          
            (4) Central Avenue Corner
            Denton
          
          
            (5) East Melville Pond
            Goldsboro
          
          
            (6) Floral Swale
            Goldsboro
          
          
            (7) Greer's Pond
            Goldsboro
          
          
            (8) Hourglass Pond
            Goldsboro
          
          
            (9) Jackson Lane Site
            Goldsboro
          
          
            (10) Marvel Pond
            Goldsboro
          
          
            (11) Marydel East
            Goldsboro
          
          
            (12) Mt. Zion Pothole
            Goldsboro
          
          
            (13) Mt. Zion South Pond
            Goldsboro
          
          
            (14) Oldtown Pond
            Goldsboro
          
          
            (15) Opossum Hill Powerline
            Hobbs
          
          
            (16) Pasture Pond
            Goldsboro
          
          
            (17) Persimmon East
            Goldsboro
          
          
            (18) Persimmon Preserve Site
            Goldsboro
          
          
            (19) Petroski Bog
            Goldsboro
          
          
            (20) R and M Bay
            Goldsboro
          
          
            (21) Red Bridges Road Crossing
            Denton
          
          
            (22) Schuyler Road Pond
            Goldsboro
          
          
            (23) Smithville Swamp
            Hickman
          
          
            (24) South Melville Crossroads Pothole
            Goldsboro
          
          
            (25) Tuckahoe Creek North
            Ridgely
          
          
            F. Carroll County.
          
          
            (1) Alesia Swamp
            Lineboro
          
          
            (2) Hoods Mill
            Woodbine
          
          
            G. Cecil County.
          
          
            (1) Bald Friar Ravine
            Conowingo Dam
          
          
            (2) Camp Rodney Swamp
            North East
          
          
            (3) Cecil Bog
            Conowingo Dam
          
          
            (4) Charlestown West Seeps
            Havre De Grace
          
          
            (5) Log Cabin Sedge Meadow
            Conowingo Dam
          
          
            (6) Octoraro Slopes
            Rising Sun
          
          
            (7) Plum Creek
            North East
          
          
            (8) Port Deposit
            Aberdeen
          
          
            (9) Roaring Woods
            Conowingo Dam
          
          
            (10) Stone Run Millpond
            Rising Sun
          
          
            (11) Whitaker Swamp
            North East, Havre De Grace, Bay View
          
          
            (12) Wildcat Ravine
            Conowingo Dam
          
          
            H. Charles County.
          
          
            (1) Brentland Woods
            Mathias Point
          
          
            (2) Bryantown Swamp
            Hughesville
          
          
            (3) Cat Pond
            La Plata
          
          
            (4) County Line Trail Seep
            Brandywine
          
          
            (5) Doncaster State Forest
            Nanjemoy
          
          
            (6) Maryland Point Swamp
            Nanjemoy
          
          
            (7) Pomonkey School Stream
            Port Tobacco
          
          
            (8) Popes Creek
            Popes Creek
          
          
            (9) Port Tobacco Run
            Port Tobacco
          
          
            (10) Thomas Stone National Historic Site
            Port Tobacco
          
          
            (11) Upper Nanjemoy Creek
            Nanjemoy
          
          
            (12) Zekiah Swamp
            Brandywine, Hughesville, La Plata, Popes Creek, Charlotte Hall
          
          
            I. Dorchester County.
          
          
            (1) Bar Neck Oxbow
            Church Creek
          
          
            (2) Big Millpond
            East New Market, Rhodesdale
          
          
            (3) Brookview Ponds
            Rhodesdale
          
          
            (4) Cabin Creek Seep
            East New Market, Preston
          
          
            (5) Chicone Creek
            Rhodesdale
          
          
            (6) Dorchester Pond
            East New Market, Rhodesdale
          
          
            (7) Gales Creek
            Sharptown
          
          
            (8) Marshyhope Seasonal Pond
            Federalsburg, Rhodesdale
          
          
            (9) Messick Pond
            East New Market
          
          
            (10) Ocean Gateway Pond
            Rhodesdale
          
          
            (11) Rhodesdale Powerline
            Rhodesdale
          
          
            (12) Rhodesdale Powerline SE
            Rhodesdale
          
          
            (13) Savanna Lake
            Chicamacomico, Mardela Springs
          
          
            (14) Upper Blackwater River
            Golden Hill
          
          
            J. Frederick County.
          
          
            (1) Bennett Tributary Swamp
            Buckeystown
          
          
            (2) Brunswick Riverside
            Harpers Ferry
          
          
            (3) Buzzard Branch
            Myersville
          
          
            (4) Buzzard Branch Bog
            Myersville
          
          
            (5) Buzzard Branch Bottom
            Myersville
          
          
            (6) Catoctin Creek Mouth
            Point of Rocks
          
          
            (7) Catoctin Station
            Point of Rocks
          
          
            (8) East Buzzard Branch
            Catoctin Furnace
          
          
            (9) Eyeler Valley
            Blue Ridge Summit
          
          
            (10) Fishing Creek
            Catoctin Furnace
          
          
            (11) Foxville Swamp
            Blue Ridge Summit
          
          
            (12) Hunting Creek Hollow
            Blue Ridge Summit
          
          
            (13) Le Gore Bridge
            Woodsboro
          
          
            (14) Little Catoctin Creek Glade
            Myersville
          
          
            (15) Little Fishing Creek Pond
            Catoctin Furnace
          
          
            (16) Lock 28 Floodplain
            Point of Rocks
          
          
            (17) Lock 29 Floodplain
            Point of Rocks
          
          
            (18) Owens Creek Swamp
            Blue Ridge Summit
          
          
            (19) Ridenour Swamp
            Smithsburg
          
          
            (20) South Salamander Rock Fire Ponds
            Catoctin Furnace
          
          
            (21) Spruce Run
            Myersville
          
          
            (22) Steep Creek Swamp
            Catoctin Furnace
          
          
            (23) Turkey Creek
            Blue Ridge Summit
          
          
            (24) Upper Hunting Creek Swamp
            Blue Ridge Summit
          
          
            (25) Wigville Swamp
            Myersville
          
          
            K. Garrett County.
          
          
            (1) Altamont Swamp
            Deer Park
          
          
            (2) Amish Road Swamp
            Grantsville
          
          
            (3) Anvil Bog
            McHenry
          
          
            (4) Bear Creek North
            McHenry
          
          
            (5) Bear Creek South
            McHenry
          
          
            (6) Big Laurel Run Swamp
            Grantsville
          
          
            (7) Boiling Springs Woods
            Deer Park
          
          
            (8) Brenneman Hill Swamp
            Bittinger
          
          
            (9) Buffalo Run Marsh
            Friendsville
          
          
            (10) Bull Glade Run
            Oakland
          
          
            (11) Callahan Swamp
            Frostburg, Avilton
          
          
            (12) Casselman River Macrosite
            Avilton
          
          
            (13) Chisolm Run Swamp
            Oakland
          
          
            (14) Cristley Run Woods
            Avilton
          
          
            (15) Crab Run Floodplain
            Grantsville
          
          
            (16) Cranesville Swamp
            Sang Run
          
          
            (17) Cross Camp Cove
            Deer Park
          
          
            (18) Cunningham Lake South
            Bittinger
          
          
            (19) Cunningham Swamp
            Bittinger
          
          
            (20) East Negro Mountain Bog
            McHenry
          
          
            (21) Finzel Swamp
            Frostburg
          
          
            (22) Hammel Glade
            Deer Park
          
          
            (23) Herrington Creek Headwaters Swamp
            Oakland
          
          
            (24) Herrington Lake South Tributary
            Oakland
          
          
            (25) Herrington Lake Wetlands North
            Oakland
          
          
            (26) Herrington Run
            Oakland
          
          
            (27) Hutton Switch Bog
            Oakland
          
          
            (28) Kearney Bog
            Gorman
          
          
            (29) Kempton Marsh
            Davis
          
          
            (30) Kempton Ponds
            Davis
          
          
            (31) Keystone Swamp
            Deer Park
          
          
            (32) Laurel Run Bog
            Davis
          
          
            (33) Laurel Springs
            Davis
          
          
            (34) McHenry Wetland South
            McHenry
          
          
            (35) Meadow Mountain Run Swamp
            McHenry
          
          
            (36) Mount Nebo Wetlands
            Oakland
          
          
            (37) Mudlick Run
            Avilton
          
          
            (38) Murley Run
            Oakland
          
          
            (39) Negro Mountain Bog
            McHenry
          
          
            (40) Negro Mountain Bog—Accident
            Accident
          
          
            (41) Negro Mountain Powerline Bog
            McHenry
          
          
            (42) North Cherry Creek Bog
            McHenry
          
          
            (43) North Chisolm Run
            Oakland
          
          
            (44) North Laurel Run Swamp
            Table Rock, Davis
          
          
            (45) Pheasant Ridge
            Kitzmiller
          
          
            (46) Pine Swamp East
            Barton
          
          
            (47) Piney Creek Swamp
            Avilton
          
          
            (48) Piney Run Bog
            Sang Run
          
          
            (49) Poplar Lick Swamp
            Avilton
          
          
            (50) Potato Farm Cove
            Deer Park
          
          
            (51) Pronghorn Swamp
            Oakland
          
          
            (52) Puzzley Run
            Grantsville
          
          
            (53) Red Oak Run Swamp
            Davis
          
          
            (54) Rock House Bog
            McHenry
          
          
            (55) Rock Lodge Macrosite
            McHenry
          
          
            (56) Short Run Vernal Ponds
            Kitzmiller
          
          
            (57) South Dunkard Lick
            Oakland
          
          
            (58) South Prong
            Deer Park
          
          
            (59) Swallow Falls Spring
            Oakland
          
          
            (60) The Glades
            McHenry
          
          
            (61) The Little Mountain North Woods
            Gorman
          
          
            (62) Toliver Run NHA
            Sang Run
          
          
            (63) Upper Salt Block Run
            Sang Run
          
          
            (64) Upper Youghiogheny
            Friendsville
          
          
            (65) Upperman Road Bog
            Deer Park
          
          
            (66) West Deer Park Meadow
            Deer Park
          
          
            (67) West Piney Run
            Sang Run
          
          
            (68) Whale Swamp
            Oakland
          
          
            (69) White Cemetery Bog
            Gorman
          
          
            (70) White Rock Glade
            Sang Run
          
          
            (71) Wilson Swamp
            Deer Park
          
          
            (72) Wolf Swamp
            Avilton
          
          
            (73) Youghiogheny River—Sang Run
            Sang Run
          
          
            L. Harford County.
          
          
            (1) Bynum Run
            Bel Air
          
          
            (2) Deer Creek Serpentine Barren
            Delta
          
          
            (3) Harford Glen
            Edgewood
          
          
            (4) Hess Pond
            Phoenix
          
          
            (5) Little Gunpowder Falls
            White Marsh
          
          
            M. Howard County.
          
          
            (1) Benson Branch
            Sykesville
          
          
            (2) Browns Bridge Crossing
            Clarksville
          
          
            (3) Henryton Woods
            Sykesville
          
          
            (4) Hipsleys Mill Woods
            Woodbine
          
          
            (5) Landing Road Seep
            Savage
          
          
            (6) Old Guilford Ponds
            Savage
          
          
            (7) Upper Hammond Branch
            Clarksville
          
          
            N. Kent County.
          
          
            (1) Big Marsh
            Betterton
          
          
            (2) Black Bottom Ponds
            Millington
          
          
            (3) Brown's Pond
            Millington
          
          
            (4) Cypress Branch Pond
            Millington
          
          
            (5) Golts Pond West
            Millington
          
          
            (6) Golts Ponds
            Millington
          
          
            (7) Golts Railway Pond
            Millington
          
          
            (8) Lover's Lane
            Chestertown
          
          
            (9) Massey Pond
            Millington
          
          
            (10) Millington WMA Ponds
            Millington
          
          
            (11) Morgan Creek
            Galena
          
          
            O. Montgomery County.
          
          
            (1) Canal Bottomland
            Seneca, Sterling
          
          
            (2) Germantown Bog
            Germantown
          
          
            (3) Great Falls Floodplain
            Rockville
          
          
            (4) Great Falls NHA
            Falls Church
          
          
            (5) Little Bennett Regional Park
            Urbana
          
          
            (6) Little Falls
            Washington West
          
          
            (7) McKee-Beshers West Swamp
            Sterling
          
          
            (8) Potomac River—Cropley
            Falls Church
          
          
            (9) Puller Marsh
            Kensington
          
          
            (10) Sycamore Landing Riverside
            Sterling
          
          
            (11) Unit 1 Spring
            Washington West
          
          
            (12) Violets Lock Floodplain
            Seneca
          
          
            P. Prince George's County.
          
          
            (1) Beck Woods
            Laurel
          
          
            (2) Belt Woods
            Lanham
          
          
            (3) Beltsville Airport Bog
            Laurel
          
          
            (4) Beltsville Bottomland Forest
            Laurel, Beltsville
          
          
            (5) Beltsville Forest and Meadow
            Laurel
          
          
            (6) Beltsville Seasonal Ponds
            Laurel
          
          
            (7) Buck Lodge Road Bog
            Beltsville
          
          
            (8) Chews Lake
            Bristol
          
          
            (9) Fort Ravine
            Mount Vernon
          
          
            (10) Johnson's Gully
            Mount Vernon
          
          
            (11) Huntington Park Woods
            Laurel
          
          
            (12) Patuxent Maple Swamp
            Bowie
          
          
            (13) Patuxent W.R.C.
            Laurel
          
          
            (14) Route I-95 Bog
            Beltsville
          
          
            (15) Southwest Branch Bottomland Forest
            Lanham, Upper Marlboro
          
          
            (16) Suitland Bog
            Anacostia
          
          
            (17) Watkins Regional Park
            Lanham
          
          
            (18) Zekiah Swamp
            Brandywine
          
          
            Q. Queen Anne's County.
          
          
            (1) Andover Flatwoods
            Sudlersville
          
          
            (2) Cleaves Fork
            Sudlersville
          
          
            (3) Kane Crossroads Pond
            Goldsboro
          
          
            (4) Long Marsh Ditch
            Goldsboro
          
          
            (5) Prices Chapel Ponds
            Sudlersville
          
          
            (6) Pristine Pines
            Sudlersville
          
          
            (7) Pristine Pines South
            Sudlersville
          
          
            (8) Starr Ponds
            Wye Mills
          
          
            (9) Teats Branch Pond
            Sudlersville
          
          
            (10) Templeville Ponds
            Sudlersville
          
          
            (11) Tuckahoe Creek North
            Ridgely
          
          
            (12) Unicorn Millpond
            Sudlersville
          
          
            R. Saint Mary's County.
          
          
            (1) Church Swamp
            Rock Point, Leonardtown
          
          
            (2) Mill Creek Pond
            Hollywood
          
          
            (3) Miski Run Woods
            Leonardtown
          
          
            (4) St. Mary's River Bottomland
            Hollywood
          
          
            (5) West California Swamp
            Hollywood
          
          
            S. Somerset County.
          
          
            (1) Dublin Swamp
            Princess Anne, Dividing Creek
          
          
            (2) Eden Swamp and Powerline
            Eden
          
          
            T. Talbot County.
          
          
            (1) Geib Fairview Ponds
            Fowling Creek
          
          
            (2) Mill Creek Wildlife Sanctuary
            Wye Mills
          
          
            (3) Seth Pond
            Trappe
          
          
            U. Washington County.
          
          
            (1) Beaver Creek
            Funkstown
          
          
            (2) Beaver Creek Headwaters
            Smithsburg
          
          
            (3) Boyd Mountain Pond
            Clear Spring
          
          
            (4) Ernstville Stream
            Cherry Run
          
          
            (5) Little Antietam Creek
            Smithsburg
          
          
            (6) Quirauk Mountain Stream
            Smithsburg
          
          
            (7) Sideling Hill Creek Macrosite
            Bellegrove
          
          
            V. Wicomico County.
          
          
            (1) Barren Creek
            Hebron, Mardela Springs
          
          
            (2) Campbell Powerline
            Pittsville
          
          
            (3) Horsebridge Creek Bog
            Wango
          
          
            (4) Johnson Pond
            Delmar
          
          
            (5) Lawes Ditch
            Wango
          
          
            (6) Litsea Pond
            Wetipquin
          
          
            (7) Middle Plum Creek
            Sharptown
          
          
            (8) Mockingbird Pond
            Hebron
          
          
            (9) Nassawango Creek
            Wango
          
          
            (10) Parker Pond
            Salisbury
          
          
            (11) Plum Creek Bog
            Sharptown
          
          
            (12) Schumaker Pond
            Salisbury
          
          
            (13) Sharptown Bog
            Hebron, Sharptown
          
          
            (14) Spearin Road Powerlines Site
            Salisbury
          
          
            (15) Widow Swamp
            Salisbury
          
          
            (16) Williams Pond
            Delmar
          
          
            W. Worcester County.
          
          
            (1) Burbage Crossing Swamp
            Ninepin Branch
          
          
            (2) Campground Branch
            Public Landing
          
          
            (3) Colbourne Powerline
            Wango
          
          
            (4) Delaware Wildlands
            Whaleysville
          
          
            (5) Dividing Creek Ponds
            Dividing Creek
          
          
            (6) Furnace Road Powerlines
            Dividing Creek
          
          
            (7) Hancock Creek Swamp
            Girdletree
          
          
            (8) Ironshire Swamp
            Berlin
          
          
            (9) Little Mill Run
            Girdletree
          
          
            (10) Longridge Powerlines
            Salisbury
          
          
            (11) Lower Sturges Creek Bog
            Wango
          
          
            (12) Mt. Olive Church Pond
            Wango
          
          
            (13) Nassawango Creek
            Snow Hill, Wango
          
          
            (14) Oak Hill Road Powerline
            Dividing Creek
          
          
            (15) Pawpaw Creek
            Public Landing
          
          
            (16) Pikes Creek
            Girdletree
          
          
            (17) Pocomoke Oxbow
            Ninepin Branch
          
          
            (18) Porter Neck Bog
            Berlin, Ninepin Branch
          
          
            (19) Powell Creek
            Girdletree
          
          
            (20) Riley Creek Swamp
            Girdletree
          
          
            (21) Scarboro Creek Woods
            Girdletree
          
          
            (22) Scotts Landing Pond
            Boxiron
          
          
            (23) Spearin Road Powerlines Site
            Salisbury
          
          
            (24) Stockton Powerlines
            Girdletree
          
          
            (25) Tanhouse Creek
            Public Landing
          
          
            (26) West Ocean City Pond
            Ocean City

#### Regulation .02 Areas Designated as Nontidal Wetlands of Special State Concern Located in the Critical Area.

*COMAR 26.23.06.02*

A. Maps of areas designated as nontidal wetlands of special State concern in the Critical Area shall be maintained by the Department and available for public review. Areas designated as nontidal wetlands of special State concern in the Critical Area are listed in §§B—Q of this regulation.

#### Regulation .03 Best Management Practices for Nontidal Wetlands of Special State Concern and Expanded Buffers.

*COMAR 26.23.06.03*

If a permit or other authorization is granted, the Department may require an applicant to comply with best management practices, including one or more of the following:

A. Protect against future disturbances to the nontidal wetland of special State concern by showing its surveyed boundary, expanded buffer, waterways, and 100-year floodplains on the property deed, and recording the information with the county;

B. Avoid impacts to regulated wetlands, buffers, expanded buffers, waterways, 100-year floodplains, and steep slopes or highly erodible soils as described in COMAR 26.23.01.04C that may cause an adverse impact to the nontidal wetland of special State concern;

C. Restrict regulated activities to the minimum area necessary to meet the project purpose;

D. Maintain existing groundwater recharge to the nontidal wetland of special State concern and tributaries to nontidal wetlands of special State concern by limiting impervious surfaces;

E. Use nonstructural stormwater management practices consistent with those in COMAR 26.17.02, to the extent practicable, such as infiltration, retention of forest, wetlands, and associated buffers, undisturbed floodplains, open space, and steep slopes, in association with structural stormwater management on properties with nontidal wetlands of special State concern or tributaries to nontidal wetlands of special State concern;

F. Manage runoff so that there is no direct discharge of stormwater into wetlands or waterways;

G. Restrict impervious surface on the project site to 15 percent or less, where practicable;

H. Install sediment controls such as super silt fences or comparable controls to completely surround all disturbed areas and maintain controls daily;

I. Stabilize disturbed areas daily with noninvasive native species;

J. Place vegetative waste, including yard waste, grass clippings, leaves, etc. or other debris outside of regulated wetlands, expanded buffers, waterways, and 100-year floodplains that are in the drainage area of the nontidal wetland of special State concern; or

K. Use other management practices listed in COMAR 26.23.03.02.

## Subtitle 24 — Tidal Wetlands

### Chapter 01 — General

**Authority:** Environment Article, Title 16, Annotated Code of Maryland

**Administrative History:** Effective date: February 14, 1994 (21:3 Md. R. 184)

**Administrative History:** (Wetlands regulations before February 14, 1994, appeared under COMAR 08.05.07)

**Administrative History:** Regulations .01—.07 were recodified from Regulations .01, .02, .13, .24, .25, .27, and .28, respectively, under COMAR 08.05.05 Tidal Wetlands, June 1996

**Administrative History:** Regulation .02B amended as an emergency provision effective March 9, 2007 (34:7 Md. R. 695); emergency expired September 5, 2007

**Administrative History:** Regulation .02B amended effective February 4, 2013 (40:2 Md. R. 73)

#### Regulation .01 Purpose.

*COMAR 26.24.01.01*

A. It is the goal of the State to preserve the tidal wetlands of the State, prevent their loss and despoliation, and strive for a net resource gain in tidal wetland acreage and function. An applicant for a license or permit required under this subtitle shall design a project to first avoid and then minimize the loss of tidal wetlands. If the Department determines that the loss of tidal wetlands is unavoidable and may be licensed or permitted by the Department or recommended for licensing to the Board of Public Works, the permit or license shall require mitigation in accordance with this subtitle. Tidal wetlands are found in the Chesapeake Bay, the tidal tributaries to the Chesapeake Bay, and the 3-mile area seaward of the low water mark of Maryland's Atlantic coast.

B. These regulations combine in one subtitle the Department's processing of applications for licenses to conduct activities in or over State tidal wetlands and for permits to conduct activities on private tidal wetlands. However, it is not the intent of these regulations to change the legal distinctions between State tidal wetlands and private tidal wetlands. The State holds State tidal wetlands in a proprietary capacity, in trust for the benefit of the people of Maryland. The Department regulates the activities of private persons on private tidal wetlands. When the Department acts on the application for a permit to conduct activities on private tidal wetlands, it is regulating the exercise of preexisting property rights. In contrast, when the State acts on an application for a license to conduct activities in or over State tidal wetlands, it is deciding whether or not to grant to a person certain limited property rights that the person did not have previously, and, in making that decision, the State enjoys the same discretion that any owner has in deciding whether to grant to another an interest in the owner's property.

C. This subtitle describes the Department's review of license applications for the dredging or filling of State tidal wetlands and the construction, reconstruction, or repair of structures on State tidal wetlands. Following the Department's review of an application, the Department shall make a decision or the Department shall submit a recommendation to the Board of Public Works. The Board of Public Works shall take final action on an application for a license in accordance with COMAR 23.02.04.

D. This subtitle also describes the Department's review of permit applications for dredging, filling, removing, or otherwise altering or polluting private tidal wetlands. Following review of an application, the Department shall make a decision in accordance with these regulations.

#### Regulation .02 Definitions.

*COMAR 26.24.01.02*

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Administration” means the Water Management Administration, a unit of the Department of the Environment designated by the Secretary of the Environment to administer Environment Article, Title 16, Annotated Code of Maryland.

  (2) “Administrative Procedure Act” means the provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

  (3) “Aquaculture” has the meaning stated in Natural Resources Article, §4-11A-01, Annotated Code of Maryland.

  (4) “Bathymetry” means the water depth relative to the elevation of mean low water.

  (4-1) “Beach nourishment” means a structural shoreline stabilization measure that is:

    (a) Made by placing or pumping appropriately-sized sand from elsewhere onto an eroding shore; and

    (b) Designed to:

      (i) Create a new beach; or

      (ii) Restore or widen an existing beach.

  (5) “Best management practices” means conservation practices or systems of practices and management measures that:

    (a) Control soil loss and reduce water quality degradation caused by runoff, nutrients, animal waste, toxicants, and sediment if best management practices do not dredge or fill tidal wetlands; and

    (b) Minimize adverse impacts to the surface water, ground water flow, circulation patterns, and to the chemical, physical, and biological characteristics of tidal wetlands.

  (6) “Board” means the Board of Public Works.

  (7) “Boathouse” means a structure with a roof or cover, or similar device placed over open water to protect a boat or other vessel.

  (7-1) “Breakwater” means a structural shoreline stabilization measure comprised of a segmented or non-segmented stone structure that is:

    (a) Typically placed offshore parallel to the shoreline; and

    (b) Designed to dissipate wave energy and reduce erosion.

  (7-2) “Buffer management plan” has the meaning stated in COMAR 27.01.09.01.

  (7-3) “Bulkhead” means a structural shoreline stabilization measure comprised of a vertical retaining wall composed of wood, stone, concrete, plastic, steel, or other similar material that is:

    (a) Placed parallel to the shoreline; and

    (b) Designed to control erosion.

  (8) “Containment structure” means a facility designed for the sole purpose of accepting and confining dredged material from tidal waters while allowing the release of effluent, and excludes those structures designed to contain, impound, or obstruct the waters of the State as defined by Environment Article, §5-501, Annotated Code of Maryland.

  (9) “Coastal Bays” means the estuaries situated between Maryland's Atlantic Ocean barrier islands and the opposing shoreline of the mainland which include Chincoteague Bay, Sinepuxent Bay, Isle of Wight, Newport Bay, Assawoman Bay, and the St. Martin River.

  (10) “Critical Area” has the meaning stated in COMAR 27.01.01.01B.

  (11) Critical Area Buffer.

    (a) “Critical Area buffer” means an area in the Critical Area that:

      (i) Based on conditions present at the time of development, is immediately landward from mean high water of tidal waters, the edge of each bank of a tributary stream, or the landward boundary of a tidal wetland; and

      (ii) Exists or may be established in natural vegetation to protect a stream, tidal wetland, tidal waters, or terrestrial environment from human disturbance.

    (b) “Critical Area buffer” includes an area of:

      (i) At least 100 feet, even if that area was previously disturbed by human activity; and

      (ii) Expansion for contiguous areas, including a steep slope, hydric soil, highly erodible soil, nontidal wetland, or a Nontidal Wetland of Special State Concern as defined in COMAR 26.23.01.01.

  (11-1) “Critical Area Commission” means the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays, as established under the Natural Resources Article, Title 8, Subtitle 18, Annotated Code of Maryland.

  (12) “Department” means the Department of the Environment.

  (13) “Direct discharge” means the concentrated release of storm water to tidal waters or vegetated tidal wetlands from new development or redevelopment projects in the Critical Area.

  (14) “Director” means the Director of the Water Management Administration.

  (15) “Dredging” means the removal or displacement by any means of soil, sand, gravel, shells, or other material, whether or not of intrinsic value, from any State or private tidal wetlands.

  (16) “Emergency condition” means a sudden, unforeseen occurrence caused by act of God, natural disaster, or other similar natural event or catastrophe when the health, safety, or welfare of the citizens of the State would be jeopardized by a delay in issuance of a license or permit.

  (17) “Endangered species” has the meaning stated in COMAR 08.03.08.01.

  (17-1) “Fetch” means the linear distance of open water over which wind-generated waves of a certain direction, speed, and duration travel unobstructed before reaching a shoreline.

  (18) Filling.

    (a) “Filling” means the:

      (i) Displacement of navigable water by the depositing of soil, sand, gravel, shells, or other materials, including pilings, piers, boathouses, deadweights, or riprap into State or private tidal wetlands;

      (ii) Artificial alteration of tidal water levels by any physical structure, drainage ditch, or otherwise; or

      (iii) Discharge of water from storm drainage projects directly into tidal waters of the State.

    (b) “Filling” does not include:

      (i) Drainage of agricultural land;

      (ii) In-place replacement or repair of functional shore erosion control structures using substantially similar materials and construction design;

      (iii) Planting of wetlands vegetation when no grading or fill in State or private wetlands is necessary; or

      (iv) Marking channels and harbors and establishing aids to navigation if approval has been granted by the United States Coast Guard.

  (19) “Fish” has the meaning stated in Natural Resources Article, §4-101, Annotated Code of Maryland.

  (20) “Functional” means performing at least 85 percent of the action that a structure was originally designed to perform.

  (21) “General wetlands license” means written authorization from the Department based on a standing authorization by the Board for recurrent or minimally disruptive activities conducted in State tidal wetlands.

  (22) “General wetlands permit” means written authorization from the Department for activities conducted in private tidal wetlands that cause only minimal individual and cumulative adverse impacts.

  (22-1) “Groin” means a structural shoreline stabilization measure comprised of stone, wood, plastic, steel, or other similar material that is:

    (a) Typically placed perpendicular to the shoreline; and

    (b) Designed to trap sand and reduce erosion.

  (23) “Historic property” means a district, site, building, structure, monument, or object significant in the prehistory, history, upland and underwater archeology, architecture, engineering, and culture of the State, including artifacts, records, and remains related to a district, site, building, structure, or object.

  (24) “In kind” means having characteristics closely approximating original characteristics, including those of a vegetated tidal wetland before that wetland was adversely impacted, or replacement of a structure with a structure of similar materials and dimensions.

  (25) “In the dry” means activities performed above or landward of the mean high water line and all tidal wetland vegetation.

  (25-1) “Jetty” means a structural shoreline stabilization measure comprised of stone, wood, plastic, steel, or other similar material that is:

    (a) Placed at inlets; and

    (b) Designed to:

      (i) Stabilize the position of a channel;

      (ii) Shield vessels from wave forces; and

      (iii) Control the movement of sand along adjacent beaches by minimizing the movement of sand into a channel.

  (26) “Landward boundary of tidal wetlands” means the common boundary between upland or nontidal wetlands, and State or private wetlands, as defined in this subtitle.

  (27) “License” means written authorization by the Board or by the Department under delegation from the Board to dredge, fill, construct structures, or conduct other activities involving State tidal wetlands which conveys a limited property interest.

  (28) “Maintenance dredging” means the removal or displacement by any means of soil, sand, gravel, shells, or other material, whether or not of intrinsic value, from any State or private tidal wetlands, that restores a navigation channel, marina, or mooring basin to depths confirmed after 1972.

  (29) “Marina” means a facility for the mooring, docking, or storing of more than ten vessels on tidal navigable waters, including a commercial, noncommercial, or community facility.

  (30) “Mean higher high water” means the average of the higher high water height of each tidal day observed over the national tidal datum epoch, including a spring tide.

  (31) “Mean high water” means the average of all the high water levels observed over the national tidal datum epoch.

  (32) “Mean high water line” means the line where the land meets the water surface at the elevation of mean high water.

  (33) “Mean low water” means the average of all the low water levels observed over the national tidal datum epoch.

  (34) “Mitigation” means the creation, restoration, or enhancement of tidal wetlands lost or damaged due to dredging or filling.

  (35) “National tidal datum epoch” means the specific 19-year period adopted by the National Ocean Service as the official time segment over which tidal observations are taken and reduced to obtain mean values for tidal datums.

  (35-1) Nonstructural Shoreline Stabilization Measure.

    (a) “Nonstructural shoreline stabilization measure” means an erosion control measure that is dominated by tidal wetland vegetation and is designed to preserve the natural shoreline, minimize erosion, and establish aquatic habitat.

    (b) “Nonstructural shoreline stabilization measure” includes a living shoreline.

  (36) “Nontidal wetland” has the meaning stated in COMAR 26.23.01.01.

  (37) “Non-water-dependent structure or activity” means a temporary or permanent structure or activity, which by reason of its intrinsic nature or operation does not require location in or over State or private tidal wetlands.

  (38) “Out of kind” means having characteristics not closely approximating those of a tidal wetland before that wetland was adversely impacted, or replacement of a structure with a structure of dissimilar materials or dimensions.

  (39) “Permit” means written authorization by the Department to dredge, fill, construct structures, or to conduct certain other activities involving private tidal wetlands.

  (40) “Person” means any natural person, partnership, joint stock company, unincorporated association or society, the federal government, the State, any unit of the State, a political subdivision, or other corporation of any type.

  (41) Pier.

    (a) “Pier” means any fixed or floating pier, wharf, dock, walkway, or other similar water-dependent structure constructed on or over State or private tidal wetlands for the purpose of gaining access to the navigable waters of the State.

    (b) “Pier” does not include a structure on pilings or stilts that was constructed before December 2, 1985, landward of the tidal wetland boundaries.

  (42) “Private tidal wetlands” means:

    (a) Land not considered State wetland bordering on or lying beneath tidal waters, which is subject to regular or periodic tidal action and supports aquatic growth;

    (b) Tidal wetlands transferred by the State by a valid lease, patent, or grant confirmed by Article 5 of the Maryland Declaration of Rights, to the extent of the interest transferred; and

    (c) Tidal waters created by the excavation of upland unless conveyed to the State.

  (43) “Public informational hearing” means a meeting, open to the public, at which the applicant or the Department presents information concerning a permit or license and the Department receives oral and written comments concerning a decision to issue or deny a permit or a license. A public informational hearing is not a contested case hearing under State Government Article, §10-202(d), Annotated Code of Maryland.

  (44) “Regular or periodic tidal action” means the rise and fall of the sea produced by the attraction of the sun and the moon uninfluenced by wind or any other circumstances.

  (45) Repair.

    (a) “Repair” means an activity that restores the scope, size, and design of a functional structure to its previously authorized, undamaged condition.

    (b) “Repair” does not include activities that change the size or scope of a project beyond the original design and dredge or fill tidal wetlands that were not previously impacted by the project.

  (46) “Restoration” means reestablishment of tidal wetlands on former tidal wetland sites.

  (47) “Revetment” means a structural shoreline stabilization measure comprised of stone, broken concrete, or other similar material that is:

    (a) Typically placed parallel to the shoreline; and

    (b) Designed to:

      (i) Prevent erosion;

      (ii) Fortify a bulkhead; or

      (iii) Stabilize an embankment.

  (48) “Riparian landowner” means a property owner whose land borders on tidal wetlands or waters of the State.

  (49) “Riparian rights” means the rights of an owner of land bordering on tidal wetlands or waters of the State as recognized by Environment Article, Title 16, Annotated Code of Maryland.

  (50) “Shallow water habitat” means aquatic habitat less than 3 feet in depth at mean low water.

  (51) “Species in need of conservation” has the meaning stated in COMAR 08.03.08.01.

  (52) “State tidal wetlands” means any land under the navigable waters of the State below the mean high tide, affected by the regular rise and fall of the tide. Tidal wetlands of this category which have been transferred by the State by a valid lease, patent, or grant confirmed by Article 5 of the Maryland Declaration of Rights are considered private tidal wetlands to the extent of the interest transferred.

  (53) Structural shoreline stabilization measure.

    (a) "Structural shoreline stabilization measure” means an erosion control measure that uses devices to armor and stabilize an area landward of the measure from further erosion.

    (b) "Structural shoreline stabilization measure” includes the use of a bulkhead, gabion, revetment, groin, breakwater, jetty, sand, beach nourishment, and any other similar structure, or any other device for erosion control or vessel protection.

  (54) Structure.

    (a) “Structure” means building or construction materials, or a combination of those materials, that are purposely assembled or joined together on or over land or water.

    (b) “Structure” includes a temporary or permanent fixed or floating pier, piling, deck, walkway, dwelling, building, boathouse, platform, gazebo, or shelter for the purpose of marine access, navigation, working, eating, sleeping, or recreating.

  (55) Submerged Aquatic Vegetation.

    (a) “Submerged aquatic vegetation (SAV)” means a vascular hydrophyte, which is rooted or unrooted, that lies entirely beneath the surface of the water except for the flowering parts of some species. Examples include Zannichellia palustris, Ruppia sp., and Potamogeton sp.

    (b) “Submerged aquatic vegetation” does not include algae.

  (56) “Threatened species” has the meaning stated in COMAR 08.03.08.01.

  (57) “Tidal wetlands” means all State and private tidal wetlands, marshes, submerged aquatic vegetation, lands, and open water within the Chesapeake Bay and its tidal tributaries, the Coastal Bays and their tidal tributaries, and the Atlantic Ocean to a distance of 3 miles offshore of the low water mark.

  (58) “Tidal wetland boundary map” means a map or aerial photograph on a scale of 1 inch to 200 feet that delineates the landward boundary of tidal wetlands and is adopted by the Department.

  (59) “Unified soil classification system” means a classification system used to classify sedimentary materials by grain size into gravel, silt, and clays. It is the principal classification system used by engineers, and its boundaries correspond to U. S. standard sieve sizes.

  (60) “Upland” means any area that does not qualify as a tidal or nontidal wetland.

  (61) “Utility line” means an underground or overhead transmission line, conduit pipe, cable, or wire for the conveyance of public or private water, sewage, natural gas, or petroleum, or the transmission of electricity or telecommunications.

  (61-1) “Waiver” means a decision by the Department that a person is not required to construct a nonstructural shoreline stabilization measure.

  (62) “Water dependent” means a temporary or permanent structure or activity, which by reason of its intrinsic nature or operation, requires location in or over State or private wetlands.

  (62-1) “Water Quality Certification” means the certification required under COMAR 26.08.02.10.

  (62-2) “Wetlands License” means written authorization by the Board to dredge, fill, construct a structure, or conduct any other activity involving State tidal wetlands that does not qualify for approval under a general wetlands license.

  (62-3) “Wetlands Permit” means written authorization by the Department to dredge, fill, remove, alter, pollute, or conduct any other activity involving private tidal wetlands that does not qualify for approval under a general wetlands permit.

#### Regulation .03 Delegation of Authority from the Board of Public Works.

*COMAR 26.24.01.03*

In accordance with COMAR 23.02.04.04A, the Board has delegated to the Department the authority to reject, authorize, modify, condition, or deny applications for construction or replacement of pilings, fixed or floating piers, decks, walkways, boathouses, and related structures on piers.

#### Regulation .04 Public Notice.

*COMAR 26.24.01.04*

A. Exemptions from Public Notice for a State Wetlands License. If the Department recommends to the Board that a State wetlands license be granted, the Board may issue a license without public notice for:

  (1) Projects which qualify under the general license in COMAR 26.24.02.04;

  (2) Construction of a shore erosion control structure other than a revetment, if the fill area is less than 300 feet in length parallel to the upland and as close to the upland as structurally feasible, but not more than 10 feet channelward of the mean high water line;

  (3) Repair or replacement of a bulkhead for the purpose of shore erosion control when the bulkhead is presently functional, but is deteriorating or damaged, only if the repair or replacement structure does not extend more than 18 inches channelward of the existing structure measured from the channelward face of the existing piling to the landward face of the proposed sheeting, although replacement may include stone or broken concrete placed along the base of the bulkhead, only if the stone or broken concrete does not extend more than 10 feet channelward of the bulkhead; and

  (4) Construction or repair of a private, noncommercial boat ramp only if the ramp does not exceed 12 feet in width and extend more than 30 feet channelward of the mean high water line.

B. Exemptions from Public Notice for Private Wetlands Permits. The Department may:

  (1) Issue a private wetlands permit without a public notice for the following categories of projects:

    (a) Projects which qualify under the general permit in COMAR 26.24.02.05,

    (b) Construction of tide gates designed to prevent the encroachment of salt water into agricultural drainage ditches, and

    (c) Installation of underground utilities, if the surface of the wetlands is restored substantially to its original condition;

  (2) Authorize work in private wetlands without public notice when an emergency exists.

C. An applicant shall notify adjoining riparian property owners in writing at the time of application if the proposed project requires public notice. The notification shall include:

  (1) A copy of the application and plans for the proposed project; and

  (2) A statement advising the property owner to direct any comments or concerns directly to the Department within 2 weeks of receipt.

D. The Department shall issue a public notice of an opportunity to submit written comments, or to request a public informational hearing about the application for a State wetlands license or private wetlands permit. Public notice is not required for activities exempted under §§A and B of this regulation.

E. The notice in §D of this regulation shall:

  (1) Contain:

    (a) The name of the applicant;

    (b) A general description of the nature and location of the proposed activity including the street address of the proposed activity;

    (c) Instructions for submission of written comments or a request for a public informational hearing;

    (d) The expiration date for the opportunity to comment or to request a public informational hearing; and

    (e) The address and telephone number of an individual in the Department from whom information about the application may be obtained;

  (2) Be given by:

    (a) Publication in a daily newspaper distributed in one or more counties which the Department determines may be directly affected by the proposed activity, or if there is no local daily newspaper, in a newspaper of general circulation in that county;

    (b) Publication in the Maryland Register;

    (c) Joint notice with other units or programs reviewing applications for other approvals within the Department; and

    (d) Selected mailing to federal, State, county, or municipal authorities, and other list of interested persons, including anyone who has:

      (i) Submitted written comments on the specific project in question,

      (ii) Requested to be kept informed about the specific project, or

      (iii) Requested receipt of public notices for tidal wetlands licenses and permits.

#### Regulation .05 Public Informational Hearings.

*COMAR 26.24.01.05*

A. An interested person may request the Department or the Board to hold a public informational hearing on a project requiring public notice. A request shall be in writing to the Department.

B. If a hearing is requested, the Department shall set the date, time, and place for the hearing. Notice of the hearing shall be given by:

  (1) Publication in a daily newspaper distributed in one or more counties which the Department determines may be directly affected by the project, or if there is no local daily newspaper, in a newspaper of general circulation in that county;

  (2) Publication in the Maryland Register; and

  (3) Selected mailing to federal, State, county, or municipal authorities, and other list of interested persons.

C. The hearing shall take place not less than 14 calendar days after publication of the public notice of the public informational hearing.

D. The hearing shall be conducted by a representative of the Board or the Department's designee. The individual authorized to conduct the public hearing shall be designated as the hearing officer.

E. The applicant and interested persons shall be given an opportunity at the informational hearing to present facts and make statements for or against granting the license or permit. Questions may be asked of, and directed to, the hearing officer, but cross-examination may not be conducted. The hearing is not a contested case hearing under State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

F. The order of the presentation is determined by the hearing officer and may be conducted as follows:

  (1) Introduction of the activity and participants by the hearing officer;

  (2) Statement of legal authorities, public policy, and procedures by the hearing officer;

  (3) Presentation of the proposed project by the applicant;

  (4) Questions about the activity;

  (5) Statements by public officials;

  (6) Statements in opposition;

  (7) Statements in support; and

  (8) Closing of the hearing by the hearing officer.

G. The hearing officer has the authority and duty to:

  (1) Conduct a full and fair public informational hearing;

  (2) Act to avoid unnecessary delay and to maintain order;

  (3) Regulate the course of the public hearing and the conduct of the participants;

  (4) Extend the time period for providing supplemental written comments or information for inclusion in the hearing record; and

  (5) Rule upon a request for a continuance of the hearing.

H. At the close of the public comment period, the hearing officer shall prepare an official record of the public informational hearing or comments.

I. A tape recording or notes of the public informational hearing, if any, may be transcribed if the Department, the applicant, or a participant in the public hearing requests a transcript within 5 working days of the public informational hearing. Costs shall be paid by the requester.

J. After a public hearing, the Wetlands Administrator for the Board shall present the proposed project at a public meeting of the Board. The Board shall make a final decision under COMAR 23.02.04.

#### Regulation .06 Violations of Statutory, Regulatory, License, or Permit Requirements.

*COMAR 26.24.01.06*

A. Determination of Violation. The Department shall serve a written complaint on a violator if it determines that there has been a violation of:

  (1) Any provision of Environment Article, §§16-101—16-503, Annotated Code of Maryland;

  (2) A regulation in this subtitle;

  (3) A license or permit condition; or

  (4) An administrative order.

B. Complaints. A complaint shall comply with the notice requirements under COMAR 08.01.04.05.

C. Orders. At any time, including during an enforcement action, the Department may issue an administrative order requiring the violator to take corrective action within a certain time period. The order may require the violator to:

  (1) Cease the violation;

  (2) Stabilize the site;

  (3) Stop all construction work at the site of a regulated activity;

  (4) Restore unlawfully affected State or private wetlands; or

  (5) Submit a written report or plan concerning the violation.

D. Suspension or Revocation.

  (1) Grounds for License or Permit Suspension or Revocation. The Department or the Board may suspend or revoke a permit or license if the Department determines that any of the following have occurred:

    (a) A violation of the provisions of Environment Article, §§16-101—16-503, Annotated Code of Maryland, this subtitle, or COMAR 23.02.04;

    (b) Failure of a licensee or permittee to comply with the requirements of an administrative action or order under this subtitle;

    (c) Requirements and conditions of the license or permit have been violated;

    (d) Misrepresentation in the license or permit application process or failure to disclose a relevant or material fact has occurred;

    (e) There has been a substantial deviation from the plans, specifications, or requirements of the license or permit;

    (f) The licensee or permittee has prevented a representative of the Department from entering the site to make reasonable inspections;

    (g) The licensee or permittee's rights under the license or permit have not been vested and new information, changes in site conditions, or amended regulatory requirements necessitate revocation; or

    (h) The licensee or permittee has failed to post or maintain financial assurances required under COMAR 26.24.05.02.

  (2) Notice. Except for emergency actions under §H of this regulation, a tidal wetlands license or permit may not be suspended, modified, or revoked unless the Department or the Board first gives the permittee or licensee written notice by certified mail of the specific facts that warrant suspension or revocation.

  (3) Hearings.

    (a) Upon receipt of written notice to suspend, modify, or revoke a permit, the permittee or surety has 10 calendar days to request a contested case hearing.

    (b) A hearing under this subsection shall be conducted in conformance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 08.01.04.

    (c) An appeal from a license suspension or revocation shall be in accordance with COMAR 23.02.04.

    (d) If the Department does not receive a request for a hearing, the permit shall be suspended, modified, or revoked, and the right to appeal shall be waived.

E. Bond Forfeiture. If the Department finally determines that a permit shall be revoked, the Department may immediately forfeit the bond and notify the permittee and surety in writing. An appeal of the final decision to forfeit a bond shall be to the circuit court.

F. Service.

  (1) A complaint, order, or other administrative notice issued by the Department may be served on a violator personally or by certified mail to the violator's last known address.

  (2) An order issued under this regulation is effective immediately.

G. Hearings.

  (1) The Department shall hold a hearing under this regulation in conformance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 08.01.04.

  (2) Within 10 calendar days of service of a written complaint under this regulation, a violator may request a hearing in writing.

H. Emergency Action.

  (1) License Recommendations. The Department may recommend that the Board take action to immediately suspend a license if the Department:

    (a) Finds that the public health, safety, or welfare imperatively requires immediate suspension; and

    (b) Promptly gives the licensee written notice of the recommendation which shall include:

      (i) Specific facts upon which the immediate suspension is based, and

      (ii) The licensee's opportunity to appeal in accordance with COMAR 23.02.04.

  (2) Permit Actions.

    (a) The Department may order an immediate suspension of a permit if the Department:

      (i) Finds that the public health, safety, or welfare imperatively requires the immediate suspension; and

      (ii) Promptly gives the permittee written notice of the suspension.

    (b) A notice of immediate suspension shall include a statement of:

      (i) Specific facts on which the immediate suspension is based; and

      (ii) The permittee's opportunity to be heard in accordance with §D of this regulation.

#### Regulation .07 Waivers.

*COMAR 26.24.01.07*

A. If the Department determines, from the information submitted with an application for a private wetlands permit, that a waiver of a regulation of this subtitle is in the public interest, the Department may grant relief from the requirement upon request.

B. If a waiver results in the loss of tidal wetlands, the applicant is required to mitigate for that loss in accordance with COMAR 26.24.05.01.

### Chapter 02 — Permits and Licenses

**Authority:** Environment Article, Title 16, Annotated Code of Maryland

**Administrative History:** Effective date: February 14, 1994 (21:3 Md. R. 184)

**Administrative History:** (Wetlands regulations before February 14, 1994, appeared under COMAR 08.05.07)

**Administrative History:** Regulation .18B amended as an emergency provision effective August 1, 1995 (22:17 Md. R. 1309); amended permanently effective December 4, 1995 (22:24 Md. R. 1894)

**Administrative History:** Regulation .19A amended as an emergency provision effective August 1, 1995 (22:17 Md. R. 1309); amended permanently effective December 4, 1995 (22:24 Md. R. 1894)

**Administrative History:** Regulations .01—.08 were recodified from Regulations .03—.05, .18—.20, .23, and .26, respectively, under COMAR 08.05.05 Tidal Wetlands, June 1996

#### Regulation .01 General Requirements for a State Tidal Wetlands License or Private Tidal Wetlands Permit.

*COMAR 26.24.02.01*

A. License or Permit Required. Except as set forth in §C of this regulation, before beginning any work, a person who proposes to construct or reconstruct structures, or to dredge or fill a State or private tidal wetland, shall obtain a:

  (1) License from the Board; or

  (2) License, general license, general permit, or permit from the Department.

B. Uses and Activities Prohibited on State or Private Tidal Wetlands Without a License or Permit. Except when authorized, a person may not:

  (1) Fill, place, dump, or discharge on tidal wetlands any:

    (a) Loam, peat, sand, gravel, soil, or other similar substance, or

    (b) Trash, garbage, debris, junk, or other polluting substance;

  (2) Drain, excavate, or dredge the tidal wetlands encompassed by this subtitle, or remove from the tidal wetlands loam, peat, sand, gravel, soil, or other similar substance;

  (3) Construct any structure in, on, over, or under tidal wetlands; or

  (4) Perform an act or use involving tidal wetlands in a manner which would destroy the natural vegetation or existing patterns of tidal flow, or alter the natural and beneficial character of the tidal wetland.

C. Exemptions from a State Tidal Wetlands License and a Private Tidal Wetlands Permit. The following activities are exempted from the requirement to obtain a license from the Board or a license, general license, general permit, or permit from the Department under this subtitle:

  (1) Dredging of seafood products by any licensed operator including normal leased bottom activities permitted under Natural Resources Article, Title 4, Subtitle 11, Annotated Code of Maryland, and COMAR 08.02.08.12, or the harvesting of submerged aquatic vegetation provided the root system is not affected;

  (2) Trapping, hunting, fishing, and catching shellfish, if legally permitted;

  (3) Mosquito control and abatement projects as approved by the Department of Agriculture;

  (4) Improvement of agricultural drainage ditches as approved by the Department of Agriculture;

  (5) Routine maintenance, repair, or replacement of a highway structure, pier, boathouse, a structure on a pier, bulkhead, revetment, tidal impoundment dike, water control structure, aboveground transmission facility, agricultural drainage ditch, or highway drainage ditch when the existing structure is functional and there is no increase in the original length, width, height, or channelward encroachment;

  (6) Channel and harbor navigation aids, if approval has been granted by the United States Coast Guard;

  (7) Private piers that meet the criteria in COMAR 26.24.04.02;

  (8) Control of exotic plant species such as Phragmites australis, if a toxic materials permit under COMAR 26.08.03.02 is obtained;

  (9) Temporary installation of bass spawning boxes from March 1 through June 15 annually outside of marked navigation channels.

#### Regulation .02 Application Requirements.

*COMAR 26.24.02.02*

A. Who May Apply. An applicant for a license or permit is a person:

  (1) With a riparian interest in private tidal wetlands or upland adjacent to State tidal wetlands, or an agent designated by the person with riparian interest; or

  (2) Seeking approval for navigation, mining, aquaculture, archeology, or similar projects in tidal wetlands.

B. Application Form.

  (1) The application form shall be a joint federal and State application for the regulation of activities in tidal wetlands in Maryland.

  (2) An applicant for a tidal wetlands license or permit shall submit all of the information required by the Department in a manner and form acceptable to the Department before final action on the application is taken.

  (3) For additional information requirements for specific project types, see COMAR 26.24.03 and 26.24.04.

  (4) The application form is available at the following government agencies:

    (a) Department of the Environment;

    (b) U. S. Army Corps of Engineers, Baltimore District;

    (c) An agency designated by each county or municipality; or

    (d) Department of the Environment, Water Management Administration.

  (5) The person who signs an application form shall be:

    (a) An individual or an individual's authorized agent;

    (b) An officer or authorized agent of a corporation;

    (c) An authorized official of a State or local government; or

    (d) An authorized member of an association or partnership.

  (6) The person who signs an application is responsible for the truth, accuracy, and completeness of all information in the application.

C. The Department shall acknowledge receipt of an application in writing by regular mail, and shall advise the applicant of the public notice requirements under COMAR 26.24.01.04.

D. The Department shall review an application to determine whether it is complete for processing. An application is complete if it contains all the information required in this subtitle. The Department shall notify an applicant within 45 days by telephone or in writing of the additional information required in an incomplete application. If the Department fails to notify an applicant within 45 days, an application is considered complete. The Department may require additional information from an applicant as a result of the administrative review process.

E. For purposes of an application, mean high water and mean low water are:

  (1) Referenced in feet to a benchmark elevation based upon:

    (a) The National Geodetic Vertical Datum of 1929 (NGVD) which is incorporated by reference under 41 FR 20202 (1976);

    (b) The North American Vertical Datum of 1988 (NAVD) which is incorporated by reference under 48 FR 50784 (1983); or

    (c) A benchmark established and documented by an applicant and approved by the Department;

  (2) Determined using one of the following methods:

    (a) Control tide station data as published by the U. S. Department of Commerce, National Oceanic and Atmospheric Administration;

    (b) Derivation of the equivalent high water datum using a comparison of observational records with control tide station data as published by the U. S. Department of Commerce, National Oceanic and Atmospheric Administration; or

    (c) An evaluation of the project site conditions based upon the following parameters:

      (i) Predicted tide range elevations,

      (ii) Meteorologic conditions,

      (iii) Vegetation and other biological factors at the site including barnacles and algae lines, and

      (iv) Physical indicators at the site such as rack lines, stain marks on nearby structures, and beach particle sorting.

F. The Department may require an applicant to engage a professional engineer, licensed under Maryland law, to certify that the design meets all of the requirements of the Department. This requirement may apply to projects including:

  (1) Shore erosion control structures; and

  (2) Dredge material placement sites.

G. The Department may require project plans to include a bathymetric survey that is referenced to a benchmark based on the NGVD of 1929 or NAVD of 1988, or a benchmark established and documented by an applicant and approved by the Department. All survey and topographic information shall be referenced to 0.0 mean low water.

H. Other Approvals.

  (1) The Department may suspend processing of an application for a structure or activity if the application is inconsistent with State, federal, or local land use requirements, including federal tidal wetlands authorizations under §404 of the Clean Water Act of 1992 and §10 of the Rivers and Harbors Act of 1899, critical area, zoning, special exception, variance, or conditional use approvals. The Department will make these consistency determinations in cooperation with the appropriate State, federal, and local regulatory agencies. Project approval under this subtitle does not relieve a licensee or permittee of the need to obtain other approvals that may be required.

  (2) A person shall obtain a permit to engage in aquaculture activities under COMAR 08.02.14 before the Department will accept an application for construction of an aquaculture facility in tidal wetlands.

I. An applicant shall allow reasonable access for inspection of the project site by representatives of the Department.

J. An applicant may request in writing, at the time an application is submitted or as soon as possible, that certain information submitted as part of an application not be disclosed. The Department shall determine if the information is confidential under State Government Article, Title 10, Subtitle 6, Annotated Code of Maryland, and other applicable law. If the Department denies a request for nondisclosure, an applicant may withdraw the application or appeal the Department's determination under applicable law. If an applicant withdraws an application, the Department shall, at the request of the applicant, return any documents claimed to be confidential.

#### Regulation .03 Criteria for Evaluating Tidal Wetlands License or Permit Applications.

*COMAR 26.24.02.03*

A. Evaluation Criteria.

  (1) The criteria in this regulation are presented to assist in preparing an application and to provide a consistent basis for recommendations and decisions for licenses or permits.

  (2) As the basis for a recommendation or final decision, including approval, denial, suspension, or modification of a license or permit, the Department shall take into account ecological, economic, developmental, recreational, and aesthetic values of tidal wetlands in order to preserve tidal wetlands and prevent their despoliation and loss.

  (3) When reviewing an application for a license, the Department considers the proprietary interests of the Board over State tidal wetlands.

B. Application Evaluation. In evaluating an application, the Department shall consider the degree to which:

  (1) Dredging and filling activities can be avoided or minimized;

  (2) The proposed activity is water-dependent;

  (3) The proposed activity will alter or destroy tidal wetlands, including a determination of how the proposed project will:

    (a) Destroy or adversely affect the value of the tidal wetlands as a source of nutrients or habitat for finfish, crustaceans, mollusks, or wildlife of significant economic or ecologic value,

    (b) Affect potential habitat areas such as historic spawning and nursery grounds for anadromous and semianadromous fisheries species and shallow water areas suitable to support populations of submerged aquatic vegetation,

    (c) Eliminate or substantially reduce marine commerce, recreation, and aesthetic enjoyment,

    (d) Affect the natural ability of tidal wetlands to reduce flood damage and adversely affect the public health and welfare, and

    (e) Substantially reduce the capacity of tidal wetlands to trap sediment, and result in increased silting of channel and harbor areas to the detriment of free navigation;

  (4) The proposed activity would alter natural water flow, water temperature, water quality, and natural tidal circulation regimes;

  (5) The proposed activity would alter littoral drift;

  (6) The proposed activity enhances the aquatic environment;

  (7) The proposed activity would impact local, regional, and State economic conditions;

  (8) The proposed activity is consistent with State, federal, and local land use plans and laws, including Critical Area laws;

  (9) Alternatives for the disposal of dredged material have been explored;

  (10) The natural, scenic, historic property, and aesthetic values can be retained or enhanced;

  (11) The proposed activity provides facilities for the proper handling of storm water runoff and sanitary wastes;

  (12) Danger may arise because of the location of proposed structures from hurricanes, floods, sea level rise, or other determinable and periodically recurring natural hazards;

  (13) Navigational safety is affected;

  (14) The activity benefits the public, if applicable;

  (15) Shore erosion is controlled;

  (16) Maintenance and operation of the proposed project is assured;

  (17) Recreational and navigational access to beaches and waters of the State is provided;

  (18) The proposed activity would alter the scenic and wild qualities of a designated State scenic and wild river; and

  (19) The proposed activity would impact historic waterfowl staging areas and colonial bird-nesting sites.

#### Regulation .04 General Tidal Wetlands License.

*COMAR 26.24.02.04*

A. The Board shall issue a general wetlands license for those activities proposed in State tidal wetlands listed in §B of this regulation. A person proposing an activity in State tidal wetlands under the general wetlands license shall apply to the Department. The Department shall consider the ecological, economic, developmental, recreational, and aesthetic values of the proposed project and determine if the proposed project qualifies under the general wetlands license. If a project qualifies for a general wetlands license and does not require mitigation under COMAR 26.24.05.01, the Department may issue the authorization directly to the applicant.

B. General Wetlands License Projects. Projects which qualify for approval under the general license include projects to:

  (1) Add stone or broken concrete to a revetment or channelward of a bulkhead if the stone or broken concrete extends not more than 10 feet channelward of the existing structure;

  (2) Emplace a revetment for shore erosion control only if it is less than 500 feet in length and it is aligned not more than 10 feet channelward of the mean high water line;

  (3) Fill near shore shallow water not more than 35 feet channelward of the mean high water line only if the fill area is less than 500 feet in length and parallel to the upland for the purpose of shore erosion control by tidal vegetated wetland creation;

  (4) Maintenance dredge a mooring, boat ramp, or travel lift slip with an area of 1,500 square feet or less and remove 100 cubic yards or less of material, if the licensee complies with the water quality certification required under COMAR 26.08.02;

  (5) Reconfigure an existing marina if there is no dredging or no increase in channelward encroachment beyond existing piers and associated structures;

  (6) Construct a boat ramp not more than 12 feet wide and 30 feet channelward of the mean high water line;

  (7) Armor or strengthen bridges or causeways when the activity extends not more than 10 feet from the existing structure, requires no dredging, and does not impede the flow of the waterway;

  (8) Create a new discharge of storm water runoff within 1,000 feet landward of the tidal wetlands boundary, if the drainage system directly discharges to tidal waters and employs stormwater control measures to manage runoff for rate and water quality according to State and local standards which include measures:

    (a) Designed to control erosive velocities to tidal waters of wetlands, and

    (b) Required under COMAR 27.01.01 and 27.02.01 and a State-approved critical area program of a local jurisdiction;;

  (9) Clear debris and windfalls from shorelines without dredging State tidal wetlands;

  (10) Install temporary monitoring or research devices; and

  (11) Construct a replacement bulkhead within a maximum of 18 inches channelward of a functional bulkhead.

C. Term of License. An authorization under a general license expires 3 years after the date of issuance. If the construction or the activity authorized under this general license is not completed within 3 years, a license extension may not be granted by the Department and the licensee shall apply for a new license.

D. General License Conditions. To obtain authorization under the general license to be valid, an applicant shall:

  (1) Obtain all required federal, State, county, or local approvals before beginning work on a licensed activity;

  (2) When applicable, obtain an approved sediment and erosion control plan from the local soil conservation district before construction;

  (3) Notify the Enforcement Division of the Water Management Administration at least 5 days before beginning work;

  (4) Allow representatives of the Department to enter the property at reasonable times to inspect the ongoing or completed work under the license; and

  (5) Design and construct the authorized work in a manner which minimizes adverse impacts on natural resource values, including water quality, plants, wildlife, and plant and wildlife habitat.

#### Regulation .05 General Tidal Wetlands Permit.

*COMAR 26.24.02.05*

A. The Department shall issue a general wetlands permit to the Administration for those activities in private wetlands listed in §B of this regulation. A person proposing an activity in private tidal wetlands under the general wetlands permit shall apply to the Administration. The Administration shall consider the ecological, economic, developmental, recreational, and aesthetic values of the proposed project and determine if the project proposed in the application qualifies under the general wetlands permit. If a project qualifies under the general wetlands permit and does not require mitigation under COMAR 26.24.05.01, the Administration may issue the authorization directly to the applicant.

B. General Wetlands Permit Projects. Projects which qualify for approval under the general permit include projects described in Regulation .04 of this chapter and projects to:

  (1) Install or maintain underground utilities such as phone, cable television, electricity, or natural gas pipelines not exceeding 12 inches in diameter if the surface of the wetlands is restored to its original elevation and vegetation;

  (2) Conserve soil, vegetation, water, fish, shellfish, and wildlife using best management practices; and

  (3) Improve wildlife habitat as approved by the Administration.

C. Term of Permit. An authorization under the general permit expires 3 years after the date of issuance. If the construction or activity is not completed within 3 years, the Department may not grant an extension and the permittee shall reapply for authorization.

D. General Permit Conditions. In order for an authorization under this general permit to be valid, the applicant shall meet the requirements under Regulation .04D of this chapter.

#### Regulation .06 Conditions of a License or Permit.

*COMAR 26.24.02.06*

A. License Conditions. Standard conditions of a tidal wetlands license shall be imposed by the Board in accordance with COMAR 23.02.04.13.

B. The Department may recommend that the Board include special conditions, including requirements for maintenance dredging, mitigation, compensation, and financial assurances, in accordance with COMAR 23.02.04.14. The Department shall use the guidelines in §§C—L of this regulation in recommending conditions to the Board.

C. The licensee shall submit a construction schedule to the Department 10 days before the beginning of construction.

D. The use of construction equipment or other temporary structural barriers may not decrease the width of the navigable waterway by more than 50 percent during construction, unless approved by the Department.

E. The Department may prohibit dredging during certain times to protect shellfish. The Department may determine time restrictions in accordance with the following:

  (1) Factors including the type of project, nature of the bottom substrate, location, and other physical site characteristics of the site;

  (2) Mechanical dredging within 500 yards of shellfish areas is prohibited from December 16 through March 14, and June 1 through September 30; and

  (3) Hydraulic dredging within 500 yards of shellfish areas is prohibited from June 1 through September 30.

F. Dredge restrictions in other identified shellfish areas shall be determined on a case-by-case basis by the Department.

G. Dredging may be prohibited during certain periods by the Department to protect identified finfish-spawning and nursery areas. The Department shall determine dredging time restrictions in accordance with the following:

  (1) Restrictions during the nursery period of finfish species shall be determined by the Department using factors including target species, type of project, location, and other physical site characteristics;

  (2) Dredging is prohibited from:

    (a) February 15 through June 15 in areas where yellow perch have been documented to spawn, and

    (b) March 1 through June 15 in areas where other important finfish species identified by the Department have been documented to spawn.

H. Dredging is prohibited within 500 yards of SAV from April 15 through October 15.

I. Detailed final project plans and specifications shall be submitted to and approved by the Administration before the project begins.

J. The Department may prohibit the construction of structures on, in, or over shore erosion control structures unless specifically licensed by the Board of Public Works.

K. Other specific conditions may be recommended by the Department on a case-by-case basis.

L. Permit Conditions.

  (1) Standard conditions of a private permit shall be imposed by the Department, which at a minimum address the following:

    (a) Protection of property rights;

    (b) Construction time period;

    (c) Term of permit;

    (d) Compliance with plans and specifications;

    (e) Maintenance of permitted project;

    (f) Protection and management of natural resources;

    (g) Use of navigable waters; and

    (h) Other approvals required.

  (2) The Department may include special conditions such as requirements for maintenance dredging, mitigation, financial assurances, or other approvals. The Department shall use the guidelines in §B of this regulation in establishing special conditions.

#### Regulation .07 License or Permit Modifications or Extensions.

*COMAR 26.24.02.07*

A. Requests for License or Permit Modifications.

  (1) Upon written request for a license or permit modification, the Department shall determine if the modification is major or minor.

  (2) Minor modifications to a license may be recommended to the Board or made to a permit by the Department if the modification involves:

    (a) A change in land ownership;

    (b) A reduction in the scope of the originally authorized work;

    (c) Revisions to the project plans or specifications that would otherwise be approved; or

    (d) Structures, activities, or the conditions of a license or permit which require modification to correct adverse environmental impacts.

  (3) Major modifications to a license or permit require a new application as described in Regulation .02 of this chapter.

B. Requests for Construction Period Extensions.

  (1) The Department may not extend the construction period for maintenance dredging projects.

  (2) The construction period of a tidal wetlands license or permit may be extended for a valid reason. Only one extension for construction authorized under a license or permit may be granted. An extension shall be for a period up to 3 years. A request for extension shall be made in writing to the Department and shall include the following:

    (a) The reason the project could not be completed within the construction period in the original license or permit;

    (b) Revised schedule for start and completion of construction;

    (c) Assurances that all other State, federal, and local approvals have not expired or have been authorized;

    (d) Evidence of a substantial effort made to construct the authorized works within the construction period specified in the license or permit;

    (e) Evidence that the project is to be constructed in phases over a number of years; or

    (f) Evidence of undue hardship due to circumstances beyond the applicant's control.

C. Requests for Reinstatements. A wetlands license or permit that has expired may not be reinstated and requires a new application as described in Regulation .02 of this chapter.

D. Modifications. If the Department determines that a modification to a project is necessary, the Department may revise a permit or request a revision of the license by the Board. If conditions are revealed which will not permit safe construction, the license or permit may be suspended or revoked in accordance with COMAR 26.24.01.06.

#### Regulation .08 Appeals.

*COMAR 26.24.02.08*

A. License Decisions. A party aggrieved by a decision of the Board may petition the circuit court in the county where the land is located within 30 days after receiving the decision. An aggrieved party's impacted interests shall be specific and different from the interests of the public, and the right to an appeal is limited by law to aggrieved parties.

B. Permit Decisions.

  (1) An applicant who is adversely affected by a decision of denial, suspension, revocation, or condition of a permit by the Department may, within 30 days of receipt of the administrative action, file with the Director written exceptions and a request to present oral argument. After considering the written exceptions, the Director may hear argument and shall issue a written final decision.

  (2) The applicant, the county, or the municipal government where the land is located may appeal the final decision of the Director to the circuit court in the county where the land is located within 30 days of the final decision.

  (3) An applicant may not reapply for a permit under this subtitle until after the expiration of 18 months from the date of the denial, or the final determination of an appeal from the denial.

### Chapter 03 — Dredging and Filling

**Authority:** Environment Article, Title 16, Annotated Code of Maryland

**Administrative History:** Effective date: February 14, 1994 (21:3 Md. R. 184)

**Administrative History:** (Wetlands regulations before February 14, 1994, appeared under COMAR 08.05.07)

**Administrative History:** Regulations .01—.06 were recodified from Regulations .06—.11, respectively, under COMAR 08.05.05 Tidal Wetlands, June 1996

#### Regulation .01 Maintenance Dredging.

*COMAR 26.24.03.01*

A. In addition to the requirements of COMAR 26.24.02.02, an applicant proposing to maintenance dredge, or to dredge to maintain an existing use, in State or private tidal wetlands shall submit the following information at the time of application:

  (1) A plan depicting the dimensions, including the existing and proposed depths and location of the main channel and all the spur channels proposed to be dredged;

  (2) Quantity of material to be dredged;

  (3) Documentation detailing when the site was last dredged and the dimensions of the channel, if applicable;

  (4) Evidence of historical boat use since January 1, 1972;

  (5) Texture characterization of material to be dredged; and

  (6) Dredge material placement information in accordance with Regulation .03 or .05 of this chapter;

  (7) Except for emergency dredging projects as determined by the Department, a map depicting:

    (a) Current submerged aquatic vegetation populations within the area to be dredged, and a 500-yard buffer, if appropriate;

    (b) Date of the submerged aquatic vegetation survey;

    (c) Method of sampling; and

  (8) Justification for classifying the proposed maintenance dredging as an emergency.

B. The Department may recommend that a wetland license contain a condition to allow for periodic maintenance dredging of quantities less than 500 cubic yards.

#### Regulation .02 Dredging — General.

*COMAR 26.24.03.02*

A. Required Information. In addition to the requirements of Regulations .03 and .05 of this chapter and COMAR 26.24.02.02, an applicant proposing to perform dredging in State or private tidal wetlands that have never been dredged shall submit the following information at the time of application:

  (1) A description of the purpose for the dredging and a discussion of alternatives considered, including an evaluation of the no action alternative;

  (2) A plan of the proposed project, showing the:

    (a) Extent of the area to be dredged;

    (b) Existing and proposed depths;

    (c) Volume of material to be removed;

    (d) Extent of tidal wetlands to be impacted; and

    (e) Identification of a dredged material disposal site;

  (3) The method of dredging and anticipated work schedule; and

  (4) A map depicting current submerged aquatic vegetation populations within and adjacent to the area to be dredged, date of the submerged aquatic vegetation survey, and the method of sampling.

B. Additional Information Requirements.

  (1) Based on project size and scope, environmental sensitivity of the project site, and potential adverse impacts to tidal wetlands, the Department may, with notice to the applicant by telephone, letter, or meeting, require information in addition to that in §A of this regulation. The Department recommends that an applicant consult with the Department before developing and submitting the information listed in §B(2)—(5) of this regulation.

  (2) A description of the predicted short-term and long-term impacts of dredging activities on water circulation, water quality, tidal wetland values, and aquatic biota may be required.

  (3) Bathymetric Survey.

    (a) A bathymetric survey of existing depths may be required.

    (b) The survey shall reflect current conditions in the area to be dredged and shall be dated.

    (c) The survey shall relate to mean low water (MLW) as 0.0 and be referenced to a recoverable vertical bench mark. Soundings may be poled or recorded by fathometer and shall be taken to an accuracy of 0.5 foot unless otherwise specified by the Department. The survey shall clearly identify low point elevations and shall extend 100 feet beyond the limits of the project or to the controlling depth contour in the adjoining waterway, whichever boundary leads to the larger survey area.

    (d) Survey data shall be plotted on a grid at a minimum scale of 1 inch equals 100 feet with 1-foot contour intervals and spot elevations at a minimum of every 25 feet unless otherwise specified by the Department. The survey shall be referenced to two recoverable horizontal control points.

    (e) A bathymetric survey of the project area upon completion of the authorized dredging may be required.

  (4) A plan drawing may be required that includes property lines and their bearings, bathymetric survey data, the proposed alignment and bearing of navigation channels or permanent structures that extend into State waters, and horizontal and vertical control points. The plan shall be certified by a registered professional engineer or registered land surveyor unless otherwise specified by the Department.

  (5) Provisions for monitoring and enhancing water quality may be required in accordance with applicable water quality standards established by the Department.

C. Design Guideline Requirements.

  (1) Dredging of channels, canals, and boat basins shall be designed to provide:

    (a) Adequate flushing and elimination of stagnant water pockets; and

    (b) A demonstrated public benefit.

  (2) Navigational access projects shall when possible be designed to use piers to reach deep waters rather than to use dredging.

  (3) Navigational access channels to serve individual or small groups of riparian landowners shall be designed to prevent unnecessary channels. A central access channel with short spur channels shall be considered over separate access channels for each landowner.

  (4) Navigational access channels shall be designed to minimize alteration of State or private tidal wetlands. The channel shall provide a minimum width, length, and depth consistent with historic boating use or access.

  (5) The channel alignment shall make maximum use of natural or existing channels and bottom contours.

  (6) The alignment of the channel shall first avoid and then minimize impacts to shellfish beds, submerged aquatic vegetation, and vegetated tidal wetlands. When feasible, the alignment shall be located the maximum distance feasible from shellfish beds, submerged aquatic vegetation, and other vegetated tidal wetlands.

  (7) New Channels.

    (a) Channels through uplands, canals, or basins connecting to State waters for navigational access shall be considered only when the:

      (i) Applicant is a riparian landowner who demonstrates a need for access to State waters;

      (ii) Proposed channel represents the smallest dimensions necessary to connect a basin created from upland, or is a public boat ramp to navigable waters if all other requirements of this subtitle are met; and

      (iii) Proposal is the best alternative means of providing reasonable access to navigable waters or no other alternative location exists that would cause less destruction or alteration of tidal wetlands.

    (b) New channels shall be designed to comply with Maryland water quality standards and to avoid pockets of stagnant water having inadequate tidal flushing. The channel design shall include provisions for adequate water circulation.

    (c) Upland excavation that would open to State waters shall be performed in the dry and the banks shall be stabilized through wetland creation or the placement of stone before a connection to tidal waters is made.

  (8) Provisions shall be included in the design for protection of the channel or canal banks against erosion by waves and boat wakes.

  (9) Dredging to obtain material for beach nourishment may be approved if an environmental analysis determines there will be no adverse impacts to the environment, and the requirements of Regulation .06 of this chapter are fulfilled.

  (10) Dredging for sand, gravel, or fill material may be approved when an environmental analysis determines that there will be no adverse impact on the environment, and no alternative fill material is available.

  (11) The use of explosives to create waterfowl potholes or to clear drainage blockages may be approved when an environmental analysis determines no significant impact to the surrounding habitat will occur, and when performed by a licensed expert.

D. Dredging Prohibitions for New Dredging Projects.

  (1) A person may not dredge for projects that are non-water-dependent.

  (2) A person may not dredge by means of a vessel's propeller.

  (3) A person may not dredge in shallow water areas 3 feet or less at mean low water unless:

    (a) Historic boat use since January 1, 1972 is documented by:

      (i) Photographs showing the presence of a functional pier, boat, or mooring, and a written report from the applicant that describes the types of boats, their draft, and dates of use at the site;

      (ii) A navigational chart or a bathymetric survey, certified by a professional engineer or land surveyor licensed under Maryland law, that verifies the water depth;

      (iii) National Oceanic and Atmospheric Administration navigation charts;

      (iv) State and federal permits and licenses for dredging projects issued since January 1, 1972; or

      (v) Other information considered appropriate by the Department;

    (b) The proposed channel represents the smallest dimensions necessary to connect a basin created from upland, or a public boat ramp to navigable waters if all other requirements of this subtitle are met;

    (c) The proposed channel is necessary for construction of shore erosion control projects as described in COMAR 26.24.04.01;

    (d) The proposed channel is necessary for construction of navigational improvement projects such as jetties or breakwaters; or

    (e) Otherwise determined by the Department.

#### Regulation .03 Upland Disposal of Dredged Material.

*COMAR 26.24.03.03*

A. Exemptions.

  (1) Previously Approved Disposal Facility. The requirements of §§B—C of this regulation may be waived for a dredge disposal facility previously approved by the Department if it can be demonstrated that the facility is capable of adequately containing the dredged material. Before authorizing the use of a previously approved upland disposal facility, the Department may require:

    (a) A written report stating that the facility is capable of accepting the volume of material to be dredged considering freeboard constraints, bulking, and remaining capacity;

    (b) An evaluation regarding the safety and effectiveness of the facility to impound additional dredge material, and stability of outlet structures and embankments; and

    (c) A currently approved soil conservation district plan.

  (2) Landfills. Use of an existing landfill may be approved by the Department, and the requirements of §§B—C of this regulation may be waived, if the licensee submits:

    (a) Documentation that the landfill proposed to be used is being operated in full compliance with local, State, and federal regulations; and

    (b) Written approval from the landfill owner, or the owner's legal representative, accepting the quantity and type of material to be dredged.

  (3) Nonforested Upland Fields. Use of nonforested upland fields may be approved by the Department, and the requirements of §§B—C of this regulation may be waived, if:

    (a) The elevation of the dredge material is less than 3 feet in height; and

    (b) The applicant submits:

      (i) An approved sediment and erosion control plan from the soil conservation district; and

      (ii) Written approval from the property owner, or the owner's legal representative, accepting the quantity and type of material to be dredged.

B. General Requirements.

  (1) In addition to the requirements of Regulation .02 of this chapter and COMAR 26.24.02.02, an applicant proposing to dispose of dredged material on upland is required to submit the following information at the time of application:

    (a) Grain size analysis;

    (b) A detailed dredge disposal plan that includes the proposed disposal area and:

      (i) Property lines;

      (ii) Existing and proposed topography and bathymetry;

      (iii) Mean high water line;

      (iv) Location of all tidal and nontidal wetlands and tributaries within 100 feet of any site disturbance;

      (v) Limits of critical area buffers as defined in COMAR 27.01.09, COMAR 27.02.05, and the State-approved critical area program of a local jurisdiction;

      (vi) Stabilized access to the site;

      (vii) The method of dredge material transport to the disposal site, including the alignment of the pipe or the proposed route and staging areas as appropriate;

      (viii) Spillway location;

      (ix) Sediment and erosion control plan approval by the local soil conservation district; and

      (x) A vicinity map identifying the area to be dredged, and the surrounding land areas and water bodies within 100 feet of any disturbance;

    (c) Proof of ownership or right to use the disposal site, including:

      (i) An executed deed conveying title of the site to the licensee;

      (ii) An executed easement;

      (iii) Written consent of the landowner; or

      (iv) A fully executed option agreement, long-term lease agreement, or contract sale of the site;

    (d) Methods to ensure that water discharged from the disposal area does not adversely impact water quality, tidal wetlands, or aquatic habitat;

    (e) Methods to protect waters during construction operation and dewatering; and

    (f) Methods to control or divert runoff and erosion from upland disposal sites.

C. Based on project size and scope, environmental sensitivity of the project site, potential adverse impacts to the environment, and the welfare and safety of the public, the Department may, with notice to the applicant by telephone, letter, or meeting, request the information in §C(1)—(5) of this regulation, in addition to other requirements of this subtitle. This information is required for all dredging projects proposing to dispose of hydraulically dredged material in a contained placement site. The Department recommends that an applicant consult with the Department before developing and submitting the following information listed in §C(1)—(5) of this regulation:

  (1) Composition of dredge material;

  (2) An analysis of alternative disposal methods, including beneficial uses and site selection;

  (3) A geotechnical evaluation or more detailed report prepared in support of the project which:

    (a) Demonstrates feasibility of the site for the intended use; and

    (b) Provides geotechnical information regarding on-site soils intended for embankment construction, with the unified soil classification system being used to identify all materials intended for embankment construction,

    (c) Provides geotechnical recommendations regarding the degree of embankment compaction to be achieved, design provisions to address hydrologic conditions at the site, and any other special provisions to address seepage control including the use of impermeable liners;

    (d) Identifies the location and results of all soil borings taken along the centerline of the proposed embankment and the area from which embankment material will be obtained, with a sufficient number of soil borings being taken to evaluate material quality and availability.

    (e) Summarizes all geotechnical sampling information shown on the design plans including construction requirements that address unique surface and subsurface conditions of the site; and

    (f) References design standards;

  (4) The type and settling characteristics of sediments to be dredged based upon the “Standard Method of Particle Size Analysis of Soils, AASHTO Designation T 88-90”, which is incorporated by reference as found in Standard Specifications for Transportation Materials and Methods of Sampling and Testing, Part II Tests, Fifteenth Edition, American Association of State Highway and Transportation Officials, (1990); and

  (5) A detailed plan including:

    (a) Notes related to vegetative stabilization, sediment and erosion control, and water quality;

    (b) Temporary and permanent vegetative stabilization specifications;

    (c) A detailed sequence of construction and operation;

    (d) A water quality monitoring schedule;

    (e) Discharge return route to tidewater and outfall protection;

    (f) Drainage swales;

    (g) Utilities;

    (h) Sediment and erosion controls;

    (i) Identified ecologic, archaeologic, or historic features;

    (j) Limits of disturbance and stockpile areas;

    (k) Cross section, height, and settlement of embankments;

    (l) Stage-storage curves or table;

    (m) Inflow point or points;

    (n) Outlet structures and the barrel location in the embankment;

    (o) Seepage controls;

    (p) Details and dimensions of dewatering structure;

    (q) Barrel type, size, and specifications and methods to obtain watertight joints;

    (r) Signature and seal by a professional engineer licensed to practice in Maryland;

    (s) Location of all subsurface borings;

    (t) Date of plan or plan revision; and

    (u) Soil conservation district approval.

#### Regulation .04 Guidelines for Upland Disposal of Dredged Material.

*COMAR 26.24.03.04*

A. Disposal sites shall be designed to have the least impact on:

  (1) Public safety;

  (2) Adjacent properties; and

  (3) The environment.

B. Dredged Material Placement Facilities.

  (1) Dredged material placement facilities shall be designed with the specifications set forth in §B(2)—(12) of this regulation unless otherwise determined by the Department.

  (2) All plans, reports, and supporting documentation shall be dated, sealed, and signed by a professional engineer licensed to practice in Maryland. All revisions shall be noted on the plans.

  (3) Soils shall be classified using the unified soil classification system.

  (4) The minimum top width of an embankment is as follows:

    (a) Less than 5 feet high embankment, top width = 4 feet;

    (b) 6—10 feet high, top width = 6 feet; and

    (c) Greater than 10 feet, top width shall be determined by the engineer approving the design.

  (5) A weir box and antiflotation devices shall have a minimum safety factor of 1.2.

  (6) There shall be a minimum 2-foot freeboard to the settled top of an embankment.

  (7) Embankment cross-section side slopes dimensions shall be a minimum of 2 horizontal:1 vertical inside and 3 horizontal:1 vertical outside.

  (8) The placement facility shall have a controlled overflow structure design that removes excess ponded water from the facility and that is capable of completely stopping the flow of any effluent. The weir overflow shall have an adjustable crest elevation to remove surface water while assuring that the effluent is in compliance with water quality requirements under COMAR 26.08.02—.04, as established by the Department.

  (9) The placement shall have a pipe outlet design that:

    (a) Specifies that the minimum size is 8 inches in diameter;

    (b) Includes measures to control scour and erosion;

    (c) Provides an outlet channel that withstands the maximum outlet velocity anticipated; and

    (d) Provides watertight joints.

  (10) Size of Disposal Facility.

    (a) The design of the disposal facility shall address effluent water quality based on surface area, embankment height, settling time, and sediment consolidation. When sizing the facility, allowances shall be incorporated in the design for ponding depth and freeboard requirements.

    (b) A stage-storage curve or table is required.

    (c) The size of the disposal facility shall be calculated using one of the procedures in §B(10)(d), (e), or (f) of this regulation.

    (d) Formula:

      (i) V = (Qd)(B), where V equals total disposal volume required in cubic yards, Qd is the quantity of material to be dredged in cubic yards, and B is the bulking (expansion) factor.

      (ii) Figure 1 in §B(10)(d)(iii) of this regulation shall be used when selecting a bulking factor for hydraulic dredgings. A bulking factor of 1.4 shall be used for mechanical dredging.

      (iii) Figure 1 (Hydraulic Dredged Material Bulking Factors/Percent Passing #200 Sieve).

    (e) Size calculations may be made according to the “Confined Disposal of Dredged Material, EM 1110-2-5207, U. S. Army Engineer Waterways Experiment Station, Vicksburg, MS (1987)”, which is incorporated by reference.

    (f) Size calculations may be made according to the “Environmental Effects of Dredging Technical Notes, Confined Disposal Guidance for Small Hydraulic Maintenance Dredging Projects-Design Procedures, EEDP-02-8, U. S. Army Engineer Waterways Experiment Station, Vicksburg, MS (December, 1988)”, which is incorporated by reference.

  (11) Soils containing organic matter shall be rejected for use in the embankment of disposal facilities.

  (12) The design of the disposal facility shall include regulating provisions for the flow of dredge material into the basin or increasing the depth of ponded water at the overflow weir if the concentration of suspended solids in the effluent increases above acceptable limits.

C. Construction Requirements.

  (1) The Department may require that construction of a disposal facility:

    (a) Is under the supervision of a professional engineer licensed to practice in Maryland under Business Occupations and Professions Article, Title 14, Subtitle 3, Annotated Code of Maryland; and

    (b) Meets all provisions of this subtitle.

  (2) Materials failing to meet specifications in this subtitle shall be removed.

  (3) Design changes shall be reported to the Department for approval in accordance with COMAR 26.24.02.07 before proceeding with construction.

  (4) When construction of a disposal facility is complete, the Department may require submittal of a report that includes:

    (a) Date, location, and results of all material tests made;

    (b) Narrative of construction, including any problems and design changes; and

    (c) “As built” plans sealed and signed by a professional engineer licensed to practice in Maryland.

D. Conditions. Disposal facilities are prohibited in the critical area buffer unless approved in accordance with COMAR 27.01.03.04B, COMAR 27.02.05.04B, and a State-approved critical area program of a local jurisdiction.

#### Regulation .05 Placement of Dredged Material in Open Water.

*COMAR 26.24.03.05*

A. Applicants proposing marsh creation or beach nourishment projects are exempt from the requirements of §B of this regulation.

B. Overboard Disposal.

  (1) In addition to the requirements of Regulation .02 of this chapter and COMAR 26.24.02.02, an applicant proposing overboard disposal of dredged material into open water is required to submit the information in §B(2)—(8) of this regulation at the time of application.

  (2) An environmental study shall be submitted that includes measures to preserve or enhance the aesthetic, scenic, environmental, and natural resource values of the disposal site.

  (3) Test results of the physical and chemical parameters of the material to be dredged shall be submitted. Testing shall include physical characteristics of the material to be dredged, including material identification in accordance with the unified soil classification system and grain-size distribution.

  (4) Chemical characteristics, including the concentration of metals, organic compounds, oil and greases, nutrients, bacteria, and toxic compounds and their potential short-term and long-term release into the water column shall be submitted.

  (5) A current bathymetric survey of the site where the proposed dredged material is to be placed, in accordance with the criteria of Regulation .02B(3) of this chapter, shall be submitted. In addition, the survey shall meet the following criteria:

    (a) Soundings shall be taken in sufficient quantity to clearly identify low point elevations within 500 feet beyond the limits of the proposed project; and

    (b) Survey data shall be plotted at a scale not less than 1 inch equals 200 feet.

  (6) A plan shall be submitted which depicts the following:

    (a) Adjacent land features;

    (b) Existing navigation channels;

    (c) Archaeological sites; and

    (d) Permanent structures that extend into State waters.

  (7) A hydrodynamic study of the impacts of the potential long-term movement of all material placed in tidal waters shall be submitted.

  (8) A monitoring program shall be submitted that includes the collection and analysis of data before, during, and after the disposal operation, including:

    (a) Aquatic biota, including benthos, shellfish, and finfish;

    (b) Water quality parameters, including temperature, salinity, dissolved oxygen, conductivity, and pH;

    (c) Turbidity within the disposal site and specified adjacent areas;

    (d) Nutrients, including ammonia and phosphate;

    (e) An assessment of volume reductions in the dredged material following placement, including sediment resuspension and transport through tidal and wave current interactions, fluid mud movement, and material consolidation; and

    (f) An assessment of the post-depositional benthos community recolonization.

C. Beneficial Uses of Dredged Material. Dredged material may be allowed for use in establishing substrate for marsh creation projects and beach nourishment projects, if the following parameters are met:

  (1) The dredged material is equal to or larger in size than sediments at the placement location, unless measures are taken to control its movement, including:

    (a) Breakwaters;

    (b) Groins; or

    (c) Other similar structures;

  (2) The dredged material is relatively free of organic material; and

  (3) It can be documented that the site is properly suited to maintain the sediments placed at the site.

D. Design Guideline Requirements for Overboard Disposal and Beneficial Use of Dredged Material.

  (1) Proposed material placement may not cause adverse impacts to existing navigation channels, longshore current patterns, or adjacent properties.

  (2) Dredged material may not contain more than 10 percent silts and clays unless measures are taken to control the dredged material's movement as described in §C(1) of this regulation.

  (3) Floating debris or other objects shall be prevented from entering tidal waters.

  (4) Turbidity shall be minimized during the disposal operation.

  (5) Adverse impacts on fish spawning, nursery, and migration patterns shall be prevented.

  (6) Adverse impacts on commercial and sport fishing shall be minimized.

  (7) Adverse impacts on vegetated tidal wetlands, submerged aquatic vegetation, charted natural oyster bars, and anadromous fish spawning and nursery grounds shall be minimized.

#### Regulation .06 Filling.

*COMAR 26.24.03.06*

A. In addition to the requirements of COMAR 26.24.02.02, an applicant proposing to fill State or private tidal wetlands for purposes other than shore erosion control as described in COMAR 26.24.04.01 shall submit an 8-1/2-inch by 11-inch site plan drawn to a minimum scale of 1 inch equals 100 feet depicting the following information:

  (1) Fill location referenced to existing landmarks;

  (2) Location of pilings and associated structures;

  (3) Existing topography and bathymetry that is referenced to mean low water;

  (4) Property lines;

  (5) Land use features;

  (6) Type of fill;

  (7) Surface water bodies including swales;

  (8) Location of all tidal and nontidal wetlands;

  (9) Mean high water line;

  (10) Utilities; and

  (11) A vicinity map that identifies the surrounding land areas and water bodies in the vicinity of the project.

B. Based on project size and scope, environmental sensitivity of the project site, and potential adverse impacts to tidal wetlands, the Department may, with notice to the applicant by telephone, letter, or meeting, require information in addition to that in §A of this regulation. The Department recommends that an applicant consult with the Department before developing and submitting the following information:

  (1) An alternatives analysis of the proposed project, including the “no action” and other alternatives that avoid and minimize adverse impacts on tidal wetlands, with the analysis including an evaluation of alternatives that have the least impact on public safety, adjoining properties, and the aquatic environment;

  (2) An estimation of the public and private benefits from the project;

  (3) Additional site plan information, including;

    (a) Location of any submerged aquatic vegetation;

    (b) Location of shellfish beds;

    (c) Limits of critical area buffer as defined in COMAR 27.01.09.01;

    (d) Other significant ecological or historical features; and

    (e) Location of all subsurface borings or other tests associated with any feasibility report prepared for the project;

  (4) Predicted impacts of the fill on tidal wetlands, water quality, and aquatic habitat, including leaching or dispersion of pollutants;

  (5) Methods to protect surface water and ground water from pollution;

  (6) A statistical comparison between existing beach sediments and the proposed borrow material for beach nourishment and marsh creation projects;

  (7) Storm drain plans, details, and supporting documentation, reports, and design calculations;

  (8) Methods to control upland runoff; and

  (9) Methods to ensure that the fill does not adversely affect water quality during and after construction.

C. Reclamation of Lost Upland. Projects designed to reclaim lost upland by filling shall meet the following requirements:

  (1) A person who is the owner of land bounding on tidal water is entitled to reclaim upland lost by erosion or avulsion during the person's ownership of the land to the extent of provable boundaries;

  (2) The right to reclaim lost upland relates only to upland lost after January 1, 1972; and

  (3) The burden of proof that the loss of upland occurred after January 1, 1972 is the responsibility of the owner of the land, and the riparian property owner may demonstrate the loss of upland through the use of historical photographs and land survey data.

D. Beach Nourishment. Beach nourishment projects shall meet the following requirements:

  (1) The fill material grain size shall be equal to or greater in grain size and character to the existing beach material, or determined otherwise to be compatible with existing site conditions and acceptable to the Department;

  (2) The fill material shall be relatively free of organic material, floating debris, or other objects;

  (3) Silt and clay fills that change the sandy nature of the existing beach materials are not acceptable;

  (4) Gravel fill may be acceptable, if particle sizes are equal to or greater than the existing beach materials; and

  (5) Fill material shall be placed above the mean high water line before final grading to achieve the desired beach profile, unless site conditions prohibit the placement of fill material above the mean high water line and specific measures are designed to prevent material from washing away from the site.

E. Storm Drain Projects.

  (1) Exemptions. The following storm drain projects are exempt from the design guidelines of §E(2) of this regulation:

    (a) The extension of storm drains which directly discharge into tidal wetlands through new or replacement shore erosion control structures; and

    (b) Storm drain projects which manage runoff from an individual lot with one dwelling.

  (2) Design Guidelines Requirements.

    (a) New storm drain systems shall be designed to manage the rate of runoff and improve water quality. At a minimum, a 10 percent improvement in water quality shall be achieved.

    (b) Storm drain systems shall:

      (i) Comply with applicable State or local design standards;

      (ii) Be designed to follow natural drainage patterns and incorporate swales, filter strips, and sediment traps wherever feasible; and

      (iii) Include measures to prevent scouring from increased water velocities at their outlet.

    (c) The licensee or permittee is responsible for the removal of any sediment deposited in the waters of the State as a result of the construction of an approved storm drain system or on-site grading and development activities.

    (d) The licensee or permittee shall submit a preconstruction depth survey of any tidal wetlands within the project vicinity for approval by the Department before construction. The survey shall be referenced to mean low water at a fixed benchmark on the adjoining land, or an adjoining structure such as a bulkhead.

    (e) The licensee or permittee shall submit a post-construction depth survey for review and verification by the Administration at any time after construction has begun, if required by the Administration. The survey shall be referenced to the same benchmark and elevation used for determining preconstruction depths.

### Chapter 04 — Structures

**Authority:** Environment Article, Title 16, Annotated Code of Maryland

**Administrative History:** Effective date: February 14, 1994 (21:3 Md. R. 184)

**Administrative History:** (Wetlands regulations before February 14, 1994, appeared under COMAR 08.05.07)

**Administrative History:** Regulation .14 amended as an emergency provision effective August 1, 1995 (22:17 Md. R. 1309); amended permanently effective December 4, 1995 (22:24 Md. R. 1894)

**Administrative History:** Regulations .01—.04 were recodified from Regulations .12, .14, .16, and .17, respectively, under COMAR 08.05.05 Tidal Wetlands, June 1996

**Administrative History:** Chapter revised as an emergency provision effective March 9, 2007 (34:7 Md. R. 695); emergency expired September 5, 2007

**Administrative History:** Regulation .01 repealed and new Regulation .01 adopted effective February 4, 2013 (40:2 Md. R. 73)

**Administrative History:** Regulation .01-1 adopted effective February 4, 2013 (40:2 Md. R. 73)

**Administrative History:** Regulation .01-2 adopted effective February 4, 2013 (40:2 Md. R. 73)

**Administrative History:** Regulation .01-3 adopted effective February 4, 2013 (40:2 Md. R. 73)

**Administrative History:** Regulation .01-4 adopted effective February 4, 2013 (40:2 Md. R. 73)

#### Regulation .01 Shore Erosion Control.

*COMAR 26.24.04.01*

A. The Department may not authorize an erosion control project if:

  (1) There is no evidence of erosion and the applicant is unable to document a claim of erosion;

  (2) Existing State or private tidal wetlands are effectively preventing erosion; or

  (3) The proposed project may adversely affect:

    (a) An adjacent property;

    (b) Navigation, and the applicant has not adequately offset these impacts;

    (c) Threatened or endangered species, species in need of conservation, or significant historic or archaeological resources; or

    (d) Natural oyster bars or private oyster leases.

B. A person proposing a shoreline stabilization measure in State or private tidal wetlands that requires a wetlands license from the Board or a general wetlands license, wetlands permit, or general wetlands permit from the Department shall first consider:

  (1) No action; and

  (2) Relocation of structures threatened by erosion.

C. Except as authorized under §E of this regulation, if the Department is satisfied that neither option listed under §B of this regulation is feasible, the person shall use a nonstructural shoreline stabilization measure.

D. If a structural component is necessary in order to preserve the natural shore, minimize erosion, and establish aquatic habitat, a nonstructural shoreline stabilization measure may include the use of:

  (1) A breakwater, sand containment structure, or sill that is acceptable to the Department; or

  (2) A beach that is acceptable to the Department, when used for the purpose of habitat enhancement.

E. A person may use a structural shoreline stabilization measure:

  (1) In an area identified as appropriate for structural shoreline stabilization measures by the Department, in coordination with the Maryland Department of Natural Resources, and shown on a map approved by the Department under Regulation .01-1 of this chapter; or

  (2) At a site where the person has obtained a waiver from the Department in accordance with Regulation .01-2 of this chapter by demonstrating to the Department’s satisfaction that a nonstructural shoreline stabilization measure is not feasible.

#### Regulation .01-1 Structural Shoreline Stabilization Maps.

*COMAR 26.24.04.01-1*

A. The Department shall develop and maintain maps on its website that:

  (1) Display the areas that are appropriate for structural shoreline stabilization measures; and

  (2) Are readily available to the public.

B. When determining the areas appropriate for structural shoreline stabilization measures, the Department shall consider:

  (1) The presence or absence of a natural shoreline;

  (2) Proximity to channels;

  (3) As determined by the Department based on site conditions, the presence of high energy waves or a severely eroding shore that would render a nonstructural stabilization measure infeasible;

  (4) The extent to which a water-dependent facility requires a bulkheaded shoreline for loading and unloading operations, such as the berthing of commercial vessels;

  (5) Impacts to rare, threatened and endangered species, and species in need of conservation; and

  (6) Any other site-specific factor, as determined relevant by the Department.

#### Regulation .01-2 Nonstructural Shoreline Stabilization Waiver Process.

*COMAR 26.24.04.01-2*

A. A person who applies for a waiver from the requirement to construct a nonstructural shoreline stabilization measure under Regulation .01C of this chapter shall:

  (1) Use the form provided by the Department; and

  (2) Complete the waiver process before submitting an application to obtain a wetlands license from the Board or a general wetlands license, wetlands permit, or general wetlands permit from the Department under COMAR 26.24.02.

B. When evaluating a person’s request for a waiver, the Department shall determine whether the site is suitable to support a nonstructural shoreline stabilization measure by considering:

  (1) The width of the waterway;

  (2) The bottom elevation and slope at mean low water;

  (3) The bottom substrate:

  (4) The fetch;

  (5) The bank elevation and orientation;

  (6) The degree of erosion;

  (7) The height and regularity of tides;

  (8) Any other physical constraints that would impede or prevent successful establishment of a nonstructural shoreline stabilization measure; and

  (9) Any other relevant environmental resources, including a Critical Area buffer and other plant, fish, and wildlife habitat, and the likely adverse or protective impact of a nonstructural shoreline stabilization measure on those resources in comparison to the likely adverse or protective impact of a structural shoreline stabilization measure on those resources.

C. A person may obtain a waiver from the requirement to use a nonstructural shoreline stabilization measure if, to the Department's satisfaction, a structural shoreline stabilization measure is the only feasible alternative that will protect and maintain the person’s shoreline.

#### Regulation .01-3 Application Requirements.

*COMAR 26.24.04.01-3*

A. In addition to the requirements of COMAR 26.24.02.02, a person proposing a shoreline stabilization measure shall submit the following information at the time of application:

  (1) An 8-1/2 by 11-inch plan, with dimensions, of the proposed project showing:

    (a) Location;

    (b) Land ownership;

    (c) Existing and proposed contours;

    (d) Existing mean high water line and, if applicable, existing landward boundary of State and private tidal wetlands, each as field-verified by the applicant;

    (e) For a nonstructural shoreline stabilization measure, the proposed mean high water line and the proposed landward boundary of State and private tidal wetlands;

    (f) Existing and proposed structures, including:

      (i) A septic system;

      (ii) A utility-related structure;

      (iii) A building;

      (iv) A road;

      (v) Drainage features; and

      (vi) An equipment storage area;

    (g) Adjacent shoreline features;

    (h) Best management practices to control any upland runoff which contributes to erosion;

    (i) Type of materials to be used in construction; and

    (j) Site bathymetry;

  (2) A waiver, if the project qualifies for a structural shoreline stabilization measure under Regulation .01-2 of this chapter;

  (3) Photographs of the project site, the adjoining shoreline, and existing structures;

  (4) In accordance with the requirements of COMAR 27.01.09.01-3, the proposed major or minor buffer management plan that will address disturbance of the buffer, including any disturbance to stabilize a bank or slope or to control erosion above mean high water;

  (5) Critical Area Buffer Notification Form signed by the property owner;

  (6) If required by the Department, a design report that includes:

    (a) A foundation investigation;

    (b) A structural analysis;

    (c) The structural properties of the materials to be used to construct the proposed project;

    (d) The estimated economic, environmental, and other benefits to be derived from the project;

    (e) The design life expectancy of the project;

    (f) The sequence of construction;

    (g) A description of the method of construction that includes:

      (i) Estimated beginning and completion dates;

      (ii) The equipment to be used;

      (iii) The proposed access to the site;

      (iv) The foundation excavations;

      (v) The means for diverting water away from the project during construction; and

      (vi) The means for controlling the dewatering discharges;

    (h) Specific references and benchmarks used by the designer;

    (i) Estimated impact, if any, of the project on adjacent properties;

    (j) Estimated impact, if any, of the project on public access to the shore;

    (k) Written specifications for the quality of the materials and methods of construction to ensure that design criteria will be met or exceeded;

    (l) A description of how the reclamation of lost upland meets the requirements of COMAR 26.24.03.06C, if applicable; and

    (m) A description of measures to be taken to avoid and minimize impacts to plant, fish, and wildlife habitat before, during, and after construction; and

  (7) If required by the Department, an alternatives analysis, including:

    (a) The justification for rejecting the options required to be considered under COMAR 26.24.04.01B;

    (b) The justification for the selected shoreline stabilization measure; and

    (c) For a structural shoreline stabilization measure, proof of consideration of each alternative, including an analysis of habitat impact for each alternative, in the following order of preference:

      (i) Beach nourishment;

      (ii) Breakwater;

      (iii) Groin, jetty, or a similar structure;

      (iv) Revetment; and

      (v) Bulkhead.

B. Based on project size and scope, environmental sensitivity of the project site, and potential adverse impacts to State or private tidal wetlands, the Department may, with notice to the applicant by telephone, letter, email, or meeting, require information in addition to §A of this regulation.

#### Regulation .01-4 Design of Structural Shoreline Stabilization Measures.

*COMAR 26.24.04.01-4*

A. A person proposing a structural shoreline stabilization measure that employs a jetty, groin, breakwater, or other offshore structure, shall design the project to:

  (1) Allow natural littoral movement of sand along the shore;

  (2) Minimize erosion and undesirable shoaling;

  (3) Use materials that are:

    (a) Of adequate size, weight, and strength to function as intended;

    (b) Free of protruding objects, debris, and contaminants; and

    (c) Selected to minimize impacts to water quality and plant, fish, and wildlife habitat;

  (4) Use backfill material free of litter, refuse, junk, metal, tree stumps, logs, or other unsuitable materials;

  (5) Prevent damage due to scour; and

  (6) Minimize grading and other impacts on riparian habitat.

B. The Department may not authorize encroachment into State or private tidal wetlands unless:

  (1) The encroachment is limited to that which is structurally necessary and is verified by a design report or other documentation, as required by the Department; and

  (2) For a bulkhead:

    (a) The encroachment is three feet or less beyond the mean high water line; and

    (b) Other nonstructural and structural shoreline stabilization measures are infeasible, as determined by the Department.

#### Regulation .02 Piers and Boathouses.

*COMAR 26.24.04.02*

A. Exemptions. Private noncommercial piers, boat hoists or lifts, mooring piles, and osprey poles that meet all of the following criteria are exempt from the requirement to obtain a license from the Board of Public Works or a license or permit from the Department under this subtitle:

  (1) Only one pier per property;

  (2) The width of the main section of the pier may not be greater than 6 feet;

  (3) Fixed or floating platforms, including Ts, Ls, and step-down platforms may not:

    (a) Exceed 200 square feet in area including the segment of the main pier section to which the platform is attached;

    (b) Be located over vegetated tidal wetlands, including submerged aquatic vegetation; and

    (c) Be constructed on the landward 50 percent of the main pier section, except in canals and similar narrow water bodies as considered appropriate by the Department.

  (4) The project may not include more than six mooring piles or create more than four boat slips;

  (5) The project may not include more than two osprey poles per property;

  (6) A maximum of two, 3-foot wide finger piers not exceeding 50 percent of the proposed slip length may be constructed on the landward side of the end of a private pier;

  (7) The project shall meet the minimum extended property line setback requirements established by the local jurisdiction in which the activity is proposed;

  (8) The project may not be constructed in a location that will impede navigation or block ingress to and egress from adjoining properties;

  (9) The project may not obstruct the flow of the tide;

  (10) The pier may not extend within 100 feet of a ski course approved by the Department;

  (11) The pier may not extend more than 100 feet channelward of the tidal wetlands boundary line, or a distance of 25 percent of the width of the waterway, whichever is less;

  (12) Piers over vegetated tidal wetlands shall be constructed a minimum of 3 feet above the wetlands; and

  (13) The owner or owner's agent shall notify the Department on a form provided by the Department within 10 days before construction of the pier or any auxiliary structure.

B. Pier Criteria.

  (1) The Department may issue, deny, modify, or condition a license in accordance with COMAR 26.24.01.03 for the construction of fixed or floating piers, decks, walkways, and related structures. The Department may not issue a license for a fixed or floating pier, deck, walkway, or related structure which adversely affects shallow water habitat, submerged aquatic vegetation, shellfish, or vegetated tidal wetlands. The Department shall use all the criteria in §B(2)—(4) of this regulation in making final decisions on fixed or floating piers, decks, walkways, or other related structures not exempted in COMAR 26.24.02.01C(7) and §A of this regulation.

  (2) Private Noncommercial Piers.

    (a) The main section of a pier may not be wider than 6 feet.

    (b) A pier shall meet the minimum extended property line set-back requirements established by the local jurisdiction in which the activity is proposed.

    (c) A pier may not:

      (i) Be constructed in a location that will impede navigation or block ingress and egress to adjoining properties;

      (ii) Obstruct the flow of the tide;

      (iii) Extend within 100 feet of a ski course approved by the Department;

      (iv) Extend more than 25 percent across a waterway unless it is determined by the Department that the pier will not adversely affect navigation, recreation, aesthetics, or the biological character of the area; or

      (v) Include more than six mooring piles, four boat lifts or hoists, or four boat slips.

    (d) Piers over vegetated tidal wetlands shall be constructed a minimum of 3 feet above the wetland substrate.

  (3) Private, Noncommercial Pier Platforms. The total area of fixed or floating platforms such as Ts and Ls, and step-down platforms:

    (a) Shall include the segment of the main pier section to which the platform is attached and may not exceed 200 square feet;

    (b) May not be located over vegetated tidal wetlands, including submerged aquatic vegetation; and

    (c) May not be constructed on the landward 50 percent of the main pier except in canals and other similar narrow water bodies as deemed appropriate by the Department.

  (4) Private, Noncommercial Finger Piers. Two, 3-foot wide finger piers may be constructed on the landward side of the end of the main pier. Finger piers may be constructed in addition to other fixed or floating platforms and may not be included in calculating the area for purposes of the exemption in §A(3) of this regulation.

C. Boathouses.

  (1) Routine repair and maintenance of existing boathouses is exempt under COMAR 26.24.02.01C(5) if there is no increase in width, length, height, or channelward encroachment.

  (2) Except at commercial marinas, a person may not construct a new boathouse in or over State or private wetlands.

D. Appeals. A person aggrieved by a final decision of the Administration may appeal the decision in accordance with COMAR 26.24.02.08.

#### Regulation .03 Marinas.

*COMAR 26.24.04.03*

A. In addition to the requirements of COMAR 26.24.02.02, an applicant for a new marina or marina expansion is required to submit the following information at the time of application:

  (1) An alternatives analysis, including the alternative of no action, with the potential impacts on water quality, tidal wetland values, and aquatic habitat discussed for each alternative for:

    (a) Marina location;

    (b) Construction methods;

    (c) Configuration of project components;

    (d) Dimensions; and

    (e) Related facilities;

  (2) A bathymetric survey of the proposed marina site;

  (3) A description of the marina facility, including the number of slips, breakwaters, or jetties;

  (4) A description of:

    (a) Marina support facilities including:

      (i) Parking;

      (ii) Storm water management facilities;

      (iii) Concessions;

      (iv) Boat sales;

      (v) Boat repair;

      (vi) Hauling;

      (vii) Dry storage;

      (viii) Sewage pumpout facilities;

      (ix) Utilities;

      (x) Swimming pools;

      (xi) Restaurants; and

      (xii) Lodging facilities; and

    (b) Techniques to minimize the adverse environmental impacts of the facilities in §A(4)(a) of this regulation;

  (5) A description of the impact of the marina on State or federal navigation channels located within 3,000 feet of the project;

  (6) A description of the existing site characteristics, including water quality in the project area;

  (7) Location of materials such as submerged cables, piles, pipelines, or debris to be removed during construction, as well as measures for disposal;

  (8) Location of boat repair, cleaning, wet and dry storage facilities, fueling facilities, and other boat service facilities;

  (9) The location of the areas in which antifouling compounds for boat bottom painting, waste oil, washwater, and other pollutants are used;

  (10) A description and plan of the method proposed to manage water quality associated with storm water runoff; and

  (11) A flushing study for basins dredged into upland.

B. If the proposed new marina or marina expansion includes dredging and dredge disposal, the information requirements and design guidelines in COMAR 26.24.03.02—.05 shall be met.

C. Based on project size and scope, environmental sensitivity of the project site, and potential adverse impacts to tidal wetlands, the Department may, with notice to the applicant by telephone, letter, or meeting, require information in addition to §§A and B of this regulation. The Department recommends that an applicant consult with the Department before developing and submitting the following information:

  (1) The predicted short-term and long-term direct and indirect impacts on water quality, tidal wetland values, and aquatic habitat;

  (2) Increased noise levels, boat wakes, pollutant loading, and other project-related impacts;

  (3) Possible interference with water currents and impacts on littoral drift, sediment deposition, and shoaling;

  (4) Impacts on water circulation and flushing within the project area;

  (5) Other alterations of tidal wetlands and the impact on biological productivity;

  (6) Schedules, monitoring programs, or other provisions to be used during construction, operation, and maintenance to reduce or avoid adverse environmental impacts and to keep erosion, turbidity, and siltation at the lowest possible levels;

  (7) Special provisions to be used to enhance the environment;

  (8) The long-term public gain expected from the project such as:

    (a) Employment;

    (b) Tax yields;

    (c) Reduction of existing pollution; and

    (d) Enhancement of public access to the water;

  (9) Estimated frequency of maintenance dredging, the volume of materials to be dredged over the life of the project, and site or sites to be used for disposal of these materials;

  (10) A description of how the speed, numbers, and directional movements of boat traffic will:

    (a) Be controlled in and out of the marina;

    (b) Impact commercial navigation; and

    (c) Impact boats kept at the proposed marina facility, with the techniques to minimize the adverse impact of boat wakes on the proposed facility being addressed; and

  (11) A plan to minimize oil spillage into the basin and to identify contingencies for oil spill containment and removal.

D. Pumpout Facilities.

  (1) A person may not construct additional slips at an existing property that would result in a total capacity of more than ten slips or construct a new marina with more than ten slips unless:

    (a) The marina has a wastewater collection and treatment system that is adequate to handle any existing and proposed flows and is approved by the local health department;

    (b) There is a pumpout station on-site that is adequate to handle the increased sewage capacity from vessels that use the marina and that is operable and accessible at reasonable times; or

    (c) The marina has a contract with a pumpout facility that is:

      (i) Located not more than 2 miles from the marina;

      (ii) Adequate to handle the increased sewage capacity from vessels that use the marina, as determined by the local health department; and

      (iii) Operable and accessible at reasonable times.

  (2) Wastewater collection and treatment facilities may be required, in consultation with the Department, if the marina:

    (a) Has a capacity of more than 25 slips;

    (b) Has a capacity of ten or more slips that are designed to accommodate boats of 25 feet or more in length; and

    (c) Is located off the main stem of the major river tributaries of the Chesapeake Bay and coastal bays or in sensitive areas identified for no pollutant discharge by the State.

E. Vessel Mooring Facilities. The placement of buoys, group mooring buoys, and other apparatus used to secure, berth, or moor vessels in the waters of the State shall conform to the requirements of COMAR 08.04.13.

F. Marina Management Plan. The location of all new marinas or expansion of an existing marina shall be consistent with a marina management plan, if any, that has been approved by the local government. If there is a conflict between a local marina management plan and this subtitle, the more stringent regulation takes priority.

G. Marina Siting Guidelines.

  (1) New marina development and the expansion of existing marinas shall be located:

    (a) To avoid and minimize impacts to tidal wetlands and other aquatic resources; and

    (b) On waterways with strong flushing characterized by:

      (i) A bottom which slopes from headwaters to mouth without sumps or other features which inhibit complete water exchange;

      (ii) The waterway has an unconstricted entrance; and

      (iii) The waterway has few branches, coves, and other features which inhibit complete mixing.

  (2) New marina development and expansion of existing marinas may not be located in areas where:

    (a) The natural depth is 4.5 feet or less at mean low water unless the marina basin is excavated from upland; and

    (b) Their presence would adversely impact submerged aquatic vegetation, productive macroinvertebrate communities, shellfish beds, fish spawning or nursery areas, rare, threatened, or endangered species, or species in need of conservation, or historic waterfowl staging areas.

  (3) Expansion of existing marinas is favored over development of new marinas.

#### Regulation .04 Conduits, Cables, Pipes, or Other Crossings of State Tidal Wetlands.

*COMAR 26.24.04.04*

The construction, reconstruction, alteration, or addition to any conduit, cable, pipeline, intake or discharge pipe, trestle, or other similar device, structure, or apparatus, over, on, in, or under State tidal wetlands or waters of the State requires a license. A license issued for this construction is subject to the compensation requirements of COMAR 23.02.04 as may be assessed by the Board.

### Chapter 05 — Mitigation

**Authority:** Environment Article, Title 16, Annotated Code of Maryland

**Administrative History:** Effective date: February 14, 1994 (21:3 Md. R. 184)

**Administrative History:** (Wetlands regulations before February 14, 1994, appeared under COMAR 08.05.07)

**Administrative History:** Regulations .01 and .02 were recodified from Regulations .21 and .22, respectively, under COMAR 08.05.05 Tidal Wetlands, June 1996

#### Regulation .01 Mitigation.

*COMAR 26.24.05.01*

A. Goal. It is the goal of the State to preserve tidal wetlands, prevent their loss and despoliation, and strive for a net resource gain in tidal wetlands acreage and function.

B. Mitigation Requirements.

  (1) An applicant for a license or permit shall design a project to first avoid and then minimize the loss of tidal wetlands. If an applicant demonstrates that alteration of tidal wetlands cannot be avoided to accomplish the project, the Department shall:

    (a) Recommend that the Board require mitigation as a condition of a State tidal wetlands license; or

    (b) Require mitigation as a condition of a private tidal wetlands permit.

  (2) Mitigation projects shall be designed to replace the values and functions associated with the wetlands to be impacted.

  (3) Mitigation projects shall be connected to existing tidal wetlands or tidal waterways. Projects may be located on multiple parcels. Projects shall be located according to the following geographic location in order of preference, unless otherwise determined by the Department:

    (a) Locations on-site;

    (b) Locations off-site in the:

      (i) Immediate watershed subsegment where the tidal wetland loss occurred,

      (ii) Watershed sub-basin where the tidal wetland loss occurred, or

      (iii) State minor basin where the tidal wetlands loss occurred.

  (4) Mitigation for the loss of tidal wetlands shall be considered in the following order of preference:

    (a) Restoration;

    (b) In-kind creation;

    (c) Out-of-kind creation;

    (d) Enhancement of existing tidal wetlands;

    (e) Monetary compensation to the Wetlands Compensation Fund.

  (5) Enhancement activities may be accepted in addition to tidal wetlands restoration or creation when the applicant has demonstrated to the satisfaction of the Department that enhancement provides additional protection or improves tidal wetlands functions. Activities may include:

    (a) Enhancement of degraded tidal wetlands; or

    (b) Preservation of existing tidal wetlands.

  (6) The Department may recommend that the Board accept monetary compensation only if the Department determines that creation, restoration, or enhancement of tidal wetlands are not feasible alternatives.

  (7) Mitigation requirements may be reduced or eliminated:

    (a) For shore erosion control projects that meet all of the requirements of COMAR 26.24.04.01; or

    (b) If the proposed project provides a significant environmental benefit as determined by the Department.

  (8) The Department may not base a final tidal wetland permit decision or tidal wetland license recommendation solely on the environmental benefits of a mitigation proposal or the financial benefits of a monetary compensation proposal.

  (9) The Department may approve mitigation bank sites in consultation with the appropriate local, State, and federal agencies.

C. Standards.

  (1) The Department may use acreage replacement ratios to determine the size of newly created, restored, or enhanced tidal wetlands as mitigation for the loss of existing tidal wetlands. Acreage replacement ratios are expressed as a relationship between two numbers. The first number is the acreage of tidal wetlands to be mitigated and the second is the acreage of tidal wetlands lost. Acreage replacement ratios for in-kind creation and restoration are as follows:

    (a) Open water tidal wetlands—1:1;

    (b) Emergent tidal wetlands—2:1;

    (c) Scrub-shrub tidal wetlands—2:1;

    (d) Forested tidal wetlands—2:1; and

    (e) Tidal wetlands habitat for rare, threatened, or endangered species, or species in need of conservation—3:1.

  (2) Out-of-kind creation and enhancement ratios are increased by a factor of 2.

  (3) A mitigation project, as built, shall meet the following plant survival criteria:

    (a) After 5 years, greater than 85 percent of the mitigation site shall be vegetated by planted species approved by the Department; and

    (b) Allowances shall be made for natural species changes as long as the plant communities are similar to those lost.

  (4) In determining if mitigation activities will replace tidal wetlands acreage and functional losses, the Department shall consider the following:

    (a) Degree to which the mitigation activity replaces the functions of the lost tidal wetlands;

    (b) Benefits of the mitigation activity in rehabilitating or maintaining tidal wetlands;

    (c) Scope and extent of the mitigation activity;

    (d) Proximity of the mitigation activity to the tidal wetlands loss;

    (e) Technical merits of the mitigation activity and its likelihood of long-term success;

    (f) Adverse impact of the mitigation activity on natural resources;

    (g) Relationship of the mitigation activity to ongoing natural resource management activities; and

    (h) Compatibility of the mitigation activity with approved comprehensive river or watershed management plans, if applicable.

D. Mitigation Plan.

  (1) At a minimum, a mitigation plan shall contain the following information:

    (a) A plan view of the mitigation area drawn at a scale not smaller than 1 inch equals 50 feet, including the delineation of all existing and adjacent tidal and nontidal wetlands, submerged aquatic vegetation, and shellfish resources;

    (b) Existing and proposed elevations of the ground contours referenced to mean low water at the site;

    (c) Cross-section views if elevation changes are required to provide adequate substrate to support plant species;

    (d) The location and description of all existing and proposed tidal wetlands plants by species;

    (e) Photographs of the affected tidal wetlands, including the types of vegetation;

    (f) The proposed method of construction, including temporary or permanent access roads;

    (g) Location, type, and characteristics of all borrow or fill materials and method of site grading;

    (h) Construction schedule;

    (i) Method of final site stabilization;

    (j) A description of how the proposed mitigation project will replace the functions of lost tidal wetlands; and

    (k) Monitoring plan.

  (2) A licensee or permittee shall implement the mitigation plan before or concurrent with the construction of the project unless otherwise directed by the Department.

  (3) A bond shall be recommended as a condition of a license or required as a permit condition to assure that mitigation is performed. The Department shall approve the form of the bond in accordance with Regulation .02 of this chapter.

E. Monitoring Report.

  (1) A permittee or licensee shall submit annual monitoring reports for 5 years from the completion of the construction of the mitigation project, unless the permittee or licensee has received written notice from the Department that the monitoring requirements have been fulfilled in less than 5 years. The monitoring report shall include the following:

    (a) A description of how the mitigation project meets the mitigation project standards in this regulation;

    (b) Photographs of the mitigation project;

    (c) The commercial source of planting stock whenever planting is required;

    (d) A description of modifications which have been made or need to be made to implement the mitigation plan necessary to meet this regulation; and

    (e) An “as-built” site design plan shall be included in the first annual report, and subsequent reports shall detail any modifications to the “as built” plan.

  (2) The Department reserves the right to inspect the mitigation project at any reasonable time during the construction and required monitoring period, and any time after that to assess the long-term viability of the mitigation site.

  (3) Through written notification to the permittee or licensee, the Department may extend the required monitoring period for not more than an additional 3-year period, for a total of 8 years, if the mitigation project fails to comply with the standards in §C of this regulation.

#### Regulation .02 Bonding for Mitigation Purposes.

*COMAR 26.24.05.02*

A. This regulation does not apply to any State, county, or municipal government, or to projects licensed by the Board.

B. This regulation only applies to those projects proposed and permitted by the Department in private tidal wetlands.

C. The bond is payable to the Department and conditioned upon fulfillment of mitigation monitoring requirements.

D. Alternative Forms of Security.

  (1) Instead of a surety bond, the Department may accept one of the following forms of security:

    (a) A deposit of cash or negotiable bonds of the federal government having a market value equal to the bond amount accompanied by a written agreement of the bank to pay the State on demand in the event of forfeiture;

    (b) A certificate of deposit equal to the required bond amount, issued by a bank in the State and with a written agreement from the bank to pay the State on demand in the event of forfeiture;

    (c) An irrevocable letter of credit equal to the bond amount, issued by a bank or financial institution organized to do business in the State, that expressly states that the total sum is guaranteed to be available and payable directly to the State on demand in the event of forfeiture;

    (d) The grant to the Department, in trust, of a deed, easement, or other interest in upland property owned by the permittee that has the same or greater monetary value than the selected mitigation site; or

    (e) Fulfillment of mitigation requirements before completion of the permitted activity which results in the loss of tidal wetlands.

  (2) The permittee shall submit to the Department the alternative form of security under this regulation, until authorized by the Department for release. Alternative forms of security may not be released until monitoring of the mitigation project has been successfully completed.

E. Amount of Bond.

  (1) The amount of the bond for a permittee is $50,000 per acre of tidal wetlands mitigation required under the permit, or in an amount determined by the Department.

  (2) The permittee may request reduction of the bond amount by submitting a written request to the Department with a justification for reducing the bond amount, including estimated or actual costs to complete the mitigation project, and any other relevant information.

  (3) The Department shall determine whether a lesser amount is sufficient to cover the cost of the mitigation project, taking into account the following:

    (a) Number of acres to be mitigated;

    (b) The cost of land in the area of the mitigation site;

    (c) The proposed method of mitigation; and

    (d) Any other relevant factors, including the likelihood of success of the project.

F. Liability under the bond continues until the Department determines that the monitoring requirements have been fulfilled, and the surety or financial institution receives written notice from the Department that the mitigation project was successfully completed.

G. A surety bond or other alternative form of security may be cancelled by the surety, bank, or other issuing entity when both of the following conditions are satisfied:

  (1) The surety notifies the Department and the permittee of its intent to cancel the bond, in writing, by certified mail, not less than 90 days before cancellation; and

  (2) At least 45 days before the cancellation date indicated in the notice, the permittee files a replacement bond from a surety, bank, or other issuing entity to provide a substitute security which will be effective on the cancellation date indicated in the notice.

H. Bond Forfeiture.

  (1) The bond or other instrument securing compliance with the mitigation plan may be subject to forfeiture upon:

    (a) Revocation of a tidal wetlands license or permit;

    (b) Failure to comply with an administrative order; or

    (c) Failure to comply with any element of the approved mitigation plan.

  (2) The Department, in writing and by certified mail, shall notify the permittee, surety, or other financial institution of the Department's intention to initiate forfeiture proceedings and the grounds for forfeiture.

  (3) The permittee, surety, or other financial institution has 30 days from receipt of the notice of forfeiture to show cause why the bond or other instrument may not be forfeited.

  (4) On showing cause, the Department shall provide for a reasonable time for the permittee, surety, or other financial institution to correct the problem.

  (5) If the permittee, surety, or other financial institution fails to show cause, the bond is forfeited nisi and the Department shall notify the permittee, surety, or other financial institution. If a showing of an intention to correct the problem in compliance with the mitigation plan is not submitted within 30 days from forfeiture nisi, the bond shall be forfeited absolute.

I. If tidal wetlands are adequately protected, the Department may allow an applicant to post one bond under Environment Article, §15-823, Annotated Code of Maryland, or another Department program requiring bonding.

J. A permittee may not conduct a regulated activity in a tidal wetland if the permittee previously forfeited a bond under this subtitle, unless the permittee repays the Department the cost of completing the mitigation project in excess of the forfeited bond, plus interest at the rate set in Courts and Judicial Proceedings Article, §11-107(a), Annotated Code of Maryland. If the mitigation project is still not completed, the permittee shall complete the mitigation project at the permittee's expense according to the approved mitigation plan.

## Subtitle 25 — Ballast Water Management

### Chapter 01 — Repealed

**Administrative History:** Effective date: July 8, 2002 (29:13 Md. R. 993)

**Administrative History:** Regulations .01—.03 repealed effective June 5, 2006 (33:11 Md. R. 951)

### Chapter 02 — Repealed

**Administrative History:** Effective date: July 8, 2002 (29:13 Md. R. 993)

**Administrative History:** Regulations .01—.05 repealed effective June 5, 2006 (33:11 Md. R. 951)

### Chapter 03 — —

*Repealed*

**Administrative History:** Effective date: July 8, 2002 (29:13 Md. R. 993)

**Administrative History:** Regulations .01—.05 repealed effective June 5, 2006 (33:11 Md. R. 951)

## Subtitle 26 — Community Right-To-Know Fund

### Chapter 01 — Community Right-to-Know

**Authority:** Environment Article, §§7-601—7-605, Annotated Code of Maryland

**Administrative History:** Effective date: March 17, 2003 (30:5 Md. R. 368)

#### Regulation .01 Scope.

*COMAR 26.26.01.01*

Environment Article, §7-604(c)(2), Annotated Code of Maryland, requires the Department to establish a Community Right-to-Know Fund to cover the costs of fulfilling the duties and responsibilities of the federal Community Right-to-Know Act by the Department and the local emergency planning committees (LEPCs). The Department is authorized under the Community Right-to-Know Fund to award annual grants to LEPCs in the State.

#### Regulation .02 Definitions.

*COMAR 26.26.01.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Act” means the Maryland Community Right-To-Know Fund Act, Environment Article, Title 7, Subtitle 6, Annotated Code of Maryland.

  (2) “Department” means the Department of the Environment

  (3) “Extremely hazardous substance (EHS)” has the meaning stated in §329(3) of the federal Act and 40 CFR 370 and 372.

  (4) “Facility” means a facility that is subject to the federal Act.

  (5) “Federal Act” means the Federal Emergency Planning and Community Right-to-Know Act, 42 U.S.C.S. §11001 et seq.

  (6) “Federal regulations” means 40 CFR 370 and 372.

  (7) “Fund” means the Maryland Community Right-to-Know Fund.

  (8) “Hazardous chemical” has the meaning stated in §329(5) of the federal Act.

  (9) “Local emergency planning committee (LEPC)” has the meaning stated in 40 CFR §355.20.

  (10) “Owner/operator” means a person responsible for each noncontiguous facility.

  (11) “Responsible person” means an owner or operator of a facility that is required to report under the federal Act.

  (12) “Secretary” means the Secretary of the Department.

  (13) “State Emergency Response Commission (SERC)” means the organization that has the duties and responsibilities, powers, and authorities mandated by the federal Act.

#### Regulation .03 General Provisions.

*COMAR 26.26.01.03*

A. The Fund is generated by assessing annual fees on facilities that are required to report to the State or its instrumentalities under the Federal Act. The Fund is intended for use by the Department and LEPCs to cover the costs of fulfilling the duties and responsibilities of the federal Act.

B. The Department will award grants to LEPCs, by using the Fund allocation requirements set forth in Regulation .08 of this chapter.

C. The Department may consider a distribution plan in determining the amount of funding for each LEPC.

D. Within 60 days of the beginning of each calendar year, the Department shall allocate, through grants, 50 percent of the current calendar year revenues, plus 100 percent of any local government reversions from prior calendar years, minus $25,000 for administrative costs to LEPCs.

E. Grant allocations shall be as specified under Regulation .08B of this chapter.

F. The authority to distribute local government allocations of the Fund may be delegated to the SERC by the Department.

G. Each LEPC that receives grant money from the Fund shall provide an annual report to the Department documenting the manner in which the money was spent.

H. An LEPC shall spend the money provided by the grant for activities under Regulation .06 of this chapter or for any other activity the Department determines is consistent with the purposes of this chapter.

I. Money allocated to an LEPC under this chapter that is not used by the LEPC by the end of the authorized grant year shall be remitted to the fund and shall be reallocated by the Department.

J. After reasonable notice, the Secretary may require an LEPC to provide the Department with information or documentation relating to money expended by the LEPC under this chapter.

K. The Secretary may require an independent audit of any LEPC that is not found to be in compliance with this chapter.

L. The Secretary may recover any inappropriate expenditure made by an LEPC from the Fund.

M. The Secretary may withhold a part or all of the funding allocation of any LEPC that inappropriately expended funds or has not expended all the Fund in a prior year.

#### Regulation .04 Fees.

*COMAR 26.26.01.04*

A. The Community Right-to-Know Fund is generated by a combination of:

  (1) Annual fees paid by facilities that are required to report to the State Emergency Response Commission or to an LEPC under §§312 and 313 of the federal Act;

  (2) Penalties, fines, or both, paid by facilities for violations of the Act; and

  (3) Unused LEPC grant monies that have been returned to the Department.

B. Fees shall be calculated as specified below:

  (1) The fees shall be a fixed application fee and a scaled fee for inventory and release reports submitted under §§312 and 313 of the federal Act;

  (2) There is a separate application fee for:

    (a) §312 Emergency and Hazardous Chemical Inventory reporting; and

    (b) §313 Toxic Release Inventory reporting;

  (3) An application fee may not be greater than $100 per facility, or a maximum of $1,000 for a person with multiple facilities in Maryland;

  (4) Fees for the inventory amounts of each extremely hazardous substance submitted under §312 of the federal Act shall be:

    (a) $100 for amounts less than 100 pounds;

    (b) $200 for amounts between 100 and 999 pounds;

    (c) $400 for amounts between 1,000 and 9,999 pounds;

    (d) $800 for amounts between 10,000 and 99,999 pounds;

    (e) $1,000 for amounts between 100,000 and 999,999 pounds; and

    (f) $1,000 for amounts greater than 1,000,000 pounds;

  (5) The fees for the inventory amounts of each hazardous chemical reported under §312 of the federal Act shall be:

    (a) $200 for amount less than 100,000 pounds;

    (b) $400 for amounts between 100,000 and 999,999 pounds;

    (c) $800 for amounts between 1,000,000 pounds and 9,999,999 pounds; and

    (d) $1,000 for amounts greater than 10,000,000 pounds; and

  (6) Fees for reports filed under §313 of the federal Act shall be:

    (a) $100 for each Form A submitted;

    (b) $200 for each Form R submitted; or

    (c) $400 for each form submitted for a persistent, bioaccumulative, or toxic substance.

C. Maximum fees shall be paid by owner/operators as specified in the governing statute.

D. The maximum fee for each owner/operator of a facility subject to reporting requirements under the federal Act, except as otherwise exempted by the State governing statute, shall be for cumulative amounts due under §§312 and 313 reporting for each calendar year.

E. Each owner/operator of a facility subject to reporting requirements under the federal Act shall remit fees as calculated in Regulation .04 in accordance with the following schedule:

  (1) Amounts due pursuant to §B(2)(a), (4), and (5) of this regulation shall be remitted to the Department not later than March 1 of each year; and

  (2) Amounts due pursuant to §B(2)(b) and (6) of this regulation shall be remitted to the Department not later than July 1 of each year.

F. Payment of all fees under this chapter shall be in the form of a personal check, cashier's check, or money order made payable to the Department.

#### Regulation .05 Exemptions.

*COMAR 26.26.01.05*

A. The following persons and entities are exempt from paying fees:

  (1) Government agencies;

  (2) Farmers whose principal residence is located on their farm;

  (3) Charitable organizations as defined under Business Regulation Article, §6-101(d), Annotated Code of Maryland;

  (4) Petroleum retail facilities, including marinas, with storage capacities of less than 75,000 gallons of gasoline and less than 100,000 gallons of diesel or similar fuel;

  (5) Any entity that is exempt under the federal Act; and

  (6) Any owner/operator of a facility that does not exceed the federal reporting thresholds for any EHS or hazardous chemical but voluntarily submits a Tier Two emergency and hazardous chemical inventory report to the SERC or the LEPC with jurisdiction over that facility, or both.

B. The Secretary may exempt additional entities from payment of reporting fees.

#### Regulation .06 Community Right-To-Know Fund.

*COMAR 26.26.01.06*

The Community Right-to-Know Fund shall be used for:

A. The processing of information submitted to the Department, including collection, management, and analysis of data received by the Department from an owner or operator of a facility required to provide such data under the federal Act, the federal regulations, or this chapter;

B. State enforcement of this chapter or the federal Act; and

C. Federally required planning and training activities conducted by the State or LEPCs, including and not limited to:

  (1) Conducting:

    (a) Incident response activities;

    (b) Shelter in place and evacuation planning; and

    (c) Railroad, maritime, and transportation exercises;

  (2) Collecting hazardous material commodity flow information;

  (3) Acquisition and maintenance of chemical reference materials;

  (4) Public outreach activities including case studies, school safety, and emergency planning for citizens;

  (5) Participation by emergency response personnel in related training and conferences on local, state, and federal regulatory and compliance updates, incident command, and crisis control; and

  (6) Compensation for personnel to perform tasks as required to implement the responsibilities of the SERC or LEPC as described in the federal Act.

#### Regulation .07 Funding Applicant Requirements.

*COMAR 26.26.01.07*

A. Each local emergency planning committee (LEPC) shall fulfill the requirements of the federal Act to be considered eligible for grant awards from the Fund.

B. Each LEPC receiving grant funding under this act shall certify to the Department by January 31 of each year that it has met the requirements under the federal Act. The requirements include, but are not be limited to:

  (1) Appointment of a chairman;

  (2) Establishment of rules by which the LEPC shall function, which shall include:

    (a) Provision for public notification of committee activities;

    (b) Provision for public meetings, if requested, to discuss the emergency plan, public comments, committee response to the comments, and distribution of the emergency plan; and

    (c) Designation of an official to serve as coordinator for information;

  (3) Establishment of procedures for receiving and processing requests from the general public for the following information as described in §324 of the federal Act:

    (a) An emergency response plan;

    (b) Each follow-up emergency notice described in §304 (c) of the federal Act;

    (c) Each material safety data sheet (MSDS) or list of MSDSs described in §311(a)(2) of the federal Act; and

    (d) Each hazardous chemical inventory form described in §312 of the federal Act;

  (4) Completion of an emergency plan in accordance with §303 of the federal Act;

  (5) Completion of a review of the emergency plan annually, or more frequently as changed circumstances in the community or at any facility may require;

  (6) Designation of a location for review by the general public of each item listed in §B(3) of this regulation; and

  (7) Publication of an annual notice in local newspapers which states:

    (a) That the emergency response plans, material safety data sheets or lists of material safety data sheets, and inventory reports have been submitted under §324(b) of the federal Act;

    (b) That follow-up emergency notifications may subsequently be issued; and

    (c) The location and hours of availability for members of the public that wish to review a plan, sheet, list, form, or follow-up notice.

#### Regulation .08 Fund Allocation.

*COMAR 26.26.01.08*

A. The Department shall use 50 percent of the money received for processing of information contained in reports submitted to the Department. Information processing includes:

  (1) Activities necessary to inform business and facilities of the submission requirements;

  (2) Data management, that includes maintenance and development of manual and electronic file systems;

  (3) Information dissemination to local governments;

  (4) Compliance activities;

  (5) Emergency response functions; and

  (6) Emergency planning, training, and exercise activities.

B. The Department shall allocate the balance of the money received in a calendar year to the LEPCs, and the following provisions are applicable to the allocation:

  (1) The Department shall reserve $25,000 of the money allocated to LEPCs to ensure proper management, allocation, and accounting of the funds;

  (2) A base allocation to each requesting LEPC of up to $10,000 shall be authorized;

  (3) The balance of the funds after subtraction of the $25,000 management costs and base grants are calculated shall be allocated to LEPCs;

  (4) The fund allocation responsibilities may be delegated to the SERC; and

  (5) Any money identified for LEPCs in one calendar year and not used by LEPCs in that year shall be returned to the Department within 45 days of the beginning of the next calendar year and will be returned to the fund and offered for allocation in that calendar year.

C. The Department may allocate funds on behalf of LEPCs to third party providers of common services, such as the Maryland Fire and Rescue Institute (MFRI).

D. The Department or the SERC, if delegated, may develop a grant award formula to assure distribution of grant money to the LEPCs. This grant award formula may take into account, among other factors:

  (1) Quantity and risk of the chemicals reported; and

  (2) Prior compliance of the LEPC with spending requirements.

#### Regulation .09 Reporting Requirements.

*COMAR 26.26.01.09*

A. General Requirements.

  (1) Entities required to provide reports or information as described in §§302—313 of the federal Act shall submit the reports as specified to the Department.

  (2) The Department may specify or adopt additional forms or submittal processes, including electronic submittal processes.

B. Federal Act §312 Emergency and Hazardous Inventory Reporting.

  (1) Owners or operators of facilities subject to §312 of the federal Act shall submit reports to the Department.

  (2) All facilities subject to reporting requirements shall provide a Tier Two report in place of the Tier One report required in the federal Act.

  (3) Only federally approved Tier Two emergency and hazardous chemical inventory report forms may be used for submissions to the Department, unless electronic reporting procedures are also approved.

  (4) Tier Two emergency and hazardous chemical inventory reports shall be submitted not later than March 1 of each year, beginning in 2003, and shall contain information pertaining to the previous calendar year.

C. Federal Act §313 Toxic Chemical Release Inventory Reporting.

  (1) Owners or operators of facilities subject to §313 of the federal Act shall submit reports to the Department as required by the federal Act and as specified by 40 CFR 372.

  (2) Only federally approved toxic release inventory forms may be used for submissions to the Department, unless electronic reporting procedures are also approved.

  (3) Toxic chemical release inventory reports shall be submitted not later than July 1 of each year, beginning in 2003, and shall contain information pertaining to activities conducted during the previous calendar year.

D. An LEPC that receives grant money under this chapter shall:

  (1) Report to the Department documenting how the money was spent within 45 days of the close of each Maryland fiscal year;

  (2) Account for money that was not used in the authorized calendar year allocation, with unused allocation remitted to the Department 45 days after the end of the authorized fiscal year unless the LEPC has provided documentation to the Department with justification for an extension of the grant expenditure period; and

  (3) Remit to the fund the amount of inappropriate expenditures within 90 days after receipt by the LEPC of a notice from the Department that the expenditures were inappropriate.

#### Regulation .10 Audit.

*COMAR 26.26.01.10*

A. The Secretary may conduct an independent audit of any LEPC that receives funds under this chapter.

B. The Secretary may recover any inappropriate expenditure made by an LEPC that is inconsistent with this chapter.

C. The Department shall submit a notice indicating to the LEPC that expenditures reported under Regulation .09D(2) of this chapter were not appropriate.

D. Records used in the development and completion of reports submitted under this chapter shall be maintained by the facility for a minimum of 3 years from the date of submission.

#### Regulation .11 Administrative Review.

*COMAR 26.26.01.11*

A. An LEPC may request an administrative review within the Department by filing a request for review with the Secretary, if the Department has determined that expenditures of Fund money by the LEPC were inappropriate.

B. A request for review shall be filed within 30 days of the date the LEPC is advised of the Department's decision.

C. The review proceedings shall be conducted in accordance with State Government Article, §10-201 et seq., Annotated Code of Maryland, and COMAR 26.01.01.

#### Regulation .12 Relationship to Federal Program and Local Ordinances.

*COMAR 26.26.01.12*

A. The federal Act and the federal regulations shall be used to establish procedures for filing required reports with the State and any local governments as required by the federal Act.

B. This chapter does not relieve a facility subject to the federal Act of the responsibility for providing reports as required under the federal Act.

C. This chapter does not relieve a facility subject to any local ordinances pertaining to the reporting of hazardous and toxic materials from any obligations pursuant to the local ordinances.

D. The failure of an owner/operator to file reports required by the federal Act does not relieve an owner/operator from the obligation to remit the fees established by this chapter for any facility for which they are or have been responsible.

## Subtitle 27 — Hazardous Material Security

### Chapter 01 — Hazardous Material Security

*Repealed*

**Administrative History:** Effective date: January 2, 2006 (32:26 Md. R. 1998)

**Administrative History:** Regulations .01—.12 repealed effective June 18, 2018 (45:12 Md. R. 620)

## Subtitle 28 — Building Energy Performance Standards

### Chapter 01 — Definitions and Documents Incorporated by Reference

**Authority:** Environment Article, §§1-404, 2-301, 2-302, 2-1205, 2-1602, Annotated Code of Maryland

**Administrative History:** Effective date: December 23, 2024 (51:25 Md. R. 1142)

#### Regulation .01 Purpose.

*COMAR 26.28.01.01*

The purpose of this chapter is to define the terms used in this subtitle and identify the documents that are incorporated by reference.

#### Regulation .02 Definitions.

*COMAR 26.28.01.02*

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Affordable housing providers” means the owner of a covered building that primarily provides housing to limited income households, where a minimum of 51 percent of households living within the building are at or below 80 percent of the area median income, as defined in the Housing and Community Development Article, §4–1801, Annotated Code of Maryland, or a covered building that is restricted under the Low-Income Housing Tax Credit (LIHTC) program.

  (2) Agricultural Building.

    (a) “Agricultural building” means a structure that is used primarily to cultivate, manufacture, process, or produce agricultural crops, raw materials, products, livestock, or commodities.

    (b) “Agricultural building” includes a greenhouse.

  (3) “Alternative compliance fee” means a fee paid by the building owner to come into compliance with applicable net direct emissions standards, as specified in COMAR 26.28.04.01A.

  (4) “Area-weighted standard” means an interim or final performance standard that is calculated based on the floor area proportion of the property types within a covered building.

  (5) Authorized Occupant.

    (a) “Authorized occupant” means a person that is approved by a building owner to be within a covered building.

    (b) “Authorized occupant” does not include:

      (i) Security guards;

      (ii) Janitors;

      (iii) Construction workers;

      (iv) Landscapers; and

      (v) Other maintenance personnel.

  (6) “Baseline performance” means the weather-normalized numeric values of net direct greenhouse gas emissions and site EUI of a covered building for the covered building’s baseline year.

  (7) “Baseline year” means either calendar year 2025 for a covered building that was constructed and occupied prior to calendar year 2025 or the first full calendar year in which a newly constructed covered building was occupied.

  (8) “Benchmark” means to track and input a building’s energy consumption data and other relevant building information on a monthly basis for at least 12 consecutive months, as required by the benchmarking tool, to quantify the building’s energy use and greenhouse gas emissions.

  (9) Benchmarking Information.

    (a) “Benchmarking information” means descriptive information about a building, its operating characteristics, and information generated by the benchmarking tool regarding the building’s energy consumption, efficiency, and performance.

    (b) “Benchmarking information” includes but is not limited to the building identification number, address, gross floor area, and separate energy consumption totals for each fuel type.

  (10) “Benchmarking tool” means the website-based software, commonly known as ENERGY STAR Portfolio Manager, or any successor system, approved by the United States Environmental Protection Agency.

  (11) “Building” has the meaning set forth in the International Building Code, which is incorporated by reference under COMAR 09.12.51.04A and as modified in COMAR 09.12.51.04B.

  (12) “Building owner” means an individual or legal entity possessing title to a building including but not limited to a board of the owners’ association, master association, board of directors, community association, cooperative housing corporation, or condominium.

  (13) “Campus” means a collection of two or more buildings, of any building type or size, that act as a single cohesive property with a single shared primary function and are owned and operated by the same party, such as, but not limited to, higher education or hospital campuses, as determined by the Department.

  (14) “Commercial building” means a commercial building as defined and subject to the commercial provisions of the International Energy Conservation Code, which is incorporated by reference in COMAR 09.12.51.04A and as modified in COMAR 09.12.51.04D, regardless of the nature of the entity or government that owns the building.

  (15) Covered Building.

    (a) “Covered building” means a building that is a commercial or multifamily residential building in the State of Maryland or is owned by the State of Maryland and has a gross floor area of 35,000 square feet or more, excluding the parking garage area, and is:

      (i) A single building;

      (ii) One or more buildings held in the condominium form of ownership with a combined gross floor area of 35,000 square feet or more, excluding the parking garage area, and governed by a single board of managers; or

      (iii) Two or more buildings with a combined gross floor area of 35,000 square feet or more, excluding the parking garage area, that are served in whole or in part by the same electric or gas meter or are served by the same heating or cooling system or systems, which is not a district energy system.

    (b) “Covered building” includes a building that meets the criteria for a covered building as described in this section and is located in a historic district but where the building is not individually designated as a historic property under federal, state, or local law.

    (c) “Covered building” does not include:

      (i) A building, or space within a building, individually designated as a historic property under federal, State, or local law, separate and apart from a building’s inclusion in a historic district;

      (ii) A public or nonpublic elementary or secondary school building;

      (iii) A manufacturing building;

      (iv) An agricultural building; or

      (v) A building owned by the federal government;

  (16) “Department” means the Maryland Department of the Environment.

  (17) “Direct greenhouse gas emissions or direct emissions” means greenhouse gas emissions produced on-site by covered buildings, as calculated by the benchmarking tool unless otherwise specified by the Department.

  (18) “District energy system” means a system in which thermal energy generated at one or more central facilities provides heating or cooling through a network of insulated underground pipes to provide hot water, steam, space heating, air conditioning, or chilled water to nearby buildings.

  (19) “District energy provider” means an entity that provides thermal energy to customers through a district energy system.

  (20) “Electric company” has the meaning stated in Public Utilities Article, §1-101, Annotated Code of Maryland.

  (21) “Final performance standard or final standard” means the numeric values of net direct greenhouse gas emissions that each covered building shall ultimately achieve on an annual basis in 2040 and beyond.

  (22) “Financial distress” means:

    (a) A property that is the subject of a tax lien sale or public auction due to property tax arrearages;

    (b) A property that is controlled by a court appointed receiver; or

    (c) A property that was acquired by a deed in lieu of foreclosure in the last calendar year.

  (23) “Food service facility” has the meaning stated in COMAR 10.15.03.02B.

  (24) Full-Time-Equivalent Employee.

    (a) “Full-time-equivalent employee” means a person that occupies a covered building for no less than 40 hours per week throughout a calendar year.

    (b) “Full-time-equivalent employee” excludes:

      (i) Security guards;

      (ii) Janitors;

      (iii) Construction workers;

      (iv) Landscapers; and

      (v) Other maintenance personnel.

  (25) “Gas company” has the meaning stated in Public Utilities Article, §1-101, Annotated Code of Maryland.

  (26) “Greenhouse gas emissions or emissions” means gasses released into the atmosphere that contribute to climate change, including but not limited to carbon dioxide (CO2), as calculated by the benchmarking tool unless otherwise specified by the Department.

  (27) Gross Floor Area.

    (a) “Gross floor area” means the total building square footage measured between the principal exterior surfaces of the enclosing fixed walls of a building.

    (b) “Gross floor area” consists of all areas inside the building, including but not limited to lobbies, tenant areas, common areas, meeting rooms, break rooms, the base level of atriums, restrooms, elevator shafts, stairwells, mechanical equipment areas, basements, and storage rooms.

    (c) “Gross floor area” does not include exterior spaces, balconies, bays, patios, exterior loading docks, driveways, covered walkways, outdoor play courts (e.g., tennis, basketball), parking, the interstitial space between floors, which house pipes and ventilation, and crawl spaces.

    (d) “Gross floor area” is not the same as rentable space, but rather includes all areas inside the building or buildings.

  (28) “Interim performance standard or interim standard” means the weather-normalized numeric values of net direct greenhouse gas emissions which covered buildings shall achieve by a specified calendar year that is prior to 2040.

  (29) “Manufacturing building” means a building involved in the process of substantially transforming, or a substantial step in the process of substantially transforming, tangible personal property into a new and different article of tangible personal property by the use of labor or machinery, or otherwise designated as a manufacturing building by the Department.

  (30) “Mixed-use building” means a building that contains two or more property types.

  (31) Net Direct Greenhouse Gas Emissions or net direct emissions.

    (a) “Net direct greenhouse gas emissions or Net Direct Emissions” means:

      (i) The sum of all direct greenhouse gas emissions from a covered building; or

      (ii) For a covered building connected to a district energy system, direct greenhouse gas emissions plus the greenhouse gas emissions attributable to thermal energy inputs from the district energy system used by the covered building, as calculated using the methodology provided in this regulation.

    (b) “Net direct greenhouse gas emissions or net direct emissions” does not include direct greenhouse gas emissions from a food service facility located within a covered building.

  (32) “Newly constructed covered building” means a covered building that was constructed after 2024 and occupied by at least one full-time-equivalent employee or authorized occupant.

  (33) “Occupied” means a covered building with at least one full-time equivalent employee or authorized occupant.

  (34) “Property type” means the primary use of a building space as specified in ENERGY STAR Portfolio Manager.

  (35) Site Energy Use.

    (a) “Site energy use” means all energy used on-site by a covered building to meet the energy loads of the building.

    (b) “Site energy use” includes electricity delivered to the building through the electric grid and/or generated on-site with renewable sources; thermal energy delivered to the building through a district energy system; and natural gas, diesel, propane, fuel oil, wood, coal, and other fuels used on-site.

    (c) “Site energy use” excludes electricity used for charging vehicles, a food service facility located within a covered building, and other electricity uses excluded from site energy use by the benchmarking tool.

  (36) “Site energy use intensity or site EUI” is calculated by the benchmarking tool by dividing the total energy consumed in one calendar year by the gross floor area of the building and reported as a value of a thousand British thermal units (kBTU) per square foot per year.

  (37) “Tenant” means a person or entity occupying or holding possession of a building, part of a building, or premises pursuant to a rental or lease agreement.

  (38) “Weather-normalized” means a method for modifying the measured building energy use in a specific calendar year to estimate energy use under normal weather conditions as calculated by the benchmarking tool.

  (39) Web services application programming interface (API) or web services API.

    (a) “Web services API” means the free application for use by organizations to exchange building energy and other data between their own systems and the benchmarking tool.

    (b) “Web services API” may include the entry of data into the tool and/or the calculation and extraction of metrics and other information from the tool.

  (40) “Whole building energy consumption data” means energy data that has been summed for an entire building, which may include a single occupant or a group of separately metered tenants, representing the cumulative total of energy used in the covered building.

#### Regulation .03 Incorporation by Reference.

*COMAR 26.28.01.03*

In this subtitle, the Maryland Department of the Environment Technical Memorandum (TM) 24-01, “Technical Guidance and Calculation Methodologies to Comply with Building Energy Performance Standards”, July 2024 is incorporated by reference.

### Chapter 02 — Benchmarking and Reporting

**Authority:** Environment Article, §§1-404, 2-301, 2-302, 2-1205, 2-1602, Annotated Code of Maryland

**Administrative History:** Effective date: December 23, 2024 (51:25 Md. R. 1142)

**Administrative History:** Regulation .02E adopted effective March 30, 2026 (53:6 Md. R. 292)

#### Regulation .01 Purpose.

*COMAR 26.28.02.01*

The purpose of this chapter is to establish reporting requirements for building owners, tenants, electric and gas companies, and district energy providers.

#### Regulation .02 Reporting Requirements of Building Owners.

*COMAR 26.28.02.02*

A. Data Collection.

  (1) Each calendar year beginning in 2025 or in the first calendar year after which a newly constructed covered building is occupied, the covered building owner shall collect and enter all required benchmarking information for the previous calendar year into the benchmarking tool.

  (2) Nothing in this regulation shall be construed to permit a building owner to use tenant energy usage data for purposes other than evaluation of the performance of the building.

  (3) A building owner shall follow the exemption procedures under the TM 24-01, “Technical Guidance and Calculation Methodologies to Comply with Building Energy Performance Standards”.

B. Benchmarking Report.

  (1) A building owner shall submit a benchmarking report to the Department by June 1st of each year, beginning in 2025, using the benchmarking tool.

  (2) Following the first full calendar year that energy data can be collected and the building was occupied, the owner of any newly constructed covered building shall benchmark the building and report to the Department no later than June 1st of the following year, and every June 1st thereafter.

  (3) The annual benchmarking report shall include, at a minimum, the benchmarking information spanning January 1st to December 31st of the previous calendar year.

  (4) The building owner shall enter data into the benchmarking tool such that the benchmarking report shall be based on an assessment of the energy consumed by the building for the entire calendar year being reported and demonstrate the net direct emissions and site EUI for the entire calendar year being reported.

  (5) The building owner shall exclude from the benchmarking report submetered and separately metered energy consumption data for:

    (a) Food service facilities that engage in commercial cooking and water heating;

    (b) Electric vehicle charging;

    (c) Other electricity uses excluded from site energy use by the benchmarking tool; and

    (d) Emissions from required combustion equipment under the following conditions:

      (i) Emissions from generators shall be excluded from the net direct emissions requirements if a federal or State regulation requires a covered building including a health care facility, laboratory, assisted living and nursing facility, military building, critical infrastructure, and a building used in life sciences to use a backup generator or other equipment that shall run on combustible fuels.

      (ii) A covered building is required to include emissions from a combustion generator/equipment if the relevant federal or State regulation is updated to allow battery storage and/or other types of systems that do not produce direct emissions.

  (6) Energy consumption for food service facilities can be excluded using a standard deduction formula in accordance with the Department’s TM 24-01 “Technical Guidance and Calculation Methodologies to Comply with Building Energy Performance Standards”, which is incorporated by reference in COMAR 26.28.01.03 when such energy consumption cannot be excluded using submetered or separately metered data.

  (7) Before submitting a benchmarking report, the building owner shall run all automated data quality checker functions available within the benchmarking tool and shall confirm that all data has been accurately entered into the tool. The building owner shall correct all missing or incorrect information as identified by the data quality checker prior to submitting the benchmarking report to the Department.

  (8) If a building owner is notified of an inaccuracy by the Department or other third party, then the building owner shall amend the information reported within the benchmarking tool, and shall provide the Department with an updated benchmarking submission within 30 days of learning of the inaccuracy.

  (9) The building owner of a mixed-use covered building shall use the benchmarking tool to report the gross floor area for all property types in the building.

  (10) The building owners of a covered building that is connected to district energy systems shall submit additional information to supplement the annual benchmarking report in accordance with the Department’s TM 24-01,“Technical Guidance and Calculation Methodologies to Comply with Building Energy Performance Standards”, which is incorporated by reference in COMAR 26.28.01.03.

C. Third Party Verification of Benchmarking Reports.

  (1) The building owner shall have a third party verify the accuracy of benchmarking reports for calendar years:

    (a) 2025 (benchmarking report due in 2026);

    (b) 2030 (benchmarking report due in 2031);

    (c) 2035 (benchmarking report due in 2036);

    (d) 2040 (benchmarking report due in 2041); and

    (e) Every 5 years thereafter.

  (2) The building owner of a newly constructed covered building shall have a third party verify the first required benchmarking report and then comply with the schedule in this chapter for verification of subsequent reports.

  (3) The building owner shall provide to the third party verifier all utility bills, delivered fuel receipts, and other documentation needed by the verifier for the calendar year covered by the benchmarking report.

  (4) The building owner shall submit a copy of a third party verification to the Department when submitting the associated benchmarking report in accordance with the Department’s TM 24-01 “Technical Guidance and Calculation Methodologies to Comply with Building Energy Performance Standards”, which is incorporated by reference in COMAR 26.28.01.03.

D. Maintenance of Historical Data.

  (1) The building owner shall maintain adequate records demonstrating compliance with this chapter, including but not limited to, energy bills, reports, forms, and records received from tenants or utilities and records.

  (2) Such records shall be preserved for a period no less than 5 years.

  (3) At the request of the Department, such records shall be made available for inspection and audit by the Department.

E. Annual Reporting Fee.

  (1) A building owner shall pay an annual reporting fee for each covered building as defined in Environment Article, §2-1601, Annotated Code of Maryland.

  (2) The annual reporting fee is due by June 1st of each year beginning in 2026.

  (3) In 2026, the annual reporting fee is $100.

  (4) Beginning in 2027 and each year thereafter, the annual reporting fee is $100 as adjusted for inflation pursuant to §E(5) of this regulation.

  (5) Consumer Price Index.

    (a) The annual reporting fee rate set forth in this chapter shall be increased each calendar year by the percentage, if any, by which the Consumer Price Index for the most recent calendar year exceeds the Consumer Price Index for the previous calendar year.

    (b) The Consumer Price Index for any calendar year is the 12-month average of the Consumer Price Index for all urban consumers published by the U.S. Department of Labor.

#### Regulation .03 Reporting Requirements of Tenants.

*COMAR 26.28.02.03*

A tenant of a covered building shall, within 30 days of a request by the building owner, provide all requested benchmarking information that cannot otherwise be acquired by the building owner from other sources.

#### Regulation .04 Reporting Requirements of Electric and Gas Companies and District Energy Providers.

*COMAR 26.28.02.04*

A. Electric and Gas Companies.

  (1) Electric and gas companies delivering energy to a covered building shall maintain whole-building energy consumption data for all buildings, for at least the most recent 5 years in an electronic format capable of being uploaded to the benchmarking tool.

  (2) On and after January 1, 2025, upon the request and authorization of a building owner an electric or gas company shall provide the building owner with at least the most recent 12 consecutive months of whole building energy consumption data by fuel type for the specified building for all the fuel types provided by the company.

    (a) The electric or gas company shall provide data to the requestor as follows:

      (i) Data shall include whole building energy consumption, aggregating all utility meters that measure energy consumption at the building;

      (ii) Data shall be provided to the requestor within 90 days of receiving a data request in 2025;

      (iii) Data shall be provided to the requestor within 30 days of receiving a data request in 2026 or later; and

      (iv) Whole building energy consumption data shall be provided to the requestor in monthly intervals.

    (b) An electric or gas company may be exempt from §A(2)(a) of this regulation in accordance with §A(7) of this regulation.

  (3) Investor-owned electric and gas companies serving 40,000 or more customers shall use the benchmarking tool’s web services API to deliver data to requesters on an ongoing basis.

  (4) Investor-owned electric and gas companies serving fewer than 40,000 customers, municipal electric and gas companies, or cooperatively owned electric and gas companies shall provide data in the spreadsheet template specified by the benchmarking tool, or through the benchmarking tool’s web services API to requesters on an ongoing basis.

  (5) Electric and gas companies shall develop and maintain a process to identify and confirm with the building owner the list of meters that will be used to calculate the aggregated total as follows:

    (a) Electric and gas companies shall provide to the building owner a listing of all meters included in the whole building energy consumption data for verification purposes; and

    (b) If any correction or update takes place at a meter that is included in the whole building energy consumption data, then the affected value or values shall be proactively updated by the electric or gas company through the benchmarking tool’s web services API or through an updated spreadsheet template with a notification provided to the building owner/data requestor.

  (6) For covered buildings with five or more tenants, electric and gas companies shall deliver to requestors the monthly whole building energy consumption data capturing total consumption by fuel type of all relevant fuel or fuels across all meters at the building.

    (a) The whole building energy consumption data shall not be deemed confidential information by the electric and gas companies for purposes of delivery to the building owner.

    (b) Electric and gas companies will not be required to acquire explicit authorization for data release by the individual tenants.

  (7) For covered buildings with fewer than five tenants, electric and gas companies shall deliver whole building energy consumption data to the building owner if the building tenants provide written or electronic consent for the delivery of the tenant’s energy data to the building owner.

    (a) The building tenant’s consent may be provided in a lease agreement provision.

    (b) The building tenant’s consent is not required if an electric or gas company customer vacates the covered building before explicitly denying consent for the delivery of the tenant’s energy data to the building owner.

  (8) When providing whole-building consumption data to a property with onsite generation of renewable electricity (for example, solar or wind energy), electric and gas companies shall ensure that the consumption values delivered to the building owner capture total gross grid electricity consumption as metered by the electric or gas company, rather than net, or net-metered, consumption of grid electricity.

B. District Energy Providers.

  (1) Starting no later than January 1, 2025, district energy providers shall maintain all records that are necessary to comply with this regulation for a period of not less than 5 years. At the request of the Department, such records shall be made available for inspection and audit by the Department.

  (2) District energy providers shall provide greenhouse gas emissions factors per unit of district energy input (steam, hot water, chilled water, etc.) to the owners of covered buildings and to the Department for benchmarking and compliance purposes.

  (3) Emissions factors and a full and detailed accounting of their calculation shall be provided by the district energy provider by March 1st of each calendar year and cover the previous calendar year based on actual fuel consumption and system performance data. The Department may require a third party review of such calculations paid for by the district energy provider.

  (4) District energy providers shall use methodology for allocating emissions that will be based on the “Efficiency Method” in the World Resources Institute’s “Calculation tool for direct emissions from stationary combustion: Allocation of GHG Emissions from a Combined Heat and Power (CHP) Plant”.

#### Regulation .05 Disclosure of Covered Building Benchmarking and Performance Standards Information.

*COMAR 26.28.02.05*

Before a buyer signs a contract for the purchase of a covered building, the building owner selling the covered building shall:

A. Disclose to the prospective buyer that the building is subject to requirements under this subtitle;

B. Transfer the following records to the prospective buyer:

  (1) A copy of the complete benchmarking record from the benchmarking tool;

  (2) Documentation of data verification;

  (3) Documentation of any alternative compliance fee made to the Department; and

  (4) Any other records relevant to maintain compliance under this subtitle; and

C. Provide to the prospective buyer the following information:

  (1) Baseline performance; and

  (2) Interim and final performance standards.

### Chapter 03 — Performance Standards and Compliance Demonstration

**Authority:** Environment Article, §§1-404, 2-301, 2-302, 2-1205, 2-1602, Annotated Code of Maryland

**Administrative History:** Effective date: December 23, 2024 (51:25 Md. R. 1142)

#### Regulation .01 Purpose.

*COMAR 26.28.03.01*

The purpose of this chapter is to establish performance standards for covered buildings.

#### Regulation .02 Performance Standards.

*COMAR 26.28.03.02*

A. Interim and final net direct emissions standards are set forth below.

B. Reserved.

C. Interim and Final Standards for Mixed-Use Covered Buildings. Area-weighted standards for net direct emissions      for mixed-use buildings will be set by the compliance tool as specified in the Department’s TM 24-01, “Technical Guidance and Calculation Methodologies to Comply with Building Energy Performance Standards”, which is incorporated by reference in COMAR 26.28.01.03.

D. Achieving and Maintaining the Standards.

  (1) Each covered building shall not exceed the net direct emissions standards for 2030—2034 in each calendar year including 2030, 2031, 2032, 2033, and 2034, as determined on a yearly basis.

  (2) Each covered building shall not exceed the net direct emissions standards for 2035—2039 in each calendar year including 2035, 2036, 2037, 2038, and 2039, as determined on a yearly basis.

  (3) Each covered building shall not exceed the net direct emissions standards in calendar year 2040 and each calendar year thereafter, as determined on a yearly basis.

### Chapter 04 — Alternative Compliance and Special Provisions

**Authority:** Environment Article, §§1-404, 2-301, 2-302, 2-1205, 2-1602, Annotated Code of Maryland

**Administrative History:** Effective date: December 23, 2024 (51:25 Md. R. 1142)

#### Regulation .01 Alternative Compliance Pathway.

*COMAR 26.28.04.01*

A. Alternative Compliance Pathway for Net Direct Emissions Standards.

  (1) In lieu of meeting the net direct emissions standards in COMAR 26.28.03, the building owner shall come into compliance with the net direct emissions standards by paying an alternative compliance fee for the greenhouse gas emissions in excess of the net direct emissions standards.

  (2) An alternative compliance fee shall be paid for every metric ton of net direct emissions in excess of the net direct emissions standard in a given calendar year. The fee shall be:

    (a) $230 per metric ton of excess CO2e in 2020 dollars, adjusted for inflation, for 2030;

    (b) $234 per metric ton of excess CO2e in 2020 dollars, adjusted for inflation, for 2031;

    (c) $238 per metric ton of excess CO2e in 2020 dollars, adjusted for inflation, for 2032;

    (d) $242 per metric ton of excess CO2e in 2020 dollars, adjusted for inflation, for 2033;

    (e) $246 per metric ton of excess CO2e in 2020 dollars, adjusted for inflation, for 2034;

    (f) $250 per metric ton of excess CO2e in 2020 dollars, adjusted for inflation, for 2035;

    (g) $254 per metric ton of excess CO2e in 2020 dollars, adjusted for inflation, for 2036;

    (h) $258 per metric ton of excess CO2e in 2020 dollars, adjusted for inflation, for 2037;

    (i) $262 per metric ton of excess CO2e in 2020 dollars, adjusted for inflation, for 2038;

    (j) $266 per metric ton of excess CO2e in 2020 dollars, adjusted for inflation, for 2039;

    (k) $270 per metric ton of excess CO2e in 2020 dollars, adjusted for inflation, for 2040; and

    (l) The fee rate increases by $4 per metric ton of CO2e per calendar year in 2020 dollars, adjusted for inflation, in each calendar year following 2040.

  (3) The annual fee rate set forth in this chapter shall be increased each calendar year by the percentage, if any, by which the Consumer Price Index-U (All Urban Consumers) for the most recent calendar year exceeds the Consumer Price Index-U (All Urban Consumers) for the previous calendar year.

B. Other Provisions. If covered building ownership changes in 2030 or any calendar year thereafter, then the owner of the building on December 31st is responsible for compliance with this regulation and paying alternative compliance fees or penalties for the calendar year ending on December 31st and every calendar year thereafter until that person is no longer the owner of the covered building.

#### Regulation .02 Exemptions.

*COMAR 26.28.04.02*

A. Exemptions from Benchmarking and Performance Standard Requirements. A building owner may apply for an exemption from the requirements of this regulation for one calendar year when the building owner can provide documentation showing that one of the following conditions are met:

  (1) Financial distress;

  (2) The covered building was not occupied for the entirety of the calendar year being reported; or

  (3) The covered building was demolished during the calendar year for which benchmarking is required.

B. Exemption from Establishing Baseline Performance.

  (1) The Department may, in its sole discretion, grant an exemption from the requirement to establish baseline performance when, during the baseline year, less than 50 percent of the floor area of the covered building was occupied for at least 180 days and where the building owner applies for such exemption.

  (2) A covered building may not receive an exemption from the requirement to establish baseline performance for more than 3 years.

C. Exemptions for Affordable Housing Providers.

  (1) The Department may grant the application of reduced alternative compliance fees to an affordable housing provider when the building owner submits in writing such request by June 1st of each calendar year, beginning in 2031 which demonstrates to the Department that it has made a good faith effort, as demonstrated under §C(2) of this regulation.

  (2) A good faith effort may be demonstrated to the Department by submitting a copy of the application to a federal or Maryland administered program that would make the building or buildings more energy efficient and/or reduce greenhouse gas emissions. The submission shall also include the benchmark report, intended scope of work, and estimated greenhouse gas reductions expected from the intended scope of work to achieve at least the applicable interim or final standard.

  (3) An alternative compliance fee granted by the Department under §C(1) of this regulation is good for one calendar year.

  (4) A project that has applied to a program under §C(2) of this regulation but has not yet completed the improvements, can submit a confirmation received from the program administrator to the Department, verifying the project's active participation status to satisfy the good faith effort for another year.

  (5) An alternative compliance fee granted by the Department under §C(1) of this regulation does not exempt the owner from complying with the benchmarking and reporting requirements in COMAR 26.28.02.

  (6) An affordable housing provider may apply for the alternative compliance fee annually.

#### Regulation .03 Option for Campus-Level Compliance.

*COMAR 26.28.04.03*

A. The owner of a covered building may choose to meet net direct emissions standards, as specified under this regulation, at the campus level instead of the individual building level when two or more covered buildings are:

  (1) Connected to a district energy system;

  (2) Served by the same electric or gas meter; or

  (3) Served by the same heating or cooling system or systems, which is not a district energy system.

B. Campus-level reporting shall include energy consumption and greenhouse gas emissions for all buildings and stationary equipment located on the campus, including all central plants, except as provided in §B(1) of this regulation.

  (1) Campus-level reporting does not include energy consumption and greenhouse gas emissions from activities/sources that are excluded from the benchmarking report requirements in COMAR 26.28.02.

  (2) The owner of a campus shall report to the Department annually by June 1st:

    (a) Any permits to build new buildings or change the footprint or usage of existing buildings on the campus; and

    (b) Any buildings that have received new certificates of occupancy.

  (3) The Department shall, in consultation with the principal owner of a campus, determine whether the affected buildings will be included in campus-level compliance following the rules established in this chapter and whether and how to adjust the campus’ interim and final performance standards.

C. Performance Standards for Campus-Level Compliance.

  (1) For a campus that consists of one property type, the interim and final net direct emissions standards are those that correspond with that property type.

  (2) For a campus that consists of more than one property type, the interim and final net direct emissions     standards are based on area-weighted standards as specified in the Department’s TM 24-01 “Technical Guidance and Calculation Methodologies to Comply with Building Energy Performance Standards”, which is incorporated by reference in COMAR 26.28.01.03.

  (3) Reserved.

  (4) Achieving and Maintaining the Standards.

    (a) Campus-level energy use shall not exceed the net direct emissions standards for 2030—2034 in each calendar year including 2030, 2031, 2032, 2033, and 2034, as determined on a yearly basis.

    (b) Campus-level energy use shall not exceed the net direct emissions standards for 2035—2039 in each calendar year including 2035, 2036, 2037, 2038, and 2039, as determined on a yearly basis.

    (c) Campus-level energy use shall not exceed the final net direct emissions standards in calendar year 2040 and each calendar year thereafter, as determined on a yearly basis.

## Subtitle 30 — Marine Contractors Licensing Board

### Chapter 01 — General Regulations

**Authority:** Environment Article, Title 17, Subtitles 1—5, Annotated Code of Maryland

**Administrative History:** Effective date: March 18, 2024 (51:5 Md. R. 233)

#### Regulation .01 Definitions.

*COMAR 26.30.01.01*

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Approved continuing education” means courses of study or programs of instruction in an area of marine construction and related subjects that are designed to improve, advance, or extend professional skill and knowledge relating to the practices of a marine contractor and that are approved by the Board in accordance with the requirements of this subtitle.

  (2) “Board” means the Marine Contractors Licensing Board.

  (3) “Credit hour” means the amount of time, usually 1 hour per 50 minutes of instruction, that is accredited by the Board or the institution sponsoring the continuing education.

  (4) “Entity” means a business with its principal office in the State that employs more than one individual and provides marine contractor services in the State.

  (5) “Gross negligence” means an intentional failure of a licensee or applicant for a license to perform an action or inaction as expected by the profession under the same circumstances, in reckless disregard of the consequences as affecting the life or property of another.

  (6) “Hours of approved continuing education” means the value given by the Board for participation in continuing education.

  (7) “Incompetence” means an action or inaction by a licensee or an applicant for a license which demonstrates a general lack of knowledge or ability to perform marine contractor services.

  (8) “License” means a professional license issued by the Board under this subtitle to an individual or entity to perform marine contractor services in the State.

  (9) “License renewal period” means the 24-month period immediately preceding the expiration date of the license.

  (10) “Licensed marine contractor” means an individual or entity that has received a license from the Board to perform marine contractor services.

  (11) “Licensee” means licensed marine contractor.

  (12) Marine Contractor Services.

    (a) “Marine contractor services” means construction, demolition, installation, alteration, repair, or salvage activities located in, on, or under State or private tidal wetlands.

    (b) “Marine contractor services” includes:

      (i) Dredging and filling;

      (ii) The construction, demolition, installation, alteration, repair, or salvage of structures, including boathouses, boat or other personal watercraft lifts or ramps, slips, docks, floating platforms, moorings, piers, pier access structures, pilings, wetland observation platforms, wetland walkways, and wharfs;

      (iii) The construction, demolition, installation, alteration, repair, or salvage of stabilization and erosion control measures, including revetments, breakwaters, bulkheads, groins, jetties, stone sills, marsh establishments, and beach nourishment or other similar projects; and

      (iv) Activities that require authorization under Environment Article, Title 16, Annotated Code of Maryland.

  (13) “Misconduct” means an action or inaction by a licensee or an applicant for a license that is deficient from the action or inaction expected by the profession under the same circumstances.

  (14) “Representative member” means the individual member of an entity appointed for the purposes of submitting an application for a license on behalf of the entity.

  (15) “Similar contractor experience” means construction, demolition, installation, alteration, repair, or salvage activities located above the mean hide tide and requiring authorization from the Department, in accordance with Environment Article, Title 5, Subtitles 5 and 9, Annotated Code of Maryland.

  (16) Solicit to Perform.

    (a) “Solicit to perform” means to try to obtain either directly or indirectly a job from a customer or potential customer to perform marine contractor services.

    (b) “Solicit to perform” does not include responding to a request for a proposal or a bid solicitation issued by an agency of the federal, State, or local government or a general contractor.

#### Regulation .02 License Required; Exceptions.

*COMAR 26.30.01.02*

A. Except as provided in §B of this regulation, a person shall be licensed by the Board as a marine contractor or be employed by an individual or entity that is licensed by the Board before the individual or entity may:

  (1) Perform marine contractor services in the State; or

  (2) Solicit to perform marine contractor services in the State.

B. Exceptions.

  (1) An individual who is employed by an agency of the federal government or the State may perform marine contractor services while in the performance of the duties of their employment without having to obtain a license from the Board.

  (2) A residential or commercial property owner may perform marine contractor services on the property owner’s own property without having to obtain a license from the Board.

  (3) An individual who performs marine contractor services while in the performance of the duties of their employment on behalf of a county or municipality in the State is not required to pay a fee for the issuance or renewal of a license or a test administered by the Board.

  (4) An individual who performs marine contractor services while in the performance of the duties of their employment on behalf of a county or municipality in the State may do so without having to obtain a license from the Board if the individual is performing marine contractor services that:

    (a) Would present a de minimis risk to human health or the environment;

    (b) Do not require a federal or State permit; and

    (c) If the marine contract services involve an existing structure, except a shore erosion control structure, do not increase the footprint of the structure.

#### Regulation .03 Qualifications and Licensure.

*COMAR 26.30.01.03*

A. The Board may not issue a license to an applicant whose trade or fictitious name or trademark is so similar to that used by another licensed marine contractor that the public may be confused or misled by the similarity.

B. Except as provided in §A of this regulation, the Board shall license an applicant if the applicant:

  (1) Submits an application for a license on the form required by the Board;

  (2) Is eligible to take the examination as provided in §D of this regulation;

  (3) Takes and passes the written marine contractor examination for the appropriate license category, as recognized by the Board;

  (4) Provides the Board with satisfactory evidence that the liability insurance and workers’ compensation insurance requirements of COMAR 26.28.02.01B have been satisfied;

  (5) Has a federal tax identification number;

  (6) If applicable, submits satisfactory evidence of the resolution of any acts which may subject the applicant to disciplinary action under COMAR 26.28.04; and

  (7) Pays the required license issuance fee.

C. Either an individual or an entity may apply for a license.

D. An applicant is eligible to take the examination if the applicant has at least 2 years of approved experience as a full-time marine contractor or demonstrates similar contractor experience as documented in the application and accepted by the Board. An applicant shall demonstrate the necessary experience in marine contractor services relevant to and included in the license category for which they are applying, in accordance with COMAR 26.28.01.05.

E. If the applicant is an entity, the entity shall appoint a member of the entity as the representative member to make the application and take the examination on behalf of the entity.

#### Regulation .04 Scope of License to Entity.

*COMAR 26.30.01.04*

While a license to an entity is in effect, a licensed entity may:

A. Employ individuals who are not licensed marine contractors to provide marine contractor services to the public on behalf of the licensed marine contractor entity; and

B. Represent itself to the public as a licensed marine contractor entity.

#### Regulation .05 License Categories.

*COMAR 26.30.01.05*

A. General.

  (1) A license issued by the Board only authorizes the performance or solicitation of marine contractor services as described by the applicable license category.

  (2) Any licensed marine contractor that performs, or solicits to perform, marine contractor services outside the scope of their applicable license category shall be considered to be performing marine contractor without a license, and subject to disciplinary action by the Board, pursuant to COMAR 26.28.04.01A.

B. License Categories.

  (1) Category 1: Heavy Marine Construction. This license category is suitable for contractors who perform, or solicit to perform, the following marine contractor services:

    (a) Bridges and highways, large scale commercial development, commercial dredging, cargo and naval wharfs, beach renourishment, heavy salvage, and any other large scale marine services, as approved by the Board.

    (b) Marine contractors licensed under Category 1 may also perform any of the marine contractor services authorized under Categories 2, 3, and 4 of this section.

  (2) Category 2: Residential and Commercial Marine Construction. This license category is suitable for contractors who perform, or solicit to perform, the following marine contractor services:

    (a) Piers, docks, wharfs, marinas, boathouses, pile driving, moorings, boat lifts, floating docks, riprap revetments, bulkheads, weirs, seawalls, boat ramps, living shorelines, beach nourishment, dunes, dredging, salvage, and any other medium to small scale marine contractor services, as approved by the Board.

    (b) Marine contractors licensed under Category 2 may also perform any of the marine contractor services authorized under Categories 3 and 4 of this section.

  (3) Category 3: Limited Marine Construction. This license category is suitable for contractors who only perform, or solicit to perform, a limited subset of the marine contractor services listed in Category 2. A Category 3 License only authorizes the specific marine contractor services identified in the license, as issued by the Board.

  (4) Category 4: Incidental Marine Contractor Services. This license category is suitable for contractors who perform, or solicit to perform, the following marine contractor services: directional boring, aquaculture, submerged aquatic vegetation and wetland grass planting, and any other related marine contractor services, as approved by the Board.

#### Regulation .06 Duration of License.

*COMAR 26.30.01.06*

A. A license is valid for 2 years from the date of issuance.

B. A license is invalid after the expiration date of the current license, if not renewed in accordance with the requirements of COMAR 26.28.02.06.

C. An expired license may not be reinstated, and the former licensee shall meet the qualifications for a new license as described in Regulation .03 of this chapter.

#### Regulation .07 Identification of Licensed Marine Contractor.

*COMAR 26.30.01.07*

A. The Board shall provide each licensed marine contractor with a license that includes the:

  (1) License category;

  (2) Name of the licensed marine contractor;

  (3) License number;

  (4) Address of the principal office and each branch office, if the licensee is an entity;

  (5) Issuance date of the license;

  (6) Expiration date of the license; and

  (7) Representative member, if the licensee is an entity.

B. License Number.

  (1) A licensed marine contractor shall include the license number:

    (a) In all advertising related to the provision of marine contractor services; and

    (b) On all large equipment used in the course of the licensee’s work as a marine contractor.

  (2) The license number shall be set out in at least 3-inch block lettering.

#### Regulation .08 Other Authorizations Required.

*COMAR 26.30.01.08*

A license under this subtitle does not allow a licensed marine contractor to perform any work in, on, or under State or private tidal wetlands for which all required authorizations have not been obtained, including authorization under Environment Article, Title 16, Annotated Code of Maryland.

### Chapter 02 — Licensing Procedures and Fees

**Authority:** Environment Article, Title 17, Subtitles 1—5, Annotated Code of Maryland

**Administrative History:** Effective date: March 18, 2024 (51:5 Md. R. 233)

#### Regulation .01 Application Procedures.

*COMAR 26.30.02.01*

A. An application for a license shall be:

  (1) Made on the form provided by the Board; and

  (2) Completed fully and signed under oath by the individual applicant or representative member, if the applicant is an entity.

B. In addition to satisfying the requirements of §A of this regulation, each application shall be accompanied by supporting documentation, including:

  (1) Whatever evidence the Board deems necessary to establish professional qualifications and experience; and

  (2) Certificates of insurance verifying that the applicant carries:

    (a) Commercial general liability insurance with a $300,000 total aggregate minimum; and

    (b) Workers’ compensation insurance, unless exempt by law.

#### Regulation .02 Application Form.

*COMAR 26.30.02.02*

A. For all applicants, the application form shall require:

  (1) The name of the applicant;

  (2) The license category being applied for;

  (3) The address of the applicant’s principal place of business and each branch office;

  (4) Current and previous employment of the individual applicant or representative member, if the applicant is an entity, relevant to the field of marine contracting;

  (5) All trade or fictitious names the applicant intends to use while performing marine contractor services; and

  (6) A federal tax identification number.

B. For entity applicants, in addition to the requirements in §A of this regulation, the application form shall require:

  (1) A list of the entity’s owners, members, or partners;

  (2) A designated representative member for the purpose of the application and examination; and

  (3) Verification that the representative member is a member of or employed by the entity.

#### Regulation .03 Incomplete Application.

*COMAR 26.30.02.03*

A. An application is not complete until all required application documents, including the fee and supporting documentation, have been received by the Board.

B. The Board may return an application to the applicant with a statement of the reason for rejection if the Board determines that the application does not contain:

  (1) The name and address for each individual applicant or entity owner;

  (2) The current and previous employment of the applicant relevant to the field of marine contracting;

  (3) The address of the applicant’s proposed principal place of business and each proposed branch office;

  (4) All trade or fictitious names that the applicant intends to use while performing marine contractor services; or

  (5) The application fee.

C. The Board shall withhold final consideration of the application until the application is complete. If all requested supporting documents are not received within 90 days of receipt of the application, the Board shall notify the applicant of the missing documents.

D. Applications for a license shall be held for 1 year from the date of the initial receipt, after which time the application will be terminated and the application fee forfeited.

#### Regulation .04 Action on an Application.

*COMAR 26.30.02.04*

A. Except as provided in Regulation .03 of this chapter, the Board shall review all applications within 60 days of receipt of the completed application.

B. Action on an application includes one of the following:

  (1) Return of the application if the Board determines that it is incomplete;

  (2) Approval of the applicant for examination for the appropriate category, as determined by the Board; or

  (3) Denial of the application for a license.

C. Notification. The Board shall give written notification to an applicant of any action taken by the Board on the applicant’s application.

D. Denial of Application for License.

  (1) The Board may deny an application for a license if the Board determines that the applicant has:

    (a) Failed to demonstrate that the applicant is eligible for examination under COMAR 26.28.01.03; or

    (b) Committed any act that would be a basis for disciplinary action under COMAR 26.28.04.01.

  (2) The Board shall notify an applicant of the basis for the denial by first-class mail.

E. Reconsideration and Appeal of Application Denial.

  (1) An applicant may appeal the denial of the application under §D of this regulation by notifying the Board in writing by certified mail within 30 days of receipt of the Board’s decision.

  (2) In the case of a denial under §D(1)(a) of this regulation, an applicant may appeal the denial of the Board in writing by certified mail within 30 days of receipt of the Board’s decision by:

    (a) Submitting new or additional evidence to clarify or amplify the applicant’s qualifications; or

    (b) Requesting an informal meeting with the Board.

  (3) In the case of a denial under §D(1)(b) of this regulation, the applicant may appeal the denial by requesting a hearing in accordance with the procedures outlined in COMAR 26.28.04.

#### Regulation .05 Examination.

*COMAR 26.30.02.05*

A. The Board shall notify the applicant of the applicant’s eligibility to take an examination for the appropriate license category at least 30 days before the next scheduled examination.

B. The Board shall offer a written examination at least three times a year.

C. The times and places within the State for the written examination shall be announced by the Board.

D. The passing score for the examination is 70 percent.

E. Except as provided in §F of this regulation, an applicant who fails the examination may apply for reexamination by submitting the examination fee.

F. An applicant who has failed the examination three times may be required to appear in person before the Board and satisfy any additional requirements approved by the Board before reexamination

#### Regulation .06 License Issuance Fee.

*COMAR 26.30.02.06*

A. After an applicant passes the examination, the applicant shall pay the license issuance fee as determined by the Board.

B. Within 30 days of the receipt of the license issuance fee, the Board shall issue the license.

#### Regulation .07 License Renewal.

*COMAR 26.30.02.07*

A. At least 2 months before a license expires, the Board shall send to the licensed marine contractor by first-class mail or electronically:

  (1) A renewal application; and

  (2) A notice that states:

    (a) The date on which the current license expires;

    (b) The date by which the Board must receive the renewal application for the renewal to be issued and mailed before the license expires; and

    (c) The amount of the license renewal fee.

B. Failure to notify the licensed marine contractor does not relieve the licensee of the licensee’s obligation to renew the license, nor does it affect the expiration of the license.

C. A license may be renewed for a 2-year period by the Board if the licensed marine contractor has:

  (1) Submitted an application for renewal before expiration date of the license;

  (2) Paid the license renewal fee established by Regulation .09 of this chapter;

  (3) Completed the necessary continuing education as required by COMAR 26.28.03 and submitted satisfactory evidence of compliance with the continuing education requirements;

  (4) Submitted satisfactory evidence of compliance with the insurance requirements as required by COMAR 26.28.02.01; and

  (5) If applicable, submitted satisfactory evidence of the resolution of any license violations, suspensions, denials, revocations, or other Board actions taken under this subtitle.

#### Regulation .08 Keeping Information Current; Change of Representative Member.

*COMAR 26.30.02.08*

A. A licensed marine contractor shall keep its contact information current with the Board.

B. Within 5 business days after any change of contact information, a licensed marine contractor shall submit to the Board written notice of:

  (1) Any change in the address or telephone number of an existing office or principal place of business; and

  (2) If the licensee is an entity, the addition of a branch office.

C. A licensed entity shall keep current with the Board the identity of the person designated as the representative member.

D. Within 5 business days after the change, a licensed entity shall submit to the Board a written request to designate a new representative member, which shall include:

  (1) The name of the newly designated representative member;

  (2) Verification that the newly designated representative member is a member of, or employed by, the entity; and

  (3) The qualifications of the newly designated representative member, as required under COMAR 26.28.01.03D.

E. If the Board determines that a newly designated representative member is eligible to take the examination, the representative member shall take the examination on the next date on which the examination is scheduled.

#### Regulation .09 License Replacement or Modification.

*COMAR 26.30.02.09*

A. A licensed marine contractor may obtain a duplicate license to replace a license that has been lost, destroyed, or mutilated if the licensee:

  (1) Makes a written request to the Board, and

  (2) Pays the license replacement fee to the Board.

B. A licensed marine contractor may obtain a license modification, if the licensee:

  (1) Makes a written request to the Board, stating the reason for the request;

  (2) Provides the new or changed information to the Board, for example, an address change or, if the licensee is an entity, a name change; and

  (3) Pays the license modification fee to the Board.

### Chapter 03 — Continuing Education

**Authority:** Environment Article, Title 17, Subtitles 1—5, Annotated Code of Maryland

**Administrative History:** Effective date: March 18, 2024 (51:5 Md. R. 233)

#### Regulation .01 General.

*COMAR 26.30.03.01*

In order to renew a license, a licensed marine contractor shall submit to the Board satisfactory proof of the completion of at least 12 credit hours of approved continuing education.

#### Regulation .02 Approval of Continuing Education.

*COMAR 26.30.03.02*

A. Approved continuing education shall be designed to improve, advance, or extend the licensee’s professional skill and knowledge relating to the provision of marine contractor services.

B. The Board shall approve courses for purposes of satisfying the continuing education requirements in Regulation .01 of this chapter, based on the following:

  (1) Course objectives;

  (2) Course outline;

  (3) Training material;

  (4) Instructor credentials;

  (5) Student evaluation methods and criteria; and

  (6) Relevance to the applicable license category.

C. Approved continuing education may consist of participation in any of the following, provided there is satisfactory proof of completion acceptable to the Board:

  (1) College-level or postgraduate course work given by an accredited college or university;

  (2) Courses, seminars, workshops, or lectures;

  (3) Extension studies and correspondence courses;

  (4) Papers published in professional journals and requiring peer review;

  (5) Instruction of approved continuing education courses; or

  (6) Other continuing education acceptable to the Board.

D. The Board shall maintain a current list of all continuing education that has been approved by the Board.

E. The Board shall determine the credit hours of approved continuing education as follows:

  (1) Credits shall be approved in not less than ½ hour increments;

  (2) Credits shall be approved on an hour-for-hour basis for attendance at an approved continuing education program; and

  (3) Credits are approved on a two-for-one hour basis for the instructor of an approved continuing education program.

F. The sponsor of a continuing education course or a licensed marine contractor may request that the Board approve a course by submitting a request for approval on a form provided by the Board.

#### Regulation .03 Proof of Continuing Education.

*COMAR 26.30.03.03*

A. Approved continuing education obtained within the appropriate license renewal period shall be credited as provided under Regulation .02E of this chapter.

B. Each licensed marine contractor is responsible for the submission of proof of all approved continuing education to the Board.

C. Proof of continuing education consists of:

  (1) Official transcripts from the educational institution;

  (2) A certificate or other documentation signed by the instructor or sponsor of the continuing education, attesting to the satisfactory completion of the continuing education; or

  (3) Other documentation determined by the Board to be adequate, in light of the nature of the continuing education, to establish that the continuing education was actually received by the licensed marine contractor.

### Chapter 04 — Disciplinary Action

**Authority:** Environment Article, Title 17, Subtitles 1—5, Annotated Code of Maryland

**Administrative History:** Effective date: March 18, 2024 (51:5 Md. R. 233)

#### Regulation .01 Denials, Reprimands, Suspensions, and Revocations.

*COMAR 26.30.04.01*

A. Subject to the hearing provisions of Regulation .02 of this chapter, the Board may deny, refuse to renew, suspend, or revoke a license if the applicant or licensed marine contractor:

  (1) Performs or solicits to perform marine contractor services without a license;

  (2) Unless authorized to perform marine contractor services under this title, represents to the public by title, by description of services, methods, or procedures, or otherwise that the individual or entity is authorized to perform marine contractor services in the State;

  (3) Violates a provision of Environment Article, Title 17, Annotated Code of Maryland, or a regulation under this subtitle;

  (4) Fraudulently or deceptively obtains or attempts to obtain a license for the licensed marine contractor or for another individual or entity;

  (5) Fraudulently or deceptively uses a license;

  (6) Commits any gross negligence, incompetence, or misconduct while practicing marine contractor services;

  (7) Fails to comply with the terms of a tidal wetlands authorization issued under Environment Article, §16-202 or 16-307, Annotated Code of Maryland;

  (8) Violates any provision of, or regulations adopted under, Environment Article, §16-202 or 16-307, Annotated Code of Maryland; or

  (9) In the Chesapeake and Atlantic Coastal Bays Critical Area, as defined under Natural Resources Article, §8-1802, Annotated Code of Maryland, fails to comply with:

    (a) The terms of a State or local permit, license, or approval; or

    (b) Any State or local law, an approved plan, or other legal requirement.

B. For the purpose of this regulation, an act or omission of any principal, agent, or employee of an applicant or licensed marine contractor may be construed to be the act or omission of the applicant or licensed marine contractor, as well as of the principal, agent, or employee.

#### Regulation .02 Procedures for Disciplinary Action.

*COMAR 26.30.04.02*

A. Before taking any action pursuant to Regulation .01 of this chapter or COMAR 26.28.02.04C(2), the Board shall refer a proposed decision to the Secretary, or their designee, for final approval pursuant to State Government Article, §8-205.1, Annotated Code of Maryland. Once a final decision has been made by the Secretary, or their designee, the Board shall give the applicant or licensed marine contractor against whom the action is contemplated notice and the opportunity for contested case hearing.

B. At least 30 days before the hearing, the hearing notice shall be:

  (1) Served personally; or

  (2) Sent by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, to the last known address of the individual or entity.

C. The notice of hearing and hearing shall conform to the provisions of the Administrative Procedures Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

D. If, after due notice, the individual or entity against whom the action is contemplated fails or refuses to appear, the Board nevertheless may hear and determine the matter.

E. A person aggrieved by a final decision of the Board is entitled to judicial review in accordance with State Government Article, §§10-222 and 10-223, Annotated Code of Maryland.

## Subtitle 31 — State Board of On-Site Wastewater Professionals

### Chapter 01 — General Regulations

**Authority:** Environment Article, §§ 9-11A-01—9-11A-23, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 adopted as an emergency provision effective November 25, 2025 (52:25 Md. R. 1306)

#### Regulation .01 Definitions.

*COMAR 26.31.01.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Board” means the State Board of On-Site Wastewater Professionals.

  (2) “Certificate of completion” means documentation of successful completion of a Department-approved on-site wastewater sewage disposal property transfer inspection course.

  (3) “Department standard inspection form” means Maryland Department of the Environment's standardized inspection form including instructional guidelines for evaluating an existing on-site sewage disposal system and reporting the findings.

  (4) “License holder” means an individual who holds a valid on-site sewage disposal system property transfer inspection license issued by the Department.

  (5) “On-site sewage disposal inspection” or “OSDS inspection” means any evaluation of an on-site sewage disposal system.

  (6) “On-site wastewater property transfer inspection license” means an individual license to engage in the business of inspecting an on-site sewage disposal system for property transfer purposes issued by the Department.

**Emergency Action:** 52:26  25-138-E  (Regulations .01— .07) EMERGENCY ACTION IN EFFECT 11/25/2025 — 5/24/2026

#### Regulation .02 Applicability.

*COMAR 26.31.01.02*

A. This chapter applies to individuals engaged in the business of inspecting any on-site wastewater sewage disposal system for a property transfer inspection.

B. This chapter does not apply to an individual who inspects an on-site sewage disposal system as a part of the individual’s duties as an employee of the federal government, the State, or any local government of the State.

#### Regulation .03 Licensure.

*COMAR 26.31.01.03*

A. An individual may not engage in the inspection of an on-site sewage disposal system for property transfer inspections after June 30, 2025, without either:

  (1) Obtaining an on-site wastewater property transfer inspection license issued by the Board; or

  (2) Holding a valid property transfer inspection license issued by the Department.

B. The Board may issue an on-site wastewater property transfer inspection license to an individual that:

  (1) Submits a complete application provided by the Board for licensure to the Board;

  (2) Submits the $150 application fee; and

  (3) Either:

    (a) Provides a certificate of completion for a Department-approved training course meeting the requirements detailed in Regulation .04 of this chapter; or

    (b) As of July 1, 2022, is identified on MDE’s list of individuals who have completed a Department-approved on-site inspection course for property transfer inspections.

C. The on-site wastewater property transfer inspection license will be valid for a 2-year period.

D. Sixty days prior to expiration of an on-site wastewater property transfer inspection license, an individual shall apply for licensure renewal according to the conditions described in §B of this regulation.

E. The licensee shall retain all records of property transfer inspections for a period of 5 years and provide copies of these records to the Department upon request.

F. The Board reserves the right to suspend or revoke a license in accordance with Regulation .06 of this chapter.

#### Regulation .04 Training Course Requirements.

*COMAR 26.31.01.04*

A. A training course for an on-site wastewater property transfer inspection license shall include:

  (1) A minimum 14 total hours of instruction to include lectures, demonstrations, and course review;

  (2) A minimum of 3 hours of the 14 hours shall include hands-on training which allows applicants the experience of performing tasks associated with on-site wastewater sewage system inspections;

  (3) Topics covering Maryland statutory and regulatory requirements related to on-site sewage disposal systems in COMAR 26.04.02;

  (4) Distribution of written materials, including the Department standard inspection form and instruction guideline document; and

  (5) A closed book examination with a minimum of 100 multiple choice questions with:

    (a) Twenty-five questions specific to COMAR 26.04.02;

    (b) Fifteen questions specific to the Department standard inspection form; and

    (c) Ten questions specific to final inspection determinations regarding replacement or repair to an on-site wastewater system.

B. Applicants may receive a certificate of completion when passing an examination with a 70 percent or greater score.

C. Any training course for the purpose of obtaining a certificate of completion under this regulation shall be provided by the Department or a Department-approved training course provider.

#### Regulation .05 Training Course Provider Requirements.

*COMAR 26.31.01.05*

A. The training course provider must satisfy all requirements of Regulation .04 of this chapter.

B. The Department may approve a training course if the training provider demonstrates to the satisfaction of the Department the ability to teach the requirements in this regulation and Regulations .02—.04 of this chapter by:

  (1) Submitting complete course materials to the Department for approval; and

  (2) Employing instructors having academic credentials or a minimum of 3 years field experience in the topics they instruct.

C. The training provider shall administer a proctored closed-book examination approved by the Department which:

  (1) Contains a minimum of 100 multiple-choice questions, of which:

    (a) At least 25 questions shall be specific to COMAR 26.04.02;

    (b) At least 15 questions shall adequately cover the Department standard inspection format; and

    (c) At least 10 questions shall adequately cover final determinations regarding replacement or repair of an on-site wastewater system inspection; and

  (2) Requires a passing score of at least 70 percent for certificate of completion.

D. The training provider shall issue to each individual who successfully completes the training course a certificate of completion with the following information:

  (1) Name of training course;

  (2) Individual’s name;

  (3) Individual’s mailing address, electronic address, and phone number;

  (4) Identification number unique to that individual;

  (5) Name, address, and phone number of training provider;

  (6) Instructor’s name and signature; and

  (7) Date of training and examination.

E. In order to audit any training provider, Department representatives may attend, evaluate, and monitor any training course and may or may not provide notice of attendance.

F. Prior to changing any portion of an approved course the training provider shall obtain approval from the Department for the proposed changes.

G. A training provider shall provide to the Department a written schedule of dates and locations at which training will be conducted and:

  (1) Ensure that the Department receives this schedule at least 10 days before the course is offered; and

  (2) Provide as promptly as possible to the Department any changes to the schedule.

H. The training provider shall:

  (1) Maintain lists of individuals trained, the dates on which training occurred, instructor names, proctor names, training locations, individual test scores, and copies of certificates of completion;

  (2) Maintain testing materials in a secure and confidential manner and, if any breach occurs with testing materials, notify the Department within 48 hours;

  (3) Retain records for 3 years and provide copies of these records to the Department upon request; and

  (4) Send the information in §H(1) of this regulation on a form provided by the Department to the Department within 10 working days of completion of the approved course.

I. Training courses shall be approved annually by the Department.

J. Training providers shall provide reasonable testing accommodations upon request from an individual.

K. Unless the Department withdraws the approval of the training provider or a training course such approval shall remain valid for 1 year.

L. Training courses approvals are not transferable.

M. The Department may withdraw the approval of any approved training course or training provider if the Department determines that the training provider, instructors, or course has demonstrated any of the following:

  (1) Failure to meet the standards of this regulation;

  (2) Misrepresentation of a training course’s approval;

  (3) Failure of instructors to present the course as approved;

  (4) Failure to submit any notifications required by this chapter in a timely manner;

  (5) Failure to maintain records as required by this chapter;

  (6) Falsification of records, instructor qualifications or other information;

  (7) Incompetence or negligent in the performance of administering the training or the exam; or

  (8) Other good cause.

N. The Department shall serve notice of withdrawal of an approved training provider or an approved training course. The training provider may request a hearing within 10 days after service of the notice. If the Department receives a timely request, the Department shall hold a hearing in accordance with State Government Article, §10-201 et seq., Annotated Code of Maryland.

#### Regulation .06 Suspension or Revocation of an On-Site Wastewater Property Transfer Inspection License.

*COMAR 26.31.01.06*

A. The Board may revoke or suspend the on-site wastewater property transfer inspection license of an individual if the individual:

  (1) Fraudulently or deceptively obtains, uses, or attempts to obtain an on-site wastewater property transfer inspection license for another individual;

  (2) Fails at any time to meet the requirements of licensure in this chapter;

  (3) Falsified information regarding the inspection;

  (4) Violates any rule, regulatory order, or permit issued by the Department or the Approving Authority related to the on-site sewage disposal system;

  (5) Negligently or incompetently performs on-site sewage disposal inspections;

  (6) Performs an inspection without being in physical possession of a valid on-site wastewater property transfer inspection license; or

  (7) Other good cause.

B. The Board shall serve notice of the revocation or suspension of an individual’s license to the individual. The individual may request a hearing within 10 days after service of the notice. If the Board a timely request, the Board shall hold a hearing in accordance with the Administrative Procedure Act, State Government Article, §10-201 et seq., Annotated Code of Maryland.

#### Regulation .07 Penalties.

*COMAR 26.31.01.07*

A. An individual who violates any provision of Environment Article, §9-11A, Annotated Code of Maryland, or any provision of these regulations shall be subject to a penalty pursuant to Environment Article, §9-11A-22 and §9-11A-23, Annotated Code of Maryland.

B. Each on-site sewage disposal system that an individual knowingly inspects without a valid on-site wastewater property transfer inspection license constitutes a separate violation.

C. Any administrative penalty collected by the Board under this chapter shall be paid into the On-Site Wastewater Professionals Fund established under Environment Article, §9-11A-11, Annotated Code of Maryland.